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The legal news just kept coming this week, and Melissa, Leah, and Kate break it all down. Could Friend of the Pod Sam Alito be retiring? Possibly! Can Pete Hegseth retaliate against Senator and veteran Mark Kelly for free speech? No! Just how wild was Pamela Jo Bondi’s Epstein files testimony in Congress? Pretty flippin’ wild! They also cover the latest out of Minnesota, Democratic representatives tearing the head of ICE a new one, some very bad news for humans who enjoy clean air, the Heritage Foundation’s crusade against birth control, and other legal flotsam and jetsam. Finally, Kate speaks with Elliot Williams about his new book, Five Bullets: The Story of Bernie Goetz, New York’s Explosive ’80s, and the Subway Vigilante Trial That Divided the Nation.

Favorite things:

• Kate: Bad Bunny’s Super Bowl Halftime Show; Universities Are Sending Trump a Dangerous Message, Arne Duncan & David Pressman (Washington Post); The Field of Blood: Violence in Congress and the Road to Civil War, Joanne B. Freeman

• Leah: We Have to Look Right in the Face of What We Have Become, Jamelle Bouie; What It Means to Be a White ‘Race Traitor’, Nikole Hannah-Jones (NYT)

• Melissa: MS NOW Presents: Clock It with Symone Sanders Townsend & Eugene Daniels; A Pilot Fired Over Kristi Noem’s Missing Blanket and the Constant Chaos Inside DHS (WSJ); Jessica Bichler for NC State Senate

 

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TRANSCRIPT

 

Leah Litman [AD]

 

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

 

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

 

Kate Shaw And I’m Kate Shaw. And we are in our final week of the long stretch between the January and February Supreme Court sittings. So this is a stretch in which there were no Supreme Court arguments and actually no opinions from the court. So.

 

Melissa Murray Must be nice. Quiet quitting.

 

Kate Shaw It has been for them and for us. I think we’ve all enjoyed this last week and this coming week of our collective respite before the court returns both to issuing opinions and to hearing arguments. But there has been, even in the absence of SCOTUS, a ton of legal news that we’re going to cover today. That’s coming out of the executive branch, out of lower federal courts, even out of a Congress, which seems to be maybe… Wait, did we get one? We got a Congress? It’s a little too soon to say for sure, but there are definitely indications that we might have on Article 1 that’s doing things.

 

Melissa Murray Is it a pre-Congress?

 

Kate Shaw It might be. You take it before the actual Congress.

 

Melissa Murray Like, yeah, or a fetal congress.

 

Kate Shaw Okay, I’m not sure. I think we will see. But it was showing signs of, you know, actually interest in overseeing the executive branch and communicating with the public. So we’re going to cover all of that.

 

Melissa Murray But before we get to this week’s news, I’m going to preview one of my new favorite things. It’s a mystery called the case of the possibly retiring justice. And I have some breaking clues. So not entirely ready to call it breaking news, but as Leah noted in our last episode, a number of clues have emerged over the past couple of weeks pointing to the possibility That friend of the pod when Samuel a Alito may be preparing to hang up his robes and turn full time to pursuing his passions, right wing news, flags, general conservative grievance, and Wagner. So let’s enumerate the clues. First, Justice Alito recently celebrated 20 years on the court at the end of January. And Ladies, I know you felt every one of those 20 years in your uterus, but it was just 20 years. Actually, not a long time when you really think about it, but it felt like a million years. That is usually a very good milestone on which to retire, like a round number, you can mark it. I don’t even know what the gift is for 20 years, it’s definitely not paper, it’s like a medal of some sort, but that’s a good time.

 

Kate Shaw Yeah.

 

Melissa Murray The second clue is that the signs are not looking great for the Republicans in the midterms. So they have their big, beautiful, disastrous bill that has made everyone poorer. The eggs are still expensive. Nobody has health care. And they don’t seem to care about it. That means that they may very well lose the House of Representatives and possibly the Senate. And if they lose the Senate, that obviously makes it so much harder for the president to get through his scotus fetus nominee. That means if you retire before you lose the Senate, then you make the whole glide path so much easier for getting in your preferred candidate, do it before the midterms changes everything. So that’s the second clue. The third clue is that this is obviously someone who wants to ensure that he is replaced by a like-minded successor, right? So. You got to do this while the iron is hot, while the Senate is in position. And then the final clue is that the publication date for his forthcoming book, So Ordered, which as Leah noted last week, is going to be published during the first week of October term 2026. And that is usually a time when sitting justices are quite busy. Which means it’s not exactly a great time to release your new book if you want to promote said book. So I will just drop that. I will also note a very fawning op-ed by former clerk with cases pending at the Supreme Court right now, Ben Aguinnaga, who talked about the decency, the core decency and goodness of his former boss. All of this may suggest that we are just in commemoration mode. 20Th anniversary has come, and we are just lauding the great man as one does. But personally, I think this feels a little bit like the right-wing ecosystem kicking into high gear. What do you think, Kate?

 

Kate Shaw It does feel like that. And I will say that we are not the only ones to have noticed that evidence seems to be mounting. So friend of the pod, Ellie Mistal, penned a column last week in the Nation magazine titled, quote, is Sam Alito preparing to disrobe? Amazing title. Let’s raise right past that image. Image is terrible. Zero out of 10, but very good work. Very clever. Yes, absolutely. We salute you, our friend. So we will just note that if there is an announcement, If our speculation in Ellie’s is right, it is possible that it could come very soon. So many, although not all, SCOTUS retirement announcements come at the end of the term, but there’s no requirement that that be the case. And in fact, if the kind of electoral math that Melissa was alluding to is part of the calculus here, then sooner would make a lot of sense. So thinking about a few recent retirements, Justice Stevens announced his retirement in April, Justice Souter in May, and Justice Breyer announced his retirement at the of January in 2022. Providing, when he did, that his retirement wouldn’t take effect until the end of the term, assuming that his successor had been nominated and confirmed by then. He was, of course, succeeded by Justice Jackson, who replaced him after the end of that term. And kind of given that the Senate is unlikely to want to focus on Ascotus’ nomination and confirmation hearings during the fall of an election year, it feels like they would want to do it sooner rather than later. I presume he would do something similar to Justice Breyer, make the retirement effective at the end to the term. And contingent on confirmation of a successor, but it could be just a matter of weeks if we are right in our speculation.

 

Melissa Murray All right, so this all begs the question, listeners, who might America’s next top justice be? Right now, we are just going to do a lightning round of the folks we think are likely high on the list of possible replacements, not necessarily because their jurisprudence has been so eye popping, although some cases it has been, but because they have really been putting themselves out front. They are true Meredith Gray pick me candidates. And of course, we will revisit all of this if, in fact, there is an announcement. But just to give you a flavor of what might be in the offing, let’s go through them. First up, my first pick me is Judge Andy Oldham of the Fifth Circuit. As we’ve noted, he has really brought some thirsty energy to the Fifth circuit, and he’s been doing so for some time. He’s also staked out positions that are so extreme that even the Supreme Court feels compelled to say. Easy, tiger. Slow this down. Keep smacking him down. These decisions that have literally required the court to intervene include his non-delegation doctrine opinion in Consumer’s Research Council, his opinion striking down a ghost gun regulation in Bondi versus Vanderstalk, and the flavored tobacco case, FDA versus Wages and Red Lion, in which he was unanimously reversed. They call that a bench slap. He also wrote a particularly hackish opinion suggesting that President Joe Biden was too senile, to pardon people. Yes, really he did. He’s also 47, which means he is exactly the right age. And if past his prolog, he is also an Alito clerk. So there is some nice symmetry here. And our friend Mark Joseph Stern at Slate actually had a piece on the prospect of an Oldham candidacy last year, so we recommend that to you as well. Another entrant, also from the Fifth Circuit, is a perennial favorite in these stakes, and that is, of course, one Judge Jim Ho. He is a Thomas Clerk and, as you know, a perennial pick-me conservative who’s been on this bench for years. He’s been a huge proponent. Of the made-up major questions doctrine, including a case that sought to blow up the Nuclear Regulatory Commission’s nuclear waste storage. Because obviously, just letting any fool store nuclear waste sounds like a perfectly good idea. Picking Judge Ho might give the Democrats an opening to focus on corruption and billionaire benefactors, because as we know, there have been ties to both Justice Thomas and Harlan Crowe that Judge Ho has been privy to. That might be a mark against him, but here’s the rub. Judge Ho would also be the first Asian-American ever nominated to the court. And that might give the Republicans some fodder if the Democrats came out hard against him. Also, Judge Ho is in his 50s, so I don’t know. Seems like on the older side. It would probably be better if he was 15. What do you think?

 

Kate Shaw They do want to install a justice who will serve for decades, and I think probably under 50, if they can.

 

Melissa Murray I think the justice should be able to drive though. It’s a line in the sand for me.

 

Kate Shaw I mean, legally, able. In New York, so many people just can’t, so who knows. So moving on to a slightly younger potential nominee, Judge Eileen Cannon of the Southern District of Florida. So if you remember classified documents in bathrooms and ballrooms, Cannon really needs no introduction. Her pro-Trump rulings in the Mar-a-Lago episode, which involved Trump being criminally indicted for taking and retaining documents following the conclusion of his first presidency were truly jaw-dropping. This is a patronage administration, and Canon has displayed the kind of loyalty that would make Roscoe Conklin proud. You have to see Death by Lightning if you haven’t.

 

Melissa Murray That’s a deep cut, wow. Proud of you.

 

Kate Shaw And she’s not a New Yorker, she’s a Floridian. But anyway, she delivered for Trump and spades in that case, and it feels like it now might be her turn, and she is on the younger end. So I think she is definitely high on the list.

 

Melissa Murray One thing that might cut against her. I think it’s going to be a big leap from the district court to the Supreme Court. I mean, I think she has to make a pit stop at the 11th Circuit.

 

Kate Shaw Possible. Okay, so another possibility, speaking of the courts of appeals, Judge Naomi Rao of the D.C. Circuit. You know, she was on short lists during the first Trump term. She has definitely delivered some pretty outlandish rulings in favor of Trump since being installed in the D C circuit, including in the contempt case out of Judge Boasberg’s chambers. Still, you know, you hate to say it, but I don’t actually see things breaking her way. So first, no, that was complete sarcasm. I don’t hate to I’d love to say it. I mean, although look, I think she probably would be less insane than some of the people on the list. So, you know, hard to know exactly what to root for here. But in some ways, like I find her outlandish rulings harder to swallow because I do feel like on some level she knows better. Like she was once a scholar of administrative law who wrote some, you know, perfectly reasonable things and she no longer is that. But 53, she’s probably older than they want. And I also do think she is a lady, right? Which could, you know, so is Eileen Cannon. I’m not sure that’s a strike against her. But I think that actually with Rao, some GOP senators, this was at least the kind of scuttle, but last time she was in the mix was that she’s not conservative enough, despite her dogged efforts on the bench in recent years to prove them wrong. And I’m sure she has successfully shaken that concern.

 

Melissa Murray I don’t know, she’s done a pretty good job of rehabbing her credo.

 

Kate Shaw She’s tried. Yeah, she definitely has.

 

Melissa Murray Any other new and up-and-comers you want to flag?

 

Kate Shaw Let me just tick through a few. Judge Patrick Boumete of the Ninth Circuit, Judge Lawrence Van Dyke also of the Nine…

 

Melissa Murray Oh, he’s the video descent.

 

Kate Shaw In the gun case, yeah, that’s him. I mean that’s a way to get noticed. Stanford stormtrooper Stuart Kyle Duncan.

 

Melissa Murray I literally thought there was a judge named Stanford Stormtrooper. I’m like, that’s a very interesting name. I’ve never heard of him.

 

Kate Shaw Yeah

 

Melissa Murray Kyle Duncan.

 

Kate Shaw Okay, very sort of like outside possibility, but throw in the mix. Newbie Jen Mascot of the Third Circuit. And what about an erstwhile U.S. Attorney, Alina Haba, Lindsay Halligan?

 

Melissa Murray Oh, I love that these two might actually get a Senate confirmation hearing. That would be novel and unprecedented, amazing.

 

Kate Shaw That’s not happening, I just wanted to put them on the list.

 

Melissa Murray Like that was just literally a shit

 

Kate Shaw I just wanted to remind people that these are lawyers given serious jobs in this administration.

 

Melissa Murray Well, Kate, I’m surprised that you did not mention one Emil Bove of the Third Circuit. This is, of course, the former Trump henchman turned DOJ number three, turned Third Circuit judge because, of course, who is probably best known through the reports of whistleblower Erez Ravini, who reported that during the alien enemies litigation, quote, Bove stated that DOJ would need to consider telling the courts, fuck you, and would ignore any such order. That’s going to be spicy in the confirmation hearings. Tell us, sir, about your relationship with DOJ. I will say that Judge Bove has so far avoided getting pulled into the contempt proceedings before Judge Boasberg. Maybe that’s because he’s also a judge right now. That could probably be part of it. But it is still wild that he is on the bench, and wilder still that he likely will be on the short list if Alito does retire.

 

Kate Shaw Indeed.

 

Melissa Murray Obviously, listeners, we will have a more refined list if and when an announcement is made. It probably will be made via a leak to Politico, so stay tuned for that. I hope the Chief Justice will be enforcing those NDAs rigorously, as was promised.

 

Kate Shaw See, of course, the leak could come either from the court or from the White House, and Roberts doesn’t have jurisdiction over the White House staffers because, you know, typically there’s a letter that gets delivered to the White House. So, but yeah, I agree with you, Melissa. It’s probably a leak rather than an announcement that is the way we will find out. I think so.

 

Leah Litman [AD]

 

Kate Shaw All right, let’s turn to the news. And as I said at the outset, there has been a lot. We’re gonna start with Minnesota and we will also cover various developments in courts and the executive branch that are kind of broadly related to the administration’s brutal immigration enforcement strategy. We will then cover some other developments in courts in the executive range. And again, wonder of wonders, the Congress.

 

Melissa Murray All right, first up, Ice Out of Minnesota. Listeners, on Thursday, Border Zarina Tom Homan announced that the federal government’s siege of Minnesota, what they were calling Operation Metro Surge, is ending. Now wait, I have questions. Is this a not-so-fast-I-will-believe-it-when-I see-it moment? Or is this actually cause for celebration? Or maybe it’s both. It does feel really important to note that the ordinary citizens of the state of Minnesota have driven off a paramilitary force occupying Minneapolis, although they’ve obviously paid for this in literal blood. But we should note that the organizing around everything from warning whistles and networks to mutual aid has actually been amazing and it has kept so many people safe. We don’t know yet whether ICE is gone or what the aftermath from Minnesota will be, but we know that attorneys are working on this and that there are still enormous numbers of Minnesotans who have been snatched off the streets. Some of them are actually citizens and legal residents. Some of have been sent to Texas while they have release orders pending. So none of this is over for them, but it is an amazing development that ICE will be leaving Minnesota.

 

Kate Shaw Yeah, and an amazing victory for ordinary Minnesotans holding the line on the Constitution and the rule of law. And on that topic, I wanted to mention a moment from the Olympics last week that makes clear that some athletes understand the Constitution much better than some of our very most esteemed jurists. So one of the members of the US curling team, who also happens to be a lawyer, said in a press conference, quote, We have a constitution, and it allows us freedom of the press and freedom of speech, protects us from unreasonable searches and seizures, and makes it so we have to, you know, have probable cause to be pulled over. And what’s happening in Minnesota is wrong. There’s no shades of gray.” End quote. So I heard that last week, and I really hoped that Justice Kavanaugh was watching and listening, because I found it to be proof positive that it is possible to love both sports and the constitution. Love that moment. And it is just sort of more evidence. It has been really clear in this timeline that the people are doing a much better job defending core constitutional values than our institutions are right now.

 

Melissa Murray I love an attorney slash curler, like more of that, please. Next topic, detention policy. In the last episode, we talked about the detention policy that this administration has been trotting out, and which has been rejected by just about every court except the Fifth Circuit. Under this new detention policy, the government took the view that anyone who has not been lawfully admitted to the United States, i.e. Anyone who may have crossed the border and then stayed in the United states. Who the government was then attempting to deport now had to be detained. And we should say that’s not the way this normally happened. Even if you had crossed the border and were undocumented, you weren’t necessarily immediately detained while deportation proceedings proceeded against you. The group of people who are included in this detention order includes people who have been here literally for decades. And that detention means that They are being held without the chance of a bond hearing. No administration has ever taken that kind of hard-line position before. It literally would not be possible to detain everyone in those circumstances. And given the absolutely deplorable conditions of immigration detention and the fact that the administration seemingly wants to deport any non-white individual, the mandatory detention policy seems like yet another effort to continue this campaign of terror. Against groups that the administration disfavors.

 

Kate Shaw But it seems that as bad as that was, what Melissa was just describing, even that wasn’t enough because the government has also trotted out a separate initiative. It’s calling Operation Paris in Minnesota. And this is a program that does not just target those who were not lawfully admitted when they entered the country. It targets some individuals who were lawfully admitted, and get this, refugees. So the goal of the program literally seems to be to arrest refugees. People who waited, sometimes for years, passing multiple background rounds of screenings and background checks, until they were lawfully admitted to the United States by our government. When someone is admitted as a refugee, just like to give a little background, they are vetted very thoroughly and subsequently allowed to seek a status adjustment, which often means applying for a green card. That green card is not processed until they have been here after their admission as a refugee for a year, and the government has trotted out this new legal theory. That the Refugee Act of 1980 allows or possibly even requires, they seem still to be working out the kind of anti-immigrant kinks of their theory, but either allows or requires the arrest of any refugee who has been here for a year and has not yet received their green card. But the green card process can take a long time. It is also outside of the control of the individual who has pursued that status adjustment, and it is in the federal government’s control. So the upshot of this theory. Could be that if you are a refugee, you have 365 days of freedom in the United States, and then you can or will be pursued starting on day 366. It is absolutely horrific.

 

Melissa Murray And because it’s absolutely horrific, it’s being challenged in court. The case is called UHA and Advocates for Human Rights versus Bondi. The plaintiffs recently obtained a temporary restraining order, a TRO, at the end of January that puts a stop to the policy for now. The government has moved to stay the TRO so to dissolve it so that they can continue the policy. The district court has rejected this request. There will be an evidentiary hearing in the case this week. And again. We just want to emphasize, this is not the same issue as the broader detention policy that is now before the Fifth Circuit. So completely separate kind of thing. Last Thursday night, we also got a temporary restraining order, TRO, out of Minnesota in a right to counsel challenge involving the Whipple Detention Facility in Minneapolis. This was a Fifth Amendment challenge, and the district court found that the plaintiffs had a high likelihood of success on the merits. It is a very, very powerful opinion. The court found that the federal government, when devising its operation metro surge strategy, had, quote, failed to provide for the constitutional rights of its civil detainees. The court continued, the constitution does not permit the government to arrest thousands of individuals and then disregard their constitutional rights because it would be too challenging to honor those rights. Seems true. The judge, Judge Nancy Brasel, ordered the administration to immediately begin providing detainees with access to phones, including within an hour of their arrival at the facility. She also generally required ongoing access to phones and attorneys with rooms in which they could meet with their clients, and she barred out-of-state transfers during the first 72 hours of any detention.

 

Kate Shaw So that was an incredibly powerful and also very practically important decision. And there was another really important immigration decision last week from the chambers of one Judge Boasberg, who we’ve already mentioned in this hour. Judge Boasberg is the chief judge of the DC District Court. And on Thursday, he issued an opinion directing the administration to provide some of the individuals deported under the Alien Enemies Act many months ago with due process. So yes, these are still ongoing proceedings related to the administration’s deportations back in March. When those individuals were flown to the CICOT facility in El Salvador in flagrant violation of Boasberg’s own orders. Since then, those individuals were transferred from CICAT to Venezuela. Some of them have left Venezuela and the ones who are outside of Venezuela are the individuals that this new order covers. So the judge orders the administration to facilitate the return of these individuals to the United States so they can be given the process that they are owed. They don’t need to be released. They can remain in United States custody, but they are owed due process to evaluate the claims that led to their initial expulsion. And the opinion actually is careful not to order the return of individuals still in Venezuela, given the sensitive foreign policy concerns that such an order would trigger.

 

Melissa Murray I want to quote a little bit from this opinion. So Judge Boasberg wrote, quote, it is worth emphasizing that this situation would never have arisen had the government simply afforded plaintiffs their constitutional rights before initially deporting them. Anyhow, I just…

 

Kate Shaw You can’t believe it has to be said! Why the fuck does this have to be said? But the tone of it, I just like, I really respected both kind of like the kind of moral and constitutional gravity and seriousness of that ruling and the one that we were just talking about out of Minnesota regarding that Whipple detention facility, but they’re not like histrionic at all, the opinions. They’re just like very calm and measured but extremely forceful.

 

Melissa Murray No, it’s sort of like, hey, guys, I don’t know if you know this, but there’s this document. It’s called The Constitution. And it says pretty clearly and unequivocally that you have to do these things. Have you read it? The answer, of course, is no. And I think that’s what makes it such an amazing and powerful ruling. This is just a judge deciding the cases before him under the law and the Constitution. And he’s being very clear that the Constitution itself is clear, just because the news cycle has moved on from this. Just because the administration has decided it’s done with its little experiment with a Salvadoran torture prison and the Alien Enemies Act doesn’t mean we’re just going to sweep this under the rug. Let’s come back to it and acknowledge that this administration has violated the rights of these people in flagrant, flagrant ways.

 

Kate Shaw And it’s also like it is what he says on the substance here is totally in line with what the Supreme Court has said, which is that due process still applies even in the Alien Enemies Act context. And I just think it’s sort of doubly impressive that this is Boasberg just like methodically doing the work because look, he’s already been mandamus. They are trying to impeach him. Trump and Bondi have repeatedly attacked him personally. Like judges do not love any of this, but he is not going to be cowed into not doing his job. And we salute that.

 

Melissa Murray All right, speaking of people just doing their jobs, whom we salute, let’s talk about some of the other folks who are holding the line on this document we call the Constitution. Last week, a federal grand jury refused to indict six members of Congress that the Department of Justice had tried to charge with seditious conspiracy. That is the same charge that E. Stuart Rhodes was convicted of and then later was pardoned by the president. The whole seditious-conspiracy charge was animated by a video. That these six members of Congress made, reminding members of the military that they are actually not permitted to follow illegal orders. Let’s roll a clip from that video.

 

Clip This administration is pitting our uniformed military and intelligence community professionals against American citizens. Like us, you all swore an oath to protect and defend this Constitution. Right now, the threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders.

 

Melissa Murray FYI listeners, the individuals speaking includes Senator Mark Kelly, Senator Alyssa Slotkin, Representative Chris D’Aluzio, Representative Maggie Goodlander, Representative Chrissy Hulahan, and Representative Jason Crowe. There was also a related development in the DC District Court. In addition to trying to criminally indict these members of Congress, who are former military and intelligence officers, Secretary of War Pete Hegseth has initiated disciplinary proceedings against Mark Kelly. Arizona senator and retired Navy captain. I think we should probably note that it seems like Kelly himself is really kind of a burr under the administration’s saddle. I don’t know if that’s because as a veteran, as a senator from a swing state Arizona, he might be in a particularly good position to challenge whoever is the successor to this administration. Just going to put that out there. He’s also the husband of Gabby Giffords. She was, of course, a representative from Arizona who was shot in the head and has become a powerful voice for gun safety laws. These proceedings that Secretary Hegseth initiated included a letter of censure and the initiation of a review that could result in a reduction in Kelly’s retirement rank as well as his pension. Kelly has filed a challenge to those proceedings, arguing that they violate both the First Amendment and federal statutes relating to the Department of Defense. That’s what the Department Of War used to be. And a federal judge emphatically agreed, granting Kelly a preliminary injunction.

 

Kate Shaw Let me just also quote from that opinion. It’s really been quite a week for banger opinions from various district court judges. Quote, rather than trying to shrink the First Amendment liberties of retired service members, Secretary Hegseth and his fellow defendants might reflect and be grateful for the wisdom and expertise that retired service members have brought to public discussions and debate on military matters in our nation over the past 250 years. If so, they will more fully appreciate why the founding fathers made free speech to the First amendment in the Bill of Rights. So I was talking about how I thought. Sober and powerful. Some of the earlier district court opinions we were discussing were this one was a bit different in tone. Judge Leon, the author of the opinion, caught some heat online for his liberal use of exclamation marks. I think there were over a dozen. Yeah, it’s just punctuation. But you know, the tone too, like it was, it was heated, I would say. But like the substance was really powerful. And I just thought it is, there are so many moments in this kind of hellacious timeline where you kind of wonder if you are crazy, like if your reaction to the administration’s reaction to the video that we just played a clip from was that this seems insane that the Secretary of War would be targeting and trying to strip the pension of a decorated veteran who is also United States Senator. And like, you know, maybe there is the political overlay that Melissa was just alluding to, but that that seems insane, especially where the ostensible predicate for this targeting is obviously protected First Amendment activity. It is just nice to know that Judge Leon agrees with you. This is completely insane. And end. Know, the opinion sort of notes with hope that Hegseth might, like, course-correct. Record scratch! All right, slash narrator voice, like he did not course correct because Hegsath took to social media basically right away, pledging to appeal and insisting, quote, sedition is sedition. Captain, addressing, I presume, retired a Captain Mark Kelly.

 

Melissa Murray Spell it, sir. Spell sedition.

 

Kate Shaw I mean, he went to Princeton, he can probably spell sedition.

 

Melissa Murray I’ll believe it when I see it.

 

Kate Shaw No comment.

 

Melissa Murray One more important ruling also out of DC and this one in a case involving federal inmates sentenced to death, but whose sentences were commuted by President Biden to life in prison. Biden issued these commutations in December of 2024, just before the end of his term. Trump has long been a death penalty enthusiast. I think that’s the most clear way to say it. We can think back to his advocacy for the death penalty for the five Black teenagers who were later exonerated in the Central Park, quote, unquote, wilding case. They are now known as the exonerate five. He was furious about these commutations that President Biden issued. And it’s pretty clear from the minute he took office that if he couldn’t override these commutation, he was going to find a way to make the lives of these inmates absolutely miserable and To it, he’s issued an executive order directing the Department of Justice to ensure, quote, that these offenders are imprisoned in conditions consistent with the monstrosity of their crimes and the threats they pose. Attorney General Pamela Jo Bondi later took steps, making clear that her goal was indeed to impose the maximum punishment here.

 

Kate Shaw This lawsuit filed on behalf of the individuals who had received these commutations challenged the administration’s actions with respect to the conditions of their confinement. And last week, Judge Timothy Kelly in the DC District Court sided in part with those inmates. So he actually rejected many of their claims but found that they were likely to succeed on the merits of their Fifth Amendment claim, alleging that the decision by the administration to summarily transfer all of them to a facility known as ADX Florence deprived them of due process. So. Inmates, even inmates in federal prison convicted of heinous crimes, have a due process right to challenge things related to the conditions of their confinement. And it is very clear that no such process was afforded here. The sequence of events that Melissa was just describing make clear that Trump and Bondi just decided that all these individuals were headed to ADX because that, they thought, was the toughest place they could be put. There was no consideration given to their individual circumstances, their health, their medical status, any of that. And these officials may, at the end of the day… Very likely do have the authority to make that determination, but they have to afford a degree of process before they do that. And the sequence of events that is sketched in the order makes clear that there was no process afforded, the order came down from on high, it was implemented, full stop, and that is just not something the Constitution permits.

 

Leah Litman [AD]

 

Melissa Murray All right, let’s talk about Congress.

 

Kate Shaw That’s right there in the first article.

 

Melissa Murray Sure is, and you read it for the articles as I continue to tell you all. Last week with the release of many millions of additional pages from the Epstein files, we learned so much more about the extent of the ties that Jeffrey Epstein had with many of the individuals who happened to be in the Trump orbit. Georgia Senator John Ossoff coined a new term for these individuals. Let’s play him here.

 

Clip Now you remember, we were told that MAGA was for working class Americans. You remember that? But this is a government of, by, and for the ultra-rich. It is the wealthiest cabinet ever. This is the Epstein class ruling our country. They are the elites they pretend to hate.

 

Melissa Murray And fortuitously, members of the Trump cabinet were on Capitol Hill last week to testify. And hearing members of Congress press them on these alleged ties was surreal and shocking. And honestly, at times, very, very funny.

 

Kate Shaw Wait, can I just say, when you said members of the, I thought you were gonna say of the Epstein class were on the Hill, and it turns out in some instances, it was members of The Trump Cabinet who were also members of Epstein’s class.

 

Melissa Murray I mean, the Venn diagram is interesting. It’s all I’m going to say. It sure is. All right, let’s start off with Commerce Secretary Howard Lutnick. Well, revelations in the new document release made clear that Lutnik may have previously misrepresented the extent of his ties to Jeffrey Epstein. And what great timing. He was already scheduled to appear at a Senate hearing when, unsurprisingly, People wanted to talk about the fact that maybe he lied about his relationship with Jeffrey Epstein, a sex trafficking pedophile. So let’s roll that tape.

 

Clip I did have lunch with him as I was on a boat going across on a family vacation. My wife was with me as were my four children and nannies. I had another couple with, they were there as well with their children and we had lunch on the island. That is true for an hour and we left with all of my children, with my nannys and my wife all together. We were on family vacation.

 

Kate Shaw I mean, there’s just so much to unpack here. You know, A, he doesn’t really address the misrepresentations he’d previously made about the extent of and the timing of his relationship with Epstein. And there’s also the nannies plural, which was-.

 

Melissa Murray Must be nice.

 

Kate Shaw Puzzling.

 

Melissa Murray Or not.

 

Kate Shaw Yeah. Maybe that’s-

 

Melissa Murray Maybe that’s how they roll.

 

Kate Shaw Maybe that is how they roll. We left with all of my children. Amazing that these things need to be.

 

Melissa Murray We had lunch on the island, as one does.

 

Kate Shaw Again, everyone has to eat.

 

Melissa Murray I mean, it also was, no, this reminded me so much of when people defend the Supreme Court justices for their cozy ties with billionaires, like, it’s not a crime to have friends, it I’m trying to have lunch on a…

 

Kate Shaw It’s not a crime to have friends with islands that you have lunch on with. And also the nannies, plural, like I guess when I heard it, I assumed, okay, that’s two nannys. That’s crazy. But I guess it could have been even more than two. Like how many nannying? One for each child. Why not? Four nannis? You get a nanny. You get an nanny, you get a Nanny. You conspicuously didn’t tell us. Okay. So that was Ludnick. But of course, the main attraction this week was Pamela Jo Bondi putting on…

 

Melissa Murray No, no, no. Can I just say this was the real Housewives of the White House. Am I right? This was a reunion show. If Andy Cohen had showed up to gavel in this hearing instead of Jim Jordan, I would not have been surprised because this was fireworks, theatrics, just absolute fuckery on every possible level. I did not think she could outdo herself. And yet she did. Ladies and gentlemen, this is Florida.

 

Kate Shaw I want us to overlay the Florence and the Machine and Taylor collab, Florida, it’s one hell of a drug. But I just have to say it. It really is, it really is. That is sort of the anthem, I guess, of this hearing, as I think about it. Sorry.

 

Melissa Murray Sorry, folks, if you’re from Florida, I’m from Florida too. I know that’s why I can say this like this is literally like high school. I it was so PTSD.

 

Kate Shaw As I told Melissa before we started recording, I don’t think I’ve ever watched like a single minute of any of the Real Housewives shows. But everything you said sounds right. And it just also was the most unhinged display an attorney general of these United States has ever mounted. I mean- Correct. Correct. She shouted. She interrupted. She went on truly deranged non sequiturs. She flashed her binder to inadvertently reveal that DOJ is apparently spying on members of Congress. As they visit the department to view unredacted versions of the Epstein files. I mean, it was, so Ruth Marcus in a New Yorker column called it kind of roller derby, which I thought was like close, but also, I mean I want, I too wanted to reach for a sports metaphor. But roller derpy is, it’s not curling, let me tell you that. But it was like, roller derp is combat and it’s tough and the players look cool. Sometimes they do get bloodied and like, that’s part of it. This was just like not that. And I mean so the week. Started, for many of us, with the Benito Bowl, a.k.a. The Super Bowl halftime show. That was the concert in which some people watched people play football. It was an incredible concert. It was too short. It should have been, you know, three hours instead of 13 minutes. But this was like the Bondi Bowl, which was literally in every conceivable way the polar opposite of the Benito Bowl. And that, I think, is the best sports analogy I can offer.

 

Melissa Murray We got to play some highlights. Pamela Jo Bondi, my girl. You have outdone yourself, so we’re going to roll some tape. Let’s start with Pamela Joe Bondi really vindicating Senator Ossoff’s thesis about the so-called Epstein class. Here she is responding to a question from Jamie Raskin about Epstein.

 

Clip This administration released over three million pages of documents, over three million, and Donald Trump signed that law to release all of those documents. He is the most transparent president in the nation’s history. And none of them, none of the, ask Merrick Garland over the last four years one word about Jeffrey Epstein. How ironic is that? You know why? Because Donald Trump, the Dow, the DOW right now is over. The Dow is over $50,000. I don’t know why you’re laughing. You’re a great stock trader, as I hear, Raskin. The Dow is over 50,000 right now. The S&P at almost 7,000, and the NASDAQ smashing records. Americans 401Ks and retirement savings are booming. That’s what we should be talking about.

 

Clip You can let her filibuster all day long, but not on our watch, not on our time, no way. And I told you about that attorney general before you started. You don’t tell me. Oh, I did tell you because we saw what you did in the Senate. In the Senate.

 

Clip Not even a lawyer.

 

Clip The committee will be in order.

 

Kate Shaw Something just her brain short-circuited it short circuit because do you know why because Donald Trump and then just all of a sudden she.

 

Melissa Murray Literally I was like are her batteries dying.

 

Kate Shaw It looked like somebody needed to reboot her. But like her notes, do you think they just said when if you’re in a bind and you don’t know what to say, just say the Dow is over 50,000? And she was like remembered that she had nothing to say about how ironic is it that none of them asked Merrick Garland these questions and then because Donald Trump and she could not finish the because Donald Trump and so she switched to talking about the Dow.

 

Melissa Murray Let me just take Pamela Jo Bondi seriously for a moment. I will just say to this incredible non sequitur and just like weird tangent, the stock market is not the economy. Not every American has a retirement account. So all of this is great for literally the Epstein class and people with retirement accounts, not for ordinary Americans who are literally trying to make it in this actual economic hellscape that you and your friends have created.

 

Kate Shaw No, no, no. Absolutely. But they want both to pivot to the stock market because that is the thing they care about because that is what they and their ilk think matters.

 

Melissa Murray Strike for non-responsiveness.

 

Kate Shaw If only. Okay, so that was maybe the highlight,.

 

Melissa Murray No. There are more.

 

Kate Shaw But there were, no? There are others. Okay. So we wanted to play a powerful moment that Representative Jayapal sort of created that put the lie to Bondi’s suggestion that the DOJ was interested in working with and cares about and had, you know, talked to and taken seriously Epstein survivors. So let’s that clip here.

 

Clip To the survivors in the room. If you are willing, please stand. And if you are willing, Please raise your hands if you have still not been able to meet with this Department of Justice. Please know for the record that every single survivor has raised their hand. Attorney General Bondi, you apologize to the Survivors in your opening statement. For what they went through at the hands of Jeffrey Epstein. Will you turn to them now and apologize for what your Department of Justice has put them through with the absolutely unacceptable release of the Epstein files and their information?

 

Clip Congresswoman, you sat before, Merrick Garland sat in this chair twice, Attorney General

 

Clip Now, can I finish my answer? No, I’m going to reclaim my time because I asked you a specific question that I would like you to answer, which is will you turn to the survivors? This is not about anybody that came before you. It is about you taking responsibility for your Department of Justice.

 

Melissa Murray Let’s play another one, because I don’t think we can pound the table too hard on this one. Let’s play another one here.

 

Kate Shaw OK.

 

Clip There was one redaction out of over 4,700, and we invited you in. This guy has Trump derangement syndrome. He needs to get, you’re a failed politician.

 

Kate Shaw There were a number of members of Congress, including Representative Massey, who.

 

Melissa Murray A Republican.

 

Kate Shaw Is working very hard to make me kind of like him, even though he’s completely insane and believes nothing that I believe in.

 

Melissa Murray He’s the new Neil Gorsuch, a stop clock can be right.

 

Kate Shaw It is just that maybe, but yeah, so he and Ro Khanna really were the architects of this bill that has forced the disclosure of these millions of documents. And I’m not sure sort of what shoes are yet to drop. There’s both all the redactions and the millions of pages of released documents and the fact that there are several millions of additional pages that have not yet been released. But every day it seems it just takes time. For humans to go through these millions of pages, and it is just revelation after revelation, so I think many more shoes to drop, probably with even this tranche of documents, and there may be more documents to come.

 

Melissa Murray All right, let’s move on to another hearing, this one with ICE Director Todd Lyons. As you can probably tell, listeners from the clips that we just played of the Bondi hearing, House Democrats were on their game. They brought their A game. They brought the fire. They acquitted themselves incredibly well. And guess what? They continued to do so. In this hearing with ICE director Todd Lyon, we saw even more of that. Let’s start with this exchange from California Congressman Eric Swalwell.

 

Clip You said in Phoenix at the Border Security Expo that you wanted to see a deportation process that was like quote, Amazon Prime, but with human beings. Mr. Lyons, how many times has Amazon Prime shot a mom three times in the face?

 

Clip None, sir.

 

Clip But you’re also… It’s the square root of zero. Speaking of human beings, how many times has Amazon Prime shot a nurse 10 times in the back? None. How many times is Amazon Prime dragged a woman out of her car by her hair and then dragged her down the street? None.

 

Melissa Murray And here’s Swalwell again, because he has more questions and he needs some answers.

 

Clip Mr. Lyons, will you apologize to the family of Renee Good for being called a domestic terrorist by the president and his leadership?

 

Clip Sir, I welcome the opportunity to speak to the family in private, but I’m not going to comment on any active investigation. Is she a domestic terrorist? Sir, I’m about to comment on the investigation.

 

Melissa Murray Other representatives read letters from kids detained at ICE facilities. These letters were all published by ProPublica as part of their story about the conditions for children in those ICE detentions. So here is Representative Dan Goldman of New York.

 

Clip Do you know what other regimes in the 20th century required similar proof of citizenship?

 

Clip Yes, sir.

 

Clip What?

 

Clip Sir, there was various nefarious regimes that did that. Is Nazi Germany one? Yes.

 

Melissa Murray Representative Delia Ramirez also had some questions about this and she apparently is a student of history.

 

Clip And I have just as much repect for you as I do for the last white men who put on masks to terrorize communities of color. I have no respect for the inheritors of a klan hut and the slave patrols. Those activities were immoral then and criminal, and so are yours.

 

Kate Shaw So I guess just this is, these are the pieces of evidence we have to support the thesis that Congress seems to be besturing itself. There is a lot that you can get done to communicate with the public and to really like hold the feet of these administration actors to the fire, even when you are the minority party. And so I think that calling hearings that are bipartisan hearings, when, you know, you have an issue that is as salient in a bipartisan way as immigration, really important, Calling the shadow hearings of the sort that we talked about last week is important. If there’s an issue, you cannot get the Republican majority on board with actually highlighting and interrogating. But I do, it does feel like they are doing the work right now. And I guess just we want to see more of it.

 

Melissa Murray Can I give a special shout out to Becca Bailent, who she’s got this little bob. She is crushing it. And she literally went off on Pamela Jo Bondi. She’s always really great. She was amazing at the hearing where Jack Smith appeared before the committee and the Republicans all tried to take him down. She was having absolutely none of this. Is always prepared, always fantastic. I don’t think she gets her due, so I want to give her a shout out. She is literally one of my favorite things of the week.

 

Kate Shaw Oh, nice. All right. So we’re doing that.

 

Melissa Murray Well, I just put that in. That’s a preview.

 

Kate Shaw Yes, but more to come. Okay, so shifting now both from immigration and congressional oversight to some other topics and staying on the broad subject of the chaos and lawlessness that this administration is unleashing, we’re going to turn to election interference, a couple of new salvos in the war on the planet, and efforts to stamp out the last shreds of diversity and efforts to achieve diversity in our institutions.

 

Melissa Murray So let’s start with Fulton County, Georgia. The affidavit that was used to obtain the warrant that was then used to search Fultone County, Georgia’s records was recently released. And wow, wow. The affadavit originated from a referral that was sent by Kurt Olson, who is Trump’s director of election security and integrity. Olson was also the leader of Stop the Steal in 2020. Again, there are no new ideas. He also spoke with the president repeatedly on January 6th of 2021. It was wild. The warrant also incorporates research from an election denial activist whose claims have since been debunked and who was also convicted of videotaping people in the bathroom without their knowledge. Absolutely the best people. And the warrant, just for good measure, included material from a witness who downloaded his data from quote unquote zebra duck.

 

Kate Shaw You cannot make this up.

 

Melissa Murray You can’t. The warrant says, quote, if these deficiencies were the result of intentional action, it would be a violation of federal law. I didn’t think you were allowed to get a warrant or an indictment by saying, if there’s probable cause here, then you should give me a warrant or an indipment. So give me warrant or and indictment, right? I mean, I thought the whole point was like you actually have to establish probable cause for said warrant or the indictment to issue, right. Or did I just read that whole constitutional thing wrong.

 

Kate Shaw If you read fast, you don’t see the if, and I think that’s the hope. Yes, alas, that is where we are. Just play with the fonts a little bit, and you just get the deficiencies with the results. Just two letters.

 

Melissa Murray Very impactful, very meaningful, very easy to skip over.

 

Kate Shaw Yeah, details, details.

 

Melissa Murray Again, we cannot emphasize enough how concerning the developments in Fulton County, Georgia are. This is truly, in our view, an effort to, one, go back to 2021 and promote this election denialism, but also to look forward to the next election and essentially show that they can do this. They can go and take over a locality, a municipality, and seize their voting records and… Make them come to heel. Like this is just gearing up for the next fight.

 

Kate Shaw Right, it is a terrifying trail run because these are old records, but once they have kind of desensitized the public and pressured election officials into giving them old ballots. Why not get new ones? It’s not a long distance to write asking for ballots in the November election this year as the election is underway. No, it’s a terrifying and alarming development.

 

Leah Litman [AD]

 

Kate Shaw All right, let’s shift to more terrifying and alarming developments and this one in climate news. So last week, the Trump administration issued its final rule repealing what’s known as the endangerment finding, a determination under the Clean Air Act that yes, climate change endangers human health and the environment seems uncontroversial. And yet, the agency formally made this endangerment back in 2009 after the Supreme Court decision in Massachusetts versus EPA. And that finding has been the basis for a lot of environmental regulation since then. So this repeal last week of the finding was paired with the announcement of a rollback of climate emission standards for light and medium and heavy-duty vehicles. And it also lays the groundwork for the rollback of lots of other regulations, including of coal plant emissions, emissions from oil and gas wells, and more. Trump and the EPA Administrator, Lee Zeldin, were just like all smiles as they announced this at the White House. They were crowing about. Lessening the burdens on business. They were taking shots at the Obama and Biden administrations. And you know what? It was sort of conspicuous. They stayed silent on the tens of thousands of deaths and millions of additional asthma cases that experts expect the increased air pollution from these repeals and rollbacks will cause. And that does not even touch the human toll of the effect of these rollbacks on the climate more broadly and what that will do to all of us.

 

Melissa Murray But don’t worry, everyone. Interior Secretary Doug Borgum took to the airwaves to reassure everyone that carbon dioxide is not a pollutant at all. In fact, he says, we need it to survive and you can just sort it off a toilet seat and you will be just fine. Wait, wait, wrong secretary. That was actually RFK Jr. Talking about his past drug use, right? I cannot keep these books.

 

Kate Shaw He told us he used to snort cocaine off of toilet seats. He was not afraid of a germ. Leah Litman has entered the chat. This is a great moment.

 

Melissa Murray Oh, hi Leah!

 

Leah Litman I just entered with you talking about him snorting cocaine off of toilet bowls.

 

Melissa Murray I’m just going to say I found this week to be an absolute like just whirlwind of men putting things in the group chat that didn’t need to be there like I didn’t need to know.

 

Kate Shaw There were women too.

 

Melissa Murray No.

 

Kate Shaw Pamela Jo Bondi was also doing that.

 

Melissa Murray Well, she was there, but the Olympian who admitted to cheating on his girlfriend… like sir.

 

Kate Shaw That’s true.

 

Melissa Murray Why is this in the group chat?

 

Leah Litman Oh, that was incredible. That was an incredible moment. But like Pam Jo Bondi’s portfolios over pedos like that.

 

Kate Shaw I’m so sorry you weren’t here. We got to play that.

 

Melissa Murray I did not need to know this about RFK Junior. There’s so many things you could probably snort cocaine off of. Why toilet seats? You’re a Kennedy for God’s sake. You have houses.

 

Kate Shaw It strengthens the immune system, Melissa, I think is the point he was making.

 

Leah Litman I’m sorry, but Jinx Monsoon, the drag queen, has the greatest segment about snorting cocaine off of things in the all-star season. If you haven’t watched, I highly recommend.

 

Melissa Murray This is RuPaul’s drag race?

 

Leah Litman Oh yeah.

 

Kate Shaw Is the toilet seat a recommended surface?

 

Leah Litman It’s not, but I’m not going to identify what is because this is a family-friendly podcast.

 

Kate Shaw Not today.

 

Leah Litman Also, hello, listeners. I just joined because I’m recording from Duke. Thank you very much to the Duke Law School for setting up a recording studio for me.

 

Kate Shaw Oh, we really missed you in the first hour, but I’m so glad you’re here for the end. Things got a little off the rails. So we were actually talking about Doug Burgum, who had taken to the airwaves, reassuring everybody that carbon dioxide is not a pollutant. And Melissa had her wires crossed and said that Burgum said, it’s okay, you can snort carbon dioxide off the toilet.

 

Melissa Murray I didn’t say, I just speculated that maybe you could, I didn’t say he said that.

 

Leah Litman Maybe it was something you could snort off a toilet seat. Like a little bit tough to get in a toss pipe like over the toilet seat like logistically. Oh, come on. Dream bigger, Leah. Okay. Okay. I mean, if you can send a man to the…

 

Melissa Murray The moon, what else can’t this country do? That’s fair. It’s fair Don’t you skimp on America, Leah, be a patriot. We can do that.

 

Kate Shaw All right, but so wrapping the endangerment finding repeal, just like the horror show of this last week is really a lot to encapsulate in a single hour. But you just, you know, the endanger and finding repeel, the fact that the immediate revocation of the emissions, the vehicle emission standards follow that and the groundwork for all of the other like horrible things are going to do on this basis. And you add that to the Paris agreement withdrawal, the underlying climate treaty withdrawal. It is just kind of impossible to get your head around the devastation that this administration is wreaking on the planet. In addition to, you know, our focus, the havoc it is wreaking on the United States Constitution. But the damage goes way, way beyond that document. And one last quick beat on climate change. This is not like the biggest deal in the world, but it is just their dogged focus on implementing their mission and every nook and cranny of the federal government and our collective lives is almost something that you have to salute because the henchmen of this administration seem to have noticed. That there is a discussion in a manual produced by the Federal Judicial Center for judges that talks about climate change to sort of help judges resolve climate change cases given the complex scientific background of some of these cases. And the henchmen of this administration successfully bullied the Federal judicial center into removing that chapter from the manual. Great job.

 

Leah Litman But what did they get in return? Because they’re still shitting all over the lower federal courts. And they are still not upping the funds to provide the lower Federal Courts with additional security.

 

Kate Shaw So, oh, this is a terrible deal for the judicial system, yeah.

 

Leah Litman Oh, no, I know. I just I want to know like why why why did you abandon dance?

 

Melissa Murray Master negotiator, John G. Roberts, head of the Federal Judicial Center. All right. I also want to take a beat and talk about some of the fallout from the Supreme Court’s decision in SFFA versus Harvard. That decision was announced, listeners, in 2023. And it prohibited the use of race-conscious admissions in college admissions processes. And race- conscious admissions processes are those where you explicitly consider race. The Third Circuit decided to have a word. It struck down the race neutral measure that was aimed at increasing diversity in selective Philadelphia area schools. The case involved a challenge to an admissions policy that introduced six preferred zip codes. Students who resided in the six zip codes and who met school district’s new criteria were admitted automatically to any of the four most coveted schools to which they applied. Students who met the criteria from other districts were then entered into a lottery. And five of the six zip codes had a majority Black and Hispanic population.

 

Leah Litman So the Third Circuit concluded that, quote, viewing the record in the light most favorable to the parents, there is sufficient evidence for a reasonable fact finder to conclude that the admissions policy had a discriminatory purpose and impact requiring strict scrutiny, end quote. Note that here, the discriminatory purpose seems to be the desire to constitute a racially diverse student body, and that the collapsing those motives with race-conscious measures is part of what we were so concerned about in the aftermath of SFFA. Even thinking about diversity is against the law. Yeah, the word woke is going through my mind and apparently I am in unconstitutional.

 

Leah Litman Exactly. Very unconstitutional.

 

Melissa Murray This was race neutral. It did not consider race at all. Just prescribe these zip codes. And here’s the thing. If you don’t want the zip codes to correlate with race, stop redlining or doing residential segregation. Desegregate. Yeah. Try that. Right. Exactly.

 

Kate Shaw You want them to correlate with race and you just don’t want anybody to be able to do anything to actually desegregate schools Which I think is basically that seems to be the part

 

Leah Litman The way to stop discriminating on the basis of race is to discriminate on the basis of Race and Housing. Yeah. Yeah, that’s how that quote works.

 

Kate Shaw Um…

 

Melissa Murray This is very much like the Thomas Jefferson high school case that the Supreme Court denied cert on. But obviously, even though they declined to take up that case for review, this issue is coming back before the court. And I know that America’s woken warrior, Clarence Thomas, is going to have a lot to say about the history of redlining and residential segregation. Can’t wait for it.

 

Leah Litman Um, speaking of things we can’t wait for, babe, new heritage foundation track just dropped and wake up, it’s a doozy, right? In addition to coming for multiracial democracy, they are coming for the slivers of sex equality and gender equality that we have because the heritage foundation-

 

Melissa Murray They’re coming for your birth control, they’re coming to your jobs, and they’re coming for you.

 

Leah Litman And probably your ability to wear pants, go to school, have short hair, have a credit card.

 

Kate Shaw Sneakers? Sneakers are probably not okay.

 

Leah Litman Open a bank account in your own name, probably talk, probably have thoughts, vote, vote. I think that’s a rough cut. Yeah. Yeah. Yeah. So the Heritage Foundation, which of course is the artist that brought us Project 2025, released its 250 year roadmap to quote, save America, end quote, because Project 2025, apparently. Wasn’t enough and they have more to do. So this pamphlet is very clear. They are coming for your birth control among other things to ladies. Also, I would just like to note that in the very first Trump administration, I posted on Facebook, ladies go out and gather birth control. Get an IUD stock up because they are coming for it. And everybody freaked the F out on me and was like your fear-mongering girl. And you were a Cassandra, you were profit.

 

Melissa Murray They hate women. So let’s talk about this. The report is ostensibly concerned with flagging birth rates, at least among certain populations. I can tell you the populations, they don’t want to have rising birth rates and whom they don’t care are not having babies. The report also notes, quote, several factors conspire to reduce birth rates. Here’s one, a lack of paid family leave. Wait, not actually one of them? No, it actually wasn’t. That was me just like putting my Heritage Foundation hat on and thinking, what does actually contribute to a flagging birthday student loans?

 

Leah Litman How about sex stereotypes about who’s responsible for family care?

 

Melissa Murray Sex stereotypes, burdensome student loans, lack of paid family leave, gender wage gap. Anyway, so the factors, though, that the report did call out, not the ones we just mentioned, that need to be addressed include, quote, the proliferation of birth control, more prospects for women to receive higher education and work outside of the home, the delayed financial independence of young adults, and the government’s role in old age social security. Tread Wives! Older people, they’re coming for all of yourself. Again, I cannot emphasize this enough. Law and culture work in tandem. This trad life thing that they’re doing, this is not inadvertent. It’s not a coincidence. They are trying to emphasize to young women. That the whole feminist project was a ruse, that women are not better off. In fact, they’re exhausted and tired, and they’re trying to juggle having it all, and it’s bad. And what you really just want to do is go back to the home and raise your children without all these worries, and that’s actually a better life. Here’s the thing, ladies, you can actually have it all if the government actually creates structural opportunities for you to do so, like the paid family leave, like not paying you less than what a man makes, like not giving you a wage gap when you a baby. There are so many fucking things that could happen that could make all of this happen, so you could have a job. And a family and not have to choose between one or the other. Ask me how I know.

 

Leah Litman Um, you know, on the other hand, we really have made considerable strides in sex equality, given that this week we learned that apparently a woman is allowed to fire a pilot after they fail to take the blanket from one person. That was my favorite thing, Leah! I’m so sorry. I’m sorry. You also may

 

Kate Shaw But you also missed us talking about the fact that it wasn’t even a cozy earth blanket as far as we know

 

Leah Litman Oh my gosh. Of course it wasn’t. They have no taste. They have no tastes. We’re gonna get to that. We will get to that. Great. I’m so happy.

 

Kate Shaw OK, so that is it for the news. It does feel like it has been an even more insane week than usual, both with the executive branch just really ratcheting it up, but also with both some of the Democrats in Congress and many lower court judges actually fighting back. I mean, we talked about this a little bit before you came on, Leah, but it’s like we had obviously a number of really important rulings from lower court judge. And some of them are just talking in a different register than courts typically do. And it does feel like they are talking to all of us because they have sort of lost faith in the people above them that they might be talking to because I don’t know what’s going to happen with a lot of these district court orders. And I think that they realize that. And some of it is, you know, still really sober and serious, but it does feel like there has been like a semantic and maybe substantive shift in just like what we are seeing from the lower courts. That’s really, really important. Anyway, so all of that has happened without Welcome, friends, welcome, friends. Um, but SCOTUS is back shortly. There are opinions scheduled or at least possible this coming Friday. Arguments start back up on Monday, the 23rd. So unless we have any emergency episodes before then, we will be back in your ears with a February preview on Monday the 23th. So now let’s talk about our favorite things. Okay. We’ve already also referenced the Benito Bowl halftime show. It was incredible. I watched it obviously in real time and then maybe two or three times and I’ve been listening incessantly to his… Sort of a whole back catalog, which is really extensive over the last week. It’s the anthem. It’s amazing. David Pressman and Arne Duncan had a great op-ed in the Washington Post. Universities are sending Trump a dangerous message that is really about, obviously, just the importance of solidarity and collective action, but also about how universities have, to some degree, fought back. I saw a push notification that I guess the administration is suing Harvard right now. Definitely not all of them. Plenty have capitulated. This is something that we have written about. But some are fighting back. But even where there’s fighting back happening… The argument in this op-ed is that, at some instances, it’s been too legalistic a response. There needs to be a political response as well as a legal response, and the legal response is not enough. So I thought that was really powerful. Two more things. I finally read historian Joanne Friedman’s Field of Blood, which was a pretty…

 

Melissa Murray She was my TA in college!

 

Leah Litman Oh really?

 

Melissa Murray Yeah!

 

Kate Shaw She is amazing. I also actually listened to it and she reads it. Is her voice as just like.

 

Melissa Murray Soothing?

 

Mellifluous and like, hypnotic?

 

Melissa Murray Yeah.

 

Kate Shaw Okay, so it seems like in an audiobook. Anyway, it was kind of wild to read that the week of Pamela Jo Bondi’s really unhinged appearance in Congress. And then I will just say, Melissa, slash Leah, you’re going to talk about this, but I too read with my jaw on in the basement of my house, the story in the Wall Street Journal about Kristi Noem and Corey Lewandowski. And if you haven’t read it, run, get a GIF link. Subscribe, whatever you have to do, read the story. I’m done.

 

Leah Litman Okay, so I’m going to plus one several of those recommendations, including Benito Bull and the Wall Street Journal story. I will not steal Melissa your thunder on this since I may have accidentally already done so. So I will list three others. For others, Jamal Bowie’s piece, we have to look right in the face of what we’ve become in the New York Times, underscoring the importance of even assuming they actually do a full drawdown in Minnesota. We can’t just let that slide. We need an accounting. We’ve referenced this before, something like a Truth and Reconciliation Commission. That is extremely important. Second, Nikole Hannah-Jones, what it means to be a white race traitor in the New York magazine is a very searing look contextualizing the commentary and treatment of Renee Nicole Good and Alex Pretti in a long history of attacking white Americans who deign to challenge racial subordination. Third, Heather Ann Thompson’s new book, Fear and Fury, I thought was just a terrific read. I absolutely loved it. And finally, as I mentioned a bit ago, I am at Duke Law for a symposium they are holding and I am absolutely loving it. I met several stricties in the wild, so I wanted to give special shout out to Emma Gabby. Zoe, Skyler, and also the team at the Duke Law Journal who put together this symposium and accepted our article. This is the legalistic non-compliance piece that I wrote with Dan Deacon that we’ve talked about a little bit before, Claudia, Jared, Avery, Danny, and others. It’s just been a really wonderful time here.

 

Melissa Murray All right. I would like to shout out a new podcast. It’s from friend of the pod and former guest Simone Sanders Townsend and Eugene Daniels, and it’s called Clock It. And it is about the intersection of politics and culture. And whew, it is a breezy, rollicking ride. I love, love, loved it. In addition to Simone and Eugene’s new podcast, I also want to call out another podcast. And this one is from The Crooked Network. It is of course our brother show, Pod Save America, but is a particular episode, this one with perhaps our favorite pod bro. I feel weird saying that, knowing that Lovett is probably listening. But Tommy Vietor had a terrific conversation on Pod Save American with Pablo Torre about the way in which the Trump administration uses sports, and in particular, UFC and mixed martial arts to curry favor and cultivate the Man of Roseanne. I didn’t know anything about UFC or mixed martial arts, but this I thought was really, really interesting and compelling and just a great listen all the way around. Well done.

 

Kate Shaw And can I say Pablo in general sort of has a bunch of different platforms and is doing I think really important work in noting that the right kind of owns not just the sort of martial arts world that you’re talking about, Melissa, but just like kind of sports more broadly and it’s so culturally important and powerful and he is doing the work of kind of infusing it with a different kind of politics and I just really respect what he’s doing. And also Tommy’s wonderful and he’s our most recent guest, but we’re fond of all, to be clear.

 

Melissa Murray I mean, I think they have to prove it to us like we did not get to go down under.

 

Kate Shaw Ah, Melissa’s salty, that we were not just in Australia.

 

Melissa Murray Um, or New Zealand for that matter.

 

Kate Shaw Did they go to both?

 

Melissa Murray I don’t know. They were down under. OK, that’s really all I know.

 

Kate Shaw All right. Whatever.

 

Melissa Murray All right, my last favorite thing, and this is one that’s been teased, so thank you, Leah and Kate. It’s not just Congress that’s given us a glimpse of Housewife behavior. Even the Wall Street Journal has gotten into the act. So last week, the Wall street Journal had an article titled, A Pilot Fired Over Kristi Noem’s Missing Blanket and the constant chaos inside the DHS. This was about a time when Kristi Noem and Corey Lewandowski were on a plane, and they got off the plane, and then they forgot Kristi’s blanket, and then, they couldn’t find Kristi blanket. So, they fired the pilot because the pilot didn’t find them Kristi’ blanket, and then the realized they were stuck somewhere without a plane to fly them back, so they had to rehire the pilot. And you just can’t make this stuff up. But the thing that I found especially interesting was the salacious detail that follows. So, quote, the journal says, After photos in the Daily Mail showed Lewandowski going back and forth between his apartment and Noam’s across the street last year, the secretary moved into a government-owned waterfront house on a military base in Washington that is provided to the leader of the U.S. Coast Guard. The Coast Guard falls under Noam purview at DHS during peacetime. Lewandowsky also spends time at the house. The DHS spokesperson said Noam moved to the house for increased security and pays threat. Lewandowski and Noam, who are both married, have publicly denied the reports of an affair, but people said they do little to hide their relationship inside the department. The GHS spokeswoman said the department doesn’t waste time with salacious and baseless gossip. Well, luckily, I do.

 

Kate Shaw I mean, there’s just a little more we have to talk about this story for another

 

Melissa Murray Wait, wait, wait. I just want to say one thing. How are you going to put in Project 2025 how you’re going to destroy no fault divorce when this is going on? This is exactly what no fault divorce was made for.

 

Kate Shaw They don’t have to get divorced. They can just carry on as they are. It works great. Works great.

 

Melissa Murray The spouses have the opportunity to do the funniest thing ever.

 

Kate Shaw I just, I don’t know who the many sources for this Wall Street Journal triple bylines piece were, but maybe spouses. Certainly many people in the administration talked to these reporters. The knives are clearly out. Maybe you need some NDAs. From everywhere. John Roberts can help here. Walk across the street, go to the court. And you’re as hated as these two clearly are. Any NDA is going to make a difference. This is just-

 

Leah Litman I’m just so glad these two loathsome trolls may have found one another.

 

Melissa Murray A lid for every pot, really. Yes.

 

Kate Shaw Yeah, it is, in addition to the blanket story that Melissa told and the sort of, you know, the walkie talkies across the street, it, yeah, it is just counting Tom Homan appearances on television, comparing them to Gnome’s appearances. Who’s the real border’s arena? It’s me. Lewandowski’s efforts to obtain not just credentials, but a firearm to carry. Um, I mean, it is, um. It is, and this was kind of maybe clear in the excerpt that Melissa just read, but it’s just wild revelation after wild revelation, followed by this like very perfunctory non-denial from the DHS spokesperson. Like, they’re not even really trying to dispute anything.

 

Melissa Murray It’s just salacious, baseless gossip that I love.

 

Kate Shaw We all love it. It actually really sparked joy this week in a really challenging week. And so thank you to the Wall Street Journal. I mean, Murdoch occasionally gives us a real bit. He really gives us solid. This was one. This was solid. This was good. And there is actually one more favorite thing that I kind of want to offer up as collective favorite thing, which is the campaign. Of Democrat Jessica Bickler for the North Carolina State Senate seat in District 7 in New Hanover County, North Carolina. Jessica, we were so excited to learn that you’re a strict scrutiny listener and that the show played a part in your decision to run for the State Senate. Jessica heard about Vote Save America’s candidate recruitment program on our show and filled out an online form, not knowing where it would lead and is now running for again North Carolina State Senate District 7. To try to break the Republican supermajority and flip new Hanover County blue. Jessica, we’re so excited you’re running. Listeners, figure out how you can help support Jessica. This is just like really, really exciting. And we’re gonna follow this race closely. And Jessica, you are one of our very favorite things this week.

 

Melissa Murray Okay, housekeeping. Listeners, guess what? We are less than a month away. We’re actually exactly three weeks away from seeing you live and in person on the best coast. If you haven’t gotten your tickets yet for our LA show at the Palace Theater on March 7th, what are you waiting for? Jon Lovett will drive you there himself. Ask me how I know. He won’t. He probably won’t, but. It’s going to be so amazing. LA is one of our favorite cities. We love the West Coast. We are going to have so much fun. It’s actually going to unhinged. If you haven’t seen one of these live shows. We promise not to leave our blankets in San Francisco. We won’t. We also promise not shoot any dogs while we’re out there. It’s gonna be great, though. We are gonna be doing the absolute most in San Francisco and then on to LA. You can get your tickets at crooked.com forward slash event. So do not wait, do this now. It’s going to be so much fun. We can’t wait to see you.

 

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