In This Episode
Live from Capital Turnaround in Washington, D.C., Leah, Kate, and Melissa wade right into the swamp, breaking down the (very weird, very disturbing) sexual harassment claims against Texas’s ex-solicitor general, Judd Stone and holding their noses to read Coach Brett Kavanaugh’s opinion on the National Environmental Policy Act. Then, the hosts welcome special guests Ambassador Norm Eisen and Emily Amick, author of the Substack, Emily in Your Phone, to talk about the avalanche of litigation against the Trump administration and reproductive rights (and wrongs), respectively.
Hosts’ favorite things:
Leah: Taylor Swift’s letter about buying back her art; Why Is This Supreme Court Handing Trump More and More Power?, Kate Shaw (NYT); Living by the Ipse Dixit, Steve Vladeck (One First); The New Dark Age, Adam Serwer (The Atlantic); Elon Musk’s Legacy Is Disease, Starvation and Death, Michelle Goldberg (NYT)
Kate: Beware: We Are Entering a New Phase of the Trump Era, M. Gessen (NYT), How YOU Helped Knock Musk Out of DC–& of Politics, Norm Eisen (Substack); On the Campaign Trail, Elon Musk Juggled Drugs and Family Drama, Kirsten Grind and Meghan Twohey (NYT); Cowboy Carter
Melissa: Her incredible shoes from the show; seeing Cowboy Carter; the newest season of Just Like That; Original Sin by Jake Tapper and Alex Thompson
Emily: Nine Perfect Strangers (Hulu); Everyone Is Lying to You by Jo Piazza
TRANSCRIPT
Leah Litman [AD]
Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a argued 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 Thank you so much for coming out for this special episode of Strict Scrutiny live from the Capitol Turnaround in Washington, D.C. Let me hear you make some noise.
*Crowd Screams*
Melissa Murray And ladies, I think it needs to be said, this is a very good-looking audience. Very good- looking. New York City is going to be very jealous. Because you all right now look good. Like, Qatari jet good.
Leah Litman I don’t know if that’s a compliment, given that that was a fucking hand-me-down, but you know.
Melissa Murray You know what, you are too real sometimes. Y’all look like an emolument and I love, love, love it. Anyway, we are your hosts. I’m Melissa Murray.
Kate Shaw I’m Kate Shaw.
Leah Litman And I’m Leah Litman. As Melissa said, we are truly thrilled to be here. So thrilled, we decided to break out a new summer drink to mark the occasion. So ladies, gentlemen, non-binary listeners, may we present to you the Big Baller. So we tell you what’s in it because we’re so into transparency.
Melissa Murray It’s ketamine.
Leah Litman Melissa, the recipe is classified. So we are invoking the state secret’s privilege, since we hear you can just like do that these days. But don’t worry, this just means you’re going to have to wait a little to hear what is in the recipe when you see it in a bathroom at Mar-a-Lago. Or wait to be accidentally added to one of our signal group chats. That will work too. But it still seemed like the perfect occasion. To unveil this new summer drink to toast Elon Musk DOGE-ing himself.
Melissa Murray Cheers.
Leah Litman Of course, by self-doge, we basically mean he quite quit the federal government, but not really, and then he showed up to work the next day with a shiner. And according to the New York Times, there might have been some bladder-damaging amounts of ketamine involved. Who is to say?
Kate Shaw On a more serious note, we want to say we know we have some real, not doge, but real federal government employees, public servants in the house. We know there are folks here from DOJ, from the NLRB, from the EPA. Thank you to all of you for being here and for your genuine service to the public.
Melissa Murray And it wouldn’t be a live show without some live guests. So we have some amazing guests joining us tonight. We are going to have Emily Amick, that is Emily in your phone, who’s going to walk us through some of the latest developments in reproductive rights and the ongoing efforts to perpetrate some reproductive wrongs. We’ll be talking about that. Also with us is Ambassador Norm Eisen, who’s gonna talk through some of many lawsuits. That he is spearheading to counteract this damaging administration that we are currently living through, month four of the four-year sentence.
Kate Shaw But first, before we bring out our special guests, it is just us. And by just us, I mean the three of us, which is actually really rare. We are almost never in the same physical space, but also all of you. So these are, as Melissa just alluded to, and you all know, genuinely harrowing times to be living through. And I gotta say, I think being with your people, like in real life, in the flesh, is to my mind absolutely critical. So thank you for being here. Seriously. And those of you listening at home, because as you know, this audio recording will be a podcast in your ears on Monday morning. Those of you at home we have more live shows coming up, so please join us at one of those.
Melissa Murray Okay, first up, some breaking news, and I’m just gonna have to say it. When we said we were going to have a live show in Washington DC, the universe really pulled through for us. And by universe, I mean the planets, the stars, and the asteroids.
Kate Shaw Before we get into it, we actually feel compelled to offer a genuine content warning. If there are children in the audience, either at this live show or at home, one word, earmuffs. Truly, for those of you listening with family, we are going to give you a few seconds to turn off or skip ahead or have your kids leave the room. We mean it. And for everyone else, just a caution, we’re gonna be discussing allegations of serious and profoundly disturbing workplace sexual misconduct.
Leah Litman So with those caveats duly issued, let’s proceed to the DEI of the Republican Party, which as Melissa has told us, means the dicks, ex-husbands, and imbeciles.
Melissa Murray All right, this latest DEI update concerns someone who we haven’t talked about for a while, but if you are a long time listener of the podcast, then you’ll recall the solid days of 2022 when it seemed like we could not have an episode without mentioning Judd with two Ds, Stone. Judd, with two d, Stone, do you remember him? Do you remember? Yeah, yeah. Now if you’re new to the pod, Judd with 2D stones is now 3D Judd, not just 2D, 3Ds. Maybe even XXXDs Judd because there’s a lot to unpack here. And I’ve gotta warn you, you may actually need to process some of this with a trained and licensed therapist.
Kate Shaw All right, a brief biographical sketch. Judd with two Ds, Stone is a former Texas Solicitor General, former Chief Counsel to Senator Ted Cruz, former law clerk to Justice Antonin Scalia and Judge Edith Jones of the Fifth Circuit. If Judge Jones sounds familiar but you can’t quite remember why, maybe it’s because she is the judge who came for our friend, Commander Professor Steve Vladeck at a Fed Soc bonfire slash conference last year because of Steve’s mean tweets about the federal judiciary. Which she had printed out and brought in a Manila folder like you do. That seemed pretty aggressive at the time, but in light of intervening developments, actually now seems downright quaint.
Leah Litman So back to Judd with 2Ds, Stone. Stone was Ken Paxson’s Solicitor General, and in that role defended some of Texas’ cruelest policies, and he spearheaded some of its most insane litigation. So that included the litigation defending Texas’ SB8, the bounty hunter law that shut down abortion access in Texas before the Supreme Court overruled Roe in Dobbs.
Kate Shaw Stone also defended Texas’s SB 14, which was a law targeting healthcare for transgender individuals. He also led a lot of the litigation that Texas filed against the Biden administration, including challenging the Indian Child Welfare Act, and a case that claimed that the Biden Administration was required to retain the first Trump administration’s so-called remain in Mexico policy.
Melissa Murray Now, if that litany of litigation highlights didn’t jog your memory, don’t worry. We have prepared a little montage of oral argument clips to give all of you a sense of the stunning, some might even say meteoric claims that Judd Stone has presented to the United States Supreme Court. So Melody, let’s roll the tape.
CLIP So what would that injury be under SB8 if it’s an injury in fact?
CLIP One example could be akin to the injury suffered in the tort of outrage, where an individual becomes aware of an uncompliant abortion and they suffer the sort of same extreme emotional harm.
Leah Litman That is an exchange between 2D Judd Stone and Justice Thomas in the SBH challenge, where Judd with 2D’s Stone is saying, of course, anyone and everyone could bring a lawsuit against a person who had or performed an abortion because of the, quote, tort of outrage. Yeah, OK, he thought that was a thing. And now. Here is Judd with 2D’s stone, challenging the Indian Child Welfare Act, answering some questions slash comments Justice Kagan had for him.
CLIP General, I thought I’d just give you a chance to respond to a reaction I had to your brief. And the reaction was that there is an extraordinary amount of Texas’s view of policy in your brief
CLIP Two parts, Your Honor. The first is I agree that those observations, those statements of Texas’s views, have nothing to do with non-delegate or non- delegation anti-commandeering or Article 1 challenges whatsoever. Those live or die on various legal principles that are not those. They’re just atmosphere. They’re in part atmosphere, yes, Your Honor.
Leah Litman Just gonna say that Justice Kagan knew what the fuck she was talking about in her reference to the atmosphere. Elena Kagan, welcome once again to the Cassandra Coven.
Kate Shaw Okay, so I think that crash course gives our newbies a sense of Judd with 2D’s stone. He is also one of the individuals who took a leave from government to serve as private counsel, defending Texas Attorney General Ken Paxton and Paxton’s impeachment proceedings. And that is when some of the events that we are about to discuss occurred.
Melissa Murray A lawsuit was filed last week and it suggests that this timeline is cursed in a way that even we genuinely could not have foreseen. And it involves a man who is alleged to have an asteroid slash meteor fetish and who is aptly surnamed.
Leah Litman So an individual who worked as an executive assistant at Stone’s private law firm filed this lawsuit. And we are mostly just going to read verbatim from the complaint because no editorializing is remotely necessary. And we’re only going to cover some of what is in this complaint. And you know how some things are NSFW? This is like NSFW times a billion.
Kate Shaw Alright. Let’s do it. According to the complaint, and this is actually just the warmup, Judd Stone told the plaintiff when the firm was doing its impeachment work for Paxton, quote, in this firm, there are no rules. You can say whatever slurs you want. For the untutored, this is known as viewpoint diversity. And that does appear to have been the practice.
Melissa Murray Because, according to the complaint at a lunch conducted at a beer bar, that is a real thing, a beer bar, Stone and his law partner, quote, ordered four shots, one for each person at the table, and asked plaintiff to take a shot. After taking one sip, plaintiff stated, that is the most disgusting thing I have ever tasted. To which Judd Stone replied, I highly doubt that is most disgusting that has ever been in your mouth.
Audience Oooh.
Melissa Murray Exactly.
Leah Litman He also allegedly called the plaintiff white trash because she wore turquoise earrings.
Melissa Murray Sir, how dare you? What you don’t know is those earrings are not turquoise. They’re not lapis. They’re cerulean.
Kate Shaw They definitely got that one.
Leah Litman Yeah, so I purposefully wore a turquoise jacket today. Yeah, to stick it to Judd, with two d’s, stone. I hope he is triggered, as these men are, so easily, and that he experiences the kind of emotional distress Donald Trump apparently felt while watching 60 Minutes, aka the tort of outrage.
Melissa Murray All right, there’s more. According to the complaint, as the impeachment proceedings wrapped up, Stone and the other people at the firm who had also previously been in the Texas AG office plan to return to the AG’s office. But the suit alleges that when the Texas A.G.’s office was informed of these allegations, Stone and his law firm partner were offered the chance to either resign voluntarily or be fired. So think about that. When you’ve lost Ken Paxton.
Kate Shaw So they lost Ken Paxton and chose resignation, but according to the complaint, after Stone submitted his resignation letter, Brent Webster, the first assistant to the Texas Attorney General, wrote the following email.
Leah Litman I, of course, was designated to read this portion. Quote, two women who worked with Stone over the summer asked to meet with me. A female employee, through many tears, told me stories of Judd discussing sexual things with her, specifically regarding a disturbing sexual fantasy Judd had about me being violently, anally raped by a cylindrical asteroid. In front of my wife and children. According to this employee, Judd publicly described this in excruciating detail over a long period of time to a group of Texas Office of the Attorney General employees, Office of Governor employees, federal judges, and other non-government employees at a table. The female employee conveyed she was so disgusted by the violent sexual nature of the discussion, she left the table to get away from it. When she came back, people at the table harassed her, joking that she, quote, couldn’t handle people talking about dicks. Talking about dicks or talking to dicks? Who’s to say?
Leah Litman They had all had some shots.
Kate Shaw Yeah, wrong proposition, I think, there. So the complaint continues, quote, eventually Judd was confronted with these allegations and promptly admitted that all the allegations were true, but said it was OK because it was during their time at a private law firm.
Leah Litman I, slash we, will just start out by saying what the utter fuck.
Kate Shaw I mean, that was and is my top line reaction to reading this complaint. On a more serious note, we obviously want to acknowledge the conduct the complaint describes is appalling, full stop, no one should be treated like that in a workplace, even someone who willingly works for Ken Paxton. But having a coworker describe graphic rape fantasies about you is actually outrageous.
Leah Litman And perhaps, perhaps it’s a total coincidence that a guy with violent rape fantasies would be arguing in favor of unleashing private bounty hunters to terrorize women and their doctors, or would be rearing to defend laws targeting transgender individuals. Actually, it’s probably not a coincidence. These dudes are obsessed with genitalia and sex, and we also want to remind everyone that these are the people, their party, their ideological cohorts. Who are screaming about how gay people shouldn’t be allowed to marry because that’s not natural and it will lead to polygamy. These are also the people who insist that drag queens can’t participate in library story time because it will corrupt children. And according to this lawsuit, these same guys are sharing violent rape fantasies that they allegedly want children to witness with unnamed federal judges. Just let that sink in.
Melissa Murray Over the last couple of months, it is fair to say that we have gotten a glimpse into the mind of at least some members of the federal judiciary. And I’ve got to say, are the men’s OK? There was that oral argument in free speech coalition versus Paxton, where Justice Alito made very clear that he is kind of a little obsessed with Pornhub. So there was that.
Kate Shaw Just the articles, remember, Melissa?
Melissa Murray Just the articles, correct, correct. And then there was the oral argument in Mahmoud versus Taylor where Justice Gorsuch made clear that he really can’t tell the difference between a woman wearing a leather jacket and a sex worker. That seems actually low- level compared to this.
Leah Litman PG, G even. We do have a lot of questions about the Judd with 2D Stone story just to take one. Who were the federal judges with whom Stone shared his asteroid rape fantasy? Our DMs are open if you have anything to share about this.
Melissa Murray Our single chats are also open.
Leah Litman Yeah.
Kate Shaw I think we need a palate cleanser.
Melissa Murray We need a bath.
Kate Shaw Our listeners probably also need a palate cleansers, agreed.
Leah Litman I’m gonna take a drink.
Kate Shaw Okay, take a drink. And for the rest of you, here as a palate cleanser is Justice Kagan asking for another chance to go after the then Texas Solicitor General in an exchange from one of the arguments concerning Texas’s ability to challenge the Biden administration immigration policies. So here you go.
CLIP General, do you think that there’s any immigration policy that you could not challenge under the way you view standing? I think that’s hard to discuss in the abstract. I mean, every single immigration policy, and then, you know, not to mention all the other policies in the world, that if a state comes in and says, I got a dollar’s worth of costs that I can show you, we’re just going to be in a situation where Every administration is confronted by suits by States that can, you know, bring a policy to a dead halt, to a dead stop by just showing a dollar’s worth of costs?
CLIP Two points, Your Honor. The first is, and I can’t speak for all States, obviously, even though 37 of them are participating in this case and none have adopted the United States’ theory of standing, Texas has more than half of the southern border.
CLIP I’m saying that, like, coming in and saying, you know, it seems to us that we have some costs associated with this and we’re not going to look at the benefits and we are not going look at that fact that, as Judge Sutton said, the fact that there are priorities, you know that person A will be, you will not be removed versus person B will. That that doesn’t particularly show that your net costs are, even that your gross costs are going to rise, let alone your net cost. And all of this speculation and all of these kind of like, we think we kind of showed it, it’s just not enough given the backdrop of this case.
CLIP We don’t think we showed it, Your Honor. A trial court judge, reviewable for clear error, thinks that we showed it, and he based that on… Can I say something about that? One more.
Melissa Murray Please chief, just one more shot at him, please. But Elena, he’s already dead.
Leah Litman It’s never enough. I relate to that so hard. You gotta hammer those gnats.
Leah Litman [AD].
Leah Litman And speaking of pests, what was the Supreme Court up to last week?
Melissa Murray Not a whole lot, but they did manage to soft launch bad decision season by releasing a single opinion. And it was a Justice Kavanaugh opinion, which is how you know it’s the start of bad decision’s season. A Brett Kavanaagh opinion is basically like wearing white after Memorial Day.
Kate Shaw All right, happily there were no bullet points in this writing, no Dadaist poetry. It was an honest-to-God opinion with paragraphs and everything.
Melissa Murray You know what they call that? Growth.
Kate Shaw I was going to guess it. All right, that, however, growth is the only positive thing we will say about this particular Brett Kavanaugh opinion.
Leah Litman Yeah, it’s what happens when you go to Yale, you think everything, life, writing Supreme Court opinions is pass-fail. So you do the absolute least, like walking off the stage at your own live show. Look, the real problem is we all know Brett Kavanaugh has just peaked intellectually, and this is just all he has. So the case, Seven County Infrastructure Coalition versus Eagle County, Colorado, is about the meaning of the National Environmental Policy Act, or NEPA, which generally requires agencies to provide an environmental impact statement. That addresses a proposed project’s impact on the environment.
Melissa Murray And here, the surface transportation board approved an 88-mile railroad line that was going to be used to transport crude oil. Very environmentally friendly. And the DC circuit, perhaps unsurprisingly, determined that the board’s environmental impact statement was insufficient to satisfy the demands of NEPA.
Kate Shaw But last week, a unanimous Supreme Court concluded that the DC Circuit was wrong.
Leah Litman The real story here is that although the Republican appointees could have decided the case narrowly as the Democratic appointees preferred, why do that when you can just go YOLO? That’s right, the court’s YOLOs Republicans decided to go real big on this one, like asteroid size big, big ball big.
Kate Shaw The Democratic appointees favored a narrow ruling, although they agreed with the bottom line result. The ruling that they preferred would have said the board wasn’t required to consider in this case the increase in upstream drilling or downstream refining because the board doesn’t have jurisdiction, right? Doesn’t have authority to approve or disapprove either drilling or refining projects.
Melissa Murray And Justice Kavanaugh took that personally and decided instead to big ball his way through all of environmental law. His majority opinion said a whole lot of things. So let’s recount some of them.
Leah Litman Yeah.
Melissa Murray OK.
Kate Shaw I mean, basically… The fact that NEPA is no big deal, it’s a law, sure, but isn’t it really like a law-ish, not a law law? At a minimum, the statute is more of a vibe. So as he put it, and you know, he probably said, hold my beer while doing it, quote, NEPA is a procedural cross-check, not a substantive roadblock. NEPA does not require the agency to weigh environmental consequences in any particular way, Rather, an agency may weigh environmental. Consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws.
Melissa Murray He also took some substantive swipes at NEPA, as you just heard. But more importantly, he took some real swipes at the prospect of judges judging. So here’s another quote. He wrote, quote, some courts have engaged in overly intrusive and unpredictable review in NEPA cases. Those rulings have slowed down or blocked many projects and, in turn, caused litigation-averse agencies to take ever more time. And to prepare ever-longer environmental impact statements for future projects.
Leah Litman Justice Kavanaugh accusing other judges of overly intrusive and unpredictable judicial review just belongs in the dictionary somewhere. So not surprisingly, we have some thoughts. First, has Brett Kavanaub been mainlining or chugging or whatever you do with Josh Hawley’s book, Manhood, the Masculine Virtues America Needs? So in that book, Hawley goes through several male archetypes that he thinks. Men should follow, and one of those archetypes is the builder. As Hawley explains in the book, quote, the antidote to dependence is building.
Melissa Murray We’ve written a lot about Josh Hawley’s manhood. You know what? I’m going to say that over. Say that over? We have written a law review article about Josh Hawley’s book, Manhood: The Masculine Virtues That America Needs. And I just want to say, in that law review article, we talked about how obsessed the Republican justices are with these kind of manhood tropes and This is classic Hawley, like Coach K being literally obsessed with the prospect of building something, anything. I mean, this is seriously an edifice complex.
Audience LAUGHS
Melissa Murray Think about it. Think about. You’ve got to read books for that one.
Kate Shaw I actually do think that Kavanaugh might have read at least one book in addition to Hawley’s manhood. And let me read a quote.
Leah Litman Was it a picture book?
Kate Shaw It was, actually. Let me read another excerpt from the Kavanaugh opinion, and then I’ll tell you what book I think he read in preparing it. So quote, fewer projects, so this is under this expansive reading of NEPA. Fewer projects make it to the finish line. Fewer project make it the starting line. That in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams. He loves lists, this guy loves lists. Housing developments, highways, bridges, subway, stadiums, arenas, data centers. That also means fewer jobs as new projects become difficult to finance and build in a timely fashion. So first, I just, where is the law in this sentence? Like, nowhere?
Melissa Murray Who needs a law if you have a list?
Kate Shaw Okay, that’s true. But back to Leah’s guess that it’s a picture book. Do you remember those Richard Scary children’s books?
Melissa Murray Oh, my God. Wait. Busy town.
Kate Shaw So there’s like the animals performing various municipal and private sector functions. I think those were his sources for this opinion.
Leah Litman But in his zeal to build, Coach Kavanaugh seems to have forgotten some basic conservative talking points. So he writes that the D.C. Circuit aired because it, quote, did not afford the board the substantial judicial deference required in NEPA cases. What’s that? Deference to agencies? The Chevron Doctrine would like a word, sir.
Kate Shaw I love a crowd that responds like that to an invocation of the Chevron Doctrine. Seriously, you guys are the best. And since you’re interested, we’ll drill down in this for a minute. She’s so excited. Are you excited?
Audience Woooo!
Kate Shaw Go, Chevron.
Melissa Murray This was an optional part of the outline, but she’s going there.
Kate Shaw I am. I’m building it. I’m expanding it in real time. No, I was just gonna say though, there are some passages in the opinion that do appear to maybe somewhat limit Loper-BRIGHT , of course, the opinion that overruled Chevron, you all know that, or maybe it’s just language that vindicates those that thought that Loper BRIGHT did leave agencies room to exercise discretion under some statutes, but it may be just that that discretion can be exercised when the court thinks it should and only when the discretion is exercised to the court’s liking, I actually think that’s what this means. So Coach Kavanaugh does write that as a general matter, when an agency interprets a statute, review of the agency’s interpretation is de novo, right? That’s what Loper-BRIGHT says, but he says when an agent exercises discretion granted by a statute judicial review is typically conducted under the deferential arbitrary and capricious standard where the court asks not whether it agrees with the agency decision, but only whether the action was reasonable and reasonably explained.
Leah Litman So yeah, curious and curiouser. As we mentioned, this isn’t the typical Kav- concurrence in the form of a majority opinion. It does contain full sentences. Perhaps he knew that May 31st is National Speak Incomplete Sentences Day. So he wanted slash needed some practice at that. Still, the sentence level writing in those complete sentences is quite painful. I’m just going to consider this tortured passage quote. A 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development.
Kate Shaw We read these things so you don’t have to, and that I think is a service.
Melissa Murray I’m going to say it, we’re all here among friends, Brett Kavanaugh might be the Dan Bongino of Pete Hegseth.
Leah Litman Especially the part where Dan Bongino goes on Fox News to cry slash whine about how life and government service is just so hard, giving all podcast hosts a bad name. But, you know, it’s not just Kavanaugh’s mediocre writing, it’s the mediocre thought. The opinion reminds me of the court’s order in the cases regarding multi-member commissioners, which is to say, The second, the justices unleash their fed-sauced theories on the world, be it the unitary executive or overruling chevron. It’s like they realize, oh shit, this law we just made up is not great. It’s actually kind of unworkable and crazy. So then they have to announce a bunch of new made up exceptions to their new made-up theories.
Kate Shaw The separate writing from Justice Sotomayor, who concurred in the judgment and was joined by Justices Kagan and Jackson, are like so over these guys. So they indicated they would have, again, reached the same result, but decided the case on much narrower grounds. They took some healthy swipes at the majority’s apparent newfound love for agency deference, at least in some instances. And again, it seems for this court, and you can sort of read this between the lines of the concurrence, the only agency deference the majority can get behind is… Deference to an agency explaining why environmental considerations should not carry the day. So they write, quote, as the majority points out, agencies often are better equipped to assess what facts are relevant to their own decision than a court is. And they chased that with a pointed citation to Justice Kagan’s dissent in Loper-BRIGHT.
Audience Applause.
Leah Litman Love it.
Melissa Murray I cite myself.
Leah Litman Yeah, the petty energy, I told you so, live for it.
Melissa Murray I can’t with the Kavanaugh opinion. Can we go to a different bad decision?
Leah Litman Well, yeah, let’s go to a different bad decision. Let’s go the place where it’s always bad decision.
Melissa Murray The fifth circuit?
Leah Litman Yeah, how did you guess?
Melissa Murray I did. I did.
Leah Litman How did you guess? Okay. So basically the Fifth Circuit has learned fuck all from the Trump administration scuffle with the Library of Congress and has decided to fuck with some librarians. Stuart Kyle Duncan. Who recently has been fairly overshadowed by his Fifth Circuit colleagues, had quite the en banc opinion in which he concluded that reading is what? Not fundamental, with apologies to RuPaul’s drag race.
Melissa Murray So to be very clear, the precise question in this case is whether someone may challenge a public library’s removal of books as violating the free speech clause. And I’m gonna give you one guess as to whether Stuart Kyle Duncan and the Fifth Circuit bros said that people actually have standing to challenge book banning. I’m going to need one word answers. Ready? One, two, three. No. You are correct. Because you listen to this podcast and you know that the Fifth Circuit is America’s worst circuit court. And in this particular case, in this Kyle Stewart Duncan, Stewart Kyle Duncan, what is his name? He says, quote, plaintiffs cannot invoke a right to receive information to challenge a library’s removal of books because that would establish, here’s the reading part, a brave new right to received information from the government in the form of taxpayer-funded library books. He really thought he was doing something there. He really did. Really did.
Kate Shaw And I mean, just to be clear, this is not a new right. There are plenty of cases that allow individuals to challenge book bans and censorship, including specifically at libraries. But a full majority of the Fifth Circuit decided to overrule decades of precedent to say there is no right to receive information at a public library. And then a different plurality said they thought that censorship at public libraries couldn’t be challenged because libraries are a form of government speech and therefore the government can choose what to say by choosing what books to make available. Yeah. Extremely dangerous thinking.
Leah Litman Yeah, and just take a second to compare this case and the reasoning with Mahmoud versus Taylor, where apparently you can challenge the availability of a book at a public school, but here you cannot challenge the removal of a book from a public library because, as we all know, books are for bitches and reading is what? Not fundamental.
Melissa Murray Now, I know you’re curious. What exactly were the books that were at issue in this case? So, the books included Isabel Wilkerson’s cast, as well as Susan Campbell Bertoletti’s They Called Themselves the KKK. Not really surprising, because obviously DEI, right? More surprising, though, was the exclusion of the classic children’s book, In the Night Kitchen. By Maurice Sundak, and I’m honestly racking my brain as to why they found the night kitchen so objectionable.
Kate Shaw So I’m weirdly the children’s book expert on stage, but there’s like one picture of this kid falling out of the sky after baking cake for the world and you see his butt in like a picture, a kid. I’m sure that is why.
Melissa Murray Well, that tracks because the other books that were also banned or on this list in addition to the night kitchen Were books that really seemed to have a kind of butts and flatulence theme So in addition, to the Night Kitchen, Larry the farting leprechaun and Freddy the farting snowman also caught some strays here. But hear me out. I do have to wonder whether any of the Fifth Circuit judges who were in attendance at the aforementioned lunch were involved in the decision that prevented individuals from challenging the removal of the butts and farts books. Because if that were the case, it seems highly coincidental, very correlative.
Kate Shaw So I don’t know, but I am gonna venture a guess that the Fifth Circuit would likely hold in circumstances where books are included as part of a school curriculum, as in Mahmoud versus Taylor, if we’re talking about Pride Puppy, those are not government speech and they can definitely be challenged by objecting parents.
Leah Litman Because the Fed is different, or really just because reasons and the gays is how that line would go. But, but don’t let Stuart Kyle Duncan and the Fifth Circuit boys win. So I am going to officially declare this summer hot indie bookstore summer and encourage, and encourage everyone to buy a book that would trigger your favorite Fifth Circuit judge.
Melissa Murray Larry the farting leprechaun!
Kate Shaw All right, moving right along, as if the courts of no appeal weren’t bad enough already, last week, the president announced his intention to nominate Emile Beauvais to the Third Circuit. I’m gonna quote Matt Siegel on Blue Sky, paraphrasing Homer Simpson. You thought this was the worst federal judiciary of your life, it was only the worst federal judiciary of your live so far. I mean, it may be that Judd with 2D stones was unavailable. We cannot wait to see what Trump administration position that guy fails up to.
Melissa Murray Beauvais is obviously very well known in Trump world. He is not only a leader in the current Trump DOJ where he pressured federal prosecutors to drop federal charges against New York City’s mayor, Eric Adams. That was a move that prompted a spate of resignations. But in addition to that, he was also one of the lawyers who represented the president, then a candidate. As defense counsel in the Manhattan DA’s quote unquote hush money trial, where the former president, it should be noted, was convicted of 34 criminal charges. So again, in the spirit of failing up, Beauvais now may get a lifetime perch on the Third Circuit, the very same appellate court that launched the career of our favorite front of the pod, Samuel A. Alito.
Leah Litman It feels necessary to remind everyone once again that this seat was unoccupied during the Biden administration and President Biden nominated Adil Manji to fill it. Manji would have been the first Muslim to serve on that court and indeed any federal appellate court. Some members of the Senate took that personally questioning Manji’s representation of certain clients and his loyalty to the United States because Manji is Muslim. And the Senate Democrats let them do it.
Audience Booooo.
Leah Litman [AD]
Melissa Murray All right, palate cleanser. Thankfully, it is not bad decision season everywhere. We got two recent decisions that invalidated for different reasons. The president’s taco tariffs.
Audience Woooo!
Melissa Murray A three-judge panel of the Court of International Trade and the District Court for the District of the District of Columbia both concluded that the Trump tariffs were illegal, again, for multiple different reasons, because why just pick one? And they would have blocked the enforcement of the tariffs.
Kate Shaw But alas, because it is still bad decision season for appellate courts, the Federal Circuit issued an administrative stay pausing the Court of International Trades decision at least until June 9th. But the decision of DC, the DC District Court hasn’t been paused, at least at the time of this recording.
Melissa Murray And the tariff decisions actually generated an absolutely delicious moment on social media wherein one Donald J. Trump, who apparently listens to this pod in his spare time, just like Sam Alito, announced on social that Leonard Leo is quote, a bad person and a real sleaze bag who in his own way probably hates America.
Kate Shaw I for one mourn the end, or the possible end, of this once beautiful partnership. It really could not have happened to a nicer guy.
Melissa Murray All right, and on the topic of more bad appellate decisions, last Friday, the Supreme Court paused a lower court ruling that had blocked the Trump administration from deporting parolees. This withdraws protections against deportation for some 500,000 Cuban, Venezuelan, Nicaraguan, and Haitian nationals who actually entered the country lawfully. Justice Jackson dissented from the court’s order, writing that the court, quote, undervalues the devastating consequences of allowing the government to precipitously upend the lives and livelihoods of nearly half a million non-citizens while their legal claims are pending.
Leah Litman She also said that, quote, the court allows the government to do what it wants to do regardless, rendering constraints of law irrelevant and unleashing devastation in the process.
Kate Shaw And we should say, while Jackson wrote, the rest of the court didn’t, right? There was zero, in the court’s order, there was zero reasoning. That justices cannot bestir themselves to write even like a shitty two pages of justification for uprooting the lives of half a million people. It is galling.
Leah Litman And it’s getting little coverage, but please, legacy and mainstream media, tell me more about the Supreme Court standing up to the Trump administration on immigration. I get some version of the question, but isn’t the Supreme court actually good now and don’t you feel worried about criticizing the court whenever I talk about my book, Lawless? And I’m like, no, it’s not good. See, for example, my book. That’s my effort to cite myself. I cite myself! Yeah, yeah, yeah. Um, yeah! So since we’re in DC, I think we have some DC-ish stuff.
Kate Shaw Well, I think I get the sense there are a few lawyers in the house and I think there are only lawyers in D.C. No, no. We love you non-lawyers just as much. But I’ll see. Look, look at that. All are welcome here. But for those of you who are lawyers and are members of the D. C. Bar, can I hear from you people here are members of the D C. Bar?
Audience Woooohooo.
Melissa Murray Guess what, DC Bar members? Brad Bondi, who is the brother of attorney general, say it with me, Pamela Jo Bondi is running for election in the DC Bar. And I just want to check. Is Brad Bondi in the audience tonight?
Audience Nooo.
Leah Litman All right, we can continue.
Leah Litman Great, OK. So listeners, you’ll probably recall in the last few years as certain individuals who might be named Rudy Giuliani tried to avoid responsibility for their actions, one of the institutions that consistently held errant lawyers to account was bar associations, which can discipline and even move for the disbarment of lawyers who have violated their professional oaths.
Kate Shaw So when we say all elections matter, we mean it. If you haven’t yet voted in the DC bar election, get on it. Voting ends June 4th. All right, with the news duly covered, it is time to chat it up with some friends of the pod, old and new. And for our first segment, we are delighted to welcome to the stage, friend of the show, Ambassador Norm Eisen. Norm, welcome to Strict Scrutiny. Norm, we are so excited to have you here. We are professionally obligated to keep up with the doings of all the lawsuits filed against the Trump administration and even we find it difficult to stay atop the fire hose of litigation in response to the arson campaign that this administration represents and as someone responsible for much of the litigation, as the fire captain, as we are tempted to call you, we wanna take some time to kinda ask you about a few of the cases. That you’re involved with that maybe haven’t gotten as much attention as they should. So first, how many times have you sued the Trump administration so far? And then tell us about one or two cases you wanna highlight.
Norm Eisen Leah, Kate, Melissa, thanks for having me. Hello, my fellow DC troublemakers. So many good troublemakers here. I mingled beforehand. I mingle, I bought some t-shirts. That’s why I buy the swag and the merch. I didn’t take a free one back in the green room.
Audience Laughs.
Norm Eisen We have been at the Democracy Defenders Fund, which is my organization that was born out of the defeat of the attempted coup of 2020. I took all the most battle-hardened people and we now we’re 40 litigators and communicators and we got ready for this eventuality. There are overall, we’re part of a coalition. There’s over 250 cases, over 170 orders stopping wrongdoing. We are involved in over 70 of those matters. That’s a lot. I’m really tired. There were copious amounts of caffeine in the green room. So two cases that we have worked on. Just this week, really just in the past 72 hours, that exemplify what’s going on, Kate and I were talking before, Doge and Dugan, it’s like Dungeons and Dragons for litigators, Doge, and Dugen, Doche. We at the Democracy Defenders Fund started the Doge investigation as soon as it was announced. We did dozens of FOIA requests during the transition. I actually applied to be a member of the Doge. Did you get an interview? I did. No. The spokeswoman for the DOGE.
Melissa Murray Shocking, Norm. Shocking.
Norm Eisen The spokeswoman for the Doge made the mistake of telling the New York Times, we don’t want him, he’s a Democrat. Boom, lawsuit number one. Only in the extremely litigious Beltway region does that line get such a vibrant reaction. So we brought the, it was actually the very first lawsuit of any kind against the Trump administration as soon as Donald Trump took his oath of office. By the way, did you notice that he didn’t put his hand on a Bible this time around? I heard he left a scorch mark on the Lincoln Bible in the previous. So that was the first of a series of Doge lawsuits. And on Thursday, we were in court with wonderful co-counsel for a mini trial on one of the worst things Doge has done, which is paw over the data of tens of millions, hundreds of millions of Americans. This particular case, concerned Doge’s access to data in the Office of Personnel Management, which includes the data of people on this stage because it’s every current or former federal government employee and every applicant to work for the federal government. And it was a mini trial, as one of the reporters called it. We put on a series of witnesses, cross-examined. The guy in charge from the OPM, and it wasn’t one of those Perry Mason moments that you so seldom get. He basically admitted that the handling of this data in those chaotic first days of Doge was not according to standards, and the judge suggested after the day-long events that she probably was gonna rule for us We’re now. She strongly encouraged, never a great sign when the judge tells the government, you might wanna think about settling this case. The government lawyers, they were not smart, and when they went to the elevator, they were overheard by one of the reporters. One of the government lawyers said, well, I think we lost in there. That appeared. And these are the guys that have all our data, right? That’s Doge. So we’re going to get some. And I think it’s important because there is so much grim news. But there’s good news, too. And part of the good news is that this wave of litigation against Doge exposed that Elon Musk had used a chainsaw when he should have used a scalpel. And it helped make him the most hated oligarch in America. And it drove him out of Washington. He’s gone. He’s gone.
Melissa Murray Do you watch a lot of horror movies, Norm?
Norm Eisen I cannot stand horror movies.
Melissa Murray Because there’s this trope in the horror movies that when you think the villain is dead.
Norm Eisen Yeah.
Melissa Murray He still comes back
Norm Eisen Don’t spoil my weekend.
Melissa Murray Okay.
Norm Eisen At least let me enjoy his absence until he comes back on Monday morning.
Melissa Murray This is what I do. I’m sorry.
Norm Eisen He hates me, by the way. He’s tweeted about me more than 30 times. So that’s DOGE. And there’s many more. There’s many of those cases. And again, it’s not just Democracy Defenders Fund, wonderful other organizations who do this. So the other case where really extraordinary case is a criminal one, Democracy Defender Fund is unusual because we both do. The civil cases, but also work in the criminal arena. And this was a brief that we filed. In some ways, the most amazing brief that I’ve ever filed and I’ve filed a lot of them in my 35 years. Just yesterday, in the Judge Dugan criminal prosecution, Donald Trump’s adventures in the civil courts have been such a fiasco, his first 100 days. He lost 96% of the cases in the month of April, 96%. You can’t do that by accident. You almost have to be determined to lose. They’ve been such a fiasco that he’s turned to his criminal powers for the second 100 days. And we’ve seen a series of truly shocking, he’s targeting Miles Taylor who worked for him. His employees have attacked a sitting governor, Governor Evers. They’re investigating Tish James. I believe her crime is having two houses. Donald Trump cannot forgive that. But the two most serious of this series of criminal cases are the prosecution of a sitting member of the House of representatives, Representative McIver. And of a judge in Wisconsin for doing nothing more than controlling her courtroom, Judge Hannah Dugan. So we are representing at Democracy Defenders Fund 140 federal and state judges who are, who filed a brief yesterday, defending Judge Dugin. You can applaud those judges. And that is not a normal thing for retired judges to wade into a controversy like this. And because Kate and I talk about these things all the time, she’ll appreciate this. The argument that we made in this brief was to flip the Trump v. US immunity case and say, well. If he’s immune, then shouldn’t Judge Dugan be immune for doing her job?
Melissa Murray That’s a sick burn, Norm. Sick burn.
Leah Litman It’s like an Oprah. It’s an Oprah, immunity for you. You get immunity, you get immunity. You get immunity.
Norm Eisen Everybody’s immune!
Melissa Murray Audience, I want you to look under your chairs right now.
Leah Litman Yeah. Ha. Ha. Ha! So that’s a lot of what is happening in the courts. On a recent episode, Melissa posed a profound question. What is a Congress, and where can I get one? Which prompts us to ask you.
Norm Eisen There’s one for sale just down the block!
Leah Litman If you have a spare hand-me-down jet, you’re looking to offload, that might be the going price. But Norm, Melissa’s question prompts us to ask you about this alleged first branch of government. So you might be aware that the House has passed a budget bill not gonna say its cursed alliterative name. Instead, I’ll just use Big Ball’s bill. And in that bill is a provision we’ve gotten a bunch of questions about. It’s a provision that would prevent federal judges from enforcing. What does that mean and what would it do?
Norm Eisen Get those earmuffs, kids. It’s bullshit. It’s just another, they got to scratch the itch on Donald Trump, and they’re just flexing for Trump. What it would do, what this provision would do is there’s an existing, I’ve had to deal with this in many of our cases, there’s an existing federal rule of civil procedure. That requires judges to consider a bond when they are entering injunctive relief. So this new provision would toughen that up a little bit by saying you cannot enforce contempt, which the Trump administration is nothing if not one continuous contempt road show. Uh, you cannot enforce… Contempt unless you have imposed a bond. But it doesn’t provide, I probably shouldn’t say this because the MAGA caucus in the Senate might be listening, but it doesn’t give a dollar amount. So like I had a case where in my appointments clause case, one of my many cases helped make Washington hot for Musk, the judge imposed a $500 bond. So there’s a huge body of case law under this rule that says, particularly in public interest cases, where it would be crippling for obtaining relief, that you can impose a nominal bond. So it’s like so much this Congress has done. It’s the least productive Congress in history. Donald Trump, all of the energy is sucked up by his failed executive orders. That’s what it is, but even if it makes it through the birdbath, the rule for budget bills, reconciliation to get around 60 votes, which it won’t, it doesn’t mean a whole hell of a lot.
Melissa Murray Right, just a quick note for the audience. If you are interested in working to push back on this bill, our friends at Vote Save America have a table out in the lobby. You can talk with them after the show about how you can get involved in that effort. So that is outside. Yes, yes, you can talk. Norm, I’m getting a text alert that there’s a filing deadline at some DC court and you are needed right away. So I think you probably have to go.
Norm Eisen It’s the Judd Stone case I’ve got to file but I have to tell you that can I tell you that story quickly?
Melissa Murray Okay, I think. Spill the tea.
Norm Eisen Okay, so.
Leah Litman As long as you promise it’s like PG 13
Norm Eisen Alright. I won’t mention any asteroids or other minerals. No minerals.
Melissa Murray Okay, you’re being very specific about the minerals.
Norm Eisen So Judd Stone is actually in the middle of one of the most notorious campaigns of retaliation against non-profits and civil society right now because just this week the DC circuit reprimanded and chastised the state of Texas, Paxton, for an purported investigation against the wonderful Media Matters organization, a very upstanding investigative media watchdog. Well, guess what? The same day that Judd Stone, after leaving the office based on these allegations in Texas, the same day that Paxton announced that investigation, Elon Musk, coming full circle, Elon Musk hired Judd Stone. To bring a lawsuit against Media Matters. So he’s in the middle of that story, too. But the good news is, the good new is, my friend, the man who brought a fox to its knees on behalf of Dominion, Justin Nelson, has just been retained to try that case. Judd Stone, watch out! Thank you, guys.
Kate Shaw Thank you so much, Norm.
Melissa Murray Let’s give it up for Norm Eisen!
Audience Appplause
Leah Litman [AD]
Melissa Murray Whoa. That was bracing.
Leah Litman We felt like we needed to end this episode with a big bang. Yes, that is a universe slash galaxy slash outer space joke. Sorry. So we are going to raise our big ballers and delightedly welcome to the stage our second guest of the evening, lawyer, best selling author, and author of the terrific Emily in your phone’s substack, Emily Amick. All right, Emily, welcome back to Strict Scrutiny in the flesh here.
Emily Amick I’m excited to be here. Hi, everybody. Hello, D.C.
Leah Litman So we thought we would start by talking to you about something that happened in Missouri last week, which we will provide a little bit of context for.
Melissa Murray So listeners, as you know all too well, in 2022, the Supreme Court decided Dobbs versus Jackson Women’s Health Organization, overturning Roe versus Wade and Planned Parenthood versus Casey, and rescinding the constitutional right to an abortion. Thank you, that’s exactly, that is it. Don’t worry, there’s more booing to come. And the author of that decision was none other than not a friend of the pod, a frenemy of the pod, one Samuel A. Alito. Well, just as Justice Alito envisioned, many states moved immediately to severely restrict or eliminate access to abortion, but perhaps not as Justice Alito envisioned. In other states, the people actually mobilized to protect abortion access, and they did so by using this weird new invention called democracy.
Leah Litman Justice Alito is like democracy, don’t know her.
Melissa Murray Ghosted that bitch. Anyway. So in Michigan and Ohio and in a number of other states, voters went to the ballot box and used methods of direct democracy to actually protect and enshrine greater protections for abortion access in their state constitutions.
Kate Shaw And in last November’s election, there were abortion-related measures on the ballot and actually in 10 states. Notably, one of those measures, which aimed to enshrine abortion access in the state constitution, was on the ballots in Ruby Red, Missouri. So Emily, what was the outcome of that vote? Remind us.
Emily Amick It passed. Yeah. The people spoke.
Melissa Murray Are you saying conservative women in Missouri don’t want to die in parking lots?
Emily Amick I mean you’d be shocked to learn.
Melissa Murray Stunning.
Emily Amick Yeah.
Leah Litman So on the heels of the ballot measure’s success, Planned Parenthood filed a lawsuit arguing that Missouri’s many abortion restrictions were invalid and a trial judge ruled that the 2022 abortion ban and some but not all of the state’s other restrictive abortion laws violated the new state constitutional amendment and issued an injunction allowing providers to again begin performing the abortion procedure.
Kate Shaw So very straightforward, right? The state constitution protects abortion and access to reproductive freedom. There are state laws that are fatally inconsistent with that new constitutional protection. The trial court did the only reasonable thing, which is to hold those existing state laws impermissible under the newly amended state constitution. But the Missouri Attorney General did not allow that obviously correct result to stand and challenge those rulings. And last week, the Missouri Supreme Court sided with the Attorney General.
Melissa Murray It’s actually even worse than that because the Missouri State Legislature actually had to pass a law that allowed the Attorney General to challenge the court’s initial preliminary injunction measure. So that hadn’t happened. They actually passed a law to make it easier to challenge the will of the people.
Kate Shaw And he did, and what, Emily, just like, the Missouri Supreme Court last week, like, what the fuck happened? Like, what did the state Supreme Court do?
Emily Amick Yeah, so to pregame this event, I headed to Pacer.
Melissa Murray As you do.
Emily Amick As one does.
Kate Shaw Most of the room did.
Leah Litman One of our people.
Emily Amick And, you know, it was like a really bad nightmare flashback to both law school and being an associate where the Supreme Court was like, there’s a four part test and you only completed one part of the test. And I went back and I looked at the circuit court judge’s opinion and I was like I see all four tests here. I think one of the things that we are seeing, right, taking a step backwards, we heard for many, many years that it’s about states’ rights. And we just, Roe is bad because it should be up to the states. Like women aren’t people. You know, liberty, that doesn’t count those women. But that was obviously always a lie, right? It was always just merely a step in the path towards making sure there’s a national abortion ban. And the trigger law that Missouri had set up that got knocked down, but they had all these specific regulations set up to make abortion. Functionally inaccessible. And that’s really what we’re talking about. And sometimes, I’ll be talking to young activists. And I’ll like, when I was young, I remember 20, 30 years ago, we were trying to fight all of these different regulations. And it was so hard, because no one would believe us. That was like, this is the path. It’s not just about the width of the hallways. That is not really what this is about. It’s not about the licensing, it’s not about the waiting periods, it is not about the text of what you have to read. It’s a much bigger plan about reversing our ability to access health care. And that’s what we’re seeing the Supreme Court do. And I was reading some of the statements made by Republican politicians in Missouri. And one Republican member of the legislature said, well, I just don’t think people knew what they were voting for.
Leah Litman Such respect for their constituents.
Emily Amick What is democracy? Am I right? And then the Republican Missouri Attorney General said, you know, this is about safety for women and making sure Missouri is the safest place.
Leah Litman Protecting them from their own votes, right?
Emily Amick Protecting them, yes.
Leah Litman So I guess you already started getting to this, but what does this tell us about the actual appetite for democracy among certain constituencies?
Melissa Murray This is a leading question.
Emily Amick Let’s say the appetite is full for democracy, they don’t want it anymore. I think that anti-democratic sentiment is such an interesting thing because they like democracy only when it begets their interests, right? They’re very interested in getting votes for themselves. They’re just uninterested in anyone who disagrees with them and the things that they want are becoming representative of an increasingly narrower portion of the population, and also, likewise, becoming increasingly draconian, increasingly authoritarian, right, like they’re moving, it’s getting another inch and inch and inch as we move forward. And, you know, democracy, I think, is, it, I saw a quote today, this is a little bit of a sidestep here, a little, I saw a little chart today about the difference, the number of coal miners in America versus the number of WMATA employees. And there’s like twice as many WMATA employees as our coal miners in America, right? And like, A, we love our Metro here. Fund the Metro, D.C. Statehood.
Audience Woooooohooo
Melissa Murray Yeah. You know your people, Emily, you really do.
Emily Amick I didn’t plan that, guys, but the reason they talk about these types of things is because it’s all optics and it’s fake, right. Like it’s, they’re messaging to people about things that don’t really exist. And I think when they’re talking about women’s safety and states’ rights and all of these things, they’re messaging you about things that don’t exist, what they really want is to be dictators.
Melissa Murray They’re putting the dick in dictator.
Emily Amick Indeed, indeed.
Melissa Murray Emily, you seem up for anything.
Emily Amick In high school.
Leah Litman Ha ha ha!
Melissa Murray Well, guess what, girl, school’s in session.
Emily Amick Okay.
Melissa Murray You wanna play a little game?
Emily Amick Well, let’s go.
Melissa Murray Let’s begin.
Emily Amick Let’s begin!
Leah Litman Let the games begin.
Melissa Murray We dreamed up. It wouldn’t be a live show without a live game. So we dreamed up a really fantastic game for all of you, and we’re gonna play it with Emily. And this game is called Who Said It?
Emily Amick Oh, no.
Melissa Murray Samuel Alito.
Emily Amick Oh, booooo.
Melissa Murray Or Margaret Atwood. Actually hard as fuck. I’m going to need help here from you guys.
Kate Shaw You’re gonna get it. Yes. Okay. So this is an interactive game and this is how it’s going to work. Emily, we are going to read you a quote. It is going to then be up on the screen We’re gonna ask the audience to help you out and applaud if they think this is a quote from one Supreme Court Justice Samuel Alito or to Margaret Atwood’s classic 1985 novel that novel slash predictive text The Handmaid’s Tale.
Melissa Murray This is the only time in the show where you’re actually going to applaud for Samuel Alito.
Kate Shaw All right, I am going to read the first one. Better never means better for everyone. It always means worse for some. Okay, clap if you think this was Alito. All right, some, clap if you think this was Atwood. And we have the audience’s view. Emily, what is your answer?
Emily Amick Well, I thought it was Alito, but I believe in democracy, so I shall choose Handmaid’s Tale.
Kate Shaw And the answer is? Yes!
Leah Litman See!
Melissa Murray See.
Leah Litman This is why democracy is good!
Emily Amick This is why democracy works.
Leah Litman Okay, next one.
Melissa Murray They’re supposed to show respect because of the nature of our service. Alright audience clap if you think that was Samuel a Alito.
Audience Applause.
Emily Amick I agree
Melissa Murray Got some Alito stans here, okay. Clap if you think that was Margaret Atwood.
Audience A few claps.
Melissa Murray No Canadians. In the house, okay. All right. Emily, what’s your answer?
Emily Amick I think this is a lido about the flag incident.
Leah Litman WRONG!
Melissa Murray It’s so hard to tell with dystopian text. So hard.
Leah Litman Next one, I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes. But if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. Okay, clap if you think this was Samuel Alito.
Audience Applause.
Leah Litman Clap if you think this was Margaret Atwood.
Audience Low claps.
Leah Litman Emily?
Emily Amick I’m going to go back to trusting democracy and go with Samuel Alito.
Leah Litman You are correct. This is his descent in Obergefell versus Hodges. Yeah.
Emily Amick Boo.
Leah Litman OK. So next question. The champions of religious liberty who go out as wise as serpents and as harmless as doves can expect to find hearts that are open to their message. OK. Clap if you think this was Alito.
Audience Applause.
Leah Litman Clap if you think this was Margaret Atwood.
Audience Louder claps.
Leah Litman Emily?
Emily Amick I still think it’s Alito, but I’m going to say Handmaid’s Tale. Because I believe in democracy. Up! The people led me wrong?
Melissa Murray Trust your gut, girl!
Leah Litman Trust your gut, Emily! This was Alito’s 2022 Notre Dame religious liberty summit in Rome address.
Melissa Murray Okay, can we, let’s parse this for a minute. Like, we gave Brett Kavanaugh a lot of shit earlier for just poor literary references. When have serpents been wise? Wouldn’t an owl have been better?
Leah Litman Look, the snake in the opening segment of the reputation portion of the Eras tour, that snake slapped.
Melissa Murray Okay, That was not the snake he’s talking about.
Leah Litman Whatever, whatever.
Melissa Murray I think this was a miss.
Leah Litman Duh.
Melissa Murray Duh, okay, all right, okay. All right, I’ve got another one for you, Emily. You ready? You look weak. Okay, here we go. It’s no excuse that what they did was legal at the time. Their crimes are retroactive. They have committed atrocities and must be made into examples for the rest. Audience, clap if you think this was Sam Alito.
Audience Low claps.
Melissa Murray Clap if you think this was Margaret Atwood.
Audience Louder claps.
Melissa Murray Like we said earlier, the worst federal judiciary so far. Emily, what’s your? Choice.
Emily Amick Oh, I’ll go with the Handmaid’s Tale.
Melissa Murray You would be correct.
Kate Shaw All right, next. Quote, one side or the other is going to win. There can be a way of living together peacefully, but it’s difficult because there are differences on fundamental things that can’t really be compromised. Do you think this was Sam Alito?
Audience Loud claps.
Kate Shaw And do you think this is Margaret Atwood?
Audience Low claps.
Kate Shaw Alright. Emily?
Emily Amick Samuel Alito.
Kate Shaw Democracy aligns with the other correct result. I mean, that’s really a wild quote that
Melissa Murray This was a secret recording.
Kate Shaw That’s true.
Melissa Murray So it did sound more literary, like he was reading.
Kate Shaw That’s true, that’s true.
Melissa Murray Alright, this is the last one because this game is really grim. Okay, here’s the last one. Maybe none of this is about control. Maybe it really isn’t about who can own whom, who can do what to whom and get away with it, even as far as death. Maybe it’s about who could do what to whom, and be forgiven for it. All right, please clap if you think that was Sam Alito.
Audience Low claps
Melissa Murray Please clap if you think that was Margaret Atwood. Emily?
Emily Amick Melissa, your reading is just very cinematic, so I feel it’s leading the answer, but I will say The Handmaid’s Tale.
Melissa Murray Correct.
Emily Amick Woo!
Melissa Murray But wasn’t that hard?
Kate Shaw It was much harder than it should have been.
Melissa Murray It was MUCH harder than… Maybe someone is reading on that court. Maybe
Leah Litman Or watching the TV series. OK, so that was bleak. Maybe not as bleak as Joni Ernst telling us we’re all going to die, though. But up there, and there aren’t any prizes. So Emily, thank you so much for joining us, but you’re not going away just yet. So listeners, again, Emily’s Substack is Emily in your phone, and she is going to stick around for our favorite things. So. Here’s my list from this week. One, Taylor Swift’s Instagram post and letter announcing she now owns her art. Two pieces on the Supreme Court’s order on Humphrey’s executor, I don’t even know her, and those would be Kate Shaw’s New York Times piece, Why Is This Supreme Court Handing Trump More Power? And Steve Ladek’s piece at one first, Living by the Ipsy Dixit. Okay, also wanted to recommend Adam Serwer’s fantastic piece, The New Dark Age in the Atlantic, and Michelle Goldberg’s piece, Elon Musk’s Legacy is Disease, Starvation, and Death in the New York Times. So in the midst of these fawning exit interviews with Musk and profiles depicting him as this guy who sacrificed so much to be in government, I think Michelle Goldberg plainly and powerfully laid out the case, why this guy should be saddled with the consequences of his actions for life. The piece quotes an associate professor of public health who estimates that the cuts Musk made to USAID have already led to 300,000 deaths, many of them children.
Melissa Murray Is it my turn now?
Leah Litman Yeah.
Melissa Murray OK, I think I drew the short end of the stick in the order. So my favorite things this week, these shoes.
Audience Woooo
Melissa Murray These are by my friend Sarah Sclarandus, who’s one of my mom friends in New York, and she makes amazing shoes. Check her out. These I love, and they’re on sale, so bonus. Also awesome this week, I saw Cowboy Carter. And not only did I see Cowboy Carter, I saw Jay-Z in the elevator bank. And not only did I see Jay-z in the elevator bank, when I told Kate, she actually made a popular culture reference.
Kate Shaw I told her there was a billion dollars in that elevator with her.
Melissa Murray And I was so dumbfounded that I was literally silent for two minutes and then I cried because our baby is growing up. It’s so beautiful.
Kate Shaw It’s like my one reference of the year probably.
Melissa Murray It’s graduation season. Kate is graduating from pop culture school and I’m so proud.
Kate Shaw You guys have taught me well.
Melissa Murray I just started the new season of And Just Like That, and I love Nicole Ari Parker’s Lisa Todd Wexley and her statement necklaces. You don’t know what I’m talking about, get on it. She is amazing, get that. Okay. I have an illicit confession to make. One of my favorite things this week, small voice, is that I have been listening on Audible to Jake Tapper’s book. I know.
Leah Litman Hear her out.
Melissa Murray Just hear me out. Just hear me out.
Leah Litman I was when she initially shared this
Melissa Murray I’m not reading the book, I’m listening to it. And it is read by Jake Tapper himself. I’m just going to say, Jake Tapper is so bitchy and petty. And you can hear it in the inflections in his way. I mean, it is super. The only way it could be bitchier is if it was read by Titus Burgess from the Unbreakable Kimmy Schmidt. And no, I know I’m supposed to like it. And I feel… It’s a little bit like Corey Lewandowski and MAGA Women. You’re not supposed to like it, but you’re drawn to it anyway. And I am, I don’t know what to say. And so I’m listening to it and he’s just so bitchy. And who even knew? Who even knew.
Kate Shaw I’m still avoiding it, but.
Leah Litman Same, same.
Kate Shaw But I like this take.
Melissa Murray I’m like listening so you don’t have to. You don’t have to.
Kate Shaw Perfect, thank you. All right, I’m just gonna name a couple. One, a column in the Times last week, M. Gesson’s Beware, We Are Entering a New Phase of the Trump Era. I mean, the TLDR is like, outrage can be exhausting. It is really hard to sustain a very high level of outrage, but it is imperative to sustain that level of outrage because normalization is what they want and is wildly dangerous. We are going to stay mad, and you should too. OK, a couple other things. Norm, on his substack, had a great piece last week, how you helped knock Musk out of DC and out of politics, elaborating on some of the points he was making about the broad mobilization and also the litigation. And it actually being a really important result that we saw this last week that has a lot of participants in getting to that place. And also another must read is Megan Tewy and Kristen Grinds. New York Times piece on the campaign trail, Elon Musk juggled drugs and family drama, and it is like as salacious as the headline. That’s the headline, and the piece delivers. And I also saw Cowboy Carter this week. I mean, the concert, but also the outfits of all of the concert attendees, oh my God. Everyone was resplendent. And also, in addition to the songs, the weird home video interludes that- They were home video interludes. Some were a little weird. All were delightful. None of them were weird. Beyonce deserved a break. She was working really hard. But they included unexpected cameos of a blurred out Megyn Kelly that was delightful.
Melissa Murray And an improvement, honestly.
Kate Shaw And an improvement. So that was a thing I took in and really enjoyed this past week. And Emily?
Emily Amick I’ll add into the pile on I enjoyed learning about the side effects of ketamine on Elon Musk, You can go Google that yourself. In less erudite things. There’s a new Nicole Kidman show in which she wears a cunty Bob called nine perfect strangers It’s doing terrible on Rotten Tomatoes, it’s doing wonderful things for me. I’m like, you guys, we have different standards. I love it. So there’s that. I have declared this summer Jam Girl Summer, and that means a number of different things. Most saliently, it means buying the expensive preserves. And that really fancy imported French butter, the Bure Bordier butter. Yeah, so A, buy yourself the fancy butter and spread it on some good bread. But it also is more like a vibe, right? Like we’re simmering, we’re preserving, we’re like enjoying ourselves, taking a little break. And then the last thing is my bestie, Jo Piazza. Her book is coming out in July. Everyone should read it. It’s called Everyone is Lying to You. It is a trad wife murder mystery. Everyone should pre-order it so you have the most perfect beach read for July.
Melissa Murray It’s going to be read by Jake Tapper.
Emily Amick It is. It is, it is. It’s gonna be so bitchy.
Melissa Murray All right, before we go, we have some housekeeping.
[AD]
Leah Litman We have a list of thank yous, so thank you again to our guests, Norm Eisen and Emily Amick.
Audience Woo!
Leah Litman We also want to extend a very special thanks to Sophie Eisenstadt, our tour manager. And we want to extend a very special thanks to our intern, the great Jordan Thomas, who helped us a ton with this episode, especially with a major lift on the Atwood or Alito game. And while we thank Jordan, we wanted to congratulate Jordan for graduating from Harvard Business School, where Jordan was one of the speakers. And in addition to graduating from Harvard, Jordan has one semester left to go before he graduates from Yale Law School. Jordan is amazing! Please give a warm round of applause for Jordan Thomas. We also want to thank the wonderful Crystal Edge for opening the show. Crystal knows that reading is what? Fundamental, and that the Supreme Court needs more than a little drag in their life, or at least some dragging.
Kate Shaw Thank you all for being a wonderful audience. We had such a great time. Wait, you want to take a selfie?
Melissa Murray I do.
Kate Shaw Melissa really wants to take a selfie with all of you. Is that okay?
Melissa Murray Do you wanna take a selfie with us?
Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Eddie Cooper. We get production support from Madeleine Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production, and we are thankful for our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. You can 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.
