• In one of the most anticipated rulings of the term, the Supreme Court justices deadlocked Thursday in a case over the creation of a religious charter school in Oklahoma. The 4-4 split sets no precedent, meaning the justices could take up a similar case — and the underlying thornier questions around the separation of church and state — in the future. Later in the day, the justices also handed President Donald Trump a major temporary win, allowing him to fire the leaders of two independent federal agencies while the cases play out in the lower courts. Leah Litman, co-host of Crooked’s legal podcast ‘Strict Scrutiny’ and author of the new book “Lawless,” talks about Thursday’s decisions and gives us a preview of SCOTUS opinion season.
• And in headlines: The Justice Department filed murder charges against a man suspected of killing two staffers of the Israeli embassy in D.C., the Palestinian health minister said more than two dozen children and elderly people had died of starvation-related causes in Gaza over the last two days, and the U.S. Treasury gets ready to bid adieu to the penny.

• Check out Leah’s book –www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628
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TRANSCRIPT

 

Jane Coaston: It’s Friday, May 23rd, I’m Jane Coaston, and this is What a Day, the show that’s excited to watch the new Mission Impossible movie tonight to confirm my personal hunch that Tom Cruise firmly believes he cannot die and is going to keep trying to prove it. [music break] On today’s show, the Justice Department files murder charges against a man suspected of killing two staffers at the Israeli embassy in D.C., and the U.S. Treasury gets ready to bid adieu to the penny. But let’s start with the Supreme Court, again. On Thursday, the court did two very important things. First, it deadlocked on a case involving the creation of a religious charter school in Oklahoma. The Justice’s 4-4 split leaves in place the ruling of the Oklahoma Supreme Court which had blocked the school. And yes, this was a very big deal. When the school and the state’s charter board went to the U.S. Supreme Court in a bid to reverse the Oklahoma Court’s ruling, it’s clear that at least one of the court’s conservatives seemed a little concerned about the possible precedent a state creating and funding a religious school might set. We don’t know who, the opinion didn’t say how the justices voted. And because Justice Amy Coney Barrett had recused herself from the case, we got a deadlock. This was a case about state-promoted religion, an issue that will definitely come up again. What else will come up again? Shadow docket decisions, which is just a sinister sounding term for when the court weighs in on cases that aren’t on its official schedule. The justices did just that late Thursday, when they let President Donald Trump temporarily remove the leaders of two independent agencies—the Merit Systems Protection Board, which handles employment disputes, and the National Labor Relations Board, which helps protect private sector workers. And that’s before we even get to all the drama happening in the lower courts, with the battles there over major parts of Trump’s agenda. Especially immigration. So to talk more about the court’s non-ruling ruling on religious charter schools, the upcoming decisions we can anticipate/fear, and the big legal fights playing out in the lower courts, I called up Leah Litman. She’s the host of Crooked Media’s Strict Scrutiny and the author of the New York Times bestseller, Lawless, how the Supreme Court runs on conservative grievance, fringe theories, and bad vibes. Leah, welcome back to What a Day. 

 

Leah Litman: Thanks for having me. 

 

Jane Coaston: So let’s start with the Supreme Court’s deadlock Thursday in a major case about the division between religion and the federal government. This is about whether Oklahoma could use government money to fund the nation’s first public religious charter school. What does a deadlock mean for the school, the state, and everyone else? 

 

Leah Litman: So I worry that the deadlock is resulting in the significance of this decision being underplayed because the dead lock means the lower court’s decision, which held the religious public charter school was disallowed stand. So Oklahoma doesn’t have to create this school. But the important part is this signaled for Republican appointees. We’re going to say a state was going to be required to create a religious public charter school simply because it had a public charter system for secular schools. So the idea that there were four justices already on board with that proposition is stunning, given that just a few years ago, everyone thought the Constitution prohibited states from operating religious public schools. And this case or this issue is gonna come back to the Supreme Court when Justice Barrett isn’t recused. There are already some cases percolating in the lower courts. So what does it mean? It means they will look at whatever the next case is afresh as they were looking at this one. 

 

Jane Coaston: And there are other big religious cases the court heard this term. Can you remind us about those two other cases and their potential constitutional stakes? 

 

Leah Litman: Yes, so the other big one I think is Mahmoud versus Taylor. That’s another case about religion in public schools. And that case is about whether a school district could include LGBTQ reading material and whether parents had a constitutional right to opt their children out of instruction that they believe violated their religious beliefs. Because reading children’s storybooks with LGBT characters was an affront to their religious conviction. So that’s one case. The second case is about whether a religious charity is entitled to an exemption from the state’s unemployment compensation scheme. So basically, whether a religious organization is entitled to a tax exemption and public funds. 

 

Jane Coaston: So the time period between Memorial Day and the end of June is not fun, because it’s really SCOTUS decision season. What are some of the big cases we’re waiting for in regards with to decisions? 

 

Leah Litman: So we’ve already talked about Mahmoud versus Taylor, the LGBTQ instructional reading material case. And then there’s also a case about the constitutionality of the Voting Rights Act and whether it is actually unconstitutional racial discrimination for a state to try to comply with the Voting Rights Act, or at least the parts of it that require states to ensure that voters of color and language minorities have the opportunity to select the candidates of their choice. Another case is the Birthright Citizenship case that the court heard at the end of the term, whether the lower courts have the power to block the unconstitutional and illegal executive order on a nationwide basis. There’s also Skrmetti, the case about whether it is unconstitutional discrimination for a state to ban gender-affirming care for minors. So it’s going to be a big decision season and this isn’t even taking into account all of the Trump administration cases that could reach the court on the shadow docket. 

 

Jane Coaston: Yeah, the administration has also repeatedly asked the court to intervene on its behalf when lower court judges rule against them. So do you think we could see some unusual Supreme Court activity over the summer when the justices usually go, you know, yachting? 

 

Leah Litman: Or PJing, personal jetting, or whatever the case may be. 

 

Jane Coaston: Whatever they’re into. 

 

Leah Litman: They stay at luxury resorts with life-size replicas of Hagrid’s hut, not to point to any specific examples. Um.

 

Jane Coaston: Sure. 

 

Leah Litman: Yes, we are certain to get shadow docket orders over the summer, and the Supreme Court basically can’t control when the government takes us up to the Supreme court and when lower courts might provoke the need for the Supreme Court’s consideration. I mean earlier this week, we got the unannounced, unexplained, unexpected decision you know revoking, essentially, temporary protected status for more than 300,000 people. And it’s likely that there are going to be some similarly huge shadow docket decisions that come down this summer. 

 

Jane Coaston: I want to pivot away from the Supreme Court a bit to the lower courts and the ongoing constitutional crisis we’re seeing around immigration, because a federal judge in Boston had explicitly blocked the Trump administration from deporting people to countries other than their own without giving them a chance to challenge their removals, and the government’s just doing it anyway by putting a group of migrants on a plane bound for South Sudan. The judge says the administration, quote, “unquestionably violated his order.” So what happens next here? 

 

Leah Litman: So the district judge said he was holding off on contempt proceedings, but what happens now as to the men who were put on that plane to Sudan is he said the government needs to provide them with sufficient process to have their immigration claims like claims for asylum or other forms of relief from removal heard in a way that comports with due process. But he added, its permissible for the government to do that while those men are abroad. And I’m very worried that he basically gave the administration cover to say, sure, we’ll just pull up a Zoom and put, I don’t know, Stephen Miller on the other end of the line and say, do you have a credible fear of persecution? They will say yes, Stephen Miller will disagree with that and we will consider that for a little bit longer. And that will conclude the resolution of their immigration proceedings. You know that’s a slight exaggeration, but I just worry they’re not actually going to get fulsome process. 

 

Jane Coaston: But also, what about the administration officials who facilitated this? I mean, how is this not contempt? What do you have to do to get contempt of court?  

 

Leah Litman: It is obviously contempt. They are doing the exact thing the United States Supreme Court just told them they cannot do. Provide a mere 24 hours notice in English only without sufficient guidance to tell someone how to challenge their possible expulsion. It’s absolutely contempt and yet the courts thus far I think have been too scared to basically say that and I just worry that lets them get away with it. 

 

Jane Coaston: So where does this all leave us? Because on this issue in particular, it’s not the first time the administration’s been accused of violating a court order, and yet they just keep fucking doing it. And they faced a lot of lower court decisions that haven’t gone in their favor in just the few short months they’ve been in power. So what are you keeping an eye on going forward? 

 

Leah Litman: Whether any court will actually be allowed to hold any official in the Trump administration in contempt, whether any Court will be willing to do so, and then eventually whether the Republican appointees on the Supreme Court intervene to say once again Donald Trump and the Trump administration are above the law. 

 

Jane Coaston: Leah, as always thank you so much for joining us. 

 

Leah Litman: Thanks for having me. 

 

Jane Coaston: We spoke to Leah before the Supreme Court issued its unsigned decision about the independent government agencies. We got back in touch with her for her reaction. She said the decision basically blows up a precedent set back in the 1930s. 

 

[clip of Leah Litman] The Republican justices basically overruled Humphrey’s executor, the case that had upheld independent agencies on the shadow docket, without so much as mentioning the case. Oh, but they want you to know, at least one independent agency can still exist, and that’s the Federal Reserve Board. Because blowing up the administrative state, they’re done with that. But blowing up the economy, and their bank accounts, and their billionaire BFFs’ bank counts. That’s a little too far. Anyways, this is a momentous change about the structure of government that the court just dialed in. 

 

Jane Coaston: That was Leah Litman, co-host of Crooked’s legal podcast, Strict Scrutiny, and author of the new book, Lawless. We’ll get to more of the news in a moment, but if you like the show, make sure to subscribe, leave a five-star review on Apple podcasts, watch us on YouTube, and share with your friends. More to come after some ads. [music break]

 

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Jane Coaston: Here’s what else we’re following today. 

 

[sung] Headlines. 

 

[clip of Jeanine Pirro] This is a horrific crime and these crimes are not going to be tolerated by me and by this office. A young couple at the beginning of their life’s journey about to be engaged in another country had their bodies removed in the cold of the night in a foreign city in a body bag. 

 

Jane Coaston: Interim U.S. Attorney for the District of Columbia Jeanine Pirro announced charges on Thursday against the man accused in the fatal shooting of two Israeli embassy staff members in Washington. Pirro said the suspect is charged with murder in the first degree and other crimes. 

 

[clip of Jeanine Pirro] Let me also say that violence against anyone based on their religion is an act of cowardice. It is not an act of a hero. It is the kind of case that we will vigorously pursue. Anti-Semitism will not be tolerated, especially in the nation’s capital. 

 

Jane Coaston: Officials say Yaron Lashinsky, an Israeli citizen, and Sarah Milgram, an American, were shot and killed Wednesday night outside the Capital Jewish Museum after an event held there by the American Jewish Committee. According to court documents, the shooting was caught on surveillance video. The FBI affidavit says the suspect told police, quote, “I did it for Palestine. I did for Gaza. I am unarmed.” The document says he also shouted, Free Palestine, as officers escorted him from the museum. Pirro says the killings will be investigated as a hate crime and crime of terrorism. 

 

[clip of Maged Abu Ramadan] In each uh birth, some of the newborns are underweight and they need intensive care to cope. So they live only a couple of days and then they succumb.

 

Jane Coaston: On Thursday, the Palestinian health minister, Majed Abu Ramadan, said that 29 children and elderly people had died of starvation-related causes over the last two days. At least 52 more Palestinians were also killed by Israeli airstrikes. For almost three months, Israeli forces have imposed a blockade on the Gaza Strip, preventing any aid from reaching Palestinians. On Sunday night, however, under pressure from allied nations, Prime Minister Benjamin Netanyahu said he would temporarily allow minimal aid into the region. About 90 truckloads of aid entered Gaza Thursday after being held at the border where aid is inspected before distribution due to security concerns. Because of the relatively small number of trucks, some aid workers were worried about the possibility of looting. Minister Ramadan said most of what came in was flour for bakeries. Baby food and medical equipment were also included in the aid. Israeli officials say they have allowed 100 more truckload of supplies into the region. However, the United Nations Office for the Coordination of Humanitarian Affairs said that the aid reaching Palestinians is quote, “nowhere near enough to meet the vast needs in Gaza and that much more must be allowed in.” 

 

[clip of LaMonica McIver ] To have these charges put against me, to see the possibility of being in prison for such a long time for these charges. It’s really unfortunate, but at the same time, it’s truly sad uh for America. 

 

Jane Coaston: Representative LaMonica McIver, the New Jersey Democrat who was charged with assaulting officers in an immigration detention center, spoke with Crooked’s Pod Save America on Thursday. Representative McIver was one of the Democratic members of Congress who conducted an oversight visit. Newark Mayor Ras Baraka was also at the Delaney Hall immigration detention center earlier this month. During the visit, things escalated and Mayor Baraka was arrested on trespassing charges. Those charges were later dropped. But this week, McIver was slapped with two felony criminal counts of assaulting, resisting, intimidating, and interfering with federal officials. But a video released by the Department of Homeland Security to support the charges doesn’t appear to show that. If anything, it looks like the Congresswoman was being pushed around in a very uncool mosh pit. 

 

[clip of LaMonica McIver ] We know that our democracy is at stake here. We’ve seen Trump strip away pieces and pieces of our democracy each and every day. And this is a bigger situation than just me, you know, it’s a bigger situation than just the judge in Wisconsin. This is a situation where we have a president who is taking away the basic things that we love about America. 

 

Jane Coaston: Check out Representative LaMonica McIver’s full interview on Pod Save America’s YouTube channel or wherever you get your podcasts. After more than 200 years in circulation, the penny is headed to the big piggy bank in the sky. President Trump called for the change in a February post on Truth Social. And on Thursday, the Wall Street Journal reported that the U.S. Treasury will stop circulating new pennies by early 2026. The Treasury says there won’t be enough of the coins in circulation to support everyday cash transactions, so businesses will have to round prices up or down to the nearest five cents. Wait, why did we give them the option of rounding up? I digress. In his social media post calling for the end of the penny, President Trump cited the high cost of the coin’s production. Here’s a Fox News reporter doing his best Trump read. 

 

[clip of unnamed Fox News reporter] Take a look at this, everyone. He says, for far too long, the United States has minted pennies, which literally cost us more than two cents. This is so wasteful. I have instructed my secretary of the U.S. Treasury to stop producing new pennies. Let’s rip the waste out of our great nation’s budget, even if it’s a penny at a time. 

 

Jane Coaston: Last year, the cost of producing pennies jumped by 20% to 3.69 cents per coin. The Treasury expects that the change will save the department more than $56 million annually. The first U.S. pennies were made in 1793 and featured a woman with windblown hair. Abraham Lincoln didn’t make it onto the coin until 1909, commemorating his 100th birthday. And that’s the news. [music break] One more thing. Solving the climate crisis is hard. Really, really hard. Not just because of the scale of what will be needed to mitigate climate change, but because many voters just don’t wanna do it. For example, while voters polled by the Pew Research Center in 2023 said that too little was being done to protect the environment, a majority of those surveyed didn’t want to phase out gasoline-powered cars and trucks by 2035, and they weren’t interested in switching their gas appliances to electric alternatives. But perhaps voters might be interested in working one fewer day a week. That’s the argument multiple studies are making, that a four-day workweek might not just be good for workers across industries, but also good for the environment. We’ll be embarking on a four day workweek after the Memorial Day weekend, but maybe everyone should. For more, I spoke with Anya Zoledziowski,. She’s Crooked’s climate correspondent. So you don’t have to convince me about a four days workweek. I love this idea. But is this an actual idea and how does it work across industries? 

 

Anya Zoledziowski: Yeah. Great question. Four-day work weeks have generated like a ton of buzz and people are taking them really seriously. And it’s not just about more time for you or for me and whatever we do on our weekends, but it’s also about productivity, you know? It does increase. We’ve seen pilot projects in the UK and South Africa and they’ve found the same thing and corporate revenue has even gone up. But you asked a really good point about, you know, who gets to enjoy this kind of four-day work week. And we’re seeing this across professions. However, there’s always the class issue where not everyone would get to benefit from this, you know, equitably and equally. I think the news here is that if more and more people work less and less, that is an underrated way for us to fight climate change. 

 

Jane Coaston: Now, presumably, research would confirm this. What have studies found? 

 

Anya Zoledziowski: Studies have found that shorter work weeks, and importantly, without pay cuts or without lower pay, offer a ton of environmental benefits. So for one thing, countries around the world with shorter work weeks or fewer working hours tend to have lower emissions. And a UK-based study from 2021 found that a standardized four-day work week could shrink the UK’s carbon footprint by 127 million tons per year. That’s like taking 27 million cars off the road. And so a four-day workweek isn’t just about mental health and productivity, it’s also about just helping planet Earth.

 

Jane Coaston: Now, I have to imagine that this has a lot to do with commuting, office space, et cetera. 

 

Anya Zoledziowski: Yeah, communing is definitely part of the story. By shifting to a four-day work week, that’s a whole day when most people don’t have to travel by cars or busses to get to work. It’s also um about relying less on energy-intensive spaces. So we save there. But then for those people who work from home, there’s also an incentive to work less. We actually consume a lot when we work from home. That might mean you know, relying on services like Uber Eats or DoorDash for your meals or ordering your um supplies on sites like Amazon. And so by having more time for yourself, you might have more time to cook for yourself or to run your own errands and walk to the store to get your supplies or your groceries. And then the fun part here is that when we have more for leisure and fun, we actually naturally gravitate to activities that emit less. So think about reading or journaling or playing guitar, going to the park to meet your friends for beers, just naturally we are emitting less when we have more leisure time. 

 

Jane Coaston: I love it. Anya, thank you so much for joining me. 

 

Anya Zoledziowski: Thank you so much, always a pleasure. 

 

Jane Coaston: That was my conversation with Crooked Climate Correspondent Anya Zoledziowski. This segment was supported by our nonprofit partner, Crooked Ideas. [music break]

 

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Jane Coaston: That’s all for today. If you like the show, make sure you subscribe, leave a review, buy us a membership to Mar-a-Lago, and tell your friends to listen. And if you’re into reading, and not just about how membership to Mar-a Lago, Trump’s Florida resort now costs one million dollars, like me, What a Day is also a nightly newsletter. Check it out and subscribe at Crooked.com/subscribe. I’m Jane Coaston, and think of the journalism we could do, pool side, with our good friends, in the Republican Party. [music break] What a Day is a production of Crooked Media. It’s recorded and mixed by Desmond Taylor. Our associate producers are Raven Yamamoto and Emily Fohr. Our producer is Michell Eloy. We had production help today from Johanna Case, Joseph Dutra, Greg Walters, and Julia Claire. Our senior producer is Erica Morrison, and our executive producer is Adriene Hill. Our theme music is by Colin Gilliard and Kashaka. Our production staff is proudly unionized with the Writers Guild of America East. [music break]

 

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