This week, the Court weighed in on two cases arising out of the Trump administration’s use of the 1798 Alien Enemies Act to deport people to El Salvador. Kate, Melissa, and Leah break down both rulings, looking at how SCOTUS is giving leeway to the administration. For the second part of the show, Deborah Archer, professor of law at NYU and president of the ACLU, joins to talk about her new book, Dividing Lines: How Transportation Infrastructure Reinforces Racial Inequality.

Hosts’ favorite things this week:

• Leah: Dividing Lines, Deborah Archer; Why Universities Must Start Litigating—and How (The Nation), David Pozen, Ryan Doerfler, and Samuel Bagenstos; The Case for Suing, Adam Unikowsky
• Kate: Princeton President Chris Eisgruber on The Daily; Who Is Government? The Untold Story of Public Service, Michael Lewis
• Melissa: Up Home: One Girl’s Journey, Ruth J. Simmons; The White Lotus (Max)

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• 10/4 – Chicago

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TRANSCRIPT

Leah Litman [AD]

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a 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 Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts, I’m Melissa Murray.

Leah Litman I’m Leah Litman.

Kate Shaw And I’m Kate Shaw. We have a great episode in store for you today. We are going to first cover the rapidly unfolding developments over the last week, and Melissa and Leah will then do a deep dive on transportation justice with the fabulous Deborah Archer, whose wonderful new book, Dividing Lines, How Transportation Infrastructure Reinforces Racial Inequality, drops tomorrow.

Melissa Murray But before we get into that yummy dessert, we have to eat some really unyummy vegetables. And I’m just going to say, these are two great tastes that we didn’t think would taste great together, and we were right. Article 2 and Article 3, specifically SCOTUS, have been having a lot of meat cutes. I think they think it’s meat cute, but we have found that it is decidedly not meat cute folks. So we are going to give you a sense of what these two great institutions have managed to cook up together. and then we will explain why it is so very, very concerning.

Leah Litman It’s fugly. So the big activity last week came in the cases arising out of the administration’s extraordinary renditions of people who are primarily but not exclusively Venezuelan nationals to a notorious El Salvador prison with truly horrific conditions. The renditions arise out of The President’s Alien Enemies Act proclamation, which declared that the Tren de Aragua gang was operating as a foreign state or foreign nation and engaged in an invasion or predatory incursion against the United States. The AEA is a 1798 statute that allows the president to designate nationals of certain foreign states as enemy aliens, subject to expedited removal proceedings. It was last invoked during World War II as part of the constellation of laws and actions that underwrote the internment of Japanese nationals and American citizens of Japanese descent. There are many reasons to think that the current deployment of the AEA isn’t proper, and we’ll elaborate more a bit on that below.

Kate Shaw Two cases arising out of these summary expulsions came to a head in this past week. The first is a case that originated before Judge Boesberg in the D.C. District Court, and that’s the challenge to the lawfulness of the administration’s implementation and use of the AEA. That’s the case where Judge Boebsberg issued a temporary restraining order against the administration use of proclamation and certified a class action so the administration couldn’t use the proclamation against anyone without affording them a degree of process although it could still deport people on other grounds. and that’s Initial TRO is what led to a complete meltdown by the president and top advisors, calls for impeachment, etc.

Melissa Murray The second case also arises out of the implementation of the Alien Enemies Act. And it is the case challenging the administration’s conceitedly erroneous expulsion of Kilmar Abrego-Garcia, who was born in El Salvador, but who is a resident of the United He is also a father of three. And he is married to and has a child with a US citizen wife. The expulsion is mistaken because Mr. Abrega Garcia is not a Venezuelan national subject to the proclamation, which specifically denominates those members of the Trendier Ragwa. gang as enemies. His case appears to be prompted by what the administration has conceded was a paperwork error. They made a mistake and put him on the plane and now he’s in El Salvador. His case was heard by an immigration judge back in 2019 and at that time the immigration judge determined that Abrego Garcia could not be deported to El Salvador because he was being targeted and likely would continue to be targeted by an El Salvadoran gang if he returning to that country. And it is very likely that members of that very same gang are currently being held in the El Salvadoran mega prison to which the Trump administration erroneously deported Abrego Garcia.

Kate Shaw Mr. Abrego-Garcia’s lawyer challenged his deportation, and a district judge, Judge Zinas in the District of Maryland, ordered the administration to try to bring Mr. Abrega Garcia back. The United States Court of Appeals for the Fourth Circuit declined to pause that ruling, and the Supreme Court initially issued an administrative stay, deferring the district court’s initial deadline to return Mr. Abregu Garcia to the country. The court took some time to dispose of the application after that initial administrative stay, and it ultimately denied the government’s request to put the entire order on hold. So it left in place a directive for the government to, quote, facilitate Mr. Obrego-Garcia’s return. But, as we will talk about in a second, we are not treating this as an unqualified victory, at least not yet, because the court also, in really important language, signaled that part of the lower court’s order was at least questionable.

Melissa Murray And the same day that the court issued the administrative stay in Mr. Abrego Garcia’s case, it also issued an order in the AEA case that was pending before Judge Boasberg. In that 5 to 4 order, the court blocked Judge Boasberg’s rulings that had prevented the government from relying on the AEA to expel more people to a foreign torture prison. So what Judge Boasberg put in place has now been stayed by the court.

Leah Litman We’re going to describe what the Supreme Court said and why it is consequential, both for what it means for people who could be affected by the administration’s AEA actions and for what pretends about the Supreme court reviewing the legality of Trump administration policies. The court’s per curiam decision, that is it was unsigned, it didn’t identify an author in the AEA case, which is Trump versus JGG. did not rule on the lawfulness of the administration’s invocation of the Alien Enemies Act. That is, didn’t say whether the law can be applied to Tren de Aragua, which is not a foreign state, nor did it really rule on administration’s implementation of the AEA. That is whether the administration can even send people to a foreign prison rather than deport them to their country of origin.

Melissa Murray And it didn’t even really say whether the administration’s quote unquote process or lack thereof violated the statute or the constitution. It did, however, say some vague things that might suggest that the manner in which the administration has been implementing the AEA is actually unlawful. The court said, for example, quote, the government expressly agrees that Trendy Aragua members subject to the removal under the Alien Enemies Act get judicial review, end quote. That is suggestive, but it’s not definitive.

Leah Litman Also, please note that none of the people put on the two planes to El Salvador got any fucking judicial review at all. And yet the Supreme Court still felt fine saying this.

Melissa Murray Gaslighting, playing in your face.

Leah Litman Yup.

Anyway, the potentially more significant thing that the court said was that, quote, in this context, AEA detainees must receive notice after the date of this order that they are subject to removal under the act. The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs, end quote.

Kate Shaw Okay, so but, and this is big, and it’s implicit in the language that Melissa just read, the court put on hold Judge Boesberg’s ruling blocking the administration’s implementation of the AEA because the court said challenges to the AE A expulsions had to proceed via habeas petitions. Now, habeas is complicated. I thought the court’s claims about habeas sounded dodgy when I read the order, but I am not kidding. I’ve been dying to get the full breakdown. from genuine habeas expert Leah Litman. So we’re actually gonna start with the practical implications of the court’s order. And then for the real law nerds in the group, we’re gonna circle back to sort of drill down on the claims about habeas corpus, the way the court characterized the writ and its own precedents, et cetera.

Leah Litman Just by way of preview on the law, the court is just flatly wrong. I knew I had become an expert in habeas for a reason, and this occasion is it.

Kate Shaw You’ve been training for this, Leah.

Leah Litman Right, like to the point they were so wrong. I wonder if they were being intentionally species, you know, I’ll come back to that possibility in a bit. But first practicalities, as Kate said, what does this mean on the ground? It’s not totally clear. And the Supreme Court wrote its order, I think intentionally that way, but it could be devastating. First, the majority says expulsions require due process, but these individuals in this foreign torture prison were not given due process, so What happens now? Can course order the government to bring back people who were wrongfully expelled? TBD?

Melissa Murray I guess. So this is where the ambiguities in the court’s order regarding Mr. Abrego-Garcia really become relevant. So let’s toggle back to that case for a minute. In brief, the Supreme Court left in place the lower court order to the extent it directed the government to, quote unquote, facilitate Mr. Abrego- Garcia’s return to the United States. But the majority added that to the extent the lower Court ordered the government to, unquote unquote, effectuate Mr. Garcia’s return. That directive is, quote, unclear and may exceed the lower court’s power, end quote. So the TLDR of all of this is that the court seems to be saying that you can order the government to facilitate a return, which seems to be the place where the court should have inserted the Chris Jenner, you’re doing great, sweetie meme. But it cannot actually order the Government to effectuate, actually do the thing. So try, but don’t actually have to do it. which seems… not the best outcome.

Kate Shaw Well, and I actually don’t know. I mean, I think there will be a fight about what the court can order the government to do. It’s not obvious what constitutes facilitate and where the line between facilitate and effectuate really is. And so there will Be important questions about that. And also, whatever facilitate means, there will be questions about whether the government has made its best efforts to facilitate the return and whether the district court can prove that how it can require the government to substantiate its claims. and what it can do if it thinks the government is not acting in good faith to actually do the thing the court is able, on the Supreme Court’s own telling, to order it to do, which is to facilitate return.

Melissa Murray So this reads a little bit like what happened in Dobbs. In the effort to apparently settle this issue, the court has actually just generated the ground for far more litigation going forward. And they’ve essentially given the administration latitude to try and fight about the difference between facilitate on the one hand and effectuate on the other. So we’re literally playing word all over a man’s life. We’re all left wondering, what does it mean to facilitate? What does it means to effectuate? What’s the difference? and Since the justices invented this distinction that gives the executive branch considerable wiggle room to weasel around whether or not they have to bring Mr. Abrego Garcia back, it’s not really a settlement at all.

Leah Litman Yeah, so specifically, one question, as Melissa alluded to, is, does Facilitate leave room for the administration to tell the court? Well, we asked, and El Salvador said no. We tried, so give us an A for effort. I think if this is what it comes to, there should be immense public pressure and outcry about how that response is woefully inadequate. This administration cannot claim to be a bunch of weak weenies you know, and just say, we can’t get him back. I mean, where was the masculine energy? Exactly, exactly. That’s not masculine energy. Masculine energy is getting back the person who you wrongfully deported. And we all know the administration could get Mr. Abrego Garcia back with a phone call. El Salvador is detaining people pursuant to an agreement with the United States. The United States is a party to that agreement. They can set its terms. It is appalling and an outrage that the Trump administration has not. already commanded El Salvador to return Mr. Abrego Garcia. And as Kate was alluding to, given the administration’s bad faith, I for one am concerned that it is not going to put forth its best efforts to facilitate a return. That is, it’s not actually going to try to get Bukele to actually return Mr Abregao Garcia. And that is going to push the extreme limits about arguing what constitutes effectuate rather than facilitate. In most administrations, you would expect good faith compliance. You would also expect. straightforward representations about what they have done in order to comply and what isn’t possible. And this administration, I don’t think is going to do that. We’ve seen how they’ve tried to stonewall Judge Boasberg and also stonewall in this case. And I think the fact that the Supreme Court failed to grapple with that is a real problem.

Melissa Murray Hear me out. What if it’s the plan?

Leah Litman Yes.

What if this is, what if they’re really concerned?

Leah Litman Going to come back to that later. Yeah.

Melissa Murray I’m just worried. I think they’re worried that where the administration is going to prove its masculine energy is when it tells the court to fuck off. And they’re basically buying some time.

Kate Shaw Well, that’s why I think the court of public opinion is really important here in this sort of masculine energy point, which it’s so enraging to have to fight on these terms. And yet, they want to project this enormous strength on the world stage. And I think that they need to be asked how this superpower cannot possibly procure the return of one resident of Maryland. and convince the world that it can negotiate from a position of strength on tariffs, many- He’s a deal maker. He’s deal maker, makes some deals. Show us a deal. I actually think that outside of courts, that kind of discourse is incredibly important right now.

Melissa Murray But I think this shows how weak the court understands itself to be in this moment. Like, I think they are genuinely worried that this administration is going to say, fuck you, and then we really will have this existential crisis. This is just deferring that and kicking it down the road a little bit.

Leah Litman Totally agree, and I want to draw an analogy between what the court did here and what the court did in the follow-on to Brown versus Board of Education. After the court declared segregation in public schools unconstitutional, they then released a decision about schools’ obligation to remedy that and actually effectuate or facilitate integration. And what the Supreme Court said is, use all deliberate speed. thereby preserving the option of saying, well, schools are trying, sorry, it’s not happening. They’re still complying with our decision, even though they weren’t actually bringing about integration. And I think this is quite similar to that dynamic. And this administration released a statement that does not make me feel better about their willingness to actually try to bring about return. The statement read, quote, as the Supreme Court correctly recognized, it is the exclusive prerogative of the president to conduct foreign affairs. By directly noting the deference owed to the executive branch, this ruling once again illustrates that activist judges do not have the jurisdiction to seize control of the president’s authority to conduct foreign policy,” end quote. This does not sound like an administration that is planning to abide by an order or directive to undertake their best efforts to facilitate Mr. Abrego Garcia’s return.

Kate Shaw But I do think that the district court can write carefully in a way that does try to say, look, I’m not telling you exactly what diplomatic steps you have to take. You get all the discretion to decide how, but the court did have my back on the bottom line. You have an obligation to facilitate. So I do that a lot is gonna come out in, it would be overplaying, I think, for the district core to be too directive. And that’s a kind of impossible position that the Supreme Court has put her in. But I think that she has. a path that she can navigate and but obviously of course it all comes down to the response the administration provides.

Melissa Murray And Judge Zenas’ modified order does, I think, sort of move in that direction, but I just want to make really clear, I don’t even think the court wrote this order in a way that would signal to either the district court or the administration that the court was prepared to back up Judge Zena’s with whatever she did going forward if she issued some kind of modified order. or if she was convinced. I don’t know if I totally agree with that. But yeah, so you think that she may have been thrown The order is written in a way where the court tells the lower court to clarify its directive. It says to clarify it’s directive with due regard for the deference owed to the executive branch in the conduct of foreign affairs. That doesn’t really suggest that they have confidence that Judge Zenas is going to strike this delicate balance. And even if she does, whether or not they’re willing. to stand on business and support her. And like, yeah, this is a perfectly acceptable way to thread this needle. You get the deference you need, but she’s still observing what the requirements of law are. And as to the question of whether the administration is acting with some sort of eye toward honesty and good faith, the court said that the administration is ordered to, quote unquote, share what it can about what it’s doing going forward and the steps that it’s taking. and the prospect of further steps. So all of that seems like we’re not entirely behind the lower court, and maybe you get to do whatever you want.

Kate Shaw Well, certainly an administration acting in bad faith could say, well, there’s not much we can share and there aren’t many prospects of further steps. And then I think we will see what the Supreme Court does if the case ends up, if the district court doesn’t abide and the administration tries to take it back up. So the three Democratic appointees wrote separately to signal that they don’t endorse the majority’s caveat about the district court’s ability to demand the government effectuate his return. Also, they made clear they would have immediately denied the government’s request for a stay. They styled this as a statement. I think it was important to them, and maybe to the rest of the court, that this reflect a projected sort of unity among the justices. So they didn’t, and of course they did agree with the bottom line, which was that the government did not prevail in broad terms, although I said a specific deadline it did, because the deadline passed. But anyway, let me just read briefly from what Justice Sotomayor wrote, quote, the only argument the government offers that United States courts cannot grant relief once a departee crosses the border is plainly wrong. The government’s argument, moreover, implies that it could deport and incarcerate any person, including U.S. citizens, without legal consequence, so long as it does so before a court can intervene. That view refutes itself. So the warning is dire.

Melissa Murray Well, can I say something? I was out in Berkeley this week, which is where I was in 2016 when Justice Scalia passed away. And everyone thought that President Obama would have the opportunity to nominate Justice Scalia’s replacement. And there would be a five to four liberal majority or progressive majority on the court. If that had ever happened, this would have been the majority opinion. Or this would never have happened because maybe this administration would not feel so emboldened to do all of these things. That’s the difference that that one moment in time really did make.

Leah Litman So what happens next? Judge Xinis has already acted quickly to modify the order to direct, quote, that defendants take all available steps to facilitate the return as soon as possible, end quote. She is going to clarify what facilitate versus effectuate is. The judge will likely examine whether the administration is actually attempting to facilitate return. She ordered the government to submit a declaration addressing the steps they had taken and were going to take and set a hearing on the matter. You know, she wanted the declaration and hearing on Friday after the order. The Department of Justice asked for an extension, surprise surprise, they’re dragging it out, although its request for an extention was bounced because it was filed by someone not admitted. DOJ eventually filed a document that basically said, we can’t answer any of your questions and they showed up to the hearing and said the same thing. Like we’ve said what we can say, they wouldn’t even answer questions such as you know where he is? Or can you say yes or no to whether you have done anything to try to facilitate his return?” For that reason, the judge found the defendants had failed to comply with her order requiring a declaration. The government said they could maybe put something together by Monday close of business, not like there’s any urgency here, and that something they put together might try to invoke a privilege to argue they don’t have to answer any questions. The judge said, I am ordering daily updates, you clowns. That’s a paraphrase. And it’s part of why I don’t want to give the Supreme Court credit until Abrego Garcia is returned. I think they felt some pressure to rule as they did. I think that is encouraging in some ways, but it also means we, like the greater public, needs to stay on them about this. So they can’t get these great headlines that’s like. Supreme Court rules against Trump administration without actually doing anything. Sides with prisoner, yeah. Exactly, exactly. Sorry, Kate.

Kate Shaw He was picked up on March 15th, right? We’re a month now.

Melissa Murray He’s been there for a month.

Kate Shaw Administrative error, the most horrific conditions, like every day, is a travesty. And so they need to move quickly.

Leah Litman Yeah, we’ve shit on the administration’s lawyering, I think deservedly so. I did want to give some credit to them. They managed to find a government action so repulsive, even Sam Alito was willing to give it an unqualified blessing. Are we sure about that? Well, maybe there were no noted dissents. Right. So anyways, I don’t want to be too much. Right, exactly. I don’ want to much of a downer like this is a relief. It’s something is better than nothing. But I just think a lot remains to be seen.

[AD]

Kate Shaw So that was a long discussion of how courts might remedy cases where individuals were expelled without due process and without judicial review. We also wanted to talk about the uncertainties in the Supreme Court’s initial order earlier last week in the AEA case, the one blocking Judge Boasberg’s decision. So specifically, how will the requirements of due process that the court announced must be observed in some fashion in these AEA cases, be policed or enforced. And what will SCOTUS say constitutes a quote, reasonable time and manner as will allow them to actually seek habeas relief. So just consider how immigration detention works. Sometimes your loved ones don’t even know you’re there. You don’t have a right to an attorney in most places in immigration proceedings. Declarations filed by immigration attorneys in some of these cases say the government doesn’t inform them that their clients are about to be removed pursuant to the AEA. What if you are, you know, snatched off the streets and don’t your phone? Like, how is the government informing people that they are going to be subject to the AEA Proclamation? What does the process for challenging that look like? What if individuals are shuffled between detention facilities? Like, these are the open questions.

Melissa Murray Well, I think there are also open questions about what would constitute a reasonable time in which to file a habeas petition. And in its brief submitted to Judge Boasberg last week, the government said, quote, nothing requires the government to delay removal to permit access to habeas on the aliens preferred timeline, end quote. And I mean, that suggests that under that logic, We don’t really know what they think a reasonable amount of time is. And it would be left to the court to flesh that out. And I’m not sure how at least five members of this court would come out on that question.

Leah Litman So let’s talk more about the requirement that these cases proceed via habeas petitions. So habeas petition generally proceed on an individual basis. That is, every individual, each individual argues their individual detention and possible expulsion is unlawful. And the law on using class actions for habeas cases is unclear. Class actions are where individual plaintiffs get a court to certify that they are litigating on behalf of themselves and others similarly situated, such that any ruling in their favor would apply to those other individuals who are similarly situated. Some courts of appeals have case law that permit habeas class actions. Others, by contrast, have cast doubt on them. And of course, this Supreme Court has been pretty hostile to class actions in general and to habeas corpus in general. and so I’m not confident that they would sign off. on using this class action device in the context of habeas petitions.

Melissa Murray The uncertainty about whether class actions can be used means that every individual person who has been detained has to file their own case to be sure that habeas relief would be clearly available. And given the way that lawyers have been acted upon by this administration, you have a dwindling pool of available litigation resources to bring these cases unless you’re willing. and able to aggregate them into the kind of class actions that would enable some kind of economies of scale here to be able to leverage the dwindling resources that are available.

Leah Litman And the prospect of having to pursue individual litigation in these cases is also concerning because, you know, as Kate mentioned, you don’t always have a right to a lawyer in immigration proceedings. And that just feels like it’s asking for mistakes to happen in some individual cases, for some individuals to fall through the cracks.

Melissa Murray No, all of us, but we should say that a habeas class action has now been filed and it has been certified in New York, but it was just certified as to those individuals who were detained in New york. So this isn’t going to be a class action if it is sustained and the class certification is sustained that will apply to all of the individuals who are subject to these proceedings. Some plaintiffs also obtained a TRO in Texas that applied to themselves and other individuals who were detained in the same facility in Texas. And those are encouraging developments, the idea of aggregate litigation in these isolated places. But we’re still waiting to see what the appellate courts will say about whether aggregate litigation or class actions in the context of habeas are actually permissible.

Leah Litman Yeah, so as Melissa noted, the New York case was confined to those individuals detained in New York. And that’s because these cases are happening via habeas petitions, the habeas challenge has to be filed where you are detained, which is going to mean Texas or Louisiana in a good number of cases, because that’s where the government is expelling people from and moving them to as it’s shuffling them around immigration detention facilities. And that means there’s a possibility that Judge Kacsmaryk’s courtroom like. could be a deportation factory. America’s top research scientists will also be moonlighting as America’s sub-vice chief border czar slash I don’t even know what, and any check on those judges’ determinations about whether someone is a member of TDA, whether due process has been provided, whether these are lawful uses of the Alien Enemies Act will happen in the Fifth Circuit. And that, to me, is part of why this process is a potential nightmare. and We already kind of talked about how the ruling in the Abrego Garcia case left some wiggle room as to what courts could actually do, what they could require the administration to do. And to my mind, the court channeling these AEA cases to habeas petitions is quite similar to their ruling in The Department of Education case that Kate briefly mentioned last week. That’s where the Supreme Court paused a lower court ruling that had halted the administration’s funding freeze of teacher training. Grants and in that case the supreme court didn’t say that what the administration was doing was legal Instead it bought the administration more time to carry out its illegal policy by forcing plaintiffs to litigate in less favorable fora before the court of federal claims rather than in federal district courts and This the shift to habeas like is not a minor technical change You know what the court did makes it more difficult to restrain trump’s arbitrary detentions and expulsions

Melissa Murray OK, so all of this is absolutely horrific. The court has not clarified anything, really, and it’s actually maybe made some of this even more complicated going forward. And you add that onto the fact that in the future, going forward, there’s likely no criminal liability for the president in these circumstances because of the court’s decision in Trump versus United States. This would, I think, fall into the realm of official acts for which she is not criminally liable. So that’s a problem. And then you layer on top of that, you have the White House press secretary, Caroline Levitt, essentially confirming that it may not stop with these non-citizens, that the administration is actually looking into whether they can expel American citizens to foreign prisons. So take a listen.

CLIP So, the president has discussed this idea quite a few times publicly. He’s also discussed it privately. You’re referring to the president’s idea for American citizens to potentially be deported. These would be heinous, violent criminals who have broken our nation’s laws repeatedly. And these are violent, repeat offenders in American streets. The president has said, if it’s legal, right, if there is a legal pathway to do that, he’s not sure. We are not sure if there isn’t. That’s an idea that he has simply floated in. has discussed very publicly as in the effort of transparency.

Melissa Murray Basically, Caroline Levitt said this the day after Justice Sotomayor wrote in her dissenting opinion from the court’s AEA order, quote, the implication of a government’s position is that not only non-citizens, but also US citizens could be taken off the streets, forced onto planes, and confined to foreign prisons with no opportunity for redress if judicial review is denied unlawfully before removal. So that’s horrifying. And to be very clear, that wouldn’t be a deportation or a removal. That is just straight up. Kidnapping and human trafficking and apparently

Kate Shaw We’re looking into it. Yeah, but looking into if we can do it legally. And so that I think is where the sort of public discourse is so important. Like, no, you can’t, there’s no way to do it illegally. So look into it all you want. The answer is the set is zero that allows you to do legally and everyone needs to be communicating that message in no uncertain terms.

Melissa Murray He who saves his country breaks no laws, Kate. You little optimist, checkmate.

Kate Shaw Well, hopefully not from your lips to God’s ears, Melissa. Okay, so Leah, we’ve all been waiting patiently for you to school us on what the court says about why habeas rather than the Administrative Procedure Act is the right way for these challenges to proceed. So what did the court say about that? And can you count the ways the court was wrong in what it said?

Leah Litman The limit does not exist. So the justices say these cases have to go through habeas because the challenges supposedly go to the core of habeas. That is descriptively wrong, and they engage in a wildly misleading, if not flatly wrong, use of the relevant case law. So first, habeas corpus literally means have the body. It is a way of calling into court individuals who are detained and questioning the basis of their detention. And the two primary cases that the per curiam opinion as to why these cases fall within the core of habeas. Those other cases are about people who were serving state criminal sentences and how, in order to challenge their convictions and sentences, they had to use habeas rather than general civil rights statute. And it’s like, yeah, no shit. When you’re challenging your criminal conviction and sentence that goes through habeas, but that’s not happening here. These individuals are not seeking relief or release from a sentence or conviction. and The Procurium opinion refuses to acknowledge other cases where they have previously said that challenging removal and specifically transfers to another country cannot happen in habeas. So the court’s recent decision in Thricegium had said, quote, habeas is at its core a remedy for unlawful executive detention. And what these individuals wanted was not simple release, but an order requiring them to be brought to this country. claims so far outside the court of habeas may not be pursued through habeas. Then there is the court’s previous decision in Munaf, where the court said habeas is not appropriate when claimants seek to preclude transfer to another sovereign, so that there they may face criminal charges. And the court once again reiterated that habeas at its core a remedy for unlawful executive detention, and that the typical remedy for such detention is release. Quote, but here the last thing petitioners want is simple relief.

Kate Shaw Right, they’re not challenging their detentions as the habeas petitioners in these other cases were doing, right?

Leah Litman Um, many are not even challenging their removability They are just challenging whether they can be summarily expelled under the AEA. They’re not saying the government can’t detain them for immigration reasons. They’re, not saying The government can’ t remove them. Yeah, it’s just you can’t summarily expel Me under the AEA and of course because we are in the worst timeline we got a Kav-currennce in that AEA case that was like Sure, I’m making it harder to challenge wildly illegal, extraordinary renditions to a foreign torture prison, but I’m still a reasonable, nice guy. It’s a paraphrase. But he cited this other- He also said, I am a father of daughters. Yeah. He cited this case, Lobue, to say that in extradition and foreign transfers, habeas is the appropriate vehicle. But Lobue was an extraditon case and said that removal challenges didn’t have to go through habeas. It’s like. This is why I thought, like, are you being intentionally species?

Melissa Murray Well, the question about whether they’re being intentionally specious continues to dog us. So let’s circle back to what all of this means for the court and what it might say about the court’s posture toward the Trump administration and whether it will be in a position to hold this administration accountable. So one very distinct possibility is that maybe the Republican justices are just not that concerned with what the Trump Administration is doing. They’re just not alarmed by the fact that the government. disappearing people from the United States. Because if you were actually concerned, you probably wouldn’t make it more difficult to challenge those disappearances and removals. And Justice Sotomayor basically wrote this in her dissent from the court’s AEA order. She said, quote, history is no stranger to such lawless regimes. But this nation’s system of laws is designed to prevent, not enable, their rise, end quote.

Leah Litman And another possibility is, as we were alluding to before, these are face-saving measures. They allow the administration to do what it’s doing without the court having to say what the administration is doing is legal. But the justices are making it impossible to remedy or enforce any legal requirements, at least completely or meaningfully. I think that is a through line in the AEA case, Abrego Garcia case, and the Department of Education. And I wanted to also flag another explanation that Justice Jackson had alluded to in her dissent from the court’s ruling in the Department of Education case. So she wrote, quote, other than paving the way for the plaintiff state’s immediate suffering, it appears that the primary effect of today’s emergency stay is to hand the government an early win, a notch in its belt at the start of a legal battle, end quote. She’s basically saying the court is, once again, in the bag for Trump trying to help him with optics by balancing out their rulings and again, that is gross.

Kate Shaw It also felt like this week might have provided new meaning to the Chief Justice’s statement that the proper course for rulings you disagree with isn’t impeachment but appeal. Right, remember people interpreted that statement at the time as a clear rebuke of Donald Trump, but you do have to wonder after this week whether that hits a little bit different. Like was the Chief Justice just saying don’t make all this fuss about impeachment but we will just correct the rulings for you if you follow the orderly appeals course. And that kind of interpretation called to mind the exchange between Trump and the Chief Justice from the State of the Union, which we will replay here to refresh your recollection.

CLIP Thank you again. Thank you, again. Won’t forget. It’s so good.

Melissa Murray Never forget.

Kate Shaw Nope.

Leah Litman Yeah. So I want to emphasize that in these orders, both the overall AEA case and the Abrego Garcia case, there is no mention of the government’s conduct in these cases. And the fact that the government has been obstructing courts, in some cases not complying with court orders, and that just does not seem to have entered the calculus about weather. the government was entitled to extraordinary relief, or whether the court should make an assertive stand rather than cower in the face of these threats to the rule of law.

Melissa Murray That’s actually a really good point, Leah, that these orders are public records where you document what is happening and the court has sort of abdicated its role as sort of the scribe for this moment by just glossing over that.

Leah Litman [AD]

Melissa Murray So SCOTUS hasn’t just been on the immigration beat, it’s also been doing a lot of other stuff. So the court stayed the district court’s injunction in the case challenging the Office of Personnel Management’s directive to fire thousands of federal workers. That was a decision out of the Northern District of California, and it required the federal government to rehire thousands of employees. That decision is no longer in effect. The court said that the plaintiff nonprofit organizations that brought the case had failed to establish standing in that case, meaning they had not established that they’d suffered a cognizable injury because of the government’s actions. Justices Sotomayor and Jackson noted their dissents in that order. And at least for some period, other injunctions on similar issues were still in effect, that is, until the Fourth Circuit stayed the order requiring the federal government to rehire federal workers in a case out of Maryland.

Kate Shaw Okay, we now want to just quickly take through some general legal culture. One, just a note that we haven’t made in the Abrego Garcia case. DOJ put on administrative leave the lawyer in the immigration division who conceded that Abreco Garcia was erroneously deported and also said during a hearing that he was asking the federal government to secure his return. This was apparently impermissible from the perspective of the political leadership at DOJ. who put him on leave as well as his supervisor for ostensibly failing to supervise a subordinate. The message is clear and it is chilling. The only obligation DOJ attorneys have at this point in time is to tow the party line.

Melissa Murray It also seems that Stephen Miller has filed something in the Supreme Court. We’re just joking. That not maybe Stephen Miller. Well, I don’t know. You’ll see. So John Sauer, the lawyer who argued for President Trump in his immunity case before the Supreme Court, was recently confirmed as Solicitor General. Yes, we continue to be in the absolute worst timeline. And one of his first filings before the court as SG was a brief requesting relief from the lower court’s decision ordering the government to return Mr. Abrego Garcia to the United States. And the brief reads like a kind of Stephen Miller slash Andrew Tate melange slash fever dream slash fugue state. And after those two got in and wrote the substance of it, some DOJ lawyers apparently decided to step in and make it look lawyerly by adding some footnotes and citations. The brief describes Mr. Abrego-Garcia as, quote, a verified member of MS-13, which would still not make him subject to the Alien Enemies Act. It also provides no evidence for that statement. And indeed, the Fourth Circuit said that the government, quote, presented no evidence to the district court to connect Abrega Garcia to MS- 13 or any other criminal organization, end quote. And the government subsequently abandoned its position that Mr. Obrego-Garcia was a danger to the community at that district court hearing. So, my bad. No probs.

Leah Litman So the Associated Press also obtained the two-page memo in which Secretary of State Marco Rubio, who Democrats unanimously confirmed, laid out Rubio’s rationale for determining why lawful permanent resident Mahmoud Khalil’s presence in the United States poses an adverse threat or force to United States foreign policy. Khalil is the Columbia student, the lawful, permanent resident who was swept off the street. The memo comes close to admitting, or at least strongly implies, they are expelling Khalil for his beliefs. We had expected the administration would try to manipulate things and obscure that they were deporting him for speech and ideas. And instead, they seem more comfortable just cozying up to full-on censorship and viewpoint discrimination. It says, quote, participation and roles, end quote, in protest, which they characterize as anti-Semitic. we know that is partially tied to the substance of the views being expressed at the protests, are what justifies Khalil’s removal. And it goes on to confirm that by suggesting Khalil presence is inconsistent with United States policy on anti-Semitism, and then ICE, Immigration and Customs Enforcement, decided to just become full-on thought police, you know, posting and then deleting from social media that they were stopping illegal quote ideas from entering the country.

Kate Shaw Another development, the full DC Circuit reinstated a lower court decision that had blocked the administration from firing the heads of multi-member commissions. So those firings definitely violate congressional statutes that are constitutional under the Supreme Court’s decision and Humphrey’s executor, the 2-1 DC Circuit panel, had effectively decided that Humphreys executor which upheld independent multi-members commissions like the FTC and the NLRB was no longer good law. So. Good news, though short-lived, the en banc Court of Appeals for the D.C. Circuit recognized that Humphreys is still the law of the land, and that lasted for just a minute because then-Chief Justice Roberts subsequently stayed that en banc ruling.

Leah Litman So this issue, the future of Humphrey’s executor and independent multi-member commissions is certainly headed to the Supreme Court.

Melissa Murray Seems like a perfect time, given all of the great economic activity we’ve been engaged in, how our economy is booming. And we’re making America great again through tariffs. Seems like it’s a really good time to revisit Humphrey’s executor and maybe take down the Fed.

Leah Litman Yeah, let’s liberate ourselves from a stable economy in multiple ways.

Melissa Murray Yeah, sounds good.

Kate Shaw John Roberts is on I guess.

Leah Litman Liberation month. Liberation year

Melissa Murray We’re joking, obviously, because if the Supreme Court did overrule Humphrey’s executor, that would open up the president to the possibility of firing members of the Fed, which really would, I think, devastate the economy.

Kate Shaw Well it certainly opens up the possibility although of course as Elena Kagan recently said, ah maybe they’ll find a way to exempt the Fed from whatever ruling they hand down because it’s just too important or whatever. So we will see.

Melissa Murray Or whatever, maybe.

Kate Shaw But the possibility is absolutely out there. The Supreme Court could say things that, by their terms, definitely either throw into question or doom-fed independence at this moment in our national and global lives.

If the tariffs won’t do it, overruling Humphrey’s executor will. Make America Great again.

Kate Shaw Indeed.

Leah Litman So of course, of course of course after we wrapped recording on Friday we got a late Friday night decision. Really a Friday night democracy massacre out of the North Carolina Supreme Court which we previously referred to as the new Yolo Court Rising. The decision came in the lawsuit by Jefferson Griffin, the person who ran for and lost an election for North Carolina Supreme Court Justice and is now seeking to disenfranchise thousands of voters and steal a seat on the of Carolina Supreme Court. Utterly outlandish, horrifying decision by a 4-2 vote, the North Carolina Supreme Court disenfranchised threw out the votes of a few thousand voters. The court said that these few thousand votes from military and overseas voters would be retroactively nullified unless the voters provided their photo identification in the next 30 days. The decision is wildly illegal. It is basically January 6th in ropes as Justice Anita Earls wrote in dissent It is no small thing to overturn the results of an election in a democracy by throwing out ballots that were legally cast. Some would call it stealing the election. Others might call it a bloodless coup. But by whatever name, no amount of smoke and mirrors makes it legitimate.” End quote. As Justice Earls indicates, and as we’ve said before, the North Carolina Supreme Court decision embraced an argument that retroactively changes the rules after an election. The voters, when they voted, were not told they had to include driver’s licenses photo IDs so they didn’t, and now the North Carolina Supreme Court says, we’re going to throw out your vote because it doesn’t comply with a rule we just discovered after an election that the Republican candidate just happened to lose. That is basically the prototypical example of a due process violation, being deprived of liberty without due process, without notice. If that weren’t enough, the North Carolinas Supreme Court embraced this challenge which only concerned voters in a few counties. Which counties, you ask? No surprise, Democratic-leaning ones. Applying different rules to voters in different parts of the state is, again, almost definitionally a denial of equal protection of the laws, so another federal constitutional violation. Justice Allison Riggs, the person who won the election for North Carolina Supreme Court justice, has already moved for… a preliminary injunction, an expedited briefing schedule in federal court, in a case challenging the state court’s nullification of votes. Other lawsuits, perhaps by disenfranchised voters, maybe by the North Carolina Board of Elections, might follow, but this decision by the NC Supreme Court is unlikely to be the last word. It’s likely that federal courts, and ultimately the United States Supreme Court, will decide whether the NC SC decision, nullifying thousands of votes and stealing an election, will Stay tuned for the next big shadow docket decision. Is it legal for courts to steal elections for Republicans? We are about to find out.

Kate Shaw Okay, we got one more truly bizarre executive order that we wanted to flag. This one rescinds regulations defining shower heads, accusing along the way the Biden administration of making the water pressure not so great. And so our shower’s worse. And this is the part that we want to flag, the executive order said, quote, notice and comment is unnecessary because I am ordering the repeal. The rescission will be effective in 30 days. so That’s not how it works ever, right? The administration is not supposed to be able to just say, we don’t want to do notice and comment rulemaking and the president gets a pass. But, you know, they’ve made clear they think executive orders can override statutes. And so I guess they’re just doing explicitly what they have implicitly done in many executive orders. But they also issued another executive order saying notice and comments isn’t necessary if they rescind a regulation on the basis that they think the regulation is illegal.

Leah Litman Yeah. And you know Kate mentioned this is just part of a pattern of them asserting that executive orders can trump statutes. And is this just the latest iteration of the unitary executive theory, where the executive is unitary, not just across time and space, but also unitary in that it gets not just the executive power, but also the legislative power too? This truly would be another reason why it’s a great time for the Supreme Court to overrule Humphrey’s executor and go all in on presidential power and the unitarian executive theory. That too is a joke OK, so before we go, I wanted to give a brief shout out to a student I met at Hess Week, Brooklyn College, Matthew. We talked about his evolution and his views about the court and the law. And it was really wonderful to hear. And on my trip back, I want to give a shout out to Todd, who I met on the airport shuttle and is apparently a friend of the pod. So thank you both for listening.

Melissa Murray That’s the news, all the news we have time for today. We obviously could have done more on tariffs, but you know how that went. We’ll come back to it at another time. But right now we have an absolutely terrific conversation with Deborah Archer about her new fantastic book, which drops tomorrow, Dividing Lines. That’s up next.

Leah Litman [AD]

Leah Litman As you know, we’ve been very interested in all of the ways that real world slash road rules alum slash lumberjacks slash transportation secretary, Sean Duffy is reorganizing our roadways and airways to make America great again slash make planes fall from the skies. But I’m not sure we’ve even scratched the surface of how this administration might use the Department of Transportation to further entrench inequality in the United States. in part because I’m not sure we think about all of the ways that to date transportation infrastructure policy has helped to entrench inequality in our society.

Melissa Murray Which is why we have invited today, Deborah Archer, to join us. Deborah is my colleague at NYU, where she is the Margaret B. Hoppen Professor of Clinical Law, the Associate Dean for Experiential Education and Clinical Programs, and the Faculty Director of the Community Equity Initiative. She also happens to be the president of the American Civil Liberties Union. You know them as the ACLU. And most importantly, for our purposes today, Deborah is the author of a terrific new book called Dividing Lines: How Transportation Infrastructure Reinforces Racial Inequality. Welcome to Strict Scrutiny, Deborah.

Deborah Archer Thank you for having me.

Melissa Murray This is so weird, Deborah, it’s like you’re my work wife and now you’re at my other job.

Deborah Archer You, I am, I am the best work wife to ever do it.

Leah Litman I feel like I’m in a conjugal podcast. I’m going to work conjugal podcast, just like, you know, our episodes with Chris are kind of conjugal podcast so.

Melissa Murray She’s talking about Chris Hayes, our former roadie, who’s really done well for himself at MSNBC. We occasionally do cross-over pods.

Deborah Archer I’m sorry, Leah, that I am definitely work wife number one. I’m sorry.

Melissa Murray She really is.

Leah Litman It’s OK. I’m not in New York. I’m in New york. I recognize that that has certain consequences for me. So it is what it is. But don’t worry, Leah. Maybe we can shift to the book now and leave work wife talk for a second. No, OK, we can stay on work wife.

Melissa Murray If you’re jealous, Leah, just say so. You don’t have to be so snarky about it.

Leah Litman You know I have intense FOMO when you and Kate talk about planning things in New York. So my FOMOs already through the roof. Which is why I’m very happy to have the chance to actually be able to talk to Deborah and about her book as well.

Melissa Murray I’ll allow it.

Leah Litman Thank you, Melissa. Over the last 10 years, the progressive community has talked a lot about structural inequality. But a lot of those conversations have focused on the enduring impact of historic inequalities like enslavement and segregation, like the continuing effects of long ago practices. but in Dividing Lines. you argue that the literal structure of inequality is all around us, in the highways and streets that we travel and the way our public transportation is routed. So if the literal infrastructure of our lives has contributed to our unequal society, why have we failed to notice it?

Deborah Archer People often focus on government-sponsored segregation, such as racial covenants and redlining. But when we expand our understanding of what government- sponsored actions contributed to segregation, it’s clear that it’s not just these invisible lines that were created by local, state, and federal law that are dividing us. It’s also the physical, the literal lines that run through and around our communities. and they’re lines that may seem innocuous or practical or necessary or natural, but they’re really part of the architecture of racial inequality. The nation’s transportation system is an essential element of that architecture.

Leah Litman Just to give an example from a prior conversation we had when we talked to Michelle Adams about her book, The Containment, she brought up a literal segregation wall that existed to separate different neighborhoods in Detroit. So Deborah, could you give just another example maybe to make it concrete for our listeners about some of the ways in which either public transportation or infrastructure kind of segregates along racial lines?

Deborah Archer our highways, our roads, our trains. They represented progress and mobility and connection, but they’ve also served as tools of displacement and exclusion for black communities. And in the 20th century, many city officials used transportation infrastructure as a powerful tool to enforce white supremacy. So as the civil rights movement began to win victories and segregationists could no longer consistently rely on the law. to enforce racial hierarchy, communities around the country began to rely on transportation infrastructure, on highways and public transportation and roads to do that work of oppression and exclusion and division. Mentioning Michelle’s work around education, one of the connections is the decision in Brown versus Board of Education. So Brown versus the Board of education, as I’m sure all of your listeners know, was decided in 1954. And it held that separate education by races could not be constitutional. Separate could never be equal. And we know the ways that state and local officials show that they were going to use every tool available to them to hold on to their way of life. They were going go to extreme methods. So against this backdrop of Brown versus Board of Education in 1954, we have the Interstate Highway Act passed in 1956. and that facilitated the creation of our highway system. And rather than building our highway system against this backdrop of the promise of connection and equality, instead it was built as a segregationist tool. And in the book, Dividing Lines, I tell the story of highways in Birmingham, Alabama, in Atlanta, Georgia, in Indianapolis, Indiana, in Nashville, Tennessee, and in Miami, Florida, which were all powerful examples of how the highway became a tool of a post-Jim Crow segregationist agenda. Communities were explicit. They were going to build a highway in this location in order to continue their way of life.

Melissa Murray Can I pick up on that? The cities that you just mentioned, Birmingham, Miami, they’re all southern cities. But you actually begin the book on a personal note in Hartford, Connecticut, where you grew up and you talk about your family’s decision to leave inner city Hartford for a home in the suburbs of Hartford in the 1970s. And again, this is after the Supreme Court has formally dismantled segregation. And it’s in the north. But you talk about how your family really experienced this legacy of transportation and justice and continued to experience it for some time. So could you say more about how your family’s own experience shaped your approach to this book and some of the problems that you chronicle?

Deborah Archer Transportation shaped us, our communities, there in a way that people often think about. We were surrounded by highways, surrounded by major roadways. Our streets weren’t safe. We lacked access to public transportation that would get us to the opportunities in the suburbs, to the jobs in the suburbs. To the educational opportunities in the suburb. and having highways and roadways criss-crossing our community had impacts. on health and well-being, on happiness. I talk about not being able to ride my bike in the street because we had cars racing up and down. We didn’t have walkable sidewalks. And eventually my family was able to save money and navigate the invisible lines that we had that divided folks, right? When they tried to move, they weren’t shown various houses. They were continually showed houses only in black communities. And they were. having trouble getting a mortgage, but they were able to eventually cross that invisible line and get us to a suburb, Windsor, Connecticut. It showed how disconnected suburbs are from cities because we were having a difficult time getting back to seeing our family and friends in Hartford because the bus didn’t want to stop in Hartfield. They didn’t want to connect the suburbs to the city. It made it difficult for us to my father to get to work, for example, without buying a car because public transportation wasn’t available. When I was writing this book and talked to people about this research, a common refrain was, it’s just a road. And I think that’s the reaction I got, it was the reaction that Secretary Buttigieg received when he talked about these issues as well. And certainly it’s a road unless your community is the one that targeted. It’s your homes and community institutions and businesses that were destroyed. It’s just a road if it’s not your people and community being robbed of wealth and economic foundation. And it’s just the road if it’s you who’s having difficulty just living your life and getting to the essential components of our lives.

Leah Litman In the book, you acknowledge that many groups have been harmed by transportation policies, but you made the choice to focus on the harms done to the Black community in particular. Can you tell us why you made that choice and what we might say about the impact of transportation injustice on other marginalized groups?

Deborah Archer White supremacy depends on black people knowing what we perceive to be their place in the social hierarchy and then staying there. And it’s been clear throughout history that one of the most effective means that white supremacy had of ensuring that black people knew their place socially was to keep them in their place physically. Penning them in, constraining their movement, determining where they can or cannot live or walk or rest or play. And transportation has played a critical role in that. I think that you can’t tell the story of American’s second reconstruction without mentioning the 1954 Montgomery bus boycott, the Freedom Riders who tested the right to interstate travel. Few communities have the stories to tell that black communities do of the way that the governor of the state promises explicitly to white communities that we’re gonna use this highway to keep you safe from black migration. or in Birmingham, Alabama, where the highway replaced racial zoning laws. So they had racial zoning law that said black people could live on this side of the street and white people had to live on the other side of this street. And when racial zoning was struck down, they replaced that tool with highways. And in many places along I-59 and I-65, the highway follows the exact lines of the racial zoning.

Melissa Murray And now, as you know, and I think it’s a really powerful rejoinder to those who want to think about the structure of racism being mostly an historic event, we are continually building on those histories and re-inscribing them, often through transportation policy. But you also note that transportation infrastructure choices actually blunt efforts to turn the tide on racial discrimination. So you talk about the Civil Rights Act of 1964 and the Fair Housing Act of 1968, and both of these measures were statutes intended to fuel social integration, to break down racial barriers. And you suggest in the book that what really undermines them is transportation policy, and no one really appreciates the way that that happens. So can you say more about about how?

Deborah Archer So even as we’ve tried to take other methods to ensure integration, to use the Fair Housing Act and other tools to challenge racial segregation, segregated laws, to challenge redlining, to challenge discrimination around mortgage lending, it is as if the folks who built our transportation infrastructure, the highways, the roads, public transportation. even pedestrian infrastructure knew that there was some kind of a genius in using these physical tools to perpetuate the exclusionary impact, understanding that a highway or a road would outlast existing laws that were facilitating racial exclusion in case they might get struck down, but also was able to skirt future laws that promoted integration. So, while we have… the Fair Housing Act and other laws helping us to provide tools to integrate our communities. Transportation infrastructure still keeps people locked out and left behind. It still keeps economic opportunity from coming into predominantly Black communities. It makes it difficult for people to move to suburbs where there are better education opportunities where it’s safer if they can’t. catch a train to get back and to work into the city with the economic opportunity. That’s one of the challenges that my family faced when we moved from Hartford to Windsor.

Leah Litman Just picking up on that, what you were saying about transportation policy being so permanent that it blunts the effect of pro-integration measures made me think of a case that the court is actually hearing this term, Louisiana versus Calais, and how it draws from Allen versus Milligan. Because in those cases, the court, of course, is considering the Voting Rights Act and Section 2 of the Votting Rights Act. And you have some justices suggesting that maybe Section 2 of the voting rights act should sunset such that we don’t actually need race conscious redistricting measures.

Melissa Murray We’re in a post-racial world, Leah. I think you need to get hip to that.

Leah Litman There’s that, but one way in which it is just ludicrous to imagine districting without some race consciousness is because if you have infrastructure actually dividing states, localities, municipalities along lines of race, then it’s a fool’s errand to try to think about traditional districting criteria without being cognizant of how they draw from and replicate existing racial hierarchies, right, and segregation. So, sorry, that just kind of connected in my mind, Debra. But could you talk more about some of the lasting impacts of transportation and justice on our society and how this might play out in everyday life?

Deborah Archer When you were talking about the voting piece of it. There are cases where part of the defense in how they’re drawing lines is because that’s where the highway is. That’s where these major roadways are, without acknowledging that those highways served a discriminatory purpose, that they divided communities in half, that the separated black folks from white folks. And so kind of building on that by defining our voting districts based on those secretary infrastructure is really problematic. But thinking about the lingering impacts today, these wildly successful efforts to segregate our communities by race using transportation infrastructure has led to disproportionate environmental threats. It has led poor physical conditions within communities, a lack of access to many of the traditional levers of success within predominantly black communities and other communities of color because after racial segregation became the official. And then the unofficial law of the land based on transportation infrastructure, many black communities then faced systemic under-investment in their communities, right? They viewed that highway, that road as a line of demarcation, not just for the residents not to cross. But it was also the line where communities weren’t gonna pick up the trash. It was also line where we weren’t gonna fix your water infrastructure. And so, it facilitated this underinvestment that reached havoc on communities, stripping them of wealth and health and opportunity. So after decades of living in communities that were built on a foundation of structural racism, entire communities now are suffering from the concentration of poverty and disadvantage. It’s a thread that connects all the residents living there. It is connected environmental, economic, social. and political vulnerabilities that leave these communities without resilience, without resources, without access to opportunity.

Melissa Murray So can I ask a question, I guess, about how do you respond as a civil rights lawyer to those kinds of injuries, some of which I think are very clearly quantified and some that may be more in co-weight? You’ve brought a lot of litigation in the course of your career. You’ve been a lawyer with the ACLU. You’ve a lawyer at the NAACP Legal Defense Fund. And now you run a clinic. How do you challenge? the kinds of injuries that arise from transportation injustice, when the fact of a highway may on its face appear to be a very neutral kind of enterprise.

Deborah Archer Some of the civil rights tools that we have today are simply not designed to help address these challenges. So there are powerful laws, the Equal Protection Clause, Title VI, the Fair Housing Act are all really powerful in many ways and have been able to facilitate racial justice and inclusion for black communities. But they really aren’t up to the task of challenging inequality in our transportation system, one, because they take the inequality that we experience today as a neutral baseline, and they’re looking at what we’re layering on it without really taking into consideration everything that’s happened over decades and decades. What’s really going to help these communities is for us to get ahead of those decisions, engage them, involve them, and put racial justice at the core from the beginning. And as I’m sure you all know, those laws are. often looking for a smoking gun, or focused on intentional discrimination, they wanna identify the bad actor. And that’s really not the way that transportation infrastructure decisions work. I think a shift in national transportation policy, including re-imagining how we use transportation infrastructure to serve and support communities of color is important. We need to do the work to unearth and address the racism that’s deeply embedded in transportation policy. and redress the decades of harm. On the point of community decision-making, we need to explore the dynamics and models of community control to make sure that all of the stakeholders are at the table and have a meaningful opportunity to shape what’s happening in their community and to their community.

Melissa Murray So Deborah, you just said something, and it reminded me of an opinion that Justice Clarence Thomas wrote as a dissent to the court’s decision in Kelo versus City of New London. Kelo was a very prominent eminent domain case. The City of new London used eminent domain to seize property in order to do a redevelopment project of an area of New London that had, according to the city, become quite blighted. The court upheld the use of eminent domain in that context. And Justice Thomas wrote this dissent that was very racially inflected, although race wasn’t a central issue in Kelo. And he argued in that dissent that it’s often black communities that are on the receiving end of the short stick of redevelopment. They always get the dregs of this. These redeveloped projects are done in the name of improving communities, The Black community rarely, if ever, gets to benefit from this. He’s making a very racialized argument. How do you think someone like him would respond to the arguments that you’re making in dividing lines about the entrenched racialized nature of transportation policy? I mean, because he is often a justice who can’t see the disparate impact of seemingly race-neutral policies. but it seemed clear in Kelo that he understood the impact of redevelopment on certain communities.

Deborah Archer And eminent domain and urban renewal went hand in hand, right, in leading us to this place where we have public transportation system, where we had highways that have targeted black communities and have removed wealth from those black communities because with eminent domain, the government’s exercising its power to take your private property for public use. They say that they’re going to give you just compensation. but for Black folks. that compensation was never just, it was never enough. And so it worked hand in hand with those urban renewal programs to destroy and remove black communities and black wealth. Just thinking about the impact that urban renewal and eminent domain had on black communities, James Baldwin in a speech that he gave said that urban renewable means Negro removal. And that is because as you say, Justice Thomas articulated black communities were disproportionately targeted. And so I love that he recognizes that black communities were disproportionately targeted. But the disconnect is then that you don’t understand the reason why you have to focus on race in order to repair that harm. It cannot be that we know that race was the tool that created this system, that race it was the common thread, the intent to hurt black communities and black people, but then not think that we cannot consider racial equity in crafting. the solutions.

Leah Litman Since around, I don’t know, November 6 or so, ideally it should have been happening earlier, we have been talking a lot about what it takes to have and maintain a thriving, multiracial, inclusive democracy. And throughout the book, you focus on the way that transportation justice is a necessary precondition for democracy. Of course, under the last administration, Secretary Pete Buttigieg to the Department of Transportation was more attentive to the role that infrastructure can play in contributing to inequality and remedying inequality. Now under a new administration, things are likely to be different. So what are some ways that you foresee this administration using transportation policy to make America great again? And what can ordinary people do to fight back? Fight back against all that greatness.

Deborah Archer During his confirmation hearing, Secretary Duffy’s only reference to racial justice was to criticize diversity, equity, and inclusion hiring efforts in the transportation industry. He did not address transportation’s role in perpetuating racial inequality or its potential to expand opportunity or what they were going to do in order to reconnect communities, to make…

Leah Litman Can I interject really quickly just right here. I know one of the first things Secretary of Duffy did was adopt his own little DEI policy, in which he said he wanted to allocate highway funds, in particular to communities with higher marital and natural birth rights. That is its own kind of thing.

Deborah Archer But we have all of these policies that are seemingly neutral on their face that will have a racial impact, which will deepen racial inequality because those communities are not going to get the funds that they need and deserve and were promised. So the Trump administration has initiated, as you know, this comprehensive review and suspension of certain programs within the bipartisan infrastructure law, particularly those emphasizing diversity, equity, and inclusion. those focus on environmental justice, those focused on racial equity. And there was an executive order that directed federal agencies to pause disbursement of funds that were already promised to communities. The current administration is redirecting funds away from programs that are designed to address racial equity and support underserved communities. But as we rebuild, we have a choice to make. we can. make a choice that exacerbates past harms by continuing to make infrastructure development choices that benefit some communities at the expense of others, or we can choose a new path and use this opportunity, this crossroads in the American transportation system, to build America’s transportation infrastructure differently, to, as they say, build back better. And there’s nothing that this administration has said that brings me comfort. and believing that they’re going to center these questions and concerns, center these communities as we engage in this large-scale reinvestment in transportation.

Melissa Murray OK, well, that’s grim, Deborah. We try to end these episodes on a somewhat hopeful note. Although, as you’ve suggested with that last answer, it’s really getting hard to do these days. But I’m going to persist nonetheless. Can you tell us what brought you to this fight and what’s keeping you in it and what gives you hope that ultimately we will prevail?

Deborah Archer So what’s giving me hope is the same thing that brought me to this work. And it is communities who want to fight back together, who have come together to dream of something different, who want build something different and they’re willing to do the work to fight for something different. And so they’re using incredibly creative mechanisms in their communities to get people involved, to get us to focus on these issues and to force change. and they’ve had such incredible impact. There are stories of success all around the country, stories of communities like those in Indianapolis and those in Rochester that are fighting new highway projects and forcing them to be built in a way that respects the integrity, the history, that values the community, that values, the health and wellbeing of the people who live there. And there are communities like those in New Orleans and other communities on the country that are reclaiming. harmful infrastructure projects and turning them into something beautiful, into places of art and community and gathering, places where they’re coming together for community markets and community events, holding yoga sessions underneath an overpass that has harmed the community for decades, but they’re trying to bring something beautiful and positive to it. And if those communities can wake up every day and say that they’re going to demand better and fight for better, demand more. then the least that we can do is to join them in that fight and bring the tools that we have to support their efforts to live joy-filled lives, to live choice-filled lives, to live happy and healthy lives.

Leah Litman That is a terrific note to end on. Again, the book is called Dividing Lines, How Transportation Infrastructure Reinforces Racial Inequality. And it drops tomorrow, Tuesday, April 15th. So make sure you run out to your favorite bookstore to grab your copy. Deborah Archer, thank you so much for this terrific book and this really illuminating conversation. Thank you for having me. Finally, let’s end with some things we read and liked this past week. So I will start. Deborah Archers dividing lines. Also in the last week, the signs that I read at the hands-off protests were fantastic. Some of my personal favorites were so bad or so messed up, even introverts showed up. I felt very seen by that. Also liked they’re eating the checks, they’re the balances and we’re all the couch now. So those were just some. And then two other pieces, one in the nation called Why Universities Must Start Litigating and How by David Posen, Ryan Dorfler and Sam Baggenstos. And then another related one, Adam Unikowsky had a post at his sub stack, The Case for Suing.

Kate Shaw I will just throw in two others. One, Princeton’s president, Chris Eisgruber, did a daily interview, the New York Times Daily podcast called The Daily, last week that I thought was excellent. He’s really been a singular voice out there standing up for academic freedom and against this administration’s attacks on higher education. I also started reading Michael Lewis’s new book, Who is Government? And his last book, maybe he’s written others, but a recent book of his called The Fifth Risk was really amazing, sort of peek inside. some of the wonderful work done by civil servants in government. And this is kind of a follow-on and it’s also the product of these essays that Lewis and others ran in the Washington Post last year, just about civil servants and the incredible, invisible work that happens inside government. And I think that those kinds of narratives are such an important corrective to the wild mischaracterizations of the work of government that Musk and DOGE and his administration are, you know, sort of pushing all the time. So highly recommend it.

Melissa Murray Okay, things that I loved this week, also last week, I just wanna give a shout out to both of you for schlepping all the way to Brooklyn. Wasn’t much of a schlep for you, Kate.

Kate Shaw Just took a two line. But I love doing it.

Leah Litman I got on a fucking plane.

Melissa Murray You did get on a fucking plane.

Kate Shaw Yeah, that’s true. That was big.

Melissa Murray I just want to thank you all and all of the Turfett colleagues who showed up to support me for Hess Week. And I really want to think the folks at Brooklyn College. It was such a delight to be there for the week as the Hess lecturer in residence. The students were amazing. The conversations were fantastic. It was truly a high point in what has been a terrible month of all of this happening. So thank you for making that happen. Also want to thank the folks at Berkeley Law, and in particular, Dean Erwin Chemerinsky, for bringing me back home to Berkeley to be the Hunt Distinguished Lecturer there. Thank you to Reid Hunt and his wife, Betsy, for endowing that lecture series. And to all of the great Berkeley Law students who came out and revealed themselves as friends of the pod, we love to see you. We love to hear you in our ear holes when you leave us messages and tell us great things. about what you’re doing and what inspired you to go to law school. So thank you for showing up. I also binged all of White Lotus and whoa, oh my gosh. Popper!

Kate Shaw I haven’t yet.

Melissa Murray Well.

Kate Shaw I haven’t watched the season yet.

Melissa Murray Let me just tell you, you’re never going to look at organic vegetables and air conditioning the same way again, Kate. That’s all I’m going to say to you. Other things that I’m loving, I read Ruth J. Simmons’s, she’s the former president of Brown University and Prairie View University in Texas, and she has a great memoir called Up Home. And it’s absolutely fantastic and really inspiring. So those are some things that are getting me through this period. So before we end, we do have some housekeeping notes for you all, in case you missed it. We are going on tour. Tickets for the Bad Decisions Tour 2025 are on sale right now. And we have three fantastic shows planned. So you have three opportunities to see us in the flesh. We will be in Washington, DC on May 31st at the Capitol Turnaround. On June 12th, we will be in New York City at Sony Hall. And on October 4th, we will in Kate’s hometown. the second city, the windy city, at the Athenaeum Center to delight you all in the Midwest with our wonderful stylings. I don’t even know what else to say. We’re coming for you, Chicago. And it’s happening on October 4. Tickets are going fast, so please don’t miss out. You can head to crooked.com forward slash events for more information.

Leah Litman So strict fans, are you looking for more content? Today I’m going to be joining the Friends of the Pod group thread on Discord at 3 p.m. Pacific for an AMA. If you’re around, join the conversation and ask me something good, please. If you are not a member, this month only, Crooked is offering a free 30-day trial of the Friends Of The Pod subscription. And with your subscription, you will enjoy ad-free episodes of Offline, Lovett or Leave It,  Pod Save America, and Pod Save the World. Sign up at crooked.com slash friends to start your free 30 day trial now.

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