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Melissa, Kate, and Leah break down an absolute boatload of beefs: Trump vs. Pope Leo, Sonia Sotomayor vs. Coach Brett Kavanaugh, Clarence Thomas vs. progressives, and Ketanji Brown Jackson vs. the shadow docket, before covering some of the week’s other legal news, including the Harvard Crimson’s reporting on conservative judges’ ideological litmus tests for clerkships. Then, they break down the Court’s opinion in Chevron v. Plaquemines Parish, Louisiana, before previewing some upcoming oral arguments at One First Street, including the “crimmigration” case, Blanche v. Lau.

Favorite things:

 

• Leah: RFK Jr. and the raccoon penis; Her talk with Steve Vladeck in DC on her upcoming paper, The Passive Vices, on Monday, April 20 at 12:45pm – RSVP here.

• Melissa: Lady Tremaine, Rachel Hochhauser; Lily Allen’s West End Girl tour; Rumours, Fleetwood Mac 

• Kate: What I Want, MUNA; Playground, Richard Powers; Labor Dept. Investigates Texts Among Secretary’s Family and Staff, Rebecca Davis O’Brien (NYT) 

 

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 

• 6/20/26 – New York City

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

Preorder Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader

Preorder a signed paperback of Leah’s book, Lawless, here.

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TRANSCRIPT

 

Leah Litman [AD]

 

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

 

Leah Litman Hi, everyone, it’s Leah. After we recorded our regular episode, The New York Times, specifically Jodi Kantor and Adam Liptak, released a bombshell story about the origins of the Shadow Docket. And they obtained the original documents behind what was, in important respects, the birth of the modern Shadow Dock. And that’s the Supreme Court’s 2016 decision to stay the Clean Power Plan with no explanation before the plan went into effect and before lower courts had issued opinions about its legality. We obviously needed to discuss this and with the expert on the shadow docket, who’s conveniently enough invoked in the New York Times piece. And that’s obviously Steve Vladeck, professor of law at Georgetown Law School and author of the New York Times bestseller, The Shadow Docket, How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. He’s also the author of The One First Substack. OK, thanks so much for joining us on late, like literally like 15 minutes notice, Steve.

 

Steve Vladeck Happy to be here, wish we were under better circumstances.

 

Leah Litman As ever. Um So for people who might not remember what exactly the story is about back in 2016 Generally speaking supreme court wasn’t really in the business of firing off on recent orders staying a bunch of lower court opinions or administrative policies But they did so and really began this unprecedented practice in important ways when as I said in 2016 They stay the clean power plan with no explanation and There’s so much to talk about from this New York Times story, but I guess I’ll just ask you, what’s one big thing that stuck out to you, and we can go from there.

 

Steve Vladeck John Roberts.

 

Leah Litman Oh yeah.

 

Steve Vladeck I mean, sure. So, you know, I don’t think that that either you or I or most of the folks who listen to Strict Scrutiny were ever especially smitten with the balls and strikes canard that, you know then nominee John Roberts trotted out in 2005. But if this isn’t the last nail in whatever coffin was left for the idea that John Roberts is some impartial, institutionally-minded, deeply principled jurist who believes in judicial restraint, I just want to hold his two memos up and say, no. I mean, even though Justice Kennedy is clearly the dispositive vote in this case, none of this happens without John Roberts.

 

Leah Litman The story describes how he initiated it. He is the one that puts the state application to the conference, writes a memo saying, I think we should do this. And when people push back, he is the ones that continues to press for it. And his memos, you mentioned the two memos. They read like they were written by industry. A key point of his is that this is, quote, the most expensive regulation ever imposed on the power sector, as if that is the emergency warranting intervention.

 

Steve Vladeck So, I mean, there’s so many things to say. I’ll just say, and I say some of it in my newsletter this morning. To me, the three things, Leah, that really stand out about the memos themselves, as opposed to just their existence, right? Is one, he is completely wrong about the stay standard. So, he invokes older cases that were about stays of lower court mandates. Right? In a context in which what the industry was asking him to do was reach across the separation of powers and basically almost enjoin an executive branch policy. Everyone agrees that there are no examples before this case of the Supreme Court doing that. And so you would think, and indeed, Justice Kagan says as much and the Solicitor General in their opposition. Made a huge deal out of this. There’s no acknowledgement in his memo that this is new. He cites the standard for a much more traditional stay as if that were the correct standard. That’s one. One is he gets off on the wrong foot by not even taking the actual request seriously. Two, Leah, your point about industry, I would slightly reconfigure as a point about irreparable harm.

 

Leah Litman Oh yeah.

 

Steve Vladeck Which is.

 

Leah Litman Definitely want to talk about irreparable harm.

 

Steve Vladeck So this is the guy who is responsible for the court’s modern obsession with the idea that any time the government actions are blocked, the government is irreparably harmed.

 

Leah Litman I just want to underscore this, right? They have been virtually explicit in shadow docket orders from the Trump administration that there’s almost a per se presumption of irreparable harm for the government whenever the government’s policies are irreparably enjoined or paused. And

 

Steve Vladeck And Leah, what opinion do they cite for that proposition?

 

Leah Litman What opinion did they cite for those? Oh gosh.

 

Steve Vladeck They said in Chambers’ opinion, but from 2014, by a little guy named John Roberts, right? And so, you know, this sort of, even if you buy the argument that the industry actually faced irreparable harm, and oh, by the way, the court also doesn’t think economic costs are ever irreparable har- right? But even if you bought the conspiracy theory, I want to come, that’s my third point, about the irreparable harm, this is the guy who also says the government’s reputable harm. So where is the balancing of the equities that the court is supposed to be undertaking here, right? What about the harm to the administration? What about the harm, to the, oh, I don’t know, environment?

 

Leah Litman No one talks about harm to the environment, nobody.

 

Steve Vladeck So I want to get back to why I think the opposition memos are so soft. I suspect you and I have the exact same explanation, which is Anthony Kennedy.

 

Leah Litman Exactly. Justice Kennedy is still on the court.

 

Steve Vladeck Right. But and then the third point is like the factual and this is more in Robert’s second memo than in his first, but like the factual basis for their belief that if they didn’t intervene in February 2016, they’d be stuck. Right. There’s a BBC news story, right. And one other like random factual statement that wasn’t in the record. How do we know they weren’t in the record? There was no record.

 

Leah Litman Exactly. Yeah. So I want to talk about those citations because this is also just a huge part of the story to me But just one more beat on irreparable harm, which is it’s not only that in my view The chief has inverted this irreparable. Harm. It’s that he has been so completely unconcerned With all of these claims to irreparable Harm that people whose lives have been totally disrupted by things that Trump administration has been doing He doesn’t care and neither does

 

Steve Vladeck Or in the funding context, right? Programs that have to shut down because without funding they can’t continue to operate. That is the exact kind of baked in economic cost that was putatively the basis for why they intervened back in 2016. So the point is not just that he’s being inconsistent. The point is that he is being ruthlessly hypocritical.

 

Leah Litman Yes, exactly. So let’s talk about the citation because part of the story and what seems to be driving the chief justice and maybe some other justices as well is that the chief seems really angry at President Obama and the Obama administration and their EPA because what had happened is the Supreme Court had earlier invalidated the Obama Administration’s rule regarding mercury admissions and after they do so… The EPA basically says, look, the majority of power plants are already in compliance or on their way to compliance, so this isn’t going to be a huge deal. And the chief justice basically takes offense to this and says, look, this is gonna mean our rulings aren’t necessarily going to keep these policies from going into effect, reaping their benefits and imposing the costs. And so the chief repeatedly gestures to this.

 

Steve Vladeck Because, let’s just be clear, because some people voluntarily chose to comply with the regulation. Exactly.

 

Leah Litman They voluntarily chose to comply with this regulation, arguably suggesting the regulation might not have been so awful after all. And indeed, that was partially the story of the Clean Power Plan. Because for all of the Chief Justice’s bellyaching about how horrible and catastrophic this policy was going to be, it ends up industry meets the targets. And so their prediction gained not so great. But the memos, as you were noting, cite the BBC interview talking about how the EPA said they were baking in the Clean power plan to the system. And he invokes the, quote, comments of the EPA administrator. And there’s so much to say about this. I mean, obviously, this indicates they care deeply about what is said about them. They are monitoring this. They also seem to care deeply, about the consequences of their opinions, and not just the reasoning or the judgment. And also, where was this energy in SB8? When you talk about an opinion having no effect, if you come back later, and all of a sudden decide it. Also, this is another thing that I could not get out of my head the hypocrisy of the Chief Justice fixating on these statements when two Years later. He says you can’t take anything the president says and use it against him in the travel ban case

 

Steve Vladeck Trump vs. Hawaii seems a little inconsistent.

 

Leah Litman Oh, it’s just wild. It’s wild.

 

Steve Vladeck So I will give the chief a sort of an eighth of a pass for SBA, because he was on the right side in SBA. So we don’t have, we can talk about some of the criminology a bit too, we don t have memos from Scalia, Thomas, or Ginsburg, right, we have memos for six of the justices. I guess Alito’s memo is to me entirely unsurprising. Oh, of course.

 

Leah Litman He invokes the course Legitimacy.

 

Steve Vladeck That’s right. The court’s legitimacy is undermined. Okay. We’re back to like in Mirabelli where he says, we can’t possibly indulge someone who might be elected in a district we later strike down, never mind that I’m responsible for doing that in Alabama. But I guess I’m a little struck also by Justice Kennedy, right? Because it seems to me that the chief had to be the mover here. This is a case that came out of the D.C. Circuit. He was the circuit justice, right. He would have always written the first memo. What’s striking to me is that clearly everyone was fighting over a Kennedy’s vote, right? Which is why, you know, Breyer’s memo is very civil.

 

Leah Litman Vanilla, bland, exactly. Yes, he offers the compromise basically saying, well, the states can ask the EPA for an extension and if the EPA doesn’t give it to them, then they can come to us. Like that was his proposal.

 

Steve Vladeck And Kagan adds, we can tell the DC circuit to hustle, which is funny. Roberts pooh-poos that in his response, but it’s funny because now they do that all the time. Exactly. Right? And so what’s striking to me, though, is that the result is that there’s nothing in the memo about the stakes. And what I mean by that is the stakes for the court. And I think some of that’s because Breyer and Kagan and Sotomayor. Were all pulling their punches a bit, because they thought they still had a shot at Kennedy’s vote. But so there’s almost like no acknowledgment. I mean, partly because the Chief’s memo doesn’t acknowledge how novel this is, right? None of the discussion inside the court is, is this something we should be doing in general?

 

Leah Litman Yeah, and clearly, I mean, with the benefit of hindsight, they think they did also because they’ve only continued to do it since. And that is also part of what is so startling to me is you look back at their memos, they were wrong about the predictions, they were wrong, about so many aspects of this, and they just keep doing it.

 

Steve Vladeck And I think also, I mean, so this is maybe a question for you, right? Because I guess it’s a question that it’s more about what’s inside Justice Kennedy’s head. Yeah. Which is maybe he, cause his memo I find to be the most frustrating of all of them. Cause he’s like, I’m persuaded by the Robert’s memos without any analysis of- What aspects of them? So, but I wonder, I wonder if part of this is Kennedy believes that he’d be the gatekeeper. And that things fall apart not because of the move they make in 2016, but because when the volume ticks up, Kennedy’s no longer the gatekeeper, now it’s the chief in cabin.

 

Leah Litman So that is definitely a possibility. On the other hand, I, and I don’t take you to be giving Justice Kennedy a pass, but by the time he steps down, the Supreme Court has already used the shadow docket to give the Trump administration a lot of what it wants on the travel ban. So he has seen, right, like what this might become, and he has seeing that the Trump Administration is going to be making these extravagant requests. And he decides to give them a seat on the Supreme Court. And so maybe he thought that, right? Maybe this was one of like, I will save the country delusions, but obviously it does not play out that way.

 

Steve Vladeck And then just the last obvious thing that jumps out at me is no one suggests that any of the substantive exchange should be memorialized, right? Oh, I know. I don’t know, right. I’m not sure if folks know. They wrote these memos. He’s trying to pursue. But so the actual order we get right has no analysis from the majority and it has no dissent I mean right the the Dems all know that they’re dissenting but they don’t say why.

 

Leah Litman Yes.

 

Steve Vladeck Um, and there’s no discussion internally about whether that’s a good thing or not. I mean, like, so the court basically opens a Pandora’s box because the chief was pissed off at the Obama administration, um, in a context in which it’s completely hypocritical about why and doesn’t tell us anything that would give us any insight.

 

Leah Litman And right exactly and i think we’ve already been implicit about this but the fixation on the equities and the fairness of all of this is also really hard to miss because it was such a reflection of results oriented judging and the inevitability of these guys views about fairness in equity informing what they are doing here. And

 

Steve Vladeck So this is why I find the timing of the story really fascinating, because as you know, as I think you guys probably talked about in the rest of the episode, it’s been an interesting week for conversations about the Supreme Court’s lack of politicization or very politicization between Justice Jackson’s speech last Monday at Yale, Justice Thomas’ speech Wednesday at Texas, right? And the Justice Kavanaugh is a principled centrist leading us to a bright future book tour. It really does seem to me like this story pours a whole lot of cold water on everything except Justice Jackson’s speech, which is completely consistent with what’s in the Clean Power Plan memos, that the court stopped taking equity seriously, that in the process it stopped caring about how its behavior affects anyone other than who the court views as its constituency, and that that’s the central problem with the emergency docket.

 

Leah Litman Yeah, since you mentioned the Justice Kavanaugh as an institutionalist and willing to save the country book tour, did want to explain for our listeners who might not understand it, you know, on this podcast, we constantly struggle between wanting to talk about things and not giving them air time or platform. This is an example where this already has a platform. So one of the co-hosts of advisory opinions, who’s now the publisher of SCOTUS blog. Sarah Isger, Sarah Isgar Flores, former spokesperson for the Trump DOJ during child separation, has a new book, Last Branch Standing, in which she argues the Supreme Court is awesome and they’re doing amazing sweeties. And actually- Especially Justice Kavanaugh. Especially JusticeKavanaugh, and they have this grand plan to save the country from executive power, and that’s actually what they’re going all along. And indeed, the day before this Cantor-Liptak story runs, She has an interview with Ross Duthat and the New York Times explicating the thesis of that book. Again, Supreme Court doing amazing, Justice Kavanaugh is gonna save us and they’re reigning in executive power. And I just don’t know if you can have like a better reveal about why exactly that is so misguided and also underscoring how it is obviously an effort to legitimize and give cover to what the court is doing than this one-two punch, but that was the reference.

 

Steve Vladeck No, and it’s, I mean, it’s whitewashing the court because part of what I find, and I have not written anything about the book. I wrote a piece in my newsletter back after the tariffs case because Sarah Isker wrote a peace in the Atlantic after the tariff’s case where she said the real program of the Roberts court is reigning in presidential power.

 

Leah Litman Oh my god.

 

Steve Vladeck You know, it’s not just that, like, Lee and I both roll our eyes at that claim. It’s that the actual analytical foundation for that claim is based on a remarkably superficial series of easily debunked and or incomplete assessments of the work of the court. I mean, she writes a piece about the Trump administration being reined in by the court that ignores just about all of the Trump administrations wins on the emergency docket last term. I don’t know how you can do that. And so it seems to me that part of the problem here is that you can believe that the court is getting things right in these cases. I don t. Right. But the notion that this is somehow reflecting some deep body of coherent principles that reflect judicial decision making at its finest, I think is rather blown up by what we learned on Saturday.

 

Leah Litman Yes, completely. And if you ever find yourself perusing legal commentary that treats the range of reasonable views as somewhere between the Shadow Docket is pretty good to the Shadow docket and Justice Kavanaugh are amazing, you might want to ask yourself, what exactly is this commentary slash publisher slash expert exactly trying to sell me on? That will be my final note.

 

Steve Vladeck Yeah, I mean, I’m not sure how to talk that except to say one more thing, which is, as Leah I think you know about as well as any other human being in the planet, this has been my project for the better part of a decade. And you know, I think it’s worth stressing that whatever, you know there’s gonna be efforts on the right to sort of say what the court did in the Clean Power Plan cases was totally legitimate. Right? The same folks who thought that the Obama administration, I mean back to the Isger thing, that Obama was just as bad as Trump because he said, I have a pen and I don’t remember what the other thing he had was, but right. You can think that the results in these cases are correct. You can thing that the court was correctly pissed off at the Obama Administration. We are increasingly past the point where you can defend the court against charges of hypocrisy, inconsistency, and lack of principle. And so, you know, if your only principle is that I like the result, it very well may be possible, friends, that you don’t have any principles.

 

Leah Litman Great note to end on. Again, this New York Times piece, incredible reporting. What a public service. Thank you to Jodi and Adam for getting this out there and getting this done. Thank you so much, Steve, for hopping on on short notice and for all of your work on The Shadow Docket. If you have read Steve’s book, The Shadow Docket, this would not have been surprising. And so, again, if you’d like to see more of it, Thanks, Mom. Um, please check that out and also Steve’s sub stack one first, you know, to stay up to speed on all of this. Um, and thanks again, Steve. And now for our regular episode.

 

Leah Litman [AD]

 

Leah Litman 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 Leah Litman.

 

Melissa Murray I’m Melissa Murray.

 

Kate Shaw I’m Kate Shaw and we have a great show in store for you today. We’re going to begin by discussing some news. Are you there, God? Because there is a lot of it, in particular involving Pope Leo. We will then walk through the single SCOTUS opinion that we got last week and we will also preview the first week of the April sitting and as always we will close with some of favorite things. Alright, first up, some news legal-ish.

 

Leah Litman First up is the President and the Pope. You would think that a week after getting flack for posting on social media an image depicting himself as Jesus Christ healing the sick.

 

Melissa Murray Scratch that, scratch that.

 

Leah Litman As a physician, healing the sick, dressed as Jesus, that the president would ease up on the messiah imagery.

 

Melissa Murray You would be wrong. This week, the president posted another image of himself, this time being embraced by Jesus. What would Jesus do, indeed? Anyway, I can tell you what Jesus probably wouldn’t do. Jesus probably would not pick a fight with the first American pope. But as should be evident, but nonetheless bears repeating, Donald Trump is not Jesus.

 

Kate Shaw Amazing that this needs to be said, Melissa.

 

Leah Litman Do we need a fact check?

 

Kate Shaw Will we get sued for saying he’s not? But yeah, you know, it has been a pretty amazing development in this otherwise cursed timeline that Pope Leo XIV, the first American pope, has emerged the way he has as this singular voice of moral clarity. He’s increasingly spoken out against the administration’s hardline immigration tactics and has now begun to criticize, in no uncertain terms, the administration catastrophic Wars? Emphasizing the need for multilateralism, championing decency, and the rule of law. Last month, when DEI Defense Secretary Pete Hegseth called on Americans to pray for victory in Iran, quote, in the name of Jesus Christ, aka Donald Trump, apparently, the pope in his Palm Sunday message said in what definitely seemed like a response, God, quote does Let’s not listen to the prayers of those who wage war.

 

Melissa Murray Oh snap! And of course, the President of the United States took all of this personally. Just a few weeks after Easter, the holiest day in Christendom, he decided to drag the Supreme Pontiff, Pope Leo XIV, for filth. Let’s roll the tape.

 

Clip Why did you attack Pope Leo on social?

 

Clip I don’t think he’s doing a very good job. He likes crime, I guess. We don’t like a pope that’s going to say that it’s okay to have a nuclear weapon.

 

Leah Litman The week on crime is just, I’m obsessed with that line. Whatever anyone says shit to me, I just say you’re weak on crime.

 

Melissa Murray Or the Dow, the Dow. Exactly. He’s like, have you seen the crime in Vatican City? Yeah, think about it. In any event, the vicar of Christ is doubling down on DGAF. Responding to the president’s comments and posts, the pontiff responded, quote, I am not a politician, and I do not want to enter into a debate with him. Shorter, Pope Leo, fuck that guy. More like, who’s she? I don’t know her. I don’t know her, I don’t know her!

 

Kate Shaw That seems more more more papal honestly than after

 

Melissa Murray More people, yeah, it’s true, that is.

 

Kate Shaw Mileage may vary

 

Melissa Murray Um, I do think Pope Leo was just like, no, like no, no. Don’t need to, will not. I do not engage. In any event, Pope Leo also made clear that he would not be cowed by the president saying, quote, I continue to speak strongly against war, seeking to promote peace, dialog, and multilateralism among states to find solutions to problems. Too many people are suffering today. If too many innocent lives have been lost. And I believe someone must stand up and say there is a better way.

 

Kate Shaw Amen. What would Jesus do? He might do that. That does seem like it. But don’t worry, not one to miss the chance to suck up to the guy upstairs. And here that’s Trump, not God in this man’s universe, despite his avowed piety. The vice president of the United States also weighed in to say, quote, in the same way that it’s important for the vice president of the united states to be careful. When I talk about matters of public policy, I think it’s very, very important for Hope I can get through this for the Pope to be careful. When he talks about matters of theology, Mr. Vance said.

 

Leah Litman What do we call this? Is it God-splaining? Is it Vance-splaning?

 

Melissa Murray I mean, I’m just like, it’s something else. I do think this is an improvement, because it does seem like JD Vance is advocating for a species of separation of church and state. So that’s a plus. Let’s all look for the silver lining.

 

Kate Shaw I’m trying to remember the name of his forthcoming book and I feel like, is it communion? Is it manhunt? Close. Close. You’d be forgiven for making that mistake, but in fact, it is something like finding my way back to faith. And as I think about this upcoming book release, I just wonder whether we should revive something that we’ve done previously, which is have love it on the pod to play Vance maybe in a faux book episode. Anyway, just floating it. Let’s think on it.

 

Leah Litman I think the vice president would love that. I’m sure he would. And I’m really hoping that the vice president manages to do with his book what he did with Viktor Orban, ADF in Germany, the invitation to the pope, and Pope Francis, and that he does with his book in that he helps another book coming out that week, which would be, of course, the paperback version of Lawless. Uh-oh. An updated chapter on the Unitary Executive and everything else. So, yeah.

 

Kate Shaw Get Vance on that now. Yes.

 

Leah Litman Yes, exactly, exactly. Have him campaign against my book. Ask for better publicity. Women are reading and writing. But speaking of being careful in talking about matters of theology, DEI Secretary of Endless War slash Secretary of War crimes, alleged crimes, Pete Kegseth, keg’s breath that’s not it either

 

Kate Shaw Wait, who was it? Was that Katie Fang? Katie did.

 

Leah Litman Katie did kegs breath which Katie fang love her. I love that anyways dei secretary of something pete hexeth quoted a bible verse that was actually some lines from quentin tarantino’s 1995 film pulp fiction that loosely drew on the bible but of course was not actually in the bible because actual reading is apparently too hard what’s your two favorite bible verses wrong answers only Mine is Dwayne Ree Bag with the handles tied, sex toys butt plug.

 

Kate Shaw Lube inside. When I tell you the crowd in New York City lost its mind at that line above all other lines, I am not exaggerating. We’ll get to it.

 

Leah Litman My other favorite line is, I’m coming to the cottage. OK, what’s yours, Kate?

 

Kate Shaw Um, uh, he who picks a fight with Pope Leo, um, shall have, shall not have the last word.

 

Melissa Murray OK, mine is TikTok, you don’t stop. TikTok, don’t you stop. Come inside. That’s for you, Adam Music. Sorry, inside, inside joke. All right. All right, onto some other news. Speaking of squabbling up, we are about to hit the final stretch of October term 2025, which means the girls and the ghouls are fighting.

 

Kate Shaw All right, first up, we got a girl, we’ve got a ghoul. In the first ring. Girl versus ghoul! So I think it’s now two weeks ago at an event at the University of Kansas Law School, Justice Otamayor said when asked a question about the Gnome versus Vasquez-Perdomo case, quote, I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn’t really know any person who works by the hour. There are some people who can’t understand our experiences, even when you tell them. There was an ellipsis in there that wasn’t all a continuous statement, but all of that was in Justice Sotomayor’s remarks.

 

Melissa Murray Obviously, she was talking about son-of-privilege Brett Kavanaugh, inventor of the Kavanaagh stop, wherein ICE agents are permitted to racially profile people, regardless of their citizenship or legal status in this country, and detain them. But the detentions must be brief and do not have any real impact on their lives, jobs, or rights. Wait. No, that’s not right, right?

 

Kate Shaw Has someone told Brett Kavanaugh on that?

 

Leah Litman Well, so someone told Brett Kavanaugh something, and it’s unclear exactly what happened, maybe Brett quied, but then last week, Justice Sotomayor walked back some of her comments. So the Supreme Court’s public information office released the following statement, quote, at a recent appearance at the University of Kansas School of Law. I, that is Justice Sotomayor, referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague,” end quote. Why do you think she apologized, slash, should she have?

 

Kate Shaw We’ve talked about this before and this has obviously been written before. She is somebody who works very hard to maintain good relations with her colleagues. It seems like it matters to her a lot. I mean, she’s like got good relations of everyone. She really does seem to care a great deal about, you know, sort of knowing and maintaining like genuinely warm friendships with everyone in the building, on the court. And I think he actually like was offended and she felt badly. I’m not sure why she felt she need to do a public play Yeah, I don’t know but obviously Melissa you are much more of a knower of the mind of Sonia Sotomayor. What do you think?

 

Melissa Murray I think that is probably right. I think she does prioritize collegiality. She was friends with all of her colleagues on the Second Circuit, even when there were broad ideological disagreements, although not quite as broad as these. But I guess I bristle a little with the idea that these comments were inappropriate, because I actually would have said they were incomplete. Actually, she could have given him a much harder read. I mean, so basically she was just saying. And again, it was harsh criticism. This is someone who doesn’t know what it’s like to need a job, need to show up at your job every day where a detention stop could actually be fatal to your employment prospects. If you just did not show up work because you had been detained by ICE, whether wrongfully or not, you were going to lose your job. His parents are professionals. They have the freedom to be like, you know what? I’m taking a personal day. ICE detained me, although that would actually never happen. I think that was the gist of her comment. Maybe it’s harsh, but I think it’s real. I actually thought she could have gone even further, because the real critique of Brett Kavanaugh here is not necessarily that he is the son of professionals who may not know what it’s like to have to show up every day at a 9 to 5. The criticism of Brett and these Kavanaagh stops is like, you are a white guy who does not know what its like to be a person of color living in this country at a time when the government is racially profiling people. And who just ignored the facts. Yes. Yeah, that’s the real criticism. And I think she was actually quite restrained in not being like, yo, do you know what it’s like? I mean, this is basically what black people say about stop and frisk. It doesn’t matter who you are. It doesn’ matter what degrees you have, how much money’s in your bank account. This can hit you at any time. And it is devastating, maybe in a very real practical sense to your employment, but also to your dignity. And he just does not get that. And I think. She could have gone in and she could have gone in really hard on him and she spared him. And so props to her for some restraint. I hope.

 

Leah Litman Yeah, so in addition to the possibility that it just matters to her to maintain these relationships with her colleagues, a part of me wondered, which is kind of the flip side of what I jokingly suggested last week, which was what did Brett Kavanaugh do this time to provoke these comments, whether those relationships and maintaining them she thinks and whether they in fact do accomplish some substantive purposes. Maintaining relationships in order to preserve the possibility. Of a coalition to avoid the next cliff jumping into fascism. And I don’t know to what extent she thinks that. I don’t know to extent that is true. We do know these people have very thin skins. And so it’s not outside the realm of possibility. And this is part of what makes their job so difficult. And it is hard to assess from the outside exactly. What is happening, and to know in some alternative universe whether some other course of action might be better. That’s my own personal view, as I’ve said before. But I don’t know exactly the calculus she is making.

 

Melissa Murray Well, so I do think that there is that recently filed case in the Second Circuit that’s being brought by individuals who would be subject to these stops, challenging the prospect of these stops. And so there is an opportunity, I think, for Justice Kavanaugh to, on the record, on the merit stock, it actually recant what he did in his concurrence in Gnome versus Vasquez, Perdomo and. Maybe her initial comments are meant to spur that on, to actually clear some room for him to listen. I didn’t think this out fully. Here’s why, whatever. And I do think she was just like, OK. She probably got some heat from people about this and clearing the air. But she said it. She said it, she may regret having said it but she said it, it’s true. And it’s not even the worst thing she could have said. If you were wondering, listeners, whether the Supreme Court of the United States falls prey to patriarchal double standards when it comes to critical speech amongst colleagues, well, that is obviously an open question. We will simply note, we’re making no statements here, but we’ll just note that on the same day that Justice Sotomayor’s apology was released, Justice Thomas made the following remarks at a speech delivered at the University of Texas at Austin.

 

Kate Shaw Wait, can I just quickly interrupt to note that at these remarks, just as Thomas mentioned at the outset that he was joined by, and like wanted everyone to know that he was joined, by Harlan Crowe, which is a name that people may not have heard for a while, but that is the bill. We remember him. You guys do. We remember. I hope our listeners do. But this was the billionaire benefactor, close personal, life-size friend, not unconstitutional, as we remind all for them to be friends. But in any event, I just thought it was the trolliest move for Thomas to just say, like, Harlan, I’m so happy to have you here at the outset of his remarks because he wants everyone to know he is not worried about the scrutiny of his face. He’s not sorry.

 

Melissa Murray That’s what I said.

 

Kate Shaw Yeah. And then he went on to say a lot of other, I think, pretty jaw-dropping things, just in terms of the substance of his talk.

 

Melissa Murray Let’s roll the tape.

 

Leah Litman Let’s roll it.

 

Clip Since the day I arrived in Washington, there was never a shortage of people espousing noble purposes, saying all the right things. All around me, there have been people full of promises, claiming a commitment to some righteous cause, to traditional morality, to national defense, to free enterprise, to religious piety. Or to the original meaning of the Constitution. They recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences, and their country. Progressivism seeks to replace the basic premises of the Declaration of Independence, and hence, our form of government. It holds that our rights and our dignities come not from God, but from government. It requires of the people a subservience and weakness incompatible with a constitution premised on the transcendent origin of our rights. You will not be surprised to learn that the progressives had a great deal of contempt for us, the American people.

 

Melissa Murray Well, well, well. I mean, so… It’s us. It’s me. Hi. We’re the problem.

 

Kate Shaw But I don’t think he’s going to apologize to us, ladies. So I mean, to kind of the double standard point, Justice Sotomayor apologizes for criticizing one of her colleagues, you know, in pretty measured terms. On the same day, Justice Thomas launches this diatribe about progressivism, a diatripe in which he labels those who dissent from the conservative values espoused by the signers of the Declaration of Independence, many of whom unapologetically owned human beings the greatest threat to the country. I also have to say… The unhinged theocracy in this speech was also none of, you know, our rights don’t come from the Constitution or from government. They come from God. The number of invocations of God was pretty stunning. And then, of course, there was this sort of attack on kind of progressivism and progressives. But of course that’s not what was intemperate or over the top in the kind of category of public statements by Supreme Court justices in the month of April. So no need to apologize to, you know, half the country for that. Got it. Got it! Yeah. Okay, but that is not…

 

Melissa Murray Clock it.

 

Kate Shaw All in terms of the Justices riding circuit because they have been busy. Also last week, Justice Jackson decided to enter the fray delivering some pretty pointed remarks about the shadow docket as part of a lecture that she gave at Yale Law School. So let’s play a clip from that speech.

 

Clip It is one thing for the Supreme Court to entertain a stay application early in a case’s life cycle and publish its back of the envelope first blush impressions of the merits of the legal issue. It is quite another for the court to then insist that those scratch paper musings be applied by other courts in other cases, stymieing the full deliberative process. Aye. Adamantly reject any effort to normalize a process whereby the Supreme Court actively super-intends matters that are pending in the lower courts. There is no such thing as an interim docket. I disagree with some of my colleagues who have made public statements suggesting that, you know, the court really has its hands tied or that this is a function of a lot more of these cases being filed or applications being filed. It seems.

 

Leah Litman That unlike those people who are actual DEI hires, Justice Jackson knows how to read, and she knows how read for filth. Like the scratch paper musings line just injected into my veins. My favorite part is when she said.

 

Melissa Murray There’s no such thing as an interim document. I know, I love that. Stop trying to make the interim document happen. I refuse to legitimize this. It’s not going to happen, Gretchen.

 

Kate Shaw Wait, no, here’s the question, is Brett gonna come into our office next week and demand an apology for disparaging interim docket, which is of course something he coined or is, I guess, is trying to make happen?

 

Melissa Murray I don’t know if he coined it, because originalism. I think maybe Justice Alito, was he the one who called it the emergency? I don’t remember who. He called it emergency.

 

Kate Shaw I don’t remember he called it the emergency. I think Brad is the one who’s been at least pushing into

 

Leah Litman He’s definitely been pushing it. Yeah.

 

Leah Litman [AD]

 

Melissa Murray OK, folks, we got a new twist in the ongoing saga regarding Judge Jeb Boesberg’s efforts to hold this administration in contempt for refusing to heed his April 2025 order to return to the United States planes carrying Venezuelan migrants to El Salvador. As we’ve talked about on the pod. About a year ago, Judge Bosberg issued a ruling finding that probable cause existed to hold the administration in contempt for its refusal to return the planes of Venezuelan migrants to American airspace. The ruling was appealed to the DC Circuit. There was a lot of back and forth. And last Tuesday, we got the latest iteration in it when the DC circuit issued its fourth order halting Bosberg’s contempt inquiry. Trump appointee and reputed SCOTUS short-lister Judge Naomi Rao. I think no one has told her that the lady’s spot has been filled. Judge Rao wrote for the 2 to 1 panel and she characterized Boasberg’s ruling as, quote unquote, improper, unnecessary, and a clear abuse of discretion. She further maintained that the Trump administration had a, quote, clear and indisputable right to termination of this judicial investigation. Because Judge Boesberg’s initial order requiring the Plains to return was, quote, insufficiently clear and specific to sustain a charge of criminal contempt. According to Judge Rao, Boesburg’s initial ruling only prohibited the removal of the migrants and, quote said, nothing about transferring custody of them. She then reasoned that because the Plain’s were already in the air when Boasberg issued his ruling. The removal had already occurred. Thus, the DOJ’s decision to hand over the migrants to Salvadoran mega prison could not support a contempt investigation. Well. Yeah, so this latest order. That’s how you campaign right there. That’s you do it.

 

Kate Shaw It’s probably not going to work, but it does seem to be what is.

 

Leah Litman No, Judge Rao should have added Judge Boasberg is weak on crime. That would be how you campaign. The Dow.

 

Kate Shaw Although it didn’t work out that well for the last person to try that line, so maybe she’s right to avoid it. Maybe she’s right to avoid it.

 

Melissa Murray She’s the truth, yeah, ladies. Ladies talking about the Dow never worked.

 

Kate Shaw So this order goes on to direct Boasberg to terminate his criminal contempt proceedings. And this latest order was issued by a three-judge panel featuring not just Rao, but her fellow Trump appointee, Justin Walker, and then also Judge Michelle Childs, who pointedly did not join Judge Rao’s order. The attorneys for the wrongfully removed migrants have indicated that they will seek en banc review of the panel’s decision before the full D.C. Circuit. And the administration may well face some tough sledding with the full court. In that six of the court’s 11 judges are already on record saying that Boasberg properly exercised his contempt authority and that an earlier panel was wrong to cut off the district court’s investigative process. That was a very complex opinion, but that really was how the numbers kind of shook out. So I definitely don’t think this three-judge panel is the last word on the Boasburg contempt proceedings.

 

Leah Litman Pamela Jo Bondi may be out of the administration, but she is not out of our hearts, our minds, or others’ hearts and minds. Because it seems like in a last-ditch effort to prevent herself from being Pamela Jo Firebombedeed, director of national intelligence, it’s not a joke, but kind of a joke. Tulsi Gabbard referred to government officials who effectively served as whistleblowers in connection with Donald Trump’s first impeachment inquiry to the Department of Justice for criminal investigation. One of the officials reported an urgent concern about Trump’s request for Ukrainian President Volodymyr Zelenskyy to investigate then former Vice President Joe Biden. The whistleblower wrote, quote, “‘I have received information from multiple U.S. Government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 United States election,’ end quote. Listeners, you may recall that the president characterized his phone call with Zelenskyy as, quote Perfect. Gabbard, who alleged that, quote, deep state actors had instigated the impeachment, also referred to the Department of Justice, a government official who was the former intelligence community watchdog, who had investigated the whistleblower complaint, and that is former intelligence community Inspector General Michael Atkinson.

 

Melissa Murray I have to say, it is really rich to talk about the deep state when you’re basically in the sheep state, just blindly following what this president wants you to do, but whatever. Anyway, I just wanted to note that the ladies of Hysteria, another Crooked Media podcast, have a series called This Fucking Guy. And one of the most recent episodes is a deep dive into Tulsi Gabbard. And all I can say is the tea is hot. It has cults. It has backstabbing, it has all the things. A+

 

Kate Shaw Chris Butler is a very interesting character who is at the center of all of it.

 

Leah Litman Mm-hmm.

 

Melissa Murray Like a lot of things going on, a lot of switching back and forth between parties. Actually, a a lot a shade to the DNC for not seeing this.

 

Kate Shaw And multi-generational switching. Yeah, a lot of stuff, yeah. There’s a lot going on. Check that out if you have not. Another piece of news we wanted to just mention might be of interest to our listeners, and that is some reporting that we got last week actually from the Harvard Crimson, the student paper at Harvard, which ran a very interesting story about the changing dynamics of the law school clerkship market. So clerkships, many listeners know, but in case you don’t, are these one or two year jobs that frequently go to recent law school graduates. Those clerks work closely with the judge in the judge’s chambers, historically, students are frequently hired for these clerkships at the end of their second year or the start of their third year of law school. And this process wherein judges wait until that point is the result of a very long and kind of starting, stopping, agonizing effort to instill some restraint in the

 

Leah Litman Some people don’t seem to be super into that whole restraint.

 

Melissa Murray Except for abortion, they care about restraint of judges when it’s about the fundamental right to an abortion. And restraints on women.

 

Leah Litman And restraints on women, but anyways. Other restraints, no. Yeah. So according to the Crimson, a two-tier clerkship hiring process has emerged with conservative Republican appointed judges preferring to enlist for future clerkships, ideologically aligned first-year students. So students who literally just got into law school, who might not even have a full year’s worth of grades, are being hired largely because the Republican-appointed judges are prioritizing ideology in the clerkship hiring. Please also recall that many of these folks are among the anti-DEI pro-meritocracy crowd. And the best part of all of this is that at least some of the judges may not actually be doing the ideological sniff test themselves. Instead, the Crimson reports that they enlist ideologically aligned third-year law students to vet candidates on their behalf. So a conservative 3L vibe check is basically A small test for at least some federal clerkships, but DEI.

 

Melissa Murray I mean, I’m not even surprised by this. So a few years ago, we interviewed California Supreme Court Justice Goodwin Lew and one of his co-authors, Professor Mary Hoopes, about their recent study of federal judges’ hiring practices in the clerkship hiring process. And they noted that they did not have a sufficiently large sample size to draw broad conclusions. But they did note that their initial sample of some of the conservative judges showed that these judges were much more likely. To prioritize ideological fit in hiring and were much more likely to dive deeper into the class in terms of grades in order to be able to hire ideologically aligned clerks. And now it seems that the deep dive may actually just be wholly unnecessary. You don’t even have to look at grades because some of these Students, if they’re 1Ls, may just have a few years or a few months of grades. And if they go to Yale, they don’t have grades at all, because no one gets grades in the first semester. So it’s basically this 3L vibe check. Do we like you? Do you show up at our events? Do we get that conservative vibe from you? I have to say, it sounds incredibly convenient and efficient. Basically, it’s no grades, just vibes.

 

Kate Shaw Convenient and efficient if you don’t, if you’re not really that worried about, you know, doing law in your chambers. Exactly. Sure, like just a purely ideological hiring process makes.

 

Melissa Murray But merit, right? The merit part, that’s the good part.

 

Kate Shaw This is interesting reporting and good on them for doing it. I mean, I definitely don’t know about YouTube but noted that shift of like some of these conservative judges and only conservative judges, as far as I could tell, like getting way ahead of the kind of previous hiring calendar, but it seems like it is just even more widespread than I’d realized. Okay, some other news to note. We got last week a verdict in the Live Nation Ticketmaster antitrust case. Listeners may recall that the administration… The federal government tried to torpedo the litigation by announcing a settlement midway through the trial, but unfortunately for them, and fortunately for consumers, the DOJ settlement did not actually succeed in killing the case entirely because, as actually is becoming a trend, some states, including California, right, remember we had the Attorney General Rob Bonta on our show talking about this lawsuit, among other things, and also New short. Continued to litigate the case against Live Nation slash Ticketmaster, even without the administration’s participation. I mean, this is what we call federalism, ladies and gentlemen.

 

Melissa Murray Yeah, federalism for the win, literally, because the states that continued to press litigation actually won. They won a jury verdict holding Ticketmaster and its parent company liable for operating as an illegal monopoly that suppressed competition and inflated prices to the detriment of consumers.

 

Kate Shaw And we have to give a shout out to a bunch of stricties who are on the Live Nation Ticketmaster trial team. They pulled off a win again, even after DOJ pulled out and settled. And I also wanted to quickly highlight that Gail Slater, who was the DOJ antitrust chief, who left the federal government around the time of the Fed’s settlement, took to X to congratulate the states on their victory, saying, quote, You made antitrust history today. You fought the good fight. You finished the race. You kept the faith. And I just really love that energy.

 

Melissa Murray It’s almost like she didn’t leave voluntarily. Almost. Pure speculation. Almost. Pure speculation on that part. But I do love, I do love a-

 

Leah Litman Petty Queen on Twitter. Indeed. In other frontiers of federalism, the Hennepin County attorney has charged an immigration customs and enforcement agent with assault for pointing a gun at people on a Minnesota highway. So Hennipin County Attorney Mary Moriarty said she believes this is likely the first state criminal case brought against a federal immigration officer for actions arising out of the Trump administration’s crackdown on immigration enforcement and surges in California, Illinois, Minnesota, and elsewhere. She added, quote, there is no such thing as absolute immunity for federal agents who violate the law in the state of Minnesota, end quote. I do wonder if JD will attempt to law constitutional law to an actual attorney. And tell her that practicing attorneys need to be careful when they talk about the law, just waiting for that statement.

 

Kate Shaw The signs point to yes. Yeah. So this particular indictment charges the officer with two counts of second-degree assault. The charges are based on allegations from a 911 call in which a couple reported that a driver in an unmarked SUV that turned out to be an ICE vehicle pulled up, rolled down his window, and pointed a gun at them, and they were understandably terrified. The ICE agent maintains that the vehicle may have cut him off, and, of course, the ICE agent assumed that this was some sort of obstruction. According to the ICE officer, he identified himself as an ICE officer. But the couple just couldn’t hear from inside their vehicle.

 

Leah Litman Wanted to give a shout out to friend of the pod, Steve Vladeck, professor at Georgetown Law School, also author of the One First Street Substack, who’s written a lot about supremacy clause immunity and how these state criminal prosecutions might work both on a Substack and in the New York Times and other outlets. Steve catches a lot of strays just as a very prominent public intellectual from both the left and the right in just what I think are deeply unfair. Ways that reflect how good and successful of a public voice on the law he is. So if you, you know, like me, benefit from Steve’s work, maybe think about sending him a note to that effect or giving him a shout out. I think people sometimes see all of the benefits or upsides of being a public presence when the downsides sometimes seem less apparent. And this last was just one of those occasions for me, you know, for Steve in particular.

 

Kate Shaw Can I, yeah, I assume this will be taken in the right spirit, but as I, yes, I totally coast on everything you just said. And it’s like, when it’s somebody else, you can sort of say like, yes. Obviously you know you that bitch when you cause all this conversation. Like that is a sign of how central to the discourse he is if people are attacking him, but it sucks to be the object of that. And so I think it’s really good to know.

 

Melissa Murray Justice for Commander Vladek. Exactly. All right, speaking of catching strays for being a public intellectual, we got an opinion in.

 

Clip Chevron USA Inc. v. Plaquemines Parish.

 

Melissa Murray Yes, listeners, that was Chief Justice John G. Roberts stepping in here on Strict Scrutiny to pronounce the name of this case, which, as you have noted in our voicemails and emails, has befuddled us all term.

 

Kate Shaw And Melissa took that personally.

 

Melissa Murray So if you listeners are from the Pelican State and you object to this pronunciation of

 

Clip Plaquemines Parish.

 

Melissa Murray Please direct your emails and voicemails to Chief Justice John G. Roberts of the United States Supreme Court. Thank you for your attention to this message. Anyway, the case is about federal officer removal. I really needed to do that.

 

Leah Litman We love a petty queen.

 

Melissa Murray I’m a petty Queen.

 

Leah Litman Yeah and you know the federal officer removal statute could end up being significant in cases like the one we just talked about the newly filed case in Minnesota that involved criminal charges against federal officers because the federal officer removal statue allows federal officers or people acting under federal officers to remove from state court to federal court. Lawsuits against them, at least when the suits are for, or relating to, any act under color of such office. Now this particular case is a lawsuit against certain oil and gas companies filed under federal law. The lawsuit alleges the companies lacked permits for some of their crude oil production, which is also alleged to have been initiated illegally. Chevron removed the case to federal court, arguing that the suit concerned its contractual duty to refine crude oil for the federal government during World War II.

 

Kate Shaw So the Supreme Court in this case said that at this stage of the litigation, the oil company had plausibly alleged a close enough relationship between its crude oil production and the performance of its federal refining duties that removal to federal court was proper. The court made clear that the federal officer removal statute is broad and allows removal where there is a connection between a private entity and a federal officer, so long as the connection isn’t attenuated or tenuous. The opinion is effectively unanimous. Justice Jackson filed a concurring opinion, just concurring in the judgment. Emphasizing both legislative history and the court’s obligation to seek to discern congressional intent with citations to John Marshall making that point and also former Second Circuit Chief Judge Bob Katzman’s work, among other things. The only person who didn’t agree, or maybe did, we don’t know, was Justice Alito who didn’t participate in the case at all. We don’t why, I don’t think. I mean, maybe, presumably, stock ownership, right, he is one of the only justices who own individual stock.

 

Leah Litman But the Dow, Kate, that’s why he didn’t participate, but the Dow.

 

Kate Shaw Maybe he could just append that as the explanation because you know some of them have started telling us when there is a recusal why? Very conspicuously not Sam Alito

 

Melissa Murray He has not to tell you anything, bitches.

 

Kate Shaw It sure doesn’t.

 

Melissa Murray On to April preview. So this is the last full month of oral arguments before the court, and we have a two-week sitting coming up. We are going to preview the cases from the first week of the April sitting.

 

Leah Litman So I don’t know how to pronounce this one. I’ll just cop to it. And that is street patch, maybe, versus Securities and Exchange Commission. I do know that this is a case about the SEC’s enforcement authority, and specifically, whether the SEC can require a defendant to disgorge, that is, to give up profits or benefits without the plaintiff having to show that investors were harmed financially. Federal law provides that the SEC may seek, and any federal court may order, discouragement of profits or benefits in a civil SEC enforcement action or proceeding. In the 2020 decision, Lew v. SEC, the Supreme Court held that the SEC may see equitable discouragement in civil enforcement actions if an award does not exceed a wrongdoer’s net profits and is awarded for victims. Now, some circuits… Including the Second Circuit, have interpreted the statutory language through the lens of the Supreme Court’s discussion of victims, and as a result have required the SEC to show that the investor suffered a pecuniary loss and is therefore a victim before the SEC seeks disgorgement as a remedy. Other circuits, including the Ninth Circuit, has concluded that all that is required is an actionable interference with the investor’s legal interests, not necessarily a of a pecuniary life.

 

Melissa Murray So the petitioner here contends that to secure a disgorgement order against him, the SEC must prove that investors have suffered actual financial loss, not merely a misrepresentation or a manipulation. If the court determines that the SEC must prove pecuniary loss to a judge in order to impose disgorgements, that will surely limit the SEC’s flexibility in enforcement actions. And Notably, there is an amicus brief in this case that highlights a similar case that is currently pending in the Ninth Circuit, SEC versus Barry. In Barry, the SEC’s theory of pecuniary harm is based on this idea of the loss of the time value of money. So basically, the argument on which disgorgement is predicated is that Investors suffer a loss because their money is not being used productively as an investment. It’s not about an actual pecuniary loss, like dollar amounts. The novelty of the SEC’s theory could heighten for the court the skepticism they may have about expanding the scope of disgorgement as a remedy. And if the court is skeptical, it might further limit the agency’s enforcement ability. So recall. This is coming on the heels of SEC versus Jarkesy, which made it a lot harder for the SEC to bring enforcement actions within the agency and administrative tribunals.

 

Kate Shaw Next up is TM versus University of Maryland Medical Systems Corp. Federal Courts Hive, rise. It is time to get information because it is Rooker Feldman time.

 

Melissa Murray Oh, yeah.

 

Kate Shaw Talk about cause of all this conversation.

 

Leah Litman Exactly.

 

Kate Shaw Rooker Feldman does.

 

Melissa Murray Rook her? I don’t even know her.

 

Kate Shaw Oh, so good. Okay, so Rooker Feldman, if you’re not already intrigued, is a doctrine that prevents litigants. I know you are, obviously.

 

Melissa Murray Wanna know.

 

Kate Shaw Prevents litigants, listen up, draw near, who lose in state courts from going to federal court to challenge injuries caused by state court judgments. So the specific question here is whether that doctrine can be triggered by a state court decision that remains subject to further review in state court. Facts of the case are as follows. The petitioner here, TM, has a gluten sensitivity condition that can trigger psychosis. She was involuntarily committed to the Baltimore Washington Medical Center, where she claims that staff ignored her advanced medical directive. And sought to forcibly medicate her in ways contrary to that directive. After multiple state filings, she entered a consent order for her release under conditions like monitored medication. She appealed that consent order in state court where the action has been stayed, and she also sued in federal court, alleging duress and constitutional violations and seeking an injunction.

 

Leah Litman I have a love-hate relationship with this case. So I love intricate federal courts doctrines. Oh, we know. Federal courts is my absolute favorite class to teach on one hand. On the other, this is going to be a case where I think the Supreme Court is going to say Rooker Feldman applies, which is greatly going to undermine the lesson I attempt to import to Fed court students, which is the answer is never Rooker Feldman. Indeed, the Supreme court in earlier opinions has said, Rooker Feldman basically applies only if your name is Rooker Feldman. Literally, that’s a line in a Supreme Court opinion because people, you know, unearth this doctrine and they think, oh, that what’s happening in this case, but it’s never happening except maybe here it is. Anyways, the federal court dismissed this suit under Rook Feldman on the view she was seeking federal review of a state court order. She said injured her, the Fourth Circuit affirmed. On appeal, the petitioner gestures to that earlier case that suggested Rooker Feldman really ain’t no thing, Exxon Millbow Corp versus Saudi Basic Industries, to argue that the Rooker Feldman doctrine is confined to cases where the losing party in state court filed suit in federal court after the state proceedings ended. She further argues that the Fourth Circuit’s decision below expands what was supposed to be a narrow exception to federal jurisdiction and the air of confirmed. Likely to disadvantage pro se litigants. I’m sure a majority of justices on this court will care deeply about that. That was a joke. For its part, the University of Maryland medical system counters that the ruling below is correct and the petitioner was seeking appellate review in federal district court of a state court decision exactly the circumstances where Rooker Feldman.

 

Melissa Murray Also on the docket for the first week in April is Federal Communications Commission versus AT&T. And this is a case that has been consolidated with Verizon Communications versus Federal Communications Commission. And it will be heard on April 21st. This case might be understood as a follow-on to SEC versus Jarkosy. So that was the. Definitely. Jarkosey was the 2024 case holding that when the SEC seeks civil penalties, i.e. Money damages or other legal remedies against a defendant. The case has to be brought in federal district court rather than in an agency tribunal in order to comply with the Seventh Amendment’s requirement of a civil jury trial for all suits at common law. In this case, the court has to determine whether Jarkosy’s logic extends to the fines the Federal Communications Commission levies for violations of federal communications law. The case stems from two consolidated appeals involving two telecommunication giants, AT&T and Verizon. In two agency proceedings, the FCC determined that AT&T and Verizon had violated a provision of the Telecommunications Act of 1996 that requires telecom carriers to protect confidential consumer data, hear information about customers’ locations. The agency informed AT& T and Verizon of the violations and issued an order advising the companies of the resulting penalties, 57 million for AT& T and 46.9 million for Verizon. Both companies had an opportunity to respond in writing to both the determination of the legal violation and the order to pay the penalty. However, on appeal, the companies argue that these procedures don’t comport with the Seventh Amendment’s requirement of a jury trial in a matter involving civil penalties. AT&T appealed its case to the Fifth Circuit. Wonder what happened there with regard to the agency action.

 

Leah Litman What a mystery!

 

Melissa Murray In any event, they argued at the Fifth Circuit, among other things, that imposing the fine in an in-house FCC proceeding violated the Seventh Amendment’s right to a jury trial. And shockingly, the Fifth circuit agreed, throwing out the fine. Writing for the majority, judge and friend of Stanford Law School, Stuart Kyle Duncan, characterized the process as, quote unquote, completely in- house with the agency acting as prosecutor, jury, and judge.

 

Kate Shaw But twist, or really just circuit split, Verizon’s appeal was heard.

 

Melissa Murray That was her second circuit.

 

Kate Shaw Turns out we get a lot of these courts. The Fifth went one way, the Second Circuit upheld the fine against Verizon. Writing for that court, Judge Allison Nathan said that nothing about the commission’s proceedings transgressed the Seventh Amendment’s jury trial guarantee. So at oral argument, we predict that the justices will focus on the FCC’s argument that an in-house proceeding that leads to the forfeiture order is not a lawsuit, much less a lawsuit seeking money damages for purposes of the Seventh Amendment. The SG, who is arguing on on behalf of the FCC. Maintains that there is no money at stake and therefore no obligation to have a jury trial because the FCC actually can’t require a carrier to pay a single dime. The only obligation to pay would come if the DOJ brings a lawsuit to enforce the forfeiture order and wins, and the carrier then does have a right to a jury trial. And that’s something that Sauer emphasized in the brief and that I imagine will feature prominently in the oral argument. The telecom companies disagree. They say that just because there is this like after the fact possibility of a jury trial. That is not enough to satisfy the Seventh Amendment. They say that the Supreme Court has never approved this basically penalty now, but have a trial later approach the Seventh Amendment. They want a jury trial before the FCC issues a forfeiture order full stop.

 

Leah Litman So AT&T and Verizon, they focus more on the forfeiture orders, which they say are basically the agency’s determinations that there has been a violation and that they’re not, you know, just like an initial preliminary, some might say interim, you know, tentative suggestions. And, you know, they also kind of suggest that carriers treat the forfeiture orders as in that they’re not usually waiting around to see. If the DOJ will attempt to enforce them. And the FCC argues that a ruling in favor of AT&T and Verizon, quote, would seriously disrupt the Commission’s administration of federal communications laws, forfeitures, it says, quote are among the FCC’s most important enforcement tools. Without them, quote many vital rules such as those protecting privacy, combating calls and regulating broadcasting. Would go effectively unenforced,” end quote. And Neil Gorsuch says, don’t threaten me with a good time. More seriously, when Jarkesy came out, I had an article in the Texas Law Review, the new substantive due process that basically described how the court was refashioning the 7th Amendment together with removal law based on this free-floating idea of liberty that kind of resembled the old individual rights. Line of substantive due process cases, and this case seems like another kind of opportunity to take that and run with it, I do hope that this case will at least generate another iconic oral argument clip in Jarkasee that was the Justice Kagan telling the advocate, no one has ever had the chutzpah to make this argument before. And he then put it on his website. Like Justice Kagen says. I know.

 

Melissa Murray Justice Kagan says, no one has ever done this. Yep. I love that for him. All right. On April 22, the court will hear oral argument in Blanche versus Lau. This case used to be captioned Bondi versus Lau, listeners, I just read that as Bondi vs. Lau. And I have to say, I’m a little Freudian. Yes, indeed. Anyway, it used to be called Bondi versus Lau, but because Pamela Jo Bondi’s legal career took a trip over the Rainbow Bridge, it is now captioned Blanche versus Lau. But don’t get too used to this, Todd. By the time we get an opinion here, the case will likely be captioned Schmidt versus Lau or Zeldin versus Lau or Fransia versus Lau anything that could happen. It’s all out there. Anyway, this is a cremigration case. And specifically, the question presented is whether to deport a lawful permanent resident, i.e., a green card holder, who has committed a crime of moral turpitude or a drug offense but was subsequently allowed to enter the United States, whether the government must prove that it had clear and convincing evidence of the offense when the green cardholder last re-entered the United States. Lawful permanent residents in the United States are exactly what that term suggests. They are non-citizens. You have been granted lawful status to stay here in the US permanently, so long as they observe relevant domestic laws. And once they have been guaranteed that green card status, LPRs are permitted to travel in and out of the United states. And a lawful permanent resident who is returning to the United State after a trip abroad is generally. Not regarded as seeking an admission into the United States because they have the green card, they have permanent status, they have already been admitted to the United State in a permanent way.

 

Kate Shaw So here, Muk Choi Lau is a lawful permanent resident who has been living in the United States for almost 20 years. In 2012, he took a short trip out of the country and then returned to New Jersey. Under the relevant immigration statute, he says he was not seeking admission when he returned. He had already been admitted to the United States. The problem is that prior to his trip, he had been charged with trademark counterfeiting, to which he later pled guilty and received a two-year probation sentence. On that basis, when Lau returned to new jersey, an immigration officer allowed him to re-enter. But said he was being, quote, paroled, which is a discretionary decision to let immigrants into the country rather than just being admitted without any strings because he was the subject of pending but not yet proven criminal charges. When he later pled guilty, the government sought his removal as inadmissible because he had been parol in rather than the government pursuing the deportation procedures that are totally different and that would normally apply to a lawful permanent resident. So Lau contends that a lawfully permanent resident returning to the United States after a trip abroad is not seeking admission, and the immigration officer therefore should not have paroled him into the country but admitted him, as with any other lawful permanent resident. The government, on the other hand, contends that the pending criminal charges were enough to render him inadmissible when he returned. The LPR statute states that an LPR who has committed a criminal offense cannot claim the general not-seeking-admission rule and both sides agree that a clear and convincing evidentiary standard applies to the parole determination.

 

Leah Litman So Lau lost before an immigration judge and before the Board of Immigration Appeals. But on appeal, the Second Circuit ruled that because all the immigration officer at the airport knew when he marked Lau as paroled was that some criminal charges were pending, the officer should have applied the not seeking admission rule. This means that at oral argument, the justices will likely be focusing on whether at the time Lau returned to the United States from his trip abroad, the immigration officer had enough evidence to not admit him. The Solicitor General argues that the government met the statutory standard both at the airport in 2012 and now, such that Lau may be removed.

 

Leah Litman [AD]

 

Leah Litman Tradition that we haven’t always adhered to, but I’m just gonna invoke here. And that is the clip without context. So wanted to play for you a recent moment during an oral argument that happened last week.

 

Clip I don’t know what’s radical left about being anti-Nazi.

 

Clip Do you? Your honor, this is not about anti-Nazi.

 

Clip About being anti-Nazi, right?

 

Clip Your honor, this is not about whether anyone is anti-naught.

 

Clip Nothing radical left about being anti-Nazi.

 

Clip Judge Mallette, this is not about being anti-Nazi.

 

Clip That’s what you say.

 

Leah Litman This arose in the Media Matters case challenging the retaliatory investigation of Media Matter’s alleged retaliatory investigate after Media Matter called out the Nazi ads on Twitter. You will notice that the lawyer for the FTC didn’t exactly answer the question of whether there was anything radical about being anti-Nazi. Is that a t-shirt? There’s no.

 

Melissa Murray There’s nothing radical about being anti-nazi.

 

Leah Litman Um, it could be. It’s a little long, but I think it would be good. Um, okay. Favorite things, you know, we are in the market for a new summer drink. Some people in the Crooked Friends of the Pod Discord have suggested there is a dictator smasher drink that includes Ukrainian vodka, sweet vermouth, and a little bit of orange bitters for an anti-Putin, anti-Orban, anti-Trump cocktail. I like that. But a member of the Trump administration actually floated another possibility that we wanted to give him credit for here.

 

Clip The Straights of Vermouth, have not been completely reopened.

 

Leah Litman Yes, the straight of vermouth, um, interesting little Freudian slip there, but.

 

Melissa Murray Well, at least it wasn’t the straight of heroin off a toilet seat.

 

Leah Litman OR or

 

Melissa Murray wait, wait, penis. Um, because it wasn’t heroin. You can’t do heroin on a toilet seat. It’s the cocaine. Okay. This again, I’m like showing my ignorance.

 

Leah Litman Yeah, but another one of my favorite things was going to be a story described in the book rfk jr The Fall and Rise which is by journalist isabelle vincent who relies on a series of alleged kennedy diaries And she maintains that rf k jr once removed a dead raccoon’s penis to quote study later while His wife and kids waited in the car. So according to the book kennedy wrote in a 2001 entry quote I was standing in front of my parked car on I-684 cutting the penis out of a road-killed raccoon thinking about how weird some of my family members have turned out to be.”

 

Melissa Murray By some of my family members he met himself.

 

Leah Litman No, I wasn’t totally sure. For those of you listening who might be affiliated with Georgetown, the day this episode is released on Monday, I’m doing an event at Georgetown Law School with friend of the pod, Professor Steve Fladek, about my forthcoming article in the Georgetown Law Journal, The Pass Advices. So excited about that. Come see it. Also wanted to give a shout out to the student editors, whose great comments definitely have improved the piece. I hope my… Updated revised version will post on SSRN shortly. Also, one last favorite-ish thing, and that is, so I joined a casebook for constitutional law a few years ago, and we are about to start revisions for a new updated edition. So if you use what was the Stone-Sideman-at-all constitutional law casebook, I would love to hear from you whether. One, you teach the Second Amendment in your Con Law class. And if so, how you use it. Does it illustrate interpretive theory? Or are you doing it as a substantive area of law? And also, whether and to what extent you teach The First Amendment in that intro to Con Law class, all of that would be super helpful. So feel free to email me. Yes, interpretive method, and no. OK, super helpful, thank you. But I don’t use your book, so. What, girl?

 

Melissa Murray Maybe the new revision will entice you. Maybe the revision will untice me. We’ll see. All right. My favorite things include the book Lady Tremaine by Rachel Hochhouser. And if you’ve listened to my book recommendations in the past, you know I love a book where they take a well-known story but tell it from someone else’s perspective. Like, Longbourn was told from the perspective of the servants in Pride and Prejudice. So Lady Tremeaine is the Cinderella story told from The Perspective of the Evil Stepmother. Who twist is not that bad and I kind of love that so I’m enjoying it a lot. I also had the pleasure this week of going to a concert with my dear friend Kate Shaw and some other friends. We went and saw West End Girl and we really wanted you to be there Leah. We had our fans with your head on it like with us so you were there in spirit but I have to say like Kate is going say more about it, but. The show really slapped. Although, I have to say, if I were Lily Allen, I don’t know that I would love spending a whole half a year going on tour reliving the breakup of my marriage. And I think that may have been why her demeanor was a little kind of like, she was fucking over it. I think she was over him and the songs. But she gave a great show. It was a great. But it wasn’t a Beyonce show. There was no flying car.

 

Leah Litman I’m going actually when you listen to this episode I will have gone the night before and I got my nails done for the show I don’t know if you can see okay. I can see this one is like a little tennis ball Oh, there’s a tennis ball on your accent nail and then the other hand is like silver and accent nail with the tennis ball Yeah, I wanted a Duane Reid bag, but I just didn’t think the details would really come through

 

Melissa Murray It’s going to be hard. That’s OK. I also saw another concert last week. I went to Symphony Spaces big annual gala event, and it turned out to be in honor of Symphony Space’s 50th anniversary. They decided to have Broadway singers sing the entire Rumors by Fleetwood Mac album. And it’s one of my favorite albums. I fucking love it. It’s such a good album. Like, there’s so many great hits on it. Fleetwood Mack was absolutely fantastic. And there was all of this great trivia in the middle. So at one point, they noted that Rumors has gone platinum 26 times or something crazy. It’s sold more copies than both Revolver and Abbey Road, two huge Beatles albums. And this was the best, best bit of trivia. While Rumors was being written and recorded, there were five breakups in Fleetwood Mac. But Fleetwood only has five people. Think about it. The math. Isn’t it four? There’s five. No, I think there are five. Oh, are there? There’s Lindsay, Christine, Stevie, Nick, and then Christine’s husband. Oh, they’re John, John, I don’t know what his name is. Yeah. I thought that-

 

Kate Shaw Yeah, just two and two.

 

Melissa Murray One more thing. I just want to say I went to USC out in Los Angeles for a workshop. I did the paper that Kate and Leah and I have that’s going to be forthcoming in the Northwestern Law Review. Got great comments from the USC faculty. Thank you so much to all of the faculty members who showed up for that. And I got to meet some stricties in the wild. I’m Claire and Bernadette who introduced themselves. So thanks so much for supporting the pod. And then finally. My last favorite thing ever, and I know this actually happened two weeks ago, but I wasn’t on last week’s episode. But I wanted to just, I didn’t know if you guys mentioned it. But I was so buoyed by the sight of Victor Glover, astronaut, moisturizing in space. And as a black mom, I’m like, yes, sir, exactly. Because there was once this time when I was at a law professor conference, an Elie Mystal, friend of the pod, shouted my name across the the like the auditorium or wherever we were and he’s like Melissa Murray and I’m like what what he comes over to me he’s, like do you have lotion in your bag and I was like of course I do he’s like I knew you would you’re a black mom and he was right like we moisturize like I’m always carrying lotion in case my kids need to be moisturized. Victor Brown.

 

Kate Shaw And Victor brought his own to space.

 

Melissa Murray He was like, nothing’s going to stop me from moisturizing. And I’m like, I feel you, Victor. I get it. I get.

 

Leah Litman An additional favorite thing, no he doesn’t, an additional Artemis II thing is the video of the astronaut Christina reuniting with her dog.

 

Melissa Murray Oh.

 

Leah Litman So adorable

 

Kate Shaw Artemis II content was just like the best thing. Really like since January of last year, I think it’s like, it has sparked the most joy. That crew is totally incredible. And also a reminder that government actually can do pretty incredible things. It’s like the empty doge. Especially when they use DEI. Especially when the do, because like, you know what? Yeah, there’s a lot of people who could be astronauts. And like, yeah, it’s, yeah. This like diverse crew, like fucking delivered. Um, wait, I don’t want to cut you off them. I’m sorry. We good. I’m done. Now I’m, now I’m down. I just wanted to talk about lotion. Totally. And Victor and the rest of that crew. Um, okay. So I want to plus one, the, uh, West end girl experience with Melissa. The fans were amazing. I agree that Lily Allen seemed, I didn’t know if she was like. Just a little tired or like a little just over it. I couldn’t quite tell, but it was like, it was, it was an understated performance, but the songs were great. And the fans were amazing. And they were not understating. The call and response, they at the end of the West End Girl, like this first song in the album, when she’s doing this like one-sided phone conversation, there was like a lot of gap filling by energetic members of the audience that I love.

 

Melissa Murray He doesn’t deserve you. Stranger things suck.

 

Kate Shaw Yeah, both of those things were uttered in Radio City Music Hall, so it was great. Okay, a couple other things. The song, What I Want, which Leah, you recommended on the emergency episode that you did with Shannon Minter by Muna, is that who the band, who the artist is? Oh my God, that song is so good. And so is the entire catalog of Muna which I did not know and thank you for bringing that into my ear holes. The novel Playground by Richard Powers, I read and Melody and I have had a back and forth about it and I feel like I can’t really say anything about it. Because like it’s almost impossible to talk about it without doing some spoiling, but it was fascinating and people should read it Japan I was just there for my kids spring break and was that had the most amazing time and absolutely loved it Had never been to Japan had never been East Asia at all. Like I just really want to go back ASAP And we asked because I missed two episodes. Did you guys talk about the times? I think I’ve listened to every minute, but then maybe I missed something that reporting completely bananas reporting on the investigations into sexual misconduct at the Labor Department. Okay, this is maybe a weird favorite things, but I will say that I definitely read it more wrapped than any other investigative reporting since the Times broke some of the aspects of the Kristi Noem, Corey Lewandowski scandal. I mean, this just like a new set of completely bonkers allegations of misconduct, including sexual mis conduct at the labor department. Like, so we already. Knew that there had been a number of departures from the Labor Department, including of the secretary’s director of advance and a member of her security detail with whom she was accused of having an affair. But new revelations suggest that there has been inappropriate text messages sent by the secretary’s both husband and father, including to the same young female staff member. So this is just an allegation of multi-generational sexual harassment of a sort that I… Was personally not familiar with. And I just like there is no bottom, I think, is the takeaway. So people should definitely read that truly jaw-dropping story from the times if they haven’t. That’s a rough note to end on. Also, all Artemis II content. Let’s do more some

 

Leah Litman Let’s try to add some actual potential favorite things. OK, slash exciting. OK, do you have any ideas? I mean, I do. So as we have mentioned before, June is bad decision season. And so we are launching a copium, which is, of course, going on the road as part of the bad decision. Tour. So we will be live at the Historic Gramercy Theater on Saturday, June 20th in New York City as part of these bad decisions tour. And the tickets are on sale now. Grab them while you can at crooked.com slash events. For those of you who don’t know, I bring special custom shirts to our live shows as part the VIP meet and greets. We always love meeting stricties. That time is just sure to be a wild time at the court. And you can also get books signed.

 

Melissa Murray You can order your copy of the U.S. Constitution, a comprehensive and annotated guide for the modern reader. If you’re not modern, don’t buy it. Not for you.

 

Leah Litman If you know not modern people, maybe get the book for them. Anyhow, like if you’re aspiring to modernity, that works. This is the book, for you. That’s actually also the week that the paperback version of my book will be out. So you can get it freshly signed. And yeah, so be sure to get those tickets and come to the show.

 

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