In This Episode
Kate, Leah, and Melissa preview what fresh hell SCOTUS has in store for us this term, including challenges to the Fourteenth Amendment and the Court’s continued obsession with fighting the culture wars. Then, after breaking down the latest legal news, the hosts welcome Lieutenant Governor of Illinois–and Senate candidate–Juliana Stratton to discuss Trump’s plan to deploy the National Guard to Chicago, how state and local governments can push back against this administration, and what gives her hope in this fight. Finally, a game to commemorate Chief Justice Roberts’ 20 long years on the Court. This episode was recorded live at the Athenaeum Center in Chicago.
Favorite things:
- Leah: Bone Valley: A True Story of Injustice and Redemption in the Heart of Florida, Gilbert King; Without Precedent: How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights, Lisa Graves; One Battle After Another; The Life of a Showgirl, Taylor Swift
- Kate: WBEZ Chicago; Block Club Chicago; Chicago Reader; The Chicago Sun-Times on Broadview; Heart the Lover, Lily King
- Melissa: Ta-Nehisi Coates and Ezra Klein Hash Out Their Charlie Kirk Disagreement; Tony Shalhoub’s Breaking Bread (CNN); Mexodus (Audible’s Minetta Lane Theater); Meghan Markle in Balenciaga
Get tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.com
Buy Leah’s book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes
Follow us on Instagram, Threads, and Bluesky
TRANSCRIPT
Leah Litman [AD]
Show Intro Mr. Chief Justice, may it please the court, it’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Melissa Murray Hello, Chicago! You look really fantastic. Not at all like a second city. I think you are the first city tonight. We are so excited to be here. We are Strict Scrutiny. Your podcast about the Supreme Court and the legal culture that surrounds it.
Leah Litman AKA the life of a SCOTUS podcast live show girl. We are your hosts live from Chicago. I’m Leah Litman.
Melissa Murray And I’m Melissa Murray.
Kate Shaw And I’m Kate Shaw. And Chicago, we are so delighted to be here in my beloved hometown. And we are very appreciative of the warm welcome. You all have given us a much warmer welcome than you all have give some other interlopers who have descended on this fair city.
Melissa Murray Some people don’t know how to be good guests, that’s all I’m saying.
Kate Shaw They do not. And yes, later in the show, we are going to talk about the outrageous conduct of some federal officials who are ostensibly enforcing immigration laws, but are actually terrorizing the population and the way Chicago and Illinois are responding. Even in these grim circumstances, it is wonderful to be here. It is wonderful with my co-hosts on stage. We don’t get to be together in person all that often. It is great to be with all of you, our friends, the ones with matching scars. This is not gonna be the only Taylor Swift reference you will hear this evening.
Leah Litman So again, we are so happy to be here. Midwest is best. We are somewhat less delighted about the occasion, which of course is the start of a new SCOTUS term. Wait, wait, wait. Did the old term end? Yes, you can.
Kate Shaw You can hiss. Yeah.
Leah Litman When did the old term end? So in order to set the stage for the new term, we have to look at SCOTUS terms past. We call this eating out of the trash.
Melissa Murray Yes, we are just little SCOTUS raccoons. Seriously, this last term was like the 1980s movie, the never-ending SCOTus term. That is a deep cut for you Gen Xers. We sat through so many bad decisions, Skirmetty, McMood versus Taylor, and that was all before we were inundated by the cruel summer of the shadow ducat decisions where this court gave this administration’s lawlessness win after win after wit. And so with that in mind, and in the spirit of a Brett Kavanaugh listicle, I am going to tick through some of the bullet points of this summer. So first, the court, with little or no explanation, allowed the federal government to, one, stop and detain people because of their race and the language that they speak. We call this racial profiling. It used to be bad. Used to be unlawful, but now apparently okay. The court also allowed the federal government to withhold $4 billion in foreign aid funds that had been previously appropriated by Congress. We would have called that a separation of powers, but that is a bad thing right now. We also saw the court bless the administration’s efforts to dismantle the Department of Education. We also this court allow this administration to fire top federal regulators who do things like protect consumers. Ensure that products are safe. Guarantee that labor laws, wait for it, protect workers. It’s been a big summer. And don’t worry, there are more petitions and more applications pending, including one that could hand Donald Trump the power to truly wreck the global economy by fully politicizing the Federal Reserve Board. So they are going to hear oral argument on that matter in January, and what can I say? Like so many things in January will be wild.
Leah Litman Year, same BS. Just a quick explainer on the federal reserve thing. The court has allowed Trump to fire basically every official Trump wants to fire in violation of federal law, as litigation challenging those firings is ongoing. And in their initial opinion announcing this magical new rule, they kind of said every official except the Fed. Because the justices and many of the conservative overlords that have shaped this court have investment accounts. I protect the family, 401k.
Melissa Murray She’s going to be like this all night long.
Leah Litman It’s true.
Melissa Murray All night.
Leah Litman I only had three cookies.
Kate Shaw So as Leah and Melissa both said, the court will actually hear arguments on this Federal Reserve issue in January. The underlying issue is whether Trump can fire Lisa Cook, a governor on the Federal Reserve Board. But what they’re hearing in January is actually just technically oral argument on the stay application. The court did not definitively deny Trump the ability to fire Cook while the litigation is ongoing regarding the lawfulness of her purported firing. They just decided they needed to hear oral argument on that question before resolving the stay application. So this does have the effect of allowing Cook to keep her job for at least a few months. But this isn’t really a big mark in the Trump is dealt a loss at the Supreme Court column. It’s just a delay for the court to actually consider the stay applications.
Melissa Murray So what Kate is saying is, are we out of the woods yet? No. No, we are not. Because when this court typically migrates a stay application from the shadow docket to the merits docket, usually the party seeking the stay, which is often the federal government, prevails more often than not. So for example, here we are pretty much timed to see another victory, maybe, for the court.
Kate Shaw I don’t know here. I think this one, they’re genuinely cross-pressured here.
Melissa Murray Yes, I mean, the 401Ks.
Kate Shaw Well, they want those, but they also want the presidential power. And so this is the cross pressure.
Melissa Murray So hard.
Kate Shaw It’s so hard. So having kicked the can, at least for now, while they decide how to resolve this cross pressure, the court did apparently feel the need to squeeze one last bad decision in before the end of the last term. So on Friday night, the court issued yet another shadow docket order allowing the administration to cancel temporary protected status for Venezuelan migrants. Temporary, yes. Temporarily protected status or TPS gives individuals. Legal authorization to remain and work in the United States when conditions in their countries of origin warrant it.
Leah Litman Another Friday night drop is the Supreme Court in their showgirl era. Sorry I had to. You know, the court’s order in this case is filled with a big fat lie. They said they had previously resolved this matter referring to their stay of a preliminary injunction in the case, but as the Court of Appeals noted, this isn’t the same case that existed at the preliminary stage, because now courts have reviewed this thing called evidence. The Supreme Court obviously not familiar with the concept.
Kate Shaw So all three Democratic appointees noted their dissent in this order, but only Justice Jackson actually issued a written opinion. And so that was only for herself. And it’s worth quoting a couple of sentences from. So she closed with this, quote, this court plainly misjudges the irreparable harm and balance of the equities factors by privileging the bald assertion of unconstrained executive power over countless families’ pleas for the stability our government has promised them.
Leah Litman So I kind of thought we were in a government shut down, and we only shut down the good parts. Well, that stinks. I would hope that it would shut down these guys, too, or at least the shadow docket, or if it doesn’t merit a full shut down maybe just unplugging and replugging the cord back in to see if that fixes things. We might need a factory reset. Yeah, unless there is no rest for the wicked or the constitution.
Melissa Murray But don’t worry, they are not resting, which means we are not resting either. So here is what we have on tap for you tonight. First, we will start by doing some big picture themes, previews if you will, of this upcoming term. And although we are going to mention some specific cases, we are not going to do our usual deep dives into these cases. If you want the dives on these specific cases. You are going to have to subscribe to our YouTube channel and you will have to hear it there for yourself. So it’s not okay to be a fair weather fan and only show up for the live shows. You’ve got to subscribe and be there every Monday, just like we are, and we know you are. So we will be covering these cases in depth every Monday in your ear holes, but for now, we’re just going to hit some of the highlights. We are then going to cover some assorted legal news. And then because we are in Chicago and this is a live show, we have a very special guest. I think you may know her, yes? She is Illinois’s Lieutenant Governor and a candidate for the U.S. Senate, Juliana Stratton, so she’s here in the building and she’s going to be joining us, so give it up for her. And that’s not all.
Kate Shaw I don’t think they’re going to give it up the same way for our last segment.
Melissa Murray I think they will give it up. Maybe just the tip, but more? Okay.
Kate Shaw Melissa just learned what that means.
Leah Litman As we were backstage. She’s like, Leah, my friend said you said this thing just the tip and he thought it was like really funny.
Kate Shaw Explaining that to her was one of my proudest moments, actually.
Leah Litman You just brought that on yourself.
Melissa Murray It’s not often that I get to be Kate Shaw.
Kate Shaw But it happened tonight.
Melissa Murray It happened tonight, yes. And whoa, I can’t unsee it. So for our last segment, we are going to have a strict scrutiny game. And this game is going to be a game in honor, a tribute, if you will, to John G. Roberts and his 20-year tenure as Chief Justice of these United There are no John G. Roberts fans in the audience. I’m genuinely surprised.
Kate Shaw Truly shocking.
Melissa Murray It’s truly, truly shocking.
Kate Shaw So to give you a sense of the occasion for our games, Roberts is already the third longest serving Chief Justice in the court’s history. And I feel like I have felt every minute of it. He only has 14 more interminable years to beat Chief Justice John Marshall’s tenure as chief, and actually just eight years before exceeding Roger Taney’s tenure.
Melissa Murray Some might say he has already exceeded Roger Taney’s tenure.
Kate Shaw Tony’s someone who’s being recognized more and more. Have you noticed that?
Melissa Murray Yes, Roger Taney is in his redemption era, yes.
Kate Shaw Regrettably, yes, and if you want to know more our last episode will be a good primer. Yeah redemption court Okay, we are going to shift now to some term themes But before we actually do that we want to kind of offer an asterisk to the kind of very idea of a Supreme Court term preview because in the age of The rocket docket formerly known as the shadow docket term previews are going be totally incomplete And a part of me kind of worries that even the idea of the term preview that just focuses on the case the court is slated to hear on the merits, kind of ratchets down interest in and focus on what happens outside of the merits docket. And as you know, if you’re a listener, so many important matters are decided by the court these days on the shadow docket
Melissa Murray I would even go so far as to say that the shadow docket may be the most important part of the court’s docket right now, especially if you want to understand what this court is doing and how impactful it is on our daily lives.
Leah Litman Yeah, 100%, and we don’t know and won’t know many of the important issues that will make their way to the shadow docket for this term. Now the court does have some Trump cases on its regular merits docket already, challenge to the tariffs, case about whether the president can fire members of the Federal Trade Commission, as well as a governor of the federal reserve.
Melissa Murray So those two cases were migrated from the shadow docket to the merits docket. And there’s another case that has also emerged from the Shadow Docket and will now be on the merits’ docket, and that is to say the court is very likely and seems quite is going to determine whether this administration can unilaterally rescind the 14th Amendment’s grant of birthright citizenship. So we’re going to find out if the 14 Amendment is fact unconstitutional, in part or in full. A part of the Constitution, is it?
Kate Shaw If these are not arguments, we knew were serious arguments, and yet that’s how much the goalposts have shifted. Off the wall, on the wall. Yeah, so technically speaking, the court has not yet granted a petition in the birthright citizenship case, but as Melissa says, it is absolutely certain that they are going to take that case up. The administration has already asked them to do that, and I think it’s a question of when and not if. But with those kind of caveats about a term preview duly issued, let’s talk about the upcoming term, and we will start with some themes that are emerging both on the merits docket and on the shadow docket as the two kind of converge.
Leah Litman So one theme seems to be picking up on the birthright citizenship matter, something like time’s up, but for the 14th Amendment, as well as some butt-actualing, the 14 Amendment. So there seems to like this cockamamie idea that the 14 amendment had an expiration date when it comes to protecting the rights of, I don’t know, racial minorities and anyone who isn’t Pete Hegseth. These folks do think that the 14th amendment does contain one permanent principle. Which prevents the government from protecting civil rights. Like this is literally, if you spell it out, the new vision of the 14th Amendment is one where the 14 amendments protections for civil rights were subject to an expiration date, which is now, except when the 14 amendment declares anti-discrimination laws to be the new discrimination. No expiration date on that baby.
Melissa Murray So this should be really familiar to you all because we have talked about this. This is an ongoing theme throughout many terms on this court, but it really does seem to be reaching a fevered pitch. And one case where I think it’s going to be especially apparent is in Louisiana versus Kelly. This was a case from last term that has been held over for this term. And the court has apparently decided that it needs to determine in the context of this case whether section two of the Voting Rights Act, this is the part of the voting rights act. That is a nationwide ban on discrimination in voting, whether, in the context of section two, the consideration of race in remedial measures for voting discrimination is, in fact, unconstitutional.
Kate Shaw Section two, key provision of the Voting Rights Act still standing, since the Supreme Court dealt an enormous blow to the Votting Rights Act in the Shelby County case in 2013, prohibits among other things, legislatures from discriminating against minority voters by diluting their political power. So one way it does this is by prohibiting legislatures from drawing districts that over-represent white voters and it requires legislatures to draw districts where minority voters are fairly represented and have equal political opportunities. At least where such districts are feasible in the context of residential segregation.
Melissa Murray Right, that seems like a pretty modest ask, like letting racial minorities have a say in our democracy. But apparently, even thinking about race as you try to construct a system that is fair to minority voters is apparently a bridge too far. So thinking about raise as you tried to remedy racially motivated vote dilution is apparently now illegal on constitutional race discrimination. Or it might be if some portion of this court has its way.
Leah Litman Just so you know who to thank for this dumbass, the 14th Amendment has an expiration date on the Voting Rights Act theory. Let me remind you that Brett Kavanaugh sits on the Supreme Court and two years ago, oh, love that noise, love the noise, oh my goodness. That’s the Kavanaug hunk and I love it. Two years ago, in a cat occurrence in Allen vs. Milligan, a virtually identical Voting Rights Act challenge, which Louisiana said in that case was virtually identical to this one, Coach Kavanaugh decided to float his theory that the Constitution only allowed Congress to adopt race-conscious remedies in the Voting Rights Act for a limited period of time. And what do you know? Time’s up. Honestly, I’m low-key surprised Brett Kavanaagh is into Time’s Up. I’m not because
Melissa Murray Oh, ow, I got it, I’ve got it. Thank you. I got. I think he’s really into this expiration stuff because it’s basically like a shot clock on the Constitution. Like, yeah?
Leah Litman He loves basketball. Sports. That was my impersonation of Amy Barrett.
Kate Shaw Yes, I figured, yes, but maybe not everybody got it. So just to break this down a little bit more, these justices, including Brett Kavanaugh, claim to be originalists, right? They say they think the meaning of the Constitution was fixed when the document was drafted and ratified. And yet, they somehow seem poised to embrace the theory that the Voting Rights Act was constitutional when it was passed in 1965, maybe when it was amended in 1982. You. But that the same constitutional provision, which to be clear hasn’t changed the 14th and the 15th amendments, now don’t allow the Voting Rights Act in 2025, right? So if we’re being technical, it really sounds like a vision of the constitution that is evolving or like devolving rather than originalist. That’s it.
Melissa Murray Instead of living constitutionalism, it’s dying constitutionalism. Yes, yes, yes. Let me say a little bit more about these erstwhile originalists, who apparently have no idea about the circumstances under which the 14th and 15th amendments were drafted and ratified. And spoiler alert, this was not a situation where Congress was really concerned with race neutrality coming out of the Civil War that ended slavery. And in their zeal to include the formerly enslaved in the body politic, not interested in a colorblind constitution.
Leah Litman Yeah, so, and Louisiana versus Calais isn’t the only case that has a kind of confused vision of equality and discrimination. There are other cases, including the ones challenging the exclusion of transgender athletes from sports. Right, so.
Melissa Murray These are two cases that have been consolidated, Little versus Hecox and West Virginia versus BPJ. And they both involve state-level bans on trans persons participating in sports teams that track their gender identity. Both cases ask whether the state bans violate the Equal Protection Clause. And one of the consolidated cases involves a Title IX claim. Title IX is the federal anti-discrimination law prohibits individuals or entities that receive federal funds from discriminating in educational activities or programs. And I really worry that in presenting the court with this Title IX claim, we are giving the court an opportunity to say that Title IX actually requires schools to discriminate against trans kids in order to safeguard women’s equality. This is an argument. That the Trump administration is making all of the time in its EOs and it would not surprise me at all if one of the justices in the six to three conservative super majority also decided to let this one fly in a concurrence or maybe even a majority opinion.
Leah Litman Yeah, because the administration that is so eager to blame women for autism is very concerned about protecting women. The other case in this category for me is Childs versus Salazar. That is the First Amendment challenge to the state law banning conversion, quote, therapy. The kind of, quote therapy, that tries to counsel people out of being gay, lesbian, or bisexual, or transgender. A UN expert has declared it a form of torture. Medical experts have opined that it is junk science. Part of what makes this case so unhinged to me is that the Colorado law is just a licensing scheme. So all Colorado has said is that licensed therapists, people in a profession that is regulated and screened by the state can’t do conversion therapy, something that is rejected by the standards of their profession. And the question in this case is who is the victim? Is it the gay or trans patient who a therapist tries to torture and deny their existence? Or is it the Christian therapist, who is subject to the state’s efforts to regulate the provision of professional medical care? This is a culture war court and they have taken a side.
Melissa Murray Let me weigh in some more on this whole culture war court. This is not the only issue in the culture war with which this court is preoccupied. The court on Friday granted certiorari in another enormous Second Amendment case. This case is called Wulford versus Lopez, and it considers whether states may presumptively ban concealed carry on private property except in circumstances where the property owner permits gun owners to concealed carry on their property. So this is a big one.
Kate Shaw OK, so in addition to the court’s eagerness to wade into culture war issues and a possible expiration date for the 14th Amendment, at least for some purposes, I think there are a couple of other related themes to highlight. One is the likely continued weaponization of the First Amendment, even while the executive branch tramples it in all kinds of ways, but the continued weaponisation of certain forms of the first amendment to achieve reactionary goals. And here I’m thinking of two cases in particular. The first is the one that Leah and Melissa were just talking about. Chiles versus Salazar, the challenge to a Colorado prohibition on conversion therapy. I do have this like possible silver lining hope about this case that is if the religious therapist wins, as I think Melissa and Leah correctly predict that they will, if there’s language in the case, in the opinion that the court issues about the First Amendment, which is a First Amendment case, precluding government from taking too heavy a hand and prohibiting certain sorts of medical treatments. It would be, to be clear, a very hard pill to swallow in light of the court’s decision last term blessing the Tennessee ban on certain medical care for trans youth in the Scrumetti case. But a decision in this case could, at least in theory, potentially be deployed to resist state efforts to prescribe or prohibit certain forms of medical care. And in this moment, anything that makes it harder for government to dictate treatment with Secretary Bearjuice as chief health regulator might be a good thing. So that is the silver lining that I am. Attempting to see in this case.
Melissa Murray Kate. I love your optimism.
Kate Shaw I’ll wait for it, yep, no, go ahead, I deserve it.
Melissa Murray I do.
Leah Litman This is an intervention.
Melissa Murray This is my conversion therapy for you. I think this case is really going to be hard for this court to literally lean back from their own tendency toward utter hypocrisy. Because conversion therapy has, as Leah says, lots of detractors in the actual medical community. And some might even say that the question of the efficacy of conversion therapy is a matter of debate and controversy, Not unlike the court’s depiction of gender-affirming care in Skirmetty or its depiction of abortion in Dobbs. And I guess in circumstances where certain treatments are being debated and their efficacy is questioned, aren’t we supposed to defer to state legislatures? Isn’t that the idea? Yeah.
Kate Shaw Well, if the court is being consistent. Again, Kate. You’re almost there. I’m not saying they will. You’re saying if they are. You’re so close. You’re just so very close.
Melissa Murray So very close, yes, yes. Yeah, that’s all.
Leah Litman They are being consistent, though, in the following way, right? Like, the court has one set of rules for right-wingers, reactionaries, and the mega rich, and another set for everyone else, like for my friends, everything, for Democrats and progressives and women and trans people and the gay and lesbian and bisexual community, the law, or at least my fantasy version of the law.
Kate Shaw I agree with the predictive claim, but I think it’s at least possible there could be language in the opinion that could be useful. But I have just floated the possibility. I am clearly in dissent on this panel.
Melissa Murray This is a two to one.
Kate Shaw But the second weaponizing the First Amendment case, I want to just briefly flag, is partially about the mega-rich. This is the first campaign finance case the court has had in a while, partly because there’s not that much campaign finance left to challenge, like it’s mostly gone. But there are some provisions of federal law that remain, and one is a limitation on the amount that political parties can spend in coordination with candidates, and a case before the court presents the question of whether that lone, it’s not lone, but that one of the few remaining provisions of federal law that does impose this kind of limit violates the First Amendment. And so the National Republican Senatorial Committee is challenging that coordination limit. The Trump administration agrees, because of course it does. And the court has appointed a lawyer, Roman Martinez, to defend the statute.
Leah Litman [AD]
Kate Shaw The second theme I want to mention, I think, will also present both on the merits and the shadow docket. And that is whether the court is going to be willing to peek behind the curtain, and so, you know, to penetrate the black box of government decision making, as Melissa’s colleague Rick Pildes puts it, or basically instead pretend that this is a normal administration like any other.
Leah Litman John Roberts has it in him, or once did, to probe the facially preposterous representations made by this very president. So OG listeners will recall that we spent a lot of time in the early days of the pod joking the justification was necessary to enforce the Voting Rights Act, which was how the first Trump administration laughably tried to defend its efforts to add a citizenship question to the census. The court decided that was pretextual and struck it down, writing that, quote, we are not required to exhibit a naivete from which ordinary citizens are free. If anything, many of the justifications the administration is now offering are more preposterous than that one, although that one was just so good.
Melissa Murray It’s hard to top, necessary to enforce the Voting Rights Act.
Leah Litman It is, it is.
Kate Shaw And yet, I think, I think they will.
Melissa Murray That was actually Wilbur Ross. Not Brett Kavanaugh, like justice for Brett Kavanagh.
Leah Litman That was the sound they make when they’re starting to enforce the Voting Rights Act.
Kate Shaw They lined up to do it.
Leah Litman The rallying cry.
Melissa Murray I think this is a really good point and the tariffs cases, which will be heard on the merit stock at this term, I think is a prime example of this because this president is essentially taking ordinary episodes in the economic cycles of our lives and transforming them into emergencies. Like we have trade deficits, that happens. Like there are trade deficits. It’s not necessarily an emergency such that you get to use this power that literally hasn’t been used since Jimmy Carter invoked it during the gas crisis in the 1970s. It’s another one for you Gen Xers. You don’t get to just use that for bathroom vanities.
Leah Litman Or do you? Because he is asking for the power to shitpost his way to tanking the global economy and declare bathroom vanities essential to national security. More seriously, a lot of the president’s most chilling exercises of authority rest on pretextual emergencies, including the deployment of the National Guard.
Melissa Murray No, and there are no- new ideas right so we just learned that the president is trying to justify the fatal strikes on Venezuelan boats in the Caribbean Sea on the need to prosecute the war on drugs. Nancy Reagan would never. Would never.
Leah Litman You know, with the Trump cases that are already on the court’s docket, it seems like the court is going to fuck around and find out with going further and further down the rabbit hole that is the unitary executive theory taking us closer to making presidents kings and to a possible coronation of King Trump.
Melissa Murray Speaking of making the president a king, I think it’s time for our recurring segment. We need to talk about Justice Clarence Thomas. We do, though. So at a recent appearance, Justice Thomas was absolutely on brand.
Kate Shaw He was. And our OG listeners will remember not just the necessary to enforce the Voting Rights Act line, but also a regular line and a recurring segment in our first couple of episodes was, starry decisis is for suckers. I should have asked you to say it with me. Maybe you have the shirt. And obviously we didn’t just say that in the first couple of seasons, you have definitely heard us say it a few times since, because it is kind of evergreen when it comes to this court.
Leah Litman Well, as you know, we have been suggesting some new names for the docket formerly known as the Shadow Docket, like the We’re Perfect, We’re Beautiful, We’re Linda Evangelista docket, or the SCOTUS shitposts, or the Just the Tip docket. Because why? Because they say the country isn’t getting fucked. But the country is getting fucked! I am not a bad bitch and this isn’t savage this is just a fact.
Audience Applause
Leah Litman Anyway, as we were renaming the Shadow Docket, Justice Thomas decided to make the old chestnut stare decisis is for suckers great again.
Kate Shaw That’s right. So at an event in DC with his former law clerk, Jennifer Mascot, who is also a nominee to a seat on the US Court of Appeals for the Third Circuit, Justice Thomas offered the following thoughts on precedent. One, he said some decided cases are just based on, quote, something somebody dreamt up and others went along with.
Leah Litman Smells like immunity to me it sure does or the shadow docket.
Kate Shaw Or every Shadow Docket decision.
Leah Litman That’s us editorializing.
Kate Shaw He didn’t say that part.
Melissa Murray But here’s something he did say. So just as Thomas continued, quote, at some point we need to think about what we’re doing with stare decisis.
Kate Shaw So close. So close!
Melissa Murray Sir. Yes, we do. We do need to think about what you’re doing.
Leah Litman So the National Law Journal reported, he also said about precedent, quote, if it’s totally stupid, you don’t go along with it, end quote. Ah, yes, women’s rights, so stupid. Seriously, at this event, he said Griswold versus Connecticut about protecting access to contraception was a decision that didn’t make sense. This is big, he admitted, energy. Thanks, Clarence, for just saying it. Now, maybe all of the men who say we are hyperbolic doomsdayers will shut the fuck up. It does seem like. This term, the conservative super majority, is poised to go straight up starry decisive serial killer mode. On the chopping block is Humphrey’s executor. On presidential removal, Gingles versus Thornburg, a major voting rights precedent. I think it’s Gingles, actually. Yeah.
Kate Shaw Though it’s hard to overstate how foundational those decisions are but even harder to over state how foundational the idea of stare decisis is. It like sounds like this fusty latin word and concept. That’s how foundational it is. It’s in latin. It’s latin yeah that’s how you know it’s serious. That how you know. Yeah and we joke about it all the time but this is a doctrine that is about both humility like you don’t have all the answers and the accumulated wisdom of all those who came before might be or something? And it’s also a doctrine of stability, like we don’t want the law to change radically because of the whims of five or six justices, but this is a court that has very little humility and it seems increasingly unstable. Yes, and very little stability.
Melissa Murray Yeah, the humble stable part was the tell, yeah. So the whole stare decisis is for suckers energy is already concerning, you know, because we aren’t supposed to just disrupt settled precedent, but I think the thing that is even more telling about this court’s radicalism is that it’s not just overruling precedents, it’s actually interrogating practices and policies that no one ever thought to litigate or challenge before. It’s like everyone else was stupid.
Leah Litman This court. They are going to go full on jarkasy on the entire legal canon. We’ll explain that reference in a second. But it means making arguments that to date people were unwilling to make because they either had a sense of shame or an intellect that exceeded Brett Kavanaugh’s. So here’s the moment from the oral argument in Jarkesy I am referencing.
Clip But we’ve never suggested that in a case where Congress has given an agency the power to enforce something and the agency is bringing the charge, if you will, that that’s just not, that’s settled.
Clip Well, it’s settled only to the extent no one’s brought it up and forced this issue since Atlas Roofing in this context.
Clip Nobody has had the, you know, chutzpah. To quote my people, to bring it up since Atlas Roofing.
Leah Litman Now though, they are saying this insane shit with their full chest.
Kate Shaw And that, of course, was the one and only Elena Kagan, if you didn’t recognize her voice. Just to stay on this Justice Thomas event for one more beat though, so he also had another interesting nugget that might have been a dig at at least some of his colleagues. So he said that he looks back on his almost 35 terms on the court. Yeah, that’s a lot. He is also not, he’s not the third long, but he’s like in the fifth or sixth longest serving justice ever position. And I think if he stays till 2028. We know, we felt it. He’ll be long. Again, we’ve all felt it every day. We all felt every moment of that too. But so he’s got a lot of terms to reflect on. And he said in this appearance that his favorite era was the 11-ish years when the court’s composition was stable. So this is a long time when the courts composition didn’t change, when Justice Breyer was the most junior justice. And according to Justice Thomas quote, I’ve been here a long time now, but those, those were truly my friends. I don’t get bored with the work of the court. I get bored people who are boring. But not the court.
Melissa Murray Shorter, Justice Thomas. Fuck them libs.
Leah Litman Or alternatively, tell me you’re not amused by Neil Gorsuch without telling me you are not amuse by Neil. Could go either way.
Kate Shaw Go either way. Or could be Brett Kavanaugh. I guess why not both. So next up, we have a little bit of chord culture for you.
Leah Litman The lower courts are still doing court things, including something that’s called law. You might have heard of it. Might be appearing in the history books some day soon, and a district judge in Oregon, an hour before we recorded, issued an opinion finding the president’s deployment of the National Guard in Portland illegal.
Kate Shaw Our last live show, we got one of these while we were on stage and Leah had to speed read the opinion and then we sort of digested it. So at least we got the courtesy of an hour before curtain to digest this one, but also a great opinion.
Leah Litman Yeah, so basically the district court said the president’s reasons for deploying the guard were bullshit, okay?
Melissa Murray All right, we are doing this in real time. I’m 100% sure the court did not say that it was bullshit.
Kate Shaw They came pretty close.
Leah Litman This was a close reading, I’m reading between the lines. The court’s actual words were simply untethered to the facts, not conceived in good faith, and ignoring facts on the ground. Thank you.
Melissa Murray Shorter, Oregon district judge, bullshit. Yeah, exactly.
Leah Litman Yeah, exactly. So the court concluded the Guard wasn’t needed to execute the laws of the United States and allowing the deployment basically as a response to protest was inconsistent with the quote, long standing and foundational tradition of resistance to government overreach, especially in the form of military intrusion into civil affairs. This historical tradition boils down to a simple proposition. This is a nation of constitutional law, not martial law. There’s more. Oh, yeah. These are the words of a judge who was nominated by, wait for it, noted liberal squish Donald Trump. Also a judge who served on noted liberal squishes, Ken Starr’s litigation team. Sometimes it be your own people. Yeah.
Kate Shaw So please do share this fact the next time someone says, oh, the lower courts all have Trump derangement syndrome. They’re just all out to get Donald Trump. And in that vein, we also wanted to acknowledge, this goes back a little bit, but about a week ago, we got an opinion from Massachusetts district judge William Young. And it was an epic opinion, and folks probably have heard about it. It’s been covered elsewhere, but we really would be remiss not to spend some time talking about it So the case involved a challenge to the administration’s efforts to target for deportation non-citizen students and faculty members based on their speech, and in particular, speech critical of the Israeli government and supportive of Palestinian rights.
Melissa Murray All right, so the plaintiffs accused the government of administering an illegal ideological deportation policy. And there was some pretty stunning evidence that was admitted into the record that this was accurate.gif. That’s exactly what the government was doing. So according to the trial record, federal agencies created a special unit called the Tiger Team. They’re not sending their best people. Yeah. Anyway, the Tiger team relied heavily on the right-wing Canary Missions website to identify protesters or critics based on their speech, which is what we call in the legal game viewpoint discrimination. And if you were wondering, viewpoint discrimination is a violation of the First Amendment. Yes. Yes.
Leah Litman So Judge Young’s opinion is framed as a letter or response to a postcard that he received to his chambers. That postcard read, quote, Trump has pardons and tanks. What do you have? To which Judge Young responded, quote dear Mr. Or Ms. Anonymous, alone I have nothing but my sense of duty. Together, we the people of the United States, you and me, have our magnificent Constitution. Here’s how that works out in a specific case.
Kate Shaw The opinion went on to underscore the dangers of the administration using, deploying, the vast resources of the federal government to suppress speech on the basis of viewpoint.
Leah Litman And Judge Young touched on the practice of using masked agents for ICE enforcement. As he explained, quote, this court has listened carefully to the reasons given for masking up. It rejects ICE’s testimony as disingenuous, squalid and dishonorable. ICE goes masked for a single reason, to terrorize Americans into quiescence.
Kate Shaw This was a judge appointed to the federal bench by President Ronald Reagan. He served for nearly half a century, called this the most important opinion that he had had in his time on the bench. And that last quote is an unfortunate segue into local developments. And many of those are kind of more disastrous fallout from the Supreme Court’s shadow docket.
Leah Litman [AD]
Melissa Murray All right, so as we’ve discussed in prior episodes, this court, with no explanation, recently stayed a district court’s order prohibiting ICE from using race and ethnicity, language, occupation, and location as screening criteria for detaining individuals in Los Angeles. Now, the court’s orders was formally confined to Los Angeles, but it seemed pretty likely. That the court effectively blessing the use of racial profiling would embolden this administration to begin using racially profiling methods in other contexts and.
Kate Shaw Other contexts, and other places. And one of those places appears to be right here in Chicago.
Leah Litman No, exactly. So the court didn’t explain its decision. Coach Kavanaugh did. He issued a cab currents to explain why the fascists could let their free flags fly. And here’s how he described what is happening with regard to immigration enforcement. Quote, the government sometimes makes brief investigative stops. End quote, if the officers learn that the individual they stopped is a US citizen or otherwise lawfully in the United States, they promptly let the individual go. That’s a funny big gift.
Melissa Murray True, yes. All right, so we have a real on-the-ground report of how immigration stops are actually proceeding these days.
Kate Shaw And as folks in the audience here likely know, but listeners at home might not, the Chicago Sun-Times and other outlets have reported that last week hundreds of federal agents descended on a South Shore apartment complex at one o’clock in the morning. They broke down the door of an apartment occupied by a 67-year-old United States citizen who was then dragged out in zip ties. He was left tied up outside of the building for almost three hours. Another resident said she saw kids dragged out of the building without clothes on. And into U-Haul vans and separated from their mothers, one resident asked agents, quote, why were they holding me if I was an American citizen? They said I had to wait until they looked me up.
Melissa Murray Just to reiterate, brief investigative stops where US citizens are promptly let go. So.
Leah Litman Of the podcast and former guest on the podcast, Professor Anil Khan at Drexel Klein’s School of Law, has coined a term for what the federal government is doing. He called it, Kavanaugh Stops.
Melissa Murray Let’s make it famous. ABC has further details about these Kavanaugh stops and how they work. So one resident reported that his South Shore building was shaking. And when he looked out the window, he saw a Black Hawk helicopter hovering. Again, Black Hawk down, like Somalia in the late 1990s, early 2000s. That’s the kind of stuff that they’re using right now on civilians. Another resident came out of her apartment at 10 PM. To find officers pointing a gun in her face. She was then handcuffed and detained until around 3 in the morning. The administration has justified these appalling events in a statement claiming that Chicago’s south shore is, quote, a location known to be frequented by Trendy Aragua members and their associates. Now, it’s been a while since I lived in the beautiful city of Chicago, and when I did live here in the late 90s, there were episodes of gang violence, but I hadn’t heard that Trendy Aragwa was in the city, so I’m a little skeptical. But what I do know is I know who lives on the south side of Chicago. Black people, college students, and White Sox fans.
Kate Shaw None of these people deserve this. And unfortunately, this is not all. So over the last couple of days, we have also heard about truly appalling ice conduct across Chicago. And kind of recapping what is happening here in Chicago right now is, unfortunately, a good segue into our conversation with our very special guest. Our guest today is currently the Lieutenant Governor of Illinois. She is running to become the next United States Senator from the land of Lincoln. Please give it up for Juliana Stratton.
Juliana Stratton Thank you for having me.
Melissa Murray We are so glad you’re here. We have so many pressing questions. But before we get to ICE enforcement, if I wanted to get a hot dog. Where would be the best place for a true Chicago dog?
Juliana Stratton Weiner’s circle is always the way, but the key is no ketchup, right?
Melissa Murray Okay.
Leah Litman Yes.
Melissa Murray Okay and weiner circle is not the supreme court.OK, just checking.
Leah Litman I also want to ask, where do you think is the best place for Chicago pizza? And I understand you’re running a campaign. So I understand if you might not want to answer that question, I still had to ask.
Juliana Stratton Well, I heard Pequod’s, but I mean, there’s a lot of great pizza in Chicago.
Melissa Murray I just wonder, I think you should stop. Yeah,.
Juliana Stratton Because when you start to take sides, there’s lots of great in Chicago
Leah Litman A politic answer.
Juliana Stratton That’s right, that right.
Kate Shaw All right, I will just say, I kind of wanted Lou Malnati’s but they decided we’re doing Giordano’s. We’re doing, anyway, there’s, I’m not running for anything, so I can take a side. But I’m also gonna try to focus us. So, sorry, no, but we obviously do have serious things we wanted to talk to you about. So over the last nine months, we all know the president has been increasingly aggressive in the assertion of federal government power. And obviously we don’t need to tell you, it seems that assertion has now reached Chicago. And actually, we wanted to start by playing some excerpts from recent speeches from the president and Secretary Hegseth, and then ask for some of your reactions to those.
Clip Our history is filled with military heroes who took on all enemies, foreign and domestic. You know that phrase very well. That’s what the oath says, foreign, and domestic, but we also have domestic.
Clip We unleash overwhelming and punishing violence on the enemy. We also don’t fight with stupid rules of engagement. We untie the hands of our war fighters to intimidate, demoralize, hunt, and kill the enemies of our country. No more politically correct and overbearing rules of engagement. A few months ago, I was at the White House when President Trump announced his Liberation Day for America’s trade policy. It was a landmark day. Well, today is another liberation day. The liberation of America’s warriors, in name, in deed, and in authorities. You kill people and break things for a living.
Melissa Murray Okay, very, very normal, yeah. By themselves, these are incredibly chilling statements. And they are even more alarming when you take them together. And just this morning, and we are recording on Saturday, Governor Pritzker shared that the Department of War, it never not sounds stupid, the Department of War gave him an ultimatum to call up the National Guard, or they would do it for him. And they would send military troops into Illinois against the will of the state, its people, and its governor.
Juliana Stratton And we said hell no.
Audience Applause
Juliana Stratton Okay, I mean, think about this. I mean you just heard that, the enemy within. This is about a president, a wannabe dictator who sees American people, fellow Americans as the enemy and wants to normalize the presence of military troops on American soil. And we made it clear, now he of course then gave the order to federalize troops to come to a city like Chicago. But we have made it very clear, we don’t want you here, we don’t need you here. And we have, by the way, a governor. He happens to be the best governor in the United States, by the. And the governor is the commander in chief in our state. So we don’t need a president telling us what we need to do. So this is an effort to cause real chaos, to cause, to stoke fear, and that’s exactly what’s happening. Pitting us against one another, and we have made it very clear in Illinois what we are standing for, and we’re gonna keep fighting to protect our people. You better believe that.
Melissa Murray LFG.LFG.
Leah Litman I was going to say, as the great Shea Coulee said, this is how we do it in Chicago.
Juliana Stratton That’s exactly right.
Kate Shaw Could we actually get you to say some more about kind of how state and local governments can serve as sites of resistance to federal encroachment? So we totally agree that the governor has really been incredible and a standout, as I think there’s been a lot of flailing, because so much of what we’re seeing from the federal government is so unprecedented. So how can states and localities become effective sites of existence?
Juliana Stratton I think one of the things that, in addition to speaking out, in addition to saying, let’s coordinate getting all of our leaders together and convening to say, here’s where we are, these are our values, and we’re going to stand strong. And by the way, people do want to see that from their leaders. They want to leaders fighting back and not just going along to get along. That is one thing. But I think the other thing that’s been really important here in Illinois is we knew what would come about with the second Trump presidency. So we were proactive. We made sure that we enshrined the right to an abortion in state law. We made that we protected LGBTQ plus rights. We knew what was being threatened. And so we were proactive. And in many ways, being proactive is the way that we can resist by not waiting for something to happen and then say, how do we react? But to say, you know what, we understand who he is. He is not a normal president and he is not a normal person. And so for us, we had to take action. And I think that’s what the people of Illinois deserve, leaders who take action.
Melissa Murray That is what we all deserve.
Leah Litman Yes.
Juliana Stratton Everyone deserves, but Illinois, right here.
Melissa Murray All right, you are in the Illinois state government now, but you are running to be a member of Congress, the Senate specifically, and at this moment, you’re running on behalf of a party that’s in the minority in the federal legislature. What should an opposition party be doing now to resist this president? Like, what are we missing here?
Juliana Stratton I sometimes wonder why it’s so quiet in certain circles and spaces, even within the party. What I can tell you is that when I’m traveling the state, and I’m doing a lot of that these days, more than any policy issue, what people are saying more than anything else, is I am looking for someone to go to the Met fighting for me. That is what I’m looking at. And And I can tell you, we get a good example of what that should look like by just tapping into the energy that people are bringing. People who head to the streets and say, no kings. People who say, hands off my health care, hands of my Medicaid. They are showing us the kind of energy that they want. And I think that what we have to do is we have match that energy. We have to meet the moment with the energy people are expecting. But I think the other thing is we’re seeing it right now, for example, with the budget. We are seeing Democrats say we’re not going to compromise and give up healthcare for Americans. And that’s important. But that energy has to be sustained. The people, you know, Americans don’t want to see Democrats, you now, confirming judges that have no business sitting on the bench. They don’t want to see Democrats confirming appointees to lead agencies that have no experience and have no business sitting on the bench. So we have to sustain this energy it’s not just for right now and the reason why I’m running is yes because I want to make sure that we pass good legislation yes I want to make sure I use my bully pulpit and speak with moral clarity but it’s to push our party to be courageous in this moment. That’s what we need. That’s the energy people are looking for.
Melissa Murray So I want to pulverize that and snort it. That’s amazing. Yes.
Leah Litman That is a great transition, Juliana. You are running for a seat that is open because Senator Dick Durbin is retiring. And among other things, Senator Durbin chaired the Senate Judiciary Committee when Democrats had a majority in the Senate. And if you are elected to the Senate, you will play a role in shaping the federal courts. So in that spirit, can we get your takes on the following questions. One. How would you rate the Supreme Court? Awesome, okay, bad, or 9-1-1, there’s an emergency.
Juliana Stratton There’s an emergency. There’s an emergency, we have a Supreme Court right now that is rubber stamping this president’s authoritarian agenda. And quite frankly, it is dangerous. We’re supposed to have checks and balances, right? But there are no checks from this Supreme Court. So it is dangerous.
Leah Litman They’re getting checks from their emotional support billionaires, but not handing them out.
Juliana Stratton They’re not checking the president.
Leah Litman Yeah.
Juliana Stratton The other branches.
Leah Litman Yeah. Right, okay, so second question. If a nominee to the federal courts said, allegedly, that one could, instead of responding to and complying with court orders, just simply tell the courts, quote, fuck you, would you vote to confirm them to a lifetime appointment on the federal court?
Juliana Stratton I’m not. I’m not someone who cusses a lot.
Melissa Murray I’m sorry, what?
Juliana Stratton But I would say, it would be something close to him. But what I would is no. I mean, no. Should not be, does not have the experience, does not believe in the rule of law, and should not sit on the bench at all. Absolutely not.
Kate Shaw So taking you back to kind of the state official sort of question for now, we were talking about a decision that came down regarding the invalidity, at least as a district court found it, of a decision to send the National Guard to Oregon. I guess I want to ask about, from your vantage in state government, kind of, the role of litigation in this moment. So obviously, using the bully pulpit, critically important. State and local officials both rallying the public and communicating about our constitutional values is hugely important. And as we’ve just been talking about, the Supreme Court has been blessing a lot of what the administration is doing. But the courts are not just the Supreme court, the lower federal courts are doing a great deal. So I guess, is that a place that people should not exclusively, but among other things, sort of look to as one potential check on the federal government, I guess. There is litigation or will be litigation already filed against the federal government just by Illinois, right? Is that pending now or it will be?
Juliana Stratton And we are doing that. We have a fantastic, not just a fantastic governor, but we have a Fantastic Attorney General in Kwame Raoul. Yes. And You know, filing cases, we’re going to court, and you don’t see all of those cases on the front page. I mean, it’s not always making the headline news, but we are doing that, and we are winning. And I think that’s the piece that I want to make sure people understand, that the resistance is important because we are winning, we are getting to places. And this is a very weak man in Donald Trump, and we understand that, and so when you push back, we see him start to change course. It doesn’t mean that things aren’t still happening. I mean, he came back today and said, well, now let’s send troops to Chicago. We’re gonna see that happen. But when we resist, when we fight back, when we stand together, when go to court and file these lawsuits, yes, it’s important. Of course, if they get appealed and the cases that get appealled to the Supreme Court, who knows what we will see happen. But every single step. We must fight back. We cannot normalize what is happening. We cannot just sit back on the sidelines. We have to be ready to go to bat every single moment and that’s what we’re doing in Illinois. That’s the kind of leadership I’m gonna bring to the United States Senate, by the way.
Leah Litman So because you are so involved in a state that is really on the front lines of pushing back against an autocratic, aspiring, fascistic, authoritarian administration. Aspiring. Just to throw out some adjectives. Um. Um, uh… And so, you are involved in this fight and seeing it play out. Can you give us some reasons for hope or encouragement, like things to look to that we can say, like, yes, this is working, and we should continue to stay in this fight? Because I think so often, it’s just so draining and demoralizing, and people look around and they feel discouraged because it doesn’t feel like there is anything they can do that will simply turn this off.
Juliana Stratton Well, first of all, it is a very real thing about how people are feeling in this moment. And this is part of the playbook, to make us feel overwhelmed, to make us feel hopeless and helpless and confused and scared, quite frankly. And I hear that a lot from Illinoisans all across the state. I think a couple of things. I mean, first and foremost, I keep saying that every time I walk into a room, and I’m doing a lot of different events or gatherings and meeting greets, protests, I’ve been out in the streets protesting, the day that I show up and no one is there, that will say something to me. But every time that I walk into a space and someone is still there, sometimes they bring their children. Sometimes they come alone. Sometimes they bring their whole little friendship group. With handmade signs or whatever they need to bring, every time I see that, I get filled back up. Because it is an example and a reminder that people are still in the fight. They are not giving up. They’re gonna keep going every single day. The other thing I think of is my dad, Henry, who is 92, who marched from Selma to Montgomery in 1965. 1665.
Melissa Murray Okay, Henry.
Juliana Stratton And he has some health challenges now, and he wrote this article back in 1965 that’s on the wall in the Illinois State Capitol in my office about why he marched. And he said, I did not like how human beings were being treated, something that I think all of us are feeling every single day right now. And somebody must have asked my dad, well, what did you think you would accomplish by marching? And he said that I would stand up and be counted. And that is the moment that we are all in right now, right? That we all have to do our part to stand up and be count it. And so my dad, he didn’t know what was going to happen after marching. He didn’t that there would be a Voting Rights Act. And he surely didn’t know that right now in 2025, those rights are at stake once again at the age of 92. But what he knew is if I stand up and I’m counted, and then the next generation and the next generation continues that work and takes that baton out of his hand, we’re going to be okay. We have been past the baton and we must run with it. That is our responsibility. And when we do our parts… We will get through this. It’s gonna be hard, but we’re gonna get through it.
Melissa Murray Brett Kavanaugh’s not the only one who knows sports. We can have a father of daughters and we can have a daughter of a great father. That’s exactly right. Please give it up for Lieutenant Governor Julianna Stratton.
Juliana Stratton Thank you!
Melissa Murray She is running to represent and fight for the great state of Illinois.
Juliana Stratton That’s right!
Leah Litman [AD]
Melissa Murray I am so amped. I know, I know. We can on top of it.
Kate Shaw We cannot top that. We cannot do that. Well, that never happens. We’re actually going to play a game we’re calling Two Truths and a Lie, maybe you’ve encountered it before, but this is the John Roberts edition. I hadn’t seen the photo that we decided to use. This is great. Audio listeners, pull up the YouTube. There’s a great mug of John Roberts that you need to see as we play this game.
Leah Litman It is not muggy in here.
Kate Shaw All right, here is how the game is going to work. We are going to read you three statements, then we’ll read them again and ask you to cheer for the one you think is the lie. Two truths, one lie, cheer for the lie!
Melissa Murray Okay, so I’m gonna read them all, and then I’m going to read them each again. And I want you to cheer for the second round, okay? All right, here we go. Round one, John Roberts’s childhood nickname was Sober Puss. John Roberts graduated first in his class from Harvard Law School. John Roberts is known to ask restaurant servers for reading glasses. So now I’m gonna read them again, and you’re gonna cheer for the one that you think is the lie. That means two thirds of these are real. Number one, John Roberts’ childhood nickname was Sober Puss. Number two, John Roberts graduated first in his class from Harvard Law School. You know they don’t rank. John Roberts is known to ask restaurant servers for reading glasses. So you’re right. The lie is that he graduated first. I mean, Soberplus is very on-brand.
Leah Litman Okay, round number two. Again, I’m gonna read all three and then you’ll clap for which one you think is the lie. Number one, John Roberts coined the phrase, the way to stop racial discrimination is to stop discriminating on the basis of race. Number two, John Robert said, violations of section two of the Voting Rights Act shouldn’t be too easy to prove. Number three, John roberts wrote a college paper titled Marxism and Bolshevism. Theory and practice. Okay, gotta pick the lie. Is it, one, John Roberts coined the phrase, the way to stop racial discrimination is to stop discriminating on the basis of race. Is it number two? John Roberts said, violations of section two of the Voting Rights Act shouldn’t be too easy to prove. Is it Number Three? John Roberts wrote a college paper.
Melissa Murray You all think you know Sean Roberts, but you don’t!
Leah Litman Here’s the lie. The lie is, John Roberts didn’t coin this phrase. It was coined by a Ninth Circuit judge, justice for Carlos Beha. Yeah, no, this guy just kind of picked it up and tried to make it great in his opinion.
Kate Shaw All right, round three. All right, first of these, John Roberts is known to adjust the jackets and ties of clerks, including those who work for other justices.
Melissa Murray Sounds creepy.
Kate Shaw Sure does. John Roberts attended public high school. And John Roberts once accused President Obama’s Solicitor General’s office of being disingenuous. OK, so first, known to adjust the jackets and ties of clerks, including not his own. OK, some. John Roberts, attended public school. John Roberts once accused the Solicitor General for the Obama administration of being disingenuous. And do I here? You guys got this one. Attended private all-boys Catholic school la Lumiere. You guys really do know your John Roberts.
Melissa Murray It would be hard not to, OK. Round four, number one, John Roberts is the youngest chief justice ever appointed. Number two, John Robert’s wrote, I’ve always wanted to stay ahead of the crowd in his application to attend that private high school. Three, John roberts received the most yes votes at his confirmation of any other sitting justice. Is it number one? John Roberts is the youngest chief justice ever appointed. Is it number two, John Roberts wrote, I’ve always wanted to stay ahead of the crowd in his private high school application. Or is the lie number three? John Roberts received the most yes votes at his confirmation than any other justice. Well, well, well. The lie is number one. He’s young, but he’s not the youngest. In fact, the youngest person ever appointed to the position of Chief Justice was John Marshall at the age of 46. John Roberts was 50.
Leah Litman OK, final round, round five. Here are the three. Number one, John Roberts wrote an op-ed in his high school’s paper to support opening the school’s enrollment to girls. Number two, the first case that John Roberts argued and won at the Supreme Court was subsequently overturned. Number three, John Robert is the first Harvard Law School graduate to be Chief Justice. Which is the lie? Is it number one, John Roberts wrote an op-ed in his high school’s paper to support opening the school’s enrollment to girls? Is it, number two, the first case John Roberts argued in one at the Supreme Court was subsequently overturned? Or is it number three, John Roberts is the first Harvard Law School graduate to be Chief Justice?
Melissa Murray Close, it’s close.
Leah Litman This is close. I’m not sure which one a majority of you selected, but here’s the lie. John Roberts actually wrote an op-ed opposing co-ed enrollment to which one Samuel Alito said, I’m the chief misogynist on this court. No one put Sam Alito in the corner. How dare you, sir. Exactly.
Kate Shaw All right, you guys did pretty well. That’s very good. Yeah. We are running out of time, but we have some notes before we go. And first we want to give some audience shout outs. So tonight we have with us, Rachel Cohen, Rachel, you’re here, right? Who is a wonderful, brave lawyer who some of you probably heard about because she went really viral when she resigned from Skadden Arps, law firm you’ve heard of. A scathing letter criticizing the firm and its lawyers for bending the knee and failing to stand up to the administration. She’s helping out with a great new project, American Demands, a platform designed to raise public awareness about what progressives would do and should do if they take back Congress. So listeners, be sure to check out her new project.
Leah Litman I also wanted to wish a very special happy birthday to one Niko Hausen, who is in the audience all the way from Ann Arbor. So happy birthday, to Niko. Midwest groupies are the best.
Melissa Murray We also have fans in the audience who have traveled even farther away than Ann Arbor to be with us here tonight. And among them in the audiences is my former colleague and an amazing law librarian, Berkeley Law’s Ramona Collins, who just retired after 24 amazing years. So welcome Ramona, congratulations.
Kate Shaw We also have with us some amazing, not only friends, but also family of the pod. So my parents, who happen to be two great Chicagoans, Andy and Mary Shaw, are here. Somewhere out there, taught me most things I know, not everything, but most things. And last but not least, we want to shout out our phenomenal intern, Jordan Thomas, and his wonderfully supportive parents who traveled all the way from Jersey to rep the pod, so give it up for Jordan.
Leah Litman And one other very special birthday greeting to Jim Wickersham. Jim’s son is one of the people making this live show happen and he told us, you’re a fan. So thank you so much for listening.
Kate Shaw All right, we’ve got some housekeeping.
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Leah Litman Favorite things. Okay, yes. So Gilbert King’s new book Bone Valley is out Tuesday. I read an advance copy and it is amazing. Lisa Graves has a book just out without precedent, How Chief Justice Roberts and His Accomplices Rewrote the Constitution and Dismantled Our Rights. Perfect start for the start of the term that is John Roberts 20th year on the bench. Also recommend one battle after another, a movie. Incredible. If it doesn’t win best picture, we ride at midnight. And I am going to start referring to the court as the Christmas Adventures Court. And if you’ve seen the movie, you know, and if you haven’t, you should. Okay. Also, obviously, the life of a show girl. Yes. OK. I don’t have time to spell out all my complicated feelings about this album, which actually are complicated and nuanced. This isn’t the set of Max Martin bangers we were promised. Some of it is kind of cringe, generic, and superficial. And also this is probably what happens when your circle is now MAGA adjacent and your muse has the intellectual chops of Brett Kavanaugh. Like, this is your brain on Travis Kelsey. But he’s gonna make a great first husband. Here’s the thing. Really is. It’s still in my favorite things because I needed some new music and an escape and some of the tracks did that for me and made me happy. Like I love Elizabeth Taylor. Yes. Father figure. The life of a show girl. And canceled. And just to clarify and canceled, because I know it will be misappropriated and can be put to bad ends, and introducing it in this moment is a choice, but the lyrics resonated with me. That’s a lot of qualifiers. The lyrics resonated me. Leah’s feelings are complicated. Exactly. And nuanced. And the part Kate alluded to up top, particularly, it’ll break your heart. At least you know exactly who your friends are. They’re the ones with matching scars. So that’s a favorite thing from this week.
Kate Shaw I will identify a few favorite things. Right now, Chicago media on the ground covering what is happening, so. WBEZ, Block Club Chicago, the Revive Chicago Reader, folks on the ground from places like the Sun Times bearing witness to government overreach in Broadview, in Logan Square, all over the city. It’s so important. They are so brave, and they deserve all of our support. Also, to echo the Lieutenant Governor, Governor Pritzker, favorite things, all the energy we all need right now, and also Illinois’s great lieutenant governor. Who was amazing, and brief meta-commentary on Life of a Showgirl, which is, here is my take on it. I think it’s uneven, I think its kind of disappointing in certain respects, but I actually think a life in the, she’s demonstrating, maybe, bear with me for a sec, a life in the public eye where you have a lot of takes and you, you know, take a lot of swings, like you will miss sometimes, and the life of a showgirl is like, you get up the next day and you just do the damn thing again. And maybe we have seen her model that, and that’s energy I think we all need. So that’s my take. And then totally different topic. Lilly King, who I love, has a beautiful new novel called Heart the Lover. I hope some people already know what it just came out. Highly recommend that if you wanna go someplace very different from the hellscape we’re in.
Melissa Murray Okay, I am not going to talk about the life of a showgirl. Among my favorite things this week, I loved the conversation between Ta-Nehisi Coates and Ezra Klein. I just thought that Ta-Nehisi Coats was so fantastic and clear, such moral clarity in this moment and I thought he was terrific. I am also really, really excited about Tony Shalhoub’s new docu-series that premieres on Sunday on CNN. It’s called Breaking Bread. I love Tony Shaloob. Tony Sharloob is a national treasure. If you don’t know him, he was in Monk. He was also in the movie Big Night, which was fantastic. He was, also, Miriam Maisel’s father, Abe Weissman, and he was absolutely fantastic. I love it, and I can’t wait to watch. I also want to shout out, if you are in New York City, there is a fantastic off-Broadway play called Mercedes, which I just saw last night. It is so fantastic. It is a rap musical in the manner of Hamilton. But instead of documenting Alexander Hamilton, it tells a story that none of us knows, but we all should know. And that story is that the Underground Railroad did not just run north to Canada. It also ran south to Mexico. And in the period between the Mexican-American War and the United States Civil War. Hundreds of thousands of enslaved people escaped across the Rio Grande into Mexico in order to live freely. And they are not telling us this. What a surprise. But you can hear this amazing story and amazing musicianship. Just a two-man show, it’s absolutely fantastic. It is playing until October 18th at the Audible Theater down in the village. If you get to New York, see it. The other fantastic thing that I loved this week was the other M.M., the Duchess of Sussex, Meghan Markle, showing up at Paris Fashion Week at a Balenciaga show in an amazing, white Balenciaga ensemble that proves she’s not afraid of the British royal family or stains. And she looked luminous, absolutely luminous. And I hearted it.
Kate Shaw Thank you so much, Chicago. This was wonderful.
Melissa Murray Chicago, we love you.
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, Jordan Thomas is our intern, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Katie Long and Adrienne Hill, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote, Joe Matosky, and Johanna Case. 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.
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