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May 20, 2024
Strict Scrutiny
The Alitos Let Their Freak Flag Fly

In This Episode

Leah and Melissa catch up on the Alitos’ upside-down flag situation, an opinion preserving the funding structure of the CFPB, and a racial gerrymandering case out of Texas.

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Leah Litman Sometimes the Alito’s give us a little bit too much content.


Melissa Murray It’s too much.


Leah Litman  It’s overwhelming.


Melissa Murray It’s too much. It’s a lot. And I also feel like we don’t have Kate here because, like, we’re already so excited. Leah. I feel if Kate were here, she’d be like, settle down, bitches. But we’re like, no, let’s fucking go. Like, we’re just doing it.


Leah Litman Exactly. Exactly. And if I say something wrong, you know whose fault it was?


Melissa Murray Martha-Ann’s?


Leah Litman Martha-Ann Alito’s. Yeah.


Melissa Murray Okay.


Leah Litman Exactly.


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


Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.


Leah Litman Including the little light treason, or at least support for light treason that surrounds it.


Melissa Murray We are your hosts for today. I’m Melissa Murray.


Leah Litman And I’m Leah Litman, and here is what we have in store for you today. We are going to start with some news about friend of the pod, Sam Alito, because it turns out Sam Alito resides in a house that displayed an inverted flag that had come to symbolize stop the steal on the eve of Joe Biden’s inauguration. Hence the light treason references that will be peppered throughout the show. Or, you know, A-lito- bit of treason, as they say.


Melissa Murray But don’t worry, it’s not going to be all Alito all of the time. We’re not going to go into the Upside Down, as it were. We’re also going to cover Scotus’ opinion in the big consumer protection case. The challenge to the funding structure of the CFPB. The court upheld the CFPB funding structure over a dissent by who else? Friend of the pod, Sam Alito, and we plan to discuss whether Sam Alito’s dissent in that case is more or less incoherent than the statement he gave to The New York Times to defend the Alito household’s Stop the Steal law on display. After that, we will turn to some court culture and we will flag, yes, pun intended. Two arguments in the Fifth Circuit’s latest attack on the Voting Rights Act, as well as some other things.


Leah Litman But first up, the latest news about Samuel. Stop the steal-lito. Yes, you heard it here first, people. Okay, so Jodi Kantor of The New York Times reports that on January 17th, 2021, days before President Joe Biden’s inauguration, the House of Alito flew an upside down American flag.


Melissa Murray The times explains that this upside down flag has long been a symbol of a nation in distress. But in recent years, this nation in distress symbol has actually been appropriated as a creed decor by those who believe the 2020 election was fraudulently stolen from Donald Trump. So basically, the Upside-Down flag has become a symbol of the Stop the Steal for seasons gardening crowd. The New York Times quotes a researcher who says that the inverted flag was a symbol of stop the steal, and that there were social media posts that encouraged Trump supporters to display inverted flags as part of their support for the view that the election was fraudulently stolen. And at the time of the January 6th insurrection, local newspapers wrote about the displays of inverted flags and their meaning. Indeed, a political candidate displayed it in the lead up to the inauguration, and, as has been noted elsewhere, some of the Capitol rioters even brandish the upside down flag when they invaded the Capitol on January 6th as part of that insurrection. Now, notably, the alito’s neighbors in upscale Fairfax, Virginia, were alarmed enough by this display of the upside down flag on the Alito’s lawn that they actually took photos of it. Again, this is such a weird and unorthodox thing to do, especially if you are a sitting justice and you were publicly displaying this on your home because the symbol is so closely associated with a political movement, your neighbors took the time to actually document it. That’s how weird it is. And so this also helps explain why word of the alito’s unusual landscape choices eventually made its way to the Supreme Court. Although I will note it did take three years for this to come out.


Leah Litman The three year delay between when this inverted flag stopped, the civil symbol was displayed, and when reports of it came out lead one to think that perhaps Samuel Alito could have used those three years to come up with some sort of, I don’t know, explanation, apologia for what happened. And yet all he came up with is that he wants you to know it was his wife’s fault. Yes, America’s favorite feminists decided to throw Martha Ann under the bus.


Melissa Murray While Martha Ann is under the bus. Let me pause for another feminist side note. It seems really weird to me that two dudes who are absolutely intent on controlling American women and their bodies, Sam Alito and Clarence Thomas, are absolute shit at controlling their own wives. Like, well, explain that to me, sirs. Kindly get your own houses in order before coming for everyone else’s cervix. Like this is the kind of inconsistent fuckery we expect from Harrison Bucker, but not from two men with actual law degrees.


Leah Litman For those of you who might have missed it, it appears that Samuel Alito heard Taylor Swift’s boyfriend’s teammate that is Harrison Butker trad wife TikTok inspired commencement address and was inspired by it. So let’s play a line from that commencement address.


Clip I want to speak directly to you briefly, because I think it is you, the women who have had the most diabolical lies told to you.


Leah Litman You know, I think Alito thought. Well, I think it is you, the women who have had the most diabolical lies told about you rather than to you, but riffing.


Melissa Murray I have only one question to ask. And that question is why are men also ladies? You heard it here on Strict Scrutiny. Always choose the bear. Always.


Leah Litman I’m so glad you’re back, Melissa, because I have been wanting to play a game of random Republican appointee to the Supreme Court or bear.


Melissa Murray Always the bear.


Leah Litman The last few weeks. It’s always the bear. And, you.


Melissa Murray Ladies, you have a better shot with the bear. Like, you live with the bear with the Republican appointed Supreme Court nominee. You are dying in a parking lot. The bear might let you run.


Leah Litman And it’s not just that they are going to leave you to die in a parking lot. It’s that they’re going to say their wife did it because she saw an objectionable and personally insulting sign. But anyways, I don’t want to get too deep into a game of the bear.


Melissa Murray Back to the Real Housewives of Fairfax, Virginia, let’s go back to that. All right. So.


Leah Litman Or the Real Housewives of the ellipse, who is to say?


Melissa Murray Who is to say? Anyway, in a statement to the times, Justice Alito had this to say. I will say this in my best Alito voice quote, I had no involvement whatsoever in the flying of the flag. It was briefly placed by Mrs. Alito with the candlestick in the library, in response to a neighbor’s use of objectionable and personally insulting language on yard signs. End quote. I did paraphrase a little there. Apologies.


Leah Litman It’s perfection. Because there are so many things to say about this objectionable and personally insulting statement. And it’s moments like this for which this podcast exists. So, again, according to the times, the neighbors objectionable and personally insulting yard sign was an anti-Trump sign. So in case it hasn’t been clear to you over the last eight years, maybe because you haven’t been listening to Strict Scrutiny for the last five. The Alito’s are apparently Trump supporters. I know this will come as a shock to some.


Melissa Murray Thoughts and prayers to you all.


Leah Litman Right. Exactly.


Melissa Murray Leaving aside the fact that I think this does make clear where the Alito’s political allegiances lie. Let’s focus on the statement, because Justice Alito statement is doing a lot and not just throwing his wife under the bus as though they had not been married for a zillion years. I mean, my husband did this to me, like divorce, right?


Leah Litman In some ways, it’s sweet that Alito treats Martha-Ann Alito like he does the rest of American women just throwing them under the bus in service of his political views. But back to the statement. That’s that’s.


Melissa Murray Real equality. That’s real equality. Exactly. That’s an equal protection clause right there. Okay. All right. Okay. Back to the statement though. Let’s focus. Focus, Leah. This is where Kate would be really handy. Kate would be like, ladies.


Leah Litman I know. I know, Kate we’re missing you. Really missing. Well, the statement is not actually denying the existence of the upside down flag on the alito’s property.


Melissa Murray That’s the first thing to underscore that he never denies it. It’s like, yeah, I did it. This is like OJ level. What if I did it? If I did it.


Leah Litman Right, what are you going to do about it. What are you going to do about it. Knows like it’s Sam.


Melissa Murray Alito by Sherrilyn Ifil.


Leah Litman Nor does the statement deny the flags stop the steal meaning Sam is not even saying he didn’t know the flag was up there. It was apparently up for a few days. He did nothing. Sam Alito would like you to know that women have the autonomy and freedom to publicly show support for insurrections, but no autonomy or freedom to get out of forced childbirth. That, too, is an equal protection clause. Liberty, Liberty I this statement is.


Melissa Murray So bad, like from a PR perspective, so bad. It actually makes me wonder who is doing Sam Alito’s publicity. Is it Prince William? Because this is like I generated Kate Middleton video PR like this is really bad. In light of this completely craptastic statement, a number of our listeners chimed in to offer some takes on statements that didn’t quite make the cut, weren’t quite as shambolic as the statement that Justice Alito did make. So, Leah, let’s run through a couple of these. I think there’s some promising ones here.


Leah Litman Yeah. So one option was the flag was certainly not $1,000, which makes it legal, by the way.


Melissa Murray It didn’t taste like $1,000 flag. Exactly. I like $1,000 flag. Here’s another one. I thought the flag was a salmon. So first I posed with it was wearing hip waders, and then I ran it up the flagpole upside down as one does that checks.


Leah Litman Another option is I thought the flag was a Wall Street Journal interviewer. So I answered some questions and then. Ran it up the flagpole.


Melissa Murray Here’s another one. I actually really like this one. The flagpole was otherwise unoccupied. An empty flagpole would have gone to waste if we hadn’t flown a symbol of the January 6th insurrection on it. So we are actually environmentalists. See Sackett versus EPA. Alito’s out.


Leah Litman Excellent call back to an Alito opinion nonetheless. Another option is the organize bar. Made me do it by criticizing me.


Melissa Murray Seems right back to the Taylor Swift references. Taylor Swift set up my wife. I think that might work. I mean, yes, arrows are for everyone, even Martha Ann.


Leah Litman She’s in her insurrectionist era. So, another option in an objectionable and personally insulting decision, John Roberts did not destroy the Affordable Care Act when he had the chance. Ergo, the inverted flag.


Melissa Murray I like this one because it’s really a pivot. Like, I don’t want to answer your question, so I’m going to distract you by throwing my colleague under the bus.


Leah Litman Exactly.


Melissa Murray Like.


Leah Litman One of my favorite long time grievances.


Melissa Murray I love it like three birds, one stone. I love it. All right, here’s my I actually think this one’s probably the best one. Right? To commemorate the 70th anniversary of my personal favorite Supreme Court decision, Brown versus Board of Education. Because black lives matter. My wife, Martha Ann decided to engage in a civil rights demonstration on our property. But despite those very promising, promising potential statements, the alito’s settled on the statement that basically a veered that Martha Ann Alito was so upset by a neighbor’s profane anti-Trump yard sign that she decided to own the libs here her Trump hating neighbors by showing support for the vestiges of a coup that threatened American democracy, as one does. The New York Times reports that, quote, around the 2020 election, a family on the block displayed an anti-Trump sign with an expletive. It apparently offended Mrs. Alito and led to an escalating clash between her and the family, according to interviews and, quote, Paging Andy Cohen. Bravo, Andy. I would 100% watch this show about Martha and her neighbors. Just getting into it.


Leah Litman Scrap I know, I know what you please. We have been calling for a Real Housewives of One First Street for a while, so if only the powers that be would listen. And I just want to unpack the fact that apparently the sympathetic case here is that Martha Ann was so upset about people criticizing Donald Trump, she literally let her freak flag fly. And if anything, this seems to reinforce the inverted flags. Stop the steal. Meaning? And we may be staring down the end of Bennifer 2.0.


Melissa Murray I don’t even want to contemplate this. Stop it.


Leah Litman Or marijuana. But on a happy note. On a happy note, I personally am glad that the two people who think the worst thing in the world is people criticizing Republican officials found each other in the alito’s. If that’s not love.


Melissa Murray This is a love story. I mean, forget The Idea of You. And Nicholas scowls. A teen in a very hot 40 year old Anne Hathaway. This is the love story that they should be streaming on Amazon Prime.


Leah Litman It’s a love story, baby. Just say yes. Fly that flag upside down and blame me for it while you’re at it.


Melissa Murray I think the title should be Freak Flag and it, like, conveys everything.


Leah Litman An American romance.


Melissa Murray Flag in American.


Leah Litman You know. It does make me wonder why do so many Supreme Court justices find their way into marriages with insurrection adjacent or insurrection sympathizing ladies?


Melissa Murray I mean, also, you gotta wonder, Jane Roberts, when you get to step up to the plate. Girl. Right. And Ashley Kavanaugh loving.


Leah Litman Laps around you. Right? And, you know, Ginni, was she texting Martha Ann Alito is Martha Ann texting Mark Meadows. There’s just a lot of open questions here.


Melissa Murray For a lot of people, this is the first introduction they’ve had to Martha and Alito. But I will say on this podcast, we have never been in favor of Martha and Erasure. We have always said.


Leah Litman Keep your eye on the ball.


Melissa Murray And the reason.


Leah Litman We have rejected Martha and Erasure left and right when.


Melissa Murray People 2019 it.


Leah Litman When people were quick to blame Ginni Thomas for the leak of the Dobbs majority draft, we were like, do not sleep on Martha. And because subsequent reporting has revealed that Martha and was at the dinner with the riots at which the rights allegedly learned the previewed results of the Hobby Lobby case, Martha, and is a key figure. You’re in. Whatever this Real Housewives tale of the Supreme Court is. So she has talked about how unfairly Sam Alito was treated during this confirmation hearing, when people she did leave.


Melissa Murray The chamber in tears. Yes.


Leah Litman Exactly. When people warned that, for example, he might overrule Roe versus Wade, which he did.


Melissa Murray She was crying because you weren’t supposed to say that part out loud. The truth hurts. So basically, I’m just saying there are two other Republican appointed wives, and, ladies either get in the game or go home.


Leah Litman And in the immunity argument, Kate wondered why Amy Barrett was throwing out stop the steal references that just slid off the tongue. And I do think one answer is she’s been having dinner with the Alito’s. Right. Like you, you’re probably hearing some stop this.


Melissa Murray Played a book club with Martha. When?


Leah Litman Yeah. When are we going to get Martha Ann’s text messages? Like, was she texting about the Biden crime family living off of barges on Guantanamo Bay like Ginni? These are questions that I need answers to.


Melissa Murray The New York Times also reminds us that, quote while the flag was up, the court was still contending with whether to hear a 2020 election case with Justice Alito on the losing end of that decision and quote, ahem. We actually have pointed this out before that, like the sheer fuckery of some of these folks weighing in on these cases where they seem to have already revealed where they are on particular issues. But this just kind of, again, underscores it highlights, almost.


Leah Litman Like the justices cannot be trusted to police themselves on ethics matters. What.


Melissa Murray If they had a code? Leah?


Leah Litman What if they what if they had a code with no enforcement mechanism that promise they would be good boys and girls? I bet that would. I swear the pinky swear.


Melissa Murray Quote.


Leah Litman Exactly.


Melissa Murray And then there’s of course, there are two big cases currently pending right now that involve January 6th. There’s the Fisher case, which involves whether or not that provision of the Sarbanes Oxley Act was intended to be applied in circumstances like the January 6th insurrection. And that has not only repercussions for Mr. Fisher, the defendant, but also perhaps for Donald Trump, who’s also been charged under that statute. That seems interesting. It’s almost as though that case relates directly to stop the steal. And maybe Justice Alito has thoughts about it.


Leah Litman Melissa, that is objectionable and personally insulting. So, Sam Alito is going to have to fly.


Melissa Murray Judicial ethics is objectionable and personally insulting, basically. Exactly. And then, of course, I left out the immunity case, right? I mean, does this have anything to do with whether a president should be held criminally liable for perhaps participating in orchestrating inciting an insurrection? Nope. Is it objectionable that a justice I mean, a justice? His wife is flying the flag upside down on their property, and now we know maybe, perhaps where they stand on this issue?


Leah Litman No, I think that’s bad feminism. It is.


Melissa Murray Because she’s not an appendage of her husband, right? There’s no career track where exactly?


Leah Litman True feminism means allowing the wife of Supreme Court justices to express sympathy for the vestiges of a failed coup that threatened American democracy.


Melissa Murray That has nothing to do with their husbands. Nothing.


Leah Litman Exactly.


Melissa Murray And he never at any point stepped in and said, you know, Martha Ann  isn’t a sitting justice of the Supreme Court. This is probably not great optics for me. And then she was like, fuck you, Sam. I do what I want feminism.


Leah Litman Feminism, Alito is like, these are the kinds of women’s rights I can get behind.


Melissa Murray We haven’t really gotten into the judicial ethics and sort of the idea that the Alito’s have kind of tipped their hand about where their political allegiances lie, in part because we’re so over this part, like we’ve been saying this for five years, like, this doesn’t surprise us in any way. Like we’ve known.


Leah Litman Alito was writing this into opinions and saying it at arguments. This is just the latest in the giant fuck you that Sam Alito provides to the American public democracy, rule of law, ethics, you know, the institutions of American governance. And it is worth spending time. I mean, maybe this will be one thing that kind of catches on, you know, will people.


Melissa Murray The bar is literally in hell, Leah. Like they don’t have any. There are no guardrails on them there. There are no requirements for them to actually be ethical. Like basically John Roberts is that Ben Affleck’s meme like outside smoking furiously while holding a Dunkin Donuts Cup? That’s John Roberts right now. John Roberts for the end of time. Like, will these face eating leopard stop letting their freak flags literally fly?


Leah Litman Answer no.


Melissa Murray I wouldn’t be surprised if they put an upside down flag on the court’s flagpole. Like, who’s to stop them? They’re literally in who gonna check me boo mode?


Leah Litman Yes, and they have been for a while because.


Melissa Murray I have a 63 conservative supermajority.


Leah Litman They have a 6 to 3 conservative. A supermajority they overruled Roe versus Wade, took away women’s bodily autonomy, and nothing happened to them. Right. Like some polls showed diminishing public opinion for the Supreme Court and nothing else has happened. And so why would they stop?


Melissa Murray This is why the election is so important. These dudes are literally dying for Donald Trump to be president again, so they can step down and retire and be replaced by younger movement conservatives who will keep this going for forever. And they would also like to take Sonia Sotomayor seat and Elena Kagan seat and basically make this a an 8 to 1 court with poor Justice Jackson just fighting it out like they would love for the opportunity to literally have a Republican in office forever. So if nothing else, vote for the court. Like literally vote for the court.


Leah Litman Yes. And again, it’s difficult because it’s not like that vote. This upcoming election is going to return the court to a majority of sane people. Right. But what it does is it preserves the possibility that we are not stuck with five decades of MAGA curious freak flag flagging, stop the steal sympathizing Supreme Court justices and that and their wives fighting for rights. Sometimes avoiding losses is the most important fight and worth doing a lot for. So on that note, we are going to take a quick break, but we have a favor to ask. Hopefully you don’t find it objectionable or personally insulting. And the favor is this now until the end of June is the most important time of year for this show and our audience. So if this show gave you a new level of disrespect for how Salido, make sure to subscribe and share this show with your friends, or if it helps you stay informed without going insane, make sure to subscribe and share with your friends. Thank you so much for your support.


Melissa Murray [AD]


Leah Litman So let’s talk about a case where Sam Alito lost.


Melissa Murray Yes. Okay, let’s do that under the opinions. We finally got an opinion. And one of the big outstanding cases that had been argued in October of 2023, and that, of course, was Cfpb versus Community Financial Services Association. This was the case that basically was an existential challenge to the Cfpb and its funding structure. And thankfully, the court turned it away. The Cfpb lives to see another day, and so does every other federal agency with an external funding structure, which is a lot of federal agencies. So few. The case involved a group of payday lenders, Community Financial Services Association, because everyone likes a good oxymoron. Every now and again, a group of payday lenders who argued that the Cfpb was unconstitutional because Congress did not fund the agency through its annual appropriations process, but instead passed a law authorizing the Cfpb to obtain money that was drawn from the Federal Reserve System, i.e., from assessments on Federal Reserve banks, which, incidentally, is also how the wait for IT Federal Reserve Board is funded. So again, not just an existential challenge to the Cfpb, perhaps an existential challenge to the whole American economy. So more on that in a minute.


Leah Litman The challenges argued that this funding structure violated the appropriations clause, which says that, quote, no money shall be drawn from the Treasury, but in Consequence of Appropriations made by law, end quote. And the galaxy brains on the Fifth Circuit said, stop the steal from the appropriations. And I’m just kidding. They said that the appropriations clause makes Congress’s power to appropriate money exclusive. And it is so exclusive, in fact, that federal judges get to tell Congress how Congress has to appropriate money, namely through the annual appropriations process, rather than through a law designating another funding structure. The Supreme Court disagreed with the Fifth Circuit, upholding the funding structure of the CFBP. In  A 7-2 opinion by noted liberal squish Clarence Thomas, Alito, joined by Justice Gorsuch, dissented because the originalists disagree about where appropriations come from.


Melissa Murray As well as babies.


Leah Litman But Zachary, you caught my vibe.


Melissa Murray For the majority. Clarence Thomas wrote, quote, under the appropriations clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes, end quote. In other words, so long as Congress by law, any law appropriates money that the federal government raises, it’s all good. The appropriations clause is satisfied. Congress has done a proper appropriation. And I will just note that this logic is pretty much what Justice Jackson had articulated at oral argument. And we will play that clip here.


Clip The language of the appropriations clause and the way in which it seems to give the legislature the prerogative of the purse. And here we have a statute in which the legislature has exercised that.


Melissa Murray So basically, Justice Thomas. Is he painting like she she basically said it.


Leah Litman And she went, yep. Okay, KBJ.


Melissa Murray I’m buying it. Bye bye. Like ventriloquist. Me bitch. Go! Fuck, yeah. The court reached this conclusion, the one that Justice Jackson articulated in the clip we just played, based on text history and congressional practice from around the time of the ratification. And naturally, we have an opinion that is liberally peppered with Blackstone and Magna Carta sites, because why the fuck not?


Leah Litman Justice Kagan wrote an important concurrence that was joined by Justices Sotomayor, Kavanaugh, and Barrett, arguing that subsequent congressional practice supports this conclusion. Two. Or, as the concurrence called it, quote. Continuing tradition. The concurrence wrote, quote, the way our government has actually worked over our entire experience thus provides another reason to uphold Congress’s decision about how to fund the CFPB. End quote. And this echoed the thick burns Justice Kagan had leveled at the challengers theory during the argument. In this case, which you can hear here.


Clip But the history of our country just rejects that scheme. I mean, that might have been a way to understand what the framers were doing, but it turns out that from the very first year, that’s not what they were doing. That’s not what they did. Annual line item appropriations were some appropriations, but, massively not all appropriations. And so you’re just flying in the face of 250 years of history.


Leah Litman So I said this concurrence was important because I took these four to be saying that even if Clarence goes off the deep end of originalism, in some other case, we’re not necessarily going to join him, as in their version of historical analysis doesn’t stop after the first few Congresses. So maybe if and when Clarence or. Or the Fifth Circuit goes dumpster diving into the Federalist Papers next time and comes up with something crazy. This group might say that shouldn’t be the end of the analysis. Maybe this is some light loose signaling to courts of appeal. To the extent the courts of appeal care about being reversed, which I’m not sure that they do, since they are auditioning for a Supreme Court seat, and they need to distinguish themselves from liberal squish Clarence Thomas in order to get that. But another possibility is that the concurrence focuses on this line, which is, quote, whether or not the CFPB mechanism has an exact replica. Its essentials are nothing new. And quote, that line called back to me in exchange between Justice Alito and Solicitor General Perry Lager. During the argument in the case, which you can hear here.


Clip What is your best example of an agency that draws its money from another agency? That, in turn, does not get its money from a congressional appropriation in the normal sense of that term, but gets it from the private sector.


Clip So I can’t give you another example of a source that’s precisely like that one, but I would dispute the premise that that could possibly be constitutionally relevant. This is a case about Congress’s own prerogatives over the purse, its authority. And if Congress has given away too much of its authority by not providing for a durational limit, or not providing or providing for too much discretion to the agency, then I don’t see how it could possibly fix the problem that other fee funded agencies directly collect their money from the entities they regulate.


Clip So I take it your answer is that you do not. That is not consistent with any historical practice, but you think that to the extent it is unprecedented, it is unprecedented in a way that is not relevant for present purposes. Is that your answer?


Clip Yes. Primarily, I think it would be unprecedented in the way that you could say this is the only agency that has the acronym CFPB. That’s obviously true also, but it doesn’t track the constitutional value.


Leah Litman And the line that I read from the concurrence, which rejects the idea that you need an exact replica in order for something to fall within our historical continuing traditions might forecast something that this group of four plus maybe Justice Jackson, maybe even the chief could say in a later case, maybe a case like Rajini about something about the level of generality that the Supreme Court uses in historical originalist inquiries, not looking for exact replicas, but something similar enough.


Melissa Murray Can I ask the question? So this is a sort of weird lineup of strange bedfellows, right? So I’m like, not surprised by Sotomayor and Kagan. I am surprised a little bit by Kavanaugh and Barrett subscribing to this. Are they going to be faithful to this line of thinking, which is really about the level of abstraction that you have to take when you’re doing an historical analysis, or is this just convenient for them?


Leah Litman I doubt they are going to be faithful to it in all cases. The idea that subsequent congressional practice is something that matters is something that Brett Kavanaugh has suggested is sometimes the case. I’m not aware of a case where Justice Barrett has said this, but I do think it’s possible that while the justices were deliberating on this term’s cases, it came up in another case. So maybe is kind of a stop in the door for that case. But, you know, that that’s kind of the most I would read from it. I don’t take this to be some kind of significant, overarching methodological claim that they are going to adhere to in all cases.


Melissa Murray No, I think that’s worth it. Again, I just this is the point in the term where they start issuing decisions that I think many people will say suggest that the court is moderating or being more moderate. We’ll talk more about that. But again, I don’t think the fact that this particular concurrence came to be means that Barrett and Kavanaugh are in the bag for reasonable positions going forward.


Leah Litman You agree?


Melissa Murray And I also think it’s weird, you know, perhaps that CBJ didn’t sign on to this opinion but instead chose to issue her own separate concurrence.


Leah Litman So I actually think the fact that she didn’t might have been strategic, because if she did, there would have been five. And then that would reestablish choices about like, what’s the majority opinion undermining the Thomas one? Exactly, exactly.


Melissa Murray Fair. That’s a good point. But to KBJ’s concurrence, I actually think is important to I wanted to highlight this. So in her separate concurrence, which Leah makes an excellent point, this may be to give Justice Thomas the opportunity to have the majority here and to hold that majority, because I think if she had joined the concurrence, they would have lost. Just as Thomas Justice Jackson, in her separate concurrence, cautioned that, quote, when the Constitution’s text does not provide a limit to a coordinate branch’s power, we should not lightly assume that article three implicitly directs the judiciary to find one end quote. That is a whole word. Right. I think this makes a group of five. To basically articulate what you were just saying. Leah. It’s five justices saying, perhaps more politely, don’t adopt theories that are going to blow up the entire edifice of the federal government, at least not right now.


Leah Litman I think that that’s right.


Melissa Murray The real politic crew lying. Right?


Leah Litman Exactly, exactly. The ante. Great recession, round two crowd.


Melissa Murray Once we did Dred Scott and it started the Civil War. Let’s not do that again. Let’s stop short.


Leah Litman Yes.


Melissa Murray Okay. As we’ve already alluded to. Justice Alito was not on board with any of this reasoning, this desire to forestall a possible recession or to dismantle the edifice of the entire federal government and its economy. He dissented, and he did so with all of the logic and coherence that he showcased in his statement to The New York Times. So true, Prince William logic here. Justice Alito’s dissent maintained that an appropriation is a term of art which he somehow makes to mean something akin to legislative supremacy. So, interestingly, there are no dictionaries supporting this, or any discussion of text or usage that would again point to or support this conclusion. But never let the absence of evidence get in the way of a good time. Right. So interestingly, the logic of this dissent was so completely shambolic and chaotic and brain wormy that even Justice Thomas felt compelled to publicly rebuke it. In his brief response to the dissent in his majority opinion, Justice Thomas said, quote, what is more, the dissent never offers a competing understanding of what the word appropriation means. After winding its way through English colonial and early American history about the struggle for popular control of the purse. The dissent declares that, quote, the appropriations clause demands legislative control over the source and disposition of the money used to finance government operations and projects, end quote. The dissent never connects its summary of history back to the word appropriations and end quote. I mean, what Justice Thomas is like, What really lost the thread?


Leah Litman Yeah. I mean, Sam Alito managed to write a dissent so bad Clarence Thomas could effortlessly nag and slam it from the left, leading me to wonder how long before Sam Alito says Martha and drafted this dissent? Probably not too long, maybe three years. Who is to say? I did want to cover some of the logic. That’s logic in quotes. In this dissent. Some of it is buried in a footnote, specifically Sam, which is where you.


Melissa Murray Usually put all your best quips.


Leah Litman Like, exactly.


Melissa Murray All the logic.


Leah Litman Should go lining up real murderers row in the footnote here. So, here is where he buries his effort to say that while he would blow up the CFPB, he wouldn’t necessarily do the same to the Federal Reserve Board, which, as we noted, is also funded through assessments on Federal Reserve banks, i.e., the same funding stream as the CFPB. So regular listeners will probably recall that during the oral argument in the CFPB case, Justice Kagan and other justices pointed out that the challenger’s theory imperiled the Federal Reserve Board and therefore could have triggered the next recession or depression, which comes out in these clips.


Clip It sure seems that, on your view, the Federal Reserve would also be unconstitutional. Yeah, it’s just too important and whatever. I mean, the FDIC, the SEC, they also fail your test.


Melissa Murray I’m just going to say this dissent has real Drake energy. It’s, I’m not going to go so far as to say the majority opinion has Kendrick energy. Maybe the concurrence is happening.


Leah Litman This podcast has Kendrick energy, right. Like Martha Ann Alito. Ginni, they’re not like us. They’re not like us.


Melissa Murray A court in a minor way.


Leah Litman Bitchy. Try to strike a chord. It’s probably a minor I got. I’m obsessed with that. I’m obsessed with that. Never fuck with a short Gemini from Compton. They will end you.


Melissa Murray I mean, it’s like, second only don’t fuck with Virgos, right? Just forever. They’ll just be like, work of that forever. Kate would just be here, like. Like what? You can’t knows about the beef.


Leah Litman I don’t know. I don’t know.


Melissa Murray We should find out anyway. Yeah, okay. All right. So that was the challenger’s theory that the court rejected, right? That appropriations means some are gold. Bar gold. Put a bag on your head, read a dictionary, maybe, or not. But just as Alito and Justice Gorsuch went all in on it, even though they were publicly rebuked by one of their own. So on the fed, Justice Alito wrote, quote, the board is a unique institution with a unique historical background. It includes the string of financial panics widely attributed to the country’s lack of a national bank. The structures adopted in the Federal Reserve Act represented an intensely bargained compromise between two insistent and influential camps. The funding of the Federal Reserve Board should be regarded as a special arrangement sanctioned by history. End quote.


Leah Litman Oh, you’re saying that the fed is unique because it emerged after a recession and was a product of hard fought political compromise?


Melissa Murray Who’s going to tell him? Who’s going to tell?


Leah Litman That’s silence you can hear is me staring in kfb. Also, what in God’s name is a special arrangement sanctioned by history?


Melissa Murray Patriarchy? Yeah. Matriarchy. That is a special arrangement. Sanctioned. Also slavery and. Right. Like coverture.


Leah Litman Right.


Melissa Murray Disenfranchisement.


Leah Litman Disenfranchisement, coverture, patriarchy, slavery, and the Federal Reserve Board. I sadly know this list of special arrangements sanctioned by history. That’s also going to be my new like, I don’t know, a phrase word aside from the arrangement regime sanctioned by history. Exactly. This podcast is a special arrangement sanctioned by history. But, you know, Sam Alito wasn’t done. He also wrote this quote, if the Cfpb is financing scheme is sustained, Congress cannot control or monitor the CCP’s use of funds to implement its proposed regulatory changes. End quote. This is not remotely true. It confuses something that is sufficient, i.e Congress’s appropriations process as a mechanism for congressional control over agencies for something that is necessary, because, of course, Congress has myriad tools through which it can control agencies use of funds. Alito’s dissent grossly misrepresents the work it relies on, which is Josh Heifetz at Georgetown, his book, Congress Constitution, that talks about Congress’s power of the purse. But again, what could get in the way of a good time? Certainly not fair representation of source material.


Melissa Murray Well, I do love that Josh went to Twitter to be like, listen, I don’t know, bitch. I was sort of like the Twitter equivalent of the Jonah Hill meme, where Jonah Hill is like, no. I did not. I didn’t mean it like that. They are also very similar to Adam Cohen’s class. Yes. Justice Thomas when Justice Yes cited Adam Cohen’s work on eugenics in his box versus Planned Parenthood concurrence.


Leah Litman Yeah.


Melissa Murray I appreciate that the scholars who are being misappropriated can actually rely. We can rely on them to correct the record in any event. Again, because I’m not one to say we told you so, but we did actually tell you. So we predicted in our recap that Scotus would uphold the CFPB, and that the voting breakdown would basically involve Sam Alito and Neil Gorsuch versus everybody. And we.


Leah Litman Were right versus the economy. First, feels like I’m going to prove to you I’m such an originalist, I’m willing to trigger the next Great Recession slash depression in the name of originalism.


Melissa Murray Financial catastrophe is required.


Leah Litman Required by Richards. It’s a special arrangement sanctioned by history.


Melissa Murray But if you don’t believe us, don’t take our word for it here. We’re going to roll the tape. We came with receipts. Here it is.


Leah Litman Good news, America. The Supreme Court does not seem eager to trigger a second Great Recession or depression and nuke the CFP and declare a field day and other financial institutions. Having said that, Sam Alito does appear open to doing so. I also read Neil Gorsuch as like, Great Recession. Curious. Maybe Thomas as well. Hard, dishonestly. I thought the chief justice did as well.


Melissa Murray I’m not sure. Like when it comes down to the actual drafting where he will be, but he has pretty, I thought, close to where at least Gorsuch and Thomas were during the argument. I mean, I do still agree with you. I think the Fifth Circuit gets reversed, but I wouldn’t rule out five four. And that I think, is completely insane because this case obviously should be nine. Oh, but, you know, we’re getting ahead of ourselves. All right. Now that we’ve made clear that we called this bitch, let’s take a moment to reflect on what. All of this says about the court and maybe a few other things too. Right. So first, the fact that the Supreme Court is rejecting a theory that would likely usher in a great Recession. I think there going to be a lot of pundits who are like this, this court, this is a moderate three, three, three court. This is a moderate 722 court. Really?


Leah Litman Clarence Thomas noted moderate. Is Clarence Thomas turning a new leaf? Will he surprise us?


Melissa Murray The thought pieces. Right time. Justice Thomas. Right themselves. Yes. Now, in his Chief Thomas era, I’m going to be more institutionally minded. Rest easy, folks. That’s what people are going to tell you. Rest easy. But we’re here to tell you. Rest easy. That’s actually not the case. We really want to sort of emphasize again here, the important work, the important public service the Fifth Circuit is doing in allowing the Supreme Court to appear moderate while still being really conservative. Right. So one important to realize that the next Republican nominee to the court, if there is a Republican president, is going to come from the Fifth Circuit and they are all auditioning right now, none more so than one of our favorites, Jim Hope, who never misses an opportunity to get up and sparkle for the Supreme Court.


Leah Litman This twirl, twirl, twirl. We’re doing Real Housewives of Atlanta, right? They all have their own characters.


Melissa Murray I’m gone with the wind. Fabulous. Exactly. Again, Kobe’s like what? But anyway, the next Republican nominee is definitely coming from the Fifth circuit. So the Fifth Circuit right now is pulling this court to the middle because the Fifth Circuit is so far out there. But rest assured, when that next Supreme Court seat is filled by a Republican president, it’s going to be from the Fifth Circuit. It’s just going to bring the crazy. And so this sort of fake moderate court that we see now, one not really moderate, it’s really just responding to the crazy of the Fifth Circuit. And the crazy will come with a Republican president. So rest assured like this could be our new reality. Literally bringing on a great recession because originalism requires it.


Leah Litman When also the crazy is likely to come later this term. You know, this period is probably the calm before the storm. The court always does this, releasing a slower batch of more moderate, reasonable decisions before they go full on freak flag. You know, some some idea.


Melissa Murray And then and then escape and then escape. Because that’s in Europe. Exactly.


Leah Litman They pack them up, right? They pack them all into the very final few weeks of the term and then say, spirit fingers were out, you know, like drop clearance and say, we’re we’re done here. Hey, is.


Melissa Murray This seat on a private jet occupied? I don’t don’t mind if I do. I don’t mind if I do.


Leah Litman And this is also something I wanted to call back to the episode we did when we recap the argument in this case, which is something Melissa has already said, which is this case is another occasion to remind people of the contrast we have drawn, including in this very case between the court and the Fifth Circuit. So we’ll just play that clip here. To me, the Fifth Circuit, they are like the elite Strike Force legal team, just constant conspiracy shit beamed down from the mothership. That’s their vibe. Whereas Kavanaugh, Barrett and the chief, they are the Bush campaign legal team, right? Like Bush versus Gore. That’s crazy. But like, it’s not elite strike force legal team. Like they are willing to go with arguments that have been like cooked up and like refined in the course of the Federal society’s, like, last several decades. But like, not just like whatever poo someone holds out to destroy a disfavored agency. And again, these things are different, right? They are both unhinged, radical, extreme, but they are different. Maybe, you know, in degree rather than kind. Doesn’t me and right. This other group is also cray cray, but.


Melissa Murray That’s a great comparison. I’m gonna resist one aspect of it. Like to the extent that legacy media will not sort of delve into that nuance, I think it’s partly because one, it’s not that nuance, but I think when they talk about a three, three, three court with the chief and Kavanaugh and Barrett on one side and then the other three conservatives on the other, and then the liberals, that’s kind of what they’re getting at. Like what you basically have within that block of six on the court is an internecine fight between what kind of Republican the conservative bloc is going to be like a Bush era Republican, sort of very conservative, but not necessarily wackadoo at all. Or are we going to go the full MAGA? And that’s where the other three are. And I think we’re seeing that play out. Like, you know, the three that get posited as moderates are really just Bush era conservatives. The fact that this case comes out of the Fifth Circuit again, is because the Fifth circuit is Scotus says PR machine like better PR than Prince William for sure, because the Fifth Circuit makes the Supreme Court look semi reasonable, and it’s not going to be the last time that this happens. Like where the court will tack back from something insane that the Fifth Circuit has done by issuing something that seems moderate, like avoiding a recession and dismantling the entire structure of government. We are probably going to see the court take back from the Fifth Circuit in cases like Rahimi and FDA versus Hippocratic medicine, but just because the court has rejected the Fifth Circuit’s latest galaxy brain effort to blow up government as we know it does not make the Supreme Court reasonable or moderate. And in fact, they’ve still managed to move the court to the right, even as they allegedly appear to be moderate. So don’t lose sight of the ball here.




Melissa Murray I think it’s time to do some court culture where I feel like we really need to dig into what the Fifth Circuit is doing again, because the Fifth Circuit is essentially the PR arm of the court doing crazy stuff so the court can look good. And first up, we wanted to cover an important voting rights case in the Fifth Circuit, the en banc fifth circuit. That is the full circuit heard oral argument in a case called Pettway versus Galveston County.


Leah Litman So this is a Voting Rights Act case about whether racial and language minorities can seek an opportunity district together, that is, as a coalition to elect the candidate of their choice versus other cases where it is just a group of one minority group, a racial minority, such as black voters or Latino voters who are seeking the same. And the Fifth Circuit had previously said that different groups of racial and language minorities could seek opportunity districts, and relying on those cases, plaintiffs challenge Galveston County, which had long had one precinct for the county commission that included a group of black and Hispanic communities, which together make up about 39% of the county’s population. But the Republican led commission broke up the district and created four majority white districts. And so Galveston County voters challenge that under the Voting Rights Act, a district court said, you’re right. That violates the Voting Rights Act. An initial panel of the Fifth Circuit agreed with them, and then the Fifth Circuit intervened. They stayed the district court decision, allowing Galveston County to use a set of maps that had been invalidated. The Supreme Court denied a stay over that decision over a dissent by Justice Kagan, joined by the other two Democratic appointees, and the Fifth Circuit now heard oral argument on whether it should overrule its prior cases, allowing coalition district claims under the Voting Rights Act, and the case went just about as expected. The opening statement of the lawyer, who was defending Galveston County’s maps and asking the court to end coalition claims, had this to say.


Clip Adopting or requiring coalitions would abrogate jingles. Bartlett. It would violate the anti representation provision of section two and result in race based redistricting with no logical endpoint.


Leah Litman And play this clip because we wanted to link this to the Voting Rights Act case out of Louisiana that we talked about last week, as well as more general development of the law on race conscious remedies. This is the challenger to coalition districts, equating race based redistricting that seeks to represent racial and language minorities with race based redistricting that attempts to disenfranchize racial minorities, and the idea that it would allow VRA compliant redistricting with no logical endpoint, calls to mind the Supreme Court’s opinion in students for Fair Admissions when they ended affirmative action, you know, because they didn’t see an end in sight. And indeed, Judge Ho twirling, twirling, twirling invoked SFA in this very argument, which you can hear here.


Clip Would you agree that discriminating in favor of a race, preferring a race, is, the same thing as discriminating against other races? Yes, that’s that’s essentially the principle of the Harvard case. Yes.


Leah Litman So the future of coalition districts under the Voting Rights Act is up for grabs and is not looking great in the Fifth Circuit. It’s part of what we want to underscore, which is that Allen versus Milligan is not the end of challenges to the Voting Rights Act. And indeed, we are likely to see many future voting rights cases make their way to the court in the aftermath of the 2024 election, underscoring the stakes for the court in that election. And I think at least I also wanted to tie it to the developments in the Louisiana case we talked about last week as well.


Melissa Murray Also, your point about Jim Hose invocation of students for Fair Admissions versus Harvard reminded me of Brett Kavanaugh’s concurrence in Allen versus Milligan, where he also cited to that case, again suggesting that individuals could, in the future, challenge the VRA on grounds similar to the challenge to affirmative action. And that may prove successful. I mean, here is Jim Hove and trailblazing that same kind of logic. So again, no end in sight for this. You know, on a positive note about this oral argument, it was really great to see Judge Dana Douglas, who was one of President Biden’s recent nominees to the Fifth Circuit, really get in here. And she was sort of no nonsense, straight to the point, like try and dismantle some of this logic. So let’s hear a clip from her.


Clip In fact, the United States makes a very telling statement in its in his brief. In this case, they right coalition plaintiffs have in common that they enjoy less political opportunity than other voters on account of race, color or language minority status as a result of the district king plan, meaning that we can’t win, so we have to have another group. And what what do we enjoy together? Political opportunity.


Clip They’re running a kind of race and the other things that are stated there. I’m sorry, on account of race in the other things stated there.


Clip That’s it.


Clip They can’t read that out of the statement that you just wrote correctly.


Leah Litman Love to hear.


Melissa Murray It. It looks really grim, but I’m glad people are staying and fighting. And on the topic of voting rights more generally. Scotus stayed a three judge decision invalidating the Louisiana legislature’s remedial map, and this clears the way for a second majority minority district and an opportunity for representation and multiracial democracy in Louisiana’s congressional delegation. This was the case that Leah and Kate previously discussed that Leah just alluded to. Tori Wagner joined them to talk about it, and it arises out of the Louisiana legislature’s enactment of their preferred map to remedy their previous violation of the Voting Rights Act. But a district court found the map that they initially enacted violated the VRA, and after Scotus allowed the remedial proceedings in that case to move forward, the legislature adopted a map creating a second majority minority district before the court drew one and the legislature drew a map that protected the Republicans preferred representatives and jeopardized a representative who had not toed the party line. So again, redistricting totally on the up and up. Super not political, very nonpartisan. Whatever. A three judge district court found the remedial map was likely unconstitutional. And that’s the decision that the Supreme Court stayed, allowing the Louisiana legislature’s new map with two majority minority districts to go into effect. So this is a real victory for the Voting Rights Act in many respects. And hats off to the team at LDF that argued this case. We will note that there are some ominous kind of elements to this. And so here the court cited Leah Purcell, which I think is really worth talking about. And it sort of took a very expansive understanding of the Purcell case. So can you explain to our listeners what Purcell is and why this expansive understanding of Purcell is really problematic?


Leah Litman Yes. So Purcell is the case. That said, courts should be wary or hesitant to change election rules, you know, in two closer proximity to an election, lest there’s a risk of voter confusion. And the idea that that principle has any application in redistricting cases is a little odd, of course, because the legislature doesn’t have, you know, a status quo that it can use in the absence of districting that complies with updated population totals from the census, for example. So we’ve criticized the application of that principle before. And second, by invoking Purcell, you know, the court basically just took the legislature’s statement that they needed this resolved by May at its word, even though, as Justice Jackson noted, and is the trial proceedings had suggested, actually, the legislature and the remedial process could have determined a set of maps in June, you know, without doing any real violence to the election system and administration in Louisiana. And so the combination of applying Purcell to redistricting, taking a legislature statement at its word that they need this resolved now, rather than actually peeking under the covers, is concerning, as is the fact that they did not put the kibosh on the theory that the three judge district court used to invalidate this remedial map, which, again, had equated redistricting that complies with the Voting Rights Act as itself a kind of impermissible racial discrimination in redistricting. So all of that is to say, of course, it is great news that Louisiana will have more meaningful representation in its congressional delegation. But the fight over voting rights, the Voting Rights Act, is not finished. And that’s part of why we want to highlight the Fifth Circuit case on coalition districts. There’s actually another voting rights case that the Fifth Circuit heard on bank that again, I think putting all of these on the table underscores the threats to voting rights and the Voting Rights Act. So the other case that the Fifth Circuit heard on Bank is Chisholm versus Louisiana. And that case concerns Louisiana’s request to dissolve a consent decree that was adopted in 1992 to ensure that black Louisianans could elect one out of seven members of the Louisiana Supreme Court. Before that, there had been zero black justices on the Louisiana Supreme Court. Since then, three have been elected to the seat created by this consent decree. And Louisiana is now like, we’d like to redistrict and potentially eliminate the opportunity district and seat for the Louisiana Supreme Court. Jurist meandering right by juries, meandering and district court and Fifth Circuit panel denied the request to dissolve the consent decree. The Fifth Circuit heard argument on bank. Never a good sign. And again, I just want to put this alongside the coalition district case to show that states and municipalities are in the process of attempting to break up the. The faces of multiracial democracy, like the representation that the Voting Rights Act and affirmative litigation has been able to secure. At the same time that the court is basically saying, let’s wait to do like a little bit more on voting rights for a while. So these are, again, part of the stakes of the upcoming election. When you are thinking about the court and the matters, it is going to be called upon to weigh in on.


Melissa Murray All right. That was some heavy stuff. So some, I guess, you know, some glimmers of hope there. But again, just some real harbingers of more ominous developments that people need to keep their eyes on. But on a lighter note, I know we joke in this podcast about how basically everybody can run circles around Brett Kavanaugh, but it’s actually true in this case. So Seth Stern at Bloomberg Law reports the results of the three mile, actually Capital Challenge, in which one Brett Kavanaugh finished the three mile race on Wednesday in 24 minutes 20s, which is slightly behind his 2023 pace. It also notes that Solicitor General Elizabeth Prelogar, who participated on the team, quote racing in the morning, suits us, end quote, fairly good pun, I think. Well, the Solicitor General finished the race in 22 minutes and 23 seconds. Justice Amy Coney Barrett, who was part of the Suez sprint team. I kind of like that one. Finished the race in 26 minutes and nine seconds, and she was ahead of Ketanji Brown Jackson, who wore a T-shirt bearing the name Junior Justice League and finished in 33 minutes and 24 seconds. Props to all these people for running, because who the fuck wants to run if they’re not being chased? Not me.


Leah Litman I mean, I enjoy running, and I, I like the idea of Elizabeth Prelogar or beating Brett Kavanaugh by almost a full two minutes. He meant to me. And also, I have to imagine that Brett Kavanaugh is one of those people who lines up with the fast people at these races, even though he’s running like an eight minute mile pace. I just I just see.


Melissa Murray That eight minutes as fast. I’m like, I’m generally no.


Leah Litman Longer was faster. Here’s the thing. Brett Kavanaugh also assembles a team with ringers. So that’s the team. Yeah. He tries to recruit like all of the fastest people in the judicial branch, whether they are law clerks for other people, marshals, chambers, assistants. He’s like, can you run a five minute mile? If so, you can be on my team. Do you think.


Melissa Murray Is that really true? Are you like, yes.


Leah Litman No I’m not.


Melissa Murray This is. Do you know this?


Leah Litman I just no, I just know.


Melissa Murray I’m not going to reveal your source. Okay? Nope.


Leah Litman Nope.


Melissa Murray It was more than Alito. I work in the library with the candlestick.


Leah Litman With a fax machine.


Melissa Murray So, we know that many of you are wondering about the happenings at the various circuit court conferences. Don’t worry. We’re going to cover that. We, the justices, have been out on parade talking it up to their favorite lower court judges at these various judicial conferences. We’re going to cover all of that. But we’re out of time today because once again, Justice Alito just sucked all the air out of the room. Or rather, Martha Ann sucked all of the air out.


Leah Litman Of the room. Content. Queen, country.


Melissa Murray Queen flying that freak flag. But so what? We’re going to come back to that? But on a sadder note, we did want to mark the passing of Christopher Edley of Berkeley Law. Dean Edley first made history when he graduated from Harvard Law School. He was the first African American legacy student to graduate from the law school. His father, Christopher Edley senior, had done so many years earlier. But where Dean Edley truly distinguished himself was as a standout on policy matters in both the Carter and Clinton White Houses. In particular, he is credited with persuading the Clinton administration to defend affirmative action, noting that the policy had done tremendous good in promoting social mobility for those who had been historically excluded from the major institutions of public life, and that it should be mended, not ended. And, of course, the Clinton administration went on to defend affirmative action using just those terms. Dean Edley was a standout professor at Harvard Law School, where he taught administrative law before he headed to the West Coast to assume the deanship at Berkeley Law in 2004. And this wasn’t an appointment that made him the first African American to serve as dean of a top law school. He served in that capacity for almost ten years before stepping down to fight prostate cancer. During his deanship, he was credited with truly transforming Berkeley Law by hiring a raft of new faculty. Full disclosure, I was one of them and also starting major research centers, including centers that. Mimic the center that he and Gary or Feld had founded at Harvard Law School, the Civil Rights Center at Harvard. At Berkeley, he founded a raft of centers, including the Berkeley Center on Reproductive Rights and Justice, of which I was a part, as well as chefs, the Berkeley Center for Health Equity and the family, and most recently, his service to the Berkeley campus included serving as interim dean of Berkeley’s Graduate School of Education. And he is survived by his wife, Maria Através de, whom he met while they were both serving in the Clinton White House, as well as his three children. We are deeply sorry for Dean, at least loss. He is truly an amazing person, an amazing leader, and so supportive of young scholars, and we felt it was worthwhile to highlight his tremendous work and to mark the sadness of his passing.


Leah Litman May his memory be a blessing. So we have a few administrative matters to cover. One is a reminder, and that is if you’re a regular listener, we would love to hear from you. And if you’re up for it, we’d love to hear from you in your actual voice. So we’re asking you to record voice memos telling us a little bit about yourself, your name, maybe what you do, especially if it’s something cool like reindeer herding and where you tend to listen to the podcast. Any favorite episodes or guests or moments? You can send those to us at strict that’s strict scrutiny at And if for whatever reason, you don’t want to send a voice memo, you can just send an email to that address and we can have Melody read some of them, and we’re going to include that as kind of a marker for the occasion of our five year podcast anniversary.


Melissa Murray Now for a few words from the Crooked team. You already know the stakes of the 2024 election. We’ve said it before do you want this conservative 6 or 3 majority to last until you are literally in the grave? Well, I guess not. If you want to help but you don’t know where to start, don’t worry. Vote Save America has you covered. In 2020. Vote Save America mobilized over 300,000 people to take action. And this year, with the stakes still so high again, that conservative 6 to 3 supermajority, they’re really going big and they’re going bold and they’re going east versus west. West coast. All you have to do is sign up and you’ll be assigned a team and matched with opportunities tailored to you and the causes that you care about. Vote Save America will track how many calls you’ve made, how many text you’ve sent, how many doors you’ve knocked on, and how many shifts you filled as your team pursues the biggest prize of all, the continuation of American democracy and the stopping of a potential dictatorship. So head over to Vote Save right now and get ready to organize or else. This message has been paid for by Vote Save America. You can learn more at Vote Save And this ad has not been authorized by any candidate or candidate’s committee.


Leah Litman So in case you missed it, maybe because you were staring up at the flags you saw flying at your neighbors houses. Upside down flags. Upside down, flags so distracting. Our live New York City show on June 13th is officially sold out, but we are giving one lucky listener the chance to win a pair of tickets. So here’s how to enter the giveaway. Subscribe to Strict Scrutiny YouTube channel. Leave a comment on our most recent video episode with your favorite Strict Scrutiny moment. The video is linked in our show notes. The giveaway starts today and it will end on May 24th at 1159 Pacific Time. We’ll be picking a winner on or around May 28th, so be sure to keep an eye on your comment. And for the full rules, check out the link in the episode description.


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw with a little help from Martha Ann Alito. Just kidding. It’s produced and edited by Melody Rowell, with help from Bill Pollack, audio support from Kyle Seglin and Charlotte Landes, with music by Eddie Cooper and production support from Madeline Herringer and Ari Schwartz. 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, fly a flag upside down or rate and reviews. It really helps.