Melissa, Leah, and Kate are joined by Professor Kate Masur of Northwestern to talk about just how illegal and off-the-wall Trump’s executive order on birthright citizenship is. Then, the hosts cover the multitude of other horrors coming out of the executive branch, preview February’s SCOTUS cases, touch base with the wackos at the Fifth Circuit, and ask the all-important question: are the mens okay?

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TRANSCRIPT

 

Melissa Murray [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when argued man argues against two beautiful ladies like this, their 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.

 

Kate Shaw Hello and welcome back to Strict Scrutiny. Your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I’m Kate Shaw.

 

Leah Litman I’m Leah Litman.

 

Melissa Murray And I’m Melissa Murray. And guess who decided to go back to the office? That’s. That’s right. The Supreme Court has heeded the administration’s return to work, and they are back on their hustle hearing cases again. Unfortunately, however, the White House did not take this occasion to stop working, which is incredibly rude if you ask me. So we still have to cover all of the chaos that is emanating from the Mojo Dojo Casa White House. In addition to covering the dudes, maybe even Closet DOGE bros at 1 First Street. So we’ve got our work cut out for us, but we’re on it.

 

Leah Litman And here’s the plan for today. We’re going to start with the news as it relates to the Mojo Dojo, Casa White House, and the Mojo Dojo Dojo Bro’s. That includes some recent disturbing efforts to move the administration’s unhinged, wildly illegal executive order, stripping birthright citizenship from off the wall to on the wall. Well, then, preview cases at the court is going to here this upcoming sitting, and we’ll end with a court culture segment that will feature the original shit posters of the federal government, the Fifth Circuit. We’ll also get into some other matters that lead us once again to ask are the men’s okay Appellate Advocacy Edition? So stay tuned for that.

 

Melissa Murray First up, birthright citizenship. Listeners, as you may recall, the Constitution says in no uncertain terms that people born in the United States and subject to the jurisdiction thereof, are citizens. Full stop. Because textualism. Well, some male law professors decided to ask the question. But what if the plain meaning of the words doesn’t actually mean what it obviously means? Or at least what if we said it didn’t mean what it obviously means? Then Trump’s birthright citizenship executive order might actually be constitutional after all.

 

Leah Litman In a move that should now be familiar to our listeners, some male law professors cloaked this effort to rehabilitate Trump’s illegal order. And what else? Originalism, the gift that keeps on giving Republicans the power to do whatever they want to do. What a coincidence. And these male law professors insisted that if you disagree with them, that is, if you can read and take reading seriously, well, you just don’t understand originalism or history. Well, we respectfully scratch that. We just dissent.

 

Kate Shaw Not respectfully. And to help us with are. Not respectful, dissenting, and also to bring some real historical chops to the discussion of the 14th amendment and birthright citizenship. We are delighted to be joined by an actual historian, indeed, an award winning historian who has written a book about the run up to the Civil War that was a finalist for the Pulitzer Prize. She was previously a guest on this show where she talked about that book, which is titled Until Justice Be Done. And as we hinted at earlier, some members of the legal academy seem to be having some trouble, both reading the text of the 14th Amendment and understanding what the history shows. So we decided that a return visit from Kate Masur would be the perfect antidote. Welcome back to the show Professor of history with a courtesy appointment in reading, Kate Masur.

 

Kate Masur It’s good to be here. Thank you for having me.

 

Leah Litman So the reason why we’re talking about the birthright citizenship executive order is because the New York Times made the choice to platform an op ed by two originalist law professors, Alan Wurman from Minnesota and Randy Barnett from Georgetown, who argued that maybe the president has a point on birthright citizenship, and maybe what he’s doing isn’t wildly illegal, after all, to support this wildly a textual position that is contradicted by governing case law and just about every other source of constitutional authority. The author said the following. Lincoln’s Attorney general wrote in 1862 that, quote, The Constitution uses the word citizen only to express the political quality of the individual in his relations to the nation, to declare that he is a member of the body politic, and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other.

 

Melissa Murray Then they added, the Lincoln administration and Congress held this allegiance for protection. View under which individuals agree to be bound by the laws in exchange for the government’s protection. And as they go on to explain, while non-citizens can swear allegiance and make some social compact under which they get rights. That might not be true for the children of those who lack legal status in the United States, because people who violated the laws of this country, for example, by coming here unlawfully, did not actually pledge obedience to those laws. So Q.E.D., the birthright citizenship executive order, or at least the parts of it dealing with the children of those individuals who are not lawfully present in the United States might just be fine and totally copasetic.

 

Kate Shaw Okay so Kate, thank you for bearing with that very long wind up. Where to start? Why is this argument so wrong?

 

Kate Masur It’s hard to know where to start. And so I’ll just sort of plunge in somewhere and then we can.

 

Melissa Murray That’s what they did. Just plunged in somewhere.

 

Kate Masur Yeah. You know, one thing that’s noticeable about this op ed is it actually says very little about American history, and it advances a theory of allegiance for protection. The central sort of contour or fact of being a citizen is that you pledge allegiance to this country in exchange for protection by this country, and they go all the way back to, you know, early modern England and other places to sort of talk about that, but what they really don’t actually talk about besides what you just mentioned, which I’ll get to in a second. Lincoln’s attorney general, they don’t talk about the discussions of the passage of the 14th Amendment in 1866. They don’t have anything to say about what people at the time of the 14th amendment thought they were doing with this part of the 14th amendment. And that’s kind of weird, in my opinion, because I thought that what the project of originalism was about was talking about what was going on at the time that the a particular part of the Constitution was passed.

 

Kate Shaw Now, but not this part.

 

Kate Masur And also not these originalists, because one thing I’ve learned is that originalists will always say, well, no, that’s not the kind of originalism we do. We do a different kind of originalism. So let’s first just say, for the record, that birthright citizenship in this country did not begin with the 14th amendment. There’s a common law tradition of birthright citizenship that is part of the original Constitution in the line that the president of the United States must be a natural born citizen. And so that’s where the original Constitution sort of alludes to the idea that being born in this country can constitutes being a citizen of the country. But more to the point than the original written constitution was the common law tradition reiterated over and over again during the pre-Civil War period, in which judges at the state court level, occasionally at the federal court level, would repeatedly say, our tradition is a tradition that if you are born in this country, you are a citizen of this country, and once you are born here and a citizen, then yes, you do owe allegiance. And in exchange, you get protection. And so it’s really what the 14th amendment does. And I think it’s it’s really important to bring this out, is that the 14th amendment puts into writing something that people had believed was part of the Constitution of the United States. From the beginning, the part that, you know, gets interesting in the antebellum period really is the status of free African-Americans. Right? So they so what ends up happening is across the period before the Civil War, there begins to be some people want to create a carve out, which is, well, everyone who’s born here is entitled to citizenship except for free black people.

 

Leah Litman Something that you just said was super illuminating to me, which is birthright citizenship actually existed before the 14th amendment. And what the 14th amendment was trying to do is say, stop coming up with all of these super weird, strange theories to try to deny people birthright citizenship, stop using ideas about allegiance. Civic worth. Virtue. For exclusionary purposes, which is basically precisely what the Supreme Court did in Dred Scott, and that the 14th amendment said, no, no, no, no, no, like, knock it off. And yet that seems to be the air that is being repeated again.

 

Kate Masur Yeah. No, I mean, it’s so the authors of that op ed quoted a line from Attorney General Bates of the Lincoln administration in 1862 from his opinion, you know, the administration asked him to write an opinion about whether free African Americans were citizens. And they quote a line about allegiance and protection. But Bates then goes on to say, look, our principle from the founding has been birthright citizenship for everyone. I don’t think that it was ever correct to even say that free African Americans were not citizens, right? It has always been our tradition and there shouldn’t be carve outs for free black people. And then, as we might talk about, you know, when they when Congress, the Republican dominated Congress, Discusses how to frame out both the Civil Rights Act of 1866 and the 14th Amendment. People bring up this question of carve outs again. Well, are you saying that the children of Chinese immigrants are going to be citizens because of this? And what are the Republicans say? They say, yes, we really mean it. So, like, we’re not carving out exceptions here except for like a couple of tiny ones, which we can get into if you want.

 

Kate Shaw Well, you want to just mention those, maybe to dispose of them quickly. So kids of diplomats, right, are sort of the paradigmatic example of people who are physically present in the United States but remain subject to and are here in order to represent another sovereign. And so that is one carve out that has been understood.

 

Kate Masur Another one is children of an occupying army. So that goes back again to English common law. If you know there’s an occupying army and the members of that army give birth to a child, they are not they do not have birthright citizenship. But again, they’re not subject to the jurisdiction of this country. They’re subject to the jurisdiction of the country that they’re occupying on behalf of and.

 

Leah Litman Then representing that sovereign and trying to like extend that other sovereigns rule. Right. So yeah.

 

Kate Masur And then the final one, which is specifically in the U.S. context, is that Native Americans who are exercising sovereignty of their own are not birthright citizens, and that at the time is a recognition that they are citizens, essentially of their own nations.

 

Melissa Murray So there are a lot of blind spots in this argument, a major one being history, like the entire history of the 14th amendment, maybe even the original Constitution and the antebellum period. But there is just another blind spot that I wanted to call your attention to. So the Trump executive order essentially denies birthright citizenship to the children born in the United States, to undocumented parents, as well as to the children born in the United States, of parents who are foreign nationals but who are in the United States lawfully and temporarily, i.e. children born in the US to foreign nationals who might be here on a student visa. So, you know, we can call this the Kamala Harris slash Usha Vance clause if you want to. But the male law professors who wrote this op ed never really address the implications of that provision of the executive order for their broader argument about this whole question of protection and allegiance. They note that the exclusion of children born to mothers who are lawful but temporary residents is a, quote, more complicated question not addressed here in the op ed. But is it actually that complicated? Kate, if their argument is that eligibility for birthright citizenship turns on whether your parents are in this country lawfully, then the provision of the executive order that would exclude those children born to those on temporary visas has to be invalid, too. Or am I missing something?

 

Kate Masur If I understand the question, I think it gives them too much credit. I mean, it gets into the weeds a little bit because, you know.

 

Melissa Murray Like definitely don’t want to do that.

 

Kate Masur I mean, the one thing that’s noteworthy about the article is that it actually doesn’t at all take up the question of children born in this country. So it’s all about kind of parent adults and this kind of consensual relationship of you offer allegiance, you get protection in return. There’s actually nothing in the article about the question, which is a real question throughout history, which is why, you know, the British common law tradition developed in this way of, okay, so how you know, what are what’s the status of children? Obviously infants, newborns, they cannot consent to anything. And the question is what is their status? And this is even in that Bates opinion, he literally says citizenship does not and never descends through blood. It descends through land, through where you are born and our tradition. And so these people in the 1860s who supported these measures? They did not believe that the status of the parents was relevant to the citizenship status of the children. So, like, it shouldn’t matter if you’re here on a student visa or if you’re here and you’re an undocumented person, it shouldn’t matter if the parents haven’t pledged some form of allegiance to this country. None of that should matter, because what this is all about is the question of people who are born here. So the so that’s what I and if you really read the article like it does not address that question.

 

Kate Shaw And so maybe to turn to another I think fundamental flaw or hole in the argument is the op eds total failure to address Congress. Right. So we’re talking about history. We’re talking about the 14th amendment. But it’s also the fact that in addition to the early civil rights statutes that you alluded to, Kate, Congress enacted a citizenship statute in 1940 that tracks the language of the 14th Amendment citizenship clause. The op ed does not mention that doesn’t mention that, you know, there was a reenactment and recodification in 1952, and that the Congress under those statutes has long treated US children as citizens, even if their parents entered unlawfully. It’s done things like issue passports for those children. And so it just seems to me that the complete failure to address how Congress has understood the status of individuals born under these circumstances is just an enormous, glaring hole.

 

Leah Litman Maybe we can do a quick, lightning round rundown of some other key points just to debunk this, and.

 

Melissa Murray Just to kill it with fire and just to kill it with fire, Leah.

 

Leah Litman Well, because again, we don’t want to draw attention to this and suggest there is a debate over it. On the other hand, like we do want to make sure people understand just how outlandish this is. This theory, if you can even call it that, like would defeat the purposes of the 14th amendment. Just on several levels. Like under their theory, children of enslaved persons would not be considered citizens because people who were enslaved were brought to the country against their will. They did not come in amity or consent to its laws.

 

Kate Shaw The op ed like glancing references Dred Scott, obviously, the 1857 Supreme Court opinion that denies the very possibility of citizenship for those who were enslaved or descended from individuals who were enslaved. And so they write. At the time of its adoption, the publicly known purpose of the 14th Amendment was to extend the benefits of the social compact, including specifically the privileges and immunities of citizenship to African-Americans newly freed after the Civil War. That is a really narrow articulation of the goals of the 14th Amendment and to Melissa’s point, like it actually doesn’t address children. So that sounds pretty close to an explicit acknowledgment that the 14th amendment actually does not grant citizenship to the children and descendants of enslaved persons, which is a stunning claim.

 

Leah Litman It also seems to import like logic predicated on the divine right of kings. You know, maybe not surprising, but does suggest like what unites various batshit legal theories underlie much of what we’ve seen in recent weeks, like truly originalist hot boxing at its finest.

 

Kate Shaw And let me just also say, because we haven’t mentioned this. We don’t think the Supreme Court is the only source of authority on what the Constitution means. But it’s, I think, important that it, too, has spoken with a pretty clear, uniform voice about what this provision of the 14th amendment means in the 1898 decision in Wong Kim Ark. And then in a decision Plyler versus Doe, which is like dismissed, as you know, containing dicta about this. In the op ed we’re talking about also seems clear to embrace this expansive vision of what the first sentence of the 14th amendment means, and sort of the obvious conclusion that it requires birthright citizenship. So that, I think, is also important to have in the mix.

 

Kate Masur I think I mean, if I could add one, one thing, it’s also that I think in the and this maybe just goes to thinking about this historically, that sometimes in people’s efforts, whether in good faith or not, to emphasize that the 14th amendment and the other reconstruction amendments were passed with addressing the history of slavery and emancipation in mind. Which is true that there’s sort of an implication that thinking about immigrants came later and that, oh, then they had to figure out later what were the implications of this for immigration. But that’s not, in fact, the case. And that when we again, we can look at debates about the Civil Rights Act and the 14th amendment to see that they very much we’re talking about immigrants, including the immigrants who were the most anathema to many Americans at the time. Right? Not European immigrants, but Chinese immigrants. And they are explicitly saying, yes, the children of Chinese immigrants, people who are already not permitted to naturalize at that time, but the parents because of the 1790 Naturalization Act, which said only white people can naturalize. Yes, they too are citizens. And if you read the op ed, you would never know that. A there was a debate about the 14th Amendment period because in Congress, right. Or b the questions of immigration were even considered. And so, you know, to to really think about this historically and to. If you’re really genuinely interested in answering the question of what did the 14th amendment mean around the time that it was adopted? You really need to look at sources from that time period and not sort of say that the that the real thing we need to do is, you know, go back to early modern England.

 

Kate Shaw Unless you’re going to get sort of better, even if pretty sketchy support for the claim that their view of or third citizenship is in fact the right one.

 

Kate Masur I would also add I mean.

 

Kate Shaw This feels so instrumental.

 

Kate Masur Yeah. I mean, they’re completely cherry picking from Bates’s attorney General Bates’s opinion itself, which was in 1862, and I would urge everyone to read it. It’s readily available on the web, and you will see where the quote they take is from, in the opinion where he is talking about where Bates is basically saying, oh, people say this and that about citizenship and what are the rights of citizenship? He’s like, I think it all comes down to you give allegiance and you get protection. Then a few paragraphs later, he’s like, all right, so our tradition is birthright citizenship. We have no other tradition. He’s like, the reason that I am a citizen of this country is because I was born here. And then he goes on to talk about where the tradition of birthright citizenship comes from. He goes on to talk about the injustice of denying to free African-Americans birthright citizenship. And so, you know, it’s like the source itself, if you read the entire thing, tells you that birthright citizenship is this tradition, that it doesn’t have carve outs besides the very traditional ones. And, you know, it’s very conventional, very predictable, as you guys well know that. Like, this is what they do, right? They, they cherry pick quotes and build an argument that when right in context may have like no relationship to what the people who wrote these documents were actually trying to say.

 

Leah Litman So maybe just to sum up, it seems that someone who is literate, with a passing familiarity with American history and who can identify all of the sources of constitutional authority. Text. Precedent structure, congressional practice, executive practice would recognize that birthright citizenship is indeed a thing. Kate, we cannot thank you enough for coming on to help listeners underscore and understand just how wildly illegal this order is to keep this argument off the wall. So thank you very much.

 

Kate Masur Thanks for having me.

 

Leah Litman And listeners, this is a great opportunity to re-recommend Kate Masur’s books Until Justice be Done. America’s first civil rights movement, From Revolution to Reconstruction, as well as her latest freedom was Insight a Graphic history of Reconstruction in Washington, D.C..

 

Melissa Murray [AD]

 

Kate Shaw Okay, so shifting to our next segment, more news AKA things are still bad and may be getting worse. When we were last with you at Fordham Law School, where we had an amazing time podcasting, the 2025 Levine Lecture Main justice/DOGE 2.0 was in the process of trying to find somebody, literally any warm body, to do their bidding and move to dismiss the criminal charges against New York City Mayor Eric Adams. Listeners may recall that the DOJ’s letter indicated that DOJ was dismissing the charges, in part to facilitate Adams cooperation with federal immigration enforcement, a.k.a. a little quid pro quo non-prosecution.

 

Leah Litman DOJ received a few more hell nos in that search for a warm body. They should be used to it. It’s their whole dating history in a nutshell. As Samantha Jones once said of Richard Nixon on Sex and the city, nobody wanted to fuck him, so he fucked everybody. Well, so when we recorded at Fordham, acting U.S. attorney for the Southern District of New York, Danielle Sassoon had resigned rather than comply with DOJ directives to career officials at DOJ also refused to go gently.

 

Melissa Murray And AUSA Hagan Scotten joined their ranks with a scathing and pointed letter. We would read all of this letter, but these guys are breaking more than the DOJ so we don’t have time. But I commend the letter to you in full. I will note only this particular sentence. Quote, if no lawyer within earshot of the president is willing to give him that advice. The advice, of course, being that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less of elected officials. In this way, then I expect you will eventually find someone who is enough of a fool or enough of a coward to file your motion, but it was never going to be me. End quote. Basically Hagen Scotten said, I am not the one or the two. Continue on, sir.

 

Leah Litman It was like a reverse burger keeping on sex in the city. Like, it’s not me, it’s you, Dag bag. I just I really appreciated the energy, but inquiring minds might want to know, did DOJ find someone else to do it? Well, in the DOJ as on Tinder? No. Not really. So the deck bag himself, Emil Beauvais, appeared on DOJ filing of the motion to dismiss the other line. Prosecutors at the Southern District who had been involved in the case withdrew. Two other lawyers names did appear in the case, and on the motion to say that Beauvais had made some determinations and ordered them to seek dismissal. It’s a pretty rare document, and getting other lawyers to even do that seems like it was a fight. So Harry Litman said on blue Sky that he heard reports that DOJ signaled to its public integrity section that one of them had to sign on, or they might all be fired. The New York Times reporting and Reuters also seem consistent with that. That is the truly Stalinist moves of this administration.

 

Kate Shaw I also like the online discourse pointing out that these people can’t even do like prisoner’s dilemma, right? Which is that if you separate people to try to get somebody to agree to do it, maybe they, you know, sort of work at odds. But if you put them together, it’s going to be harder to turn them against each other. So in terms of the kind of most recent developments there ultimately did emerge, somebody willing to at least sign the documents. But at the status hearing that judge Dale ho in the Southern District of New York held on Wednesday, Beauvais was at the table, which was very unusual for a dagdag bag or just a regular dag. Also present at the table was Chad Mizell, who is the chief of staff to Attorney General Pamela Jo Bondy. Mizell actually argued the motion, which was very unusual. And because all roads lead back to article three and frequently to Clarence Thomas, we should note that Chad Mizell is the husband of Judge Kathryn Mizell, a Trump appointee, former Thomas Clerk, whose name may sound familiar because she is a district court judge who invalidated the mask mandate on federal transportation hubs back in April of 2021, when all of a sudden everybody just started coughing on each other on airplanes. Some people rip their masks off in mid-air and, you know, had Kathryn Mizell to thank for that.

 

Leah Litman Freedom isn’t free, Kate.

 

Kate Shaw Indeed.

 

Leah Litman They just want us to die on planes in many different ways.

 

Kate Shaw That’s true, that’s true. There is. And we had no idea just how many different ways there were to do that.

 

Melissa Murray She walked so RFK could run, ladies. All right, So we should talk a little bit about mandates. So the Trump administration issued an executive order threatening to withdraw federal funding from schools that have vaccine mandates. The EO directs the Secretary of Education and the secretary of HHS to begin implementing it and withholding these funds from any school that has a Covid vaccine mandate, and just want to say here that this likely violates the spending clause and possibly the First Amendment by conditioning schools participation in a federal spending program that is unrelated to Covid 19. On the schools expressing a particular view about Covid and the vaccine. Plus, the executive branch doesn’t just get to add conditions to funds that Congress has appropriated. So it’s problematic on a number of different fronts and likely will be challenged on those particular fronts.

 

Kate Shaw And piling on. The administration has also threatened to withdraw federal funds from schools that have race conscious scholarships, cultural centers, and graduation ceremonies. This would seem to call into question some affinity group programing like the Black Law Students Association, the Latino Law Students Association’s various other law school and other higher ed affinity groups. I mean also interfere with cultural spaces for underrepresented students. The Education Department’s Dear Colleague letter, which is what set forth this threat, states the Education Department’s view that any actions to, quote, increase racial diversity amount to race discrimination. So that tees up the question, do efforts to ensure the presence of racial minorities on campus? Or maybe just the actual presence, not even the efforts, the presence of racial minorities on campus now amount to racial discrimination. And just to be clear, this is an insane overeating of the students for Fair admissions case. Like even just taking the law piece of this. Like not even the kind of underlying diabolical goals, but to suggest that as the letter says, quote, although SFA addressed admissions decisions. The Supreme Court’s holding applies more broadly. That’s not obviously true. And schools, I think, do not just have to capitulate to this wild overeating, but that is obviously what the administration is trying to have them do.

 

Melissa Murray I wonder if the point of this dear colleague letter is simply to make higher education so inhospitable to minorities that we will just give up on school entirely and go back to picking cotton or watching their children for free. Is that the point? Separate question. If, during the Super Bowl halftime show, we had heeded those Twitter calls for more white people in the Kendrick Lamar lineup, would that also be racial discrimination or just fairness.

 

Leah Litman Inquiring minds want to know.

 

Melissa Murray I would like to know.

 

Leah Litman So it seems like these executive orders bring together two themes we’ve highlighted worth underscoring. Again. One is the administration’s efforts to roll back the civil rights movement. You know, not about ending die unless die means desegregation, a integration that is what they want to end.

 

Melissa Murray They can’t speak French, Leah. They can’t speak French.

 

Leah Litman Fair. Fair.

 

Melissa Murray Sorry.

 

Leah Litman Desegregation ey integration. Right? They think it looks like an ampersand. Signed. There you go. The other theme is about the administration’s efforts to attack major civic institutions in society, like universities, which I said at Fordham was a callback to the Teneo plan of creating a federalist society for everything and crushing the perceived liberal dominance in media and education, among other places.

 

Melissa Murray Speaking of things that we may have unwittingly manifested, she earlier warned us that we were just a few news cycles away from some doge burrows, losing sensitive information at the club while on a ketamine bender. Well, that may actually have happened. To be clear. Instead of leaving a club on a ketamine bender, the Doge Burrows apparently just left the sensitive information on the internet. So the Huffington Post reports that Doge posted classified information on the new Doge website. According to the reporting, the website’s online database provides details on the National Reconnaissance Office, which is a federal agency that designs, builds and maintains U.S. intelligence satellites. What could go wrong? The NRA’s budgets and head counts are classified information.

 

Kate Shaw But we can’t even focus on that because there is just so much else to cover. So what else have the Doge bro’s Doge bags been doing to the federal government? As we’ve talked about, they are firing a ton of federal workers. They are continuing to do that on its own. That is wildly destructive. It is creating the potential, which I think we will see realized quickly for environmental health, safety, welfare disasters, maybe even a full blown recession. And the new federal government, you know, human resources officials, we hear, cannot even be bothered to use mail merge to include the names of the workers they are firing in the emails or the documents firing them. These doge burrows also apparently may have unwittingly fired some people whose jobs were to ensure the safety of the nation’s nuclear stockpile. After firing those people, Doge decided maybe having people safeguard nuclear weapons and nuclear energy was a good thing after all. It’s possible they just accidentally fire those people didn’t even realize who they were or what they did when they did. When they did. Because I hasten to say. The press called everyone’s attention to it just so, so important that investigative journalists are doing this work. They sort of went oopses and tried to reach out to rehire these fired workers. Only, of course, they hadn’t bothered to get contact information before firing them, so they were struggling to get in touch with them. And the same thing appears to have happened with them accidentally firing and then seeking to fire some of the team at the Department of Agriculture working on bird flu response. Excellent news all around. Things are going great.

 

Leah Litman I’d love it if they would try to rehire some of those air traffic controllers. I’ll just put that on my wish list.

 

Melissa Murray I’m just going to go back to only the best people. The absolute best people. And that’s not the only thing the DOGE bro’s may have unintentionally wrecked. Apparently, the Occupational Safety and Health Administration OSHA, ordered the destruction of 18 publications on workplace safety as part of the administration’s efforts to terminate any activities associated with diversity, equity, inclusion and accessibility. The wonderful Substack Public Information obtained copies of these documents and reported that, quote, almost all of them are not associated with DEA topics, but appear to have been targeted because they include a DEA related keyword used in a completely different context. End quote. So one manual that was destroyed, for example, was OSHA Best Practices for Protecting EMS Responders during Treatment and Transport of Victims of Hazardous Substances release. On page 94 of that manual, there is a reference to quote, the diversity of state specific certification, training and regulatory requirements, as well as another reference to, quote, diverse conditions under which EMS responders could work. End quote. That’s all it was. Just some references to these terms. Diversity and diverse has nothing to do with diversity or inclusion or equity or anything else. Guys don’t get so trigger happy. It’s not that hard. Just keep reading. Just work at it.

 

Leah Litman Helpful clarification. Maybe that will guide them moving forward. So yes, we should also we should also take stock of other agencies or institutions of government that may have fallen in Kate’s terms or framing from our Fordham Law show. So one potential victim is the Internal Revenue Service. So the DOGE team sought and maybe obtained. It’s hard to know or confirm these days access to the IRS system with taxpayer’s records, which has private financial data tied to Americans like tax returns, Social Security numbers, addresses, and banking details. Also, maybe the Social Security Administration. So the acting commissioner of the Social Security Administration, a Trump appointed official, left the job after clashing with Doge over Dodge’s efforts to get access to Social Security records. That, of course, is the administration that manages pension payments for more than 70 million American seniors, as well as a bunch of their personal data.

 

Melissa Murray And maybe the rest of the federal government is a problem as well. In a bizarre executive order entitled Ensuring Lawful Governance and Implementing the President’s Department of Government Efficiency Deregulatory Initiative, the president directed that agency heads shall quote, in coordination with their Doge team, leads and director of the Office of Management and Budget initiate a process to review all regulations. End quote.

 

Kate Shaw I mean big balls that taking the place over the entirety of OIRA is really just, you know, that’s that’s the world we’re living in right now. And I want out guys. But don’t worry. It is not just about giving all of the power to big balls and making the world safe for deregulation. Let’s talk a little bit about what Elon Musk has been up, because he is not content to be made co-president of the federal government and to exercise not only all of the at least half of, but really maybe all of the executive power and also the legislative and maybe soon, the judicial power. Elon Musk has now cast his gaze beyond the federal government and to some states and specifically the state of Wisconsin. So, as we’ve talked about, there is a huge race underway for an open seat on the Wisconsin Supreme Court that will determine whether that court remains a 4 or 3 progressive or liberal majority, or flips back to a 4 or 3 conservative court. An entity called Building America’s Future, which is an Elon Musk backed group, has just bought $1.5 million worth of airtime on Wisconsin’s five markets to support the conservative candidate for that open seat, Brad Schimmel, who is running against Judge Susan Crawford. This race is huge for a number of reasons. You may remember that the Wisconsin Supreme Court in 2020 was the only court to really entertain one of Donald Trump’s lawsuits seeking to overturn the results of the presidential election. The court, by a single vote, refused to throw out votes in Milwaukee and essentially hand Wisconsin electoral votes to Donald Trump. So those are the stakes. Control of the court will also affect abortion access in the state. It will affect whether the state legislature can reinstate gerrymandered maps, which the progressive majority had invalidated under the state constitution. As to state legislative maps. It could also affect political power. The federal level of conservatives. Flip the court back. They’re definitely going to keep the state’s gerrymandered maps for Congress. That basically gives Republicans two seats in the House of Representatives for free, no matter how many voters in Wisconsin want something different. By contrast, a decision that struck down those maps might make the seats more competitive, ensuring that the Wisconsin congressional delegation reflects how Wisconsinites actually vote. Anyway, so those are the steaks. Susan Crawford really would be a justice in the tradition of joker Becky Dalot. Janet Proud say Wit’s End would retain that Liberal majority on the court. Musk is backing Schimmel, who I think would fundamentally change that institution. And I think it’s really scary that he is beginning to get his tentacles into places not just in the federal government, but in the states as well. It seems really important to push back against that.

 

Melissa Murray [AD].

 

Melissa Murray Switching gears. Many of the administration’s policies are also being challenged in the lower federal courts, and that includes the administration’s attempt to ban transgender individuals from serving in the military. The hearing on that order did not seem to go well for the government. The case is being heard before. Judge Honoré is a Biden appointee to the district of the District of Columbia, and oh boy. Judge Reyes gathered the administration’s whipping boy slash lawyer at multiple points. Judge Reyes attempted to get the DOJ to make a few concessions, not necessarily about the validity of the entire executive order. But, for example, she asked the lawyer representing the administration, quote, can we agree that the greatest fighting force is not going to be impacted in any way by less than 1% of the soldiers using a different pronoun. End quote. To which the DOJ lawyer slash whipping boy had this to say. Quote I can’t agree with that here. End quote.

 

Leah Litman In another remarkable exchange, judge has asked whether calling an entire category of people a dishonest, dishonorable, undisciplined, immodest, and lacking integrity, all of whom have signed up to fight for their country, expresses animus here to the Department of Justice. Lawyer resisted when asked, how is that anything other than showing animus? The lawyer said, I don’t have an answer for you. Judge Ray is then, and this is the real chef’s kiss moment, announced to the lawyer who had gone to UVA law that the judge had a new policy that prohibited UVA graduates from arguing in her courtroom because they’re all liars and lack integrity, and can’t possibly meet the high rigors of being a government lawyer. She then asked the government lawyer to sit down on that basis, called him back up and said, what was that animus? Dang girl, he is already dead. So we should say we don’t yet have her decision in that case. But she did say that the screams animus, which probably provides some indication of how things are going to go.

 

Kate Shaw The consequences of the administration’s other anti-trans executive orders are already playing out. The EEOC has sought to dismiss six cases that it brought on behalf of workers alleging gender identity discrimination, because Trump’s executive order has directed them to essentially erase the legal existence of trans people. Pretend that trans people don’t exist. A number of these claims alleged really serious misconduct on the part of employers involving things like, you know, misgendering, but also pervasive sexual harassment, both verbal and physical. A lot of these allegations would be illegal or just straight up sexual harassment, even without a theory that discrimination on the basis of gender identity amounts to discrimination on the basis of sex. And yet, the administration has essentially, you know, directed that all of these be dismissed.

 

Leah Litman And I think we should link this to what the Supreme Court is doing and about to decide, you know, in the cases on the bans on gender affirming care, because as the Supreme Court plays footsie with the idea that maybe it’s not unconstitutional discrimination or animus to target trans people. Like, that’s probably going to embolden the administration.

 

Melissa Murray All right. To be clear, the lower courts are not enjoining everything. And again, we predicted that there are going to be some things that got through. And in the last episode, Kate mentioned an Appointments Clause challenge that had been brought by a private plaintiff. That case argued that because Elon Musk was exercising so much governmental power, the Constitution required him to be appointed in one of the ways that was spelled out in the Appointments Clause, which requires an act of Congress. A group of states filed a similar challenge, and Judge Tanya Chutkan denied the state’s request for a temporary restraining order that would stop musk from doing whatever it is he is doing. And the reason why, according to Judge Chutkan, is because in order to prevail on a motion for a temporary restraining order, the complainant has to show that they will be irreparably harmed by the defendant’s actions. But as Judge Chutkan noted in her order, denying the request. It wasn’t clear here that the states could make that showing of irreparable harm, because no one really knows what Elon Musk is going to do next and what the impact of his actions will be. But just to be clear, she did not let DOGE and Elon off the hook and she read both of them for absolute filth.

 

Kate Shaw So let’s just read a brief excerpt from which I can wrote quote. Even defendants concede there is no apparent source of legal authority granting DOGE the power to take some of the actions challenged here. Accepting plaintiffs allegations as true defendants actions are thus precisely the executive abuses that the appointments clause seeks to prevent. Plaintiffs legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight.

 

Leah Litman So some of these policies, you know, cases matters. Maybe getting to the Supreme Court soon. One is actually already there, but in a somewhat unique posture. So its resolution might not provide us the best window to how this court is going to respond generally to the administration’s lawlessness. So the federal government has an emergency application that is seeking relief from a temporary restraining order that had temporarily blocked Trump from firing the head of the Office of Special Counsel, an independent agency charged with protecting federal employees and in particular, whistleblowers. So historically, that agency had has been considered independent from the sitting president.

 

Melissa Murray In a 2 to 1 decision the D.C. circuit dismissed the appeal on the ground that it was an appeal from a temporary restraining order restoring the head of the office to his post. And typically, TROS are not appealable. And for for that reason, the court dismissed the government’s request for a stay of the TRO. But Judge Katsas, who was on the panel and is a Trump appointee, had an ominous dissent that he filed. And again, it’s ominous because it seems like it may very well be an arbiter of things to come. Judge Katsas wrote, quote, the president is immune from injunctions directing the performance of his official duties, and article two of the Constitution grants and the power to remove agency heads, end quote.

 

Leah Litman Yeah, so seems to be giving not only the president criminal immunity, but also immunity from civil lawsuits that seek to block the president from doing illegal things. Whoa, boy.

 

Melissa Murray That seems not like a president, but a king. Maybe even a dictator.

 

Leah Litman Maybe.

 

Kate Shaw Chutkan says no, but unfortunately, she’s not the final word on these things.

 

Leah Litman By a 7 to 2 vote, the court denied the government’s application, explaining that the justices don’t generally have jurisdiction over appeals from TROs and that the case was proceeding along. Importantly, that says nothing about the merits. That is nothing about what the justices will do when the removal question actually gets to them. Justices Gorsuch and Alito dissented.

 

Kate Shaw The TRO, by its terms, expires on February 26th, and the district court said they’re working to quickly issue a more definitive final ruling that can proceed through the appellate process. So we will see. But on other issues, the president and the administration seem not content to wait. So they issued an executive order purporting to basically end the independence of independent agencies. Let me just read one excerpt from it. So the EO says, quote, it shall be the policy of the executive branch to ensure presidential supervision and control of the entire executive branch. Moreover, all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs within the Executive Office of the president before publication in the Federal Register. So that has not historically been the case. OIRA, which is an entity that we have alluded to before that exists inside the executive branch and has done this centralized review of regulations proposed and ultimately issued by various agencies has not historically reviewed the work of independent agencies. So this is a very significant change to bring them under the purview of OIRA.

 

Leah Litman And we should say the executive order which purported to end independent agencies did carve out a partial exception for the Federal Reserve Board, which means like they don’t really have a legal theory. Once again, it is just as Justice Kagan had said in a CFPB argument from last term. As you can hear here.

 

Clip I mean, if its not. If you state a test and then an agency that clearly fails under that test, you say, oh, no, I don’t mean no. Because for the fed, remember, the first and second national banks were organized as private banks. To this day, the presidents of the private regional reserve banks sit on the Federal Open Market Committee. And it’s also why I think that if this court wherever to take the step of overturning Humphrey’s executor, it likely wouldn’t impact the for cause removal restrictions on the board itself. And I think it does reflect that historical tradition in the fed of it not really exercising governmental power. Yeah, it’s just too important and whatever. I mean, the FDIC, the OCC.

 

Leah Litman Okay. So the executive order also added that the president and the attorney general, subject to the president’s supervision and control shall provide authoritative interpretations of law for the executive branch.

 

Melissa Murray Now, there had been some misinformation circulating about the scope of the order, and some people have basically suggested that the gist of the order was that the president, by declaring that he alone could interpret the law, was announcing or signaling his intent to defy court orders. That’s not what this order does. I mean, it really is about limiting the review of regulations and limiting the power of independent agencies to review their regulations. That being said, again, as Kate said, what the order does is really quite significant and it seems to continue to assert and impoundment authority. It says, quote, adjustments to apportionment may prohibit independent regulatory agencies from expending appropriations so long as consistent with the law. End quote. So that seems to be.

 

Leah Litman Pause here, like my guys making adjustments to congressional spending, appropriations to independent agencies is not consistent with the law. These two things cannot both be true. Congress also could do some of what the executive order purports to do, like modifying the structure of these agencies, but it has not because they don’t have the votes to do so. But that doesn’t mean the president can just bypass Congress like this, not how this works. I can almost hear the echoes of Neil Gorsuch saying what he said in one of his first dissents. It’s called legislation.

 

Melissa Murray The president also made a related statement that we should highlight. So in one of his truths on Truth Social, he noted that quote, he who saves his country does not violate any law.

 

Leah Litman And since this is an episode where we are apparently saying things that shouldn’t have to be said, but we’re going to say them anyways. A president who believes they are a messiah unbound by the law, and who intends to act as if they are a messiah unbounded by law, is fundamentally unfit for office. Like that is part of why we are saying this is a constitutional crisis. And just like relying on courts to clean up the edges does not and will not cut it. Although I am eagerly looking forward to seeing which law professor will write a defense of this truth post in the pages of the times. Stepping back more seriously, I kind of see this as follows. Like the Supreme Court said, we are just looking back to July that maybe the presidents are above the law. And here you have a president saying, yes, indeed I am. You know, it made me recall the ending to Justice Sotomayor’s epic dissent from the immunity case where she wrote, quote, even if these nightmare scenarios never play out, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably in every use of official power. The president is now a king above the law and quote, so I know, like a lot of the news and a lot of this podcast is now focusing on. Right, like article two, right. And all the chaos and disorder it is unleashing on our constitutional system. I just think it is impossible to understand what is happening in a way that is divorced from the Supreme Court, right? The court enabled this particular presidency as well as like laying the foundations for a lot of the specific lawlessness from this administration. So I’m just going to once again, use this as an occasion to plug my forthcoming book called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe theories and Bad Vibes. You can preorder it now. Again, if you want to understand how the court built the foundations for the Mojo Dojo caso white House.

 

Kate Shaw The person to blame is John Roberts. The read to understand it all is Leah’s book.

 

Melissa Murray [AD]

 

Leah Litman So next up are previews. What is the Supreme Court going to rank before the administration gets to. Or what is the court going to enable the administration to do next.

 

Kate Masur Who to bet on here?

 

Leah Litman Right.

 

Kate Shaw Just so many awesome things happening all around us.

 

Melissa Murray Drag race did it better.

 

Leah Litman Ladies, start your engines. So the first case we wanted to talk about is one where the justices are going to noodle over the following question is the real sexual orientation discrimination discrimination against straight people?

 

Kate Shaw That is actually only a tiny bit of a caricature. So here is what the case Ames versus Ohio Department of Youth Services is about. Marlene Ames worked for the Ohio Department of Youth Services for more than 20 years, beginning as an executive secretary, later becoming administrator for the Prison Rape Elimination Act. Her supervisor was a gay woman whose own supervisors were straight, and this will become important later on. So those are the players.

 

Melissa Murray Here are the facts. Ames applied for a new position. Bureau chief and she interviewed with her supervisors. Supervisors who again, were straight. The department didn’t choose Ames. They said she lacked vision and leadership skills. And the department left that a position open for a while before hiring someone else. Just a few months later, and the person that the department hired to take this position was wait for it. A gay woman. Later, the supervisors supervisors again, they were straight, told Ames that she would no longer be the Prea Prison Rape Elimination Act administrator and offered to return her to her role as an executive secretary. And this, of course, was a demotion that carried with it a pay cut. The supervisors straight supervisors later selected a new administrator for the Prison Rape Elimination Act, and this person was a gay man who had worked as a social worker in the department for a while. And then you’ll never guess what happened next.

 

Leah Litman The Heteros, they got pretty upset, Rose. So Ames claimed that these decisions were the result of a scheme to kick her out because of her sexual orientation, because she is straight. The department, by contrast, says it demoted her because they weren’t sure she could effectively lead the department’s revamped approach to addressing sexual violence.

 

Kate Shaw So Ames sued, alleging that she was discriminated against because she was straight and because she was a woman. The court rejected her claim that she was discriminated against because she’s heterosexual, because they said she didn’t show, quote, background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority. It also ruled for the employer on her sex discrimination claim, because she had failed to establish that the employer’s reasons were pretextual.

 

Melissa Murray Now, the question before the Supreme Court is just about her sexual orientation discrimination claim. It is whether when someone is alleging that they are being discriminated against for being in a majority group here, being straight in And a group where there is precisely no history of discrimination against them. Does the complainant have to provide some evidence, some reason, to think that their case is the very atypical, unusual aberrational case where someone is being discriminated against because they are straight? Courts asked for that evidence because they recognize that sexual orientation discrimination against heterosexuals is pretty unusual.

 

Leah Litman Except in the mind of Sam Alito. This, too, is a key theme of the second chapter of my book. Anyway, so this particular case, Ames, has to be understood against the backdrop of the Trump campaign. And now the Trump administration’s demolition of DEA programs and other efforts to desegregate the workforce. So drumming up these kinds of reverse discrimination claims is one of the ways conservative groups and now the Trump administration deter institutions, employers from trying to achieve diversity, to break down barriers and address long standing biases, network effects and the compounded impact of discrimination, look no further than the fact that the petitioner in this case is supported by America First Legal Foundation, Stephen Miller’s organization, and other ideological allies. This case will help the administration’s anti die anti desegregation and integration push right. It’s just like another iron in the fire and another like carrot or stick and that fight.

 

Melissa Murray Can I make another connection I know that this has nothing to do with same sex marriage. But one of the claims in cases like Masterpiece Cake Shop and 303 Creative versus Elenis, is this idea that the recognition of a right to marry a person of the same sex results in an opportunity for individuals who hold contrary views? Traditional views about heterosexual marriage are going to be discriminated against themselves. And so this all kind of comes together. So, you know, even if you are totally on board.

 

Leah Litman Nondiscrimination, the real discrimination.

 

Melissa Murray Exactly. I mean, so like again, this This is all of a piece. And the fates of the anted edition. A crowd and the anti Same-Sex Marriage Crowd are very clearly linked. In any event. We wanted to note two important amicus briefs that we understand to be, I guess, efforts to limit the fallout that this case could cause, given the nature of this court and the people who are likely to write on these questions. So one is a brief by antidiscrimination scholars Katie Ayer, Sandra Reno, and Deborah Witness, and it is a brief in support of neither party. And it basically says, listen, sure, if someone is actually discriminated against because they’re straight, that is sexual orientation discrimination, okay? And they ad courts shouldn’t be adding requirements to the statutes that aren’t already there. But at the end of the day, they explain when courts are deciding whether to grant summary judgment, basically judgment before trial, after some evidence has been gathered to an employer. The question is whether a reasonable jury could conclude that there was sexual orientation discrimination here. And at least I read the implication to be that that’s not going to be true in many cases like this one. And indeed, on aims of sex discrimination claim, the court entered judgment for her employer because it concluded that the employer’s reasons for not hiring her and for putting other people in those positions were not pretextual.

 

Kate Shaw So the other one we wanted to mention is a brief filed by the federal government solicitor general. But before the change in the guard. So the real Solicitor General, our Solicitor General, slash the person we actually honored on President’s Day this week, Elizabeth Prelogar. And so she filed that before she left the office. And the brief kind of takes a similar tack to the anti-discrimination scholar’s brief that Melissa was just talking about. It urges the court to send the case back to the Court of Appeals, and to tell the lower court not to apply a stringent or heightened rule requiring plaintiffs to show particular background circumstances in order to make out a discrimination against a majority claim. But, it notes the federal government has long suggested that there’s got to be some evidence, right? Some reason to think that there was discrimination against this person because she was straight. You can call that background circumstances. They say it’s not, you know, but it’s not a heightened standard. It’s just asking you to show the plausibility of your allegations, and also some reason to believe that a reasonable jury could rule for you on that theory.

 

Leah Litman So again, I kind of take these briefs to be an effort to blunt the effect of a ruling for petitioner trying to get an opinion that says, sure, hypothetically, if someone is discriminated against because they’re straight, they have a legal claim. But if all you’ve got is I’m straight, I have a gay supervisor and they promoted a gay person instead of me while explaining I’m not suited for the job. That probably isn’t going to cut it. So preserving court’s ability to reject these claims and not send them all to trial.

 

Melissa Murray But one risk of a case like this is that it can actually spook employers from hiring or promoting members of a minority group, because it makes it easier for individuals from a majority group to allege discrimination. And in this environment, it just has to be said. We already know that there are institutions who are being scared away from DEIA, and this is just further grist for that particular mill. So again, whatever the court decides, there’s already going to be some fallout here.

 

Leah Litman So the court is hearing a few additional cases this week. We’re just going to briefly know Gutierrez versus Saenz. So I’ll explain the facts of this case which kind of get into the issue. It is a suit by someone who was sentenced to death in Texas, and they are seeking access to post-conviction DNA testing that they say would prove they aren’t eligible for the death penalty. But Texas takes a position that under their post-conviction DNA testing law, you can’t get DNA testing that proves you’re not eligible for the death penalty. You can only get it to show your innocence of the crime. And so the petitioner Or here is arguing that violates due process. And the Fifth Circuit, in its infinite wisdom, said the petitioner, didn’t have standing to raise that claim because there was some possibility that if a court issued a declaratory judgment saying this Texas statute would be unconstitutional if it didn’t give access to post-conviction DNA testing to show you’re ineligible for the death penalty, that maybe Texas wouldn’t comply with it. So the petitioner’s injury wouldn’t be addressable by a favorable decision. Not a great time to suggest defendants might not comply with court rulings, and therefore, courts shouldn’t rule on the merits of the claim. But the Fifth Circuit’s reasoning is just all kinds of strange. It rests on kind of an overly aggressive misreading of a Texas Court of Criminal Appeals decision that suggested, even if he could get access to this DNA testing, the error would be harmless or, you know, he would still get the death penalty. But that’s not the same as like a favorable judicial decision, eliminating the basis on which Texas is refusing him access to this evidence. So it’s an important case, even though the issue is framed kind of wonky. But we’re definitely going to be watching it to see whether the Supreme Court, you know, flirts with the idea that maybe defendants can, you know, suggest they won’t comply with court orders, and that could lead courts not to hear their claims.

 

Melissa Murray The court is also going to hear two additional cases, and we’ll briefly note them. The first is a stare, US versus the United States, which is about what sentencing factors courts can consider when revoking supervised release. And the second is part two versus Richards, which is about whether litigants are entitled to a jury trial on matters that relate both to the merits of their claim and to whether they satisfy the Prison Litigation Reform Acts. Gantlets of procedural limitations on filing suit. So that’s what we’re going to hear at the court. We will cover those oral arguments in more detail in the next episode. But now on to some court culture. And guess what? Folks like the Trump administration, which keeps coming back no matter what you do. The Fifth Circuit keeps coming back. That’s right. The Fifth Circuit is still very much alive. We have spent a lot of time on this podcast covering the pollsters and article two since January 20th, but we had to come out of retirement because the OG shit posters of the federal government, the Fifth Circuit, are back on their hustle. So yes, the Fifth Circuit recently struck down a ban on 18 year olds purchasing firearms on the view that the challenged law violated the Second Amendment. The challenge law prohibited federal firearms licensees from selling handguns to individuals who were between the ages of 18 to 20 years old, and in invalidating the statute. The Fifth Circuit, predictably relied heavily on the fact that the 1792 Militia Act required 18 to 20 year olds to serve in the militia. QED. Guns are okay.

 

Leah Litman Better than relying on the Statute of Northampton. That’s all I’ll say.

 

Melissa Murray An improvement.

 

Kate Shaw Is it, though?

 

Melissa Murray We don’t have to drink with the Militia Act. We did have to drink for the Statute of North Hampton.

 

Kate Shaw That’s true. Good, good good call back. So but the court, of course, takes history extremely seriously. So it acknowledged that 22 jurisdictions, including 19 states, the District of Columbia and two municipalities, passed laws between 1856 and 1897 that limited the Second Amendment rights of 18 to 20 year olds in some way. It says that two of those laws are not relevant, but does seem to concede that the others like 2020, such laws are relevant. So you would think on their own method this might matter, might establish there’s a tradition of regulating firearms in this particular way, but who’s going to get a little history more recent than the Statute of Northampton get in the way of a good time.

 

Leah Litman Basically, the Fifth Circuit said guns for DOGE bros, for big balls. If they’re old enough to run the federal government into the ground, they’re definitely old enough to buy a firearms. Am I right?

 

Kate Shaw Maybe not to get into a strip club, to leave the flash drive there, though. So I’m not sure. They might still be barred.

 

Leah Litman We’ll have to leave it at Chuck-e-cheese.

 

Melissa Murray It was a website. There was no ketamine involved. Let’s be really clear about what happened.

 

Leah Litman So we try to be extra fair to the Fifth Circuit. So we did want to note a moment of on box sanity in that court. The court voted 16 to 1 against one judge Jim HOH, who is auditioning for a Supreme Court. See, it’s so hard he might break the stage or the federal courts. So the court noted that in the on banc poll, which is a poll about whether the full court, that is, every judge on the Fifth Circuit should hear a case rather than or after that, a panel of three judges has done so in that unbound poll quote, one judge voted in favor of rehearing. Judge ho and 16 judges voted against and quote, womp womp.

 

Melissa Murray And some of the Fifth Circuit judges had some choice words for the other judge. Ho. And as we’ve said on this podcast before, even a stop clock is right twice a day. So Stanford storm Trooper Stuart Kyle Duncan had this to say, quote, even though the losing side chose not to seek en banc rehearing, one judge called for an en banc poll. The poll failed 16 to 1. That should surprise no one, because there was no plausible reason to rehear this case and quote.

 

Kate Shaw When you’ve lost Judge Duncan, I know. So the case involved a challenge to federal protections for trans individuals. The plaintiffs suggested that if they did not provide care for trans people, they might lose out on funding. A panel concluded that the physicians lacked standing because the United States readily affirmed, judicially admitted, and confirmed at oral argument that the guidance exposed the plaintiffs to no credible threat of investigation are losing federal funds based on their described medical practices. Also, since the case was filed, Trump issued an executive order that four swore using federal civil rights laws to protect transgender individuals when it declared that the executive branch would only recognize, quote, two sexes, male and female.

 

Leah Litman Not to be deterred, Judge Ho was like, but this case provides me a vehicle to do some trans bashing, which would help me in my quest to be America’s next top Supreme Court justice. I didn’t actually say that, but that is the subtext. And because we are still living in the worst of times, the Fifth Circuit was not the only court getting busy as of late out there in the 10th Circuit, a Trump appointed judge wrote that it is a, quote, novel and complex and, quote, question whether Donald Trump can be elected to a third term. Woof.

 

Melissa Murray Just so we are very, very clear. This is actually not a novel and complex question at all. Indeed, I dare say it would not be a novel and complex question for these goons if the president, seeking a third term was one Barack Hussein Obama. Because reasons. All of this.

 

Leah Litman And yet I am convinced that a law professor or two might be willing to write an op ed suggesting maybe Donald Trump does have a case for running for a third term.

 

Melissa Murray And if said mens law professors would actually write that op ed, I would simply come back on this podcast to reiterate that all of this is simply an effort to normalize an absolutely bullshit claim for a third Trump term. Anyway, the case involved one of the many challenges to Trump’s appearing on the ballot, but that already happened. He did actually appear on the ballot, so the case obviously became moot. The question now is whether the issue whether Trump could appear on the ballot was one that was capable of repetition, yet evading review such that the court could invoke one of the exceptions to the muteness doctrine and hear it anyway. The majority says, quote, his claim concerns the presidential candidacy of President Trump and no one else. The 22nd amendment, however, mandates that President Trump cannot be elected to another term after the current one. End quote. But again, said Trump appointee, he says, hold my beer. Not so sure about that. And all I have to say on this point is, as they say in the great state of Texas, apparently you got to dance with the one who brung you. And here it seems Donald Trump brung her.

 

Leah Litman And yet, as the great Beyonce said, this ain’t no Texas. Ain’t no hold em.

 

Melissa Murray Lay your cards. Down, down down.

 

Leah Litman Down down down. Okay, so it is not just the judges who have gone wild or are behaving badly. We wanted to highlight some clips from recent arguments that a few listeners brought to our attention. We always appreciate these kinds of tips. We can’t actually listen to every single argument and every single court in the country. So the first clip comes from a case in the Federal Circuit. The court has specialized jurisdiction over a variety of intellectual property matters, and in this case, several judges wanted to express their concern to an advocate about the rhetoric in The Advocate’s brief. And the advocate was pretty unwilling to concede any kind of error whatsoever.

 

Melissa Murray Was it a man ?

 

Kate Shaw So who.

 

Melissa Murray I think it was. Pretty sure it was.

 

Kate Shaw Right. So this infallible advocate was, of course, a man. It was, in fact, Paul Clement, a former Bush solicitor general. I know one who insists. And Melissa has never forgiven him for this, that NYU does not have a campus. He is a regular Supreme Court advocate. He is extremely well regarded. And this refusal to concede any error led to the following two pretty remarkable exchanges. Here is the first, which happened pretty much right out of the gate as the argument started.

 

Clip Mr. Clement, before you start can I just note, You are a very experienced practitioner. The rhetoric in the blue brief was a little bit much for me. I’m a little disappointed and in the tone of this brief, well, I’m sorry you had that reaction, Your Honor, but frankly, my client’s pretty disappointed by the way they’ve been treated throughout this. Yes. And you’re a very experienced appellate advocate. And, you know, we are not a jury, and we don’t appreciate that kind of rhetoric. Your strength is in your arguments, not that kind of tone and substance. So I would hope that you you have appeared before so many times and you are an excellent advocate. I would hope you would not sign on to a brief like this. Or again. Well, I’m not sure I can make that promise, Your Honor, because with all due respect, I think what happened in this case was not appropriate. I think given what happened to my client before this court in the first Sysco against centripetal case, at a minimum, when they asked for recusal for the app.js that had a greater interest, at least potentially three times as much. I think they at least deserve respectful consideration, and I don’t think they got that. But we can we can disagree about the rhetoric in the brief, but I don’t think we can disagree that there was a double standard applied here. That is highly problematic.

 

Clip I’ll let you get on with your argument. But I can’t leave my colleague hanging out there. And that the the rhetoric in the brief was something about which we all unanimously agreed in advance to choose, just agreed to be the one to make mention of it. It’s not meant to derail your argument, and it’s not going to take away from the strength of your argument. It’s just the tone. So please proceed.

 

Clip I will, and I will try to proceed in measured tones. But I have to say, as somebody who has seen a lot of government proceedings, I do think the way these proceedings went and the way that my client was treated was highly inappropriate.

 

Melissa Murray And here’s the second clip, which is from the end of the argument. Again unwilling to concede any ground here.

 

Clip Why would she say this has no impact on existing or past cases? Why would she say that? Why would she have that if she actually, if you’re telling me that in her executive order or whatever it’s called director’s order, that she decided, yeah, this is wrong. This is wrong. What’s wrong with this case? Why wouldn’t she have done something else? This case?

 

Clip So, with respect, I think that she didn’t do something about this case because my client was singled out for unfavorable treatment, which explains why we’re making this claim. I think it explains and frankly justifies the rhetoric in the brief, but we obviously disagree about that. But I think my client’s been singled out and treated horribly unfairly in this case and makes it a classic one case. I know that, and I’m supposed to be a zealous advocate for my clients. And if the rules of this court don’t allow that, I think that’s frankly a problem. Now, moving.

 

Clip Counsel, I think you can be a zealous advocate without using extended rhetoric. I don’t think that those two things have to rise and fall together by any means.

 

Clip Well, you’ll have to tell me what rhetoric really offended you, because I think this brief was an excellent, brief and consistent with the briefs that I filed in every regional circuit court of the United States. I don’t know, I.

 

Clip Write quite a few of your briefs. I’ve never seen one written like this. So there you have it. But anyway.

 

Clip Not in not every case. Does my client get treated this shabbily by the.

 

Clip Government being for plenty longer. Do you have anything further? Thank you. Counsel, this case is taking my submission.

 

Leah Litman As the Supreme Court said, we’re fallible because we’re final. Except.

 

Melissa Murray Except not.

 

Leah Litman And also you’re not final. But anyways. Whoa. So again, this is not the only, I don’t know, entry into the the men’s okay appellate advocacy edition. So there was also a moment in a six circuit antitrust case, Academy of Allergy asthma versus Emory Group Tennessee.

 

Melissa Murray And this is a different advocate, right?

 

Leah Litman Alas, still a man, still a pawn, still the man. Paul Clement. So here to Paul Clement’s rhetoric got a little heated, and one of the judges on the panel intervened to kind of ask gently, like, are you insulting me? So we’ll play that here.

 

Clip The way I’m thinking about the case in the For What it’s Worth category is I’m with you on the five factors, like if that’s the way we think about it, I think you win if it’s in Illinois. Brick problem. I’m think it’s really hard. That’s that’s how I see it. It’s but it’s not an Illinois brick problem. I know this is with all due respect, this is the simplest antitrust standing case ever. It’s a joint boycott. Yeah. No, I’m I mean, obviously you you know, you’ll issue an opinion, you’ll tell me differently. But there is just when you are, when you are the target of a joint boycott, asking you to focus on the things that I think are what’s hard.

 

Leah Litman And on Friday, after we recorded Judge Ho, the good one decided to tie all of these episode threads together more seriously. He appointed Dun dun dun dun Paul Clement to argue against the Department of Justice’s motion to dismiss the Adams case. I’m personally looking forward to the overheated rhetoric. Clement is inevitably going to throw DOJ his way. Once again, we are compelled to ask, are the men’s okay? It seems like we have come back to the beginning of the episode.

 

Melissa Murray I mean, they should be okay. They’re getting everything they want. Like, we’re going to have to, like, show like three forms of ID to vote now, and all of them have to match or can’t get married and change your name like, ladies.

 

Leah Litman Just pause there.

 

Melissa Murray I mean, that’s never going to pass the Senate. But still, the fact that it passed the House was like fucking crazy anyway.

 

Leah Litman Well, even if it doesn’t pass Congress, apparently the president can just do it right since he possesses not only the executive power, but also the legislative.

 

Melissa Murray And it would be good for protecting the women, to not allow them to vote, like to expose them to the harshness of the ballot box.

 

Leah Litman Yeah.

 

Melissa Murray See, we’re just giving them ideas.

 

Kate Shaw We’re like 90 days out from that, guys.

 

Melissa Murray Shut it. It’s true

 

Leah Litman Stop manifesting this, Melissa.

 

Melissa Murray You all manifested some real dark shit earlier, so.

 

Leah Litman Well, that’s a warning to you.

 

Melissa Murray Okay, before we close a little light housekeeping, as it were.

 

Kate Shaw As Black History Month comes to a close, Vote Save America is continuing its commitment to progress by supporting black led organizations and candidates of color through our anxiety relief program. One candidate is Kimberly Pope Adams, who is running for a Virginia State House seat. This year, a critical opportunity to expand the Democrats slim one vote majority in that House. Your recurring donation in any amount helps build progressive power for 2025 and beyond. You can make an impact at Vote Save America. Uncommon donate paid for by Vote Save America Vote Save America dot com. Not authorized by any candidate or candidate’s committee.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Eddie Cooper. We get production support from Madeline Herringer, Katie Long and Ari Schwartz. Matt DeGroot is our head of production and we are thankful for our digital team, Ben Heathcote and Joe Matuski. Our production staff is proudly unionized with the Writers Guild of America East. You can 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 on your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and reviews. It really helps.