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June 29, 2023
Strict Scrutiny
The End of Affirmative Action

In This Episode

Today the Supreme Court delivered its opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, declaring admissions programs that consider race to be in violation of the 14th Amendment. Melissa, Kate, and Leah break down the Chief Justice’s opinion, Justice Thomas’s galling concurrence, and the brilliant dissents by Justice Jackson and Justice Sotomayor.

  • Listen to our recap of the hours and hours of oral arguments in these cases: “Affirmative Action Reaction
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TRANSCRIPT

 

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

 

Melissa Murray Hello and welcome back to Strict Scrutiny, your podcast about the super moderate, super chill, very institutionalist precedent observing Supreme Court. That is definitely the most ethical court we’ve had in a long time and that you’ve been reading about in the media. So again, this is another case where legal culture is on our minds and the court is really living up to its ethical, super institutionalist, super observant vibes, right?

 

Leah Litman Wait, um. I’m going to check my notes here. It seems like we’re getting a correction from someone, some liberal firebrand named Joe Biden. So let’s hear from him on this issue.

 

Clip Is this a rogue court? This is not a normal court.

 

Leah Litman Okay, so let’s run that intro back one more time. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court. That is definitely not a normal court. But don’t worry.

 

Melissa Murray We’re still your normal hosts. Well, I think we’re pretty normal, but we’re definitely more normal than whatever was affecting Justice Clarence Thomas in that affirmative action concurrence slash vying to be the majority opinion opinion that he wrote today. But again, I’m Melissa murray.

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. And if I’m extra unhinged today, it’s because the last few weeks of Supreme Court coverage have been truly crazy making reminding me of how we got to where we are today. So with that caveat, let’s go right ahead.

 

Kate Shaw And as Melissa just teased, we got the big affirmative action ruling today in the Harvard and UNC cases, many, many bad things in the opinion. One thing in the opinion we should note, we’re happy about, I suppose, which is that Melissa, they saved this one until you were back in the country and we could benefit from your wisdom is that one of the silver linings of this otherwise shit show of a day.

 

Leah Litman You sound so thrilled.

 

Melissa Murray To be clear, I was in Jamaica and it was literally like fucking Wakanda. It was amazing. And I’m glad to be back to be in a non wakandan space where I can, you know, discuss this opinion with everyone. So thanks, Clarence for waiting for me you’re the best. Thanks. Ugh. Anyway, as we predicted, this was a 6 to 3 opinion because of course it was. It was written by the Chief Justice. I will say I got this one wrong. I thought Justice Thomas was going to finally have his chance to eviscerate affirmative action, but.

 

Kate Shaw So did he, clearly.

 

Melissa Murray Yes, he clearly did as well um this came as a surprise to a lot of us, including Clarence Thomas. But the chief justice actually exercised his prerogative as chief to assign the opinion where he is in the majority. And he decided to keep this one to himself, to keep it on the normal side. But even that wasn’t enough to really give this opinion the patina of true normalcy. So in the 6 to 3 opinion written by the Chief Justice, the court invalidated both Harvard and the University of North Carolina’s affirmative action programs on the grounds that they illegally discriminate on the basis of race in violation of the Equal Protection Clause. Again, Harvard is a private institution and it’s not bound by the 14th Amendment. But the court notes in a footnote that they conceded that the Civil Rights Act, that’s the federal law that governs private institutions that accept federal funds, imposes the same rules on private institutions as the 14th Amendment imposes on public institutions. So Harvard and UNC, you’re in danger, girl. You’re all doing the same wrong things. And the courts here to give you a big rebuke. So with that in mind, let’s do some big picture overviews of what the court did before we get into the nitty gritty mechanics of this decision. So one TLDR of this opinion is that the 14th Amendment, again, that is one of the reconstruction amendments and the 14th Amendment was all about securing protections for formerly enslaved persons and alleviating the conditions that had previously subordinated them. You know, that whole little slavery blip that we had for a while here in this country? Well, apparently the 14th Amendment prohibits the government and these private institutions from doing anything that might ameliorate racial hierarchies that have proceeded in the wake of that little slavery blip.

 

Leah Litman So the equal protection clause, we learned, actually prevents equal protection of the laws. That is the six three opinion we got today, plus some concurrences. Don’t worry, we’ll get to them. And dissents by both Justice Sotomayor and Justice Jackson. Both of the dissents are joined by all three of the Democratic appointees. There are several very creative works of historical fiction woven throughout the majority opinion that I figured we could also get to up front. And on some level I understand it. You know, historical fiction sells. If you look at, you know, New York Times bestseller lists.

 

Melissa Murray Outlander.

 

Leah Litman Sarah MacLaine’s, you know, like always up there. But the point is, I guess you probably shouldn’t put it in the U.S. reports. Just get some good stuff off Bookshop.org. But one tale of historical fiction that is interwoven in this opinion is predictably about the meaning of Brown versus Board of Education. The Supreme Court’s decision that formally invalidated explicit racial segregation in schools. The Supreme Court in this case, the affirmative action case, has this insane, truly deranged, self-congratulatory narrative about Brown that’s basically like we. The Supreme Court single handedly ended racism in this country. And if anyone does anything more than that to help bring about racial integration, that would itself be racist. So that’s the summary. Here’s the actual language quote. The culmination came finally in Brown. In that seminal decision, we overturned Plessy for good and set firmly on the path of invalidating all jury racial discrimination by the states and federal government. Immediately after Brown, we began routinely affirming lower court decisions that invalidated all manner of race based state action. In the decades that followed. This court continued to vindicate the Constitution’s pledge of racial equality.

 

Kate Shaw And in support of this highly subjective account of the court’s role here, the court quotes really selectively and very out of context. I would add from the oral argument in Brown and the briefs in Brown to suggest that Brown clearly forbids all considerations of race, of whatever kind and for whatever purpose. The majority also says in a pointed response to one of the dissents, and we will get to that dissent, it’s that Justice Jackson dissent. So the majority says lost in the false pretense of judicial humility that the dissent espouses is a claim to power so radical, so destructive that it required a second founding to undo.

 

Melissa Murray Who’s the real racist here? It’s the new black colleague.

 

Kate Shaw And who’s really the one trying to accrue all the power to herself. Also, the new black colleague.

 

Leah Litman Yeah, the person not invalidating the challenged admissions programs anyway. Okay. I just need to point out this second founding bit for a second and what the court is saying. So the second founding refers, of course, to reconstruction. Right. Founding the country anew. And it seems as though the court is saying that the country required a second founding to undo efforts to integrate schools. Like, I’m sorry, I missed that lesson about what the Civil War and Reconstruction were about.

 

Melissa Murray Mostly about economics, we’re told. Mostly economics.

 

Leah Litman Well, duly noted. In the midst of.

 

Melissa Murray This exegesis on what can Brown do for you and I used to love those UPS commercials back in the day. I didn’t know they would have a second life here in this opinion, but here we are anyway, in the middle of this exegesis about this newly repurposed Brown versus Board of Education, Justice Sotomayor intervenes and asks her colleagues to seriously have a fucking seat. So she notes that the majority suggests that, quote, it required a second founding to undo programs that help ensure racial integration and therefore greater equality in education. But at the risk of stating the blindingly obvious and as Brown recognized, the 14th Amendment was intended to undo the effects of a world where law systematically subordinated black people and created a racial caste system. And here she appropriately cites Dred Scott Brown and its progeny recognize the need to take affirmative race conscious steps to eliminate that system. So, as Lia was suggesting, she completely rebuts this ridiculous invocation of Brown. But then she goes further and tells her super majority conservative colleagues to please get Justice Thurgood Marshall’s good name out of their goddamn mouths. So again, you’ll recall Justice Marshall, before he was a justice, was one of the litigators with the NAACP Legal Defense Fund. And he is the person who argued Brown versus Board of Education before the court. And she notes here, if there was a member of this court who understood the Brown litigation, i.e. not you fuckers, it was Justice Thurgood Marshall who, quote, led the litigation campaign to dismantle segregation as a civil rights lawyer and rejected the hollow race ignorant conception of equal protection endorsed by the court’s ruling today. Justice Marshall joined the Berkeley plurality and applauded the judgment of the court that a university may consider race in its admissions process. In fact, Justice Marshall’s view was that Bork’s holding should have been even more protective of race conscious college admissions programs in light of the remedial purpose of the 14th Amendment and the legacy of racial inequality in our society. The Court’s rejection. Authorization of Brown is nothing but revisionist history and an affront to the legendary life of Justice Marshall, a great jurist who is the champion of true equal opportunity, not rhetorical flourishes about color blindness. Mic drop. Boom. Lawyered.

 

Leah Litman Right? There is literally nothing else to be said after that. I am wearing the sweatshirt that we were kindly gifted from Howard Law School that says the Mecca and depicts, among other people, Justice Thurgood Marshall, because the invocations by the majority of his statements from oral argument are so deranged and so galling. I mean, it’s like when they invoked Justice Ginsburg to overrule Roe and yet somehow worse.

 

Melissa Murray We should talk. I mean, like, again, that’s it’s all of a piece. They also invoke Judge Constance Baker Motley, who was one of Marshall’s lieutenants at LDF, became the first black woman to serve on the federal bench and is someone that Justice Jackson has noted is a personal hero of hers. They brought her into this bullshit, too, and she literally wanted nothing to do with this reading of Brown. And I think Justice Sotomayor appropriately recuperates from this nonsense.

 

Kate Shaw So we jumped right in with an overview of and some actual excerpts of the various opinions in this case. And that includes like the bad, which is the majority opinion by Chief Justice Roberts and a number of concurrences that we will get to. And the good there is like righteous and white hot fury from the pens of both Justice Sotomayor and Justice Jackson. Again, we will read more excerpts from their respective dissents. But maybe first, let’s do a little bit more kind of ground laying in terms of what the court does in broad terms. And maybe first, let’s just say the court offers this incredibly abbreviated overview of American history, the 14th Amendment, the court’s role in it, this version of history, I think, is extremely effectively corrected by both Sotomayor and Jackson. But then in the majority opinion, the court after this really a cursory overview, the court purports to apply its affirmative action precedents. So primarily the Baki case from 1978 and Grutter versus Bollinger from 2003, and basically finds that under those cases, Harvard and UNC and by extension, any comparable policies basically failed to adhere to the guidance the court set forth regarding when race conscious programs can constitutionally be utilized. So back again was the 1978 opinion in which Justice Powell’s controlling concurrence agreed that some race conscious admissions policies could be constitutionally permissible. And then in 2003, in the Grutter case, a majority of the court held that, yes, strict scrutiny applied in evaluating the University of Michigan Law School’s race conscious admissions policy, but that the policy did survive that constitutional scrutiny because diversity was a compelling government interest, and universities like Michigan should be able to pursue that interest using race if it’s done in the context of an individualized and holistic assessment of applicants. And even though that is literally exactly what the schools in these cases were doing, the court just moves the goalposts here and says no dice. It says it isn’t overruling Grutter, although Thomas, in his concurrence, says like, obviously, yes, we are, but the court basically says we’re not going to, you know, add another sort of take mark to the list of enormous precedents we have overthrown. Instead, we’re going to purport to just apply Grutter and find these schools fall short. But that is a very, very difficult contention, I think, to take seriously at face value.

 

Leah Litman I just have to say the Thomas concurrence of yeah, we’re obviously overruling Grutter has all of the vibes from Dobbs last term when he wrote separately to say, Oh by the way, obviously we’d also overall Griswald, Lawrence and Obergefell if given the chance. And the joint dissenters are like not all of the people in the majority are with the program. So anyways, just reminded me of that.

 

Melissa Murray He’s just like, we’ll get there. Give me time, give me time. A major problem that the Chief Justice has with these holistic uses of race that have been followed in the wake of Grutter is that he views them as being standardless. And by standardless he basically means that it’s not easy, nor is it convenient for courts to review them. And for him, that’s a major problem that makes these policies unworkable because after all, they’re not just courts, they’re not just lawyers. They are also historians, as we learned in Dobbs and as we’re learning in this case, they are also educators who know how to administer classrooms and educational programs. So one of the first things the chief justice notes is that you can’t subject the compelling interest and diversity to meaningful judicial review. He notes that Harvard identifies certain educational benefits that it’s pursuing, including training future leaders in the public and private sectors, preparing graduates to adapt to an increasingly pluralistic society and better educating its students. Through diversity and producing new knowledge that stems from people with diverse outlooks. But he notes, though, that it’s really hard to figure out if that’s happening. How do you measure that? How do you find that? Later on, in the opinion. He echoes this, noting, And given the mismatch between the means, respondents employ here the use of race and the goals they seek, it is especially hard to understand how courts are supposed to scrutinize the admissions programs that respondents use. So again, this is really not necessarily about the educational environment, but whether or not the educational environment is constitutionally legible to this group of nine lawyers.

 

Kate Shaw And even though the court manages somehow to superintend legal tests that require, you know, the consideration of multiple factors all the time, in other contexts, it is all of a sudden impossible for a court to possibly manage to administer, evaluating the kinds of standards that these universities have said they are pursuing through their use of race in admissions. So he says, you know, can’t possibly actually implement these standards. And importantly, he says, what matters is our ability to assess how these courts are faring on their own metrics. So it is just fundamentally a court centric and court empowering vision of the Constitution. Right? So he says Roberts in the majority, says universities may define their missions as they see fit. Very nice of him to allow that courtesy. But then he goes on to say, The Constitution defines ours. Courts may not license separating students on the basis of race without an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review. Once again, it is all about the nine of them or the six of them. Everything else be damned.

 

Melissa Murray It also strikes me that this is the same thing that they were talking about last year in Dobbs, about the reliance interests insufficiently concrete, insufficiently measurable, too inchoate. I mean, basically, when anyone who is not a white guy gets something like we can’t measure it and we therefore can’t actualize it in any way.

 

Leah Litman They’re not real because they’re not real people right now. No real interests, no real benefits. No real people. So.

 

Melissa Murray Thank you.

 

Kate Shaw Yes.

 

Melissa Murray That seems right.

 

Kate Shaw So in addition to all of a sudden finding this impossible to manage just in this context, the court identifies other objections suggesting that the way the university uses race sometimes operates as a negative or involves the use of stereotypes. The court is very critical of the racial categories that universities use, including things like treating Asian-American as a unified category rather than South Asian or East Asian, as being sort of separate subcategories, using Hispanic as a unitary category. And that independently troubles the court deeply, in addition to what it views as the kind of amorphous ness of the overall set of objectives the universities are pursuing.

 

Melissa Murray He’s especially mad that they don’t break out Middle Eastern as a distinct category. And I think this is the point where Iqbal would like a word.

 

Leah Litman Well, you know, if there’s anyone in the United States who understands the complexity of racial categories and the different lived experiences of different racial groups in the United States, it would be John Rogers. And so I appreciate his his knowledge about this. You know, on the court suggesting that the schools here were using race sometimes as a negative. I did want to draw listeners attention to a USA Today piece that documented an interview with one of the students whose complaints of discrimination against Asian-Americans actually triggered this litigation and whose views have since evolved. So as a senior, Michael Wang filed discrimination complaints with the Federal Department of Education’s Office for Civil Rights that the piece notes helped to set in motion this, you know, latest movement to end affirmative action. And in hindsight, he now says, A part of me regrets what I put forward.

 

Melissa Murray Okay. I’m sorry, deep breathing. The piece further describes how Wang, quote met with Edward Blum. Blum, of course, is the driving force behind the opposition to race based admissions. And they agreed to speak publicly about his own situation over and over and over again. And the piece goes on to describe the way in which Wang has come to feel that the issue is much bigger than just whether he got to attend Harvard College. That’s great. Ultimately concluding that, quote, Affirmative action is a Band-Aid to the cancer of systemic racism. Very glad that Michael got there. I really wish that the whole country did not have to go on this journey with them. But I’m glad that he got there. Welcome.

 

Leah Litman So someone who did not get there is, of course, the chief justice and this majority opinion which maintains that it is merely applying the court’s precedent rather than inventing it anew. This is where it should have included that image of Kathryn Hahn doing. That winky face because like, this is certainly not applying those cases. So I’ll just tick through a few things that seem like notable differences. So previously the court had said that when schools use race conscious admissions programs, they are subject to the legal test known as strict scrutiny, which of course is also the name of this podcast. And formally strict scrutiny requires the government to identify a compelling interest that a program serves. Now, the court says the interest has to not only be compelling but also coherent. New legal test just dropped, I guess, and this makes sense because the words compelling and coherent both start with the C, so seems legit. So the court writes quote, Although these are commendable goals, they are not sufficiently coherent for purposes of strict scrutiny. Additionally, you know, as Kate recounted in her recap of the law up until now, previously the court had said that facilitating educational diversity, diversity in educational settings was a compelling interest. But the court effectively negates the force of that interest here by coming up with some new rules that are basically, you know, cherry picked from language in previous opinions and how it applies these rules. So as we noted, the court says, you know, schools can’t use race as a stereotype or negative. And at some point, you know, the race conscious measures must end. And it suggests that schools are using race as a stereotype because of how it groups the students into different racial categories. And the court says it’s, you know, treating educational diversity as a compelling interest and trying to achieve a critical mass of students is essentially treating applicants according to stereotypes. So thereby, again, negating the idea that schools could ever justify these programs with reference to educational diversity. And it basically just treats this holistic, you know, application review as running a quota system.

 

Melissa Murray It also seems to assume that minority students, whenever they get in, it’s only because of race. And again, I go back to the standing questions that the Liberals now, the dissenters advanced in oral argument. Look, we just don’t know in a holistic calculus what factor is actually determinative because they’re considering so many. But interestingly, in this whole discussion about how affirmative action fuels unfair stereotypes, the chief has no problem engaging in the most brutally unfair stereotype that basically every minority candidate who ever got into an elite college only got in because of his or her race, which, you know, is absolute bullshit.

 

Leah Litman He basically says that in a footnote responding to Justice Jackson’s dissent about the UNC program, you know, her dissent says, look, 65 of like the 67 black applicants among the like highest achieving ban got into UNC like not all of them did. And he’s like, well, obviously, like that’s a sign that affirmative action is all about race. And it’s like, what? No, no, it’s it’s not at all. And that was, I think, a pretty telling footnote along the lines of what you’re suggesting.

 

Kate Shaw Totally agree. And I thought another passage that was also very suggestive of the same point is when the chief basically says the student must be treated based on his or her experiences as an individual, not on the basis of race. Many universities have for too long done just the opposite. Right? So the assumption is students are being admitted solely and exclusively on the basis of race. And Roberts goes on to say that universities have concluded wrongly that the touchstone of an individual’s identity is not challenges bested or skills built or lessons learned, but the color of their skin, literally, as if that’s what admissions officers are doing. That last piece literally selecting based purely on the color of their skin. And there’s just nothing in the record that at all supports that point. Like when universities do take race into account, they are not doing so because of a literal physical features like just race. They are if they’re taking race into account, they’re doing it because. And here I want to quote a great piece in The Atlantic by Issa Kohler-Hausmann that ran a couple of weeks ago that look, race in our society is not a category of like physical difference. It is a category of difference with respect to some set of opportunities, social meanings, family histories, life experiences, personal identities and so on. So I’m not sure what straw man Roberts even thinks he’s constructing in saying that’s all admissions officers are looking at is literally race as a feature apart from these other characteristics. But it’s ridiculous fiction.

 

Leah Litman And I think the chief, you know, did this that is insisted I’m not overruling Grutter. I’m applying these precedents, you know, by taking these quotes out of context from them and then utterly transforming the legal test. But I think he did this in part because, like, he is the best politician in D.C. and he has convinced, I think, particularly his new colleagues, maybe Brett Kavanaugh, Amy Barrett, that his way of doing things might be the best way Contra DOBBS And, you know, it is because he gets away with fucking murder and he has for a really long time. I mean, I mentioned in the intro, you know, consider some of the press the court has been getting over the last. Few weeks as it rejected these utterly deranged fringe theories and was greeted as a liberator. You know, The New York Times had a headline, quote, Conservative court moderate decision. Or think about all the pieces about how the court saved democracy and the Voting Rights Act and safeguarded the rights of black voters. And, you know, what does he do in this case? You know, not expressly overrule the prior cases or formally bar all race based affirmative action. Just reconsiders the tests and seizes on a few passing phrases and the previous opinions and transform them into a rule that schools will never be able to satisfy. So ending affirmative action without saying they’re ending it and muting the negative press.

 

Melissa Murray Check, check and check. But you know who’s not fooled by all of this tomfoolery? That’s right. She’s been around the block since 2009, and she knows who these fools are and what they’re here for. And that, of course, is Justice Sonia Sotomayor, who wrote a fiery dissent in which she reminded everyone who is literate and reading this opinion that her conservative colleagues literally do not give a fuck about precedent. And they’ve been giving stare decisis the finger for the last two terms, and they show no signs of stopping. So, again, this dissent read to me in the same way that her clarion call in the oral arguments in Dobbs stretch like wake the fuck up. These people are insane and they’re not stopping. They have all the power and it’s up to you to stay on their neck. So like any good con law scholar might, she begins this by talking about precedent. So weird. And she canvasses the many different factors that the court is supposed to consider before it utterly dispatches with a prior decision. So here she notes that nothing has really changed here. This opinion Grutter seemed to have been working. There was a standard that universities and institutions could deploy and they had been deploying. It was all very workable. It had engendered considerable reliance, interest, both on the part of the institutions and on the applying students. And the court just sort of came in and decided, you know, when you have five. They let you do what you want. And they basically overruled Grutter. But as Leah mentioned, the chief doesn’t do it formally, although Justice Thomas gives up the game pretty quickly and says, yep, that’s exactly what we’re doing. Justice Sotomayor responds by saying it is, quote, a disturbing feature of today’s decision that the court does not even attempt to make the extraordinary showing required by story decisis. The court simply moves the goalposts, upsetting settled expectations and throwing admissions programs nationwide into turmoil. In the end, the court is forced to change the rules of the game to reach its desired outcome. There is no better evidence that the court is overruling the court’s precedents than those precedents themselves. Every one of the arguments made by the majority can be found in the dissenting opinions filed in the cases the majority now overrules. And then she just kind of goes through and talks all about them. And what I really appreciated about this dissent is that she really focuses on the students of color, who are the ones who have a lot at stake here. She literally quotes from briefs and affidavits where these students tell their stories about how race is sort of shaped their formation of identity. And she rejects the majority’s bullshit. Nice guy compromise that would allow schools to consider racial self-identification, but only if it is tied to the expression of individual qualities like leadership or courage. She quotes these students and she notes that their racial identities are absolutely a part of their actual identities and experiences. And she chides the majority for perpetuating the view that they can somehow be hived off, and that when schools do consider their holistic experience, that they are simply providing a preference on nothing more than race alone. She has a couple of zingers here, She notes. It’s not a stereotype to acknowledge the basic truth that young people’s experiences are shaded by a societal structure where race matters, and then she turns around and responds to Justice Thomas, who again really wanted to write the majority opinion here, she says. Justice Thomas, for his part, offers a multitude of arguments for why race conscious admissions policies supposedly burden racial minorities. None of them has any merit. Zing.

 

Kate Shaw And just to highlight one note from the majority opinion that I think sets up another line from the Sotomayor dissent. So, again, the majority opinion, as we’ve said, was written by the chief justice. And he’s got a line, which I am sure he was extremely proud of, which is the following. Eliminating racial discrimination means eliminating all of it. And I think that is Robert’s new version of the line from the 2007 parents involved case, which was the only way to stop discrimination on the basis of race is to stop discriminating on the basis of race. That was his previous, like absurdly simplistic and circular answer to racism. And I think that’s the old. This is the new means, eliminating all of it. That’s today’s Roberts, I believe.

 

Melissa Murray Balls and Strikes.

 

Leah Litman This is your moderate, chastened chief. You’re welcome, America. But as Kate mentioned, I think that that new Roberts line, as well as the previous iteration of it, teed up the closing to Justice Sotomayor’s dissent, which has another formulation that I take to be a response to the chief justice’s formulation. So she writes today, the court concludes that indifference to race is the only constitutionally permissible means to achieve racial equality. That interpretation of the 14th Amendment is not only contrary to precedent and the entire teachings of our history, but is also grounded in the illusion that racial inequality was a problem of a different generation. Entrenched racial inequality remains a reality today. And then here’s the line. Equality requires acknowledgment of inequality.

 

Melissa Murray She is the Draymond Green of Justices because that was a full on, in-your-face, you know what I’m talking about. Do you know what I’m talking about?

 

Leah Litman Yeah. This dissent is a full send.

 

Melissa Murray Kate does not know what I’m talking about.

 

Leah Litman A full send.

 

Kate Shaw I understood nothing in the last three sentences, but I will say it is a great line and not circular. Like you can actually write a good memorable line that is not empty and circular. And she needs to take John Roberts to school and teach him that. But it was but it was a strong note to end and.

 

Leah Litman I think it’s time to teach them lessons.

 

Kate Shaw That’s right. We read some of the Sotomayor dissent. We now need to read some of Justice Jackson’s also epic dissent. So one line maybe to start with is the following: “with let them eat cake obliviousness. Today, the majority pulls the ripcord and announces colorblindness for all by legal fiat. But deeming race irrelevant in law does not make it so in life.” So good.

 

Melissa Murray Very good. And again delivered with the kind of insouciance that only the only black woman on the court could offer. It’s an incredibly powerful opinion and a very efficient distillation of race and history, and it answers the objection that it’s somehow unfair to consider race because she notes that to completely blind yourselves to the history of race is to be blinkered as to both reality and history in ways too numerous to count. Our country has never been colorblind. And again, that is a play on the Haaland dissent from Plessy versus Ferguson that the conservatives like literally love to vomit ad nauseum. And I loved how she began her dissent by, again, sort of going back to the hypothetical that she had posed in oral argument about these two hypothetical applicants to the University of North Carolina, one, a fourth generation North Carolinian whose family had attended the University of North Carolina for many years, another a fourth generation North Carolinian whose family had not been able to attend the University of North Carolina because the applicant was black and North Carolina was a slave state and then practiced segregation, which precluded people from attending the University of North Carolina on the basis of race. So she continues in the dissent to say history speaks in some form. It can be heard forever. The race based gaps that first developed centuries ago are echoes from the past that still exists today. And again, this is very much a dissent that trades in history, that talks about history. And it’s really striking because there are points in this dissent where her discussion of history, including the history following the Civil War and the period known as redemption, really echoes some of the history that Justice Thomas has invoked on several occasions about the racial violence of the redemption period. Only this time she’s talking about it in the context of living up to the promises of the equal protection clause. Whereas Justice Thomas is talking about this history for the purpose of expanding the Second Amendment. So again, really interesting how they’re basically identical in the kind of histories they’re using, but very different purposes for which they were deployed.

 

Leah Litman On the force and echoes of history, you know, that she alludes to in her dissent. I feel like I would be remiss if I didn’t note the Reuters study that came out, I think, this week about, you know, political elites of today being descended from slave owners. So the Reuters story notes that two members of the current Supreme Court, Justice Gorsuch and Barrett Court, have direct ancestors who enslaved people. And the study found, you know, hundreds of political elites have the same. So I’m just thinking about, again, like the echoes ramifications of history. I feel like that study was very well timed. But back to the Justice Jackson dissent, where she cites chapter and verse of the enormous and enduring race based gaps in health, wealth and well-being. You know, she shows how the law and the Supreme Court were instrumental in maintaining those disparities. You can compare and contrast that with the chief’s grudging acknowledgment where he writes, quote, For almost a century after the Civil War, state mandated segregation was, in many parts of this nation, a regretable norm. End quote, John Roberts regrets this unfortunate blip in history. I feel like this passage from his opinion will be excerpted in all of those Ron DeSantis public schools, because this would be an approved text and version of history. Maybe also, John Roberts wants a guest spot on drunk history. I mean, who knows? This could qualify for that as well.

 

Melissa Murray Why did Rosa Parks sit down? Because of regrettable norms. Why did Martin Luther King march? Regrettable norms? Why did Malcolm X inveigh against everything? Regrettable norms. Regrettable, regrettable norms. I love this for them. She also, KBJ that is, not Rosa Parks, goes forward to talk about the contemporary importance of these programs. It’s not simply about remedying this past history. She notes that beyond campus, the diversity that these schools pursue, it’s not simply a trendy slogan. I think that’s a nod to Justice Thomas, who thinks about diversity as as some sort of aesthetic project. She notes diversity actually saves lives. For marginalized communities in North Carolina, it is critically important that UMC and other area institutions produce highly educated professionals of color. Research shows that black physicians are more likely to accurately assess black patients pain tolerance and treat them accordingly, including, for example, prescribing them the appropriate amounts of pain medication for high risk black newborns. Having a black physician more than doubles the likelihood that the baby will live and not die. Studies also confirm what common sense counsels closing wealth disparities through programs like UNC’s, which, beyond diversifying the medical profession, opens doors to every sort of opportunity, helps address the aforementioned health disparities in the long run as well. So again, this was such an interesting kind of intervention, like something I don’t think that we’ve seen. It’s sort of interestingly, Breyer-esque in its use of statistics, but not Breyer-esque in that it’s very much grounded in this experience in a marginalized, underrepresented community that she’s sort of bringing to the fore here and making it quite concrete why this matters.

 

Kate Shaw Yeah, it is data rich and rigorous in terms of identifying the kind of present need and present benefit for race consciousness in admissions. But of course it does discuss history. And that part of her dissent made me wonder whether she is and I think she pretty clearly is laying the groundwork. Right. We think about the sort of long term purposes of dissents. And here it seems pretty clear to me that she is laying the groundwork for fully reviving a remedial justification for affirmative action. Right. She is walking through slavery, the Civil War, redemption, the Jim Crow period, the enduring effects of all of that. And I’m going to quote from her here. She then says, Yet the court’s own missteps are now both eternally memorialized and excruciatingly plain. For one thing, based apparently on nothing more than Justice Powell initial say so, it drastically discounts the primary reason that the racial diversity objectives it excoriates are needed, consigning race related historical happenings to the court’s own analytical dustbin, and also by latching on to arbitrary timelines and professing insecurity about missing metrics. The court sidesteps on refuted proof of the compelling benefits of a holistic admissions programs that factor in race. Hard to do, for there is plenty simply proceeding as if no such evidence exists. So she is sort of saying it’s not sort of broad diversity goals. The court has so narrow the permissible rationales and then even on those narrow rationales, finds the university programs wanting, but says we should at the front end, take a far more expansive view of the purposes of race, consciousness and admissions. And, you know, I sort of see her seeing a world in which we are able to do that with our law. I mean, it’s not happening anytime soon, but I think it’s really, really effective long term thinking on display.

 

Leah Litman I just wanted to give a kind of tip of that hat shout out to Justice Jackson and her like very apparent immersion in legal scholarship. So I mentioned, you know, earlier how this opinion is really a kind of sharp distillation of, you know, the history of race and law. And, you know, the citations are one testament to that. So she relies on work by Marissa Barratt around the color of Money every single above on racist vagrancy laws. Rick Schrager, Eric Foner and Reconstruction. Richard Rothstein. Ira Katz, Nelson, Isabel Wilkerson, Michele DICKERSON, Erika Wilson, Latoya Baldwin, Clarke. And I feel like we have been pointing out how the Republican appointed justices are often in the habit of citing conservative legal scholars and how this is a way of credentialing people and basically creating people who are experts in these areas of law. And to me, like Justice Jackson has kind of emerged as someone who has emerged in legal scholarship, like progressive legal thought and legal commentary in a way that I guess I’m excited about at this point.

 

Kate Shaw One thing we should note is that Justice Jackson and Justice Sotomayor very conspicuously do not append respectfully to their dissent. Jackson says, because the majority’s judgment stunts that progress without any basis in law, history, logic or justice, I dissent. And Justice Sotomayor says the court cements a superficial rule of colorblindness as a constitutional principle in an endemically segregated society where race has always mattered and continues to matter. And she ends because the court’s opinion is not grounded in law or fact and contravenes the vision of equality embodied in the 14th Amendment. I dissent full stop.

 

Melissa Murray Here for it. It’s also worth noting that the Jackson dissent involves a little bit of cross talk with Justice Thomas, and I, for one, was here for this black on black crime. This is going to require me to spend some time talking about Justice Thomas’s pick me, choose me, love me, but only on the basis of my considerable merits, concurrence that was really vying to be the majority opinion here. So we are going to get back to that because I have a lot of thoughts, but I will just say that the cross chatter between the court’s two black justices was really something to see here. And I talked about this when she was first nominated to the court like there was going to be, I think, a real contrast here, not simply because they were both African-American, but because they come from such different world views, like he’s from a different generation than her. And I think that was very much on display in the crosstalk between them. But there’s also some like kind of really weird gender vibes going on in the cross talk as well. So I just want to note here, I really do think we should require a psychological profile of everyone who was shortlisted to the Supreme Court because Justice Thomas is very clearly working some stuff out here, and it’s just regrettable that the entire country has to be the canvas on which he is doing this. Like it cannot be the case that a lifetime appointment becomes the venue for someone working out all of the shit that they have not yet process. So there’s that. In his concurrence, Justice Thomas really systematically tries to dismantle the KBJ dissent. I think that is noteworthy because there are two dissents here and one is the lead dissent and also really attacks the majority opinion and his concurrence. But the only person for whom Justice Thomas has all of this fire is his junior black colleague, Justice Jackson. And this is a weird kind of gender moment in my view. Like, I just think that there are these moments where in work environments, the older black male colleague expects a kind of deference from the junior black colleague, and when it’s not forthcoming, this is the kind of result. And I’m just sort of again, this is observational. I’m speaking only from my own experience, like it can be very difficult to challenge one of your colleagues who shares the same racial background of you, especially if that person is older, has considerable status, and believes that he is owed deference. And that was kind of the vibe I got from Justice Thomas’s attempted takedown of Justice Jackson, and it made me believe Anita Hill even more. I mean, so there’s that. This was a fact free concurrence from Justice Thomas. He basically calls Justice Jackson out as quote unquote, race obsessed. But this actually feels a little bit like projection, right? He says at one point this lore, i.e., the idea that race continues to matter is not and has never been true. Even in the segregated South where I grew up, individuals were not the sum of their skin color end quote. To which I say, Sir, what the actual fuck? Are you serious? The literal point of segregation is that people are treated because they are viewed as the sum of their skin color. That’s the whole point of segregation. Also, Emmett Till, an individual who was literally lynched because he was treated as the sum of his skin color, and someone who Justice Thomas knows about because he’s discussed Emmett Till extensively in McDonald versus City of Chicago, a case about expanding further the Second Amendment because, of course, so again, there’s just a lot of like this was this was a really weird exchange. And I think it was actually weirder because Justice Thomas really seemed to be the one who was prosecuting it as an intergenerational beef between this old guard who grew up in segregation and this young Turk who values diversity and doesn’t seem to be getting it right. And I have to say, I really admired the way Justice Jackson handled this, because she is basically like she didn’t even acknowledge how fucking weird all of this was, except for a footnote where she basically says, I wish you well in your much needed quest for therapy. Good day to you, sir.

 

Leah Litman That’s a TLDR. I do want to read some of the passages from that footnote.

 

Melissa Murray That’s the TLDR. That would have been amazing if she’d said that though.

 

Leah Litman Yes. No. Agreed. Agreed.

 

Melissa Murray Be well.

 

Leah Litman Be well *laughs* so um her footnote, says Justice Thomas’s prolonged attack response to a dissent I did not write in order to assail an admissions program. That is not the one UNC has crafted.

 

Melissa Murray He cray.

 

Leah Litman Continues that Justice Thomas’s opinion also demonstrates an obsession with race consciousness that far outstrips my or UNC’s holistic understanding that race can be a factor. Justice Thomas ignites too many more straw men to list or fully extinguish here. The takeaway is that those who demand that no one think about race, a classic pink elephant paradox refuse to see much less solve for the elephant in the room. Anyways, that’s that’s just a flavor.

 

Kate Shaw So it’s a little bit more than just bless your heart, right? She does a little bit respond to him, but it is so gracious compared to his insanity.

 

Melissa Murray Oh, yeah.

 

Leah Litman Oh, yeah.

 

Melissa Murray I mean, he spends like 15 pages, you know, just like taking her down. She’s like I can handle this in a footnote. She’s like the Olivia Pope of footnotes. She’s like, it’s handled.

 

Kate Shaw It’s handled. She handled him.

 

Leah Litman Yeah.

 

Kate Shaw I do know who Olivia Pope is, by the way.

 

Melissa Murray Good. I’m glad for you. Bless your heart.

 

Leah Litman The bar is in hell.

 

Melissa Murray Ooooh. Was it just me who had thoughts about the Thomas concurrence? Please say it’s not just me.

 

Leah Litman Oh, no.

 

Kate Shaw So many thoughts. But yours were the best thoughts.

 

Leah Litman Okay. Yes. I did want to draw attention to Justice Thomas’s observation that the Freedmen’s Bureau is race neutral because Freedmen is a race neutral term and not at all a proxy for race. So he writes, the acts apply to freedmen, a formerly race neutral category, not blacks writ large. And it’s like, let’s, you know, you can interrogate that one a little bit. But also there were laws that dispense benefits on the basis of race and race alone if the aftermath of the Civil War as well.

 

Kate Shaw But also, like, you know, what else is formerly a race neutral category, enslaved person that doesn’t say race. And you know what? It wasn’t actually race neutral and neither was freedmen.

 

Melissa Murray We all know that George Washington was our country’s first freedmen president.

 

Kate Shaw Right.

 

Leah Litman There was that classic question from oral argument that was like, well, descendants of slaves. That’s that’s kind of like a racial proxy. So I’m not sure that we would allow.

 

Melissa Murray Too closely correlated.

 

Leah Litman To closely correlate with race and not acknowledge that category. So so that one actually is ruled out. Kate Sorry. Yeah,.

 

Kate Shaw My bad. My bad.

 

Melissa Murray But for everyone else, Freedman is just basically anybody who’s free. Obviously. I also appreciated in the Thomas concurrence the fact that he apparently is a student of critical race theory. So there is this really awesome part of the concurrence where he notes that race is a social construct. We may each identify as members of particular races for any number of reasons having to do with our skin color, our heritage, our cultural identity. And over time, these ephemeral, socially constructed categories have often shifted. Does Harlan Crow know that you are moonlighting in CRT classes Justice Thomas?

 

Kate Shaw This is woke Justice Thomas. Like smuggled into this opinion.

 

Melissa Murray Mmmhmm woke Warrior.

 

Kate Shaw He may not get invited on any future billionaire jaunts.

 

Melissa Murray Well, but it’s not just CRT for me and not for thee. It’s also affirmative action for me and not for thee because I think it is worth observing here that Justice Thomas is a beneficiary of affirmative action, whether he wants to admit it or not. He’s talked about this. He’s just now denouncing it because he believes it’s led to stigmatic consequences for minorities. He’s basically denouncing it as largesse bestowed on minorities by well-meaning but ultimately nefarious white people. And yet this is the same man who is accepting largesse from well-meaning but perhaps nefarious billionaire mega-donors who have provided his grand nephew with a whole ass boarding school education. Right. So is anyone going to talk about the irony of this? Like is this lost on him?

 

Kate Shaw I think it’s like we’re a couple of decades out of him ruling unconstitutional, other people benefiting from the largesse of billionaire friends?

 

Leah Litman Well, no, I think he would say like, look, like you people just need to go out and find yourself your billionaire benefactor. Right. And like, it’s not my fault that you’re not as charming as Sam Alito, who can just pick up personal jet rides from strangers or me who just has my grand nephews, like tuition paid for for free, because this person is a passionate advocate for education. Right? so.

 

Kate Shaw Okay, so we could go on about the Thomas concurrence. And I think during the term rap, we probably will. But in terms of some of the kind of bottom line takeaways like the what happens next and how do universities respond to this opinion? We have to spend some time talking about that. Passage late in the opinion that. It just feels like kind of ultimate gaslighting. But but let’s break it down a little bit. So Roberts writes, All parties agree that nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise. But despite the dissent assertion to the contrary, universities may not simply establish through application essays or other means. The regime. We hold a model today. And then he says, in prison. A dissenting opinion is generally not the best source of legal advice on how to comply with the majority opinion. There is a lot of nastiness between and among the opinions. In this case. He’s like, Ignore the dissent. Listen to me. I’m John G. Roberts. The G stands for God. So that’s the saying, don’t listen to them. So but. But he is kind of saying this is not a full throated embrace of colorblindness in admissions, but how are universities supposed to respond?

 

Melissa Murray I think one thing he might be thinking about here is the way in which those schools in states that have basically been operating in a post affirmative action world because of the imposition of state level constitutional amendments have operated. And so California, for example, has famously, since 1996, prohibited the consideration of race in hiring decisions and admissions decisions under Proposition 209. And what that is basically led to is part of an elastic kind of admissions criteria, is that you can talk about the ways in which you could contribute to the diversity of a campus, but it’s not about checking boxes. So, you know, this quote unquote diversity statement, which is available to those who apply for jobs or who apply for admission, is open to anybody. So, you know, I’ve read diversity statements where people talk about, you know, how growing up as a closeted gay person like really shaped their outlook. And this is how would inform their work with students or their work with other colleagues or, you know, this is what it was like growing up in a household where someone had a mental illness. And this is how it would inform, you know, my work as a student or what I’m planning to do in law school. So it’s a very broad kind of statement that really sort of thinks about diversity in almost every facet and everything is accepted. And now I wonder if this is what they are gesturing toward, because this is certainly, I think, something that schools could begin to implement and probably would implement using verbatim the language that’s specified here in the majority opinion.

 

Leah Litman It’s hard to know exactly. So I also read this passage as basically an ominous warning against schools efforts to kind of circumvent the rule in the sense that they would actually try to achieve racial diversity, like using other measures. And those measures are likely to engender significant and potentially like long lasting litigation. So we’ve talked previously about the Fourth Circuit decision that came out affirming Thomas Jefferson High School’s race neutral admissions program does not take explicit account into race, but is still designed to achieve a racially diverse class. Like, could the court be coming for that next? I don’t know. You know?

 

Kate Shaw I’m sure that they’ll get a chance. Right. But that was a divided panel opinion. It’s very clear the court is going to be asked to take it up and I think very likely will definitely.

 

Leah Litman And I think it’s unclear whether schools could invite essays about how race or, you know, other aspects of your background have influenced your life. And, you know, but another way of reading this passage of the opinion is it’s responsive to Justice Jackson’s hypothetical, which he alluded to previously, about how applicants can actually volunteer information about how race has shaped their life experiences, their personal experiences, and how that would inform the kind of community citizen that they would be.

 

Melissa Murray So I think this all suggests that, just like with Dobbs, this court hasn’t settled a vexed or fractious issue. It’s answered one question in a pretty limited way, and it’s going to tie up more litigation and more questions in the future. And, you know, buckle up. We’re going to be on this ride. But I wanted to just offer up an Elena Kagan appreciation round of applause, because I think this was one of those opinions like Dobbs, where, you know, who gets to write, whose voice is heard was really important. And I really appreciated her restraint here because, you know, it could have been very easy for her to write her own dissenting opinion here as the former dean of an elite law school, whatever. But she allowed her two women of color colleagues to do the talking, to do the writing, and she simply joined both of them in what I thought was an incredible exhibition of restraint and allyship that I really appreciated.

 

Leah Litman Snap’s for Justice Kagan. So just looking forward to future implications. Are the majority in this case drops a footnote saying that they are not resolving the issue about whether the federal government can use race in military academies, suggesting that that case might present different issues. Justice Jackson’s dissent has a kind of pointed response to this. So she writes, quote, The court has come to rest on the bottom line conclusion that racial diversity in. Higher education is only worth potentially preserving insofar as it might be needed to prepare black Americans and other underrepresented minorities for success in the bunker, not the boardroom, a particularly awkward place to land in light of the history the majority opts to ignore. Writing also that the court’s opinion is truly a tragedy for us all.

 

Kate Shaw Justice Gorsuch concurs. He thinks just a pile on that. The Civil Rights Act. In addition, the 14th Amendment also prohibits race conscious remedies.

 

Leah Litman President Lyndon Johnson would like a word, so he said some potentially relevant things in his commencement address at Howard Law School.

 

President Lyndon Johnson You do not wipe away the scars of centuries by saying now, You are free to go where you want to do as you desire and choose the leaders you please. You do not take a person who for years has been hobbled by change and liberating, bringing up to the starting line of a race and then say you are free to compete with all the others and still justly believe that you have been completely fair. Thus, it is not enough just to open the gates of opportunity. All our citizens must have the ability to walk those gates. This is the next and the more profound stage of the battle for civil rights. We seek not just freedom, but opportunity. We seek not just legal equity, but human ability, not just equality as a right and a theory, but equality as a fact and equality as a result.

 

Leah Litman Not to be outdone, Justice Kavanaugh concurs. Because if there’s two people I really wanted to hear from about affirmative action, it was the Georgetown Prep pep squad. So thank goodness for that. Justice Kavanaugh writes to emphasize that that 25 year time limit was definitely really serious. So they are honoring Grutter and all of the court’s prior cases rather than overruling them. And he has a nice bullet pointed list to demonstrate that.

 

Kate Shaw He literally is like, listen to all these other members of the court who also thought it was important that any race conscious program expire within 25 years. He cites O’Connor in Grutter, also a Justice Thomas concurrence, also a Justice Kennedy concurrence. Also Justice Ginsburg noting the 25 year limit. It is just really striking to me that the equal protection clause means one thing today or one thing 25 years ago, but something different today or something different 25 years from now. That really strikes me. I don’t know about you guys as the purest form of originalism. I mean, Brett Kavanaugh just originalist to the core. And he’s here of interestingly makes a similar gesture in his concurrence in the Voting Rights Act case. Alan. So I’m still sort of mulling over what to make of this new version.

 

Leah Litman It’s the Constitution as a poison pill, it’s a constitution, as a poison pill.

 

Kate Shaw Right? Right. The conception of liberty that we hold cannot expand, but the conception of equality can contract. Okay, I see.

 

Leah Litman Yes, one way ratchet. Cool. So maybe we can end on this decision where we started out, you know, with the words of President Biden, you know, good for the administration for saying something immediately.

 

President Joe Biden We cannot let this decision be the last word. While the court can render a decision, it cannot change what America stands for. America is an idea, an idea unique in the world, idea of hope and opportunity, possibilities of giving everyone a fair shot, of leaving no one behind. We’ve never fully lived up to it, but we’ve never walked away from it either. We will not walk away from it now. So today I want to offer some guidance to our nation’s colleges as they review their admissions systems after today’s decision. They should not abandon their commitment to ensure student bodies of diverse backgrounds and experience that reflect all of America.

 

Leah Litman So one other just a quick note, which is we got some absolutely bombshell reporting that is relevant to one of the cases that the court has outstanding that we’re kind of expecting a decision in tomorrow, and that’s 303 Creative – Elenis. In truly wild reporting in The New Republic. That was written by Melissa Girard Grant. She reports how the entire case of 303 Creative after the standing of the plaintiff was challenge you on the ground that she had never been asked to make a wedding website. And so why is she challenging this law as potentially requiring her to make one after, you know, her standing was challenged? The lawyers representing her introduced an affidavit or some statements or some evidence that, well, like this person, a man, you know, once asked her to design a website for a gay wedding. And Melissa, the reporter, decided to go ahead and contact this person because his information was listed in the relevant documents in the court. And guess what? It turns out that this already highly dubious case just became a lot more fucking dubious because they say that this person, Stuart, asked for a wedding website to Mike. Stuart, it turns out, is straight and married to a woman, was at the time, and he’s like, I never would have said, right, would you make me a wedding website to marry a man? I did no such thing. And so, you know, we’ll see kind of what happens with this case. But, you know, this case never should have been at the court. It’s not remotely a live case, and it just became a lot more.

 

Melissa Murray Hypothetical. Even more hypothetical.

 

Leah Litman Exactly.

 

Melissa Murray With that in mind, I think this is another good time to just play that Joe Biden clip again. Again, the man is speaking prophecies here. So let’s hear as we close out from the pod’s most famous listener, one Joseph Robinette Biden. Here he is again.

 

President Joe Biden This is not a normal court.

 

Melissa Murray You’re right, Joe. This is not a normal one. But this is Strict Scrutiny, which is a crooked media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw. It’s produced and edited by Melody Rowell. Ashley Mizuho is our associate producer. We get audio support from Kyle Seglin and Veronica Simonetti with music by Eddie Cooper, production support from Michael Martinez, Leah Duran and Ari Schwartz, and digital support from Amelia Montooth. If you’re new to Strict Scrutiny, welcome. We’ve been waiting for you. Subscribe to Strict Scrutiny wherever you get your podcasts and stay up to date on everything that’s happening and possibly get a ride on a billionaire’s private jet.

 

Leah Litman Stay normal, everyone.

 

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