In This Episode
Kate, Leah, and Melissa dive into the legal pushback over ICE and the National Guard in Chicago and Portland, anti-marriage equality goblin Kim Davis’s unwelcome return to the courts, the administration’s lawless strikes on boats in the waters around South America, and the specter of Trump 3.0. Then, they preview November’s SCOTUS cases, including Learning Resources v. Trump, which challenges Trump’s authority to impose tariffs under the International Emergency Economic Powers Act.
Favorite things:
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- Leah: Task (HBO Max); West End Girl, Lily Allen; The Kavanaugh Stop – 50 days later, Chris Geidner (Law Dork); The Supreme Court’s Self-Defeating Supremacy, Steve Vladeck (The Supreme Court Review); God’s Chief Justice, Doug Bock Clark (ProPublica); Lawyers March for Democracy on November 15 at 1-3pm.
- Kate: The Emergency, George Packer; Expert Backgrounder on War Powers Resolution 60-Day Clock for Boat Strikes Expiring Monday, Rebecca Ingber and Jessica Thibodeau (Just Security)
- Melissa: Impermissible Punishments: How Prison Became a Problem for Democracy, Judith Resnik
- Hurricane relief for Jamaica:
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Buy Leah’s book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes
Follow us on Instagram, Threads, and Bluesky
TRANSCRIPT
Melissa Murray [AD]
Show Intro Mr. Chief Justice, may it please the court, it’s an old joke, but when a man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Kate Shaw Okay, am I just supposed to, like, open as this- as though things are normal?
Leah Litman Or you can not open if things are normal and this can just be the cold open.
Kate Shaw Alright, I’m going to just try with a straight face and voice to begin this journey. Alright, and in 3, 2, 1. Hello and welcome back to Strict Scrutiny, your podcast on the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Kate Shaw.
Leah Litman I’m the Portland Frog!
Kate Shaw She’s in a full frog suit if you’re listening and not watching. She is in a FULL frog suit. It is glorious. Go to YouTube if you haven’t and see this with your own eyes.
Melissa Murray And I’m still an adult. Melissa Murray.
Leah Litman Is this fashion?
Melissa Murray It is not fashion. I’m sorry. I hate to break it to you. All right. Just to recap, we are Kate Shaw, an inflatable amphibian and Melissa Murray, and we are your hosts of Strict Scrutiny. And per our last episode, per as usual now, we are going to talk about some legal news, much of which concerns the ongoing challenges to the president’s attempts to militarize law enforcement in American cities and That is why Leah is here in this costume. It’s also Halloween.
Kate Shaw The hands, I didn’t seen the flippers.
Melissa Murray It’s very hard to work under these conditions. I just want everyone to know.
Kate Shaw For all of us.
Some more so than others.
Leah Litman Kate.
Melissa Murray Anyway, again, we are going to be covering the ongoing challenges to the president’s efforts to militarize law enforcement and to turn the American military against ordinary Americans, specifically those who are dissenting, protesting, inflating, all of them, really. And then we’re going to switch to previewing the cases the court is going to hear during the first week of the November sitting. I think so. Leah, is that enough of a lead-in for you to exit the suit?
Leah Litman Yeah. I’m gonna do a costume change, get into some real fashion. BRB.
Kate Shaw But no break. This Taylor Swift style. No break. You’re just gonna it’s gonna take you’re gonna jump into a pit in like one second later You’re gonna be in your law professor. Oh, yeah, that was really I also just like it’s just such an amazing demonstration of like this is what these guys are triggered by they’re triggered by that suit The suit is the predicate We’re not responding with near lethal force though, we’re just laughing That is true.
Melissa Murray We are all Bonvino now. What is his name? Bonvino or Bovinp? Bovino.
Kate Shaw Bovino, Bovino. Bonvino sounds like a good wine.
Leah Litman There’s also Bongino
Melissa Murray Yeah, there are a lot of. I genuinely think the Bovino guy looks like the guy in Whiplash, the music teacher. Did you see that movie, Kate?
Kate Shaw No.
Melissa Murray I didn’t. Okay, never mind.
Kate Shaw Okay, I think I think.
Melissa Murray Wait, she has another costume.
Kate Shaw Let me just say what else we’re going to do in that episode and then we’ll come back to Leah’s second outfit.
Melissa Murray We should just start over. This is so chaotic.
Leah Litman Is this fashion?
Kate Shaw This is fashion. Come on Melissa.
Melissa Murray No, it’s not. It’s feathers.
Kate Shaw This is fashion.
Melissa Murray It’s not. No.
Kate Shaw She looks great.
Leah Litman I would like to do the episode in this outfit.
Kate Shaw Okay, that we will, I will allow, I don’t know about Melissa.
Melissa Murray I mean, honestly, the outfit is such that you’re blocking your own light, but continue.
Kate Shaw I think it looks great.
Leah Litman I am my own light. It’s the sparkle.
Kate Shaw It emanates, yes. Okay, so we are somehow gonna get through a conversation about this hellacious timeline with Leah in her showgirl getup.
Melissa Murray First up, the news. We are going to start with some developments from the Windy City. First, the Seventh Circuit has granted the administration’s request for an administrative stay, pausing Judge Sarah Ellis’ order requiring Border Patrol Commander Gregory Bovino to meet in person with her each day. Judge Ellis’ orders was issued after a hearing on October 28. The hearing was about ICE’s alleged violation of The judge’s temporary restraining order prohibiting the use of tear gas and other riot control measures against journalists, clergy, and other protesters during what has become known as Operation Midway Blitz.
Kate Shaw The Administrative’s Day gives the administration a temporary reprieve, but, you know, just of this daily reporting obligation. The administration is still seeking mandamus in the Seventh Circuit, challenging that aspect of the order, although, interestingly, the administration isn’t challenging other aspects of the Order, including that the agents on the ground in Chicago wear body cameras, which they had not been. But mandamus, just for folks who aren’t familiar with it, is an extraordinary remedy. It is typically available. Outside of the normal appeal process for orders and decisions that aren’t normally appealable, but only when district courts are really, truly, and wildly out of line is mandamus ever supposed to be appropriate. So the administrative stay is not granting mandamus. That request is still pending. And while it is still depending, the litigation challenging the rest of ICE’s conduct in is proceeding and even with the temporary restraining order in effect. The conduct.
Leah Litman Am I allowed to say some things?
Kate Shaw Melissa?
Melissa Murray Um, I’ll allow it.
Leah Litman I just wanted to point out that I was not allowed to speak for the first page of this episode. I think it’s punishment for celebrating Halloween.
Melissa Murray That was inadvertent.
Leah Litman Uh-huh, uh-huh.
Kate Shaw The floor is yours, showgirl.
Leah Litman Okay, so even with the temporary restraining order in effect, the conduct of ICE and other federal officers in Chicago has left state officials to resort to these kinds of pleas.
Clip I’ve sent a letter to Kristi Noem and to the Department of Homeland Security leadership asking them to pause all of their federal agent operations for the entirety of the Halloween weekend. I’m asking for basic human decency. I think their response will be revealing. They’ve disrupted everything for more than two months already. Give the children and the families of Illinois a break.
Leah Litman Crispy Gnome, of course, has announced that she is utterly lacking in human decency that Pritzker was appealing to. She says immigration enforcement will be happening in full force.
Clip We’re going to be out on the streets in full force and increase our activities to make sure kids are safe. Every day in Chicago, we’re arresting murderers, child pedophiles, those who have perpetuated assault and pornography against children. We’re gonna be out there to make sure that they can be safe, enjoy the holidays, spend some time with their families and their neighbors and their communities, and they don’t have to be the victim of a crime.
Melissa Murray OK, having a normal one, I see. Also out of Chicago, we saw a spate of additional charges against regime opponents, specifically Democratic politicians and political candidates, including Kat Abugazalia, who is running for Congress, as well as five others, including a ward committeeman and a candidate for Cook County Commissioner. All were arrested for their involvement in the protests at the Broadview Immigration Facility, where there have been regular protests for many weeks now.
Kate Shaw So the indictment alleges that these individuals blocked the path of a nice vehicle, which seems possible and also maybe not criminal, but also that they banged on the hood of a car, that they broke a mirror, that they scratched the word pig in the side of a police vehicle, which honestly sounds like bullshit to me. Maybe someone did that, but these five individuals running for Congress and serving as local elected officials in Chicago, I highly doubt they did that.
Leah Litman Also, they often live stream.
Kate Shaw Yeah.
Leah Litman Their protests.
Kate Shaw Yeah.
Leah Litman Sooooo.
Kate Shaw I doubt they’re also keying the word pig into the side of official vehicles. And at this point, I don’t know why we should believe a word that comes out of their mouth.
Melissa Murray I can’t believe anything that comes out of their mouths.
Kate Shaw And of course the individuals charged have said that these charges are all retaliation for protected First Amendment activity.
Leah Litman So I want to come back to the possibility that this might be bullshit. But among those condemning these charges are the people running against Abu Ghazalia, which feels like an important demonstration of the value of solidarity. So quote, this unjust prosecution is an attempt to intimidate and silence those who stand up for their rights and beliefs. It’s an attack on anyone sickened by mass men roaming our streets and shoving our neighbors into unmarked cars. It’s a threat to everyone willing to call this what it is. Creeping tyranny. Fine set. Today, it’s Kat. Tomorrow, it could be any one of us,” end quote. So along the lines of, should we even believe these allegations, we wanted to know what has become of some of the federal charges that have been filed against other people for allegedly assaulting or impeding ICE or Homeland Security Investigation officers. So a district court in the Western District of Texas recently granted a defendant’s motion to dismiss. And in that case, the court noted that it was the government agent that had smashed. Defendant’s car window, even though they indicted the defendant for using force against the officer. You know, the court’s opinion went on to explain that the government seizure and scope of the arrest and use of force were all unreasonable. You know they broke the defendant’s car window because they said he didn’t roll down his window. And just to quote one passage of the opinion quote. Viewing the totality of the circumstances, the court finds that the government’s conduct in this case has been outrageous. And the court noted the feign concerns for safety, as well as affidavits based on inaccurate assumptions and blatant misstatements, and more. And so given that this is the government conduct, we should, I think, view the broad view indictment with a healthy dose of skepticism.
Melissa Murray Speaking of inaccurate assumptions and misstatements, the Supreme Court has asked for supplemental briefing on the National Guard case out of Chicago. So just by way of background, the court’s request arises from a challenge to a district court order, effectively enjoining the president and the administration from deploying the National guard in Chicago. I will just note that even in the absence of the National Guard as a federal police force, the government still has a panoply of options for terrorizing the denizens of the Windy City. They have ICE. They have Customs and Border Patrol. They’ve got lots of things. So you don’t have to sweat the National Guard here. But in any event, the Seventh Circuit declined to stay, the district courts ruling. And so predictably, the administration decided to rush off to the Shadow Docket to ask daddy court to please stay the lower court’s order blocking the president from deploying the national guard against fellow Americans in Chicago.
Leah Litman Poor little baby.
Melissa Murray Please sir, please make some more justice!
Leah Litman The government, when they went off to the Supreme Court, they did that, but they had also first consented to the extension of the district court’s temporary restraining order that they are purporting to request a stay of. Make it make sense. The government’s litigation behavior in this case and others has been appalling. It is making district court judges’ lives so much more difficult with the disrespect, lack of candor, and this manipulative, abusive litigation conduct because they running off to the Supreme Court saying you need to free us from this order which we have consented to the extension of?
Kate Shaw Back to SCOTUS’s request for the supplemental briefing that we got last week. So specifically, the justices asked for more information about the following question, quote, whether the term regular forces in 10 USC section 124063 refers to the regular forces of the US military or non-military forces. And that matters because this statute, 12406, which is the guard. Says the president can only do that, right, can only call them into federal service in circumstances where the president is unable, with the regular forces, to execute the laws of the United States.
Melissa Murray And President Trump maintains that he needs to federalize the National Guard in Chicago because he isn’t able to execute the laws of the United States using just ICE, CPB, and DHS officers. However, the issue the court is going to resolve here is whether that is even a prerequisite for deploying the National guard under this law or whether the president is only permitted to call up the National Guards if he’s unable to execute the laws the US using quote unquote regular armed forces. That is why SCOTUS has asked the parties to brief whether regular forces refers to the armed forces or non-military forces. So ladies, what do we think?
Leah Litman Yeah, so I’m not sure exactly what to make of this. On one hand, I’m worried it’s like a dare to dream situation. Are they actually going to deny the stay request? On one, the supplemental briefing order suggests there aren’t five votes right now for the administration’s positions, like the president’s determination is completely unreviewable by courts. On the other hand, it could also suggest there aren’t five votes to just straight up deny the state for the reasons explained in the district court’s order. Namely, the president isn’t struggling. To execute federal law in any meaningful sense that would provide him emergency powers. So a part of me is also like a little concerned about going this route because it evades the court having to like frontally confront what courts can and should do when the factual basis for the president’s claim of authority is bullshit. And it tees up this question of like, can the president deploy regular militarized forces when and that seems to push us closer to the Insurrection Act question. I don’t know. What do you think?
Kate Shaw Yeah, I mean, I think starting from when the president first used this statutory provision in LA, we noted that some of the legal questions presented by this invocation are not presented if he simply invokes the Insurrection Act, which feels like enormous escalation, but would not require the sort of like a showing that the regular forces or can’t that he can’t execute the law with the regular force. And so, yeah, I think there is some short-term optimism. They’re not gonna like tomorrow or like today, ruin Halloween by just allowing them to be unleashed even further in Chicago. And yet I worry that they’ll somehow just push him. If they don’t allow him to go this route, that just pushes him into the arms of the Insurrection Act in ways that I find really scary.
Melissa Murray The idea that we are going to applaud this court for now holding the line, that to me is the scariest part. There’s a kind of normalizing exercise to this whole challenge that we should really surface and make clear. Part of this is the administration now becoming like the Fifth Circuit, a way for this court to exercise some good PR for itself.
Leah Litman Yeah, I am bracing myself for the, isn’t the Supreme Court great now takes, in the event that they deny this day application because those are inevitable.
Melissa Murray An opinion written by Justice Amy Coney Barrett.
Leah Litman Exactly, exactly.
Melissa Murray Neutral arbitor.
Leah Litman I did want to shout out this request for supplemental briefing definitely derives from an amicus brief that was filed by Professor Marty Lederman at Georgetown Law School. Obviously, hat tip to him for flagging an argument that flew under the radar and actually getting the Supreme Court to potentially dive into it. I also did want to add a renewed shout out to. Anil Kalhan, you know, the professor who coined the phrase Kavanaugh stop, because I do think that helped create conditions in which the court feels at least some pressure to not continue just being yes men to the president. And this is also, you know, kind of a reflection of the work that people have been doing documenting conditions on the ground in Chicago and elsewhere, you know, where the National Guard and other excessive federal law enforcement deployment has occurred.
Melissa Murray I have to give it to Anil. Calling these Kavanaugh stops gets where Justice Kavanaagh lives. He does not want to be the guy for whom these stops are named. And it’s so funny that he doesn’t want to that guy, but he felt like it was a good idea to write that concurrence, which.
Kate Shaw Thus making him that guy.
Melissa Murray Thus making making him that guy, but here we are. Anyway, so those are the developments in Chicago. We also got developments in Portland, Oregon this week. So when we last spoke to you, we mentioned that a Ninth Circuit panel with two Trump appointees and the majority issued a stay that blocked a district court order preventing the deployment of the National Guard in Portland. Well, now the full Ninth circuit has vacated that panel order. And the issue is headed for full en banc review before the Ninth Circuit. This now means that the district court order blocking deployment of the National Guard is again in effect, at least until the full Ninth circuit resolves this issue. I will just remind listeners that in that first three judge panel decision, Judge Susan Graber dissented. And she encouraged those who were losing faith in the judicial system to just hold on. So that the system would have the chance to work itself out completely. And it seems like she was talking about exactly this, the full Ninth Circuit vacating that decision and then now going to en banc review. So we shall see if our faith shall be restored.
Leah Litman As we did with cases concerning indictment of individuals for allegedly impeding federal officers, here, too, we wanted to highlight some of the Department of Justice’s conduct in this particular litigation to underscore, again, the intense gaslighting and bullshit that really lies under the president’s claims to authority. So in this litigation involving Oregon, plaintiffs challenge one of the assertions that the government made to the Ninth Circuit and that the three judge Ninth Circuit panel, or at least the two Trump appointees in the majority, had relied on in order to stay the lower court’s order. So specifically, the panel stated that the actions of the Portland frog and Portland chicken had forced the redeployment of nearly 25% of federal protection services officers, about 115 officers. But the government was a little evasive about the exact number at oral argument. And in discovery, they admitted that there were never. 115 officers redeployed to Portland, rather the number was in the 20s, except for one month back in July when it was 31. Still seems like a big difference. Math is hard. Is this boy math?
Kate Shaw But it’s also like we saw the frog and freaked out math. Yeah, and so it felt like a big number so
Melissa Murray It’s because of the inflation.
Kate Shaw Okay, so DOJ responded to this revelation by saying, oh, that error, that is no big deal. That’s harmless. It didn’t matter to the panel opinion. And we never meant to say that 115 federal protective services officers were deployed at the same time, just like overall across several months. But also here are some other whoopsies we uncovered upon reviewing our own claims. It actually wasn’t 115 total officers, even if you put them over the course of several months. Then it was more like something in the 80s. And also, we might have said that it’s undisputed that nearly a quarter of the entire service had to be redirected to Portland during a relatively short time. But really, it was only like half that, but really no harm, no foul.
Melissa Murray Anyway, we are just emphasizing this, listeners, because these are the kinds of facts slash falsehoods on which these claims of emergency authority rest. This is what the Department of Justice is presenting to federal courts to justify this administration’s actions. And this is the kind of slapdash, hasty, make it up as you go along approach to law and governance that this Supreme Court has apparently endorsed and could continue to endorse. So. Just wanted to flag it for you. But lower chords.
Leah Litman Are still doing their part to see through the BS. So after we wrapped recording and were about to go trick-or-treating, some district courts gave us some real treats, although there is unfortunately a trick wrapped up in there. Anyways, so two district courts concluded that it is illegal for the Trump regime to withhold SNAP benefits, the Supplemental Nutrition Assistance Program that provides people with sustenance who aren’t able to afford food. SNAP includes about 41 million people. And as part of the shutdown, Trump announced that he was just not going to pay out funds for SNAP, so let people go hungry and starve, even though money had been appropriated and put into multi-year contingency funds to ensure that people wouldn’t go hungry in the event of a shutdown. And yes, he’s doing this as he is constructing himself a new ballroom. One district court gave the regime until Monday to inform the court if it was going to use contingent funding to proceed with reduce benefits in November, but a second judge immediately restrained the suspension of SNAP benefits. So it seems like under that ruling, SNAP benefit should immediately go out. So one other treat, the latest ruling against another Trump administration policy, this one, a policy of systematically detaining any immigrant facing possible deportation, reached something of a milestone. So now, more than 100 federal judges have ruled that the efforts to just detain everybody as part of immigration enforcement are illegal. Unfortunately, as I said, there was also a trick in store. So the US Court of Appeals for the Seventh Circuit marked spooky season by granting the Department of Justice’s mandamus requests, finding that the district judge’s order that required Border Patrol official Greg Bovino to provide the court with daily reports about compliance with the district court’s temporary restraining order, the Seventh Circuit concluded that infringed on the separation of powers and put the district Court in a position of inquisitor. The good news, however, is that the temporary restrained order itself remains in place. This is the order that restricted the government’s ability to arrest and deploy non-lethal munitions against journalists and protestors. So that order… Remains in effect, it’s just that the district court’s additional precaution to ensure the government’s compliance with that order unfortunately no longer is.
Melissa Murray [AD].
Melissa Murray Shifting gears, we wanted to talk a little bit about some of the things that are going on at the court, not necessarily in oral arguments, but behind the scenes. So currently pending in the court cert pool is a petition from Kim Davis, the Kentucky Clerk of Court, who refuses to issue marriage licenses because, in the wake of Obergefell versus Hodges, she would have to issue them to same-sex couples and opposite-sex couple. And she says that issuing them to the same- sex couples violates her religious beliefs. Her cert petition asks the Supreme Court to review a Sixth Circuit decision holding that because she was functioning in her position as a state actor rather than as a private citizen, her actions are not protected under the First Amendment. However, in addition to making that request, Davis has also asked the court to wait for it, overrule Obergefell versus Hodges, the 2015 decision that legalized same-sex marriage across the nation. She argues that a right to same-sex marriage has no basis in the Constitution. I hope no one tells her about executive privilege, which is also not in the constitution. But whatever, it’s going to be a real hard day for her when she gets that news. But this is where we are, folks. Obergefell versus Hodges in the crosshairs, apparently.
Kate Shaw So this is not Kim Davis’s first SCOTUS rodeo. She is something of a repeat player, having petitioned the court for review in 2020 at an earlier stage of the litigation. There, the court denied cert, but notably, Justices Thomas and Alito took that personally, issuing a statement respecting the denial of cert. They didn’t dissent from the denial, that is, they wouldn’t have heard Kim Davis’ case, but they had some things they wanted to say about Obergefell.
Leah Litman And what they wanted to say was a broadside against Obergefell. So the two justices accused the Obergefell majority of, quote, altering the Constitution, and, quote having ruinous consequences for religious liberty. So this is the first conference at which the court will consider Davis’s latest challenge, because the court doesn’t grant review without considering a case at at least two consecutive conferences that’s become the practice. So there would have to be a second conference before we hear about any cert grant if they stick with, again, past practice. So. If the justices deny review, however, we could hear about it as soon as Monday, November 10th.
Melissa Murray And again, to underscore that there are no new ideas. In related news, on Friday, October 24th, the Texas Supreme Court amended its judicial code of conduct to permit justices of the peace to refuse to perform same-sex marriages based on their religious beliefs. This follows a years-long legal battle involving a McClennan County, Texas judge who faced sanctions and public warnings for doing so in 2019. The court’s new rule states, quote, it is not a violation for a judge to publicly refrain from performing a wedding ceremony based upon a sincerely held religious belief, end quote. I will also note that you could have sincerely held religious beliefs that people of different races should not be married. And this would seem to be OK here, too.
Kate Shaw Moving on, Justices in the Wild. We had a lot of Justice Barrett in the wild sightings when she was in the first couple of weeks of her book publicity tour, but we saw in the last week Justices Sotomayor and Jackson actually out and about in Massachusetts. Justice Sotomayer appeared at Boston University Law School where she was conversation with her former clerk, BU alumnus and current counsel at O’Rick, Cesar Lopez Morales. The Justice who appeared in a pair of red and white Nike dunks.
Melissa Murray Fashion.
Kate Shaw And comfort.
Leah Litman Okay, That’s fashion?
Kate Shaw Yeah. What’s on your feet, Leah?
Melissa Murray Not Nike dunks.
Leah Litman Allbirds.
Kate Shaw Allbirds, that’s great. Comfort for sure. Anyway, so she encouraged the audience to keep the faith and to keep fighting. As she said, quote, I refuse to be a bystander. I get up every morning, ready to fight, every morning to dissent this vehemently as I humanly can and to scream from the mountaintops. No.
Melissa Murray Justice Jackson was a little more opaque in her conversation with Danielle Hawley, the president of Mount Holyoke College. This took place at the Springfield Public Forum in Springfield, Massachusetts. Justice Jackson told the audience, quote, anything worth doing takes effort, which was ostensibly about her path to the bench and the hard work that it required, but could also have been a meditation on her efforts to save this court from itself.
Leah Litman Speaking of efforts to maybe save this court from itself, The New York Times’ Jodi Kantor is now officially on the Supreme Court beat for the gray lady. And she has a new piece about the tensions between the three Democratic appointees about how to approach their time in the jurisprudential wilderness. What did you all think of the piece?
Kate Shaw Well, I had great quotes from both of you. So that’s.
Melissa Murray 10 out of 10. No notes.
Kate Shaw Look, I mean, I think that we are not the audience for this piece because we have been talking about these dynamics so much. Like, it’s just we are kind of obsessed with this. Like, It’s impossible to do what they’re doing. They’re taking very different tacks in dealing with the collapse of the constitutional order, their colleagues, how to speak to the public and to try to persuade at the same time. And I think at different moments, we’ve had different kinds of sympathy for different approaches, or at least I have. I did learn a few things from the piece. One, this made me so furious. We know on the bench, Justice Jackson sometimes gets side eye from her colleagues. I didn’t realize that’s also true in conference, which the piece suggested, like they don’t like that she talks for a long time in conference and that she brings detailed notes. And I was just like, as a compulsive over-preparer myself, like, you know, I would have pages and pages of detailed notes to be sure that I had really thought through everything I wanted to say. And I would show up and do that. And they’re like, somehow that’s offensive or un-serious or something like-
Melissa Murray Well, Kate, you know, the first black woman on the court is really just there to get the door until the end of time, or at least a new justice, can turn the court.
Kate Shaw So don’t consume all this oxygen with your ideas and confrence.
Leah Litman The idea that they go to conference to ostensibly speak with their colleagues about how to resolve these cases, maybe have a debate, explain their reasoning just in like free balling it is insane, right?
Melissa Murray Do you remember Justice Barrett at her confirmation holding up the notepad?
Leah Litman Oh, yeah.
Melissa Murray No, notes.
Kate Shaw Yeah, but you know what has lots of notes? Ketanji Brown Jackson.
Leah Litman You know, I have been teaching for 10 years and like, I still go to class with pages and pages of notes, like detailed notes, including like a one page sheet that is like a densely packed outline of everything. It’s just
Melissa Murray Can I just say this? This actually, again… She is the only black woman on the court. People routinely, even before she became the only black woman in the court, talked about, was she qualified? Was she smart enough? They still continue to do this. Under those conditions, wouldn’t you over-prepare? If you want her to stop coming with notes, stop having your little minions out in the world. Tell her that she’s stupid constantly. Shut up. This is every black woman who ever worked at a job. Like you just show up because you have no safety net and you have lots of notes.
Kate Shaw And then that’s held against you too.
Leah Litman Right.
Kate Shaw Yeah, so that was pretty enraging. Yeah, I mean, it’s an impossible task that the three dissenters have. And I do not envy them. They all seem really committed to staying the course and pursuing in their own different ways, like what they think is the kind of like right way to try to either keep things from going radically off course or to tell the country they already are. And so I guess I felt like. A lot of empathy and gratitude for them and the impossible position they’re in. I think that was my big takeaway.
Melissa Murray I loved Pam Karlan’s Drop the Mic. Oh, my gosh. Oh, my gosh, friend of the pod, Pam Karlan.
Leah Litman So what she said is, quote, the problem with waiting to speak frankly is that, quote over time you normalize what’s going on, end quote. And she said it might be tempting to hoard influence and leverage for a, quote cataclysmic case, end quote. But by the time that happened she said, quote it may be too late.
Melissa Murray And this is sort of the anti-Jackson position. Instead of speaking freely and publicly and forthrightly, you kind of hedge because you’re trying to maintain equanimity with your colleagues. And it’s like, maybe there’s no time for that right now. That’s what we’ve been saying, I think.
Leah Litman Yeah. And I can imagine a world in which this is a both-and, right? Some people try one course, some people try another. But I’m very sympathetic, obviously, as the peacemaker, to the Pam Karlan view of, what exactly are you waiting for? They have so allowed the president to just demolish so many aspects of our constitutional system. Yeah.
Melissa Murray What again are you waiting for? So I was talking to a friend about this, and one of the things that he noted. And I don’t know that Jodi meant for this to be sort of the tenor of the piece, but there is this kind of setup where you have Kagan, the tactician, and then Sotomayor and Jackson, the emotive, like, forthright speakers. And my friend, I think, rightly mentioned, like sometimes speaking forthrightly and to a particular audience is a strategy, and it’s also tactical. And I wish that had come across. More clearly to all.
Kate Shaw Audiences? I thought Sotomayor though came across as like somewhat between the kind of Kagan and Jackson polls.
Melissa Murray Well, I actually thought she came off as like, she was very much like that when Justice Jackson wasn’t on the court. So I think about her intervention and Dobbs is like, you know, I’m not convincing these guys. Let me talk to you people. Like, will this institution stand the stench? Blah, blah. And now Justice Jackson is maybe taking it on even further. So it’s not that Sotomayor has moved. Maybe it’s just the moment has moved even beyond where she was.
[AD].
Melissa Murray Shall we turn from Article 3 to Article 2 for more hope and aspiration? Yes. Excellent. OK. In additional article 2 news, we should note that the president’s bombing campaign against Caribbean boats continues apace and ostensibly in the absence of law. The only difference now is that the campaign to decimate these boats has no longer been confined to the Caribbean. It has expanded to the Pacific Ocean and again, seems to be predicated on totally unsubstantiated claims of drug trafficking.
Leah Litman So the administration has acknowledged even more lethal strikes on boats in the Eastern Pacific, this time four boats. These attacks left 14 people dead and one survivor, and this is apparently the first time multiple strikes were announced in a single day.
Kate Shaw Yeah, which did feel like a genuine escalation. And it just seems more and more apparent that this president badly wants a war with Venezuela.
Leah Litman Could it be because of oil? Maybe, or maybe he just like wants a little more, like.
Kate Shaw War. Like, I just don’t know. Yeah. Yeah. Just seems like a fun thing. I mean, you know, he obviously has had a lot of antipathy to the Maduro regime. So I think this, again, could be a both-and. There are multiple reasons, but they all seem in confluence to be moving us in this direction of the strikes turning into something that begins to look more like full-scale war. And on Friday in that vein, we got news that the administration’s aggression towards this, know, the Maduro regime in Venezuela. Was likely to escalate into actual full-scale military campaigns, including striking military targets inside Venezuela. This is according to reporting by both the Miami Herald and the Wall Street Journal. And, you know, they’re trying to suggest this is just ordinary drug interdiction to bomb boats, which it is very much not. But you cannot make a plausible argument that bombing inside a sovereign state, whatever your relationship with that government, is not war, like that would be. Essentially launching a war with Venezuela and it feels like we could be on the precipice of
Leah Litman You can’t make a plausible argument, and yet I wouldn’t put it past Brechtavana to try.
Melissa Murray If you see the 1997 movie Wag the Dog, this is Wag the dog. Yes, yes. That’s why I said, like, he just wants a little war. Well, I mean, Wag the Do, they start a war with Albania to distract from a sex scandal in the administration. The jokes write themselves. Anyway, in addition to what is happening in the Caribbean and now in the Pacific, we wanted to also acknowledge the percolating effort to ignore. The 22nd Amendment and install Donald Trump into a third term as president. So here is noted constitutional law scholar and former football coach, Senator Tommy Tuberville, on this issue.
Clip If you read the Constitution, it says he’s not, but if he says he has some different circumstances that might be able to go around the Constitution. But that’s up to him. We’ve got a long way to go before that happens.
Melissa Murray The president, for his part, has been reading the Constitution, it would seem. And although it seems he is not reading the polls, but he also had this to say.
Clip I have my highest numbers than I’ve ever had. As I should, I ended eight wars, and we have the greatest economy in history. I have the best numbers for any president in many years. Any president. And I would say that, if you read it, it’s pretty clear I’m not allowed to run. It’s too bad. I missed it. But we have a lot of great people.
Kate Shaw So thoughts on this. One, it seems to me an enormous mistake to take Donald Trump just like offhand, seeming to concede that he’s not allowed to run as somehow forever resolving the issue. Like he’s done. He’s like seen the light. He’s not gonna try to like further explore this possibility. I think we’re gonna see a lot more rounds of this. And I also just think it really matters how we talk about the 22nd Amendment and the two term limit, which is. You know, not the way that Tuberville is talking about it. But I do think that there are ostensibly serious people who are like, I don’t know. He says he’s got a plan. What are the legal arguments that would actually entitle him to run for a third term? And I just feel like a thought experiment, like if you’ll indulge me briefly, is helpful, which is, what if Trump announced that women wouldn’t be voting in the 2026 midterm elections, or that he was giving every red state a third senator, or?
Leah Litman Kate, can I just interrupt you right here, because I just want to point out that you basically manifested the reconstruction and demolition of the East Wing, and I’m a little concerned here. I better not go.
Kate Shaw I better not go on.
Leah Litman Like, you are exercising these witch-like powers on-
Kate Shaw Halloween. Okay, I’m done. I am saying that he is, when he says I might have the ability to run for a third term, he is just saying we are actually going to stop pretending there’s a plausible argument and I am going to announce that I am suspending the Constitution. And we absolutely have to talk about it in those terms if he continues to publicly play with the idea of not leaving office when his second term is done. Okay, I won’t say anything more
Melissa Murray All right, speaking of life tenure, let’s switch to case previews and talk about what the Supreme Court is going to get its little hands into this week at its first week of the November sitting. The sitting is two weeks long, just a reminder. And as is our practice, we’re going to preview the cases that will be heard during the first week. We’ll get to the second week in time. First up, though, Rico versus United States.
Kate Shaw This is one of the many criminal cases on the merit stock at this term, although it is not a case about RICO, which is the federal racketeering statute. It’s just a party whose name is RICO. So here’s what the case is about. Isabelle RICO is the defendant in the case. She was on supervised release after serving time in prison for meth and heroin distribution. While on supervised-release, she moved to another county without telling her probation officer. By the time she was rearrested in 2023, the 42-month term for her supervised release had expired. However… The district court applied the fugitive tolling doctrine, meaning it did not count as time unsupervised release, the many months when she was a fugitive and out of contact with her probation officer. The court sentenced Rico to prison time again with an increased sentencing guidelines range because she had absconded. And the question before the court is whether the fugative tolling doctrine can be applied in the context of federal supervised release, even though there is no explicit statutory authority for courts to do that.
Melissa Murray It’ll be very interesting to hear what noted libertarian Neil Gorsuch has to say about this, especially given his prior embrace of the rule of lenity. That is the rule is statutory construction that says criminal statutes ought to be construed if there is ambiguity in favor of the defendant. It may also be an opportunity, I think, for a strange bedfellows coalition of Gorsich, Sotomayor, and Jackson coming together. I don’t know if that’s enough to overcome the law and order crowd, but it’ll be interesting.
Leah Litman Law and order or no law and no order, just depending on the context. Well, depending on president. Exactly, exactly. So on the same day that Rico will be argued, the Supreme Court will also hear Hensley versus Floor Corp, a case concerning the liability of government contractors. Floor Corp is a government contractor that employed an Afghan civilian who turned out to be a suicide bomber. And Army Specialist Winston Hensely was injured in the suicide bombing, and he sued. Floor corporation in state court for negligently employing and supervising the suicide bomber. The issue before the court is whether a federal common law defense preempts a state law claim against a government contractor in these circumstances. If the court answers this question in the affirmative, it will probably be extending a 1988 Supreme Court decision, Boyle versus United Technologies, which immunized a government contractor from suit where the contractor performed the contract according to specifications. To cases like this one, Hensley, where government contractors violate the terms of their contracts. And they would be saying those contractors also can’t be sued. So Boyle is a somewhat famous slash infamous federal courts case written by Justice Scalia. It forgoes bright line rules in favor of a loosey goosey standard for when federal courts can fashion federal common law, something Justice Scalia was often at pains to say federal courts shouldn’t be doing. That is, the great man was of the view that federal courts shouldn’t be acting like common law judges.
Kate Shaw I had always gotten the impression that he had quietly noted some misgivings about his opinion in Boyle after the fact.
Leah Litman Like when you interviewed with Justice Scalia and they asked you like what opinion of his do you disagree with you basically weren’t allowed to say boil after a certain period of time because it was just so
Kate Shaw Get over it. He was fond of saying that.
Melissa Murray Should be noted that the federal government is weighing in here as an amicus and it has asked the court to leave aside the question of whether Boyle should be extended and simply establish a rule of constitutional immunity under the Supremacy Clause. So that’s kind of an escalation. Not surprisingly, Fleur Corporation would be absolutely fine with this option as well. Interestingly, there are a number of different groups, surprising groups really, who are not in favor of this option, who were arguing in favor of Hensley and against this kind of immunity. And it includes states of a wide variety of ideological postures. So red states like Alabama and Mississippi and blue states like Minnesota and Oregon and purple states like New Mexico and North Carolina are all weighing in here to say that they do not want this kind of immunity for government contractors in circumstances like these. So this may actually be the judiciary’s version of the Epstein files. Apparently, saying no to government contractor immunity when the government contractor defies the terms of their contract is the one issue that unites all facets of our polarized country.
Leah Litman So the supremacy clause question could have important implications for some current events and some questions that people have been raising over the last few months, specifically about the potential for state-imposed liability against federal officers who violate state law. So supremacy clause immunity is the doctrine that limits states’ power to impose legal liability on federal institutions or federal officers. And the doctrine arose from a state’s prosecution of a deputized federal marshal. After the Marshall shot. A person trying to assassinate, justice fueled. Supremacy clause immunity is also related to the doctrine of intergovernmental immunity, which goes back to McCulloch versus Maryland, where the Supreme Court said Maryland couldn’t tax the national bank and instrumentality of the federal government.
Kate Shaw So the basic gist of the doctrine is that state laws and specifically criminal laws can’t be enforced against the valid actions of a federal officer who is acting with federal authority. But the standard has a lot of wiggle room built into it, like determining when an act is authorized by federal law. The doctrine also limits immunity to actions that are no more than necessary or needed to perform whatever the federal function is. Supremacy clause immunity is implicated where state law is trying to limit or hold liable the federal officer. From doing something that’s pretty integral to functions and duties that federal law authorizes. So there is something that makes a lot of sense to this doctrine of immunity, but the question is, can it totally disable states from pursuing federal officers if they exceed the bounds of their authority under federal law?
Melissa Murray And if you’re picking up what Kate is putting down, it should be clear to you listeners why supremacy clause immunity is such a big question right now. It should also be clear why this administration is pushing it at the Supreme Court and why so many states of differing ideologies seem to be resisting it. This is because supremacy clause, immunity will affect whether states can potentially impose criminal liability on and prosecute federal officers who part of this militarization of American cities. And that means whether they will be immunized for abuse of innocent bystanders and protestors who are simply exercising protected constitutional rights. This is really about whether states can prosecute federal officers when they tear gas protestors or body slam people or zip tie kids or shoot non-lethal weapons at journalists, protestors, et cetera. So this is a big deal. And Stephen Miller, this is the vice vice president of the Trump administration. Says that of course the state should not be able to do this. So let’s roll that tape.
Speaker 11 To all ICE officers, you have federal immunity in the conduct of your duties, and anybody who lays a hand on you or tries to stop you or try to obstruct you is committing a felony. You have immunity to perform your duties and no one, no city official, no state official, no illegal alien, no leftist agitator or domestic insurrectionist can prevent you from fulfilling your legal obligations and duties.
Kate Shaw All right, so insofar as he’s making this confident categorical claim, he’s wrong. But it is definitely unclear exactly what the scope of Supremacy Clause immunity is. And the fact that we right now have the federal government asking the Supreme Court to weigh in on this really important question in a case that is flying under the radar, although not, if we have anything to say about it, is, I think, quite significant.
Leah Litman And just stepping back for a second, part of why we are talking about the prospect of state liability against federal officers is because of the limited availability of federal remedies against federal officer who violate people’s constitutional rights. So you can sue federal officers to get an injunction that would stop unconstitutional conduct. But the Supreme Court has vastly limited your ability to sue federal officer for damages if they violate your constitutional rights, so you can see to prevent future violations, but not hold. Liable officers who engaged in past violations. There’s a 1971 case Bivens versus six unknown named agents of the Federal Bureau of Narcotics. And that case recognized the ability to sue federal officers for damages for violating Fourth Amendment rights. And this court, that is the modern court, the Roberts Court, has predictably been hostile to that precedent. It is from the 1970s. Cases from the 70s really aren’t entitled to stare decisis effect when you think about it. That was a joke, anyways. So this court has vastly narrowed. Is it a joke? Is it? Yeah, no, I know. Little problem with manifesting there. But Modern Court Roberts Court has really narrowed the ability to sue federal officers for damages, with some justices included noted Libertarian Neil Gorsuch and his buddy Clarence Thomas calling for Bivens to be overruled. And so the fact that you can’t sue federal officers for damages. Federal law is part of why people are talking about, you know, state liability for federal officers who violate state law.
Kate Shaw And why there is a real fear that this court will find another way to shut any potential doors that remain somewhat open. So this is a case we’re going to be watching very closely and obviously not just for what it’s going to say about federal common law and defense contractors. All right, on to the next. Coney Island Auto Parts Unlimited versus Burton will be argued on Tuesday. This is a civil procedure case and specifically it asks whether federal rule of civil procedure 60C1 imposes any time limit to set aside avoid default judgment for lack of personal jurisdiction. As a general matter, Rule 60 sets forth the circumstances under which a litigant can receive relief from a judgment order, 60C1 specifies that a motion for relief must be made within a reasonable time, and Coney Island Autoparts didn’t file its Rule 60 motion to vacate a default judgment as void for lack of personal jurisdiction until six years after that default judgment was entered. The company argues that the summons notifying it of the judgment was improperly addressed and so it was defectively served. A point the Sixth Circuit acknowledged, even as it ruled against the company for failure to comply with the reasonable time requirement. So Civ Pro-Mavens will love this case.
Melissa Murray Actually, Civ Pro Mavens are going to love all of the cases that are being heard on Tuesday. Because Tuesday is Civ Pro Day at SCOTUS. Because that’s the day that the court also hears Hains Celestial Group versus Palmquists. And this is a case that considers state court removal, a final judgment, and diversity jurisdiction. So if you are into civil procedure, you should be tingling right now. And I know that you are. The facts are very interesting. Sarah and Grant Palmquist, residents of Texas. Sued Whole Foods and Hain, the makers of Earth’s best baby food, which is sold at Whole Foods stores, in a Texas state court alleging that heavy metals in the product caused their son’s autism. Citing diversity jurisdiction, which allows federal courts to take up cases involving parties from different states, Hain which is based in Delaware and New York, removed the case to federal court. In doing so, Hayn argued that Whole Foods, which which is based in Texas. Was immunized from suit under a Texas law as a quote unquote innocent seller of the product. And therefore, they never should have been included as a party to the suit.
Kate Shaw The Palmquists amended their complaint to add new claims against Whole Foods and tried to have the case remanded back to state court. A federal district court denied that request and dismissed Whole Foods from the case, and two years later, after a trial, the district court entered a ruling in favor of the company. The Palmquists appealed that ruling to the Fifth Circuit, which concluded that the district court had improperly dismissed Whole foods and lacked jurisdiction to enter a judgment against the Palmquist. The appellate court then sent the case back to the state court with instructions to do the whole thing. Over. And Palmquist may be an opportunity for the court to side with corporations while also potentially bench slapping the Fifth Circuit.
Melissa Murray To great taste.
Leah Litman Yeah.
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Melissa Murray All right, so those cases are obviously interesting, at least for Fed courts and Civ Pro stands. But of course, the main action in the first week of the November sitting is the case the court will hear on Wednesday, Learning Resources versus Trump, AKA the Trump Tariffs case. The case is actually two consolidated cases, both challenging the president’s authority to impose tariffs under the International Emergency Economic Powers Act or IEEPA. The court has fast-tracked these cases, which, I don’t know about you ladies, causes me to stare in Jack Smith presidential immunity and classified documents. But whatever.
Leah Litman Yeah. So we are going to be covering the oral argument in the tariff cases in much more detail at our live show at Crooked Con on November 7. We will just note that there has been a ton of amicus activity in this case, including amicus briefs from small businesses and states that are siding with the plaintiffs, challenging the president. Also, if you are going be joining us at CrookedCon, we are to have some, I think, pretty fun tariff-related games in store.
Melissa Murray None of which requires a costume.
Kate Shaw Leah won’t be wearing a frog suit, to my knowledge, but the Tariff Games, I think, will be really fun.
Melissa Murray To my knowledge.
Kate Shaw You’ll have to show up and see.
Leah Litman Surprise!
Kate Shaw Back to the tariffs case. So the case involves two different kinds of tariffs. So the first category is the trafficking tariffs. So these are ostensibly imposed on some products from China, Canada, and Mexico because those nations allegedly failed to do enough to stop the flow of fentanyl. It is, just a quick editorial note, tough to keep track of everyone who is to blame for the flow fentanyle. We are bombing Venezuelan, Colombian, and Ecuadorian fishing boats because they responsible for fentanyl, but also. Tariffing all of these nations because it’s also their fault anyway So that’s one category of tariffs the president has also been imposing worldwide or reciprocal tariffs on a bunch of countries because of trade deficits
Leah Litman So IEEPA authorizes the president to take action, to quote, deal with any unusual and extraordinary threat which has its source in whole or substantial part outside the US to the national security, foreign policy, or economy of the United States, end quote. But the statute only authorizes such action if the president declares a national emergency with respect to such threat. And when there is a national urgency, the president under IEEPA can, quote, regulate importation. Of property in which any foreign country or national thereof has any interest,” end quote. So obviously, a question here is whether a trade deficit constitutes a national emergency or merely a cyclical economic phenomenon that has been part of our country’s economy for several decades. Another related question is whether the trafficking tariffs deal with an unusual and extraordinary threat or instead part of a long-term phenomenon that is just part of ordinary federal law enforcement.
Melissa Murray I predict a big part of the oral argument will focus on the question of whether the statutory language actually authorizes the imposition of the tariff, since the term tariff is not explicitly used in the statute. Instead, the statute speaks of the authority to, quote unquote, regulate, which prompts the question, is regulate a synonym for tariffs? The strange bedfellows coalition of Warren G., Miriam Webster, and textualism would like to know.
Leah Litman The case also presents the authority question of whether the major questions doctrine applies with full force to Republican presidents, or is it just for Democrats, just as a reminder. Asked and answered.
Melissa Murray Asked and answered, asked and answered.
Leah Litman We do have some indications of that on the Shattered Docket, but the major questions doctrine, recall, is the Republican appointees made up judicial doctrine that said statutes that authorize administrative agencies to adopt certain regulations have to be construed basically against the agency in cases of major economic and political significance, basically a carve out from the statutes and what powers they grant to agencies. Again, at least when it’s Democratic presidents who have appointed the heads of said agencies. But I do want to propose a possible reconceptualization of all Supreme Court case law on executive power. So the foundational executive power case is Youngstown. Youngstow asks whether the president is acting in agreement or disagreement with Congress. If he’s acting in an agreement with Congress, the president has more power. If in disagreement, he’s less. You know, Youngstown again, three zones. But I actually think there’s like a Youngstow step zero, which is, is the president Republican? Is the president waving their hands and saying foreign affairs? Because we have some indication, you know, from the AIDS vaccine advocacy coalition stay in the foreign aid funding case that when Republican presidents get up and say foreign affairs, all of a sudden the president gets to exercise. Congress’s powers, like the spending power or act in violation of congressional statutes, even in areas of congressional authority. But you know. It’s a little like hocus pocus. That’s a deep cut for Halloween. It is. So another part of this case is the challengers are raising non-delegation doctrine as a way of challenging the tariffs. And that is really going to be a. Tough one for Neil Gorsuch, because it will pit his fervent desire to make it 1939 again against the Trump agenda to make 1839 again. So which state do you pick?
Melissa Murray Those hundred years.
Leah Litman Which date to pick, we just don’t know.
Kate Shaw That’s true.
Leah Litman Good time either way though!
Kate Shaw We’re dialing the clock back in some fashion. The question is just, yeah, where are we stopping the dial? So we’re going to have much more to say about this case after the argument. And we will do it on stage at CricketCon and then in your ear holes for our regular Monday episode. I’m going to say one more thing about the amicus involvement in the case. Leah mentioned at the outset that you actually had a lot of small businesses on the side of challenging the tariffs. It’s also kind of wild to look at how lopsided the amicus activity in this case is. So you have. Very few supporters of the federal government, and just an enormous number on the other side, including the Cato Institute, the Chamber of Commerce. Those are more often fellow travelers with the administration, but they are very much on the others side. You have conservative law professor, Michael McConnell, who’s part of the team challenging the tariffs. I still think they find a way to rule for the administration. But I don’t think this is gonna be an easy one for them to do that. So they’re gonna have to contort themselves, which they’re all too willing to do.
Melissa Murray The pretzel court.
Kate Shaw Much more to come. And that is the news. Let us end as always with our favorite things this week.
Leah Litman I will start. I have kind of a long list. So on the less substantive front, I’ve been watching Task. I know I’m a little late to this train. It’s phenomenal. Would definitely recommend. Mark Ruffalo is just fantastic. Also listen to Lily Allen’s new album, West End Girls. Listen to it once, not like 50 times. Start today. Many, many, many times. Also recommend to our listeners. Sorry, Melissa, did you want to? She’s going to pick it up. No, I have things to say. OK. OK. Well, I’ll leave that to you. Chris Geidner over at Lawdork wrote a piece, The Kavanaugh Stop 50 Days Later, just surveying all that has happened since Brett Kavanaught declared that ICE stops are no big deal. Very much worth checking out. Steve Vladeck has a new paper, The Supreme Court’s Self-Defeating Supremacy that is available on SSRN. Also would recommend that. ProPublica had a story, God’s Chief Justice, that is a long profile of the Chief Justice of the North Carolina Supreme Court. And given the importance of that court, it is well worth the read. So the Chief justice is the one that spearheaded the North Carolina Court immediately reversing course once the court flipped to a majority of Republican nominees. The court’s recent pro-voting rights decision, so overruling the decision and validating the state’s voter identification law and overruled the decision, limiting the state ability to engage in a partisan gerrymander. The piece is just wild, so to give you a quick flavor, quote, when ProPublica emailed questions to the chief justice’s daughter, the North Carolina Republican Party’s communications director responded, writing that ProPubblica was waging a, quote, jihad against North Carolina Republicans which would not be met with dignifying any comments whatsoever. Quote, I’m sure you’re aware of our connections with the Trump administration, and I’m sure they would be interested in this matter, the spokesperson said in an email. Anyways, the piece is really worth your time. It’s an in-depth exploration of a man who seems to have just vastly transformed state institutions and law in North Carolina, and it is deeply alarming. Two other things. So the organization People’s Parity Project has organized a Lawyers March for Democracy on November 15 from 1 to 3 PM, that will be a protest that will start outside at the Supreme Court or be outside the Supreme court. If you are in DC or able to get to DC, definitely worth checking out. Again, it’s Lawyers March for Democracy on November 15th. And there will be note on the show notes, as always, with our favorite things. One last favorite thing I don’t actually have, but I know I would love, the Jodi Kantor piece in The Times, which we were talking about. The opening anecdote discusses a version, a non-public version. Of Justice Kagan’s dissent in the student debt relief case. So apparently she deleted the most heated passages before signing off and releasing the dissent. So my favorite thing is the uncensored version of this dissent, which I really need in my life.
Kate Shaw Alaina’s version, please. Yeah, exactly.
Leah Litman Yeah, exactly. I mean, even when she got her master’s back from John Robb.
Kate Shaw Yay! Ugh, can’t wait for that.
Melissa Murray Okay, so I will start with my least favorite things and one of my least favorite things is a hurricane. A hurricane that is named Melissa that hits your family home in Jamaica. Absolutely rude. First of all, I thought hurricanes were supposed to have out-of-circulation names, not names that are used by people who are still walking around breathing and being young, okay? You do not name a hurricane Melissa. Melissa has young girl energy. She will mash up your coast. You need to name your hurricane Mildred, Mercy, Matilda. These were all there. These were all available. What about Millicent? Millicente. Also, I mean like FYI, Jamaica people have such a hard time pronouncing Melissa in the first place. All my Jamaican relatives cannot say my name. They’re like, Melissa, Melissa. It’s just like, it’s too much. And so it was wild to hear the reports from Kingston about Hurricane Melissa coming and having all kinds of negative effects on the coastline. Absolutely terrible. So this was horrible. Second, if you, like me, love this island, and I do, and you want to help the wonderful people who are right now really suffering in Jamaica because this storm, although it did not hit the capital, Kingston, it did decimate Montego Bay, which is a huge site for tourism, which is a major. A major industry in Jamaica and will make it very challenging for the nation to come back from all of this. If you want to help out, there are a number of great organizations that are trying to get aid to the beleaguered island. They include the Walk Good Jamaica Relief Fund, and their website is biosite, S-I-T-E forward slash Walk Good Jamaica, all one word. The American Friends of Jamaica are also doing great work. You can look them up on the internet. Global Empowerment Mission, Mercy Corps. And Food for the Poor Jamaica are also doing relief efforts. So those are fantastic. Please help out if you can. Jamaica is fantastic, not just for vacations, but just for being from there. It’s awesome. And they deserve our help. In addition to helping out Jamaica, one of my favorite things is impermissible punishments, how prison became a problem for democracy by Yale Law School’s Judith Bresnik. Judith is one of. The nation’s foremost experts on prisons, on litigation related to prisons. And this is truly a tour de force on how the prison became not just an American fixation, but a real problem for American democracy. And then finally, also another feminist icon, not unlike Judith Resnick, is Lily Allen and her amazing Tour de Force album, West End Girl. Such a fantastic album. Great songs, sort of toggles between a kind of retro vibe and an electronica vibe. But I loved Relapse, Madeline, Sleepwalking. Definitely second Madeline. Also Tennis. Madeline is great. Tennis is great, but I also love that she’s so petty that she did it right before Stranger Things. And also the song P-Palace takes the Stranger Things theme. She’s working on many different levels, but all of them are petty.
Kate Shaw Yes. It’s also just the monomania, right? It’s just every single song is about him. And it’s so detailed. And there’s obviously lots of sort of revenge tracks on albums, but not the full every single word of every single songs. It’s pretty epic. Well, I think-
Melissa Murray lemonade was there.
Kate Shaw Tell me the song.
Melissa Murray Yeah. No, Lemonade was, it was an arc. She got to forgiveness. Lily never gets to forgiveness, and I love that for her. Yeah, it’s amazing. But also, it- It’s okay.
Kate Shaw But also it’s okay. So there’s like whatever Becky with the good hair. There’s like some explicit detail, but most of it like sorry Kate But it’s metaphor. It’s obviously suggestive. Like here is the stuff I found in the bag. Here’s the bag It was like here’s what?
Leah Litman In the debate between airing public grievances and dirty laundry versus being diplomatic, we know which side Lily Allen came down.
Melissa Murray The other thing too, it has caused me to go back and look at all of their sort of public stuff that’s on the internet, like their videos, like what an absolute jerk he was when she did the Olivier Award. She was nominated for an Olivier Award for this play that is, you know, what eventually starts off this album, West End Girl. He’s such a dick, like he cannot be for his wife’s professional success. Like such a dick. Anyway, so. I love this. I hope the video for P-Palace will be a parody of their architectural digest tour of their Brooklyn brownstone, where she’s like, this is what I thought was a dojo, but it actually turned out to be the place where he cheated on me like a million times.
Kate Shaw I was also going to mention the Lily album. But in that kind of granular detail, exactly. I think we’ve covered the topic. I will just mention two more things, which as I started, George Packer has a new book called The Emergency, which is a novel. And Michelle Goldberg actually features it in a recent column. And it’s great. I will report back when I’ve read more of it. And then actually brand new, Beck Ingber and Jessica Thibodeau have a piece in Just Security that was just released I think on Friday that they think makes really crystal clear that as of November 3, under a statute called the War Powers Act, the administration’s use of force against the suspected drug cartels, which we have been talking about, including on today’s episode, will be categorically illegal. No question. The only question is, is Congress going to do anything about it? And last, we had a terrible storm in New York that, you know, felt like a little but like the After Effects maybe of Melissa, like-
Melissa Murray Melissa!
Kate Shaw Yeah, in the streets of New York, I mean, a couple of people died, like just a really shocking amount of water. And in my Brooklyn neighborhood, there were so many random New Yorkers, like, getting their shoes and pants soaking wet, like digging with their hands or sticks leaves out of drains in various parts of the city and keeping, I think, the streets from even worse flooding. So anyway, thanks for… Thanks for helping fellow citizens. Maybe, maybe that is the cause, but the basements were spared.
Melissa Murray All right, we also have some notices of stricties in the wild. So I was recently in Berkeley, California for a former law student’s investiture as a judge. And I ran into some stricties. I know it was so nice. Very proud of her. And I run into some striptease who are big fans of the show. So I wanted to shout out Kristen, Kristen slash Kiki and Anya, who are longtime listeners but first time callers, at least to me. And we should also thank Maeve in Cambridge for writing in and telling us all of the things that she learned from the show that she’s now applying in a class on The Supreme Court.
Leah Litman So, some housekeeping before we go. Once again, CrookedCon, DC stricties. Have you gotten your Crooked Con tickets yet? This Friday, November 7th, we will be closing out the day with a live pod at the Ronald Reagan Center. Perfect place to discuss tariffs. Head to crookedcon.com to get tickets before they are gone. And if you can’t catch us there, good news. We are heading to the West Coast for the first time ever. So you can join us at the Herbst Theater in San Francisco on March 6th, 2026, then at the Palace Theater in Los Angeles on March 7th. You can get your seats now at crooked.com slash events.
Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, Jordan Thomas is our intern, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Katie Long and Adrian Hill, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcoat, Joe Matoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast. If you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
