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Drop everything and read! This week, the hosts celebrate the release of Leah’s book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Just how did the vibes get so rancid? What is Sam Alito’s…whole deal? And where does Taylor Swift factor in? The answers to these questions (and more!) are in the book. Then, after a rundown of the latest news out of the courts and White House, Leah chats with Amanda Litman, author of the latest book from Crooked Reads, When We’re in Charge: The Next Generation’s Guide to Leadership.

 

TRANSCRIPT

 

 

Leah Litman [AD]

 

Speaker 2 Mr. Chief Justice, imay it please the court. It’s an old joke, but when a argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We have a great three-part episode for you today. First up, we are going to talk about a fantastic new book that drops tomorrow. But just because it drops tomorrow doesn’t mean you can’t buy it today, or at least before this Friday upcoming. So get on this right now and buy the book. When we’re done with that, we will talk about all of the news of the day slash the week slash the year. It’s very hard to tell time these days. And then finally, we will close with a segment about another terrific book that is also out tomorrow. We’re your hosts. I’m Melissa Murray.

 

Kate Shaw And I’m Kate Shaw, and we are your only hosts today, and it’s possible that you may surmise that the reason we are without our favorite co-host, Leah Litman, is for a very good reason. So, Leah is not in the host seat for this episode, but, but, butt.

 

Melissa Murray She is in the hot seat because she is our very, very special guest. Yes, listeners, we are flipping the script and we’re going to pose all of the questions to Leah, who is here to talk with us not about the court per se, but about her brand new book.

 

Kate Shaw About the court. The much anticipated Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes drops this week, and the indomitable Leah Litman is here. It’s her own podcast, so I guess it’s not that surprising. But the role is different because she is here to talk with us about her new book. So we are going to give a very warm, strict scrutiny welcome to our favorite co-host, But today, our very special guest, Leah Littman. Leah, welcome to your own podcast.

 

Leah Litman Thanks for having me, girls.

 

Melissa Murray You are a friend of the pod.

 

Leah Litman I appreciate it.

 

Melissa Murray We are so excited to discuss your new book, Lawless, How the Supreme Court Runs on Conservative Grievance, French Theories, and Bad Vibes. So I’m just going to dive in and start at the top. In the introduction, right on page six, you describe this as a big picture book, but you also note it has a horrifying key message. You say, quote, the Supreme court is repeatedly elevating the feeling, sentiments, and political views of the Republican party and churning out different jurisprudential theories and doctrines that ignore the views of people who, for the most part… Are not part of the modern Republican coalition. Say more about this. How has the court proceeded to just run on vibes? And more importantly, why are the vibes so bad?

 

Leah Litman Okay, so I’ll try to briefly touch on those things. So how the court is running on vibes. Basically, Sam Alito looks at himself in the mirror and he says, what am I feeling? And then he channels those feelings and writes them into the pages of the U.S. Report. So he is literally making his fee-fees as well as the general zeitgeist and atmosphere on his private jet trips with Peter Singer. Into the law. As to how we got here and why are the vibes so bad, I mean, how we got here, the Republican party and conservative legal movement managed to perfect a selection system where they could literally find someone with zero principles and was a total hack and would be willing to do all of this. And that person was Sam Alito as well as a few others. But more Seriously, they created this machinery where they decided to basically be intent on capturing the court and build a movement around that. And that was a long-term project. And it reflected a concerted effort and a realization that they needed the court to implement their increasingly weird, fringe agenda. Why are the vibes so bad related to that? The party kind of committed itself to minority rule and to a bunch of petty grievances. And so when that is kind of like the organizing principle, Of the party that it’s basically a retribution campaign against anyone who doesn’t agree with them, then they selected people who were kind of open to that idea and put it into the law. That is how we got to a place where the Republican controlled Supreme Court is all in on the project of let’s repeal the 20th century, taking us back to a time when the country probably wasn’t that great, at least for people who aren’t part of the modern Republican coalition for the most part.

 

Kate Shaw The title of the book is Lawless, and you argue that the court’s conservatives are, in fact, lawless. But you also demonstrate that they are only in some respects and sometimes actually lawless, They actually do love rules when those rules can be used to disempower others. So there is this very selective legalism that you identify that is really one of key tools of this conservative. So can you just give some examples of that selective legalism and maybe tell us what it sort of reveals about the Republican justices and their end game?

 

Leah Litman Yeah. So, I mean, they create a bunch of rules in the sense that they say, like, this is what the law means, but the rules are basically things that favor them and don’t allow anyone who disagrees with them to exercise or possess similar rights. So like their views of the First Amendment is basically the right to free speech includes the freedom to say things I agree with and not to criticize me. The rules are not even handed or applied in neutral ways, and it just creates this like weird stew of, I don’t even know what to call it, selective legalism is one thing, stew of grievances is another. And as to like what the end game is, I mean, I think on some level, it’s like equating the rule of law with rule by Republicans as if the only form of legitimate political power. Is political power when exercised or possessed by Republicans. They might not be happy. And by they, I mean like Sam Alito, as well as maybe some others, will not be happy until the United States runs on his will and his will alone. And it’s deeply related to Trumpism. I think you can see a direct through line from the Stop the Steal movement, which insisted a Democratic presidential candidate’s legitimate victory was not so legitimate. To the court’s broader jurisprudence that generally doesn’t recognize the legitimacy of governance by the Democratic Party. The court used the major questions doctrine to kill major Biden initiatives like student debt relief and across a range of areas, voting rights, reproductive freedom, LGBT equality, climate change. The Republican justices have basically declared the Democratic party’s agenda and ideology suspect. The justices, I think, are using law to enable lawlessness, both in the sense of they’re ignoring what the law. Actually says and replacing it with their deepest, darkest thoughts, and in the sense that their legal rules, such as LGBT individuals can’t have rights or maybe can’t exist, or that multiracial democracy is actually unconstitutional discrimination, or Republicans have a right to create rules that give them political power when they lose elections, all of that fundamentally incompatible with a legal system that calls itself a liberal constitutional democracy.

 

Melissa Murray OK, well, that’s truly chilling. Also chilling is how much we talk about originalism as a guiding principle around this court. But as you note in the book, originalism is rightly a subject of criticism, and the court’s originalism is certainly faithless in its way. But it’s not the only credo to which this court adheres. So you argue that, quote, the ways in which the court is making the law less democratic and less inclusive aren’t limited to originalism. Tell me, what are all of the ways, what are of the tools that these ghouls are unleashing in order to make this a minority rule-driven situation?

 

Leah Litman I’m not even sure I would be willing to call them tools, or rules, or principles. I think you might call them tool. Okay. By them, right, if we’re talking about the individuals, fair enough, but if we are talking about what they write into opinions to actually accomplish this, right? It’s just kind of declarations and nothing beyond that. So one of the examples. You know, after the chapter on originalism is Justice Scalia just declaring that the Republican Party’s views on social policy are reflected in the Constitution, like the Constitution does not prohibit the government from enforcing traditional sexual mores as if that just can be divined from reading. I don’t know the equal protection clause in first amendment or you have them announcing kind of very discrete particular doctrines that just so happen to mirror or build on political talking points of the Republican Party. So for example, when the court struck down one of the key provisions in the Voting Rights Act, Section 5, the pre-clearance system, they were like, oh, this violates this magical principle of equal sovereignty, not treating the Confederate states like everyone else. And that just parrots what segregationist Strom Thurmond had used to oppose the Voting Rights Act from the outset, declaring it unfair political retribution and discrimination against the Confederate South. So those are just like two different mechanisms. I think all of the chapters have like at least one way that the court has used to roll back rights or power for different marginalized groups. The last chapter is all about the regulatory rollbacks in which they basically encased corporate executives and the Republican party’s grievances against particular regulations into the law. So it’s just like all manner of things, like no real set of rules, no real laws, just like different things they can come up with. That’s why I call them vibes. It’s as if they like pulled up chat GPT and we’re like, what does the Republican party want? And then slap on doctrine and jurisprudence to it. And boom.

 

Kate Shaw You’re done. So you emphasize that one objective of the book is to help the audience understand how to read the court’s opinions for filth, which I have to say is an incredibly important public service. It really is. So let’s unpack one particularly filthy case that you talk about a good amount in the book, which is 303 Creative versus Alenis from 2023. So in your view, quote, the 303 creative case underscores how the court, together with the conservative legal movement. Can generate cases to steer the law in their preferred direction. So will you walk through a little bit about what makes this case just such a perfect illustration of the court’s vibes-based approach to jurisprudence and just why it is so dangerous?

 

Leah Litman Yeah, so it’s really like from start to end. This case is just vibes all the way down. So it kind of begins with Obergefell versus Hages, the marriage equality decision, when Justices Alito and Thomas basically declare that marriage equality is going to infringe people’s First Amendment rights. And of course, making that declaration. Invites cases that challenge marriage equality and civil rights for LGBT individuals on First Amendment grounds. And 303 Creative is one of the cases that gets filed in the wake of these Republican appointees inviting the challenge. And it is filed on behalf of a company, this website design company that originally did not apparently specialize in wedding website design. But instead kind of becomes this wedding website design company because they want to focus the challenge on marriage equality. And even beyond that, when it’s initially offered and promoted, it’s not even a wedding website design company or website design company that wants to focus on Christianity and particular religious beliefs. Why bother deciding the case on facts that are actually before you when you can play fantasy football? Instead, the conservative legal movement and Republican justices dream up this scenario, and then together they manifest it. And then at the end of the day, this case results in the Supreme Court basically declaring that LGBT equality, equality for LGBT individuals, is itself a kind of discrimination against religious and social conservatives. While actual discrimination against LGBT people is not actually discrimination. Because this is the case where, as we’ve talked about, Justice Barrett invites the lawyer for the wedding website design company to insist that she’s not actually refusing to serve people on the basis of sexual orientation. And that maybe she wouldn’t serve some straight couples who wanted to celebrate same-sex weddings. So they declare, obviously this isn’t discrimination on the basis of sexual orientation. But it is discrimination against the poor wedding website designer who is being attacked for her unpopular views that the court has to and wants to protect.

 

Melissa Murray So it’s just kind of bleh. So Leah, one of the critiques that you have in the book is about the way that the media covers the court. And you level, I think, a pretty damning claim against the mainstream media that too often they underplay the court’s radicalism and give the public this sort of whitewashed, rose-tinted view of the court as not doing nearly as much damage as, in fact, it is doing. What does your framing, which really talks about the underpinnings of this radicalism and connecting it to these conservative vibes and feelings and fringe theories and grievance, how does this capture more of what you think is actually going on and what’s the best way to translate that to the public.

 

Leah Litman Yeah, so to the extent I have grievances, one of those grievances is against the mainstream media’s coverage of the Supreme Court. And I think part of what they miss is how all of these cases are happening in ways that are embedded within political movements and context. So just to take a particular example, you know, a few years ago, the Supreme court decided this case City of Philadelphia versus Fulton. That was a challenge to the City of Philadelphia’s contract terms that required foster care agencies to agree not to discriminate against prospective foster care parents on the basis of sexual orientation. And the court in that case agreed that the contract terms impermissibly discriminated on the base of religion but didn’t adopt a particular legal theory that the prospective agencies that wanted to discriminate on the bases of sexual orientation were pushing. And so that case got kind of covered as a nothing burger, no big deal. It was an illustration of the court’s moderate institutionalist center. But that missed, of course, how the court had moved the needle closer to the end of the spectrum that allowed more discrimination against LGBT individuals and more attacks on civil rights measures. And we saw recently how the advocates who are pushing for the court to constitutionalize religious public schools and to declare the nation’s first religious public charter school are relying on that case because. It is embedded within this movement. We know what the movement is pushing for. We know what its end goals are. We that the Republican justices are sympathetic to it. And so not covering the case in that context misses that. And then I also think they just do not cover how the underlying substantive law draws from those movements as well. So I’ve already mentioned the case of the Voting Rights Act, where again, the legal doctrine just basically parrots Strom Thurman’s and the Redeemer’s challenges to the general project of construction. Right. And I think it’s just too easy for people to lean into the idea that, like, law is technical and complicated and to try to focus on those aspects of the case, you know, rather than…

 

Melissa Murray Is that part of the problem, Leah? I mean, it does occur to me when I am on MSNBC or something talking about the court that I have expertise and that’s why I’m there. And some of the other folks who are there more regularly aren’t trained as lawyers. It’s just hard, I think, to cover it in ways that get it right all of the time. I think religion is a great example of this. The court’s moves are so incremental and really They feel minimal in the moment. It’s only when you have this wider aperture and you’re sort of thinking about them over a sweep of cases that you can actually put this together and see like, oh my gosh, we’ve actually done a complete 180 when in fact it just felt we were like moving 60 degrees, 60 degrees.

 

Leah Litman Yeah, no, that’s not a knock against expertise, right, or drawing from people who follow this in and out. It is instead a knock on how some of those people choose to depict what the court is doing and cover the court by trying to…

 

Melissa Murray I mean, the problem is like even people with expertise are playing it down and not sort

 

Leah Litman Exactlty. Yeah.

 

Melissa Murray And those are mostly men, right?

 

Leah Litman Um, not all men, um, I want to be careful to say, but.

 

Melissa Murray Some men are bears.

 

Leah Litman Right. Exactly. Some men are Bears.

 

Leah Litman Um, but yeah.

 

Leah Litman [AD]

 

Melissa Murray I think in recent months, weeks, there’s been a cottage industry of chatter around whether Amy Coney Barrett is not as bad as we might have thought back in 2020 when she was appointed to fill Ruth Bader Ginsburg’s seat. And I’ll be fair, I have been among the folks who have said, okay, there are some surprising moments here on moments where I was. Not expecting her to come out where she did, or not expecting to ask the question that she did. Although I will be very clear, there are moments where I’m like, she did exactly what I thought she was going to do. How do we push back on the effort to rebrand some of these justices, or even to rebbrand the court? I mean, we pushed back many years ago on the whole 3-3-3 court. And I don’t know if we were entirely successful in doing that, but how do you get people to understand, Like, no, it’s a bigger deal than you think.

 

Leah Litman Yeah, I mean, it is a constant fight, and a part of me just thinks it maybe partially comes down to the fact that Donald Trump appointed two people, Justice Gorsuch and Justice Kavanaugh, who are truly mediocre intellects and partisan hacks. And so comparing her to them, right, is always going to yield this kind of favorable or partially favorable comparison. Um, but I think part of it is just reminding people of all of the decisions that she has. Joined with them. She is going to be with them on Mahmood vs. Taylor when the court basically declares any inclusion of LGBT. Q plus instructional material, reading material in schools as an affront to religious conservatives. She was in the majority overruling Roe versus Wade. She was the majority ending affirmative action. She was to the right of Brett Kavanaugh in trying to dismantle the Voting Rights Act a few years ago. She has been to his right on several issues and sometimes she’s to the right of Justice Gorsuch as well. And so again, the fact that she has peeled off in some of these cases involving the Trump administration or the state of Texas. You know, I think at bottom that just shows how wild the Trump administration’s positions have been and how wild they are. And how hackish the other nominees have been. It doesn’t say anything about her drift or her moderation. And I’m not sure I have any like great solutions as to how to get people to remember that. Aside from pointing to all of these other cases in which she’s no different And again, in some ways is to the right of some of the other Trump appointees.

 

Kate Shaw So in addition to the court itself, your critique extends to liberal legal institutions, including the hesitation of a lot of lawyers to criticize the court out of a fear of alienating it or potentially undermining its legitimacy to the extent it still has some. Can you talk about what in your view a healthier legal profession would look like?

 

Leah Litman Yeah, so I think it kind of comes from both directions, both from the court and from the legal profession. I mean, on some level, you need a court that doesn’t view any criticism of it as an attack, right? Because part of what these lawyers are responding to is the very real fact that these justices, their hackles go up any time anyone suggests, they are not the most principled, brilliant people in the entire universe. And so. It’s not unreasonable for lawyers to think, like, oh, if I say something negative about the court, is that going to be held against me in my next case or whatever the case might be? And then on the part of the legal profession, I think some of it is just this, I don’t even know what to describe it as. It’s like an instinct for self-preservation or delusion, where you want to think the social practice you are part of and the institution you are part Is good and can be saved and you are doing good things. And so you want to view it as less problematic than it actually is. Or if part of it is just this misguided defensive institutionalism, right? Like lawyers and the legal profession have always been a little small c conservative. And so I don’t know if this is just the 2016 to 2020 instinct we saw of let me preserve and protect institutions, even when those institutions are flawed, and I will imagine them to be something else. But I think like a sanity check, a reality check on the side of legal profession, and then, I don’t know, a backbone or a thicker skin on the sides of the Supreme Court, both of those would be useful. And that’s not to say lawyers can’t win some good important cases for criminal defendants or even against the Trump administration now, but. They also need to see the bigger picture, what the court is doing more broadly and what participating in that system.

 

Kate Shaw So that’s kind of a general response with respect to kind of certain maybe pathologies of kind of legal culture, but what about a specific kind of objection that you I imagine will encounter as you’re out talking about the book, which is what do you say to people who are really, who might be actually comfortable with criticism of the courts or the Supreme Court in general terms or in normal times, but are nervous about criticizing the court right now given how dangerous Trump is?

 

Leah Litman Yeah. So a few things. One is I’ve always thought there is a distinction between criticizing the court and saying the president obviously doesn’t have to follow court orders that direct him not to strip birthright citizenship of individuals or direct him to provide minimal amounts of due process. So I think there’s some conceptual space, you know, to the extent that that’s concerned. But second is I worry that that just falls back into this. Danger of forgetting the ways in which the court has enabled the rise of Trump and Trumpism and the ways which the Court is really on the same page with the Trump administration and Donald Trump on some of the underlying ideological issues. And so I just think it gives the court too much. Benefit and protection to let it go, the many faults they have and the many missteps they have made. And I don’t want us to emerge from this period without understanding the ways in which the court is a deeply flawed institution as well. And so in some ways, I hope the book is partially a corrective to that. I mean, obviously, I think Donald Trump should abide by judicial orders that direct him to provide people with due process and whatnot. But neither do I think that in order to get to that world, I need to be saying, Sam Alito, you’re awesome. You’re doing amazing, sweetie. Like that is just not a functional legal system.

 

Melissa Murray It’s not your classic legal book about the court. It’s like the Brethren, it’s not like the Nine. Instead, it is brimming with pop culture references, zesty memes, and very snarky jokes. There’s a little dash of RuPaul, a little Game of Thrones, Barbie movie, American Psycho, Mean Girls. How did you approach your writing process and how much? Of the book’s unique tone is specifically aimed at making this genre and this institution more accessible to a lay audience.

 

Leah Litman Yeah. So I definitely think that is part of it. You know, I wanted the book to be readable, not just by lawyers or law students, but by people who are interested in knowing more about the court, who are concerned about where the court is going, but might not have legal training and might be nervous about whether they are equipped to kind of pinpoint what has gone wrong. But part of is also, I mean, earlier in the conversation, I forget whether it was you or Kate remarked that things have gotten a little bleak or that sounded bleak when I was just describing the basic argument in the book. And so part of it was just to make this enraging story more manageable to kind of get us through it.

 

Melissa Murray It’s like when you get give Stevie a pill, but you wrap it in cheese. This is the cheese.

 

Leah Litman Exactly. This is the cheese and peanut butter of Supreme Court commentary and cheesecake. I also give her medicine in creme brulee. I’m not sure I would liken my book to creme-brulee because that’s calling to mind like my best friend’s wedding and like Jell-O creme Brulee, I’m not sure what the right option is. But part of the pop culture references are also, I mean, we talked about this last episode and we’ve talked about it before, but I’m kind of of of you that like politics and protests. And whatnot should be fun and people should enjoy themselves in the process and I think any effort to kind of change the court is going to be a long-haul political movement and if you just make it dire, bleak, serious and dense it’s unsustainable and so to give people a way of participating in that process where they can have a little bit of fun and it not being all taxing. And then, I guess, another reason is just to kind of cut these guys down to size. Well, speaking of dire, bleak, dense, which justice does that remind you of? You know, I feel like I’ve named him so many times. I just don’t want to utter his name again, lest it be like the Candyman or something.

 

Kate Shaw Sam Alito bursting through your wall is a very scary

 

Leah Litman Exactly, exactly. I’m going to DC this week. I am scared, I’m scared.

 

Kate Shaw You might see him?

 

Leah Litman Right.

 

Kate Shaw Well, I both do and don’t hope that that happens. I’m not sure what to root for here. I think it might be epic. But more immediately, everyone should buy and read this book. And you sort of alluded to this a minute ago, but can you just say a little bit more about both what you hope readers will get from the book and what plan of action the book points readers toward because you don’t just want them to read, you want it to stay with them. How? What do you want them to take?

 

Leah Litman Yeah, so what to get from it. One is the Supreme Court is not your friend and that this story is not just about the Roberts Court. It is a much longer story about the court’s role in our constitutional democracy. Second is to kind of show people the ways that the law has tracked, you know, the political movement that it emerged from and incorporated a lot of their talking points, whether in substance or just general approach to the law and interpretive methodology. I guess the other kind of substantive takeaway would just be, I don’t know, like the gross, weird nature of the underlying vibes that the law is now channeling, you know, this sense that all of these groups that are not part of the modern Republican Party are the aggressors against the white men, the religious and social conservatives, the corporate executives, the mega rich. We can mock the silly conspiracy theories of the right. I remember when Kellyanne Conway said on the news that Democrats wake up every day and get in their electric vehicles to go get abortions. That is not reality, but that is pretty darn close to the fringe conspiracy-esque worldview that has real purchase at the Supreme Court now and a real audience there. I mean These guys were screaming about how schools were showing kids BDSM and sex workers and encouraging kids to be gay and trans. As to Action Plan, Sam Alito has been in his fucking around era for a while. I personally think it is time for him to be in his finding out era. Not a threat, just a statement. I know I’ve been bringing up his name a lot, but that’s because one of my purposes in life, maybe why I was put on this earth, was to make sure people understand that Guys, shtick. And then action points or what to do with it. One is to try to figure out how to talk to people about the Supreme Court and make the court part of your political agenda or political action plan. And that’s not just at the federal level. That’s at the state and local level. So the conclusion talks about the change in the trajectory of some state supreme courts and how making changes at that level can sometimes happen more quickly. Than at the federal level. So yeah, you know, it is just to invest in this fight and figure out a sustainable way of doing so. And if that’s mocking them and reading them for filth, like that’s my personal way of contributing and other people might have others.

 

Kate Shaw It’s definitely your METEA, Leah.

 

Melissa Murray I think that’s a great place to leave it. Read them for filth and keep reading. That’s multi-hyphenate Leah Lippman telling us to get out there, buy this book, read this book and use it as a guide for scrutinizing this court strictly, if you will, and making sure that we hold them to account. So Leah, thank you so much for this snarky, wise, and brilliant must read books. The book is called Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. And it is out this week at all of your favorite outlets. May 13th is the day. Mark your calendar.

 

Leah Litman May 13th was supposed to be a lucky release date for the Swifty in me, with 13 being, you know, the kind of lucky number. And can I just say, like, three additional things?

 

Kate Shaw Yeah.

 

Okay. So one is to thank the two of you, Michael, Melody, Crooked, and all of our listeners for making the book possible. I just don’t think there is like a world in which a publishing house would have been interested in having me write this snarky, irreverent, I don’t know, rant on the Supreme Court, like without thinking like some people actually cared about what I might say. Second is I feel like I have been, I don t know, like self-conscious or self-deprecating and apologetic in previous episodes when trying to make a plug for the book and. That is just like in part like my inner midwesterner and the awfulness of the final stage of the book writing process being promotion and publication. But I want the book to do well. I want people to read it. And I just like have to be okay acknowledging that and like asking people to read it and buy it. I have goals that I want to book to reach. I feel like if three percent of our listeners bought the book this week. Those goals might be attainable. And part of those goals relate to the other books that are being released around the same time. So Bill Belichick has a non-fiction book that came out the week before. And I just note that Bill Belicheck’s favorite Taylor Swift song is, You Need to Calm Down. And I think anyone who has that as their favorite Taylor Swift’s song, like, do you really care what they? Say and their opinions. I don’t know. I feel like I’ve I’ve proved my my credentials a little bit more more than that.

 

Melissa Murray So is that his favorite song or is that or is that Jordan’s favorite song?

 

Leah Litman Well, so he identified that as his favorite song before he started down this wild age disparity relationship. Another reason made me don’t hate the player, hate the game. No, another reason maybe right to consider trying to give my book a boost. Like if Kareem Abdul Jabbar’s book is on a bestseller list and mine isn’t, I could live with that world. But like Bill Belichick and others, that would irritate me. So

 

Kate Shaw That’s that’s I was gonna say 3% seems like should be a bare minimum It should be lot more than that because if you’re listening to this podcast You will like this book like I am telling you the energy that Leah brings to the podcast is on display Only it goes deeper on lots of the topics that we cover on the podcast audience, they’re way more pop-culture. That’s true. And I learned a lot, as I always do on the podcast, but more from the book. And you too, if you are a little deficient in that arena, have a lot to learn from Leah and the book, I am.

 

Leah Litman And on wanting the book to do well, I’ve received enough therapy over the years to know not to pin my entire self-worth and success on external validation, such as bestseller That being said, a girl can have goals and unfortunately, there are a lot of celebrities and whatnot releasing books around them. Bill Belichick’s book is out the week before, Prabhakarang’s The Week of, same with Glennon Doyle. There’s a Mark Twain biography by Ron Chernow as well. Anyways, I’ve said before on or off the podcast that I will be fine if my current job, law professor at the University of Michigan, is the only job I ever have for the rest of my life. I am not desperately in search of gold stars everywhere, but there is a part of me, and I just want to acknowledge that I do want to prove, I don’t know to who, that I’ve built something because getting your ideas out does matter to academia, so being able to show that would mean a lot to me. I like the book I wrote. I had fun writing it and I want people to read it. So that is my emoting about what I want and overcoming my Midwestern discomfort with vocalizing that. One additional note on the like, if you listen to the podcast and you like it. So like one conversation I’ve had with people and like had throughout the book writing process is like. Well, like people aren’t gonna like this book if they like what the Supreme Court is doing and you’re not gonna reach like Sam Alito’s fans with the book. Right, okay, so like one, so two is like, I’m sorry that my cold hard facts about what Sam Alita has said paint him in an unfavorable light. Like as I have long said, the worst and meanest things you can say about these guys is merely to describe what they have said. And like the book has lots of footnotes and they have said these things and I stand by them.

 

Kate Shaw As you should.

 

Melissa Murray I can’t believe someone said that to you, like, do they even know you? Sam Alito’s friends won’t read this book. What is more surprising? That Sam Alitos friends won’t read the book or that Sam Alita has friends? Hard to say.

 

Leah Litman Unclear. I mean, friends, you know, in that people have a vested interest in ensuring he rules in ways that are favorable to them, and so are willing to offer him PJ fights to those kind of friends. I’m not sure.

 

Melissa Murray I mean, I bet he’s gonna hate read it. He’s gonna put it in a pink cover and write, Leah Litman is a fuck face.

 

Leah Litman SCOTUS Public Information Office, please put this book in his mailbox, and another note of encouragement to our listeners, make Sam Alito have a bad week, the worst week, by purchasing the book.

 

Melissa Murray Light it up, folks. Is that, well, can you light up a book? I guess you can’t.

 

Leah Litman I think so.

 

Melissa Murray No, okay, wrong, wrong.

 

Leah Litman Snort the book.

 

Melissa Murray Snort book, inject the book into your veins. Pound it down like ketamine and get a mortar and pestle and like grind it up and then snort it.

 

Leah Litman Put it in the back of your car and drop it off in Central Park. Like many different ways you can use books.

 

Melissa Murray So many ways you could take this book and just like enjoy it.

 

Leah Litman But don’t put it in a public school, because that would be ranked discrimination against Sam Alito.

 

Melissa Murray There’s a lot of sexual content. There’s a naked gavel on the cover. We don’t want that. It’s also written by a lady, so.

 

Kate Shaw Graphic, graphic, start to finish.

 

Leah Litman Yep, that’s true.

 

Melissa Murray Again, the book, which can be snorted, pounded, or just read, these are all available to you. It’s Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. And it is out this week at all of your favorite outlets. Buy a copy, buy three copies, give them to your friends, get up on this. This is the way to go. This is The Truth. Leah Litman, thank you.

 

Leah Litman Thank you again, both of you, both for letting me flog this book for the last few months and again, giving me the opportunity to write it.

 

Melissa Murray We were happy to do so. We didn’t have much of a choice, but you were going to do what you were gonna do. We were just like, we were spotters. We’re like, we’re here.

 

Kate Shaw Whatever you need, seriously.

 

Melissa Murray Whatever you need.

 

Leah Litman Just don’t embarrass us too much.

 

Melissa Murray Never

 

Leah Litman [AD]

 

Leah Litman And now to the article two slash article three watch. While this episode is focused primarily on books, we wanted to make sure you were up to speed on the goings on that we tend to cover. So let’s start with the bad news before we get to the good.

 

Kate Shaw And it starts very bad. So last week, the court’s Republican justices allowed the Trump administration to implement its ban on transgender military service members. This means that this appalling policy, which a district court judge in the district of DC, Judge Anna Reyes, enjoined, because she found it reeked of animus, it smeared trans people, it had no plausible basis in military readiness, et cetera. So this ban can now go into effect while litigation on the merits of the policy is proceeding. So again, Judge Reyes had enjoined the policy, gave lots of good and sound reasons for doing that, but the Supreme Court, in its infinite wisdom, stayed that decision, putting it on hold while the litigation is pending, and gave no reasons, zero, for this decision to completely upend the lives and careers of over a thousand individuals who have been bravely serving their country in the military. It is appalling.

 

Melissa Murray Maybe this is all part of the theme of this episode. We’ve been talking about books, but it seems clear that this administration and this court doesn’t read that many books. Certainly they didn’t read Judge Reyes’ underlying opinion here because the court offered zero in the way of explanation for why it decided to allow the administration to enforce this policy while its status, its constitutionality is being litigated. All to say, though, that this might be a very ominous sign for what the court will do. In the Skrmetti case that’s currently pending on its merit stock. That’s the case challenging Tennessee’s ban on gender-affirming care for minors. And many of the same arguments that the government made here in this trans bans case are also similar to the arguments that are being made in Skrmetti about the withdrawal of gender- affirming care for minas. And again, this could all be a sign that maybe this court isn’t particularly amenable to the prospect of gender affirming care triggering heightened review.

 

Leah Litman So that’s not necessarily the case that the court’s disposition of this one will resolve Skrmetti because there is this older case, Rostger, where the court upheld a policy excluding women from certain military positions and service. And even though those kinds of explicit sex restrictions and sex discrimination trigger heightened review, the court reasoned extra deference for the government was warranted in cases concerning military personnel and policy. So the fact that the Court allowed the military to implement this trans ban doesn’t necessarily resolve Skrmetti and the constitutionality of bans on gender-affirming care, but I’m going to go out on a limb and say, based on the argument and this, not expecting good things. I think this is all going to be about deference to the state in whatever posture it presents itself. Yes, a sad day and a concerning one.

 

Kate Shaw But we are not done because we have more bad news to share with you. Next up, Trump signed a, we think, clearly unlawful executive order, yet another one, this one cutting off funding to NPR and PBS. So this executive order specifically instructs the Corporation for Public Broadcasting to cease federal funding for NPR or PBS. You know the stations that make dangerous products like Sesame Street and PBS News Hour.

 

Leah Litman Snuffleupagus was my imaginary friend when I was a child. I hate this.

 

Kate Shaw It was so formative for our entire generation and many, many others. And so they hate it. It brought us joy. And they killed joy.

 

Melissa Murray And maybe that’s the point, Kate. I think that is the point. The order itself makes clear that the order is actually all about viewpoint discrimination. It says, quote, at the very least, Americans have the right to expect that if their tax dollars fund public broadcasting at all, they fund only fair, accurate, unbiased and nonpartisan news coverage, end quote. The Corporation for Public Broadcasting continues, fails to abide by these principles to the extent it subsidizes NPR and PBS. Which viewpoints NPR and PBS promotes does not matter. What does matter is that neither entity presents a fair, accurate, or unbiased portrayal of current events to tax paying citizens.” End quote.

 

Leah Litman I like how they tried to insert by the way, this is legal phrase into the executive order. It’s like.

 

Kate Shaw The lawyers got to touch this one, not all of them, but this one some lawyer got in the room. Nice job.

 

Leah Litman Yeah, like this isn’t illegal viewpoint discrimination t-shirt is raising some questions that are already answered by my this isn’t illegal viewpoint discrimination t shirt. And then the White House seemed to confirm the order is indeed all about illegal viewpoint discrimination because in a social media post announcing the signing of this order, it said the outlets quote receive millions from taxpayers to spread radical woke propaganda, end quote.

 

Melissa Murray Elmo has decided to enter the chat. Elmo, listeners, if you aren’t aware, is a baby Muppet. He’s red and fuzzy, and he regularly appears on Sesame Street. And he posted a post on his LinkedIn indicating that he is now available for new opportunities. So here is what Elmo had to say.

 

Melissa Elmo Imitation Elmo is looking for his next opportunity. Elmo is good at so many things, like hugs. Elmo loves giving hugs. Elmo can also recognize the letter E, spell his name, feel empathy, sing Elmo’s song, and ask how you are doing.

 

Melissa Murray Elmo, I’m just gonna say, seems way overqualified for a job in the Trump administration. Moving forward.

 

Leah Litman I want to read the beginning of almost LinkedIn posts because that was also epic.

 

Melissa Murray Okay. I’ll go back. Okay.

 

Leah Litman Okay. Okay, you want to do this? Okay.

 

Melissa Elmo Imitation Okay. Hi, LinkedIn. Unfortunately, Elmo was recently laid off because of the federal budget cuts. Elmo worked at Sesame Street for 45 years. Elmo is sad. Elmo loved his time at Sesame Street. Elmo was going to miss his friends Big Bird, Cookie Monster, Ernie, Bert, Abby, Grover, Count, and so many more. They made Elmo’s day so much better.

 

Leah Litman I mean, how can you not be moved to tears by that LinkedIn post? It was, it gave me the feels.

 

Melissa Elmo Imitation Well, it closed with, and one more thing, Elmo loves you.

 

Leah Litman Exactly.

 

Melissa Murray Which I loved.

 

Kate Shaw It does make you. It gives me some confidence that the Sesame Street is not going to go down without a fight and that it understands this moment and how to leverage the very valuable resources it has like Elmo. So I think they’re definitely going to bring the fight to this.

 

Melissa Murray He’s looking for his next opportunity.

 

Leah Litman Elmo’s gonna fight, Elmo’s gonna fight.

 

Kate Shaw Taking on the Trump administration.

 

Leah Litman Yeah.

 

Melissa Murray I love it.

 

Kate Shaw My money is on him.

 

Leah Litman So other bad news, Donald Trump fired the first black Librarian of Congress, Dr. Carla Hayden. The reason it’s because she’s black or as White House Press Secretary Caroline Leavitt put it, it was because of the quote, quite concerning things that she had done at the Library of Congress in the pursuit of DEI.

 

Slash being Black.

 

Melissa Murray Like showing up for work?

 

Leah Litman Right. Exactly.

 

Melissa Murray While Black. Like doing her Black job.

 

Kate Shaw Yep, yep. Yeah. So Levitt did elaborate. She said Dr. Hayden, who by the way is amazing, but Dr. Hayden was quote, putting inappropriate books in the library for children. Hmm. So my understanding, you two correct me if I’m wrong, but my understanding is the Library of Congress receives a copy of every book published in America, that’s a thing that happens. So I’m sure they’re in that mix are some books that Trump administration deems inappropriate. But that’s not because Hayden has chosen them. It’s because they’re all automatically part of the Library of Congress. The other problem with that Levitt representation is that I also understand the Library of Congress actually isn’t open to children. Like kids don’t get to visit the Library Of Congress. There isn’t like a children’s reading room like in other libraries. So I think she… Pretty clearly just made that up. And God, I wish someone would press her on these claims at the podium, but it’s just not happening.

 

Leah Litman Yeah, I’m not even sure the Library of Congress lends books to adults and children. So this is just completely made up.

 

Kate Shaw Another piece of news we wanted to flag, which is not bad news in the same spirit as the news we just walked through, but it is really sad news, and that is that retired Justice David Souter passed away last week at the age of 85. The court’s statement indicated that he passed peacefully in his beloved New Hampshire home. Justice Souter, who my clerkship class called three-piece for his invariably dapper attire, was truly a gem of a human being. And he was also a beloved friend and confidant of Justice Stevens, for whom I clerked. But just as a jurist, he was independent, he was thoughtful, he will be so missed. May his memory be a blessing.

 

Leah Litman Yes, and with everything going on, we are hoping to do a longer segment over the summer about Justice Souter. So put a pin in that for the time being. Transitioning to bad-ish news, or maybe could have been much worse news. So immigrant rights advocates asked a federal judge in Boston to halt what were reportedly imminent deportation flights that were set to take to Libya the nationals of other countries. So the motion noted that. Quote, Libya has a long record of extreme human rights violations, end quote. And the papers allege there is human trafficking happening in the prisons where these men were supposedly going to be taken. And NBC News confirmed that the administration was indeed supposedly going to send men from Vietnam, Laos, the Philippines, and Mexico to Libya.

 

Kate Shaw So in this case, the district court quickly ruled that the temporary restraining order that was already in place, which barred removals to third countries, that is countries other than countries of origin that had been designated as destinations in removal proceedings, already prohibited the government from effectuating these removals without conducting considerable additional process that is beyond just like Stephen Miller riffing before a camera. So, thankfully, these men were quite possibly saved by the swift action of litigators and the judge in this case.

 

Leah Litman And here, it felt like worth noting some remarks that Justice Sotomayor made at an American Bar Association event, where she spoke about the rule of law, the legal profession. And what she said is, quote, if you’re not used to fighting and losing battles, then don’t become a lawyer. Our job is to stand up for people who can’t do it themselves. Right now, we can’t lose the battles we are facing, end quote. And I just really liked this because so often… I hear the question, well, everything is so bleak. It’s so despondent. What can we possibly do? There’s no hope of winning this case in court. And I just really appreciated hearing this sentiment.

 

Melissa Murray It’s an important sentiment right now, but there’s other news that we also have to get in here. I would put this in the category of TBD. The Trump administration recently took a position in the Mifepristone litigation. So this is the case that is currently pending before Judge Matthew Kacsmaryk. The lawsuit challenges the availability of one of the drugs in the current protocol for medication abortions, Mifepristone. Originally, the case was brought by anti-abortion doctors and dentists. And listeners as you know. Last term, just months before the presidential election, the court dismissed the case on the ground that those anti-abortion physicians and dentists lacked scanning.

 

Kate Shaw But quickly, a group of Republican-led states intervened, asking to become plaintiffs in the case, and asserting that they have standing, even though these doctors and dentists and organizations do not, on the theory which we discussed a few weeks ago with Emily Amick, that the availability of Mifepristone lowers teen birth rates, which injures the state seeking to intervene as plaintiffs. Literally, they are arguing that they, the states, have been harmed. Because, quote, the loss of fetal life and potential births reduces the potential population of each state. They are making some other arguments about if they have to expend resources when these complications arise from ifopristone. Those arguments are related to the arguments that the court rejected last year, but the new arguments are so scary.

 

Melissa Murray They’re not just scary, they’re also dumb and inconsistent, because for years, the states ratcheted up their statutory rape enforcement on the view that teenage births tax the states too much because many of those individuals who went on to have babies while teenagers would then become dependent on public assistance. So this is just absolutely inconsistent, but whatever. Anyway, we were all sitting here waiting, wondering, what would the Trump administration do in this case? Would they try to concede that Mifepristone was wrongfully approved and not defend its availability? Would they concede the Biden administration’s loosening of those regulations regarding the availability of Mifepristone had been wrong? Given the many different litigation positions that the administration could have taken, none of this was out of the question. But the government recently filed its briefs, and in those briefs it asked the court to dismiss the case on the ground that, wait for it. The states lack standing.

 

Leah Litman Stopped clocks, stopped clocks.

 

Kate Shaw They definitely do lack standing. And so because the administration in its filings conceded this clearly correct fact, some people have described this as a win. And I think we are going to strike a more cautious note for a couple of reasons. So one is that trying to get courts to throw out Mifepristone, in particular in the wake of last term’s 9-0 ruling in the Alliance for Hippocratic Medicine case that was just talking about. Is just a very, very long shot proposition. It is very unclear that the Supreme Court would say these plaintiffs, the states, have standing after what they said last term. So it seems really possible that the Trump administration is just saving its fire here, not pursuing a doomed legal argument, but instead is going to try to kill medication abortion in a way they think is more likely to succeed. And that could be just inside the executive branch, right, having the FDA make the rather than seeking to have a court say that the FDA was wrong either, initially in its approval of the drug or in its subsequent relaxing of regulations on its use.

 

Leah Litman And the second reason why we’re still nervous is because, tipping the hand that that might be in the works, is a big conservative organization, the Ethics and Public Policy Center, released a report that they are saying and that other conservatives are saying proves that medication abortion isn’t safe and that might pave the way for an FDA reversal on medication abortion. Side note, the report doesn’t remotely show what they are seeing it does. They treat people who go to emergency rooms as adverse events. Even if the people receive no treatment and even if the emergency room visit isn’t because of complications. So that’s what.

 

Melissa Murray The report draws from. This report, we should note, is not peer-reviewed, nor does it subscribe to any of the kinds of protocols that we typically expect of scientific reports. And to that point, Dr. Christina Francis, who is the CEO of the American Association of Pro-Life OBGYNs and a member of the coalition of conservative doctors that challenge the FDA’s approval of Mifepristone, concedes that the new report is, quote, not a study in the traditional sense and not conclusive proof of anything, end quote. You might wonder then, why is the study coming out now and why is it getting so much play from the anti-abortion movement? Well, as Jessica Valenti reports in her sub stack, Abortion Every Day, both FDA chief, Marty Makery and Secretary Rawmilk have indicated that they would be open to changing the administration’s posture on Mifepristone if there was new evidence relating to its efficacy and safety.

 

Kate Shaw And lo and behold, there is some pseudo-evidence just in time. So finally, now we have actually some good news. First, a federal judge and actually a conservative Trump appointee on the North Carolina District Court has rejected losing candidate for North Carolina Supreme Court Jefferson Griffin’s efforts to throw out thousands of votes and overturn the results of the state Supreme Court election that Justice Ellison Riggs won, full stop. So, this federal judge, Judge Myers… Ordered the NC Board of Elections to certify Riggs as the winner of the election for the NC Supreme Court, which was held last November and should have been over back then.

 

Melissa Murray Judge Myers wrote as follows, quote, this case concerns whether the federal constitution permits a state to alter the rules of an election after the fact and apply those changes retroactively to only a select group of voters, and in so doing, treat those voters differently than other similarly situated individuals. This case is also about whether a state may redefine its class of eligible voters but offer no process to those who may have been misclassified as ineligible. To this court, the answer to each of those questions is no. In even better news, Jefferson Griffin, insert twirling mustache here, conceded after the decision and abandoned his embarrassing and wildly undemocratic quest to overturn the results of a duly conducted election through the courts. Good for you, sir.

 

Leah Litman Finally, so the next bit we’re covering is kind of only good news given the circumstances. But the US Court of Appeals for the Second Circuit, a mere one day after oral arguments in the case, ordered the government to transfer Rumeysa Ozturk to Vermont no later than May. And then the district court in Vermont ordered Öztürk  released. And she has been released.

 

Kate Shaw So, Öztürk, just for listeners who don’t recall, is the Tufts student who has been in immigration detention for, I think, approaching two months now because the only reason the government has even pointed to, because of an op-ed she wrote. Literally. That’s why. Yeah, there are two other authors. She was one of three, I thing, authors on an op ed. That is why she has been for weeks and weeks in immigration tension. She was snatched off the streets in a kidnapping that was captured on video, masked armed, unidentified officers grabbed her in broad daylight, which really raises the question masks okay for some purposes, not others. But that is Rumeysa Öztürk, and she is now finally released.

 

Melissa Murray Masks are bad for protests, good for kidnapping. Anyway, the government, after they apprehended Öztürk on the streets of her college town, subsequently shipped her off to Louisiana, and she was in immigration detention there. This is how the Second Circuit described the case. I think this is really important to note. The Second Circuit said, quote, six heavily armed plainclothes officers, some masked, arrested Öztürk’s without warning on the street near her residence and drove her away in an unmarked vehicle crossing state lines. Öztürk  was not afforded an opportunity to speak with counsel or to tell anyone where she was until after her arrival in Louisiana, almost 24 hours after her arrest. Counsel’s efforts to determine where she was detained in the hours after her arrest were unsuccessful.”

 

Leah Litman That describes a kidnapping that was carried out in the most terrifying fashion to terrorize people, to frighten them, to scare them away from engaging in.

 

Kate Shaw Yeah, and I mean, the government’s conduct, both the snatching and the rest of it, what it did after it picked her up, is really just stunning. It’s described in these very, you know, methodical and dispassionate terms in the Second Circuit opinion, but it is so chilling. So they quickly move her from Massachusetts to New Hampshire to Vermont to Louisiana and then just sort of say, oh, you filed the habeas petition in the wrong district. They concede they intentionally did not let her get in touch with counsel or inform council of where she was so they could then turn around. To contest whether the petition was filed in the correct district. And we know about this with OzTurk, but I am sure they are doing this with everyone. And thankfully, kind of harkening back to the earlier discussion of how critical it is right now that lawyers and judges act quickly, she did get a petition filed in Massachusetts that night. The district judge transferred the petition to Vermont, which by operation of law means it is considered filed in Vermont where she was at the time. And so the petition was properly filed. But I mean, any delay of even a couple of hours, I think would have really changed the legal calculus in this case, and the government is doing it on purpose. And it didn’t work here, but there’s no guarantee it won’t work better in another case.

 

Melissa Murray I don’t disagree with anything you said, but I will say I don t think this was the Second Circuit being methodical or dispassionate. I think this is meant to be like, what the fuck happened here? And I don’ t think I’ve ever watched them or read them recite the facts of a case and made it sound so harrowing. And because it was harrow. I think it’s just the facts speak for themselves. Yeah, I think race is the lockwater.

 

Leah Litman So because we are in not just a terrifying timeline, but also a dumb one, we did have an additional category of news that we’re just calling the weird.

 

Melissa Murray Secretary of Education Linda McMahon issued something that we will, for this purpose, term a letter to Harvard University. This rambling missive declares the university ineligible for all grants. So Harvard effectively cannot gain any federal funding going forward.

 

Kate Shaw And I like Melissa saying “we’ll call it a letter” because like it does begin with a salutation like end with a sign off.

 

Melissa Murray Dear sir.

 

Kate Shaw But nothing else about it is recognizably a letter. It is an insane document. Anyway, the reason that they are giving in this quote unquote letter, essentially declaring Harvard ineligible for all grants, you know, they’ve essentially given up on the pretense that this was ever about anti-Semitism and have made clear it is just about ideology, full stop.

 

Leah Litman So among the meandering conservative Mad Libs that the letter puts together is the following. It notes that the Harvard Corporation is run by a strongly left leaning Obama political appointee, Penny Pritzker, a democratic operative.

 

Kate Shaw It says quote, our universities should be bastions of merit. They should not be incubators of discrimination that encourage resentment and instill grievance and racism into our wonderful young Americans. They also say quote, Harvard hired failed mayors, Bill de Blasio and Lori Lightfoot.

 

Leah Litman Also poses a question, quote, where do many of these, quote, students come from? And why is there so much hate with hate in all caps?

 

Melissa Murray There’s a lot of all caps action in this letter.

 

Leah Litman Oh yeah. Because here’s how it concludes, quote, given these and other concerning allegations, this letter is to inform you that Harvard should no longer Grants all caps from the federal government. It literally reads like an angry email or an angry letter you would get in the snail mail from like a mini Unabomber. Like that’s how it read to me.

 

Melissa Murray So. I, in my youth, used to watch some World Wrestling Federation, that’s when it was called the World Wrestling Federation, which is the outfit that Linda McMahon and her husband, I don’t even know if it was still her husband. Vince McMahon used to own and organize. And this quote unquote letter, when read in full, really just reads like the way they talked on You don’t That’s fair. Like, in this corner, Hulk Hogan, why is everyone so unpatriotic? I mean, it’s like that kind of thing. That’s what it reminded me of. I’m not going to lie. I was like, oh, this is very, very much on brand. But again, because it is on brand, doesn’t necessarily make it a letter. So I think we have to be very careful about how we characterize it. Yeah. Anyway, we also got some more weird late entries into our unitary executive watch. So In one, real world slash road rules, the challenge alumnus and lumberjack, Sean Duffy, also known as our new Secretary of Transportation, the person who oversees planes falling from the sky and Newark Airport being an absolute fucking disarray, complained to Fox News that Secretary of Defense, Pete Hegseth, won’t call him back. You can hear the clip right here.

 

CLIP I’m hoping that we’re going to get the answers, but I’m going to congratulate my sister. So you still don’t know who was on that flight. I don’t why the Pentagon hasn’t gotten back to you on this yet, but we hope they sure do soon. So do I.

 

Leah Litman Should have signaled him, Sean.

 

Melissa Murray I have some ideas.

 

Leah Litman Yeah, maybe he’ll accidentally add you to his national security chat, and then you’ll be able to get a hold of him. So Duffy is trying to get in touch with Hegseth because another Pentagon helicopter was spotted on the same flight path that led to the deadly airline crash over Washington airport, resulting in mass fatalities. Apparently, that is happening again, and Duffy can’t get the Secretary of Defense on the phone to figure it out. Which is weird because all of these guys, as we know, are a single singular entity, the executive, as the unitary executive theory likes to insist.

 

Kate Shaw Good times. All right.

 

Melissa Murray No. Actually terrible times.

 

Kate Shaw I mean Newark and DCA are, do not feel like safe places right now.

 

Leah Litman No, and they’re like the busiest airports in the country.

 

Leah Litman Going there twice in the next few weeks.

 

Kate Shaw Oh gosh, okay, sorry Leah, it’s gonna be fine, it’ll be great. Okay, so that insane display by Duffy was not the only performance of the anti-unitary executive theory that we got in the past week. There was also this moment in the Oval Office.

 

CLIP Is your administration sending migrants to Libya? Ugh, I don’t know, you’ll have to ask Homeland Security, please.

 

Kate Shaw So unitary, you won’t believe it. So unitary he doesn’t even know what Homeland Security is doing and maybe even isn’t ordering it, but everyone is, the Supreme Court has told us, executing his will and is an extension of him. Okay guys.

 

Melissa Murray This is where the unitary executive really falls down.

 

Leah Litman Soon we’re going to hear that the unitary executive theory requires a third term for President Trump to keep it unitary after all, and it’s just a crank theory. It’s ridiculous.

 

Melissa Murray Last but never, ever least, we have some updates in the USA Dick Watch. That’s U.S. Attorney for the District of Columbia Watch, for those who are untutored. As many of you likely know by now, our boy, Ed Martin, the former interim U. S. Attorney, for the District, of the District of Columbia is no longer in that position because his nomination. To become the actual U.S. Attorney for the District of the District of Columbia was withdrawn after at least one Republican Senator here, Tom Tillis, announced his opposition to Martin’s nomination. As Beyonce says, boy, bye. However, if you thought that this turn of events would result in the injection of sanity in the U.S. Attorney’s Office for the District of the District, Columbia, you listeners would be profoundly disappointed because guess who the president has announced as his interim slash acting USA dick? That’s right, listeners. The president has appointed Fox News personality Judge Jeanine Pirro as… The interim USA Dick. And I just want to say, this is, I think, the second major post for a Fox News personality. And I think in this moment, it is worth just laying out here that when the NBA is doing draft, they don’t actually pull from ESPN. They just go to real athletes. They don’t pull people off the bench at Sports Center.

 

Kate Shaw Why things are going so super well with this administration because that’s what they’re pulling from and I think it’s actually a lot I think there’s it’s too obviously a cabinet secretary and now this new interim U.S. Attorney but I think they’re a bunch of other Fox adjacent

 

Melissa Murray But these are the most high profile. For sure. I mean, like, yeah. Like when you’re going to replace Michael Jordan, you don’t pull in Steven A. Smith. Like you just don’t.

 

Kate Shaw So I’m going to spare everyone his truth social post, but he basically says that he is announcing that Judge Jeanine will be appointed interim United States attorney for the District of Columbia. I will say I have not had a chance to delve into this, but I do think there are some questions about whether the president even lawfully can appoint a successor interim like this that perhaps we’ll return to on a later episode. But for now, at least they’re going full steam ahead with Judge Janine.

 

Leah Litman And so as our next USA Dick, we have some fillers soaked in Chardonnay or just some Franzia fillers. I don’t know what is an insult.

 

Melissa Murray That is an insult to Franzia.

 

Leah Litman Sorry.

 

Melissa Murray That’s an insult to Franzia. If you thought that this episode meant that some of the Republicans on the Hill are actually growing a spine and standing up to this administration, well, Senator Tom Tillis, that was the guy that said he would not vote for USA Dick Ed Martin, has also stepped in again, this time to announce his enthusiasm for Judge Jeanine Pirro as interim USA Dick.

 

Leah Litman So I know some of my nicknames trigger some people, but I did want to spend a little bit of time wondering if we need a new term rather than USA dick. Maybe out with USA dick, in with USA defuck, which is how you say USA dick after a few boxes of Chardonnay. Some other nickn names, which hope won’t offend the delicate sensibilities of people who don’t care for some of our nicknames. Um, box wine barbie. D-u-i-d-c-u s attorney inebriated d-w-i that would be d-c u s attorney under the influence get it like also DW letter WI. Throwing out there. These are good starts. We can continue. We will, I think, have an end to this week. It’s been a rhyme, so I’m not sure I’m at my best right now.

 

Melissa Murray I’m just so excited about Cecily Strong’s return to SNL. Oh my gosh, me too. She’s gonna be fantastic. Oh, me, too.

 

Kate Shaw Yeah, that’s the silver lining here. There’s something good in this timeline.

 

Melissa Murray I know this episode is running really, really long, but I do wanna just like briefly note, I had some favorite things this week. This was a great and stellar week as many individuals who had been watching the conclave know, we got a new pope this week, so there was white smoke at the Vatican and in the wake of that white smoke, we got to black pope. Now wait and hold on for a minute. People are wondering, what are you talking about, Melissa? I know the Pope is American. I know he’s from Chicago. He is also an individual who is of Creole descent. And according to genealogy reports that have been done by amateur genealogists, to be fair, apparently his, I think, great, great grandfather is a person of color, according to censuses.

 

Kate Shaw I think one great I think he’s got one great.

 

Melissa Murray One great. I’m sorry, you’re right. One great one, which makes the new pope apparently one eighth black, which means he’s like the Homer Plessy of popes. And I think this is a kind of amazing moment. I am not just the first American pope, but a pope who embodies a uniquely kind of American phenomenon of, you know, mixed race ancestry, like, which a lot of Americans have and may not even recognize, and I also think this is an amazing part of what I’m now calling May as Black History Month do over because we’ve gotten this new mixed race Black Pope. We have Sinners. There was the Met Gala with the theme Superfine tailoring Black style. There have been a number of amazing art exhibits featuring Black artists in New York City like Amy Sherald at the Whitney. We got the Cowboy Carter tour. Mara Brock Akil has remade Judy Bloom’s 50-year-old book Forever into a fantastic new Netflix series. I’m here for all of this black culture. This is so much better, especially since February sucked so hard. This is the best black history month ever. And it’s 31 fucking days. I love it. Thank you for letting me have that moment.

 

Kate Shaw Always.

 

Melissa Murray So that’s all the news. It was a lot. We got through a lot of it. But we’ve decided that Leah is going to do double duty in this episode. So not only was she in the hot seat getting interviewed by us, we are now going to turn the tables, and she is going to be the host and do a great interview with friend of the Crooked Network, Amanda Litman, who is here to talk about her new book. That’s up next.

 

Leah Litman [AD]

 

Leah Litman For this portion of the episode, I am delighted to be joined by Amanda Litman, co-founder of Run for Something and the author of the new book, When We’re In Charge, out May 13th with Crooked Media Reads, a Zando imprint. The full subtitle is When We Are In Charge: The Next Generation’s Guide to Leadership. Welcome to Strict Scrutiny, Amanda.

 

Amanda Litman Thanks, Leah. I am so excited. It felt like May 13th is like Litman Book Day.

 

Leah Litman It is. It’s a Crooked-Litman book day, hence the occasion for this double book episode. So before we get into the guidance that the book offers, maybe we can talk about scope. That is, who the book is directed to, or who, in your view, the advice or guidance is going to be most relevant to.

 

Amanda Litman Yeah, so the book is really written for Millennials and Gen Z, not exclusively, but intended to be for us. I was born in 1990 and 35 and like right and peak millennial, in part because so many leadership books treat Millennials in Gen Z as nuisances to manage around as like the young ins to deal with, as opposed to leaders in our own right. So while I think anyone of any age can get something out of it and might feel seen by it. It’s meant for me, my peers, and the people who I think are coming up through the ranks to really take power in the next couple years.

 

Leah Litman Wonderful. I love a book that is designed for me. So the book is divided into three parts, part one all about you, part two about your team, part three back to you. And the book based in part on your experience, co-founding and running Run for Something. So can you share maybe a few things, one or two things you wish you had known from the book before you did that?

 

Amanda Litman Uh, it’s the book I wish I had eight years ago when I started Run for Something, um, you know, I really wanted to build an organization that did it differently and that thought about doing work that was meaningful and hard, but also in a way that was felt sustainable. So a couple of things, and I write about this in various chapters, you know, Run for Something has a four day work week that allows us to do this work week over week, year over year. You know, we work on local elections every week is election week for us. The only way that’s possible is when you take a chance to really breathe at the end of the week. Four-day work weeks are hard, they’re also worth it. So I write about how to think about implementing it, how to do the onboarding to it, how to rethink about your schedule, how it’s possible in more places than you might think. But had I known that eight years ago, we probably would have started it much sooner.

 

Leah Litman I wanted to start, I guess, just chronologically working our way through the book. The first chapter, which is about how to be yourself but responsibly, really resonated with me. It’s something I thought about as an academic and a podcaster. So I wanted highlight some of what you say in the chapter to talk about. So your general guidance is it’s about striking a balance. And your organizing principle in how you pick what to do and how to be is about to accomplish. So you write, quote, we want to be real people without putting too much of ourselves out there for our teams to have to manage around. We aspire to strike a balance somewhere between the two ends of the boomer spectrum, end quote. So what are the ends of a boomer’s spectrum, and how do you strike that balance?

 

Amanda Litman Um, I always felt the need to caveat, like, obviously not all boomers, not all millennials, not our Gen Z, every generation is not a monolith. And when I describe like the boomer boss and how they present themselves, it’s supposed to have two different models that you might come to. One is the beep-bop robot boss who has no humanity, no, uh, personality beyond like, I am here to get things done, to do the job. Um, you are a worker bee. You do this and like. Very, very strict boundaries, which I think are good, but to the point where you don’t have the space to be a real person and don’t the chance to show your humanity. And that doesn’t allow for people to be full people, which I thing is really important. The other end of the spectrum is like the boomer that overshares everything, that tells you about their stepdaughters, IBS, that has very strong opinions about all the different personal things going on in their life, that tells about their mental breakdowns, lets you in way too much and makes their problems your problems. We think about like the boomer who over shares in Facebook posts, everyone knows that person in their life. That’s also not good leadership. What our job is to be is to strike the middle balance and to do it in a way that makes our team feel like they can be themselves without having to be their full selves. Cause I think that is a boundary that has gotten a little porous over the last couple of years and we need to resurrect.

 

Leah Litman Yeah, so part of the reason why I really like that is I am an academic, but I am different in a lot of ways than some academics. Some of my hobbies are like Taylor Swift, or walking my dog, or watching reality television. And those are aspects of myself that I want to share as an academic with my students and with the broader public so that they see different ways of being an academic and also because that is my authentic self. On the other hand, I recognize that there are certain professional norms of academia. And so I cannot be my full self with respect to all of those things, whether in the classroom or in public commentary or whatnot. So I really like that framework about authenticity, but knowing the limitations and boundaries of it.

 

Amanda Litman So I think sometimes people use authenticity as an excuse for being an asshole and like it’s, it’s not actually tact is good and like being respectful and polite is good. And also like not oversharing is good, especially when you’re in charge of other people, whether you’re as a teacher or a leader or a boss, like you got to know where the boundaries are and you’ve got to hold them.

 

Leah Litman So another interesting point you make about authenticity in particular is to encourage people to ask themselves who they are, but to know that there are leadership roles and personal roles and that you can have different roles in those two settings and both can still be authentic. So this is one of the passages where I felt most seen is when you write, quote, when I’ve got my leadership persona on, I am a professional extrovert. Outside of my leadership role, I’m way more of an introvert. So could you elaborate a bit on that and what you can get from recognizing that about yourself in those settings?

 

Amanda Litman You know, my whole job is to talk to people all day long. I talk to funders, I talk reporters, I talk candidates, I talked to my staff. I work rooms, I speak in front of big groups of people and I find it fun and it’s interesting and enjoyable. In my personal life, I like spending time at home. I like my husband, I liked my kids. I am not like a social butterfly. I don’t like big parties. I don’ like going out. I’m like not really that social. And I often think like it surprises people when I say like, no, I’m. I’m quiet, I’m like not a big people person. I perform one for my job, but I’m not. And understanding that distinction and knowing that both are me, it’s just one is a professional me and one is personal me and that doesn’t make one fake or real, they’re just different versions of me, has also helped me think about like how to spend my time coming down from the energy exhaustion that is a full extroverted job and like not to feel bad. About saying no to the party or not wanting to do the cocktail party after the conference after all day like networking, because that’s not going to be my best self anyway.

 

Leah Litman I am with you completely. I feel like many different parts of my job are being a professional extrovert, standing up in front of a classroom, working with students, doing a podcast, doing public commentary. And I like doing all of those things. But at the end of the day, I am still deeply an introvert. And so after a several hour long podcast show, I feel bad when sometimes I will meet listeners after. And I am so drained from doing that, which I love doing. I feel like I am not performing the extravert that, in a lot of ways, people expect me to be. But anyways, that particular passage and guidance just really resonated with me. So you interviewed a bunch of amazing people for the book. Could you share with our listeners some highlights from those?

 

Amanda Litman So I put out a call early on to talk to millennials and Gen Z leaders from all different kinds of sectors and all different different kinds of leaders really together, like, what was their leadership style like? What were the challenges they were facing? And I was so surprised how across the different conversations, I heard echoes of the same themes. So I talked to the rabbi in Wisconsin, who was a mom of two, a breast cancer survivor, who took over from a 80-something-year-old-former-rabbi. Who retired and he had done all of his work over Dictaphone and had never taken a day off and like really prided himself on that. And the rabbi I spoke with was like, I have like two kids in elementary school. That is not realistic for me. And also I don’t think that makes me better at serving my community in this way. And I talked to a lawyer in Chicago who was describing the networking challenges that she was experiencing. And she told me how her biggest professional network was actually a Facebook group, Esquire Moms, where she had found the most community. And she said it reminded her of the Reddit subreddits where she met people with similar due dates when she was pregnant and had built really strong mom relationships. And I feel that in the mom community in Brooklyn too, you know, these little subgroups. And she’s said that that space was… Unimaginable for the older partners at her firm to understand that that’s how she was building professional relationships in the same way that it was unimaginably for her to like go golfing on a Saturday morning um in part because again she had to spend time with her family. I loved talking to so many of these especially younger leaders who would describe the challenges of like how to decide what emojis to use in Slack and like what are the A tech VC guy, an executive, told me about one of his former bosses who, when they, unfortunately, had to do a bunch of layoffs at their company, got into the deep political machinations of what emojis may be acceptable for people to use in reaction to the announcement and could they turn off emojis entirely as part of the communications process. And I was like, this isn’t a thing that might… My dad or my grandpa when they were executives would never have understood. It wouldn’t even have occurred to them to be part of that conversation.

 

Leah Litman You’ve kind of gestured at social media and other kinds of communication. One piece of guidance that I found really striking in the book was, in part two, you talk about how leaders need to create space for politics at work. And I found that striking because, obviously, that is going to pose some challenges. So I was hoping you could talk more about what you mean by that and what that would look in a successful organization.

 

Amanda Litman Yeah, I think the details here really matter, depending on where you are, what kind of workplace you run. But I think that range could be everything from giving people time off to volunteer and vote or protest, paid time off ideally, without punishment. I think it could look like really strong codes of conduct to facilitate honest conversation. I also think you gotta have really strong boundaries around what kind communication is acceptable. And I get into this a little bit. Much of running, especially remote work environments. Need to have the same ethos as moderating like an online community, like a Facebook group or a WhatsApp, in that you need to really know what kind of conversation is acceptable and what isn’t and quickly nip bad stuff in the bud and have consequences for it. Because that’s essentially what like a Slack office is. It’s an online Community. And when you think about it like that, actually thinking about team culture becomes a little bit more clear of how you operationalize it. But I think it is unrealistic to expect people to leave politics at the for a stab. Especially right now. I mean, like, you know, as you write about in Malice, which I thought was so, like well done, everything is political. We cannot pretend that things that like, we cannot pretend, you write it about the Supreme Court, but I think this is true in so many other ways. Everything is political, and to pretend it’s not divorces people from the mechanics they can use to fix it. So I think we got to create space for politics, but you got to do it thoughtfully. And you got do it in a way that leaves people feeling really psychologically safe.

 

Leah Litman So since you mentioned some of this is context specific, I was hoping maybe we could do something of a lightning round where I would get you to offer advice for particular workplaces, particular leaders and organizations. So take this as you will, right? It can be tongue in cheek or not. So I will start with, what is your leadership advice for Chief Justice John Roberts?

 

Amanda Litman Uggghhh.

 

Leah Litman He is working with a bunch of face-eating leopards, so that might pose unique challenges.

 

Amanda Litman Is they get new colleagues. Okay, okay, that one can work. That one can worked. You know, I think also the serious answer here is like, he’s got to really do some internal soul searching about his values. I’m not sure, you know, I write about this in the book, like you got to arm yourself. Know thyself. Know thy self and like arm yourself with your integrity. If you cannot look yourself in the eye, the criticism will get to you. I’m sure he can look himself in the eyes. So I hope the criticism gets to him.

 

Leah Litman I love it. How about this one isn’t going to be for a particular individual, but more for a group. How about leadership advice for the Democratic Party with a particular eye toward the courts?

 

Amanda Litman Uh, only winning is winning, but sometimes losing is also winning. Okay. So here, let me unpack that a little bit. You know, at the end of the day, you got to hit your goals. We got to achieve what you want to achieve. If you don’t hit your goal, you have failed. However, if you lay out the process as part of the goal setting, sometimes losing as also winning, so I think when we think about the courts. You know, it might be unrealistic of us to expect to expand the courts in the next two years or four years or even 10 years. But if we move the needle, if we make it a little bit more possible each year, if we think about court reform, and you write about this so well, of like how Joe Biden’s transformation on the Supreme Court is an example of this, that actually persuasion is possible, we might lose in those fights in the short term, but losing can get us closer to winning. And I think that… Understanding that as part of the process will help us rethink about the time horizon here and that it matters to fight even if we don’t come up, if we don’t win it immediately.

 

Leah Litman Exactly. OK, so last category of people that I’m going to ask for your advice for, and that is people who want to make change in the courts. What advice would you have for them, whether they want to start an organization or lead in their community or just play a role in this fight?

 

Amanda Litman All comms is strategic comms. I think people sometimes forget that the power of posting is real, that you get to tell your own story, that you can talk. From one poster, this is music to my ears. If you don’t tell the story, no one will. So thinking about the role that you can play simply in having conversations, simply in posting online. You get to create the space for the conversations you want to have, and especially among folks like who believe in reform here, or in the possibility of a better, more like less vibes-based court system. It would be good for us to set the terms of that conversation, and the way that happens is by being strategic in your communication, but like plentiful in it too.

 

Leah Litman I love it. Well, Amanda, thank you so much for taking the time to join us. Again, listeners, the book is When We’re In Charge, The Next Generation’s Guide to Leadership. And just a quick plug about the guidance and scope. So this past semester, I did an independent study with the Michigan Law Review. And part of the matters or topics we covered was about organizational management and project leadership. And I just felt like a lot of the material in this book will make for excellent reading material in future years when I teach the seminar. So even if, again, you are not running for office or in charge of a super big organization right now, I think there’s a lot in this that is helpful to developing those skills and just thinking about how to go about your professional life. So thank you for writing it, Amanda.

 

Amanda Litman Thank you for having me, Leah. I am so excited to go to talk about it and to be able to share your book too. It’s a great day for Litman’s writing books.

 

Leah Litman It is, it is.

 

Leah Litman Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And our intern is Jordan Thomas, who helpfully assisted with this episode. And thanks to our digital team, Ben Hethcote and Joe Matoski. 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 and your favorite podcast apps. You never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.