Pod Insights Strict Scrutiny SCOTUS Clears the Way for Trump’s Lawlessness About this episode In an emergency episode, Leah, Kate, and Melissa break down today’s radical decision in Trump v. CASA, Inc., which gives this administration carte blanche to pursue its heinous agenda by curbing the judiciary’s ability to issue nationwide injunctions.
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0:00 Leah Litman? Strict scrutiny is brought to you by Americans United for separation of church and state. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools, at the Supreme Court in a case we've discussed on the pod. If you're listening to us, you're seeing the writing on the wall.
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0:58 Speaker 01 Mr. Chief Justice, please support. It's an old joke, but when I argue, men argue against two beautiful ladies like this, they're going to have the last word.
1:10 Speaker 02 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."
1:40 Kate Shaw? Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw.
1:47 Leah Litman? I'm Alyssa Murray. And I'm Leah Litman. And fuck. So today's emergency episode is going to focus on the decision we got in the birthright citizenship case about whether lower courts get to enforce the Constitution, or whether instead Trump gets to violate the Constitution and federal laws unchecked, at least in some places, as a little treat. We'll briefly summarize the result in the challenge to the Voting Rights Act, which was no resolution, and quickly summarize the decision we got about LGBT reading materials in public schools and parents' rights to challenge what is taught in public schools by insisting their child have a right to opt out of instruction they object to. But we'll do a deeper dive on that case, as well as the other cases we got on Friday on our episode that will be out on Monday.
2:28 Melissa Murray? Well, let's just dive right in. Let's start with the bombshell ruling on the birthright citizenship issue where the question was not whether or not this 14th Amendment permits birthright citizenship, but rather whether district courts have the power to issue nationwide or universal injunctions, that is, to issue orders blocking the executive from violating Section 1 of the 14th Amendment by issuing an executive order that rescinds birthright citizenship for anyone and not just simply applying that to the parties who brought the lawsuit. Justice Amy Coney Barrett, whose summer season of being a cipher and allowing us all to wishcast our most fond hopes and dreams
3:09 Melissa Murray? onto her has officially ended that summer season. She's back to being a schoolmarm conservative. Writing for a 6 to 3 majority, Justice Barrett says that lower courts exceed their authority when they issue nationwide injunctions that apply to those beyond the individuals bringing the suit. So, thanks, Amy.
3:31 Kate Shaw? You guys are so much better at coining phrases than I am. Hot what? Hot schooled summer? Hot schoolmarm summer?
3:36 Melissa Murray? Hot schoolmarm summer.
3:37 Kate Shaw? I don't know. I don't know. It's something. But right, this kind of season of Amy the cipher is officially done. So-
3:44 Melissa Murray? Stoned bitch summer would be another thing that I would throw out.
3:47 Kate Shaw? Nothing hot at all.
3:48 Melissa Murray? Nope.
3:48 Kate Shaw? Other direction entirely.
3:49 Melissa Murray? Exactly.
3:50 Kate Shaw? I think that's probably right. Okay, so let's start just by summarizing. So the opinion, in my view at least, is simultaneously radical and kind of squirrely and disingenuous. I don't know. Maybe that's-
4:02 Melissa Murray? Or squirrely, do you mean like just genuinely nutty or evasive?
4:06 Kate Shaw? Both. Let's go with both. So first, it is clearly radical in that it upends the settled practice of the courts in recent years by removing a key tool, and really the key tool, to combat executive lawlessness, which is of particular import in the second Trump administration, which poses unique and wildly dangerous threats to rights. And it does so, right, removes this key tool in a case in which the executive branch has sought to do something wildly unconstitutional and birthright citizenship.
4:37 Kate Shaw? As well as unlawful under statutes passed by Congress. So the court has done this unsettling in this case involving wild and rampant lawlessness in a case in which the executive branch, the Trump administration, did not even ask the court to reverse the lower court injunctions on the merits because it is so obvious, I think honestly even to them, that this executive order is indefensible under the law. So it is an appalling result in this case, and it is wildly destructive to the rule of law and executive constraint more broadly.
5:11 Leah Litman? And here's some of the squirreliness. The decision also seeks to present itself as offering something more measured. So here's what the end of the opinion says, quote, "The government's applications to partially stay the preliminary injunctions are granted, but only to the extent that the injunctions are broader than necessary to provide complete relief to each plaintiff with standing to sue. The lower courts shall move expeditiously to ensure that with respect to each plaintiff, the injunctions comport with this rule and otherwise comply with principles of equity. The injunctions are also stayed to the extent that they prohibit executive agencies from developing and issuing public guidance about the executive's plans to implement the executive order," end quote.
5:48 Kate Shaw? Right, partially stay, granted only to the extent that, so hmm.
5:53 Leah Litman? P.S. Hurry up, lower courts, it's on you. Like, fuck off, girl.
5:57 Kate Shaw? Oh, my God, the contempt for lower courts woven throughout this opinion is really stunning. But so some of this language seems clearly designed to project something more limited or measured.
6:07 Leah Litman? Yeah.
6:08 Kate Shaw? But the opinion also says pretty clearly that federal courts do not have the power to issue nationwide or universal injunctions because, according to Barrett, "The Judiciary Act of 1789 endowed federal courts with jurisdiction over all suits in equity, and this statutory grant encompasses only the sorts of equitable remedies traditionally accorded by courts of equity at our country's inception."
6:30 Leah Litman? The whole history and tradition thing, I mean, it's so selective. So, yes, lower courts, you only get to do the things that you could do at the time the country was founded, but the president gets to do all the things that have accumulated over time, and you just can't stop him. Republican presidents can. Right, correct.
6:47 Melissa Murray? Like, that's the part, like, it's just so uneven. Like, and this is the point you made to Senator Hawley when you were literally crushing him in that Senate Judiciary hearing, Kate. Like, it's not that the universal injunction just somehow came up. It's that it has come up at a time when the president's power has accumulated in ways that were not foreseen at the founding.
7:09 Kate Shaw? And there is not a whisper of acknowledgement of any of that anywhere in this opinion, right? So instead, we are focused exclusively, myopically, on the power of the federal courts to issue particular kinds of remedies. And Barrett focuses on this decision in a case called Grupo Mexicana, which she was very fixated on in the oral argument. And she basically reads it to say that if Congress hasn't authorized a particular equitable remedy, then federal courts can only provide a particular kind of remedy if it was the kind that was available and issued by courts at the founding. And because universal injunctions were not available at the country's inception, courts can't issue that kind of remedy today. So first, to your point, Melissa, it completely ignores the enormous change in the kind of governmental action that is subject to challenge for violating constitutional provisions
7:54 Kate Shaw? and rights. But it also, of course, calls to mind, this kind of courts couldn't do it at the founding, so they can't do it today, logic along similar lines in other cases, kind of like the right to bodily autonomy for women.
8:08 Melissa Murray? I'm thinking of it. Starts with a D, ends with an S.
8:10 Kate Shaw? Has an ob's in the middle. An ob's in the middle. Right. So on the logic of Dobbs, bodily autonomy didn't exist for women at the founding, so we can't have it today. And obviously, there are many other examples, right? So take government's ability to limit people carrying around dangerous weapons in, say, New York City. Government didn't do that at the founding, not even going to ask whether people were carrying around the kinds of dangerous weapons that would necessitate a regulation of them, but because it didn't happen at the founding, we can't have those regulations today. So all this to say, this opinion is another win for originalism, which is the interpretive method that is literally on a fast track to end all that is good about a once-great nation.
8:49 Melissa Murray? I mean, as she said in her confirmation hearings, his methodology, that is Justice Scalia's, is mine. Grupo Mexicano is a Scalia opinion.
8:57 Kate Shaw? Yep.
8:58 Melissa Murray? And even though there actually was a founding-era device that did allow courts to grant relief that included nonparties, this is known as the Bill of Peace. That did not satisfy our favorite little originalist. Once again, the court here with Barrett writing moves the goalposts insisting that the Bill of Peace just had different vibes than these modern nationwide injunctions, just not the same thing. And that seems to be because former Notre Dame, now University of Chicago Law professor Sam Bray says they're just different. And, you know, Sam Bray was obviously there at the founding and he would know.
9:38 Melissa Murray? And Judge Jeff Sutton had a very colorful animal metaphor for the Bill of Peace. He said, quote, "The domesticated animal known as a Bill of Peace looks nothing like the dragon of nationwide injunctions." So between Judge Sutton and Sam Bray, I think we have enough mens to make a decision here, and that solves it. They are just obviously different, and the history doesn't history here. They are just different. QED. Strakaras this shit.
10:13 Melissa Murray? Mila Sione would like a word. She keeps getting cited, but like, you know, but contra.
10:18 Kate Shaw? Exactly.
10:20 Melissa Murray? Butsy woman.
10:23 Kate Shaw? At least they see her. No, at least they see her in the majority opinion, which is, you know, progress.
10:27 Melissa Murray? Okay. But, I mean, you know.
10:29 Kate Shaw? Doesn't hear her, but does see her.
10:32 Melissa Murray? Like, I can't hear you because you don't actually have a voice. Women can be heard, just not listened to. Correct, correct. Growth.
10:38 Kate Shaw? Good distinction.
10:39 Melissa Murray? Yes.
10:41 Melissa Murray? So the opinion does provide a path by which advocates may be able to secure relief that could operate in a similar way as the universal injunction. Justice Barrett reminds us that Rule 23 of the Federal Rules of Civil Procedure provide for class actions that protect everyone who would be affected by this order. And as she insists, class actions are the modern day analog of the Bill of Peace. Not sure if I agree with that logic. Analogies.
11:15 Melissa Murray? I will just say, though, class actions are available, but they are not a panacea. And there are huge reasons to be concerned that class actions will not work in this way and in this particular context to limit the administration. Because generally, when you are identifying yourself as a member of a class, you might, if you are, for example, undocumented, be inviting a kind of legal jeopardy. There's also just the practical effect, like, most of the lawyers that bring class action claims, they operate, and Danny Savalos at MSNBC said it, and I thought it was apt, they're basically like, private investors who are sort of hedging on particular claims that are going to cash in in particular ways.
12:00 Melissa Murray? So, these kinds of cases where undocumented persons are bringing these claims are not likely to be very attractive to those who are looking for suitable class action vehicles to press. And as we've said again, the fact that the administration has doubled down on the law firms means that you're not going to find a lot of pro bono resources to bring these cases going further. So, that's a real issue.
12:23 Kate Shaw? Or it may be more difficult. I actually do think there will be a huge legal push, and I think some papers have maybe already even been filed in a couple of hours since the decision was issued. But of course, you're right, the administration's efforts to limit the pool of available lawyers will have an impact here.
12:36 Melissa Murray? Well, and also, the administration indicated that they are going to resist litigating these cases as class actions. And this court has been very hostile to allowing plaintiffs to litigate cases as class actions. So, we don't even know whether they would allow this case or others to proceed as class actions. And indeed, Justice Alito wrote a separate angry writing indicating that he did not want plaintiffs to be able to evade the limitations on nationwide injunctions by pursuing class actions in too many cases.
13:03 Kate Shaw? Yeah.
13:06 Leah Litman? Strict Scrutiny is brought to you by NPR Politics Podcast. Okay, let's be real, there is so much going on in politics. Everything, all the time, all at once. It's hard enough keeping track of what's going on at the Supreme Court, but WTF is going on in Articles One and Two at the same time. That's why the NPR Politics Podcast is where I go to decode what goes down in Washington and what every decision out there might mean for me and you. Every day, the NPR Politics Podcast team will focus on one thing and boil it down to 15 minutes or less. Think of it as your political multivitamin. NPR is a huge public service. They help to provide crucial information to keep our citizenry and our country educated
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14:39 Leah Litman? All right, let's continue with Justice Barrett. Let's give Amy the full excavation, as it were. Another point that she makes here in her effort to constrain or limit this incredibly impactful opinion is to say that the court is only saying here that lower courts do not have this power through statutes that Congress has passed. So Congress has not conferred this power to the lower courts. She says explicitly that the court does not take a position on whether Article Three of the Constitution, which provides for the judicial power, might confer a separate means of this kind of authority. But so demure, so mindful, so moderate.
15:20 Kate Shaw? Right. And also, as we have said previously, first you'd have to find a Congress, and then it would have to pass a law giving courts the power to issue these injunctions, because as Barrett says, they don't have this as part of their kind of core equitable authority. And then, honestly, even I am not foolish enough to think that this court would be like, oh, fine, Congress passed a statute, and these courts can issue nationwide injunctions. Obviously, I think they would also find that they exceed the judicial power under Article III. She's just, again, sort of striking a pose of moderation.
15:49 Melissa Murray? That's not true. I think you could get a very firm majority led by Brett Kavanaugh to say that only the United States Supreme Court has the authority to issue a nationwide injunction.
15:57 Kate Shaw? And you basically have that in his concurrence, for sure. We'll get there. So I'm curious if you guys take this part of the opinion as, again, mere posturing or more substantive. But the opinion does seem pretty explicitly to leave open the possibility that lower courts could take another look at some of these cases focusing on states as plaintiffs and issue differently crafted injunctions that do apply to everyone born within a specific state where the states clearly have standing, they are injured, they're going to have to expend a lot of resources if an executive order like this goes into effect. And so that would, that would still, you know, run only to individuals within the boundaries of a particular state, but it wouldn't require the use of the class action device. So let me just quickly read from Barrett's, this excerpt from Barrett's opinion,
16:42 Kate Shaw? and I'm genuinely curious what you guys made of it. So she says, "For instance, the district court could forbid the government to apply the executive order within the respondent states, including to children born everywhere but living in those states. Or, as the government says, the district court could direct the government to treat covered children as eligible for purposes of federally funded welfare benefits." She says, "We decline to take up these arguments in the first instance. The lower court should determine whether a narrower injunction is appropriate. We therefore leave it to them to consider these and any related arguments." I mean, I guess, again, to our opening, this is just cosmetic, this is superficial, or this actually does mean, and we can talk about what the impact would be, but it does mean that state-specific injunctions might still be available here.
17:20 Leah Litman? Yeah. So what does this mean on the ground? The ruling is not going to go into effect for 30 days. So the executive branch is allowed to begin developing implementation guidance. So as Alora Mukherjee told us when we had her on, advocates who have been preparing for this possibility will immediately seek to file class actions on behalf of anyone who would be subject to this order. That is, everyone here without legal authorization or who is here legally but has temporary status and is pregnant. And indeed, one group has already refiled their suit as a class action and has asked a judge for an emergency restraining order. At the same time, states are likely to ask the courts to do what Justice Barrett says the opinion leaves open, seeking relief within the boundaries of their states
18:05 Leah Litman? and also arguing that nationwide relief is required to address all of the harms to them. Now, as to whether courts will agree with that, whether this Supreme Court will agree with that, that remains to be seen.
18:17 Melissa Murray? Well, and that really is kind of the critical point. One of the things that we emphasized and we covered the oral argument in this case was that the question of birthright citizenship was sort of the ideal vehicle for a nationwide injunction because the idea of a patchwork of different states was wholly unpalatable. And if those litigants can't convince a court that their harms require nationwide relief, then we are existing the real possibility that just blue states with Democratic AGs will successfully take up this option that Barrett demurely leaves open. And red state AGs are going to say, you know, peace, we're out of here. So we will have this patchwork system. It will be chaotic, which the New Jersey Solicitor General warned about in the oral argument.
19:01 Melissa Murray? I think we played the clip in an earlier episode. So, you know, that's a real possibility. But to take a step back more generally, the court here is telling the administration that the restraints are now off, right? They are literally unfettered. Anything you were thinking about doing, but were worried that the lower courts would stop, there's nothing to stop you, right? I mean, this is essentially like the 2025 version of Trump versus United States. You can just go for it. And Stephen Miller, this is your moment. You can just do the damn thing. And I think there's a very real chance that we have not seen Yet what this administration is going to do with truly unfettered authority and no checks.
19:45 Leah Litman? Thank you, Amy. Thank you, dear John. Even Taylor references are not enough to lift spirits on this day. Other reactions as to the majority opinion?
19:56 Kate Shaw? This is so petty, but I will go there. I truly hate the trivializing examples she includes in many of her opinions. I mean, this, I think, may be her first big majority opinion, but when she's concurring and dissenting, she just uses really trivializing examples. So she talks, when she's describing the impact of rulings on third parties, she talks about a nuisance in which one neighbor sues another for blasting loud music at all hours of the night.
20:22 Melissa Murray? Just like this case.
20:23 Kate Shaw? I mean, literally having your baby be stateless, rendered stateless because they're not a citizen of the United States under this executive order and maybe not considered a citizen under your country of origin's rules for citizenship. I mean, loud music at night, stateless babies, basically.
20:42 Melissa Murray? Same thing.
20:43 Kate Shaw? Same, same. Yeah, I was just like, just the callousness was actually, I thought, kind of took my breath away, just of the use of this example.
20:49 Melissa Murray? And the callousness from someone who is the mother of naturalized citizens, like that's the part that I'm just like, I thought maybe that might truly make her more amenable to a more moderate position, but apparently not. Can I ask a question of you all? How did she get this opinion? Because this is an opinion that John Roberts typically.
21:10 Leah Litman? DEI.
21:11 Melissa Murray? It's illegal now, but maybe not for everyone. Seriously, was the idea here that her, like, they needed, they wanted her on it and she was somehow going to narrow this? Because it doesn't feel super narrow, even with her sort of leaving open these very constrained lanes. I mean, would it have been worse if Roberts had written it? Or if, God forbid, Alito had gotten it? I mean, I just don't, I, why did she get this?
21:41 Kate Shaw? Yes, Alito and Thomas would have written something worse. I don't know that Roberts would have written anything very different. And I don't really know. I mean, I think that sort of what we said at the beginning about like the mask or gloves or both coming off, like, I think that either John has decided you're ready or Amy has decided I am ready. But to the extent they were shielding her a bit from controversy at the beginning of her tenure on the court, I think that is gone. She is willing to embrace it.
22:05 Melissa Murray? You're on your own now, kid.
22:07 Kate Shaw? Yeah, yeah, always happen. I mean, I, I don't know. But if this is a compromised opinion, I think it's really scary to contemplate like what it could have looked like.
22:16 Melissa Murray? Speaking of, we need to talk about Justice Thomas's concurrence. Okay, so here we are again. This con clearance is just another banger. In this concurrence, in which Justice Gorsuch joined Justice Thomas, Justice Thomas says, quote, "For good reason, the court today puts an end to the increasingly common practice of federal courts issuing universal injunctions." Let's pause there for a minute. So much for Amy's insistence that this is a narrow, limited decision. This is like a full Dobbs move, like, guess what? We're actually doing the damn thing. Like, pay no attention to that limiting-
22:52 Kate Shaw? Here's the real agenda.
22:53 Melissa Murray? Yeah. I'm the real Chief Justice here. So, yes, so much for that. It's not really that limited. We're getting rid of nationwide injunctions, full stop. Justice Thomas then goes on to say, quote, "The court also makes clear that the complete relief principle provides a ceiling on federal court's authority, which must be applied alongside other principles of equity and our holding that universal injunctions are impermissible." And I thought this was rather chilling because it seems like he's saying that the decision goes beyond simply limiting the scope of universal injunctions as a judicial remedy to also limit the scope of lower courts' ordinary equitable powers, i.e., run-of-the-mill injunction.
23:34 Melissa Murray? So this could be, I think, an invitation to litigation to just challenge the ordinary scope of lower court powers to issue injunctive relief. And that might foreclose any avenue for limiting the administration.
23:47 Kate Shaw? Right. He's like, guys, you don't have to defy outright. Just like do it a little bit more in a slightly more civilized fashion and lodge a court challenge, the ability of course to
23:55 Leah Litman? Lie better, deport better.
23:58 Kate Shaw? Exactly. Seems like that's what he is suggesting.
24:00 Leah Litman? Worst of times, we have a cab concurrence. The TLDR of this one is he's not necessarily opposed to an imperial judiciary. He just thinks that only the United States Supreme Court should get to be an imperial judiciary. Checks out, right. So he writes, quote, "After today's decision, that order of operations will not change. In justiciable cases, this court, not the fucking district courts or those plebes on the courts of appeal, will often still be the ultimate decision maker as to the interim legal status of major new federal statutes and executive actions." End quote. You can guess which words I inserted there, but most of them are his. It also had big, I'm not a bad guy energy. This isn't so bad. And I just can't even
24:43 Leah Litman? deign to read those portions because today is just enough.
24:46 Kate Shaw? He really is suggesting, yeah, I'm not a bad guy. This is not going to be so bad. Like if really, really lawless things happen, like there is, don't worry, like there's a cop in town. It's us.
24:56 Leah Litman? It's me. It's me.
24:57 Kate Shaw? We are.
24:58 Leah Litman? I'm the sheriff.
24:59 Kate Shaw? Exactly. And, and it's, it's both not comforting remotely, but also it's like, if poor Steve Lattick has been working hard enough already, I think that guy's going to need to hire an entire staff because Kavanaugh just basically said, we are going to do a whole lot more on the shadow docket because we supreme, in case you didn't know. And they're already doing so much and not doing it remotely responsibly. I shudder to think what an expanded shadow docket in the coming terms is going to look like.
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26:56 Speaker 05 Coca-Cola, for the big, for the small, the short and the tall. Peacemakers, risk takers, for the optimists, pessimists, for long distance love. For introverts and extroverts, the thinkers and the doers. For old friends and new. Coca-Cola, for everyone. Pick up some Coca-Cola at a store near you.
27:36 Leah Litman? So now let's talk about the two scorching dissents. Justice Sotomayor had the main dissent and she read her dissent from the bench, going on for perhaps longer than I remember from any recent dissent reads. Yeah, so we're just going to offer a few highlights. It opens with, quote, "No right is safe in the new legal regime the court creates. Today, the threat is to birth a citizenship. The majority holds that absent cumbersome class action litigation, courts cannot completely enjoin even such plainly unlawful policies unless doing so is necessary to afford..." The formal parties complete relief. That holding renders constitutional guarantees meaningful in name only for any individuals who are not parties to a lawsuit. Because I will not be complicit in so grave an attack on our system of law, I dissent. End quote.
28:21 Leah Litman? Not respectful, not demure, totally righteously enraged, read her dissent for, as Melissa was saying, a full 15 minutes from the bench.
28:29 Kate Shaw? It was one of those days, can I just say, where I was so upset that the court does not livestream the opinion announcements, which, if people don't realize, it is just this really weird quirky practice the court insists on, which is they now livestream all arguments, but not the audio for the opinion announcements, which is sometimes kind of interestingly different from the actual substance of the written opinion and sometimes does give you a little bit more of a flavor of the actual kind of dynamics and emotions on the bench and that they only want the people in the courtroom to be able to, you know, get access to that until months and months later. But I really wished I was in there today.
29:05 Melissa Murray? Would have been a good day. You could have spent a lot of time because she was on one. She, I mean, usually they kind of trim it down a little to make it like, you know, sort of the Cliff Notes of the dissent. I think she actually read the whole thing.
29:18 Kate Shaw? Did she? Wow.
29:19 Melissa Murray? All right. Justice Jackson also dissented separately and she wrote to say, quote, "I agree with every word of Justice Sotomayor's dissent. I write separately to emphasize a key conceptual point. The court's decision to permit the executive to violate the Constitution with respect to anyone who has not yet sued is an existential threat to the rule of law. Perhaps the degradation of our rule of law regime would happen anyway, but this court's complicity in the creation of a culture of disdain for lower courts, their rulings and the law as they interpret it, will surely hasten the downfall of our governing institutions, enabling our collective demise." Yes, girl, all of that.
29:58 Kate Shaw? Collective demise, like she is not fucking around.
30:00 Leah Litman? And the complicity, I just think, that is so important to say, look, I know, obviously, the principal threat is from Article II, but so much of what Article II is doing is enabled by these clowns, my colleagues.
30:15 Melissa Murray? It's almost like she listens to this podcast. Because we've been saying that the whole time. Like, we had to add a whole Article II section because Article III made Article II emboldened and empowered.
30:25 Leah Litman? Yeah.
30:26 Melissa Murray? And now they're inextricably intertwined.
30:27 Kate Shaw? Totally. Yeah, yeah. And, and there's this interesting, I want to say more about this, but there's also, it's Article II and Article III intertwined, but only the top echelon of Article III. Actually, the rest of Article III is actually doing something.
30:42 Leah Litman? Which is why these guys are sticking it to them.
30:45 Kate Shaw? Yes. So these guys, the Supreme Court and Article II versus the rest of us, including the lower court.
30:51 Melissa Murray? The district court.
30:52 Kate Shaw? Federal courts. Yeah, and the Courts of Appeal sometimes, yeah.
30:54 Melissa Murray? Again, to remind everyone, the administration has filed a lawsuit against the entire District of Maryland's judges.
31:02 Kate Shaw? You know who they're not suing? The Supreme Court.
31:05 Melissa Murray? Right. Well, and, no, they're thanking them at the State of the Union. Thank you so much.
31:12 Leah Litman? I want to tie what Justice Jackson is saying, you know, saying this court is complicit in the culture of disdain for lower courts to the opinion earlier this week, the atrocity that was DVD, the third country removal case, where there too, Justice Sotomayor wrote, "Each time this court rewards noncompliance with discretionary relief, it further erodes respects for courts." Again, this court is enabling the administration's attacks on lower courts and defiance of lower courts and attempts to portray their efforts to hold the administration accountable illegitimate.
31:49 Kate Shaw? Completely. I mean, there's so much in the Jackson dissent, I really encourage, and the Sotomayor dissent as well, I encourage people to read those documents in their entirety. I just want to read maybe one more excerpt from the Jackson dissent, which is, quote, "The very institution our founding charter charges with the duty to ensure universal adherence to the law now requires judges to shrug and turn their backs to intermittent lawlessness. With deep disillusionment, I dissent." And I mean, like, if you read her memoir, like, this is a person who really has, like, deep reverence for the law and courts and the Supreme Court as an institution. And it is just clear that that reverence just is kind of gone, having seen the way
32:31 Kate Shaw? her colleagues have comported themselves this term and in these recent cases.
32:37 Melissa Murray? Now we have to talk about Justice Barrett's unprecedented swipe at Justice Jackson in the majority opinion. So Justice Barrett wrote this, quote, "We will not dwell on Justice Jackson's argument, which is at odds with more than two centuries worth of precedent, not to mention the Constitution itself. We observe only this. Justice Jackson decries an imperial executive while embracing an imperial judiciary. No one disputes that the executive has a duty to follow the law." I swear to God.
33:07 Leah Litman? Well, that makes me feel better.
33:08 Melissa Murray? No, I'm just telling you right now, like, Justice Jackson is like at home, like, fuck this bitch.
33:15 Leah Litman? Oh, yeah. I am at home being like, fuck this bitch.
33:18 Melissa Murray? Yeah, I truly, like, if a colleague said this to me, like, I might have to talk to you, like, in the line to get lunch at the faculty lounge, but we are not friends. Like, we're like, no. And so I may have to hold the door, but you might get slammed on anyway. Like, just whatever. Like, this is when we need to do that episode, KBJ's anger translator, and this would be in there.
33:43 Leah Litman? Exhibit A, yeah.
33:44 Melissa Murray? Exhibit A. We've all had this colleague, and, yeah, yeah. Anyway, predictably, the Trump administration held a press conference to crow about its victory in the court. We're just going to hit the highlights. The president revealed himself to be a history and tradition guy. He repeated incessantly at the press conference that Section 1 of the 14th Amendment was for, quote, "the babies of slaves, not for undocumented persons coming to the United States for, quote unquote, a vacation." So I'm glad we cleared that up. AP US History, keep doing that good work. Pamela Jo Bondi was also at the press conference, and she
34:29 Melissa Murray? was weirdly very shouty while taking her victory lap. Perhaps she should smile more. Also, both the president and the attorney general emphasize that the administration now has an open lane to act on its popular, as they put it, mandate to do what the voters allow. elected them to do, and I feel compelled to offer a word here. The whole point of rights like those contained in the first section of the 14th amendment is that they aren't subject to popular vote or popular referendum. They aren't subject to revocation or rescission by a majority. They are supposed to transcend majoritarian politics. And indeed, the role of the courts has been to secure those rights and protect them from the tyranny of the majority.
35:13 Melissa Murray? Here, it seems the administration thinks that the Constitution is just a suggestion that it can simply override because it won the Electoral College, which I think means for all of us that this is a very dangerous moment.
35:26 Kate Shaw? Yeah, I mean, their vision of purely presidential democracy where an electoral mandate, which they're going to wildly overread.
35:35 Melissa Murray? Well, and overstate, we don't even know what this mandate is since like apparently a third of the country sat out the election.
35:41 Kate Shaw? Completely, but but that it it neutralizes every other institution that is part of our Democrat Congress, local elected officials, courts, which are, you know, institutions in our democracy, like, it is just stunning. It is also, we're going to talk briefly today and then at more length at our Monday episode about Mahmoud versus Taylor, the storybook case, which they also crowed about in the press conference.
36:04 Kate Shaw? Sorry, let me just find the quote from it. We also had another great ruling today on transgender books.
36:11 Melissa Murray? I didn't realize books had gender identities.
36:14 Kate Shaw? Clearly, yes, but well, Bondi thinks they do, and they won or lost.
36:18 Melissa Murray? That was Todd Blanch, she said it.
36:20 Kate Shaw? So both Bondi and Blanch apparently realize, apparently believe that books have genders. In any event, the point I was going to make is that they're, you know, very fixated on democracy when it's a presidential mandate, but also in Mahmoud, the elected school board of Montgomery County made some decisions about what books to include in the elementary school curriculum, and this majority just invalidated that. Why? Because the Constitution enshrines certain rights that courts have to protect. And yet, I'm not sure they see the tension.
36:52 Melissa Murray? I'm 100% sure they don't.
36:54 Kate Shaw? Yes, okay, so before we move on. Any big picture thoughts?
36:59 Melissa Murray? Again, why did the court decide that this case about this massive existential question was the appropriate vehicle for curbing the nationwide injunction? Right? We all know the Biden administration was subject to more than a few nationwide injunctions. They, didn't they also ask the court to take up?
37:19 Leah Litman? Yes.
37:20 Melissa Murray? Yeah, like, I distinctly remember the Biden administration also asking the court to take up this question of limits on the nationwide injunction. And the Republican justices decided that, right now, five months into the Trump administration, now's the time to take up this longstanding question that apparently has vexed both sides of the aisle for some time now.
37:41 Kate Shaw? I think maybe we haven't said enough, and there's just much more to say about the kind of contempt for lower courts that, you know, this court has, in these unreasoned orders, like Leah already mentioned DVD, but also the trans military ban case, and several others, overridden the careful decisions of district courts, reading statutes and the Constitution and issuing preliminary relief, and the court just sort of says, "By fiat, like, nah, we disagree," but doesn't actually tell us why. So we have known since the beginning of this administration that the court is acting in a wildly contemptuous fashion vis a vis the lower courts, and I think this just like further extends that kind of narrative.
38:21 Kate Shaw? And it also is doing it at a moment in which Congress and the executive branch and crazy people on social media have, I don't think, ever targeted district judges harder. And the marshals have documented spikes in actual threats against district judges. And I think it is just shameful and galling for the Supreme Court to essentially be adding fuel to that fire.
38:44 Melissa Murray? Well, I mean, it's not just the threat to the lower courts, it's that those threats are coming and the court is sort of engaged in this kind of gamesmanship with the administration. Like Justice Sotomayor called it gamesmanship. She says, quote, "The gamesmanship in the requests, the administration's requests to stay the nationwide injunction here is apparent, and the government makes no attempt to hide it. Yet, shamefully, this court plays a lot." Like, they just, like, they know it's a big issue, they don't care about the underlying substantive issue, they know they'd lose, they care about this procedural mechanism that, if shut down, opens up the door for them to do all kinds of things. And the court let them do it.
39:24 Leah Litman? I want to offer Few quick, big picture thoughts. One is that I think the true significance of this decision is likely to materialize in cases other than the birthright case, just because I think this will end up being one of those cases where states are able to establish that you need nationwide relief in order to remedy the harms to them, or perhaps a class action. I mean, who knows, right? But I do think that other cases are just going to be much more difficult to get past courts at that stage. And that is going to lead to this patchwork of federal civil rights protections, federal statutory protections, and constitutional protections. Second is, I think we should link this decision to something, Melissa, you talked about yesterday, with the Planned Parenthood decision, which is a broader project of nullifying civil rights
40:09 Leah Litman? enforcement, and in particular, mechanisms of enforcing reconstruction. You know, in the Planned Parenthood decision, they were like, yep, can't really enforce Section 1983 or public benefits. Maybe they're going to say you can't really enforce the Voting Rights Act. In the disqualification decision from last term, they said states can enforce Section 3 of the 14th Amendment. And now they decided to take a case on Section 1 of the 14th Amendment, and use that as a vehicle to curb the most effective tool that lower courts have to rein in the administration's lawlessness. You add to that potentially nullifying the due process clause, and the shadow docket, and DVD, the list goes on. And so many of these decisions place Donald Trump and Republicans above the law. Like, these guys just come up
40:50 Leah Litman? with all of these legal rules, quote, "legal rules," whose bottom line is, actually, you Republicans don't have to comply with the law. You know, Justice Jackson calls out the court for creating a zone of lawlessness, and a law-free zone. She says, "When the government says, 'Do not allow the lower courts to enjoy an executive action universally as a remedy for unconstitutional conduct,' what it is actually saying is that the executive wants to continue doing something that a court has determined violates the Constitution. Please allow this." That is some solicitation. With its ruling today, the majority largely grants the government's wish. She also posits that a Martian coming from another planet would look at this and wonder, what good is the Constitution then? And again, we are
41:33 Leah Litman? looking at a world where, after July 27, there are open questions about whether a birth certificate showing you were born in the United States will be sufficient to prove your citizenship.
41:43 Kate Shaw? Once again, thank you, Amy. Thank you, John, for facilitating all of this, and then just fading to the back, not saying a word.
41:51 Kate Shaw? All right. Well, last thing I'll say is that Leah, you really did call it after the oral argument. I was feeling a little hope and you're like, didn't hear, didn't hear five votes to just really reject the government's arguments and.
42:02 Melissa Murray? I believe I also made fun of you, too.
42:04 Kate Shaw? Yeah, I think that's probably right.
42:05 Melissa Murray? I believe I fucking wrote a book called Lawless.
42:10 Kate Shaw? And all they are doing is vindicating. Yeah, Melissa and Leah.
42:13 Melissa Murray? I can say the worst possible things about them and each time they prove me right.
42:18 Kate Shaw? They up the ante, though. Like they're even, they're even worse.
42:20 Melissa Murray? How you like me now?
42:25 Kate Shaw? Yeah.
42:25 Melissa Murray? Okay, let's round out this emergency episode.
42:27 Kate Shaw? Okay, sounds good. Okay, so one of the big cases that we were looking for the opinion in, obviously really terrified about what that might hold, was Louisiana versus Calais. And actually, we got kind of a lack of resolution, which I think bodes very, very ill for what is going to happen next term. But basically, this was the case regarding a state's efforts to comply with the Voting Rights Act. And the Supreme Court, rather than deciding the case, scheduled it for re-argument next year. So the question in the case was whether when the state of Louisiana drew a map that complied with the VRA by ensuring black voters had political opportunities, that was unconstitutional race discrimination in violation of the Constitution. The justices, if you remember the oral argument, seemed kind of interested in relitigating
43:11 Kate Shaw? earlier decisions that had found the state's previous maps, which included just one district where black voters had political opportunities, violated the VRA. So maybe they want to take a crack at those earlier findings. Or maybe they want to more directly have the parties brief and argue whether what remains of the VRA is unconstitutional. But we don't yet know exactly what the court is going to ask the parties to brief. In this case, we just know it's going to get reargued next term.
43:39 Melissa Murray? And Justice Thomas took that personally. This is not a con clearance, but it is a dissent. Justice Thomas dissented here and suggested that he actually would like to do a racism right now. And by racism, I mean simply that he would like for this court to decide that any consideration of race as part of the remedy for a racial gerrymander is racist and violates the Constitution and the VRA and a million other things. He just wanted to get to that right now. And his colleagues won't let him. It's, it's just so hard for him.
44:12 Leah Litman? A part of me did wonder, is the fact that they put this off, will that delay his retirement plans or Sam's because they so badly want to be a part of this?
44:21 Melissa Murray? He was not going to retire. I don't think Justice Thomas was ever in any danger of retiring. He, right now, is the second longest-serving justice on the court, and I think he may want to try and get himself to number one and really stick it to the libs.
44:34 Leah Litman? Interesting.
44:35 Melissa Murray? Justice Alito now, you know, the prospect.
44:37 Kate Shaw? Yeah. It's so interesting. There's the two of them, right? Like, we are almost to the day, like, 20 years from when, sort of faithfully, Justice O'Connor and Chief Justice Rehnquist sort of sat down to huddle about who was going to announce retirement in 2005 in June. Rehnquist had just been diagnosed with thyroid cancer. Everybody thought it would be him, but he surprised, I think, his old friend Sandra by saying, "No, I'm not going anywhere." And so she announced her retirement. Anyway, all of this, of course, set in motion, the picks of Roberts as chief, Alito to fill the O'Connor vacancy. And 20 years later, this is what we've got, ladies. Anyway, I don't know exactly what's going to happen, but I don't think it's impossible that Alito announces.
45:14 Melissa Murray? I'm just going to tell you right now, I blame the whole John Roberts, Justice Alito on the court on the fact that we do not have subsidized elder care in this country because Justice O'Connor stepped down to take care of her husband, who is suffering from really advanced dementia. And if we just had a public system of elder care, maybe she would have stayed on a little longer and we would have been spared all of this. Just going to put that out there.
45:37 Leah Litman? Speaking of doing a racism and restoring racial hierarchies, as we were sitting down to record, news broke that the Trump administration appears to have effectively fired the president of the University of Virginia, Jim Ryan, for the egregious action of, I think, allowing black students to enroll at UVA. The president does not have the power to fire university heads. The fact that universities might be letting him do so is an alarming, chilling...
46:10 Leah Litman? Sign of an attempted political takeover, state takeover of education.
46:16 Kate Shaw? The unitary executive literally means the whole universe. The executive gets to fire anyone. And so it's reasonable.
46:23 Melissa Murray? Well, just to be clear, Jim Ryan has been a great president for the University of Virginia. He resigned this morning.
46:31 Melissa Murray? There have been a cadre of old school alums of the university who have really been opposed to Jim Ryan's efforts to further diversify the university. They would like to make this just like when Thomas Jefferson was founding the university, which, you know, is to say a lot of different things. And they have tried to stock the university's board of visitors with more conservative voices that could object to Jim Ryan's presidency and policies. And they got a real assist with Glenn Youngkin, who appointed a lot of conservatives to the board of visitors. But Youngkin is term limited, and it seems very likely that there will be a Democratic governor who can make different appointments to the board of visitors. So this was kind of a last gasp effort to really sideline Ryan in advance of what may be a real regime change.
47:16 Melissa Murray? So I just want to thank Jim Ryan for his terrific service. I am sorry that it ended this way, and Kate is exactly right. There's no way that the President of the United States and the Department of Justice should ever have a say in the way a university is run, at least in this fashion. We also got the decision in Mahmoud versus Taylor, which we will focus on more extensively in Monday's episode. Suffice to say, though, that it's a real banger because Justice Alito wrote for a six to three majority that split along predictable ideological lines. And let's just say anytime Justice Alito is writing about transgender books, you're in for a rollicking ride. Justice Alito, writing for the majority, concluded that parents challenging the school board's use of LGBTQ plus inclusive storybooks,
47:58 Melissa Murray? along with its decision to withhold the provision of opt outs from those parents, are entitled to a preliminary injunction here. The parents, he said, had shown that they are likely to succeed on the merits of their claim because religion, and that they would also suffer irreparable harm absent injunctive relief.
48:17 Kate Shaw? So if you were thinking, well, maybe there's a silver lining here, which is that this parental rights argument might be actually successfully deployed in like a round two of the litigation that was unsuccessful in Sgrametti, the healthcare for trans youth case. I would say not so fast because here the overlay of religion and parental rights is really striking and it kind of suggests the way the majority might distinguish a case like this from a case brought by parents of trans youth arguing for their right to make medical decisions for their children and you know, kind of more parental rights register. And I think what the court actually thinks is that parental rights are fundamental when the right at issue is the right to raise your child in accordance with your religious beliefs. But parental rights are more kind of rights-ish or discretionary.
49:00 Melissa Murray? Vibes.
49:01 Kate Shaw? When we're talking about your right to make medical decisions for your transgender child and you live in a state in which the legislature is profoundly hostile to that effort.
49:12 Melissa Murray? We did get a few surprises in the majority opinion, though. In case you were wondering, apparently Justice Alito is a fan of DEI. He noted in the majority that the Montgomery County Public Schools new policy drew objections from, quote, "hundreds of displeased parents, including many Muslim and Ethiopian Orthodox parents who appeared at the board's public meetings and implored the board to allow opt-outs." But, he continues, quote, "The board was unmoved." As I'm sure we can all agree, after hearing this, the real racists here seem to have been the school board.
49:49 Leah Litman? Duh. As we discussed in our episode covering the oral argument in this case, there really isn't a lot slash any record evidence about how the books are being taught or whether the curriculum is having a particular effect on students. No matter for Sam Alito, his take is that simply by being about gay people and trans people, the books pose a, quote, "objective danger to children and religious families." He is using, they are using the least serious arguments to erase LGBT people from everywhere they can, right? Like in the case of trans people, their very existence, right? In the case of LGBT people, any mention in schools.
50:29 Leah Litman? Happy Pride, like "Don't Say Gay" might be the universal rule for public schools in the near future.
50:36 Melissa Murray? I'm just also going to note that this whole day of opinions has felt like, smells like Dobbs' spirit, because once again, I'm just getting some Dobbs PTSD, because Justice Alito, as is his want, decided to create an extensive appendix in Mahmoud versus Taylor, where he reproduced substantial portions of the offensive trans books, including Uncle Bobby's Wedding and Prince and Knight, so that readers of the Supreme Court's opinions could see for themselves the books' shocking affront to religion. We will get into this even more on Monday, but just a little teaser for you. There are pictures in this opinion.
51:13 Kate Shaw? All right. So that's all we have time for today. Much more in our regularly scheduled episode on Monday morning. And meantime, thank you and Godspeed to the civil rights organizations and lawyers in state attorneys general's offices who are going to be working overtime over the next few days to blunt the human toll of this abomination of an opinion in the birthright citizenship case.
51:36 Melissa Murray? Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. We get audio support from Kyle Seglan and Charlotte Landis, and music is by Eddie Cooper. We get production support from Katie Long and Adrian Hill, and Matt DeGroot is our head of production. We are thankful for our digital team, Ben Heathco, Joe Motoski, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes, and you can find us at youtube.com/AtStrictScrutinyPodcast. 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 really want to help other people find
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