Pod Insights Strict Scrutiny Trump’s Onslaught of Executive Orders About this episode Post-inauguration, the Trump administration is wasting no time issuing a flurry of heinous executive orders. Melissa, Kate, and Leah walk through them and then take a look at last week’s SCOTUS arguments. Finally, they answer some listener questions about the Court’s TikTok decision and share some rare but real good Supreme Court news.
Here’s the DEI explainer https://advancingdei.meltzercenter.org/resources/trumps-early-actions-on-dei/ from the Meltzer Center on Diversity, Inclusion, and Belonging at NYU Law.
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Transcript 13,998 words · 8 speakers
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2:00 Speaker 01 Mr. Chief Justice, may it please the Court. It's an old joke, but when a hard-earned man argues against two beautiful ladies like this, they're going to have the last word.
2:13 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."
2:43 Melissa Murray? Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.
2:51 Leah Litman? I'm Leah Litman.
2:52 Kate Shaw? And I'm Kate Shaw. And we have another jam packed episode for you today. We will start off with some observations from hate watching the inauguration. We will also discuss some of the executive orders that the new administration has issued. We will then recap arguments from the January sitting of the Supreme Court. And we will turn to some court culture, including answering some listener questions, including from the crooked Discord about TikTok.
3:14 Leah Litman? First up, hate watching the inauguration. So as you all know, it was indoors, which led to some pretty awesome memes invoking William Henry Harrison. Always here for that.
3:26 Melissa Murray? That was a deep cut. It's a very deep cut.
3:31 Leah Litman? So we call a callback. Another benefit of the cold front is, you know, since the cold snap, we haven't heard that much about annexing Greenland or Canada. So.
3:42 Melissa Murray? Plus.
3:43 Kate Shaw? Small blessings.
3:44 Leah Litman? Yeah. Oh, also, Broligarks, they were given prime seating at said inauguration, even over cabinet nominees, which is kind of wild. I think they were conveying something important about who has the pants and power in this administration. And the seating choice wasn't just completely superficial. We'll touch on when we get to the executive orders. The Trump administration literally announced they are interested in stockpiling crypto, handing over public money to private companies. A government of the Broligarks, by the Broligarks and for the Broligarks.
4:18 Melissa Murray? Also made clear not only who wears the pants in this administration, but. Who wears the bra? And we'll get back to that in a moment. It was notable that SCOTUS was there in full force. Coach Kavanaugh had a really big role. He was tapped to swear in the new vice president, J D Vance. And it occurred to us as we were watching that Usha Vance, the new second lady, actually clerked for Coach Kavanaugh when he was a judge on the D C Circuit, as well as for Chief Justice Roberts at the Supreme Court. And it made us wonder, I don't know if Don Jr. and Eric, who were the proponents of J D Vance as a running mate, understood or knew about those connections between the court and the Vances. And maybe that tipped the scales in Vance's favor.
5:03 Melissa Murray? But it does, I think, warrant maybe a little discussion, or at least thinking about, because it had not quite occurred to me until I saw him swear J D Vance in, that there were all of these connections that might have made him even more attractive. It's not just sofas with that guy.
5:19 Leah Litman? Well, another reminder that when you think of and see all of the things this administration does, it is deeply connected to the Supreme Court. Like, these things are not totally separate. You cannot divorce what is happening from what the court has done and will do.
5:36 Kate Shaw? Another thing, in addition to these kind of webs of connection that stood out to us at the inauguration, was really the distinct chill between the new slash old first couple. If there was like warmth between the Vances and Coach Kavanaugh, there was less warmth evident between newly inaugurated President Trump and his wife. So when Trump went in to kiss Melania as he came out, actually to deliver his remarks after taking the oath of office, he leaned in, maybe for a kiss, maybe to just share some airspace. But there were like six inches between them. And then they just hung there for a minute, not getting closer to each other. And it felt like time stopped to me.
6:15 Melissa Murray? It's real love.
6:15 Leah Litman? And then kissing might be extra. We don't know.
6:20 Kate Shaw? There was some speculation to that effect. That was weird.
6:23 Melissa Murray? Part of it was her ensemble. So Melania Trump was in a very high fashion look. It was giving spy versus spy in collaboration with Carmen Sandiego, in collaboration with Mary Poppins, in collaboration with V for Vendetta. I mean, just a lot of references here.
6:41 Kate Shaw? Oh, my God, Melissa, you could write a fashion column about Melania.
6:44 Melissa Murray? Actually, it was very flattering, but also it seemed very purposeful because the brim of the hat was so wide that he could not actually physically get close enough to kiss her cheek. So she basically closed the southern border of her face. She she built a wall and it was a hat.
7:05 Melissa Murray? That wasn't all the fashion that we should know. There were a lot of real callbacks and references here. So Ivanka Trump, once and again, the first daughter, was channeling Serena Joy from The Handmaid's Tale with a teal ensemble with a little cloche hat. Baron Trump was calling back to 1980s bond traders, you know, very Bret Easton Ellis. Lauren Sanchez, who is the fiance of Amazon CEO Jeff Bezos, was wearing suffragist white and a kind of bustier underneath that was visible in her ensemble. And I can only think that this was a call out to feminism because it's obviously easier to burn your bra when it's right there.
7:50 Leah Litman? Helpful tip. So as Melissa noted, you know, the court was out. Justice Katanji Brown Jackson attended, wearing a very distinctive statement necklace of cowry shells. And this triggered some people. So law professor Josh Blackman took that personally, writing in The Voluptate Conspiracy Overt Reason that Justice Jackson had engaged in the appearance of impropriety and thus should be recused in all cases involving the Trump administration because said necklace is some African symbol of warding off evil, or so he claimed. Like, are they giving out ketamine at the Federalist Society now? What is going on?
8:29 Melissa Murray? Something is wrong with the mens because I wore a tuckernuck necklace on MSNBC and like my mentions were literally flooded with MAGA types yelling at me for wearing a racist slave necklace. And I was like, this is from tuckernuck. Tuckernuck is not a revolutionary radical left brand. It's for ladies who go to lunch and I don't know where they're coming from. But the mens are not okay. And they're definitely not reading all the Vogues, just some of the Vogue commentary.
9:00 Leah Litman? For sure. We'll leave you with those questions as we turn to surveying some of the Trump executive orders because I think they carry through to these as well. So, America is officially in its finding out era now that Donald Trump has returned to the scene of the crime. And he greeted us with a bunch of executive orders to lower the price of eggs. That's a joke about the eggs.
9:22 Melissa Murray? There were no, there were no EOs about eggs.
9:25 Leah Litman? No, there were unfortunately, a lot of EOs. Honestly, a pretty stunning number from the cartoonishly cruel and unconstitutional to the ridiculous. We can't possibly talk about all of them, but we did want to cover a subset.
9:37 Kate Shaw? All right. So first up is the executive order purporting to deny birthright citizenship prospectively to the children of undocumented immigrants and for good measure, the children of lawful visa holders living in the United States.
9:50 Melissa Murray? Like Kamala Harris and Usha Vance.
9:53 Kate Shaw? Right. It's not retroactive, except for just a couple of instances.
9:58 Leah Litman? Well, it's not retroactive at all.
10:00 Kate Shaw? To apply it retroactively to Kamala Harris. No, that is a joke. It is prospective. So it by its terms would not apply to anyone living in the United States today. But whether it's retrospective, prospective, is completely immaterial to the bottom line unconstitutionality of this thing, which we cannot say clearly enough. This order is patently unconstitutional. It conflicts by its terms with section one of the 14th amendment, which says in its first sentence, all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Clear as day.
10:32 Leah Litman? I'd just like to point out that they announced this executive order on Martin Luther King Jr. Day, literally commemorating Dr. King's birthday by attempting to repeal the 14th Amendment by executive order, trying to make Dred Scott great again. None of this is subtle. You know, many state attorneys general have already filed suit to challenge the order. There are at least three separate lawsuits challenging it. And in one of those cases, Judge Koffner, our Reagan appointee, heard about 25 minutes of mind-blowingly stupid arguments before issuing a temporary restraining order against it. I think this executive order is like the Matt Gaetz of executive orders. It didn't even last a scaramucci. It didn't even go into effect. It was so obviously lawless. But that's a plus. The
11:17 Leah Litman? negative is it's soaking up so much airtime. The other EOs have a chance of getting through, just like the other nominees have a chance, a good chance of getting through, even though they tour wild.
11:30 Kate Shaw? That's a good comparison.
11:31 Melissa Murray? Well, The Seattle Times reported that when the Trump DOJ lawyer actually stood up before Judge Koffner, he was asked, in your opinion, is this EO constitutional? To which the lawyer said, yes. And Judge Koffner responded, quote, frankly, I have difficulty understanding how a member of the bar could state unequivocally that this is a constitutional order. It just boggles the mind, end quote, which is like, hey, MF'er, you just failed con law. Like, what on earth? Lawyers have to take an oath to uphold the Constitution, too. And not putting our best people forward. Let's just say that.
12:11 Kate Shaw? Yeah. Judge Koffner was, according to reporting, totally unsparing in his continued questioning of this DOJ lawyer, and noted that, quote, "There are other times in world history where we look back and people of goodwill can say, where were the judges? Where were the lawyers?"
12:25 Melissa Murray? What were those times?
12:26 Leah Litman? Yeah, exactly.
12:27 Melissa Murray? Does anyone know? What were those times? Where were the people charged with defending the rule of law?
12:33 Leah Litman? Could it be?
12:34 Kate Shaw? So other moments of the kind of ascent of authoritarianism, he seems to be drawing a distinction between the crazy shit that political leaders and actors might engage in and the distinct set of obligations that lawyers and judges have to defend the rule of law. So he's like, I'm not even saying anything about like what political actors can try. I am talking about your obligations as members of the bar and my role as a judge. And and that I found like really bracingly clear.
13:01 Melissa Murray? This is no liberal squish of a judge. Like this is an octogenarian who was appointed by Ronald Reagan, himself no liberal squish. Like this is just someone who's very clearly saying, hey, everyone, this is totally outside of the mainstream. This is completely off the wall. Do not normalize this.
13:22 Leah Litman? So I wanted to say two things, Kate, particularly bringing up this ascent of authoritarianism, because for whatever reason, I have recently been spending time reading a lot about the role of courts in authoritarian regimes. And I think we should expect that Judge Kofner's order in joining this or temporarily restraining it, like that's going to stand. This Supreme Court is going to strike down the executive order. But we shouldn't take from that that this court is an independent, meaningful check on authoritarianism, because courts in autocracies, they will oftentimes rule against the state, at least sometimes in order to give themselves like a window dressing of independence and thereby lending more credibility to the regime when they don't rule against it.
14:03 Leah Litman? And I agree with you that lawyers obviously take an oath and they have an independent obligation to not make redonculous, obviously incorrect arguments. But I also don't think this is the unique province of lawyers. Like, we shouldn't just say, you know, oh, the lawyers are saying this is wrong. No, everyone can read the first sentence of the 14th Amendment. This is obviously unconstitutional.
14:25 Kate Shaw? I think that's a great point. And also lawyers don't just come into play when there's a challenge that ends up in court, right? Lawyers reviewed the draft of this thing, I presume, because they do in every administration. So they had an obligation to and seem not to have really adhered to it.
14:39 Melissa Murray? There were also two separate and significant executive orders that Port to end DEI diversity, equity and inclusion measures. There was one focused on the federal government and one that also included federal contractors and members of the private sector more generally. The second order involved rescinding a 1965 executive order that President Lyndon Baines Johnson actually put in place to address the blatant race discrimination that had been occurring in the awarding of federal contracts. And we're just raising all of this to make clear that this executive order is nominally about ending so-called DEI initiatives and getting back to a quote unquote merit based federal government.
15:24 Melissa Murray? But what it's really intent on doing is rolling back the civil rights movement, the gains made by the civil rights movement and simply leveling the playing field. So people who previously had been excluded could finally have a shot.
15:37 Kate Shaw? Yeah, no, we are interested in just yanking that playing field right out of whack once again, both in the federal government and in the private sector. So that second EO that Melissa was just talking about goes well beyond federal contracting in the federal government and actually instructs the federal government to look into private sector DEI initiatives. So each federal agency is instructed to identify up to nine potential civil compliance investigations. Then they're supposed to identify the most egregious ones. So as in so many of these executive orders, there is just both vile substantive content and like sort of stupidity. Like, why not?
16:14 Melissa Murray? One for each justice, one for each justice, one employer for each.
16:18 Kate Shaw? Sure, maybe that's why. But it's just they decided to throw a number at it. And but it certainly seems as though it's designed to incentivize actually generating some, you know, positive hits that these agencies can come back to the White House and say, here, we identified some potential violations. But again, nine, no idea where that comes from, but I like the theory.
16:37 Melissa Murray? Also pernicious is another section that requires agencies to include in every contract or grant that the contractee or grantee quote agrees that its compliance in all respects with all applicable federal anti discrimination laws is material to.
16:53 Leah Litman? The government's payment for purposes of the False Claims Act. So what does that mean? The False Claims Act allows private parties to sue government contractors for treble damages if they are defrauding the government. And here, the federal government is saying, if you aren't in compliance with our unhinged vision of anti-discrimination law, like, you're defrauding us, because that's a material term. And that opens up a field season for ideological lawyers to go after federal grantees and contractors.
17:25 Melissa Murray? There's no getting around the fact that this EO is taking time bomb. Like, the threat of liability to these companies is enormous. And because of that threat, it seems that some companies are already moving to change their practices to avoid this kind of scrutiny.
17:44 Leah Litman? And the federal government is, in many ways, pushing them to do so. So it has also set up a NARC hotline where people can and are encouraged to report anyone suspected of nefarious DEI activities, by which they seem to mean hiring minorities and women or treating them as people. So the acting director of the Fed's HR department, the Office of Personnel Management, kind of insinuated that federal employees should rat out their DEIA, diversity, equity, inclusion, and accessibility colleagues by emailing [email protected] . Like, this is real French Revolution, Soviet Russia, "report your neighbor" tactics.
18:26 Leah Litman? And as we were saying, like, so much of this is about rolling back the civil rights revolution and movement, like, trying to repeal part of the 14th Amendment, undoing anti-discrimination protections in federal contractors. You know, a part of me wonders if they think they're the Supreme Court, which read out Section 3 of the 14th Amendment in Trump versus Anderson. But, sorry, sorry, it's just...
18:54 Kate Shaw? No, that's right. They learn from watching you, Dax, through the situation.
18:57 Leah Litman? Thank you, Kate. Oh, my God.
18:59 Kate Shaw? I'm learning.
19:00 Leah Litman? Thank you. I'm all trainable.
19:02 Melissa Murray? My gosh.
19:03 Kate Shaw? But when you were saying French Revolution or Soviet Russia, I was also remembering that. You remember that movie, great movie, some years ago, The Lives of Others, like East German, Stasi and like reporting on your neighbors? Like, that does seem like that's the climate they want to create inside the federal workforce. So.
19:18 Melissa Murray? Sounds like a great place to work.
19:20 Kate Shaw? Well, it seems as though making it intolerable is part of the point. So there are other instances that seem to support this general theory that they're not actually interested in ending DEI. Really, the goal is much more ambitious. We just do roll back the civil rights movement writ large. And additional evidence of that is pretty clear in the administration's directive to the DOJ Civil Rights Division to halt all its investigative activity and not pursue any new indictments or cases or settlements. One of the executive orders we were just talking about has this Orwellian title, quote, "ending illegal discrimination and restoring merit-based opportunity," which is a very rich title for the administration nominating Pete Hegseth to be Secretary of Defense.
20:03 Melissa Murray? DEI is definitely working for him.
20:05 Leah Litman? Yeah, new DEI in town. It's like dicks and dudes in each and every institution.
20:12 Melissa Murray? Dicks, ex-husbands, imbeciles.
20:13 Leah Litman? Yes.
20:17 Melissa Murray? Yup. As Kate suggested, these EOs are really diabolical. One of the things they do is they frame DEI initiatives as, quote unquote, "dividing Americans by race," as though the initiatives that they are now rolling back are just about imposing racial preferences. And they're not. Many of these initiatives that the federal government has over the years undertaken involve measures to simply track and document the recipients of government contracts in order to avoid privileging certain networks and disadvantaging those who are outside of those networks. They also include measures to end sex segregation in government jobs. So women are not consigned to jobs in the secretarial pool and only the secretarial pool.
21:01 Melissa Murray? They also include measures that are aimed at providing accommodations to federal workers who have disabilities. So it's framed in the language of race, but obviously DEI is about more than that. But, you know, they are sort of. Pigeonholing this in order, I think, to appeal to the most inflammatory sectors of their base. And also, it's not entirely clear how they intend to determine who is a so-called DEI hire or when DEI initiatives have been used.
21:30 Leah Litman? I have a guess.
21:31 Melissa Murray? Yeah, so it just seems like anytime someone who is a person of color or a woman gets a job, it's obviously DEI, which to me.
21:38 Leah Litman? Well, a good high-ranking job.
21:40 Melissa Murray? Yeah, some are good for them. Like, what are black jobs again? I don't know. But it just, again, it feels literally like this is about reinstating race and gender hierarchy, not about actually focusing on the question of merit. Because, news flash, and I hate to tell some people, there are people of color and women who are qualified for things.
22:03 Leah Litman? Well, that's DEI.
22:05 Melissa Murray? I know.
22:06 Leah Litman? Woke warrior here. Another thing the administration kind of did in this bucket is they purported to suspend Women's History and Black History Month, like.
22:17 Melissa Murray? It was only February, it's the shortest month ever. Anyway, we'll just talk about it some other time.
22:23 Leah Litman? Right. So, that's one executive order. And we're gonna, after we tick through a few others that are related, I think, talk about some coping strategies or maybe things to do with them. But another related one is, and it got executive order that is about transgender people. So, this EO purports to deny that trans people exist by defining them out of existence. And just as an executive order cannot repeal the Constitution, an executive order cannot erase people's existence, though it can do a ton of symbolic and material harm.
22:58 Melissa Murray? So, as Project 2025 urged, this executive order announces that it is the policy of the US to quote-unquote, "recognize two sexes, male and female," end quote. And that this recognition is grounded in, quote, "fundamental and incontrovertible reality," end quote. It promises that this principle will guide the executive branch enforcement of federal law, which probably means that they will not be enforcing federal laws for the purpose of protecting trans people. And indeed, it says explicitly that the federal government does not plan to extend or apply Bostock versus Clayton County to any other anti-discrimination laws besides Title VII. So, if you were wondering about that, it stops here. It ends with us.
23:42 Kate Shaw? The EO also directs agencies to require government-issued IDs, including passports, to reflect sex assigned at birth. The State Department has already moved to freeze all applications, which it had previously allowed, for passports with X sex markers or applications to change sex on passports pursuant to this executive order, which, you know, thinking about the kind of material harms that Leah just alluded to, like, this is like trans people not being able to travel, like, not being able to leave the country. People have actually booked vacations, like, people-
24:11 Leah Litman? They've got a family-
24:11 Kate Shaw? have plane tickets. People have family other places. And so, you know, it's not an abstraction. Like, the stakes are so real, and they're only getting started. In addition to this kind of document piece, the executive order also has a vague promise to, quote, "take all necessary steps to end the federal funding of gender ideology," whatever that means. There's no operative provision of this part, just necessary steps. It is clearly designed, I think, to send the message that the rest of the executive order does, which is just this really retrograde, binary, heteronormative conception of the world and push it out into every corner of the federal government.
24:48 Leah Litman? So we'll get to conception in a second. In another pernicious passage, this executive order says, quote, "The Attorney General shall issue guidance to ensure the freedom to express the binary nature of sex and the right to single-sex spaces and workplaces and federally funded entities covered by the Civil Rights Act," end quote. In other words, they are signaling they want to use federal law as a weapon against trans-inclusive practices and insist that it is a civil right to deny trans people their civil rights. Predictably, the order is biologically illiterate and incoherent. So it defines a female as, quote, "a person belonging at conception to the sex that produces the large reproductive cell," end quote.
25:31 Leah Litman? And a male as a person, quote, "belonging at conception to the sex that produces the small reproductive cell," end quote. There's just like a slight problem with this, which is at conception, we're all fucking female. Like, this executive order is written by fucking posters. It's an executive branch full of posters. And of course, the reference to conception was probably just inserted so they could do a nod to fetal personhood and the idea that fertilized eggs are people, that theory, recall, would require abortion to be prohibited nationwide and jeopardize a certain forms of contraception and in vitro fertilization and other reproductive healthcare. They just are doing it all immediately.
26:16 Kate Shaw? And we're talking about these sort of sequentially, but this executive order, which you can think of as similar to the military trans ban from the Trump administration, you know, part one, but for everything, should be read together, I think, with the anti-DEI executive orders, which are structured in ways that threaten the private sector with investigations and litigation unless they shut down an inclusive and accessible set of practices. So some companies, like Walmart, have already decided to stop sharing data with the Human Rights Campaign, a nonprofit that tracks LGBTQ inclusive policies. And Walmart did not have to do that. Sharing data would pretty clearly not violate any kind of federal law or directive. But it's clear that the effect of the executive orders, and I'm sure the intent of these executive orders, is even beyond their terms, just
27:00 Kate Shaw? to lead a lot of companies to modify their practices to be less inclusive.
27:04 Leah Litman? So suggested some advice slash thoughts, you know, on all of this?
27:11 Melissa Murray? The Meltzer Center on Diversity, Inclusion, and Belonging has shared a guide for corporations to sort of think through some of these things, identifying, you know, sort of the scope of these EOs and also like noting what their limits are. And we can include a link to that guide in the show notes. But I think a really important thing here is that you don't necessarily have to go gently into this. You know, some of this stuff is challengeable and should be challenged. And, yeah. That's why you have GCs and outside counsel.
27:44 Leah Litman? Two other small things. I mean, one is obviously these executive orders are, as we were saying, going to have huge symbolic and material harm on people's lives. So to the extent you can like, look for ways to support people who are going to be disproportionately affected, like whether that is offering, I don't know, to do like meal trains, family care, or just like other things you can do to try to take some of the burden off. And then also, law firms, many of them have developed practices related to DEI, like actual practice areas. And given that they are now apparently going to be absorbing a bunch of DOJ lawyers into law firms, to the extent that they can offer services to defend, obviously, legal DEI policies, I hope I kind of see that happen.
28:29 Melissa Murray? In the meantime, Costco is still good.
28:33 Melissa Murray? You can do that instead of Walmart and Amazon.
28:36 Kate Shaw? Right. See, their shareholders just recently, you know, something like 99% voted to retain DEI policies. So go Costco.
28:43 Melissa Murray? Go Costco. And you get free samples. What's not to love?
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31:18 Melissa Murray? Y'all, we are not even done covering these EOs. There's more. There is absolutely more. There's the invasion executive order. This is where President Trump has declared the situation at the border, quote unquote, "an invasion" under Article Four, Section Four. And we just want to give credit where credit is due. This is actually Judge Jim Ho's idea, Jim Ho of the Fifth Circuit, because he invoked this idea, and I'm using the term idea generously, in the context of birthright citizenship to say that unauthorized migrants were invaders and therefore their children were in part of this invasion at the border and could not be citizens. Here, Donald Trump is like, let me put a gloss on that.
32:02 Melissa Murray? And is instead invoking Article Four, Section Four, which says that the US shall protect the states against invasion. So it's nice that you can repurpose crap and like try it out in a new context. So. Upcycling, I guess.
32:16 Leah Litman? Right. So let's be clear what Trump is using it for because it's not here, right? To deny citizenship, right?
32:22 Melissa Murray? No.
32:22 Leah Litman? To people born in the United States.
32:23 Melissa Murray? There is.
32:24 Leah Litman? Instead, he's saying like, I declare an invasion at the border and therefore that gives me the president these constitutional, really extra constitutional sources of authority that allow me to suspend federal immigration law, or at least the parts of it I don't like, to prevent people from entering the United States and giving them permission to do so. Not how this works again, obviously illegal, but like, that is what he is claiming here.
32:49 Melissa Murray? He's like, Jim, there's something good here.
32:52 Leah Litman? Let's go bigger.
32:53 Melissa Murray? Let's go bigger.
32:54 Leah Litman? I'm gonna noodle on it.
32:54 Melissa Murray? Yeah.
32:55 Leah Litman? I'm gonna noodle on it.
32:55 Melissa Murray? Yeah.
32:56 Leah Litman? Some nits, some nits.
33:00 Kate Shaw? All right. So speaking of ignoring federal law, let's now turn to the TikTok executive order. So in this executive order, the president tells his attorney general not to enforce the federal law levying fines and penalties on US companies that host or service TikTok. Because what is law, anyway? The executive order, which doesn't actually propose a foreign divestment of TikTok, but instead a hybrid 50-50 partnership between ByteDance and some US company, also flagrantly violates the ban, which was passed with bipartisan support and upheld by a unanimous Supreme Court.
33:33 Melissa Murray? And so while you're just giving the middle finger to two coordinate branches of the federal government, why not just go whole hog and tell the attorney general to send companies letters explaining that they won't face liability for 75 days under the TikTok ban while Donald Trump, the nation's consummate dealmaker, attempts to work something out with TikTok. More on that later. So.
33:58 Leah Litman? Yeah.
33:58 Melissa Murray? There are levels to this.
34:00 Leah Litman? Yeah, but because these are not the smartest lawyers in the world, or even in Bethesda, they forgot to remove the boilerplate language in executive orders, which says, quote, "This order is not intended to and does not create any right or benefit substantive or procedural enforceable at law or in equity by any party against the United States." I.e. you can't actually use this executive order to create a right against fines levied by the United States.
34:28 Melissa Murray? Details, Leah. These are just details.
34:31 Leah Litman? It's.
34:31 Melissa Murray? We're doing broad brushstrokes here.
34:34 Leah Litman? These are just details.
34:35 Kate Shaw? And I think some people who saw the executive order were like, hang on, I don't understand. It seems like it says two things that are totally at odds. But you're right, Leah, it's just there is this boilerplate language that is in the template you pull up to draft an executive order. And I don't think anybody paid attention to the actual content of that language, which does seem to undermine everything that precedes it.
34:55 Leah Litman? Textualism, textualism.
34:56 Kate Shaw? Right, right. Who has time to read when you're trying to churn out this many executive orders in the first 72 hours? So it was also a little bit rich, I think, that the day after the administration announced this executive order, the federal government argued to the Supreme Court, which we're going to talk about in a couple of minutes, that when an agency announces a non-enforcement policy, that does not, quote, "in any way alter the fact that it is illegal for a private party to violate federal law." That was in the R.J. Reynolds case. So it seems like the left-hand, right-hand are not necessarily in the greatest of communication right now.
35:27 Leah Litman? Speaking of left-hand, right-hand being like a little disjointed, I mean, remember, I don't know, was that last week, we were talking about whether Biden saying ratifying the ERA did something or had force? And people are like, no, no, no, no, right? He can say that. It doesn't like mean anything. But now Donald Trump is just like suspending federal law. And people are like, yeah, like, you know, yeah, he's doing it. So I guess there's nothing, nothing for us to do here.
35:51 Kate Shaw? But as you're often in a position of reminding us, he is a Republican president, Leah, and that's, that's what makes all the difference.
35:56 Leah Litman? All the executive power is vested in Republican presidents. I always forget. I sometimes, okay. But, you know, this, this TikTok thing, whatever, wasn't the only thing the administration did for the brologarchy. As we noted up top, they issued a crypto executive order that establishes a working group to recommend regulatory changes on cryptocurrency, how convenient, given that the Trumps released not one, but two crypto-ish coins. And the working group is, as again noted, tasked with advising the federal government on stockpiling crypto, which is just a transfer of public wealth to crypto bros.
36:33 Melissa Murray? There is another executive order. This one declares a quote unquote "energy emergency" and authorizes the federal government to take extraordinary measures in response to said emergency. Just want to note, this is the first ever federal energy emergency we have ever had. It's true that in the 1970s, amidst the gas shortage, President Carter authorized state governors to suspend some environmental regulations to address the shortage of gas. But he did urge them to act with due care because of the implications for public health, and he advised them to suspend only some of the rules, and only as a last resort. This is obviously not that. It is obviously much more expansive. But I just want to note some incongruencies here.
37:16 Melissa Murray? First, it's weird to declare an energy emergency at a time when the United States is the world's largest producer of oil and natural gas. Just going to put that out there. Also really weird to declare an energy emergency at the same time that you are trying to stall production of other forms of energy, particularly renewable sources of energy like wind and solar. So what exactly is going on here? Well, according to experts who spoke on the record to The New York Times, some of this is about halting the Biden administration's very significant efforts to transition to renewable energy sources and decreasing the country's dependence on fossil fuels as an energy source.
37:59 Melissa Murray? So apparently, it's not just the broligarchs who are getting over here. The oil and gas industry also. Good stuff here for them, too.
38:07 Kate Shaw? Okay, so there is also an executive order halting the promulgation of federal regulations until they can be reviewed. And for good measure, there is one, you know, we suggested that some of these are ridiculous. This, I think, is Exhibit A in the ridiculous ones. There's an executive order that is titled "Restoring Names That Honor American Greatness" that purports to rename both the Alaskan mountain Denali to restore its previous name, Mount McKinley, and, most ridiculously, to rename the Gulf of Mexico the Gulf of America. Although, at least with respect to the Gulf, the executive order Seems mostly to direct some like printing of maps to change the name,
38:48 Kate Shaw? but it doesn't seem to have any like actually enforceable law in it otherwise. It's kind of a weird document, but seems as though lots of press outlets, including the AP, have said they're not going to change their style. It's still going to be called the Gulf of Mexico. I think this is actually a helpful illustration. We don't all have to take at face value and amplify the most extravagant claims that Trump makes about what he has done. Like, let's actually read the documents and then report on them.
39:14 Leah Litman? So, in addition to issuing all of these crap executive orders, Trump also got busy pardoning the January 6 rioters, like just a mass pardon, including those who were convicted of assaulting federal officers. For a few individuals, he commuted their sentences rather than pardoning them, but, you know, back the blue forever, I guess. You know, there are some open questions after these pardons and commutations, including whether state prosecutors could charge January 6 participants for preparations, you know, that happened in their states. Also, whether, you know, federal judges can impose penalties for violations of supervised release, for example, you know, in cases where individuals had their sentences commuted but weren't pardoned.
39:59 Leah Litman? So, you know, these issues aren't really going away.
40:02 Melissa Murray? The J6 pardons obviously attracted a lot of attention, but we wanted to highlight two other pardons that were issued last week. Last Wednesday, Trump issued full and unconditional pardons to two Washington DC police officers who were convicted after a chase that killed Karen Hilton Brown, a young black man in 2020. The first officer, Terrence Sutton, was sentenced last year to more than five years in prison for second degree murder and obstruction of justice in the unauthorized pursuit. He was the first DC police officer to be convicted of murder for actions undertaken while on duty. The other pardon recipient, Lieutenant Andrew Zabovsky, was sentenced to four years in prison, not directly for the killing of Mr. Hilton Brown, but for conspiring with Sutton to cover up the deadly police chase.
40:46 Melissa Murray? The two had been set free pending the outcome of their appeals, and now, obviously, those appeals are a moot issue.
40:54 Leah Litman? So those weren't the only pardons going around. Trump also pardoned people who had been convicted of violating the FACE Act, the Freedom of Access to Clinic Entrances Act, the federal law that prohibits breaking into, blockading, or obstructing access to abortion clinics. Among those pardoned was Lauren Handy, who was found to have not one, not two, but five fetuses in her home. Tim Walz tried to warn us these people are weird. And of course, these pardons are likely to embolden anti-abortion demonstrators. So those are just the formal executive orders and pardons. He also froze civil rights cases at the Department of Justice, ordering the Civil Rights Division, you know,
41:38 Leah Litman? not to continue with any investigations or settlements in that section.
41:43 Kate Shaw? And we could go on just to tick through a couple of additional things. The government appears to have canceled, or at least paused, all of the research grant reviews and travel and trainings for scientists inside NIH. And these are some, like, clinical studies, including cancer research that are already underway. Some of them are almost done. But if the grants are frozen, they can't be completed and written up. This is also true about an enormous amount of grant expenditure happening at the State Department that also seems to be frozen and maybe impossible to actually complete projects. Like, just in addition to the chaos and cruelty, it is just shockingly wasteful to decide to let all of this largely spent money
42:25 Kate Shaw? be for naught because you think there is this ideological axe to grind. And it extends to all of scientific research and all foreign aid, as far as I can tell. I mean, it's really, truly stunning. And kind of closer to sort of our neck of the woods, the administration also appears to have rescinded all DOJ honors offers. So these are law school three Ls typically, who are going to graduate and thought they had entry-level jobs inside the Department of Justice and have now been told the jobs that they had already been offered and accepted are no longer available. So they're all scrambling for work. So there's going to be a crop of very promising three Ls, all of a sudden on a late job hunt for people looking to hire young attorneys.
43:05 Leah Litman? Yeah, and if, you know, listeners with job leads or jobs for three Ls now facing the prospect of restarting job searches have ideas, you know, please share them. And we are more than happy to share them on social media and amplify them.
43:19 Melissa Murray? Thoughts on the first week? I'll just say, I think we're lucky that it was a short work week and like, day one was basically only a half day for them.
43:28 Leah Litman? Small blessings. You know, it was horrible. It was as bad as I expected. And in trying to, again, find a way to cope with and deal with this, I found myself coming back to the idea that the fact that it was bad in ways I expected is a reminder to kind of trust myself. And if you found yourself thinking the same, like, trust yourself, right? Like, you were right. This is not a normal administration. They are doing outlandish, cruel things. And so, I don't know, I found that in some ways, like, affirming and, yeah.
44:05 Melissa Murray? Am I a hysterical woman? Nope, nope. Right on the nose. I'm actually, I'm actually catching everything they're pitching.
44:12 Leah Litman? Correct.
44:13 Melissa Murray? Yeah.
44:13 Kate Shaw? Yeah. One observation, and I'm not trying to be naive or to minimize, this is like, an absolute horror show. But I also think it feels like these kind of scattershot efforts to find and eliminate these pockets of potential resistance and pushback inside the executive branch and outside, come from a place of fundamental weakness. Like, I just think you are not this concerned that there will be people inside the administration who disagree with you if you're really confident about the power of your ideas.
44:42 Melissa Murray? Your mandate, as it were? Your non-existent mandate?
44:45 Kate Shaw? Yeah, like, I actually think the things that they want to do, you know, beyond lowering the price of eggs, which actually, it would be popular, the things they actually want to do are not popular. And so, they have to do everything they can to neutralize pockets of resistance because the American people actually don't think want what they are doing. And so, I do derive some comfort from that, although it is not at all offered to minimize the suffering that is going to follow from many of these actions.
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47:42 Speaker 06 Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the second annual Crooked Con. It's going to be the Positive America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.
48:31 Kate Shaw? So we're going to now turn to the cases that the court heard argued last week. It heard four cases over two days. And interestingly, the United States was either a party or an amicus in all of those cases. So the political heads of the Solicitor General's office, so Elizabeth Prelogar and her deputy Brian Fletcher are out, right? They're the kind of political appointee that turns over at the end of an administration. And there's a new acting Solicitor General, former Thomas Clerk and Williams and Connolly partner, Sarah Harris. But the assistants arguing the cases last week were the same ones who were there before. There have been no insane changes in the position of the United States in the first couple of days. And I weirdly found that comforting in this week of just absolute shitshow chaos.
49:12 Melissa Murray? I appreciate that that was your take. I have to say, like, hearing you describe it in some ways made me a little concerned. Like, there's this veneer of normalcy and everyone is acting like things are fine and this office is just going to march on continuing doing the work of defending what the federal government is doing as the federal government changes. I don't know. I mean, I hope you're right that there is some...
49:37 Kate Shaw? There's some stability or continuity. The veneer might be dangerous. That's totally right. But I just, in my mind, I was like, right, well, if they wanted to say, we're going to cancel all the Supreme Court arguments the way we cancel all the civil rights investigations, they can't because the Supreme Court has already scheduled them. So it's, maybe this is a tiny comfort, but there actually is another institution that if they wanted to...
49:54 Melissa Murray? I'm not sure I want the court to be deciding these cases.
49:57 Kate Shaw? But it could constrain the executive branch if it wanted to. Whether it will is, of course, a different question. But it is, the office is different than other parts of the executive branch in some ways. Now, is it better? I don't know. But that was one observation. But on to the cases.
50:11 Melissa Murray? You can't spell Kate without take. That was quite a take. Okay. All right. The first case was FDA versus R.J. Reynolds. And that case involved a challenge under the Family Smoking Prevention and Tobacco Control Act, which gives the FDA authority to regulate tobacco products. It also requires tobacco manufacturers to obtain the FDA's permission before putting a new tobacco product on the market. And if the FDA denies that permission, under the statute, any person adversely affected by the denial can therefore file a petition for judicial review of such regulation or denial with the United States Court of Appeals for the District of Columbia Circuit or
50:54 Melissa Murray? for the circuit in which such person resides. That's important. And generally, for corporations, that would usually mean that they would bring this suit in the circuit where they are incorporated or where they have their principal place of business.
51:10 Leah Litman? So listeners will recall that the court heard oral argument in December in the case FDA versus White Lion, which addressed whether the FDA had acted arbitrarily and capriciously in allegedly changing the standards for how and when it approved flavored e-cigarettes. That's the underlying substantive issue in this case as well, but it's not the question the court is addressing here.
51:31 Kate Shaw? Rather, the court is addressing a procedural question. So RJR Vapor is incorporated in and has as its principal place of business, North Carolina. North Carolina is in the Fourth Circuit, which has rejected manufacturer challenges to the FDA's denial of e-cigarette applications. But instead of filing its challenge in that court, RJR Vapor filed its petition in, wait for it, the Fifth Circuit, where the petition was joined by Avail Vapor, which does business in Texas, and also a trade association for Mississippi retailers that sell RJR Vapor's products. And Texas and Mississippi are in the Fifth Circuit.
52:03 Melissa Murray? The plot thickens. Accordingly, the question here is whether a manufacturer may file a petition for review in a circuit other than the D.C. Circuit where it doesn't reside or have its principal place of business if the manufacturer's petition is joined by a seller of the manufacturer's product that is located in that circuit. And because retailers are everywhere, this would essentially allow corporations to choose their preferred circuit in which to litigate these challenges.
52:33 Leah Litman? And the Supreme Court is actually going to be hearing another case that raises similar questions, but about the EPA later this term and whether regulated entities can sue the EPA outside of circuits that are designated by statute and elsewhere, like the Fifth Circuit. Regulated entities want to go to the Fifth Circuit for a good time.
52:53 Kate Shaw? It's like the Fifth Circuit is OnlyFans for corporations.
52:55 Leah Litman? Yes.
52:58 Melissa Murray? Anyway, at oral argument in this case, much of the action focused on whether the retailers were, quote unquote, adversely affected by the agency's denial of the petition to go to market and therefore authorized under law to seek review in their home circuits as opposed to the manufacturer's home circuit. The lawyer representing the FDA insisted that the adversely affected language was intended to encompass only manufacturers who were negatively impacted by the FDA's denial of an application. Retailers on this logic were just bystanders to the application process. Not all of the justices, however, agreed. So here's a clip from a colloquy between the FDA's lawyer, Vivek Suri, and the Chief Justice.
53:40 Speaker 07 It is implausible that Congress set up a system in which someone, the retailers, would have a right to challenge an agency order but wouldn't have a right to be notified of the order in the first place. It's simply unlikely that Congress would have expected such a person to be able to challenge the order within 30 days after it's issued. They don't even know that it's been issued in the first place. Well, I think they probably do, in terms of what they're following. I think it's a bit much to call them bystanders. I mean, their business depends upon this or another circumstances, whatever the retailers are. And the whole purpose of the proceeding is to either overturn a decision preventing retailers
54:23 Kate Shaw? from doing what retailers do with respect to the particular product. I mean, if that's the whole point of it, from the government's point of view, the regulatory point of view, and what's harmful to the public, it's whether or not these products are going to be sold, I don't know why the retailers aren't the most likely people to bring in action. Justice Thomas, who definitely seems sympathetic to RJR Vapors' position, focused on the issue of venue, and specifically, why it even mattered to the FDA where these challenges were litigated. So let's roll that clip. We're definitely not talking about jurisdiction here. We're merely talking about venue.
55:03 Kate Shaw? And when I think of venue, I normally think of convenience to the parties. As a practical matter, why is it inconvenient for the government to litigate in one circuit versus another?
55:16 Speaker 07 It's not inconvenient for the government.
55:19 Kate Shaw? So what's this all about?
55:20 Speaker 07 It's about Congress's choice in the statute. Congress could have passed a statute that said you can sue the government anywhere you want. It chose not to do that. It specified particular venues. I think it had good reasons to do that. One is to minimize opportunities for forum shopping, ensuring that cases can percolate among multiple courts before they get to this court. Contrast wages, where you had cases from eight different circuits that addressed the question before it got to this court, to what's happening now, where almost all the cases are being filed in the Fifth Circuit. Congress had good reason.
55:55 Kate Shaw? It seems like it's convenient for you, then.
55:58 Speaker 07 Well, it's the statute Congress enacted, and that's what we're asking the court to apply.
56:03 Kate Shaw? So does it have anything to do with your...
56:07 Speaker 07 Not winning in the Fifth Circuit. We have, we neither like nor dislike the Fifth Circuit, Justice Thomas. What we dislike is for the other side to be able to choose whichever circuit is most convenient out of all 12 in the country.
56:22 Leah Litman? So, the venue issue that Justice Thomas is alluding to is a separate second issue in the case. The first question is whether any person adversely affected includes downstream retailers. The second is about if there are multiple persons filing the petition for review, can you file where any of them reside, or is venue more limited?
56:40 Melissa Murray? One person seemed amenable to the government's position here, and that was Justice Jackson, who emphasized that the retailer's interest here seems to crystallize only once the product is approved by the FDA and then placed on the market. So here's a clip from her.
56:56 Kate Shaw? Let me ask you about the pre-market assumption that retailers and manufacturers actually stand in the same shoes. I guess I'm not sure I understand that, because it would seem to me that retailers really get their interest from marketed products. Again, it's, once a product is on the market, the retailers come in, they buy it up, they do whatever, and they're ready to sell it to customers. I'm not sure that they have the same interest as a manufacturer in pre-market, pre-development, is it going to be approved or not? So can you say more about why you're just assuming that retailers and manufacturers have the same interest in the pre-market scenario?
57:40 Melissa Murray? Under RGI Vapors' logic, Justice Jackson pressed, if the retailers were interested parties, that would open the door to lots of other people being interested parties, including consumers who may have an interest in vaping products or in challenging the denial of any other kind of authorization involving e-cigarettes. So, we'll see where that goes up in a puff of smoke, as it were.
58:06 Kate Shaw? All right, and on to the next. The court also heard oral argument in McLaughlin Chiropractic versus McKesson. The central question here is whether the Hobbs Act requires a district court to accept the Federal Communication Commission, or FCC's, legal interpretation of the Telephone Consumer Protection Act, or TCPA. If a district court did have to accept the FCC's interpretation, that doesn't mean people can't challenge the FCC's interpretation. It just means they have to do so via a petition for review in the Court of Appeals once the FCC actually issues an order.
58:34 Melissa Murray? In the specific context of this case, the question arose as to whether a district court could impose liability on McLaughlin for alleged violations of the TCPA, even though the FCC had concluded that behaviors, like McLaughlin's alleged behavior, didn't actually violate the TCPA. So here, McLaughlin allegedly sent unsolicited ads via online fax machines, and the FCC has said that online fax services don't fall under the ambit of the TCPA's prohibition on unsolicited messages via telephone fax machine.
59:07 Leah Litman? In some ways, this case could be understood as part of the Loper Bright hangover. You know, it implicates the question of agency interpretation of a statute it administers and poses the possibility of conflicting judicial interpretations of the statute. And that's kind of how Justice Thomas seemed to approach the case. Like, what do you mean, courts can't overrule an agency, as you can hear here? So as I understand you, if a case, if this case were to come before a district judge, an order before a district judge, and the district judge says, "This is the most ridiculous opinion I have ever seen in my many years on the bench. However, I have no authority to review it." You don't see a problem with that.
59:52 Leah Litman? I have to say, hearing this, I felt like saying, Clarence, this is how I feel about Texas district court decisions all the time. They are the most ridiculous opinions I have ever seen.
1:00:06 Kate Shaw? But Thomas doesn't have a problem with those.
1:00:08 Melissa Murray? So, moving on, there was also an oral argument in Barnes versus Felix. And the issue in this case is whether the moment of threat doctrine applies to an excessive force claim under the Fourth Amendment. The moment of threat doctrine, according to the Fifth Circuit, means that you can only evaluate whether an officer used excessive force at the exact moment the officer felt threatened. That would allow you to ignore basically everything that happened before the officer allegedly felt threatened, like whether the officer threatened someone or had already used excessive force, or, whereas here, they jumped on someone's car who was suspected
1:00:47 Melissa Murray? of not paying a toll, then got scared when the car moved and shot the driver multiple times, killing him. So, all of that could be taken out under this new interpretation.
1:00:59 Leah Litman? And indeed, that's what the Fifth Circuit did on such facts. Blissfully, a majority of justices seemed to agree that the moment of threat doctrine makes no sense and departs from the court's holistic analysis of Fourth Amendment claims. One justice wasn't so sure, and this justice was really concerned about what the poor police officers would do. And that was Brett Kavanaugh, who somehow managed to be, or at least sound, more pro-police than Sam Alito, which should be a sign, my guy, to take a chill pill. So, here's a montage of Brett's interventions.
1:01:33 Speaker 01 What's an officer supposed to do when at a traffic stop and someone pulls away? Just let him go? Our officer's always prohibited at traffic stops when the car pulls away from jumping on a car. What do you tell an officer who pulls someone over for a traffic violation, but, as often, or not often, but sometimes happens, that person has done or is planning to do something more serious? And, you know, driving away is one potential indicator of that.
1:02:04 Speaker 01 An officer does not get the time we've spent here today to make the decision, do I let it go, knowing that this person could do serious harm or has done and will never catch the person, or do I jump on the car? And they have to make that decision and about, what do you tell them?
1:02:20 Kate Shaw? Yeah, so this case was one of the many so far this term in which, once the court took up the question in a case, there was actually some debate about whether the question was even really implicated, right? Like, there was a question of whether the moment of threat doctrine really does mean only the moment, or they actually, even under this test, can look at least a couple seconds before. But I think that they are going to stick with the question as framed, and thankfully, in this case, they will reject that moment of threat doctrine, and I don't think they're going to say much more than that. That is my prediction.
1:02:50 Melissa Murray? I think Justice Kavanaugh will write a dissent, and it will be just three words: back the blue.
1:02:54 Leah Litman? Oh, gosh.
1:02:55 Melissa Murray? But weirdly, he will have nothing to say about these pardons, so, you know. Finally, the court heard a case Cunningham versus Cornell University, which is about how a plaintiff can make out an ERISA claim. ERISA is the Employee Retirement Income Security Act, and that is the federal law that establishes standards for retirement and health plans. And the particular question here is how to make out a case for a claim that the employer has violated that statute. So, listeners, my husband is away for a month-long trial in San Francisco, which means, like, I am doing all the house-holding thing. I am momming so hard, I just fall into bed and I'm so exhausted.
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1:06:04 Speaker 06 Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is gonna have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the second annual Crooked Con. It's gonna be the Pod Save America hosts and some of the smartest people in politics. We're gonna try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.
1:06:51 Melissa Murray? I have to say, much of the action this week was outside of the court. So we're gonna give it the time it deserves.
1:06:56 Leah Litman? Much of it is likely to make its way to the court.
1:06:59 Melissa Murray? Yeah, we're just setting the stage. That's why we spent so much time on those EOs. Like, we gotta give you the background. But let's turn to some additional court culture. We wanted to answer some questions that we have received in the Crooked Discord on the once-defunct, but now again operative TikTok. So if you are not already a Friend of the Pod subscriber, just want you to know, you are missing out. There is a Crooked Discord, including in that Friend of the Pod subscription, where you can join a community discussion, and we can hear directly from you about the topics you would like us to cover. So if you're not already subscribing, you are missing out and you need to get on that. So in the Crooked Discord, some listeners wanted to know
1:07:41 Melissa Murray? why the opinion in the TikTok case was unanimous, or alternatively, what does it mean that it was unanimous? And some wanted to know whether we thought SCOTUS was right here, since it seemed to them that there was actually a real chance that the People's Republic of China was leveraging collected data or engaging in content manipulation, which might actually seem like a legitimate security threat. So let's weigh in.
1:08:06 Leah Litman? Yeah, so I think the unanimity was expected from the argument like none of the justices were sympathetic to TikTok's claims. And I think in some respects, it was understandable, like, given the kind of background considerations, you know, of real concerns about this hypothetical possibility, also given the justices' backgrounds as executive branch lawyers, you know, accustomed to believing that the federal government is making real legitimate valid security determinations, and that the executive branch's determinations on those should win out. As to what I think, you know, like, the mixed motives in this case give me pause. The fact that conceitedly the federal government had at least two reasons for adopting the ban. One was ostensibly not
1:08:46 Leah Litman? related to the content of the speech on TikTok. Another was the content manipulation rationale. And what also gave me pause is that there was evidence of even more content-based purpose, so concern about pro-Palestinian content on TikTok. So that makes me worried. And what also makes me wonder about this is just how over-inclusive the law is and under-inclusive. What I mean by that is it doesn't apply to a host of other platforms where we know the content is manipulated, like Elon Musk manipulates the algorithm, Facebook shared data with Cambridge Analytica. Facebook and Meta were supposedly in Instagram, you know, vetoing and taking off content about abortion from their platforms, you know, until that
1:09:28 Leah Litman? was reported. And you can buy Americans' data on open markets, and there seemed to me to be other means of accomplishing these objectives, like a disclosure requirement or disclosure about data. You know, like, if you want to work for the government, you have to disclose you had TikTok or something. But, like, I understand where some of the justices were coming from. You know, like, the looming threat of data harvesting and blackmail based on that doesn't seem out of bounds or outside the realm of possibility. And, again, I understand the instinct for courts not to decide all of these questions and letting the executive branch do so, but I was more nervous than the unanimity, I think, suggests.
1:10:07 Melissa Murray? A quick postscript on what actually happened after the court issued its decision in the TikTok case. First, TikTok initially shut its Self down. So it wasn't the case that the ban went into effect and TikTok was no longer being serviced by American platforms. It was like TikTok turned it off, turned off the lights essentially. And when users opened the app, they received a message about how a law banning TikTok had gone into effect. But the message then continued with, quote, "We, TikTok, are fortunate that President Trump has indicated he will work to find a solution to have us reinstated," end quote.
1:10:44 Kate Shaw? So that pause was in effect, and I don't know how long it was, 16 hours or something like that, like less than a full day. And TikTok then issued another statement saying they would go back online. And when they did, users opened the app to see a message that read, "Welcome back. Thanks for your patience and support. As a result of President Trump's efforts, TikTok is back in the United States. You can continue to create, share, and discover all the things you love on TikTok." This just felt so much like, do you remember in like April or May of 2020, when Trump ordered the stimulus checks to bear his name? It was like, like that, except for you don't even have to get the US printing operation retooled. You could outsource all of it to TikTok. It just felt like a metaphor.
1:11:25 Melissa Murray? So I did enjoy those 16 hours where teenagers around New York City were just walking around, slack-jawed and dead-eyed, like not knowing what to do with themselves. Like, what do I look at?
1:11:35 Leah Litman? Even though TikTok is back, like they have ruined the app because they have put TikTok in a position, maybe where it wanted to be, right? Where they are just supplicating before Donald Trump and potentially another mass media platform that is just running interference for Donald Trump. And yeah.
1:11:51 Melissa Murray? Isn't that all of, I mean, isn't Meta doing that?
1:11:53 Leah Litman? It is all of them now. It is, yes.
1:11:55 Kate Shaw? Not Blue Sky.
1:11:56 Melissa Murray? Not Blue Sky.
1:11:57 Leah Litman? Yes. Yeah. Okay. So we really are going to continue to make a concerted efforts to highlight good things occasionally on this show. And we have some good culture to talk about, at least two points before we returned to a piece of sad news. But first, some good news. Okay. So the Supreme Court issued a per curiam opinion in the case of Brenda Andrew, the woman who was convicted of murder and sentenced to death after prosecutors sex-shamed her for being a bad mother with a sex life. The prosecutor, in closing, literally showed the jury the lingerie she took on vacation after her husband was murdered and other just truly gross stuff. And the court's opinion in the case is actually quite good. The court vacated and sent back the lower court opinion that had ruled against Brenda
1:12:41 Leah Litman? and denied her petition for habeas corpus. Brief background to understand what the court did. A federal law, the Anti-Terrorism and Effective Death Penalty Act, only allows federal courts to grant writs of habeas corpus to people who are convicted of state courts if their conviction or sentence is contrary to or unreasonably applying some clearly established Supreme Court law. And the lower court's reason that it wasn't clearly established that sex shaming someone to death, like a prosecutor using sex stereotypes to secure a conviction and sentence, was unconstitutional. But by a vote of seven to two, the Supreme Court rejected that notion and held that it was, in fact, clearly established that prosecutors cannot introduce super prejudicial inflammatory evidence, including evidence that caters to sex stereotypes. The case will go back to the lower courts, which will determine whether the state court
1:13:24 Leah Litman? unreasonably applied that clearly established law when they rejected Brenda's claims. But the case is a big deal, not just for Brenda Andrew, but also in making clear, no pun intended, that it is clearly the law that prosecutors cannot introduce unduly prejudicial evidence. It's also just a super rare habeas win. So hats off to the lawyers at Phillips Black who secured it. Phillips Black is also a law firm that is representing Richard Glossip, or one of the law firms representing Richard Glossip, whose capital case is at the court this term.
1:13:51 Kate Shaw? I have to admit, I just had a chance to skim the procurium opinion, but a lot of the time, so procurium means we don't know who the author was, a lot of the time, the chief justice writes those, but this was definitely not a Roberts.
1:14:01 Leah Litman? Yeah, I agree.
1:14:02 Kate Shaw? Right? Yeah.
1:14:03 Leah Litman? Talked about ladies.
1:14:04 Kate Shaw? And Ms. Mira Jackson. It was not. It was the voice. It was this was one of the women on the court, and probably not Justice Barrett. But I don't, I was really curious who, who actually drafted it.
1:14:14 Leah Litman? Yeah, me too, for sure.
1:14:15 Kate Shaw? So the second piece of good news is that the court stayed the injunction the Fifth Circuit had issued against the Corporate Transparency Act, which required crypto companies to disclose certain transactions so as to avoid financial fraud and other things. So a while back, we mentioned that the Texas district court decision that concluded that the Corporate Transparency Act was unconstitutional was, you know, the result of this galaxy brain move that the idea of the law, which regulates corporations engaged in commerce, did not fall within the scope of Congress's authority to regulate interstate commerce under the Commerce Clause.
1:14:44 Leah Litman? The Fifth Circuit ultimately upheld the injunction against the Corporate Transparency Act after first staying it, like really putting on a show for the people.
1:14:53 Melissa Murray? The short order claimed that, quote, "In order to preserve the constitutional status quo while the merits panel considers the parties weighty substantive arguments," end quote, "the stay order would be vacated." Wadey was doing a lot of work there.
1:15:08 Leah Litman? Yeah, plaintiff's arguments aren't weighty, and vacating the stay wouldn't preserve the status quo. It would overrule the New Deal. The weighty argument that the Fifth Circuit needed to consider was the suggestion that the law regulated inactivity because it required companies engaged in commerce to disclose those commercial transactions. Like, the Fifth Circuit is performance art at this point, and they are the best public relations machine the Supreme Court has ever had.
1:15:33 Melissa Murray? All right. Typically, when we end on the Fifth Circuit, it's a somber note, but this is actually a really somber note to end on. So we just wanted to note the passing of Cecile Richards, who was the poised, impactful, brilliant, and amazingly admirable leader of the Planned Parenthood Federation of America from 2006 to 2018. She passed away on January 20th, the morning of the inauguration, after facing an enormous challenge in the form of a very aggressive strain of brain cancer. After leaving Planned Parenthood and while she was struggling with cancer, Cecile worked to launch Charlie, a chatbot that helps abortion seekers find the services that they need, as well as launching Abortion
1:16:18 Melissa Murray? in America, an effort to bring attention to the experiences of those harmed by abortion bans. She was an amazing advocate, an amazing seeker of justice, a daughter, not only of former Texas Governor Ann Richards, but of the labor movement itself, and she saw labor, sex equality, reproductive access as all parts of a necessary campaign for women's equality. And so we mourn her passing, and may her memory be a blessing.
1:16:46 Kate Shaw? All right, that's all we have time for today. A couple of announcements before we go. First, the next four years are going to be a lot, but there are resources to help you through it all with honest analysis on what is happening, why it matters, what we can do to push back against an extreme Trump agenda. Supporting Vote Save America is one great place to start. Over the next couple of months, Vote Save America is creating spaces to recharge, find community, take steps to protect those at risk in 2025. You can go to votesaveamerica.com and sign up for their email list to learn more. This message is paid for by Vote Save America. You can learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidate's committee.
1:17:22 Leah Litman? And in case you missed it, I was on the most recent episode of Assembly Required with Stacey Abrams to dissect the impact of all of these moves that the Trump administration is making, from renaming Denali to ending birthright citizenship. Stacey and I explored the threat to the balance of power, why we should be concerned about the new bureaucracy that stood behind Donald Trump at his inauguration, and how we individuals can resist and fight back to safeguard our democracy. You can listen to this episode of Assembly Required right now, and new episodes drop every Thursday wherever you get your podcasts. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Cade Shaw, produced and edited by Melody Rauel.
1:18:07 Leah Litman? Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Matusky. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/AtStrictScrutinyPodcast. You can see the cool new t-shirt I'm wearing. I'm a fan. Anyways, if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
1:18:52 Speaker 06 Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is gonna have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual Crooked Con. It's gonna be the Positive America hosts and some of the smartest people in politics. We're gonna try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.
1:19:34 Speaker 01 This holiday, there's the easy way with Staples or the hard way. Hard means...
1:19:38 Kate Shaw? Seventeen people on my list, 11 stores. I got one gift.
1:19:42 Speaker 01 For who?
1:19:43 Kate Shaw? Me. I needed a pick-me-up.
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1:20:29 Speaker 01 Yep, you needed that.
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