Deportations and the Death of Due Process

After a deep dive on the Trump administration’s horrifying misuse of the Alien Enemies Act to deport people from the US without due process, Kate and Leah preview upcoming SCOTUS cases about the Voting Rights Act and the Environmental Protection Agency. Along the way, they also touch on the Trump administration’s targeting of certain law firms and its continued attacks on DEI. Hosts’ favorite things this week: Leah: Fight! Fight! Fight! https://substack.com/inbox/post/158985345?triedRedirect=true, Rebecca Traister; AOC’s Bluesky feed https://bsky.app/profile/aoc.bsky.social during the CR debates/debacle; The Hidden Motive Behind Trump’s Attacks on Trans People https://www.nytimes.com/2025/03/17/opinion/trump-trans-denationalizing.html, M. Gessen; This Election Will Be a Crucial Test of Musk’s Power https://www.nytimes.com/2025/03/18/opinion/musk-wisconsin-supreme-court.html, Kate Shaw; Trump Has Gone From Unconstitutional to Anti-Constitutional https://www.nytimes.com/2025/03/19/opinion/trump-musk-constitutional-unconstitutional.html, Jamelle Bouie Kate: The Feminist Law Professor Who Wants to Stop Arresting People for Domestic Violence https://www.newyorker.com/news/persons-of-interest/the-feminist-law-professor-who-wants-to-stop-arresting-people-for-domestic-violence, Sarah Lustbader; The Dangerous Document Behind Trump’s Campus Purges https://www.chronicle.com/article/the-dangerous-document-behind-trumps-campus-purges, Daphna Renan & Jesse Hoffnung-Garskof; The Cost of the Government’s Attack on Columbia https://www.theatlantic.com/ideas/archive/2025/03/columbia-academic-freedom/682088/, Christopher L. Eisgruber Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:01Leah Litman?

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• 0:45Leah Litman?

  With a focus on conversation, you'll be ready to talk wherever you go. So I spent my spring break in Mexico. I was finally able to sleep when I was out of the country. Apparently, that's what I needed to actually relax. And so it was really useful for me to be able to use my Babbel language skills, to be able to tell people, "Please, I'm trying to nap, and that's what I am doing here." Also was a way for me to communicate that I would like the Snickers ice cream, please, because that's what you do in Mexico. So do you need proof that Babbel gets you talking? Studies from Yale, Michigan State, and other leading universities continue to prove Babbel works. One study found that using Babbel for 15 hours is equivalent to a full semester at college. With over 16 million subscriptions sold,

• 1:30Leah Litman?

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• 1:57Speaker 01

  Mr. Chief Justice, may I please report? 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.

• 2:09Speaker 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."

• 2:39Leah Litman?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Litman.

• 2:47Kate Shaw?

  And I'm Kate Shaw. And here's our plan for today. We're going to start with a newsy item that will almost certainly have changed shape significantly by the time this episode reaches you, but it's really important and we wanted to have a discussion about it regardless. And that is the administration's escalation in their efforts to evade judicial review of the president's illegal actions. So we're going to start with that. We are then going to preview the cases the court is hearing in the upcoming sitting. And as we do that, we're going to highlight how a lot of things the Trump administration is doing right now, such as dismantling DEI, by which we mean, of course, desegregation at integration, as well as dismantling the federal government writ large, are also

• 3:30Kate Shaw?

  things the Supreme Court either seems poised to do, has already laid the groundwork for, or has signaled it is pretty interested in doing.

• 3:40Leah Litman?

  So we're going to do this for a few reasons. One is that we still want people to know what is happening and the wild illegality of what is happening in Article II. And second, we want to help people see how this is part of what I think is a coordinated ideological and political effort that the Supreme Court is very much a part of, even though the court is likely to invalidate some parts of what Trump is doing. And even though they've gotten a PR boost this last week that we will talk about, they are, I think, at bottom, very much on board with a lot of the administration's politics. And then finally, at the end, we're going to touch on a moment from the State of the Union address that we haven't yet had a chance to discuss and a few other small things.

• 4:23Kate Shaw?

  Okay, so first up, as previewed, some news. And just a note, we are recording on Wednesday. It's not optimal, but sometimes our schedules require it. And as I already said, this is a very rapidly developing story. But again, even if it's going to be a little bit dated by the time it gets to you, we need to have a conversation about it. And specifically, the story is of the litigation surrounding the Trump administration's efforts to invoke the Alien Enemies Act as a basis to deport people slash remove people deportation.

• 4:53Leah Litman?

  Engage in human trafficking?

• 4:55Kate Shaw?

  Right, I'm not, I think the reason I'm hesitating is because deportation typically describes return to one's country of origin. And that is actually not what this is. This is expulsion of individuals to another country with which they may have no connections, certainly without anything recognizable as due process of law.

• 5:14Leah Litman?

  Yes, so last Friday, that is not this most recent Friday, but the Friday before that, after we recorded, the Trump administration appeared to begin the process of relying on the Alien Enemies Act to launch their mass deportations slash, you know, whatever we should be properly calling them. The Alien Enemies Act is a 1798 statute that allows the summary removal of foreign nationals who are in the country without or with legal status, including legal permanent residents, and regardless of whether they have committed any crime or violated any law. So it's sweeping power. And here's the but, by its terms, it applies only when there is a, quote, "declared war

• 5:56Leah Litman?

  between the United States and any foreign nation or government," or "an invasion perpetrated against the territory of the United States by any foreign nation or government," end quote. The law has only ever been used three times: the War of 1812, World War I, and World War II.

• 6:15Kate Shaw?

  And on Saturday, the administration issued an executive order formally invoking this 1798 statute, the Alien Enemies Act, but it was far from clear exactly who they were saying was subject to the AEA's procedures. So the administration declared that a gang called Tren de Aragua, or TDA, was part of a, quote, "hybrid criminal state that is perpetrating an invasion of and predatory incursion into the United States and which poses a substantial danger to the United States." The executive order discusses the Maduro regime's efforts in connection to Tren de Aragua to destabilize democratic nations like the United States, which God was rich coming

• 7:00Kate Shaw?

  from these guys, right? What they're doing is trying to destabilize American democracy. That's the problem. Anyway, so the EO asserted that, under the Alien Enemies Act, the administration could arrest, detain, and remove all, quote, "Venezuelan citizens 14 years of age or older who are members of TDA are within the United States and are not actually naturalized or lawful permanent residents of the United States."

• 7:24Leah Litman?

  And it is not clear how the administration will determine who is a member of TDA. And in any case, you know, whether they are, in fact, a member of TDA would be subject to review, including in federal court. And it's not even clear to me this is a lawful use of the Alien Enemies Act, since TDA is not a country or foreign nation. But just on this issue of who the administration is going to say is part of TDA, the early stories that have dug in even a little to how the administration is using the Alien Enemies Act are pretty horrific. The Washington Post described how four men who grew up together in Venezuela have no criminal convictions in the United States and whose families say they have no criminal

• 8:08Leah Litman?

  records in Venezuela were summarily expelled. The story horrifyingly describes how the men were asked to sign deportation papers and did because they thought they were going to be removed to Venezuela, you know, their country of origin. When in fact, they were sent to El Salvador prisons where they are being held and forced to do labor. Their families believe they are there because they saw images of them released by El Salvador. And, you know, one of the partners of one of the men told the Washington Post, quote, "My heart broke in a million pieces. My husband is not part of Trandiragua, and I couldn't believe they sent him there."

• 8:49Leah Litman?

  And she described the look that she saw on his face as, quote, "A face of pain and of fear."

• 8:56Kate Shaw?

  In addition to that, Washington Post reporting, the Miami Herald describes the experience of another family member who saw her brother and told the paper from this image, quote, "He was asking for help. Help didn't come from the lips, it came from the soul." And also, quote, "You know when someone has their soul broken." I mean, this is truly horrifying and grotesque. And honestly, those descriptions, I think, you know, are borne out if you actually did look at the images that resulted from these military planes removing individuals and landing in El Salvador, both like the still images of individuals deplaning in chains who had been picked up and flown to El Salvador with no legal process.

• 9:38Kate Shaw?

  I actually couldn't bring myself to watch a video that El Salvador's president, Bukele, circulated on social media, although I read about it. But it sounds like it was a totally sadistic celebration of this brutality.

• 9:49Leah Litman?

  Yeah, so I watched it and read these stories and looked at the images just as I was prepping for the show. And anytime I looked at the image or read some of what the families were saying, like, I just got choked up and I was concerned that was going to happen again, recording. I mean, just imagining a family member being shipped off to some country where they have never been sent to a prison, essentially engaging in slave labor, it's just...

• 10:22Kate Shaw?

  You know, our names, like at the hands of United States authorities, like, it is so shocking.

• 10:27Leah Litman?

  Yes.

• 10:29Kate Shaw?

  So what do we know about what, if anything, the government is doing to decide who is a member of TDA and thus is going to be put on one of these planes?

• 10:40Leah Litman?

  One of the briefs the government filed included these outlandish statements. So it acknowledged that many of the individuals removed have no criminal records in the United States. And it says, quote, "The lack of specific information about each individual actually highlights the risk they pose. It demonstrates that they are terrorists with regard to whom we lack a complete profile." Like, the lack of information indicating someone is a member of TDA or engaged in any unlawful behavior is evidence that they are a member of TDA and engaged in unlawful behavior.

• 11:23Leah Litman?

  I read this and, again, I couldn't believe they were saying this. And I happened to be teaching Korematsu last week in constitutional law, and so immediately wanted to pause and reflect how this kind of reasoning calls to mind the cruel and horrific internment of American citizens of Japanese descent during World War II, an internment that was, by the way, carried out by an order that followed President Roosevelt invoking the Alien Enemies Act to designate Japanese nationals "alien enemies." And an American general justified Japanese internment during World War II with reasoning that is eerily similar to what the administration is now saying.

• 12:08Leah Litman?

  Quote, "The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken." End quote.

• 12:19Kate Shaw?

  Yeah, I mean, I know we're going to talk more about John Roberts later in the episode, but like if we think back to Trump versus Hawaii and just how incensed Roberts was that Sotomayor in dissent drew a parallel between the Muslim ban and Korematsu and then said Roberts did, well, it's obvious anyway, but let's just make it explicit. Korematsu has no place under our law, but was, as Jamal Green has actually written about very well, like was actually quite narrow in the way Roberts described Korematsu and what was wrong with it in ways that very clearly left open, whether intentionally or not, the possibility of circumvention. And, you know, this is not the same move in that people are being put on planes as opposed to detained in the United States. But I think you're right that there

• 13:00Kate Shaw?

  are some eerie parallels in the reasoning and obviously the statute as to the, you know, Japanese nationals and Korematsu, not the US citizens, but that statutory authority being asserted is exactly the same.

• 13:11Leah Litman?

  Yeah.

• 13:11Kate Shaw?

  So here we are. So, early Saturday morning, and again, that's last Saturday, a week ago, a judge in the DC District Court, Judge Boesberg, began acting on emergency filings in this case, brought by the ACLU and some other groups challenging the executive order. By the end of the day, the judge had issued a temporary restraining order blocking the federal government from relying on the executive order we just read from to deport anyone and actually ordering the United States government to turn around the planes that had begun to deport people. So, you know, huge kudos to the organizations, which include both the ACLU and also Democracy Forward, that really scrambled to get these filings

• 13:51Kate Shaw?

  in front of the judge, and also to the judge for recognizing the urgency of challenging this move essentially before the administration had invoked or relied on it.

• 14:02Leah Litman?

  Yeah. And just a side note, you know, Fox News has been displaying a picture of Judge Boesberg while everyone on the show criticizes him. And I had thought Republicans were so damn concerned about criticizing judges because that led to risks of violence. And apparently that is only concerning when you are criticizing judges for doing things that Republicans want them to do, you know, once again reaffirming their view that the First Amendment gives you only the right to say things that they like.

• 14:32Kate Shaw?

  Yeah. Okay, so back to the order. So Judge Boesberg issues this order and immediately there were several questions about whether the administration had complied with it. So several planes had taken off right around the time of this hearing and the issuance of this order, including, I think it's pretty clear, one plane that took off after Boesberg issued his order. And the administration's response to being called on this has come reasonably close to essentially, you've made your decision, now you try to enforce it. So that is only a slight overstatement the administration has, and I think it's important that it has continued to try to justify in the language of law what it has done, albeit

• 15:15Kate Shaw?

  really very unconvincingly. So it has basically said, as to the planes that took off before the order, the planes were already in international waters by the time of the order. And also, they asserted that there were, quote, "questions" about whether a judge's oral order, which in this case, the judge had made from the bench before following it up with a written order, but they suggest that the oral order, which was all they had at the time in question, was maybe not as binding as the written order that followed.

• 15:44Leah Litman?

  Yeah, it's like an order-ish, you know, not like an order order, classic. It's like how appropriations aren't law, you know, like some orders aren't orders. It's shades of law, shades of orders. Just important to note, like, this is all bullshit, right?

• 16:01Kate Shaw?

  Right, that's not true. What he was saying is not in fact true, just like appropriations as law light, also not a thing.

• 16:06Leah Litman?

  Appropriations are law. And, you know, as to whether verbal orders are in fact orders, Judge Boesberg said in a later hearing, quote, "So when I said directly, turn the plane around, you read it because my written order was pithier. This could be disregarded." That's a heck of a stretch. And also, it doesn't and shouldn't matter whether the planes are in international waters or not, since the court's authority in these habeas cases is over the detainer, the individual detaining them, and that person is in the United States. So as to the plane that took off after the order, the administration has said the individuals on that plane were not deported under the Alien Enemies Act, but under some other legal authority.

• 16:45Kate Shaw?

  After all this transpired, Judge Boesberg attempted to hold a hearing to look into the details here, like whether actually the government had complied with the order in any recognizable sense. And honestly, the administration basically stonewalled at that hearing. So Boesberg pressed on this question, right, like, how many planes departed that were carrying people on the basis of the proclamation? DOJ basically refused to answer, right? It said the only thing it was authorized to say was that the flights weren't relevant to the written order and that somehow for national security or diplomacy reasons, they just couldn't provide any additional information.

• 17:22Leah Litman?

  Yeah, so Boesberg was kind of like, yo, I get classified information all the time. Like, he is one of the judges who has been appointed to the Foreign Intelligence Surveillance Act and, you know, he-

• 17:36Kate Shaw?

  Yeah, that's when they were like, no, oh, no, you think we were saying we can't, we just are saying we don't want to, and that's the difference.

• 17:42Leah Litman?

  And he just, I think, was incredulous, like, asking, why are you showing up and not having answers? And, look, if you are invoking things like the state secrets privilege or saying the answers are classified, you know, you have to say that. And then he issued an order demanding them to respond to his questions. And in a kind of a passive aggressive way, said, you know, what I will hear from you, and I will memorialize in written form, since apparently my oral orders don't carry much weight. And so we are kind of waiting on the government's responses at this point.

• 18:19Kate Shaw?

  But while we're waiting for those responses, we are hearing from administration officials in other quarters, including people talking off the record on background to the press, and sometimes with their own names and faces attached to the press. So a couple of choice quotes, like, one, The Washington Post quoted an unnamed White House official saying, quote, "I say this with no disrespect to any of the previous administrations, and I'm trying to phrase this as delicately as possible. The White House has the balls to do it." So delicate, so respectful of previous administrations. Thank you.

• 18:50Leah Litman?

  This is what it means to bring masculine energy, right, to the White House.

• 18:56Kate Shaw?

  Long overdue.

• 18:57Leah Litman?

  It's just, like, real men don't follow the law. Real men don't follow court orders. It is quite something. And, you know-

• 19:05Kate Shaw?

  They show up and they squirm and they deflect, and that is masculine energy.

• 19:09Leah Litman?

  Yes, it is, it is. And here's Tom Homan, Trump's borders czar, on one of the many press appearances that the Trump administration, Trumpers, were doing.

• 19:20Speaker 04

  We're not stopping. I don't care what the judges think. I don't care what the left thinks. We're coming.

• 19:25Leah Litman?

  And El Salvadorian president Bukele retweeted a story about the judge's order with a statement, "Too late," and a laugh/cry emoji, which Secretary of State Marco Rubio retweeted. This is Secretary of State Marco Rubio, who Democrats unanimously confirmed, by the way. And I guess, you know, I'm curious, Kate, like, do you think we have arrived at the moment of noncompliance?

• 19:51Kate Shaw?

  I mean, I think we've said this before, that thinking of this as like a binary or an on/off switch like is maybe wrong. We are sort of, we are further along the path to democratic collapse and sort of, you know, institutional complete meltdown. I think they're still showing up to court, filing challenges, they're filing briefs and declarations and appeals. And so they have not decided, "We owe you no answers to the courts." And now, I'm sure you will say, Melissa Wood, if she were here, "That's a ridiculous bar." And yet, I certainly would not put it past them to basically say more explicitly to the courts, "We owe you nothing. We have no obligation even to respond." And they are not doing that.

• 20:36Kate Shaw?

  So they have not completely decided to abandon this sort of interbranch effort at justification. But obviously, we're close.

• 20:43Leah Litman?

  Yeah. That is kind of where I am at as well. And I think what the administration is doing here is, in some ways, like quite similar what has been doing in other cases, where I think there are also serious questions about compliance, where they've insisted like, "Oh, no. We didn't like freeze those contracts or those grants like under the order that you enjoined. We did it under some third thing." And so I think that like we are already kind of at the precipice of this noncompliance. And that's not to say I think like noncompliance is the defining moment of a constitutional crisis. I think we are already there. But it does seem like we might be entering at least that phase of a constitutional crisis.

• 21:25Kate Shaw?

  Yeah.

• 21:30Leah Litman?

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• 22:57Kate Shaw?

  Obviously of note, since we entered this particular phase of the constitutional crisis, we have to talk now about Chief Justice Roberts. So in addition to unnamed White House officials talking to The Post and borders czar Tom Homan talking to Fox News, Trump took to Truth Social to basically call for the impeachment of Judge Boasberg, who he described as a radical left lunatic of a judge, a troublemaker, an agitator, who was, I'm quoting here, obviously, sadly appointed by Barack Hussein Obama. So, he goes on, but that really gives you the flavor of it.

• 23:35Leah Litman?

  Yeah.

• 23:36Kate Shaw?

  So a couple of hours later, Chief Justice Roberts was actually moved to respond, and he issued a pretty rare statement from him that said, quote, For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose. And this, you know, in addition to the 2018 intervention that was also a response to Trump judge bashing where Roberts said, there's no Trump judges or Obama judges. This was a significant moment. What did you think of it?

• 24:07Leah Litman?

  You know, I'll give him like half a crumb of something. I think it is important for high ranking political officials to counteract through statements, the outlandish things that the president is saying and the assertions of authority he is making. On the other hand, this to me is the guy in the hot dog suit meme. Like, we are all looking for the guy who did this. This is John Roberts expressing concern that Donald Trump views himself as above the law, unaccountable to the law. And it's like, where was this fucking energy last summer when you were writing the immunity opinion that basically said presidents are entitled to act like kings and they are above

• 24:47Leah Litman?

  the law and unaccountable to the law and courts in important respects? And now he's acting all surprised that the president who he said can act like a king is gonna be acting like a king and saying, I don't have to take shit from courts and the law? I mean, come the fuck on.

• 25:05Kate Shaw?

  Yeah, the like, why do you think Trump is so indignant and surprised that anyone would try to check him, right? Because on July 1st of last year, you essentially handed him the powers of a king. So absolutely, I think that the predicament in which we find ourselves is one for which John Roberts bears an enormous amount of responsibility. I think there is no question. So to my mind, the question is just like, A, does Roberts understand to some degree? Like, I don't, I, obviously, this is like the optimist in me, thinking like, he sees that actually we are in a moment of grave constitutional danger and this is sort of one indicator of that and there will be more. And if that's right, then I have both questions about the substance of the rulings that will

• 25:50Kate Shaw?

  issue from the court, but also like, if he's worried about the district courts and the, I think, actual danger that the behavior of Trump and his inner circle are creating for these judges, what is John Roberts doing about it behind the scenes? I would like there to be more than just this statement because this standing alone is certainly not enough. And so, and the fear I have, so I hope that he is doing more, like, you know, he is the administrative head of that. Branch of government, and I'm not exactly sure what he could be doing, but I know there could be more than just like a couple of sentences in a press release. But then I also worry to kind of the substance of rulings that Roberts will think like he has done his part now and can retreat to essentially rubber stamping most or all of what the administration has done. And I think that that is, you know, trying to

• 26:35Kate Shaw?

  buy capital here that then will allow you to rule for the administration. I think there's a real possibility. I don't know. I don't know which sort of what the future holds. I do think that they're likely to probably do hand Trump some losses and then some victories, and it'll matter a tremendous amount what those look like. And I don't know. I don't. I think this could be a signal that points in either direction, that this is the beginning of John Roberts, like actually trying to impose some meaningful checks, or like this could be John Roberts saying, this is all I got. And I don't know which is right.

• 27:03Leah Litman?

  Yeah, I mean, to my mind, I think the more likely scenario is this is the kind of superficial institutionalism that he is known for, right? He is not a substantive institutionalist in the sense of actually shoring up the court as an institution and its integrity, or preserving our other institutions and their integrity either. His entire game is like making the court look legitimate and then basically knifing the country in the process. And I have just been endlessly bothered and annoyed ever since the chief justice issued this statement at the amount of praise he has been getting and at the clamoring of so many people, including in the Democratic Party, to say and underscoring

• 27:46Leah Litman?

  the importance of the institution of the courts and saying courts need to be respected and that they are the true arbiters of the law and this independent institution that is the bulwark of our liberties. And it's like, do you not remember like literally six months ago, another woman who may have died because of an abortion ban, like that too is on the court. And so it is just really troubling to me that

• 28:14Leah Litman?

  How bad the Trump administration is, is buying the court some credibility and capital when they don't deserve it at all?

• 28:24Kate Shaw?

  Yeah. I mean, I think it's just going to be within a matter of weeks, they're going to have several of these matters before them, the court, and I think we'll know a lot more about whether, you know, what, what the sort of next phase for John Roberts and the courts looks like. And I truly don't know yet.

• 28:39Leah Litman?

  Yeah. Did want to highlight one other thing on the Alien Enemies Act litigation. One of the many concerning claims the administration has made in the briefing in the case to date is that the Department of Justice is arguing that the president can unilaterally deport anyone he wants without any statutory authority because the Constitution and his inherent authority gives him that power. So the actual language in the brief is, quote, "Beyond the statute, the president's inherent Article II authority is plainly violated by the district court's order as a function of his inherent Article II authority to protect the nation. The president may determine, you know, that TDA represents a significant risk and that its members should be summarily removed." And that is not a system of laws.

• 29:26Kate Shaw?

  Article II gives the president the power to deport anybody, to close any university, to shutter the doors of a law firm.

• 29:31Leah Litman?

  To decline to spend funds that Congress has appropriated, to declare some laws not laws at all.

• 29:37Kate Shaw?

  Fire anybody, empower anybody unilaterally to do anything.

• 29:40Leah Litman?

  But you know what it doesn't give the president the power to do?

• 29:43Kate Shaw?

  Hmm.

• 29:43Leah Litman?

  Cancel student debt. That's tyranny. That's tyranny. Keep that in mind.

• 29:50Kate Shaw?

  Indeed. All right. On that note, on to the previews. As we've mentioned before, the court had a relatively quiet first set of sittings, but it has really packed the big cases into the final sittings of the term. It often does that. It really, really did that this year. So in the upcoming sitting, the court is going to hear a major Voting Rights Act case, several cases that will affect federal administrative agencies, including one that will affect whether agencies can really issue regulations at all, a case about the future of Planned Parenthood, and a case about whether states have to financially support religious organizations. We're just going to focus on the cases that are going to be argued in the first week of the sitting, and then just note the cases that will be argued during the second week and return to cover them in more depth once they're actually argued.

• 30:35Leah Litman?

  So first up is Louisiana versus Calais. This is a pretty big Voting Rights Act case that we have talked about some already in the last season of the show. It arises out of the litigation over whether Louisiana violated the Voting Rights Act by drawing congressional districts in ways that diluted the political power of Black voters. So after a court concluded that Louisiana had indeed violated the Voting Rights Act, and after the Supreme Court affirmed just two years ago in Allen versus Milligan that the Voting Rights Act is indeed still a thing, or at least parts of it that remained are still a thing, the court had to figure out how to remedy, you know, how to fix Louisiana's Voting Rights Act violation. One option for the court was to draw a new set of districting maps, and the other was to give the legislature a crack at doing so.

• 31:20Kate Shaw?

  And the court opted for the latter approach. And so the legislature began tackling how it could draw maps that complied with the Voting Rights Act while also accomplishing some other objectives. So several groups proposed different maps to the legislature, and the legislature weighed different considerations, including how much they cared about compactness of districts, whether the districts are split or divided by naturally occurring boundaries, whether the districts secured the right partisan advantage and partisan balance that the legislature wanted, and also whether the maps complied with the Voting Rights Act by creating a second district where Black voters had the opportunity to elect a candidate of their choice. So the legislature ended up, among these maps, selecting one that sacrificed some traditional districting criteria, like compactness, in favor of other goals, and in particular,

• 32:03Kate Shaw?

  preserving the safety of some Republican seats, including the seat of Republican Speaker Mike Johnson, who is from Louisiana, and also disadvantaging members of Louisiana's Republican delegation to the House that had broken more with MAGA elements of the Republican Party. So politics was really front and center in the decisions about the map that the legislature did adopt.

• 32:23Leah Litman?

  But a lower court, drawn from the Fifth Circuit, concluded that the map which complied with the Voting Rights Act and sought to remedy a violation of the Voting Rights Act was unconstitutional racial discrimination because the legislature had tried to comply with the Voting Rights Act and had tried to ensure Black voters would be represented, since allowing Black people to have political power is the real racial discrimination. The court said that those motivations, which the-- Court described as racial motivations, you know, predominated in the legislature's districting decision and therefore the map was constitutionally suspect. As should be clear, this case is about whether legislators can try to draw Voting Rights Act compliant maps and select from among Voting Rights Act compliant maps as they take into account other considerations as well.

• 33:06Leah Litman?

  You know, at bottom, is complying with the Voting Rights Act the real racial discrimination today? You know, getting back for some of our OG listeners, is invalidating the Voting Rights Act necessary to enforce the Voting Rights Act or the constitutional prohibitions on racial discrimination in voting?

• 33:22Kate Shaw?

  Unfortunately, this ludicrous argument is likely to fare better than the ludicrous argument that adding a question about citizenship was necessary to enforce the Voting Rights Act. But that's a difference between Trump I and Trump II, I think, in a nutshell.

• 33:36Leah Litman?

  Yeah.

• 33:37Kate Shaw?

  Anyway, so we said after Allen versus Milligan, and Melissa has really said, don't breathe too easily, right? The court there in a 5-4 vote did not nullify what remained of the Voting Rights Act. But but there was a distinct possibility that the Voting Rights Act and what's left of it was on very shaky footing after the court narrowly upheld it in that case. And it may well be that in this case, just a mere two years later, the chickens have come home to roost.

• 34:04Leah Litman?

  Yeah. And I think it is important to link what is happening here in the Supreme Court to the Trump administration's efforts to roll back the civil rights movement and civil rights revolution. You know, as the Trump administration basically tries to resegregate the workforce and other institutions of civic society, you know, the court is potentially resegregating politics by dismantling a key protection for political opportunities for Black voters and other racial minorities. The through line, or at least a through line, in this is the idea that facilitating diversity or ensuring the presence of Black people in schools, civic institutions, and politics is itself a form of racial discrimination. You know, for example, the Trump administration recently decided that the Civil War itself is just too woke.

• 34:45Leah Litman?

  The Washington Post reported that the Arlington Cemetery website scrubbed links about Black and female veterans and, quote, "The cemetery has completely removed educational materials on the Civil War and Medal of Honor recipients, among other topics."

• 35:01Kate Shaw?

  It's so outrageous. Okay, let's tick through some other recent outrage. So the federal government required DC to remove the Black Lives Matter mural that was created in 2020 after the murder of George Floyd. And I, for some reason, had been under the impression that it was just being painted over, but no, like friends in DC have informed me that it's more mosaic, and so it was actually the street was ripped up in order to remove that mural.

• 35:25Leah Litman?

  Yeah.

• 35:26Kate Shaw?

  And then, late Friday evening, after a district court judge had enjoined the Trump administration's attempt to literally cancel the law firm Perkins Coie, finding that the executive order targeting the firm was obviously an unconstitutionally retaliatory in nature, the Trump administration decided to double down by lashing out at another law firm. And this time, it was, at least in part, because, on its face, because the firm seems to have done some civil rights work. So on Friday, the president signed an executive order called, quote, "Addressing Risks From Paul Weiss." So Paul Weiss is a New York law firm.

• 36:01Leah Litman?

  And we should note, by way of disclosure, that Melissa's husband is a lawyer at the firm.

• 36:07Kate Shaw?

  So this executive order, like the last, was broad, it was punitive, it directed federal agencies to suspend security clearances held by lawyers at Paul Weiss, it required federal contractors to disclose whether they do business with Paul Weiss, and directed agencies to review all contracts with Paul Weiss. It also, once again, directed agencies, quote, "to the extent permitted by law," to, quote, "provide guidance limiting official access from federal government buildings to employees of Paul Weiss when such access would threaten national security," which, again, a district court had just found was likely unconstitutional with respect to a firm with a different name, and so is also unconstitutional with respect to this firm.

• 36:44Leah Litman?

  Right. Like, the law does not permit this, and the statement of purpose in the executive order made clear, once again, this is all about retaliation. You know, the primary offense Paul Weiss seems to have committed is hiring Mark Pomerantz, who worked in the Manhattan DA's office and apparently encouraged the Manhattan DA to bring charges against Trump, charges, we should say, you know, Trump was convicted on. And the order also highlights that it is punishing the firm. For, as Kate said, doing civil rights work. It accuses the firm of attempting to hire a diverse array of employees. It also singles out an instance where, quote, "A Paul Weiss partner brought a pro bono suit against individuals alleged to have participated in the events of January 6 on behalf of the D.C. Attorney General," end quote.

• 37:28Leah Litman?

  Listeners, what was that lawsuit? It was a suit against the Proud Boys for defacing a black church. Thought these guys like really cared about religion?

• 37:37Kate Shaw?

  Some people's religion, Leah.

• 37:39Leah Litman?

  Exactly.

• 37:41Leah Litman?

  So after we recorded, the president announced on Truth Social, and The New York Times reported, that the president agreed to rescind the executive order targeting Paul Weiss in exchange for "complete and total surrender." According to Trump's Truth Social statement, Paul Weiss agreed to acknowledge wrongdoing by Mark Pomerantz, the former partner, and agreed to represent pro bono clients from across the ideological spectrum. Trump also said the firm agreed to donate $40 million in pro bono work to causes that Trump supports, including the president's task force to combat antisemitism, as well as other mutually agreed upon projects. That amount of money seems to correspond to something like more than 100 Paul Weiss lawyers giving a shit ton of annual pro bono time to Trumpism over the next several years.

• 38:26Leah Litman?

  It's unclear exactly what the firm will do. It's unclear what they exactly agreed to or will agree to do, because the agreement that Paul Weiss shared internally with lawyers at the firm does not match what Trump described in some respects. And it's unclear how much of this, like pro bono work supporting veterans, for example, the firm was already doing. But this still feels like yet another failed institutional stress test. Paul Weiss is a very prominent firm that has, for years, been associated with rule of law causes. A Paul Weiss partner successfully litigated United States versus Windsor, the case that invalidated a key provision of the Defense of Marriage Act. Another partner helped to successfully litigate the case against the neo-Nazis in Charlottesville,

• 39:08Leah Litman?

  Virginia, in the wake of the United Right rally in 2017. There are many current and former partners who have been prominent figures in Democratic administrations and politics. Arthur Lyman, who served as president of Legal Aid Society, among other things, was a partner. And the firm was originally named, in part, for Lloyd Garrison, a descendant of the abolitionist William Lloyd Garrison, and the man who hired Paulie Murray as an associate at Paul Weiss, and who also represented Robert fucking Oppenheimer when the physicist was targeted for his work in opposition to nuclear weapons. Basically, the executive order was unconstitutional garbage aimed at targeting the firm for its work on progressive causes. Paul Weiss could have challenged it in court, and I at least think they would have won on any number of grounds.

• 39:50Leah Litman?

  And in doing so, Paul Weiss could have set the stage for other law firms to stand up for the rule of law. But instead, what we got was capitulation and genuflection. I should make clear that I have no idea what it is like to run a large law firm and to have the livelihoods of thousands of people, from partners to mailroom workers, in your hands. I'm sure the pressure is enormous, but law firms are not like other businesses. When we join this profession, we agree to uphold the Constitution, and this is not that. What this is, is very bad. When parties capitulate like this, they are, in important respects, legitimating what the administration is doing and their abusive assertions of authority and illegal overreach. And Paul Weiss was not the only institution to bend the knee this past week.

• 40:33Leah Litman?

  The Wall Street Journal reported that Columbia University reached an agreement with the president so as not to lose the $400 million in funds that the president had threatened to freeze. Under this agreement, according to the Wall Street Journal, Columbia agreed to ban masks, to empower 36 campus police officers with, quote, "new powers to arrest students," and to appoint a senior vice provost with broad authority to oversee the Department of Middle East, South Asian, and African Studies, as well as a Center for Palestine Studies, end quote. And, the Wall Street Journal describes, this new vice provost position is apparently going to review curriculum and non-tenure faculty hiring and leadership, quote, "to ensure

• 41:15Leah Litman?

  the educational offerings are comprehensive and balanced," end quote. Giving control over what universities teach and research and who they hire dismantles the independence of academia. It is fascist control over what people are allowed to learn, to hear, to teach, to study, and to know. In case it wasn't already clear, institutions are not going to save us. Chuck Schumer isn't going to save us. It is on us. But people, we need to be out there in the streets, building our own networks. And we wanted to take this moment to acknowledge at least one lawyer who is not backing down. Last episode, Kate and Melissa mentioned the letter on behalf of big law associates that urged law firms to stand up against Trump's threats.

• 42:00Leah Litman?

  In light of the news about Paul Weiss, an associate at a major law firm, Skadden Arps, gave their two weeks' notice at the firm, conditioned on the law firm doing something. The associate Rachel Cohen's letter is worth reading in full. I'll just note a few passages. It says, for example, quote, "We do not have time. It is now, or it is never. The firm has been given time and opportunity to do the right thing. Thus far, we have not. Colleagues, if you question if it is as bad as you think it is, it is 10 times worse." And it ends with this, quote, "Like any self-important adolescent, I spent most of my high school history classes wondering what I would do in the moments before true horror or chaos, or where my values were tested and demanded great sacrifice. I do not wonder anymore. I know who I am.

• 42:44Leah Litman?

  I thought I knew who we all were," end quote. Thank you, Rachel, for your bravery. And if listeners have leads on how to help Rachel with her job search, please feel free to offer them. One outlet, if you're looking for something to do, I just want to remind our listeners of, is the upcoming race for Wisconsin Supreme Court Justice. Really, the first major test of Elon Musk's ability to buy and raise another part of government. So needless to say, last week had some sad, dispiriting days, and the day of Paul Weiss's capitulation was somehow made even worse by a letter Attorney General Pamela Jo Bondi issued together with Russ Vought. And this letter pertained to the executive order targeting Perkins Coie and the judicial

• 43:27Leah Litman?

  decision that had restrained the administration from implementing parts of that executive order. Attorney General Bondi's letter, and written together with Russ Fott, said the following, quote, "The executive branch's position is that the executive order 14230 is permissible and that the court's order was erroneous. The government reserves the right to take all necessary and legal action in response to the dishonest and dangerous conduct of Perkins Coie, as set forth in executive order 14230," end quote. That seems to kind of dangle the prospect of noncompliance pretty explicitly in this letter. And that is not all.

• 44:09Leah Litman?

  The administration had to say about law firms this last week.

• 44:13Kate Shaw?

  Another development around the same time is that the EEOC sent letters, right? So these are not the executive orders, but the Equal Employment Opportunity Commission has sent letters to a number of law firms, including Perkins Coie, but also a bunch of others, Latham, Kirkland, Sidley. So these are ostensibly also about DEI. But these are demand letters in which the firms are ordered to produce a truly deranged quantity of information about their activities. So some of them are fellowships that these firms have maintained, but also the letters demand information about every summer associate and even applications for summer associates for years and years and years,

• 44:54Kate Shaw?

  including names, email addresses, race, GPA, for everyone who has applied for these things for many, many years. It's really interesting. This administration is forcing everyone to think and write a lot about race for an administration that really seems committed to the idea that at least certain kinds of considerations of race are deeply problematic. But of course, it's only some.

• 45:15Leah Litman?

  Yeah.

• 45:16Kate Shaw?

  Yeah, so as Karen Vladek, who founded a legal recruiting firm called Rise Point Search Partners, noted on Blue Sky, 88% of major US law firm partners are white, nearly 75% are men, more than 50% of firms report having zero black partners. The numbers are even worse when you look at equity partners. And what these letters suggest is that any presence of black partners, maybe black lawyers at all at these firms is too much. And so they should be punished for any modest efforts they have made to try to increase diversity at their firms in light of the severe underrepresentation of minorities at these firms already. Like, it is so disgusting. Of course, that is not all. So the administration has also decided to modify the website that had acknowledged and celebrated General

• 46:00Kate Shaw?

  Charles Rogers for receiving the Medal of Honor in Vietnam. The administration appears to have deleted the page slash the URL that had been used to describe this recognition, and it has replaced that URL with text that includes what? DEI medal? Like, so sadistic.

• 46:20Leah Litman?

  Well, in case you had any doubts about what they are using DEI to mean, you know, this is a soldier who received the Medal of Honor, and because he's black, they are calling it a DEI medal, right? Like, the very clear implication is, basically, all people of color, all women, like, all sexual minorities, right, are obviously unqualified and unfit for public life and any kind of presence in civic society. And, you know, on this point, just wanted to play a clip of Sherrilyn Eiffel, the former president and director counsel of NAACP LDF, who appeared on CNN Anderson Cooper's show, you know, kind of outlining in very clear terms what is going on here.

• 46:56Speaker 05

  Diversity, Equity, and Inclusion, for your viewers, is a program or a way of approaching policies, really in corporate America, of hiring, of procurement, of contracts, to ensure that groups that had been formerly excluded or were underrepresented in many of the corporations' practices, employment and otherwise, would be included. And that meant casting a wider net, looking at the pools of people that you were doing business with, or that you were planning to interview for jobs, and making sure that you had cast a wide enough net that you were including those who were from underrepresented groups. That's diversity, equity, and inclusion. Nothing that has been removed from these Department of Defense websites are diversity, equity, and inclusion.

• 47:41Speaker 05

  They are just black people, Native American people, women, gay people, or just the word gay. So this is not an effort to remove some program that is in some way harming the military. It is, yes, an effort to whitewash history, Anderson, but I think it's even worse. It's an effort to brand. It's designed to inculcate in a Americans, the idea that when you see a black person or a Native American or a gay person excelling, piloting a plane, being a CEO of a company, being a four-star general, you should presume that they did not earn that position based on their qualifications and merits. It's a poison pill designed to reach into Americans' minds

• 48:25Speaker 05

  and to encourage Americans to believe that those people that they see, who are from underrepresented groups, who have achieved success and who are of positions of power and authority in our country, did not earn those positions.

• 48:39Leah Litman?

  And in their quest to resegregate the country, the Marine Corps, under P. Texas' leadership, announced that it would be separating service members who have a genetic skin condition that causes pain and scarring from shaving, you know, if the Marine Corps says if the condition doesn't resolve within a year. And they would therefore need to continue to request a waiver from shaving requirements in that year. So what is this condition? Pseudophiliculitis barbait or PFB? And guess who this condition that may soon functionally become disqualifying for military service affects primarily? Black men.

• 49:11Kate Shaw?

  Pure coincidence, I am quite sure.

• 49:13Leah Litman?

  Right, yeah. A few other assorted matters related to bringing back segregation and ensuring all occupations of civic life are filled only by straight, white, cis men. The Trump administration is reportedly freezing $175 million in funds to the University of Pennsylvania because Penn undergraduate had allowed a transgender athlete to compete on their swim team. Almost $200 million.

• 49:37Kate Shaw?

  So that just dropped a few hours before we were sitting down to record. But obviously, you know, Penn people are reeling in response. Judge Anna Reyes, D.C. District Judge, issued her opinion blocking the administration's ban on transgender individuals serving in the military. She stayed the opinion until March 21st. So the administration had a chance to seek a stay in the D.C. Circuit. And again, as we said, we're recording on Wednesday, so things might change by the time this episode is released. But her opinion called, as I think she did from the bench, when considering the arguments about this executive order, she called the order, quote, soaked in animus. And just to read a little bit more from the order, she also wrote, quote, transgender persons have served openly since 2021, but defendants have not

• 50:22Kate Shaw?

  analyzed their service. Plan of service records alone are exhibit A for the proposition that transgender persons can have the warrior ethos, physical and mental health, selflessness, honor, dignity, and discipline to ensure military excellence. So why discharge them and other decorated soldiers? Critics from defendants on this key question.

• 50:40Leah Litman?

  And she ended her opinion with thanking service members, saying this court extends its appreciation to every current service member and veteran. Thank you. In another case involving another policy that targeted members of the transgender community, another judge in the District Court for the District of Columbia here, Judge Lambert, issued an order in this case that is challenging the administration's transfer of transgender prisoners to facilities that correspond with their sex assigned at birth. The judge ordered the administration to transfer back prisoners they had already moved.

• 51:13Kate Shaw?

  And in yet other news related to the administration's efforts to resegregate the country, we wanted to play an exchange from the oral argument in the D.C. Circuit over Trump's firing of members of the Merit Systems Protection Board, or MSPB.

• 51:25Speaker 06

  Mr. MacArthur, could the president decide that he wasn't going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?

• 51:42Speaker 07

  I think that that would be within the president's constitutional authority under the removal power.

• 51:47Leah Litman?

  Coming soon to a federal government near you. So we can all look forward to that. I'm just going to take this moment to say two things. One is, if you do not want John Roberts to get an endless stream of credit for making superficial statements while substantively enabling the president's expansive assertions of executive power and king-like behavior. I have a book to recommend to you about how the court laid the groundwork for all of that. That would be my forthcoming book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. The book also very much goes through like how the court is basically repackaging a lot of what Republicans are doing and saying in electoral politics into the language of the law. You know, the third chapter is about

• 52:31Leah Litman?

  race and multiracial democracy and democracy in particular. So it kind of takes a similar approach to how we're talking about Louisiana versus Calais and, you know, linking it to the Republican Party's larger project of just resegregation writ large.

• 52:45Kate Shaw?

  Right, because we only have about an hour to rage out in your ear holes each week, but sometimes you need more than that. And this book will give you a heftier dose than we are able to bring you weekly. And I saw that you just finished recording the audiobook.

• 52:59Leah Litman?

  I did. I did. So that is, that is donezo.

• 53:03Kate Shaw?

  So listeners, if you want to read the book, you can pick it up to read it. You can also get the audiobooks. You can actually listen to Leah rage out and form you.

• 53:11Leah Litman?

  Yeah, giving the men's another forum to complain about my vocal fry in another medium. So can't wait. Can't wait for that. I love my fans.

• 53:19Kate Shaw?

  And the way to fight back is to buy five copies of it. So you know, you have your task for listeners.

• 53:27Leah Litman?

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• 54:11Leah Litman?

  I could confidently plan on waking up early to see the sunrise over the ocean without a worry. You know, I was a bit on the fence about pre-alcohol initially, but you know, I once again used it while in Mexico. I drank it before my first mango mojito of the evening, and you wouldn't believe how on top of my game I felt the very next morning. So this college basketball season, don't let anything sideline your celebrations. Grab pre-alcohol before you go out and be ready to cheer on your team all day and night long. Go to zbiotics.com/strict to learn more and get 15% off your first order when you use strict at checkout. Zbiotics is backed with 100% money-back guarantee, so if you're unsatisfied for any reason, they'll refund your money, no questions asked.

• 54:56Leah Litman?

  Remember to head to zbiotics.com/strict and use the code strict at checkout for 15% off.

• 55:08Kate Shaw?

  Let's turn back to a few other cases that court is going to hear in this sitting. One is Oklahoma versus EPA slash EPA versus Calumet Treeport Refining. So these are cases about whether courts of appeals throughout the country can take a swing at the EPA during what is apparently now open season on the EPA. Specifically, the cases are about whether certain kinds of challenges to certain kinds of EPA actions have to proceed before the US Court of Appeals for the DC Circuit, or whether they can instead be filed in other courts of appeal throughout the country. Cough, cough, Fifth Circuit.

• 55:39Leah Litman?

  So Calumet is about whether challenges that seek exemptions from renewable fuel standards have to go to the DC Circuit. Oklahoma is about whether EPA actions concerning a single state or region have to be filed in the DC Circuit when the actions are part of a regulatory notice that affects other states or regions, and use the same analysis for all states. You know, the Clean Air Act, you know, has some jurisdiction channeling, venue channeling provisions. And again, These are all about whether litigants can select their preferred circuit, cough, cough, Fifth Circuit.

• 56:08Kate Shaw?

  Listeners may remember that the court heard a similar case about venue provisions, that is, you know, rules about where to file, in that case about challenging FDA determinations. So that case was about whether manufacturers could file a case together with distributors and elect to file the case where one of the distributors is located, which would basically allow them to pick where they file because they could just find a distributor in a sympathetic or favorable venue and file there. And in that case, which, again, the court has already heard argued, Justice Thomas asked the following question.

• 56:39Speaker 08

  We're definitely not talking about jurisdiction here. We're merely talking about venue. 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?

• 56:58Speaker 09

  It's not inconvenient for the government.

• 57:00Speaker 08

  So what's this all about?

• 57:02Speaker 09

  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.

• 57:37Speaker 08

  It seems like it's convenient for you, then.

• 57:40Speaker 09

  Well, it's the statute Congress enacted, and that's what we're asking the court to apply.

• 57:44Speaker 08

  So does it have anything to do with your not winning in the Fifth Circuit?

• 57:51Speaker 09

  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.

• 58:04Leah Litman?

  As we said at the time, it's a real fucking mystery, Clarence, why people care about where litigants can file? You know, it's like, come on, guy. Everyone knows what this case is about. Every, you know, everyone is trying to avoid the bag of dicks that is the Fifth Circuit. Although a part of me like, does wonder whether the Trump administration, how they might view this, like, do they want more of these cases to be filed in the Fifth Circuit? So that court lets it get away with its hijinks and does some dirty work for them and assist them in moving the Overton window? I'm just a little kind of curious about what's gonna be sort of out there.

• 58:39Kate Shaw?

  Yeah, they're gonna be sort of cross pressured on some of it. Yeah, I don't know, totally. Let's now just offer some quick summaries of the other cases the court will hear next week, because there are some big ones, so we do want to at least mention them. So one is FCC versus Consumers Research, which is about the prospect of a judicially ordered, rather than Doge ordered, and of the administrative state. But of course, like, why not both? These things can all happen in parallel. This case specifically is about whether to revive the non-delegation doctrine, something Big Balls is probably not familiar with, at least by its terms. But the idea is that Congress cannot give agencies particular kinds of authority, in particular legislative authority, because that's something that's supposed to be exercised by Congress.

• 59:22Kate Shaw?

  But this version of the non-delegation doctrine would basically mean that Congress can't give agencies the authority to do much of significance, including making rules and regulations, you know, having any significant impact. And embrace of the non-delegation doctrine in this, or really any other case, would essentially blow up the administrative state, the EPA, the FAA, TSA, HHS, FDA. You know, like, there are so many ways to make the planes fall out of the sky.

• 59:50Leah Litman?

  Oh, God, Kate, I'm literally supposed to fly to DCA tomorrow. Help.

• 59:56Kate Shaw?

  Sorry, I wish I could edit out in

• 59:58Leah Litman?

  No.

• 59:58Kate Shaw?

  actual time.

• 59:59Leah Litman?

  No.

• 59:59Kate Shaw?

  What I just said. Anyway, but that is essentially what is at stake in this non-delegation doctrine debate.

• 1:00:06Leah Litman?

  Yeah. And here too, we wanted to link what is happening in the courts or what might happen in the courts with what is happening in electoral politics with respect to the attempted dismantling of the administrative state and federal government. You know, President Trump last week fired the Democratic commissioners on the Federal Trade Commission, you know, in violation of the law that makes them independent. That directly tees up a fight about whether independent agencies are constitutional and whether the Supreme Court will overrule its precedent in Humphreys executor, which had upheld, you know, the limitations on the president's ability to remove the heads of independent agencies and specifically the FTC, the Federal Trade Commission. Also, last Friday night, i.e. not the most recent Friday, but the one before that, while the

• 1:00:49Leah Litman?

  president was engaging in First Amendment violations, you know, against Paul Weiss, he also fired off another executive order entitled, quote, "Continuing the Reduction of the Federal Bureaucracy," end quote. This EO directed the elimination of the non-statutory components of a bunch of different agencies, the Minority Business Development Agency. Wonder what that one's about. The United States Agency for Global Media, aka Voice America, the anti-propaganda arm. Also wonder what that's about. The Community Development Financial Institutions Fund. Obviously dismantling that will help the price of eggs. And the United States Interagency Council on Homelessness, since they've obviously solved housing prices. And the Institute of Museum and Library Services, which runs a bunch of libraries. So those won't exist anymore either.

• 1:01:32Kate Shaw?

  I mean, this is not the only thing. It's largely the anti-diversity and any kind of racial equity and sort of grievance agenda. I've been front and center in this episode, but also the like, oh, this is just, we're going to do a reverse New Deal.

• 1:01:43Leah Litman?

  Right.

• 1:01:43Kate Shaw?

  And just dismantle all of it is happening

• 1:01:46Leah Litman?

  Yes.

• 1:01:46Kate Shaw?

  at the same time.

• 1:01:46Leah Litman?

  Yeah.

• 1:01:47Kate Shaw?

  Both in the courts and the executive branch.

• 1:01:49Leah Litman?

  Yes.

• 1:01:49Kate Shaw?

  It's great.

• 1:01:50Leah Litman?

  Yes.

• 1:01:50Kate Shaw?

  Things are going great. Okay. And because things are going so great, the court is going to hear an abortion case. I mean, it's not really an abortion case, but it is a case about Planned Parenthood and honestly about kind of the future of Planned Parenthood.

• 1:02:03Leah Litman?

  Yeah.

• 1:02:03Kate Shaw?

  So that case, Care versus Planned Parenthood South Atlantic, is about whether private individuals, so patients or providers, can sue to challenge a state's decision to prohibit Planned Parenthood from participating in the Medicaid program. Meaning if a state says Planned Parenthood cannot receive any Medicaid money and Medicaid health insurance doesn't cover care at Planned Parenthood, can people, again, providers or patients sue to challenge that determination?

• 1:02:28Leah Litman?

  Yeah, and here too, the judicial war on reproductive freedom is proceeding in tandem with the Trump administration's war on reproductive freedom, and obviously other Republican-led states are participating in that as well. So the Trump administration dropped the federal government's lawsuit against Idaho over Idaho's restrictive abortion ban. That lawsuit, recall, had alleged that the near-total prohibition on abortions violated the federal law, the Emergency Medical Treatment and Active Labor Act, which required hospitals that receive federal funds to be able to provide stabilizing care, including abortion care, when that is necessary to stabilize a patient. And the Trump administration is just apparently content to allow states to prohibit hospitals from being able to provide that life, health,

• 1:03:11Leah Litman?

  fertility-saving care. Also, in the last week, Texas arrested a midwife on felony charges alleging she dispensed medication abortion in violation of Texas law. You know, if convicted, she could face up to 20 years. And so that is happening as well.

• 1:03:30Kate Shaw?

  It does feel as though this kind of turn toward more punitive and also more deadly abortion policies on the states, on the state levels, like we have just taken another turn, and that what's happening in Washington is kind of enabling all of the worst actors in the states.

• 1:03:45Leah Litman?

  Yeah.

• 1:03:46Kate Shaw?

  So, finally, next week, there is a case called Catholic Charities Bureau versus Wisconsin Labor and Industry Review Commission, which involves the question of whether a state is essentially required to establish a religion, or at least to fund a charity when the charity says it is religious. So specifically, the Catholic Charities of the Diocese of Superior, Wisconsin, and some affiliated entities are seeking to obtain an exemption from paying unemployment insurance contributions on the ground that the organizations are operated primarily for religious purposes. So basically, the church is saying, look, we say that what we're doing is religious, and no court can second-guess that, so we are entitled to an exemption from a law under the Constitution's protection for religion.

• 1:04:27Kate Shaw?

  And I'm not sure what the sort of logical endpoint there is. All the laws could be subject to the same challenge.

• 1:04:33Leah Litman?

  Well, it's like we were saying, some laws aren't laws, some orders aren't orders.

• 1:04:37Kate Shaw?

  Some religions aren't religions.

• 1:04:39Leah Litman?

  Exactly, exactly.

• 1:04:42Leah Litman?

  Yeah, so lots of big ideas, great ideas happening here. Finally, just some assorted court culture and additional news. We wanted to note a cert grant, the court's decision to hear an additional case. This case is not going to be argued this term, but will be on the court's docket for next term. And that is a constitutional challenge to a law banning conversion therapy. Conversion therapy, of course, is the therapy that tries to counsel people that they aren't actually gay or trans, right, effectively psychologically torturing them. And I just want to pause to note the very real, I think, distinct possibility that the court is going to decide scermetti this term and then the conversion therapy ban case next term in the following way.

• 1:05:27Leah Litman?

  It will say in scermetti that laws prohibiting gender-affirming care do not unconstitutionally discriminate against transgender people. And then I think the most likely outcome in the case challenging the ban on conversion therapy is the court is going to say such laws unlawfully discriminate against disfavored speech by those who like don't believe in the existence of LGBT people. And again, the idea that the court believes one kind of discrimination exists, like discrimination against people opposed to LGBT civil rights, but another kind of discrimination, discrimination against LGBT people who civil rights are being taken away, like doesn't exist. Like, these two mindsets like are very much part of the court's worldview.

• 1:06:10Kate Shaw?

  Absolutely. And you think they would be likely to say speech, even if it's kind of religiously inflected speech as opposed to religion.

• 1:06:16Leah Litman?

  Similar to what they did in 303 Creative.

• 1:06:18Kate Shaw?

  Yeah, yeah. Yeah, but here, the two together, I think it will be impossible for them not to have said explicitly, even if they don't say in so many words, "We only care about protecting certain kinds of viewpoints and certain kinds of people." And, and everyone will have to understand that that's what they're communicating. And I'm not even sure they're going to try to hide it at this point.

• 1:06:38Leah Litman?

  No, no. Like Sam Alito is going to write that fucking loud and proud.

• 1:06:42Kate Shaw?

  Yeah. So that is likely where we're going.

• 1:06:48Leah Litman?

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• 1:07:33Leah Litman?

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• 1:09:16Kate Shaw?

  Okay, some additional final court culture news. So District Judge Jesse Furman in the Southern District of New York has transferred Mahmoud Khalil's habeas petition, which, remember, was pending before him in New York, to New Jersey rather than dismissing it as the federal government had urged. So he is not keeping it, but he is transferring it to another judge. So that is certainly a loss for the federal government. So Khalil, remember, is the lawful permanent resident, Columbia grad student, US citizen, wife who's eight months pregnant. And the administration is attempting to deport him on the grounds that Secretary of State Marco Rubio, who, again, as Leah already reminded you, but should be said again, Democrats unanimously

• 1:09:59Kate Shaw?

  confirmed him because he would be a grown up in the room. And I guess this is how that is working out. But he determined, you know, when he wasn't busy, like, retweeting tweets from foreign leaders celebrating deportations, taken time out of his busy retweeting schedule, to determine that Khalil's presence in the United States would adversely affect foreign policy. So Khalil, remember, was arrested in his apartment and sent to a detention facility in Louisiana. But this transfer, at least for now, means that Khalil does not need to file his habeas petition in Louisiana and have it heard by the Fifth Circuit. So that is certainly a better outcome, at least at this stage. So in addition, a Maryland district court has also ruled essentially that Musk's role

• 1:10:44Kate Shaw?

  in government and in Doge in particular appears to violate the Constitution and specifically the Appointments Clause. So we've mentioned before, there are three cases pending, all making versions of this argument that it is inconsistent with the Appointments Clause for Musk to be wielding this kind of executive authority. And this is the first actual merits ruling we've gotten in one of these cases, and it was a big win for the plaintiffs.

• 1:11:06Leah Litman?

  Finally, the bit of court culture we want to come back to is something Eagle-Eyed Listener Sherrilyn Eiffel drew our attention to from the State of the Union. So we had previously talked about Donald Trump telling John Roberts, "Thank you, thank you, I won't forget it." Well, as Sherrilyn noted, Justice Kennedy had some words for Trump, which you can hear here in this clip.

• 1:11:25Speaker 10

  Thank you. Thank you. Thank you. Thank you. Well, I'm trying to.

• 1:11:32Leah Litman?

  What thoughts? Like, what is there to say? If you weren't able to hear it, this is Anthony Kennedy saying to Donald Trump, "You're teaching young people to love America."

• 1:11:45Kate Shaw?

  I honestly don't, I feel speechlessly, I can't. I find it so upsetting because there's like, there's the amb, you know, Trump saying to Roberts, "Thank you, won't forget it." We can debate what it means. Roberts, you know, didn't affirmatively say much, actually looked, now, again, we're not, I'm not, I'm not trying to ascribe like all these good intentions to John Roberts, but he at least did look pretty uncomfortable and try to remove himself from the encounter. Barrett, we talked about this on the episode that you weren't on, but there's that like really somewhat ambiguous slo-mo video of Barrett looking either like completely horrified or maybe sort of starstruck, and it's, I think, kind of hard to tell. But either way, those things are, we can sort of debate them, but Kennedy basically said, "I love what you're doing, do more of it."

• 1:12:30Kate Shaw?

  And I just, somebody who we're inclined to think of as a throwback to like a slightly more reasonable version of a Supreme Court, saying this is just like so wildly upsetting and disheartening. So I'm curious what you thought. And also, what do you, what did you make of the Barrett face? Because you didn't have a chance to weigh in on it.

• 1:12:47Leah Litman?

  I want to say some things about the Kennedy thing first. One is, I think on some level, it's actually more horrifying than you explained. That is, it's not just Justice Kennedy saying, "I'm on board with what you're doing." He is repeating like the Trump lie that people have been taught not to love their country and America, and that it's somehow un-American, right? For people to have these real questions and criticisms about what the country is doing, right? Like, this is Donald Trump and the Republican Party's like entire line against, you know, educating people about the history of racial discrimination

• 1:13:27Leah Litman?

  or discrimination on the basis of sex in this country, that like, that's somehow untoward and bad. And saying this seems to buy into that ideology and worldview, which is just totally horrifying. Second is, as you say, like Justice Kennedy is thought to represent some kind of bygone era in which the court was like more independent, more of a reliable institution, and

• 1:13:55Leah Litman?

  You know, not true, right? To pull a line from Sam Alito at the State of the Union. And again, like Justice Kennedy is the person who voluntarily retired under Donald Trump with a Republican Senate that cleared the way for Republicans to basically take over ideological control of the Supreme Court. That was a choice. And I think this false nostalgia about what the court was is also part of what is allowing people to say, we should be giving the court all this credit now, right? And describing them as this great institution related to

• 1:14:34Leah Litman?

  the Roberts comments. And it's just deeply wrong. And the final thing I will say is, as I have said on a previous episode that I think has actually gotten included in an episode, it definitely happened during Q and A we had during one of our live shows during the pandemic. But part of why I had wanted to do this podcast, like its origin story is my working out my feelings from my year as a Supreme Court clerk. And of course, I clerked for Justice Kennedy. So take that.

• 1:15:07Kate Shaw?

  So we got a little glimpse of Will's villain origin story in that Kennedy encounter with Trump. All right.

• 1:15:14Leah Litman?

  Just the smallest, smallest of windows. The smallest of windows. Um, you know, on Barrett, not readable. I think it was just a look of like, kind of feigned, I know I'm not supposed to be reacting, which is probably the right call. But I think that that was probably the expression.

• 1:15:36Kate Shaw?

  People who read the, who read this as like, she's decided, she's joining the resistance. And you can see it etched on her face.

• 1:15:43Leah Litman?

  They are just projecting, you know, right? Like what they want to see.

• 1:15:49Leah Litman?

  Okay, so finally, our new kind of last and final tradition, which is what did you read in the last week that you enjoyed? I'm sorry that my entries for this week are kind of related to news and what is happening, but I think it is still good to have like really great, empowering, impactful writing that adds clarity, calls to action, what is happening. So that's just forewarning that that's what I'm going to take through. One is Rebecca Traister had a post, Fight, Fight, Fight. This was about the CR, you know, resolution debacle that I definitely recommend. Relatedly, Representative Alexandria Ocasio-Cortez's Blue Sky feed during the CR debates and debacle.

• 1:16:32Kate Shaw?

  That's your reading record, Luke. I love that.

• 1:16:33Leah Litman?

  Definitely recommend that one. And then some New York Times op-eds. One of them is M. Gessen's piece, Hidden Motive Behind Trump's Attacks on Trans People. The piece is extremely powerful in drawing, I think, a very clear, effective analogy in what the Trump administration is doing to the trans community and likening that to rendering a population states list that I just found very evocative and persuasive and important. This might embarrass you a little, Kate, but I loved your piece in the Times. This election will be a crucial test of Musk's power. You know, we've talked about the volume

• 1:17:12Leah Litman?

  of money Elon Musk is pumping into the Wisconsin election now. And I think you're totally right that like this election is kind of the first opportunity to draw a line in the sand, fight back and render him effectively like political Ebola and have this be a referendum on like, do you want this unelected billionaire running our country?

• 1:17:32Kate Shaw?

  It matters so much for that state, as we have talked about, both in 2023 and in this election. But I also think like, I walked past one of the Tesla takedown protests in Brooklyn last weekend, and I actually wrote about them a little bit in a previous Times piece about like Musk and the appointments issue.

• 1:17:48Leah Litman?

  Yeah.

• 1:17:48Kate Shaw?

  And I do think that the people who are gathered are like making a constitutional argument and like, I don't want to sound too much like constitutional fetishes here, and I'm really not, but it's like they're, when they're saying, we don't have kings, like, that is a constitutional claim and like, and it's a serious one.

• 1:18:03Leah Litman?

  Yeah.

• 1:18:04Kate Shaw?

  This was a really remarkable gathering, and I've heard similar stories from people, you know, all over the country. Sometimes the numbers of people on the sidewalks or, you know, like the side of the road are small, but the number of cars honking in support and like enthusiasm are just like, it's a huge, huge number. And so there's like a very intense energy in those protests. And it does feel like people have understandably a lot of feelings about Elon Musk right now. And it's a little hard, I think, to know what exactly to do with them. And I do think that there is some, a very concrete outlet, like right in front of everybody, which is the Wisconsin Supreme Court election, which is, early voting is already ongoing. The election is actually April 1st, and there is a lot of both big and small money pouring in.

• 1:18:46Kate Shaw?

  And so it is, I think it is a real, it is a very, very clear, present way to get involved, both in issues of democracy and in issues of Elon Musk, which unfortunately are just really tightly linked right now.

• 1:18:57Leah Litman?

  Yes. Yeah. Finally, the last time's piece is Jamelle Bouie's piece, Trump Has Gone From Unconstitutional to Anti-Constitutional. I think it's very important in defining like the specter and nature of the lawlessness of the Trump administration and is how, what they are doing is not just violating laws or the Constitution, but acting in antagonistic ways to the very premises of a constitutional system or a constitutional democracy. So I definitely recommend that piece.

• 1:19:27Kate Shaw?

  Okay. So mine are also like largely, but not exclusively, sort of connected to, again, the kind of present constitutional moment. So one which is less so is a piece in The New Yorker by Sarah Luspater called, The Feminist Law Professor Who Wants to Stop Arresting People for Domestic Violence, about Lee Goodmark. And it is a fascinating, fascinating read. I highly recommend it. Daphne Renan, who teaches at Harvard Law School, has written with a co-author who is a history professor, Jesse Hoffnung Garskof. Together, they've written a piece in the Chronicle of Higher Education called, quote, "The Dangerous Document Behind Trump's Campus Purges." And it is about Project Esther, which, much like Project 2025, which we've, of course, talked about at length, is kind of a blueprint for what the administration is currently doing,

• 1:20:12Kate Shaw?

  which, as Daphne and her co-author detail in their piece, it is weaponizing antisemitism to dismantle American higher education and liberal democracy more broadly. It's an incredibly powerful warning not to fall for this cynical and perverse attempt to use opposition to antisemitism as cover for a wildly illiberal and destructive project. And I highly recommend it. And the last is just a short piece that Princeton president Christopher Eisgruber ran in The Atlantic last week. That was just a president standing up for academic freedom and against this attack on higher education. I mean, obviously, we teach in law schools. And so it is just unbelievably present right now. But it does feel like this is an effort to destroy higher education.

• 1:20:55Kate Shaw?

  And it is unbelievably serious. And people who are speaking up in the terms of the moment calls for Princeton's president, I think, are really to be commended and want to amplify those as they come.

• 1:21:06Leah Litman?

  Yeah. One additional note, Melissa is obviously out this week. She wanted to shout out the following strict scrutiny fans that she has met on her travels. Meghan, Carolyn, Alex, and Cheyenne at Tulane, and John at Morehouse.

• 1:21:20Kate Shaw?

  Do not worry, Melissa will be back with us next week. Okay, a few things to share before we go. One, we have something exciting to share with you, which is the first two episodes from Crooked's newest podcast, Shadow Kingdom: God's Banker, are now out. So this is the type of true crime drama you actually want to hear. So your ears can take a break, as maybe all of our ears sometimes do, from the daily news about our government's wildly unlawful activities. So this podcast starts in the summer of 1982, when the Vatican's top money man was found dead. Roberto Calvi, known as God's Banker, was embroiled in infamous money laundering scandal that tied him to an ultra secretive, far-right society, the Sicilian mafia and the Catholic

• 1:22:03Kate Shaw?

  Church. His death was ruled a suicide, but the evidence told maybe a different story. For decades, no one could say for sure what really happened until now. Journalist Niccolo Minoni is following a new lead, one that could finally answer the question of who killed God's Banker. So if this intrigued you, listen to the first two episodes of Shadow Kingdom: God's Banker right now, wherever you get your podcasts, or better yet, join our Friends of the Pod community to binge all the episodes today at crooked.com/friends or on the Shadow Kingdom Apple Podcast feed.

• 1:22:36Leah Litman?

  Also, tickets to Strict Scrutiny Live: The Bad Decisions Tour 2025 are on sale now. So you can join us live as we gear up for whatever chaos SCOTUS is going to throw our way this year. We will break down the rulings, chat with some amazing guests, and dive into the cases that are set up to shake our daily lives. And who knows what things will come out of my mouth that won't actually make it into the episodes. That oftentimes happens in recordings, so that's what live shows are partially for. We have three great stops on our tour this year. May 31 in Washington DC at Capitol Turnaround, June 12 in New York City at Sony Hall, and October 4 in Chicago at Athenaeum Center. And exciting

• 1:23:18Leah Litman?

  news, this year, we are offering VIP tickets, giving you the chance to join us for an exclusive meet and greet after the show. Don't miss out. Grab your tickets now. Go to crooked.com/events for more information. We can't wait to see you all soon.

• 1:23:32Kate Shaw?

  Yeah, I want to just make a plug, which I've been meaning to do on social media. And I have found, I don't know about you, Leah, that like, this is, these are like very difficult and dark times. And being with people in the flesh actually is so important and grounding. And obviously, there are plenty of ways to do that. But I am really excited to get to hang out with you guys at these three different points in person and also with like, a bunch of listeners. And so if that sounds like that might be kind of nourishing for you, there are some tickets available to all the shows. So grab some.

• 1:24:04Leah Litman?

  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. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglan and Charlotte Landis. Our music is by Eddie Cooper. Production support comes from Madeline Herringer, Katie Long, and Ari Schwartz. Matt Jagroth is our head of production, and thanks to our digital team, Ben Heathcote and Joe Matusky. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. You can find us at youtube.com/AtStrictScrutinyPodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.