Pod Save the Separation of Powers

Leah, Melissa, and Kate once again wade through the latest malevolence from the Trump White House in a segment they’re now calling “Pod Save the Separation of Powers.” Then, they turn to what’s going on at One First Street, covering some new opinions, as well as this week’s arguments, including a case about “reverse discrimination.” 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.

• 0:01Melissa Murray?

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• 1:29Melissa Murray?

  Once approved, Alloy ships your prescription directly to your door with automatic refills. As you get older, you start experiencing all kinds of perimenopausal, menopausal symptoms, and here's the thing, no one really talks about them. Like, there is literally a huge void in social media, in the medical profession, just like having frank talk about menopause. That's one of the things I love about Alloy. It's a place where you can go where all of the information is in one place, and there are solutions that are geared to all of the symptoms that you may be experiencing. So join the 95% of women who tried Alloy and saw relief in the first two weeks. Head over to myalloy.com/strict and tell them about your symptoms.

• 2:10Melissa Murray?

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• 2:28Speaker 01

  It's an old joke, but when a hargoned man argues against two beautiful ladies like this, they're going to have the last word.

• 2:37Speaker 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."

• 3:07Melissa 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 today. I'm Melissa Murray.

• 3:16Leah Litman?

  I'm Leah Litman.

• 3:17Kate Shaw?

  And I'm Kate Shaw. And here is what we have in store for you today. We are going to start by touching on some news in a segment that we will call Pod Save the Separation of Powers. We will then recap a bunch of opinions the court issued since we last recorded. We'll talk about the oral arguments the court heard last week, and we will conclude with a new segment that, get this, will not be focused on doom and destruction.

• 3:38Leah Litman?

  First up, Pod Save the Separation of Powers. What have the lunatics in Article II or adjacent to Article II been up to last week? Well, the Trump administration may be coming for the post office. The Washington Post reported that Trump is expected to try and take control of the United States Postal Service and fire the postal board.

• 3:57Kate Shaw?

  And to be clear, this would be insanely disruptive. The USPS has been providing mail for more than 250 years. It is the only mail delivery in some rural areas through rural free delivery. That's something that residents rely on to pay bills, receive lifesaving medications, and for what are called last mile shipments from FedEx, UPS, and Amazon. Some of those entities won't actually complete the final leg to certain rural areas, so without USPS, they are completely out of luck. Undermining the post office would also have devastating consequences for mail-in voting, which maybe is the point.

• 4:36Melissa Murray?

  In other news, Elon Musk told federal workers that they need to show their work. So in an email sent to federal workers, Musk required these civil servants, including, according to reports, some Article III employees, to summarize their accomplishments for the week or face termination, a tactic he also used after purchasing Twitter. I would so love to be a clerk right now so that I could receive this email and could then respond to Elon Musk, my shadow president, by noting that what I have been engaged in in the course of this week is legal research as to whether or not his pseudo appointment

• 5:20Melissa Murray?

  actually violates the appointments clause. A little too on the nose or just right? I don't know.

• 5:25Leah Litman?

  Well, that would just be one thing. What are the other four things you would say you were doing? We know that it went to some federal judges. I want to know if one of them was Judge Tanya Chutkin, who's one of the judges hearing one of the cases about whether Elon Musk is unconstitutionally exercising too much power over the federal government and the country without having been appointed. Did it go to John Roberts? You know, or some of the guys at One First Street?

• 5:49Kate Shaw?

  Yes.

• 5:50Leah Litman?

  I would love that.

• 5:51Kate Shaw?

  So there was that carefully crafted missive only to the people who are actually under the purview of someone who's not even in the executive branch and certainly has no authority to direct anything of individuals in Article III. But it seems like they have decided that one good turn deserves another and that there may be another government-wide directive in the offing, possibly over the weekend, which is really perfect because, you know, some federal workers, I know this for a fact, like at some VA hospitals, don't go in and don't have access to their government emails over the weekend. So there might not even be a way for many people to respond in time to avoid whatever consequences will be threatened under this latest missive.

• 6:34Melissa Murray?

  I would really love for John Roberts to get this because I'm sure he's never taken orders from anyone wearing a baseball cap before. I'm sure he's just like reading this letter and is like, mother effer, I'm the umpire. I told you this. I'm the umpire.

• 6:48Leah Litman?

  Right. Like he would bristle at anyone questioning his authority and that is the mindset we need him in.

• 6:55Kate Shaw?

  Yes. Moving right along, and this is related to the topic we were just covering. So there's a new installment that just dropped of the Hardy Boys mystery. And that is the case of the unidentified Doge administrator.

• 7:07Leah Litman?

  I think we should call it Doji Bros. Mysteries, not Hardy Boys. These boys aren't Hardy.

• 7:12Kate Shaw?

  The Doji Bro's Mysteries.

• 7:14Leah Litman?

  Yeah.

• 7:15Kate Shaw?

  Doji Boys Mysteries. There were like hundreds of those titles. So I just, God, I hope we are not in for hundreds of such mysteries. And yet, we may be.

• 7:24Leah Litman?

  Big balls and you're missing data. Big balls and the dark web.

• 7:29Kate Shaw?

  Okay, yeah, yeah, you're right. There's going to be a lot of fodder if in fact, this is the first installment of a long series. Okay, so this first one was essentially about the identity of the unidentified Doge administrator. So a good amount of time in the last week was spent just trying to get the Trump administration, the Trump slash Musk administration, to answer the question, who is the Doge administrator? So in one case, Judge Colleen Colacattelli in the District of Columbia asked a government lawyer, okay, is there an administrator of Doge at the present time? The government lawyer replied, I don't know the answer to that. The judge followed up, you don't know whether there is an administrator?

• 8:12Kate Shaw?

  The lawyer maintained, I'm saying, I don't know.

• 8:15Leah Litman?

  I love this because it's like a new unitary executive theory. Like, the executive branch is no one and everyone. We just can't know. It's just like out there in the ether. I love it.

• 8:25Kate Shaw?

  Amazing.

• 8:25Melissa Murray?

  I will also say, the lawyer's response was like classic deposition stuff. Like, I don't recall. I don't know that. Anyway.

• 8:33Kate Shaw?

  I do have to say, though, like, I'm not sure there was anything better the lawyer could have said. They clearly don't have the information. And certainly, it's better to be-

• 8:41Leah Litman?

  Well, and also, they very well might not have been an actual Doge administrator. Right? Like, when they were being asked this question. Right?

• 8:47Kate Shaw?

  Yeah. Yeah. And you don't necessarily want your representative client to say, there is none.

• 8:51Leah Litman?

  Right.

• 8:52Kate Shaw?

  So I don't know.

• 8:53Leah Litman?

  Like, this entity that is now running the federal government? No one is leading it.

• 8:57Kate Shaw?

  Headless horsemen. Yep, there, there, there it is.

• 9:00Melissa Murray?

  Anyway, if you were wondering if the mystery of the missing Doge administrator was going to be solved, it was not going to be solved by one Caroline Levitt, the White House Press Secretary, when she was repeatedly asked, who is the Doge administrator? She had this to say, quote, "I'm not going to reveal the name of that individual from this podium, but we've been incredibly transparent about the way Doge is working," end quote. Which, I'm going to hand it to her, what a great pivot, completely unresponsive, but manages to satisfy some people.

• 9:33Leah Litman?

  Well, and also just insisting the literal opposite, right? Like, we have been incredibly transparent while refusing to be transparent about what Doge is and who's in it. So this, you know, headless fourth branch led by no one slash everyone slash many people. So Mr. Kate Shaw had an excellent joke, you know, sometimes men can be funny and I like to acknowledge when that happens. Mr. Kate Shaw said, "They have turned the executive branch's pronouns into they slash them."

• 10:03Melissa Murray?

  Solid, solid joke.

• 10:04Leah Litman?

  Yeah. Respect, respect.

• 10:06Melissa Murray?

  Let's get him a tight five and hear him on stage. I love it.

• 10:10Kate Shaw?

  I missed that joke, but thank you for sharing with me. That's good.

• 10:14Melissa Murray?

  Okay, that might be the better joke. He had a funny and I wasn't here to hear it. Eventually, though, the administration did actually name someone and identify the Doge administrator. They named one Amy Gleason. The trouble, of course, was that at the time she was named as Doge administrator or identified as the Doge administrator, Gleason, maybe conveniently, was in Mexico.

• 10:42Leah Litman?

  I love it.

• 10:47Melissa Murray?

  I mean, so, so many questions about the Doge administrator across the border. When she returns to the United States, is she going to be screened at the border? I've heard tales that we're not supposed to be letting in people from south of the border because they may pose a threat to the security of the country and the government. Does this extend to Doge? This is a rhetorical question.

• 11:11Leah Litman?

  Doge does seem to be like the ultimate threat to the security of the country and the government.

• 11:18Leah Litman?

  Just on Doge, The New York Times had a fascinating slash horrifying long piece on the origins and background to Doge that I recommend highly. It's worth a full read, a short capsule summary of it here. Apparently Elon Musk threw out the idea of dismantling the federal bureaucracy the same way he dismantled Twitter at a September 2023 dinner party. He just said at that event that the key would be to get access to the servers. That's how you blow something up. So that's what they set about doing and prepared to do in the lead up to the inauguration. It also, that is the piece suggests, Gleason went back to work at the US Digital Service, where she encouraged the then Biden administration to hire some people who had been in talks with

• 12:03Leah Litman?

  and later are now working for Doge. Like, it is just crazy if you read how this thing unfolded. Like, they were doing this stuff before they actually took power. Part of me wonders how this is going to factor into this appointments clause issue, right? Like, it's just wild.

• 12:20Kate Shaw?

  Well, and also, I'm pretty sure that dinner party actually was, was it an actual fundraiser for Ramaswamy?

• 12:25Leah Litman?

  For Ramaswamy.

• 12:26Kate Shaw?

  When he was running. So it's like, this stuff was cooked up by Musk before he even threw in with Trump.

• 12:31Melissa Murray?

  He just had to find a vessel. He just had to find a vessel.

• 12:34Kate Shaw?

  Exactly. And, you know, the kind of getting control of the servers early and fast was always the plan, and he has just found a willing partner.

• 12:45Leah Litman?

  Can I just say, the idea that a crazed billionaire has seized power of the federal government by just manipulating an old man who is president?

• 12:55Melissa Murray?

  That is a graphic novel.

• 12:56Leah Litman?

  Exactly. It's also like the ultimate projection, because this is what we were told was happening over the last four years, and now it's actually happening.

• 13:05Kate Shaw?

  It's all projection. This is just one of many examples. Yeah. So, all right. So this cabal, whoever is actually calling the shots inside

• 13:17Leah Litman?

  The they slash them.

• 13:18Kate Shaw?

  That's right. They have continued to push these expansive assertions, ironically, of the unitary executive theory in a few different ways. So, one, the administration has announced, they have announced, consistent with Project 2025 and the Fifth Circuit, and announced it via another charming letter from Acting Solicitor General Sarah Harris, that the administration, they all do, they have the authority to fire at will administrative law judges who oversee cases within agencies like the Social Security Administration or the Securities and Exchange Commission. And the reason they have that authority is because, I can't even say it with a straight face, all power is vested in one president, and

• 14:01Kate Shaw?

  it's intolerable for that one president to have less than complete control over judges in these federal agencies. So that's what this group is maintaining. And to be clear about the consequences, this move, if it's accepted, this theory would completely undermine, right, eviscerate the independent, impartial enforcement of a lot of federal laws and also the distribution of federal benefits.

• 14:26Leah Litman?

  So Secretary of Defense Pete Hegseth, I still can't believe that's a thing, decided after the president fired the chairman of the Joint Chiefs of Staff and the first woman to lead the Navy, he decided to fire the top lawyers, Judge Advocate's General for the Army, Navy, and Air Force. This continues the administration's push to remake the military into what Ben Rhodes warned in our Project 2025 episode, into some kind of white nationalist militia. You know, the job of these Judges Advocate General is to provide independent legal advice to senior military officers so that they do not violate US law or the laws of armed conflict. So firing the lawyers makes it seem like the administration might

• 15:07Leah Litman?

  be interested in violating the law. It calls to mind, you know, the line from Henry VI, Part II, "The first thing we do, let's kill all the lawyers."

• 15:17Melissa Murray?

  Related to this is the administration's bullying and targeting of lawyers for the sin, apparently, of just representing people that the administration doesn't like. The Trump administration revoked security clearances for all of the lawyers at the law firm Covington & Burling, who had been involved in pro bono representation of special counsel Jack Smith after he left DOJ service. The USA Dick, remember, the US Attorney for the District of Columbia, one Ed Martin, even threatened a criminal investigation of these firms, punishing or retaliating against Covington as part of all of this. So this is definitely spurring concern among the law firms about whether to participate

• 16:02Melissa Murray?

  in any litigation that involves suing the Trump administration. And that seems to be part of the plan because, as you know, in the first Trump administration, a big part of the resistance were law firms and lawyers who worked with organizations and other NGOs pro bono to resist and to challenge the Trump administration's overencroachment. Apparently, that may not be an issue now if you just simply threaten to retaliate against them in advance.

• 16:30Kate Shaw?

  Right. There are definitely, though, law firms that are participating in some of these suits against the Trump administration, and I don't think history is going to look kindly on those who decide to just sit on the sidelines while-

• 16:42Melissa Murray?

  On those who were, in Hagen Scotten's words, fools or cowards.

• 16:45Kate Shaw?

  Yeah.

• 16:46Melissa Murray?

  I mean, I don't think it's just sitting on the sidelines. There are some law firms actively involved, and again, everyone deserves vigorous representation, but y'all look real thirsty.

• 16:56Leah Litman?

  So, back to the Trump administration's dangerous quest to remake the military and also to target disfavored groups. This next policy combines both of those themes. So a clear through line in many of the administration's policies has been the unspeakable cruelty toward and jeopardizing the lives of transgender people. And along these lines, the administration released the official policy banning transgender individuals from the military. Previously, there had just been an executive order saying they were going to do this. And the- Actual policy is, I think, somehow even worse than expected. So it fires and bans all transgender individuals from the military. It slanders them by saying in a statement dripping with animus

• 17:37Leah Litman?

  that being trans is inconsistent with honesty, humility, uniformity, and integrity. It attempts to force them to resign, saying if they do, they can keep the signing bonuses that they received at enlistment. Whereas if they are fired, they will have to pay that back and be punished with debt for trying to enlist and serve their country. And it also, of course, insists on pronoun usage that reflects a service member's sex assigned at birth. And the policy extends that to salutations, addressing a senior officer as sir or ma'am. It's just ludicrous in addition to being cruel.

• 18:11Melissa Murray?

  We should also remind our listeners that the Trump administration framed its attempts to erase the trans community as a service to women. Specifically, they said this was all in service of protecting women. So I think it's worthwhile to probe a little further. How exactly did the Trump administration protect feminine ladyhood this week? Well, the Trump administration decided to lift the ban on travel into the United States for, wait for it, Andrew Tate and his brother. That's right, Andrew Tate, the misogynist influencer who was facing in Romania charges of rape, sex with a minor, and human trafficking. Well, guess what? He has been cleared to return to the United States.

• 18:55Melissa Murray?

  Not cleared of the Romanian charges, but just allowed to come back stateside. So yay, you've come a long way, baby.

• 19:02Leah Litman?

  Please give me the bear.

• 19:04Melissa Murray?

  I just want the bear. Always choose the bear. Always, always.

• 19:07Kate Shaw?

  Yeah, so just for people who are not super read into this, can we just like say a couple of words about who Andrew Tate is and what he stands for? So the allegations that Melissa put to our-

• 19:16Melissa Murray?

  Wait, I just want to put this out there. Andrew Tate is so terrible that even Josh Hawley dislikes Andrew Tate. Like, we are on the same page as Josh Hawley.

• 19:24Kate Shaw?

  Oh, my God. Well, I wouldn't go that far.

• 19:27Melissa Murray?

  Let's, let's, yeah. I'm just saying, I mean, strange bedfall. Pay that back.

• 19:32Kate Shaw?

  We did write a book review of Josh Hawley's atrocious book. Called Manhood, The Masculine Virtues America Needs. I just have to say the subtitle every time. But even Hawley distances himself from the violent misogyny that Tate represents. Although we claim, and I think we're right, that Hawley is essentially offering himself up as a slightly kinder, more genteel version

• 19:54Leah Litman?

  Less muscular.

• 19:55Kate Shaw?

  of the same basic worldview. Certainly less muscular. But, OK, so who is Andrew Tate? Again, the allegations of criminal conduct are horrifying, but they are, to be clear, just allegations at this point. But like, we know from Tate himself that he is much more than just some garden-variety sexist, like, YouTuber. He is a vile and proud self-proclaimed misogynist. He is on video bragging about keeping women at his compound and not letting them leave. Some of them have owned-by-Tate tattooed on their bodies. He brags about seducing women and pressuring them into sex work. He was kicked off of a reality television show a decade ago after video surfaced of him attacking a woman with a belt.

• 20:36Kate Shaw?

  And so, of course, he is friends with people in Trump world, including Don Jr. And I just want to quote from a really good column from Michelle Goldberg last week. She basically says, "You look at Tate, and then you look at the fact that there have been serious sexual misconduct allegations against Hegseth, RFK Jr., Musk, Trump himself." And it really starts to look like, quote, "These men weren't elevated despite their alleged abuse of women. Putting them in charge proclaims that their values are now ascendant: power, aggression, hierarchy, and leader worship." That is where we are.

• 21:08Leah Litman?

  And violence against women.

• 21:09Kate Shaw?

  Yes.

• 21:10Leah Litman?

  So just to, again, take a high-level overview of how our government is now functioning, it is being run by a powerful billionaire, and it is cozying up to alleged sex traffickers, people who are accused of having sex with a minor. So just recall various allegations that were levied over the last five years, and ask yourself, does this sound familiar?

• 21:34Leah Litman?

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• 23:05Leah Litman?

  Let's go back to the bears, or at least

• 23:07Melissa Murray?

  Yes, bears.

• 23:09Leah Litman?

  Things or people, bears are preferable to. Or at least the things or the people that we would not choose. We would still choose the bear over. So the FDA, which is now under the leadership of RFK Jr.'s HHS, recently canceled the meeting of vaccine experts who are scheduled to advise about the upcoming flu shots and what strains of the flu virus on which to focus. This move obviously jeopardizes the agency's ability to get flu vaccines trained on identified variants and getting them out to the public.

• 23:43Melissa Murray?

  In time to curb any massive flu outbreaks. There's about a six month production cycle for the production of flu vaccines. So a cancellation or a delay, if it's just a delay, could mean that the expert agency just isn't picking flu strains this year. And as a reminder, the CDC found that 86 children and 19,000 adults died from the flu this season and about 430,000 individuals were hospitalized. And there, in addition to all of this, was the first reported death from measles in a decade. And this was the death of a child who had not been vaccinated against measles. So HHS also posted a document purporting to announce

• 24:24Melissa Murray?

  that it will no longer be using notice and comment, i.e. public rulemaking, for much of what the agency does. So, you know, so much for this vaunted transparency in government. We are not having transparency, nor are we having flu vaccines in so far as public health is concerned.

• 24:43Leah Litman?

  I think we need to bring back the how many kids did you kill today? But for RFK rather than LBJ line slash meme. You know, I guess I want to know what had the other branches of government been doing about any of this insanity? Congress still seems to have adopted the Constitution is for cucks stance, which you can hear pretty clearly in this exchange between Republican Senator John Curtis and Margaret Brennan from Face the Nation.

• 25:10Melissa Murray?

  So do you believe the president has the unilateral authority to cancel funds appropriated by Congress?

• 25:16Speaker 05

  Well, what we're seeing play out is this wrestle between the three branches of government. We'll find out. And this is the beauty of the system.

• 25:22Melissa Murray?

  You don't have a point of view?

• 25:23Speaker 05

  Well, listen, I believe in the Constitution, right? I believe this is how we test the Constitution. And people have said, oh, this is a constitutional crisis. And I say exactly the opposite. It's proving to work. We have the courts playing it. We have Congress who will play it. We have the ability. I think we hold a lot of responsibility for what's happening right now. We could solve the budget as Congress. We could solve the border, and we haven't. And both parties, when Congress doesn't do their job in the White House, have a tendency to try to solve it. Let's let this play out by the Constitution and then Congress, let's step up, right? We need to do, I'll be the first to say, this is a problem. The Congress is, in many cases, has given the American people.

• 26:03Melissa Murray?

  All right. So that's essentially what's happening in the Article One branch of the Constitution.

• 26:08Melissa Murray?

  Who knows? It's a mystery.

• 26:10Kate Shaw?

  Also, I am a mere bystander, far be it from me to have an opinion on this. Like, what is wrong with them? So, I mean, by contrast, not that it should be their job exclusively, but courts happily so far seem to still be on team rule of law and team the law is actually still a thing. So let's tick off a few of the things that we have seen courts do in just the last week. So, one, a district judge in California ordered the Office of Personnel Management to rescind its directive that initiated mass firings of government workers. The court reasoned that these firings were probably illegal because OPM does not have

• 26:50Kate Shaw?

  any, quote, "any authority whatsoever under any statute in the history of the universe to hire and fire employees at another agency." They can hire and fire their own employees, kind of like Elon Musk has no authority, well, to tell anybody, even in the executive branch, anything, but to tell judges and their law clerks in Article III anything. It's essentially the same thing when OPM tries to fire people in other executive branch agencies. The judge was also less than impressed by OPM's suggestion that it was essentially a coincidence, the other agencies just happened to decide to initiate mass firings at the same time, but not because of OPM's order. That actually was an argument that they were making. This was Judge Alsop.

• 27:33Kate Shaw?

  We should say his name because it was an epic hearing.

• 27:37Leah Litman?

  Well, and these judges are doing their jobs, right? And doing a brave thing in this environment. So it is worthy of respect, just in many ways.

• 27:47Melissa Murray?

  Just want to say a little something about Judge Alsop, though. I mean, this is not someone who's going to put in an order, usually, any authority whatsoever under any statute in the history of the universe. Like, you all have pushed this man to the brink. Like, please, desist.

• 28:02Melissa Murray?

  In any event, a district judge in Washington blocked Trump's indefinite suspension of the refugee resettlement program. And again, we should say that judge's name. It was Judge Whitehead in Washington.

• 28:14Leah Litman?

  A district judge in the District of Columbia, Judge Ali Khan, converted the temporary restraining order that was blocking the Office of Management and Budget's funding freeze into a longer preliminary injunction. And I think this order is notable for how it treated what's known as the presumption of regularity. That's the principle that courts should presume, that things in the executive branch are on the up and up and running in an orderly, regular process. So, the judge wrote, quote, "Other intervening developments seem to increase the urgency of injunctive relief. On February 10, a Rhode Island judge was forced to issue an order enforcing its TRO after the state's presented evidence that the defendants in some cases have continued to improperly freeze federal

• 28:57Leah Litman?

  funds. To be sure, the government is normally entitled to a presumption of good faith on voluntary cessation, but the court will not confer that presumption when the government says one thing while expressly doing another," end quote. The presumption of regularity is just a presumption, as is the presumption of good faith on voluntary cessation. And I think it is more than clear that that presumption has been rebutted at this point.

• 29:20Melissa Murray?

  Another district court judge in the District of, the District of Columbia, Judge Ali, granted a motion to enforce a temporary restraining order in the case challenging the freeze on USAID funds. The decision would have required USAID to pay out anything required prior to February 13 by February 27. And this decision, like Judge Alsups and others, documented the administration's real efforts at evasion, if not outright misrepresentation. For example, Judge Ali wrote that, quote, "The court asked counsel if he was aware of steps taken to actually release those funds, consistent with the TRO." Counsel responded that he was, quote, "Not in a position to answer that," end quote. Again, I don't know where the Doge administrator is. I don't know that

• 30:05Melissa Murray?

  person.

• 30:07Leah Litman?

  You know, Kate, I think you might be right that they genuinely don't know, in which case that's the right answer because like these loons in Doge probably aren't telling them like what they are doing. On the other hand, this is creating the situation where the administration isn't technically saying we're violating court order, but like their lack of transparency and inconsistency and chaos is effectively allowing them to skirt the judges' orders to comply with fucking federal law. And so this is, I think, part of why when we were at Fordham and other times, we have said, you know, the possible future event in which the administration says we don't have to abide by court orders,

• 30:52Leah Litman?

  that wouldn't be the moment this turns into a constitutional crisis, right? Like, that would be bad. But we're kind of already in a crisis. So.

• 31:00Melissa Murray?

  The lawyers for the government who are representing, I think you're exactly right. Like, they may actually have no idea what's going on. It reminds me of that old saw, like, someone who represents themselves has a fool for a client. Like, these guys are like, no, not quite right. Like, you know who really has a fool for a client?

• 31:16Kate Shaw?

  The full part.

• 31:17Melissa Murray?

  Yeah. It's me. Hi. Exactly.

• 31:22Kate Shaw?

  They're saying the thing that I think they can say. I think if they actually, you know, if the judges press them, well, what do you think about, you know, who might actually be running Doge? I think they just like, or any of these questions, one, they could actually give a candid answer. And I think under this, like, the kind of crazy order and sort of set of views espoused by this administration so far, that would be both insubordination and somehow stating a legal position inconsistent with that of the president. And I don't know, probably they get fired. Or they can violate their own oaths and say something untrue. And I don't think either of those is viable. And so I think they are genuinely in an impossible position. But there's just this part of me that is wondering, are they making winky faces at the judge when they're being asked these questions? Like, are there like?

• 32:05Leah Litman?

  Like, holding up fingers crossed so we can't see it in the transcript?

• 32:10Kate Shaw?

  And signal, I don't know. I mean, I just have to imagine there's like an attempt.

• 32:15Leah Litman?

  Yeah, maybe the judge is like, court reporter. Or off the record and then they say blink twice. You need help.

• 32:21Kate Shaw?

  Exactly.

• 32:22Leah Litman?

  What's your safe word?

• 32:24Kate Shaw?

  Yeah, I think we all might need judges and like these, you know, DOJ litigators might actually need to devise some kind of a safe word that will give them some actual.

• 32:31Leah Litman?

  Safe word is big balls, regrettably.

• 32:35Leah Litman?

  That's the problem.

• 32:35Kate Shaw?

  That is not a safe word.

• 32:36Leah Litman?

  That's my anti safe word.

• 32:39Leah Litman?

  So Judge Ali did the right thing in enforcing the temporary restraining order. Then Scrotus, AKA Brodus, got involved. So the Chief Justice initially issued an administrative stay of that order. Now, an administrative stay is not a stay. An administrative stay is by design, temporary and designed only to allow the court to look into the merits and decide whether to ultimately grant a stay. So that shouldn't mean, right, like losing all hope. And I think more importantly, like we shouldn't and you shouldn't give up the full court press and insistence on the administration following the fucking law.

• 33:18Melissa Murray?

  All right, more from Brodus because they're back to work and we should give them credit for not quite quitting in this moment, but not all of the work is great. So the court recently declined review in a case called Coalition Life versus City of Carbondale. The case was a challenge to an Illinois law that created a buffer zone around abortion clinics. These buffer zones are intended to allow clinic patients unobstructed access to the clinic on molested by abortion protesters. And the case asked the court to revisit an earlier 2000 decision called Hill versus Colorado. In that decision, the court upheld as a permissible time, place and manner restriction, another

• 34:00Melissa Murray?

  state law that restricted speech and protest within 100 feet of abortion clinics. Now, to be clear, the court rejected this petition, so there were not four justices to grant certiorari. And some people took that personally, specifically our favorite friend of the pod, Justice Thomas. He dissented from the denial of certiorari and felt so strongly about it that he actually wrote a relative. ...lengthy dissent, about eight pages, in which he described the Hill versus Colorado decision as, quote, absurd, defunct, and erroneous, end quote. And as further evidence of the fact that Hill has been consigned

• 34:42Melissa Murray?

  to the dustbin of history and is no longer good law, Justice Thomas pretty much cited himself. Classic, absolutely classic. Obviously, Justice Thomas could not get a compliment of four to grant review in this case, but he did get one person who was willing to hear this case. And that, of course, was Justice Alito, who did not join Justice Thomas's dissent, but said, yep, I'm right here and I want to hear this case. I would love to overrule Hill versus Colorado if given the chance. So just in time for Women's History Month. He's happy to get in there.

• 35:18Kate Shaw?

  So I'm going to shift to a more positive note because that's my job. But we did want to highlight something that the Democratic attorneys general of Arizona and Nevada and Oregon are doing, and that is holding community impact hearings. So essentially, national town halls to hear from the public about the impact of federal firings and Doge funding freezes across the country. So the way our kind of entry point to all of this madness is going to be a lot of legal analysis. It's as important, probably more important, though, for people in those kinds of positions to actually surface stories about the on-the-ground impact of this insanity on real people, their pocketbooks, their lives, their kids' lives.

• 35:59Kate Shaw?

  So more, please so much more of this. National Democratic elected officials, I would like to see that. But in the interim, these statewide officials like attorneys general sort of picking up the baton, I think, is really crucial.

• 36:12Melissa Murray?

  Kate, I'm going to take your note that we need to be more positive. I'm not going to take it personally, but I am going to take the note. I'm just going to say that I am choosing to view the recent appointment of podcaster Dan Bongino as deputy director of the FBI as a stamp of approval for podcasts as a legitimate media genre and perhaps even as a vehicle for job mobility. And I'm just going to take that as a positive note for the three of us. So if you don't know what I'm talking about, listeners, in a recent Truth Social post, the president, Donald Trump, announced Bongino's nomination to be the deputy head of the FBI.

• 36:52Melissa Murray?

  And in doing so, he noted that Bongino is, quote, "one of the most successful podcasters in the country," something he is willing and prepared to give up in order to serve, end quote. Ask not what your podcast can do for you and your country, but what you and your country can do for your podcast. And so I'm just here to say, when called upon, strict scrutiny will be prepared to serve honorably.

• 37:20Kate Shaw?

  Well, I mean, it's a big, but look, we got to do a podcast as the Levine Lecture at Fordham Law School. There is a podcaster named number two at the FBI. Yeah, this is

• 37:29Melissa Murray?

  Looking up.

• 37:29Kate Shaw?

  respectability now, guys.

• 37:30Melissa Murray?

  I'm like, wait, wait, timeout. I just want to say, we've been doing this for about six years. We've got the Levine Lecture. Now Dan Bongino comes in. He's deputy head of the FBI. Really, what were Favreau, Lovett, and Vitor doing until we showed up? I like, how are they legitimizing the genre? Would like to know. Genuine question.

• 37:51Leah Litman?

  Maybe we should demand an email from them, asking them what they've been doing.

• 37:54Melissa Murray?

  Show your work, gentlemen.

• 37:55Leah Litman?

  Four things you've done today. Five things to, right, level up the podcast genre. We want to know.

• 38:01Melissa Murray?

  We'd like to know.

• 38:06Melissa Murray?

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• 38:51Melissa Murray?

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• 39:40Kate Shaw?

  So that is a lot of goings on, mostly in Article Two. And we know we are spending a lot of time on that particular branch of government right now. And we want to reassure you all that we are still going to be covering the Supreme Court, Article Three. The justices were off for the first few weeks of the Trump administration. And this sitting they're in right now is actually a pretty slim sitting for the justices, which is part of why we had more time to talk about pod saving the separation of powers. Going forward, we are still going to be covering Article Two because there is so much to say. But there will also likely be more Article Three mixed in.

• 40:16Melissa Murray?

  And we want to continue covering Article Two, not just because people should know what's going on and understand how wildly illegal it is. But it's also important to recognize that much of what the administration is doing under this expansive notion of Article Two is actually connected to the court and its own understanding of its authority under Article Three. And indeed, the Times article about Doge that Leah earlier referenced said that in the early stage Doge discussions, quote, "They discussed the likelihood of litigation and welcomed the idea. They liked their chances with the Supreme Court that Mr. Trump had transformed in his first term with a majority that now favored an expansive..." Vision of executive power, end quote.

• 40:59Melissa Murray?

  So again, not a feature, not a bug, just the way it's going to be.

• 41:03Leah Litman?

  So we will be able to cover both and let you know about the relationship between the Doge bros and the YOLO bros. And Amy, speaking of which, have you ever wondered where Donald Trump and Elon Musk got the idea that they can impose their unpopular destructive wing nut agenda on the country and govern based on petty grievances?

• 41:20Melissa Murray?

  That question has been preoccupying me. Is there something I could read?

• 41:24Leah Litman?

  Well, I'm here to tell you that yes, there is something you could read and that it was the Republican justices on the Supreme Court who were the early pioneers of that oeuvre. Some might say vibe. So if you want to understand how the Supreme Court planted the seeds for the ongoing unfolding disaster before our eyes, I wrote a book on that topic. It's called Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. It's out in May, but you can preorder it now. And I'm kind of pretty pleased asking you to do so. So the book is about how the Republican super majority court is implementing much of the Republican Party's political agenda by weaponizing Republicans' political grievances against groups that aren't part of the modern Republican coalition and their complaints about policy issues where Republicans are in the minority.

• 42:08Leah Litman?

  And then the justices just insist those grievances, feelings, and vibes are the law. And it also talks some about what we can do about all of this. So preorder your copy now of Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes by me, Leah Litman. You can find the link in the episode notes.

• 42:24Melissa Murray?

  I'm pushing the buy now button right now, Leah.

• 42:28Leah Litman?

  So the justices apparently used some of their time off in January and February to do some work and write some opinions. They did need something to say in response to emails asking them, name five things you did last week, other than take a free PJ trip.

• 42:42Melissa Murray?

  Okay, to be clear, they would never actually disclose that in an email or in any official documentation, so we don't have to worry about that. But we do have to go through these opinions because they did show some work. And this, I think, will help them answer the Doge email in full, even if it doesn't require disclosure of those gifts, perks, tips that we all know are completely lawful.

• 43:06Leah Litman?

  First up, they issued an opinion in a case that we've been watching called Glossip versus Oklahoma. The case involves a man, Richard Glossip, who was convicted and sentenced to death. And now it seems that that conviction was based on false testimony from the state's key witness. The prosecution also failed to disclose other exculpatory evidence that suggested that Mr. Glossip may well have been innocent. So a lot of real problems with this conviction and the underlying evidence for it.

• 43:35Kate Shaw?

  Okay, so after the current prosecutor's office had these errors brought to their attention, the office confessed error. That is, the prosecutors agreed that Mr. Glossip's conviction and sentence were infected by constitutional error, which meant that the conviction and sentence should be vacated. Alas, the prosecutor's determination was not the last word on this because the Oklahoma courts refused to accept that concession of error and vacate the sentence. The case went to the Supreme Court with the Oklahoma Attorney General actually supporting Mr. Glossip and represented by Paul Clement, who we mentioned last week, including the fact that he has been appointed by Judge Dale Ho in the Eric Adams matter. Anyway, a majority of the Supreme Court sided with Glossip and the Oklahoma Attorney General

• 44:19Kate Shaw?

  and said two things. One, that the court had the power slash authority to review the state court's refusal to accept the state prosecutor's confession of error. And two, that Glossip conviction had to be vacated because the prosecution had failed to correct the false testimony it had elicited.

• 44:35Leah Litman?

  So as a result, the Oklahoma Attorney General will decide whether Mr. Glossip should be retried. It's unclear exactly what might happen. Sometimes these cases end up being resolved by a plea deal in which the defendant agrees to plead guilty to some offense and just serve the time they have already served. But, you know, we will see exactly what happens between the state of Oklahoma and Mr. Glossip. So this case is another win for Phillips Black, the legal team that was behind the summary vacator and win in Brenda Andrews case. Just wanted to give a shout out to people doing awesome work and making good things happen. We kind of need to take moments to recognize that amidst all the shit. So this decision was

• 45:16Melissa Murray?

  Was 5-3 with Justice Sotomayor writing the majority. And it was 5-3 because Justice Gorsuch was recused. The three Democratic appointees were in the majority, joined by the Chief Justice and Justice Kavanaugh. A breakdown we'll come back to after we discuss the next case.

• 45:30Kate Shaw?

  Justice Thomas wrote the dissent in the case. It included rather gratuitous details about the murder because every time Justice Thomas writes anything in a capital case, he always does that. And it also seemed to suggest there was something untoward about the Republican Attorney General in this case, appointing someone to investigate this case. And in particular, Thomas and his delicate sensibilities were offended by the fact that the Attorney General appointed, quote, Rex Duncan, a personal friend and campaign donor, as independent counsel to reexamine the legitimacy of Glossop's conviction. I think it is great that Thomas is now worried about propriety and dubious about the ethics on display in these proceedings. So I just want to say, kudos, sir.

• 46:13Melissa Murray?

  New Year's resolution.

• 46:14Kate Shaw?

  This is the case where he gets, all of a sudden, exercised about ethics, where the ethical lapse is appointing someone to investigate a possibly innocent man having been sentenced to death.

• 46:27Melissa Murray?

  Yeah.

• 46:28Kate Shaw?

  Excellent.

• 46:29Melissa Murray?

  I mean, Kate, who's going to tell him that it's not unconstitutional to have friends?

• 46:33Kate Shaw?

  You are, Melissa.

• 46:35Melissa Murray?

  Is it going to be me? Great. The court also issued an opinion in Williams versus Reed. This is an important case about how states enforce the general civil rights statute, Section 1983, which allows individuals to sue state and local officials who violate their federal rights. Now, the issue here is kind of wonky, but we'll try to explain it with the facts of the case. So there are this group of Alabama workers who maintained that Alabama was illegally delaying the distribution of their unemployment benefits in violation of the due process clause. So they filed suit under Section 1983 in state court. The state court dismissed their suit because the state court maintained that the litigants had failed to comply with the state rule that required them to exhaust their administrative remedies.

• 47:19Melissa Murray?

  That is, they had to challenge the delay before the State Unemployment Commission, before then coming to court. So they had to do this whole administrative process, and then they could come to court.

• 47:29Leah Litman?

  The problem this created was, in the court's words, a catch 22. Because the claimants cannot sue until they complete the administrative process, they can never sue to obtain an order expediting the administrative process. End quote. So a bare majority of the court held that where a state court's application of a state exhaustion requirement in effect immunizes state officials, state courts cannot deny claims on failure to exhaust grounds. So this decision upheld and reaffirmed the court's previous decisions in cases such as Patsy, which had said litigants are not required to exhaust state remedies before filing Section 1983 claims.

• 48:05Kate Shaw?

  This case had essentially the same breakdown as the last case, although this one was 5-4 because Gorsuch was participating, rather than 5-3 because he wasn't in the glossip case. So the majority was the three Democratic appointees, with Justice Kavanaugh, who wrote the opinion, and the chief justice.

• 48:19Leah Litman?

  So what should we make of that particular breakdown? And especially Justice Barrett's vote in both cases, given that Justice Barrett has, on occasion, broken with the Republican appointees in some high-profile cases, like the Trump sentencing case and other ones, including the Biden administration's suit involving Texas Constantino wire at the border. So what do you think is going on here? It seems like an unusual kind of fracture.

• 48:46Kate Shaw?

  I am still holding out hope that she remains the most gettable justice after the chief on some of these big structural separation of powers cases. Not only the two cases you just mentioned, Melissa, but also the fact that she writes a saner concurrence, although still joins the majority opinion in the abomination that is the Trump versus United States immunity case. I think on the spending clause issue, depending on the form in which it reaches the court, questions about appointment, she may be gettable. I do think on removal, the Humphreys executor question, she's, I'm sure, a lost cause. But on the others, I think she remains more gettable. But in a lot of the mind run of the cases, the court here, she is still just a completely mainline conservative justice who's going to vote in lockstep with her conservative colleagues most of the time.

• 49:29Leah Litman?

  And she does not seem to be sympathetic to these cases where procedural complications effectively make rights unenforceable. I think that is glossip. I think that is also the Section 1983 case, Williams versus Reed. I think this was also a case, Nance versus Ward, from before. So I think that that category of case is definitely something where she's ungettable.

• 49:52Kate Shaw?

  We also got several other opinions. We're just going to quickly tick through them now. The first, Wisconsin Bell versus United States Ex Rel Heath, was a case in which the court issued a narrow opinion, holding that E-rate reimbursement requests to the Federal Communications Commission's Universal Services Fund are claims under the False Claims Act. This means litigants can file suits alleging there was fraud in those claims and potentially obtain travel damages against the perpetrators of fraud. We say the opinion was narrow because the court really only said the government provided at a minimum a portion of the money applied for by transferring more than $100 million from the Treasury into the fund. So it didn't answer any broader question about a government-administered fund and whether that might generate claims under the False Claims Act.

• 50:34Melissa Murray?

  This case generated some separate writings. Justice Kavanaugh, for example, wrote a separate concurrence, which Justice Thomas joined, and it is actually quite notable. In that separate concurrence, Justice Kavanaugh noted that the FCA's key TAM provisions, these are provisions that allow whistleblower suits. He argued that these provisions raise substantial constitutional questions under Article 2. And according to Justice Kavanaugh, those constitutional questions, although they are not before the court in this case, in an appropriate case, quote, "The court should consider the competing arguments on the Article 2 issue," end quote. So, vroom, vroom, vroom, litigants, start your engines.

• 51:16Melissa Murray?

  It's time to find an appropriate vehicle to get this right up to the court so you can get rid of whistleblower suits as a violation of Article 2. Perfect. The court also announced a decision in another case, Hungary versus Simon. There, the court held that when a plaintiff alleges only that there was a co-mingling of illegally appropriated funds with government funds, the plaintiff has not satisfied an exception to the Foreign Sovereign Immunities Act that would allow the plaintiff to sue a foreign government in U.S. courts.

• 51:45Leah Litman?

  In Dewberry Group versus Dewberry Engineers, the court said that in trademark cases, a damages award that takes into account the defendant's profits is limited to profits that can be ascribed to the named defendants, not associated entities. Then, in Waitsig versus Halliburton, the court held that a case that is voluntarily dismissed under federal civil rule 41A is a final judgment that can be reopened under federal civil rule 60B. And in Lackey versus Stinney, the court held that plaintiffs are not prevailing parties entitled to attorney's fees if they obtain a preliminary injunction and then the law or regulation they are challenging is repealed. This could be quite impactful for civil rights litigation. It's going to reduce the number of cases in which attorney's fees are available, and it potentially allows defendants to get out of paying attorney's fees by repealing a

• 52:30Leah Litman?

  law or regulation after there is a preliminary injunction against that law or regulation.

• 52:36Melissa Murray?

  Notably, Justice Jackson filed a dissent in which Justice Sotomayor joined. In that dissent, Justice Jackson took issue with the chief's insistence that the majority's ruling naturally flows from the court's earlier decisions. She argued that precluding recovery for attorney's fees in actions where there had been a preliminary injunction but the underlying case was mooted is, quote, "plainly inconsistent with that statutory provision's clear objective, which is to encourage attorneys to file civil rights actions on behalf of the most vulnerable people in our society," end quote. She then went on to emphasize that of the 11 federal courts of appeal that have considered the question, quote, "all of them agree that at least some preliminary injunctions trigger

• 53:17Melissa Murray?

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• 54:02Melissa Murray?

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• 54:47Melissa Murray?

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• 54:58Melissa Murray?

  Now, on to argument recaps. The court heard the case about the rampant discrimination against straight people. That exists in Sam Alito's mind. The case we're referring to is Ames versus Ohio Department of Youth Services, where Marleean Ames alleges she did not receive a promotion and later received a demotion because she was straight. She argues this constituted illegal discrimination on the basis of sexual orientation.

• 55:22Kate Shaw?

  The technical legal question in the case is about how courts should evaluate such claims at what's called the summary judgment stage, basically before a judge decides whether a case should go to trial. Now, for employment discrimination claims generally, the court has established what is known as the McDonnell Douglas framework. Under McDonnell Douglas, to make out a claim of unlawful discrimination, a plaintiff has to show that they are part of a protected class slash alleged they were discriminated against on the basis of a protected characteristic. The employer then has to come forward with a legitimate justification to explain the action they took. Then a court is supposed to assess whether there is reason to think and whether a jury could conclude that the employer's stated reason is pretextual.

• 56:00Melissa Murray?

  In this case, the court below concluded that Ames's claim of sexual orientation discrimination failed at the first step. That is, Ames failed to show that she was part of a protected class because she didn't adduce, quote unquote, "background circumstances" that might show her case is the rare one in which employers would discriminate against a majority group that has experienced no history of discrimination, like straight people.

• 56:24Melissa Murray?

  But going into the argument, it was clear, and now after the argument, it seems even more clear, that the court is inclined to rule for Ames. So this woman, who is alleging that she is discriminated against because she is straight, is likely going to win, and that will result in the court sending the case back to the lower court. Interestingly, the respondent, who was the defendant in this case, didn't even really step up to defend what the lower court had said, namely, the defendant really didn't defend the whole idea that straight people are not a protected class for purposes of the law, which led Justice Gorsuch to observe the following in this colloquy with the defendant's lawyer.

• 57:04Speaker 06

  I'm positing a circumstance where we don't. Affiant saith not anything about what that first prong means, other than to say it applies the same to everybody. Well, we agree that the court should say that at the very, very minimum. We're in radical agreement today on that, it seems to me. The counsel before us seemed to be in total agreement.

• 57:28Leah Litman?

  I think the best we can hope for is that the justices say very little, other than or in addition to the fact that if, emphasis on if, someone is discriminated against for being straight, that would constitute discrimination on the basis of sexual orientation and therefore prohibited discrimination on the basis of sex. Justice Kagan was, throughout the argument, trying to limit the damage, saying, why would we use this case, which is about whether a majority group plaintiff has an extra burden to opine on a range of things that have nothing to do with that question.

• 57:59Kate Shaw?

  Yeah. And the looming fight seems to be whether courts can take into account the fact that someone is part of a majority group, and a majority group that has experienced no history of discrimination, in assessing whether the employer's justification for the adverse employment action is pretextual, and that relates to the decision about whether to send the case to trial. So that would mean that while the lower court may have been wrong to say Ames's claim failed at step one of McDonnell Douglas because she didn't make a showing that she's part of a specific protected class, those reasons, that failure to show that straight people are, that she as a straight person is being discriminated against, actually is a reason why a plaintiff's claim might fail at step two or step three of McDonnell Douglas framework.

• 58:44Kate Shaw?

  So the lower court was wrong to impose this. Extra burden on Ames at the threshold, right? At step one, but it's still really hard to see her ultimately prevailing, right? It's not that likely that a court is going to evaluate this claim and say, really, that's why you didn't get this promotion and later got this demotion because you are straight. So you don't have to show anything special at the first step, but you can still lose because anti-straight discrimination is not really what was motivating the employer. You can still lose on that basis later in the analysis. Naturally, Sam Alito was not OK with this, as you can hear in this clip.

• 59:25Speaker 06

  Would it be, the rule that the Sixth Circuit applied was apparently based on an intuition about the way in which most employers behave. And maybe it was sound at the time when McDonnell Douglas was decided. Maybe, as some of the amici have argued, it's no longer sound today. And suppose we say that that was an error. Would it be permissible for a court to transport that same notion into the subsequent steps of the McDonnell Douglas inquiry?

• 1:00:04Speaker 06

  In other words, in taking into account whether there is sufficient evidence to get by summary judgment, can a court take into account the race of the decision maker and the race of the plaintiff?

• 1:00:22Leah Litman?

  As we said when we previewed the case and just previewed our argument recap, there is rampant discrimination against straight people in Sam Alito's warped mind.

• 1:00:34Melissa Murray?

  Two other potentially looming fights surfaced during the course of this oral argument, and we just wanted to call your attention to them. First up, Justice Gorsuch suggested that maybe the court should throw out or revisit McDonnell Douglas. This is the framework that has structured employment discrimination claims for literally decades. Again, why not just reconsider everything? YOLO court, you only live once, and you know that stare decisis is for suckers and precedents are for punks. So get in there, change everything. Move fast, break things.

• 1:01:10Melissa Murray?

  Another fight, Justice Sotomayor got the plaintiff's counsel to concede that just because an employer considered race, sex, or sexual orientation, that doesn't necessarily mean the employer acted illegally, provided that the employer had a legitimate reason for considering those traits. And again, that whole discussion seemed to be in service of preserving some affirmative action programs in employment or DEIA programs going forward by suggesting that the consideration of those traits might have legitimate functions for the employer. So again, under that statutory framework.

• 1:01:44Kate Shaw?

  Okay, so let's move on to the next case. The court also heard argument in Gutierrez versus Sines, a case we quickly previewed last week. The issue in this case is whether Article III standing requires a particularized determination of whether a specific state official will redress the plaintiff's injury by following a favorable declaratory judgment. Sounds kind of ominous. We will drill down on what that means by really focusing on the facts. But before we do that, just a quick explanation of the law. So a declaratory judgment is, as it sounds, a declaration from a judge, and it can declare that a defendant's actions are illegal. In which case, because there is now a judgment, the defendant needs to stop the illegal action.

• 1:02:23Melissa Murray?

  The reference to redressability here refers to standing analysis. So in order to establish standing, which means to get your case heard in federal court, a plaintiff has to first show that there has been an injury that they suffered, and that the injury was caused by the defendant's actions, and that a judgment by the court, a favorable decision by the court, will actually redress or fix the injury that the defendant's actions caused. So what's going on here? Well, who has an injury that supposedly will not be fixed by a favorable decision of the court? The answer: Ruben Gutierrez, a man who the state of Texas has sentenced to death.

• 1:03:04Kate Shaw?

  So Gutierrez has been challenging the Texas statute that governs defendant's access to post-conviction DNA, so DNA testing after a defendant was convicted. He's been trying to get DNA testing for more than a decade at this point to show that he is not eligible for the death penalty. And he's arguing that Texas's statute violates the federal constitution and specifically the due process clause because it too severely limits the cases in which DNA testing is available. Gutierrez also challenges other limits on the post-conviction DNA testing scheme in the state of Texas, like whether it requires courts to consider not just post-conviction DNA testing, but also other evidence in potentially overturning a conviction or sentence.

• 1:03:40Melissa Murray?

  So a district court agreed that the Texas statute as structured violated due process? Then, dah dah dah dah, enter the Fifth Circuit. We missed you guys? Not. So the Fifth Circuit decided in their infinite wisdom that Mr. Gutierrez does not have standing to challenge the statute that is being invoked to prevent him from getting access to DNA testing that he says could establish that he cannot be sentenced to the death penalty.

• 1:04:03Kate Shaw?

  He has a passing interest in this question.

• 1:04:06Melissa Murray?

  Right.

• 1:04:07Leah Litman?

  Yeah, just like a general interest in seeing the law enforced.

• 1:04:10Kate Shaw?

  Yeah.

• 1:04:11Melissa Murray?

  To reach this banana pants conclusion, that's a legal term, the Fifth Circuit invented a new test under which courts can say, well, actually, there are ways the defendant might not have to comply with the federal court's declaratory judgment. Ways the defendant may not have to stop doing the thing the declaratory judgment determined was illegal. So therefore, the plaintiff can't get a declaratory judgment. There you go. On these particular facts, the Fifth Circuit pointed to a statement from an earlier decision of the Texas Court of Criminal Appeals in Gutierrez's case that said that, quote, "record facts," end quote, "from trial established that Gutierrez would still be eligible for the death penalty, even if he obtained some favorable DNA results."

• 1:04:55Melissa Murray?

  Based on that statement, the state of Texas suggested that they would not agree to DNA testing, even if there was a declaratory judgment in the case against them. And QED, the Fifth Circuit said, because Texas would not comply with the declaratory judgment by offering up the DNA testing, a declaratory judgment suit isn't possible. This sounds circular to you, it's because it's a circle.

• 1:05:17Kate Shaw?

  Right.

• 1:05:19Kate Shaw?

  We briefly noted last time that we want to underscore today. If there was ever a great time to say something along the lines of, well, if a defendant threatens not to comply with a judicial decision, a federal court cannot even evaluate the underlying claims, that is, you know, a way to completely eviscerate the possibility of judicial review. If there were ever a time to embrace such an outlandish claim, it would not be right now.

• 1:05:44Leah Litman?

  These guys have great timing. So the Fifth Circuit's decision was wrong for any number of reasons. I am going to quickly tick through some of them so you all can better understand my views of the Fifth Circuit. I will probably be talking even faster than I usually do. So the Texas Court of Criminal Appeals decision does not say what the Fifth Circuit suggested it did. That court was comparing potential DNA evidence against the trial record. But if Gutierrez could get testing, he is also arguing that he could and has to be able to present any favorable DNA evidence together with other exculpatory evidence uncovered after trial. And no court has ever assessed whether that evidence, in conjunction with favorable DNA evidence, would support his claim. The Fifth Circuit's weird reasoning also required them to speculate about the meaning of state law, which state courts have not yet interpreted.

• 1:06:29Leah Litman?

  The Court of Appeals just guessed that testing wouldn't be available in circumstances like this. And the bottom line is Gutierrez's injury is redressable by a declaration stating that the basis on which Texas is refusing him access offends due process. Eliminating a reason or some of the reasons why Texas might be able to refuse to turn over the evidence makes turning over the evidence more likely.

• 1:06:53Melissa Murray?

  You done cooking?

• 1:06:54Leah Litman?

  Yeah, I'm trying to keep my blood pressure down.

• 1:06:57Melissa Murray?

  How's that working out?

• 1:06:59Leah Litman?

  Stupendous.

• 1:07:00Melissa Murray?

  Okay. Oh, all right. It is also worth noting that it's not just Leah who has things to say on this front. The Supreme Court has recently waded into this, in fact, very, very recently. In a case called Reed versus Gertz, which was decided way back in the before times in 2023, the court said that Rodney Reed had sufficiently alleged an injury, in fact, the denial of access to evidence in his case. And there, the justices reasoned the state prosecutor, which was the name defended here, had denied access to the evidence and thereby caused Reed's injury. And if a federal court concluded that Texas's post-conviction DNA testing procedures violate

• 1:07:44Melissa Murray?

  due process, that court order would eliminate the justification for denying DNA testing. You see how all of this works together? It's almost like it makes sense.

• 1:07:53Leah Litman?

  Yeah, but I come back to, Starry decides this is for who?

• 1:07:56Melissa Murray?

  Suckers.

• 1:07:57Leah Litman?

  Suckers.

• 1:07:58Melissa Murray?

  Constitutions are for...

• 1:07:59Leah Litman?

  Cucks.

• 1:08:00Melissa Murray?

  Right.

• 1:08:01Leah Litman?

  Cases also for cucks.

• 1:08:03Melissa Murray?

  Also.

• 1:08:04Leah Litman?

  So, Texas and the Fifth Circuit tried to distinguish Reed by saying, you know, that here there are multiple grounds for denying Mooster-Gutierrez access to testing, but that too doesn't actually distinguish the cases. As Justice Kagan noted, the opinion in Reed acknowledges that the state had given multiple reasons for why they wanted to refuse DNA testing. Thankfully, it seemed like a majority of justices think there is standing here. Even Brett gets it, which you can hear here.

• 1:08:31Speaker 06

  I don't see how we can say something's not redressable just because the prosecutor's going to say, "I'm not going to comply with a court order." You know, if President Nixon said, "I'm not going to turn over the tapes no matter what," you wouldn't say, "Oh, I guess we don't have standing to hear the executive privilege case." I mean, it just doesn't work, I don't think, to say a recalcitrant defendant can defeat redressability in that way.

• 1:08:55Kate Shaw?

  Yeah.

• 1:08:56Melissa Murray?

  Pretty clear.

• 1:08:57Kate Shaw?

  I definitely breathed a sigh of relief there, both with respect to the, I think, rejection of this insane theory in this case, but also, I actually thought it might be meaningful that he invoked the Nixon tapes case in the way that he did. Like, I am not sure if the case survives the Trump versus United States immunity decision. Certainly, if it had all happened after Trump versus United States, like, you know, there's no way you can get a subpoena for these recordings of the president's conversations with underlings in the executive branch, I think. And even before the abomination that's the immunity decision, Brett was actually, like, a little dodgy. He charac- Drives it narrowly before like, you know,

• 1:09:40Kate Shaw?

  talking about it in a way that like made my spidey sense kind of tingle. But if he is reaffirming that it remains good law, I am here for that. And I know this is like searching for crumbs of good news right now. But that was like a little tiny crumb that I picked up and I don't know, nibbled on this week, so.

• 1:09:59Leah Litman?

  Our little, our little optimist is fighting through it.

• 1:10:03Melissa Murray?

  Are you full off of that crumb?

• 1:10:07Melissa Murray?

  All right, Kate is going to continue to Kate, i.e. be an optimist even in the face of unrelenting pessimism. And we are going to continue briefly recapping the arguments the court heard in two other cases this last week. So the first case is Asteris versus United States. And that case concerns what factors courts can consider when deciding whether to revoke a defendant's supervised release. There's a separate statutory provision on revoking supervised release from the provision on imposing sentences. But the permissible factors that courts can consider in both circumstances do have some overlap.

• 1:10:43Leah Litman?

  It's not totally clear how the court is going to come out here. Justice Alito and I think the chief were with the government and inclined to say eh, they're similar enough such that who cares if a court references the provision on imposing sentences and what it says? Because textualism is for who?

• 1:10:57Melissa Murray?

  Tools.

• 1:10:58Leah Litman?

  Tools.

• 1:10:59Melissa Murray?

  Yep. Jinx. The Democratic appointees and maybe even Justice Gorsuch pointed out that the statutes direct courts to consider different reasons and goals and orient the judges differently so that even if the factors that courts consider when revoking supervised release and when imposing sentences may be similar, they are thinking about them through entirely different lenses. And that means they gotta do things slightly differently. It's really unclear if they are going to get a fifth vote for that position. So, you know, we will wait and see.

• 1:11:33Leah Litman?

  The court also heard argument in Pertu versus Richards, a case about whether certain suits filed by incarcerated persons are entitled to a jury trial. In brief, the Prison Litigation Reform Act dramatically limits cases that incarcerated persons can file in federal court. Among other things, the plaintiffs must exhaust their administrative remedies before filing in court.

• 1:11:53Melissa Murray?

  The question here is whether a judge rather than a jury can decide if the plaintiff has exhausted their administrative remedies in cases where the underlying constitutional claim is intertwined with that kind of exhaustion question. Here, for example, the plaintiffs allege that prison officials unconstitutionally threatened to retaliate against them for filing prison grievances, which is why they didn't avail themselves of prison administrative processes. Factual matters related to that constitutional claim also affect whether the plaintiffs have exhausted remedies available to them. It was clear that the Democratic appointees and Justice Gorsuch agreed with the plaintiff that a jury trial is required in those circumstances. It wasn't entirely clear whether there would be another Republican appointee who would

• 1:12:35Melissa Murray?

  get them to the necessary five votes for a decision. Although, the questioning period for the plaintiff was pretty short, which might suggest that there is, in fact, a majority that will agree here and will get a majority opinion on this question.

• 1:12:49Leah Litman?

  I wanted to put a pin in the idea that if the court is going to rule against the plaintiffs here, I think that would create considerable dissonance with the court's recent decision in Jarkacy versus Securities Exchange Commission. There, the court insisted that the jury trial right was so important, so fundamental, corporations and CEOs could not be forced to defend against securities fraud claims before administrative tribunals and administrative law judges. And if the court is going to be so protective of corporate jury trial rights, the least it can do is to try to make that principle generally applicable to cover incarcerated persons, too. The lawyer for the plaintiff, in fact, brought up Jarkacy in response to some questioning. Justice Barrett floated some ways to distinguish it, basically suggesting the federal securities claim in Jarkacy was just like a common law claim in a way this prison litigation isn't,

• 1:13:34Leah Litman?

  which is a move, though not a persuasive one, so also going to be watching to see what happens in this case. Finally, as promised, we wanted to introduce our new segment, Things We Read, Not Hate Read, in the Last Week, because reading is what? Fundamental. Yes, that's a RuPaul's Drag Race call. So, what did I read this last week that I loved? I think the piece that precipitated this new segment is Adam Serwer's piece, The Great Resegregation, in which he outlines how so much of What the Trump administration is doing is not just rolling back the civil rights movement, as we've talked about, but reinstituting segregation. And an analogy that I found particularly illuminating in that is he likens what the

• 1:14:15Leah Litman?

  Trump administration is doing to creating a system that is meritocratic only an illusion, but in effect operates as handouts to their preferred people. And he likened that to essentially an autocracy with elections that appear legitimate but are not in fact legitimate. Two other things I wanted to highlight. One is Adam Unikowski's reasoning backward and forward on his Substack. And the second is Dan Pfeiffer's How to Make the GOP Pay a Price for Doge on his The Message Box platform.

• 1:14:47Kate Shaw?

  I have three things to recommend. One, there was an interview on NPR last week with the former ambassador to Hungary and my old friend David Pressman, who had, I thought, like really pretty kind of blindingly good and scary insights from living, you know, for most of the Biden administration under Orban and then watching the last couple of weeks unfold here. So I really recommend that. I thought the full Andrew Tate column that I quoted from earlier by Michelle Goldberg was excellent and worth a read. And for a change of pace, I just read the book Murder, which a lot of people read last year, but I did not. And I absolutely loved it. It was an incredible debut novel and really took me out of just the complete hellhole that is this news cycle. So if you're looking for something to do the same with, give it a try.

• 1:15:27Melissa Murray?

  Not a big week for reading for me. I've been reading the paper, but there's nothing I'd recommend because it's all an absolute shit show. I did recommend the Adam Serwer piece that you mentioned, Leah, on Blue Sky, which I liked a lot. It was recommended to me by Jamelle Bowie over the weekend when we were at this constitutional conference in Miami. And I also read, while in Miami, Jesus and John Wayne by Kristin Kobes Dumez, which was absolutely fantastic. And if you want

• 1:15:59Melissa Murray?

  Something that helps explain the collision of Christian evangelicalism and toxic masculinity. Like, this is the book for you. And I just read it and was like, yep, this is it. And this is the timeline I'm living in. And I hate it here, but now I know why. Perfect.

• 1:16:18Leah Litman?

  So before we go, maybe one additional thing. Trump's love affair with crypto isn't just about hype. It's about profit. On the latest episode of Assembly Required, Stacey Abrams breaks down the basics of crypto, how Trump's policies are paving the way for an unregulated digital gold rush, and why it all raises serious ethical questions. She's joined by Bloomberg's Zeke Fox and The Atlantic's Annie Lowry to explain the good, the bad, and the murky middle of digital currency. Plus, how to spot risky investments, push back on crypto misinformation, and hold elected officials accountable. Listen to Assembly Required wherever you get your podcasts or on YouTube every Thursday.

• 1:16:54Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Lea Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny 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.

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