Looking for Bright Spots in the Courts

Leah is joined by guest co-host Skye Perryman, president & CEO of Democracy Forward, to discuss the week’s news, including the continued pushback on the shadow docket from the lower courts and Trump’s boundless abuse of Article II. Then Kate, Melissa, and Leah — along with special guest Sherrilyn Ifill — take a look at the impact of Justice Ketanji Brown Jackson, three years into her time on the Supreme Court. Favorite things: Skye: Sierra Ferrell https://www.sierraferrellmusic.com/tour Leah: The Summer I Turned Pretty https://www.amazon.com/Summer-Turned-Pretty-Season/dp/B09NF4J7XW (Amazon); Charlie Kirk, Redeemed: A Political Class Finds Its Lost Cause https://www.vanityfair.com/news/story/charlie-kirk-ezra-klein-tanehisi-coates?srsltid=AfmBOoqQgZ-pgtDbTIQDsEHhd9-_Do1yauwIxNwoDpZUmKUhcN3jUC5l, Ta-Nehisi Coates (Vanity Fair); Miolin Bakery https://www.miolinbakery.com/, Brooklyn; L’Appartement 4F https://www.lappartement4f.com/, Brooklyn & Manhattan Kate: Pennsylvania Supreme Court election (get involved at Vote Save America https://votesaveamerica.com/) 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.

• 0:00Leah Litman?

  Strict scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people in groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing for vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools, including at the Supreme Court in a case we talked about on the podcast. If you're listening to us, you're seeing the writing on the wall. We can, we must, fight back.

• 0:43Leah Litman?

  Join Americans United for Separation of Church and State and their growing movement because church-state separation protects us all. Learn more and get involved at au.org/crooked. Whenever anything is happening when it comes to reproductive rights and justice, we immediately turn to the Boom Lawyer podcast by Rewire News Group. Hosted by Imani Gandhi and Jess Pieglo, Boom Lawyer brings some humanity and humor to the attacks on bodily autonomy and our democracy at a time when we need it the most. Nobody connects the dots with the same kind of smarts and irreverence as these two do. New episodes drop on Thursdays. You can find Boom Lawyer on Apple, Spotify, and wherever you get your podcasts.

• 1:23Speaker 01

  Mr. Chief Justice, if please, the court. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

• 1:35Speaker 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."

• 2:06Leah Litman?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host today, Leah Litman. We are still in our "Summer was nice, now there's pumpkin spice" season. And for the news segment of today's episode, I decided to bring some extra pumpkin spice. So as a guest, we have with us today, Skye Perryman. Skye is the president and CEO of Democracy Forward, the nonpartisan national legal organization that promotes democracy. Democracy Forward has been involved in much of the litigation we've talked about over the last nine months, so we're very lucky to have her with us today. And Democracy Forward is still on its hustle. Just this week, Democracy Forward filed a lawsuit on behalf of a coalition of faculty, staff, students, and labor unions alleging that the Trump-banned regime is attempting

• 2:49Leah Litman?

  to unlawfully stifle free speech within the University of California system via pretextual investigations, extortionate threats, and more. So, welcome to the show, Skye.

• 2:58Speaker 03

  Thanks. Great to be here.

• 3:00Leah Litman?

  So today, Skye and I are going to cover developments in the lower courts, more district and appellate courts pushing back against the insanity that is the shadow docket. And we'll also chat about how recent news has underscored just how nutty the unitary executive theory of presidential power is, and a smattering of other legal drivel, including the president's latest effort to extract billions of dollars from media companies that don't fawn over him with unadulterated praise. And after that, we have a must-listen conversation on a bright spot in the Supreme Court world, and that is Justice Ketanji Brown Jackson, a conversation Kate Melissa and I had recently with Cheryl and Eifel. Let's start with the latest goings on and the interactions between lower courts, Supreme Court, and the administration. So, we have had some developments in several of the cases

• 3:44Leah Litman?

  where the Supreme Court has intervened on the shadow docket. One of those cases was a challenge to the Office of Personnel Management's directive/guidance to a whole host of federal agencies that the agencies submit reductions in force and reorganization plans. This is a case where a district court entered a TRO or preliminary injunction barring the government from carrying out those layoffs, only to be stayed by the Supreme Court, who cleared the way for the mass layoffs. As we explained last episode, even when the court grants a stay, the litigation continues. So when the Supreme Court issues a stay, it's just deciding what will happen up until the case gets back to the Supreme Court via an ordinary appeal, a writ of certiorari. And the Supreme Court is deciding what happens in that interim period. And that can be super important, but that's technically what they're deciding.

• 4:29Leah Litman?

  So here, after further proceedings, the district court found that, one, the administrative records submitted by the government, it was, in the court's words, quote, "a sham." So maybe some background here, in administrative law challenges, the federal government turns over a set of materials the government used to reach and implement its decision. Here, it turns out, they didn't turn over some things, including Office of Personnel Management's decisions to deny exemptions for mass firings. And then they had the cheek to argue, quote, "crucially, the record doesn't show that OPM ever denied exemptions." Anyways, so based on evidence submitted during this most recent stage of the case, the district court found several agencies were functionally not able to perform their statutory duties. It also found, again, on the basis of evidence submitted, that it was the Office of Personnel

• 5:12Leah Litman?

  Management, not the agency themselves, making determinations on who should be fired. So, Sky, I have some thoughts about why stuff like this still matters, even if the Supreme Court is intervening and staying previous decisions. But I'd love to hear from you, who's been involved so much in this litigation, you know, what you think courts are doing in these settings.

• 5:33Speaker 03

  Yeah, I think it really still matters. And I just want to highlight, I know there's a lot of skepticism, as we should have, about the Supreme Court and its majority, but the district courts in this country are really doing the work, right? I mean, they're doing the work. And so this, I think, is significant. I mean, first, you have a judge actually going out, we've had this start happening in some of our appellate matters, too, where judges are starting to speak out about what's happening at the Supreme Court. You saw that in the decision.

• 6:00Leah Litman?

  Oh, yeah. I'm gonna quote from that, because...

• 6:03Speaker 03

  You're gonna quote it, because that's significant, right? And it's, for people that are tuning in, it's not just your favorite podcaster or commentator that has a real concern about what's happening with this court. I mean, these are judges that have dedicated their whole careers to the rule. That believe in the system of the courts and that are saying this is so not normal. And so I think that's very significant. I think that the, you know, the judge in the case also is having the government go back and adjust people's personnel files to make it clear they were not fired for any reason of their own. I mean, these are significant things. And so I think that it's a, we're representing a lot of civil servants up and down the federal system with varying degrees of success.

• 6:48Speaker 03

  But I think that this should really, it's a significant victory and it's a significant victory for a court to again say what happened here was unlawful. We're going to use the tools we have to try to do what we can in this moment. But this is, this is really a sham all the way around.

• 7:05Leah Litman?

  Yeah, I mean, to that I would just add, I think the fact that we're talking about it shows this increases public attention to what the administration is doing. And the district courts are uncovering facts that expose what the administration is doing and why it's illegal. And that stuff matters, even if the Supreme Court, you know, later down the road kind of says, oh, never mind, we disagree. You know, at a minimum, you're forcing the court to kind of own and be saddled with its own lawless facilitation of the administration in the event it comes to that. You know, as we were kind of alluding to, the judge in this case made some pretty choice

• 7:47Leah Litman?

  observations for the Supreme Court on the fact that the court had previously intervened in the matter. So I apologize, this is a lengthy quote, but I think it's worth underscoring. The judge wrote toward the end of the opinion, quote, "In the ordinary course, this order would set aside OPM's unlawful directive and unwind its consequences. But the Supreme Court has made clear enough by way of its emergency docket that it will overrule judicially granted relief respecting hirings and firings. And too much water has now passed under the bridge since the Supreme Court stayed this court's preliminary injunction reinstating probationary employees. The terminated probationary employees have moved on. Many would no longer be willing or able to return to their posts. The agencies in question have also been transformed," end quote.

• 8:32Leah Litman?

  So, I mean, Sky, what do you think as a litigator when you read language like this in judicial opinions?

• 8:43Speaker 03

  Well, first, I think, and we know this to be the case, but again, the courts are like really speaking out. This is not something you normally hear, you know, see. The other thing is, I just want to point out, and your listeners no doubt know this, but the statute, you know, Congress makes clear that what a court is supposed to do is exactly what the court suggested it would do, but for the Supreme Court, is to set aside and vacate what's happening. Like, that is the law. That's like written in the law from Congress. And here, the court feels that it's been prohibited from doing what the law requires and is calling that out. But the other piece of this, and I know you're going to talk about Justice Jackson later on, is what she called in the birthright citizenship oral

• 9:28Speaker 03

  arguments, "catch me if you can, justice," right?

• 9:31Leah Litman?

  Yep.

• 9:31Speaker 03

  So there is this piece where, as litigators, we go into court, we pursue these matters. By the way, no court has said what the president is doing is lawful. I mean, that, like, not even the Supreme Court, there, but what we're seeing is a range of harms that they're allowing to occur. And then, once that, we used to call it in case law, some of the times, like, once that egg is unscrambled, how do you put it back together again? And we don't want people to become hopeless, because actually, these things do matter, and the public pressure is, we've secured so many wins, not just from courts, but from the administration backing down in some of these cases because of the public pressure and the exposure. So it's important. But at the same time, that our very government, and then aided by the Supreme

• 10:12Speaker 03

  Court's majority, is putting us in a situation where we can win, and the courts even say you should win, and yet the harm has been done. And that's the "catch me if you can, justice," that I think Justice Jackson was right to call out, and we're trying to make sure we're amplifying.

• 10:27Leah Litman?

  Well, and I think that's another way in which the Supreme Court is effectively prohibiting lower federal courts from doing their jobs and following the law, because these preliminary interim forms of relief are supposed to be available so as to prevent irreparable harm, right? The egg that can't be unscrambled. And here, the Supreme Court, you know, effectively told the lower federal court, "You can't actually prevent the sort of..." irreparable harms that

• 10:55Speaker 03

  Right.

• 10:55Leah Litman?

  will follow and that you're not going to be able to fix at the end of the day. And I think we are seeing just the kind of antics that the Supreme Court is enabling. I mean, the district court, the characterizations of the evidence, you know, weren't just limited to the judge calling it a sham. You know, he referred to some evidence as essentially fabricated.

• 11:16Speaker 03

  Right.

• 11:17Leah Litman?

  You know, the other antics that the government was enabling anyways. So that is a district court development. But as we noted last episode, some of the frustration with the shadow docket has bubbled up into the Courts of Appeals. So last week it was the Fourth Circuit. This week it's the First and the Ninth Circuit. So in one case, the First Circuit denied a stay of a district court decision that had preliminarily enjoined the administration's efforts to dismantle certain agencies, including the Institute of Museum and Library Services. Now, you may recall that the Supreme Court had stayed a lower court decision that had blocked the president from dismantling another agency, the Department of Education, even though agencies are set up by Congress and the president can't blow them up unilaterally.

• 11:59Leah Litman?

  But the Supreme Court didn't explain why it was staying that district court decision in that case. And the First Circuit had this to say about the bearing of that Supreme Court stay to its decision involving other agencies. Quote, "It is not clear from this order," and that's referring to the Supreme Court's order in the Department of Ed case, "which of the government's arguments led the court to stay the preliminary injunction? That is notable because the government in the Department of Education case advanced arguments that the government here does not. We emphasize as well that the government in the Department of Ed case disputed the district court's findings." So, Sky, do you want to kind of translate what the Court of Appeals is trying to tell us or tell the Supreme Court here?

• 12:39Speaker 03

  Yeah, I mean, look, I think, and this is really the basis of our justice system, right? Like, courts don't get to exist in a democracy unless they're operating in a transparent way. I mean, they have some legitimacy because they have to, we used to call it reasoned elaboration. They have to explain what they're doing so people can understand. And then they're supposed to be protecting our rights or protecting our democratic institutions. And when they stop doing that, Uh, they really like, what are they, right? Because they're this anti-democratic force. And so I think you see the First Circuit really calling that out, saying there is a consequence, Supreme Court, to just, you know, to just staying something that we, you know, they affirmed that. The Department of Ed case is one of our cases that we're, we're honored to litigate.

• 13:22Speaker 03

  But, you know, there is a consequence to this because we have no idea what you're thinking. Uh, we don't know what, we, we, we can't read your minds. And this is not how courts are supposed to function. I mean, that's why we have written opinions, right? I mean, these are not just sort of kings and queens and robes that don't have to explain anything.

• 13:41Leah Litman?

  That is what some of them aspire to.

• 13:43Speaker 03

  They, they do, I think so, you know? So you see, I mean, no kings is not just no kings at the White House. It's like, what are we doing here? This is a, and so it's really concerning. And I think you see that the court pointing that out. We had an argument this week in a case at the Fourth Circuit where some of the judges just sort of said, like, we're not even sure what we're supposed to be do, you know, commenting on the record in the middle of the oral argument. Because, um, because of the conflicting things out of the Supreme Court.

• 14:08Leah Litman?

  Yeah. And so I have to say, I also read this language as like a preemptive, get our names out of your mouths, Neil Gorsuch and Brett Kavanaugh, who recall, you know, had chastised, you know, other federal judges for failing to guess how the Supreme Court would apply their barely reasoned decision in another case involving the Department of Education to one involving the National Institutes of Health. And it wasn't just in this First Circuit decision involving the efforts to dismantle the Museum and Library Services, uh, Institute. The First Circuit also denied the government to stay in a case involving efforts to gut the Department of Health and Human Services. You know, they are a district court preliminarily enjoined and then clarified that the injunction restricted

• 14:51Leah Litman?

  the agency's ability to engage in mass layoffs. And First Circuit said, no, stay here either. And they said, quote, "We have carefully reviewed," you know, "the order in the Department of Education case." So I also read that as, Neil, get our names like out of your mouths, um, kind of energy. And then again, it's not just the First Circuit. Ninth Circuit also denied the government to stay in the latest round of litigation. Secretary Crispy Gnomes, cancellation of temporary protected status for Venezuela nationals. And here's what the Ninth Circuit had to say about the Supreme Court's earlier stay in this same case. Quote, "We reject the government's argument that the Supreme Court's order, you know, the stay squarely controls the outcome of its stay motion. That argument ignores the text of the order and the reality that the Supreme Court did

• 15:36Leah Litman?

  not have the benefit of reviewing the now more fully developed record on which the District Court's summary judgment order relied," end quote. So, I mean, what, again, I realize I'm asking you now to react to another kind of Court of Appeals decision, but the fact that this is happening in now three circuits, multiple different panels, I mean, do you think there's any chance the Supreme Court is going to take a hint?

• 16:00Speaker 03

  Well, I think, I mean, look, I don't know we're going to project the Supreme Court at this moment, but what I can say is this is legitimate, this is a true legitimacy crisis. You've been highlighting that here, your listeners know it, but this is of a different flavor, right? Because at first it's that you have, the Supreme Court comes out, issues decisions like Dobbs, other decisions that really go against what we understand our rights and, you know, understand our constitution to be. You have their approval ratings historic lows, right? Which is really concerning, right? Where we are, you have, you have these historic low approval ratings, but, but for good reason, right? Because there's a lot of concern about what are we doing with this court in a democracy? Why is it reversing our rights, not protecting our rights?

• 16:41Speaker 03

  Now you have judges that you have to think have a little more sympathy with even terrible, unpopular decisions, decisions we may not like. These are judges that have to make these decisions every day. Now you have them really coming out and questioning, I think, the legitimacy of the way this court is operating, and for good reason, because they're sort of breaking the rules of the road, right? Like, the rules of the road are you're going to explain yourself. We don't, we don't actually just issue opinions that can shape the course of history from the Supreme Court without a full record, right? Without knowing what happened. And that's why we have lower courts, is to get all that sorted out, so that once things come up to the court, the court can really make decisions that will affect the course of history. And so I think you do have this.

• 17:23Speaker 03

  It's really been interesting to see. I think it's healthy that the courts are calling. I want to point that out for people that are hopeless or we're all kind of what's happening in this moment. There's some really healthy, it is healthy that these district court judges and appellate court judges are saying the truth, are using the power they have and the obligation they have to say the truth. But it's also very concerning in what that shows. But I do think, I mean, if Justice Roberts is so concerned with the Supreme Court as an institution with its legitimacy, I think this puts more pressure than what they've had, a different kind of pressure than what they've had. And I think it's positive.

• 17:58Leah Litman?

  Yeah. And we should say it's not all good news, you know, out of the lower courts or courts of appeal. So the First Circuit actually did choose to stay an injunction that had been issued against the big, beautiful, ugly bill provision, barring Planned Parenthood from the Medicaid program. And the First Circuit also held that Secretary Noem likely had authority to mass cancel immigration parole grants for people from Cuba, Haiti, Nicaragua, and Venezuela. But to my mind, like, those decisions only serve to underscore more of why the Supreme Court's silliness on the shadow docket isn't needed because appellate review, right, is okay. You know, this is just months or weeks after an initial district court decision.

• 18:41Leah Litman?

  And it seems like there's not a ton of interim harm happening in that period. So the Supreme Court could let this play out in the courts of appeal. And yet they just refuse to. And I guess I'm thinking it's no longer just disrespect toward the federal trial courts. It's also just disrespect to the federal trial court and the courts of appeal at this point.

• 19:06Speaker 03

  And the whole process, right? I mean, we litigate every day. We get decisions from judges, you know, every day that we like and a lot of days that we don't like. And that's how the system works and that's what Americans expect. I mean, people in this country understand that. And so that is what's so concerning and just so curious about. I mean, I saw you, you talk about it a lot. But I saw the statistics the other day just about how many instances in which This Department of Justice, because I think we need to also, let's lay some blame there, too.

• 19:37Leah Litman?

  Yeah.

• 19:37Speaker 03

  The federal government taking these things up, asking for emergency intervention is just so unprecedented, even beyond what they did in Trump 1.0, which was totally more than we had ever seen in Obama, in Bush. And then you look at how much the court is acting on those. It's really, it's not normal. And so it is healthy that our courts are saying that and telling that to the American people. But I do think it's also, it underscores, you know, is the Supreme Court just really only about its own power? And that's where we get very concerned about some of this language we've seen out of the court, suggesting, for instance, that maybe the court has some superpowers that the lower courts don't. You know, we saw that in the nationwide judge case. So those are the kinds of things we're watching.

• 20:26Leah Litman?

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• 21:44Speaker 04

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• 22:19Leah Litman?

  You know, the Supreme Court is also rewarding a Department of Justice that is engaged in pretty shady tactics. So, you know, to this end, kind of wanted to give you a lay of the land on some of the recent emergency litigation in the district courts, which I think says a lot about how the administration is attempting to go about the destruction of the rule of law. So last weekend, that is not this most recent weekend, but the one before that, there were emergency proceedings in a district court because of, you know, the latest thing the Trump administration was trying to pull with respect to expulsion. So this is a group of non-citizens challenged the Trump administration's deportation practices, which they said sidestepped the legal protections against torture because the administration was allegedly deporting people to Ghana

• 23:03Leah Litman?

  with a nod, and then Ghana turns around and redeports the people to countries where they face torture and persecution and where United States law would prohibit the federal government from sending them to. So during the hearing, you know, in these proceedings, the judge said, quote, "What you're doing, what appears to be happening is truly disingenuous." And the litigation was a little hard to follow and stay abreast of because some of the things were filed under seal. And unfortunately, this past week, the judge concluded the court lacked jurisdiction over the plaintiff's challenges. But here too, Sky, like, this seems just to underscore...

• 23:40Leah Litman?

  The district courts are not gone wild. Like, they are doing their darn best to draw attention to the legal abuses that the administration is engaged in while not overstepping their authority, is how I read this.

• 23:54Speaker 03

  Right. So I think this is to underscore that, you know, this is a system that doesn't, you know, when it works, it doesn't make everyone happy all the time, so.

• 24:03Leah Litman?

  Yeah. I do think this should have been one of those cases where the plaintiff did get relief. You know, just because like, I read the opinion and the judge seemed to say that the court lacked authority to remediate plaintiffs' potential wrongful deportations because unlike in the case of Kilmar Obregón Garcia, the government did not concede here that these individuals had or would be wrongfully deported, but that just cannot be the law because it would mean there's only authority when there's a confession of error. The judge did at least observe, you know, that these actions, quote, "appear to be part of a patterned and widespread effort to evade the government's legal obligations," end quote. And, you know, I guess along these lines as well, you know, last week Kate and I mentioned how in the litigation concerning the Trump regime's efforts to deport several hundred

• 24:47Leah Litman?

  Guatemalan children over Labor Day weekend, the government was forced to retract its earlier representation that deporting the children was supposedly A-OK because their parents wanted them sent to Guatemala. So in subsequent litigation in that same case, the government conceded it actually had no basis for that statement, which again, it had attempted to invoke as a reason for sending several hundred children to Guatemala. And now, a whistleblower has come forward alleging that one of the administration officials involved in this effort to deport literal children, quote, "knew or should have known that some of the statements the official made in support of the deportations were false." Namely, you know, the official said the administration had screened the cases to ensure it would

• 25:28Leah Litman?

  be safe to deport the children, including by attempting to verify whether the children were victims of child abuse. So this guy, I guess, again, as a litigator, what's supposed to happen if you lie or make misrepresentations in court?

• 25:41Speaker 03

  Right. I mean, you know, you're supposed to, you'll be held in contempt and you not only could be held in contempt, you could be referred for discipline. And I want to underscore, um, this is not something that's just have, these are highly publicized cases as they should be because I mean, but we are seeing this conduct in a lot of cases.

• 25:58Leah Litman?

  Yeah.

• 25:58Speaker 03

  Across the board. Um, and it's not normal. The government really, I think many judges are starting to see that they're not entitled to this presumption of regularity. I mean, we're, we're arguing around that right now, but this has been a playbook that we've saw in the early days of the administration and that now we're seeing intensified. Um, and we do need the district court judges and the lower court judges to see this and to call it what it is. And we also need the Supreme Court, and I think you've seen Justice Jackson and the other, and, and Justice Sotomayor at times call this out. We also need the Supreme Court to care about how the government is conducting itself before the federal judiciary, which at times it feels like that the court is,

• 26:40Speaker 03

  is, you know, not only do they not care, they're somehow rewarding in some way, some of this catch me if you can behavior.

• 26:47Leah Litman?

  Which is very interesting, given that the Supreme Court seemed to care a lot about when the, let's say Solicitor General Office in the Obama administration was changing positions, right? They came down quite hard on them in those matters. And yet now you have multiple lower federal courts basically accusing the administration of lying to them and defying court orders. And yet this Supreme Court, right, has yet to really take a meaningful stand and challenge that conduct.

• 27:15Speaker 03

  And on that point, and you'll remember this because you so covered it so beautifully and paid attention to it so much, but you remember in the Mifapristone cases, the A H M case. And as somebody that has spent a lot of my career representing doctors and patients and people that are trying to provide care, I can tell you there, we get a number of court orders that you are helping your clients comply with, that you really believe are harming people and that the court order should not have been issued, right? I mean, this is, and but as a lawyer, you help everyone comply and people in this country understand by and large that you comply with court orders. And you remember the entire. Speculative, based on nothing.

• 27:53Leah Litman?

  Yes.

• 27:53Speaker 03

  Speculative rhetoric that was coming out of very far right legal groups and then

• 27:58Leah Litman?

  Echoed by Justice Alito.

• 27:59Speaker 03

  Out of Justice Alito, exactly, in this decision suggesting that there was somehow, it was not at all accurate. There was no basis to say that anyone was suggesting that you wouldn't follow a court order.

• 28:12Leah Litman?

  Yes.

• 28:12Speaker 03

  None of the litigants. And so we had this entire, entire crisis over something that was not even

• 28:18Leah Litman?

  Spilled over onto the House and Senate floor, right?

• 28:21Speaker 03

  And it, right. And now, and it's like, and now, on a daily basis, almost on a daily basis, in these cases, there's a lot of concern. There's concerns we win court orders. We have to send people in. The minute we win court orders, we have to have our team call and start setting status conferences to make sure that the court orders are being complied with. We're largely able to secure a lot of that compliance. But there seems to be no outrage from any of these people, especially at the Supreme Court, that I thought, when I read that, I thought, look, this is, there was nothing based. There was nothing to, you know, these assumptions they were making in the method crystal case were wrong. But hmm, there's a judge that cares about compliance with quarters. Where is that outrage

• 29:03Speaker 03

  now that we're actually seeing this play out every day and in matters that affect children?

• 29:07Leah Litman?

  Yes. Yep. I know. Well, so now, I guess we will transition to a segment I have lovingly called Legal Drivel, which is going to be about the unitary executive theory and the latest Trump litigation. So maybe Sky, can you just remind our listeners, what is the unitary executive theory?

• 29:24Speaker 03

  Well, arose by any name. I mean, so, you know, I think, I think we largely understand it as a theory where the president claims that Article Two of the Constitution, remember that is Article Two, it is not Article One. It's like, you know, but Article Two of the Constitution sort of gives him unlimited power over at least the executive branch.

• 29:43Leah Litman?

  Yeah.

• 29:43Speaker 03

  And, and then now, just to be clear, and that's, you know, why I wanted to start, that's sort of how this, we started seeing this theory.

• 29:50Leah Litman?

  Yep.

• 29:51Speaker 03

  Now, of course, they're, they even have broader claims to the theory at times. It seems like they believe that this unitary executive theory means they don't have to follow the courts or they don't have to follow some courts. But, but that is, that is the the unitary theory. And I think as you pointed out and others, it was all over Project 2025. But we've been seeing this for some time out of this group of very far right, you know, legal organizations. And some of it goes back to the Bush administration and the Iraq War. And that's sort of where it got some of its, its origins, although it's so much bigger than it was then.

• 30:20Leah Litman?

  Yeah, and the Supreme Court is increasingly into this. You know, it was reflected in the immunity decision, of course, Trump versus United States, where, you know, as you were describing the theory, it basically allowed the president to act in violation of the law because the laws couldn't regulate the president's exercise of official duties. You know, it also appeared in Trump versus Wilcox. You know, there it was about the president's control over people within the executive branch, again, allowing the president to act in violation of congressional statutes. And in my mind, like, the last few weeks in particular have seen a terrifying escalation of some of the administration's efforts to squelch political dissent and suppress any perceived opposition. And I actually think a fair amount of this is related to the unitary executive theory. So I kind of wanted to spin this out.

• 31:04Leah Litman?

  So, of course, comedian Jimmy Kimmel had his show suspended on ABC because of some remarks he made about the Kirk shooting. And that happened after Brendan Carr, who's Trump's appointed chairman of the Federal Communications Commission and the author of the FCC chapter for Project 2025, criticized Kimmel's remarks on a right-wing podcast, warned ABC there would be consequences if Kimmel stayed on air. He added, quote, "We can do this the easy way or the hard way," end quote, you know, told local station owners to step up, and two big station group owners did criticize Kimmel and said they'd preempt his show. And then, you know, ABC suspends the program. And Trump later said networks he accused of being political, quote, "Maybe their license should be taken away," end quote.

• 31:46Leah Litman?

  And, Sky, I know your group just filed a Freedom of Information Act suit, seeking information about the administration and agencies' efforts to use licensing and enforcement powers to limit speech. You know, these actions strike me as wildly illegal, just kind of based on what we know now. But I would love to hear more about, like, how your FOIA litigation has, you know, uncovered kind of more evidence that, you know, is helpful in these matters.

• 32:14Speaker 03

  Yeah, I mean, look, certainly, the president's use of the government and his power in the government, power that he claims he has, some power he legitimately has, some power he doesn't, but clearly, the use of the government, a governmental power to...

• 32:30Speaker 03

  Intimidate people into adopting your particular view is unlawful.

• 32:34Leah Litman?

  Yeah.

• 32:35Speaker 03

  It is unlawful under the First Amendment. It is unlawful under a range of other statutes. We've been able to block a lot of these attempts, the Dear Colleague letter, which was trying to sort of control what the education institutions say. So that is, that is sort of its own concern under the First Amendment. I think we would all want to encourage large institutions across the nation to decide they are going to defend their constitutional rights and to, and to, to, you know, and to bring, you know, bring litigation where they need to, to defend those rights. Because we've of course seen that that litigation is largely being successful. There's just not that much gray area in the, in the First Amendment on these things. But to your point, we also have an administration that really is seeking to, it's, it's very odd what they do. It's sort of a gaslight.

• 33:20Speaker 03

  They'll go out and be on Truth Social and act like they're just talking to everybody, but they're actually doing a lot in secret that they don't want people to know about. And so the Freedom of Information Act, of course, allows people to request information. And then when the government doesn't respond, we and, and other lawyers sue to, to get that information. And so obviously with this latest, this latest attack on our media freedom and on the free press, we've now filed some requests to the FCC. We are looking for calendar invites, text messages, records between Carr and his staff, things that would show what meetings were happening in order to uncover more of what's happening. And that's another, you know, role that you've pointed out before. The courts really do have, especially with an administration like this,

• 34:05Speaker 03

  sometimes the only way we can get to the truth is to use these legally informed tools and then ultimately go to court.

• 34:11Leah Litman?

  Yeah. And I mean, if this is the stuff they're saying in public, I mean, who knows the sort of stuff they're saying behind closed doors.

• 34:17Speaker 03

  Right, exactly. And, you know, we've been able to use the courts. It wasn't in a FOIA case. It was in a substantive case we have. But we have used the courts to force a lot of things over the last week. We have this agreement between the United States and El Salvador. The terms of that agreement are now open to the public. And that is because of the court system. And so when people get very frustrated with where things are, maybe on the shadow docket, as they should be, we just want to remind folks that every day, these courts are powerful tools to help us understand what our government's up to, which is really important for people in this time.

• 34:48Leah Litman?

  Yeah, okay, so now I am going to try to connect what the Trump administration is doing vis a vis broadcasters to other actions they've taken and connect them to the unitary executive theory. So I apologize, this is going to be a long setup and wind up, but I think that kind of helps bring it all together. So, okay, there are reports that Donald Trump may fire the United States Attorney for the Eastern District of Virginia because that office failed to find incriminating evidence of mortgage fraud against New York Attorney General Tish James, who of course, has been front and center in litigation against Trump and things in the Trump universe. And of course, after we finished recording, the US Attorney elected to step down rather than to be fired. Not the choice I would have made, but because the President threatened

• 35:30Leah Litman?

  the US Attorney's job because the US Attorney wouldn't help him get revenge on his political opponents by making up fake crimes. He decided to leave rather than force the President to fire him for those reasons. And then, because it always gets worse, in real Brett Kavanaugh, he just admitted to Energy, the President appears to have accidentally posted to Truth Social what was intended to be a direct message to Attorney General Pamela Jo Bondi, which is apparently how these guys communicate and conduct government business. But that's not the point. I'm going to read this post slash should have been a DM in full because you need to hear this. And I'm sorry, this is me and not Melissa doing this performance.

• 36:13Leah Litman?

  Okay, it begins, quote, "Pam, I have reviewed over 30 statements and posts saying that essentially, same old story as last time. All talk, no action. Nothing is being done. What about Comey, Adam, Shifty, Shift, Letitia, question mark, question mark, question mark. They're all guilty as hell, but nothing is going to be done. Then, we almost put in a Democrat-supported US Attorney in Virginia with a really bad Republican past, a woke rhino who was never going to do his job. That's why two of the worst Dem senators pushed him so hard. He even lied to the media and said he quit and that we had no case. No, I fired him. And there is a great case, and many layers, and legal pundits say so. Lindsay is a really good lawyer and likes you a lot. We can't delay any longer. It's killing our reputation

• 36:55Leah Litman?

  and credibility. They impeached me twice and indicted me five times over nothing. Justice must be served now!" Exclamation, exclamation. President DJT. End quote.

• 37:06Leah Litman?

  This is, to be clear, the president calling upon his attorney general to hurry up and prosecute his political foes. He is referring to a possible new US attorney, Lindsey Halligan, who was his personal lawyer, who he imagines will probably go ahead and hurry up his political foes and prosecute them, even though there is no case. This is Watergate scandal level stuff, only if Richard Nixon, like, live tweeted the whole thing. In a sane world, this, again, directing officers to prosecute political foes would merit impeachment articles. And yet, this is also the kind of thing, initiating prosecutions for illegitimate reasons, threatening to fire officials, who wouldn't initiate sham investigations and prosecutions,

• 37:51Leah Litman?

  that these six Republican appointees on the Supreme Court said, "Meh, smells like presidential power to us. Nothing the president can face accountability for." This is what they wrought. The president is also continuing his efforts to try and illegally remove Federal Reserve Governor Lisa Cook from her position on the basis of spurious and pretextual allegations of mortgage fraud. I mean, Reuters has reported that Cook apparently didn't list the home as a primary residence, as she was alleged to do. So there seems to be, like, a big mortgage fraud, fraud going on, like, fraud about whether there's even mortgage fraud. Anyway, so the DC Circuit, last week, denied a stay of the district court decision that had found the purported firing of Cook a muffle. And Cook participated in a meeting of the governors

• 38:36Leah Litman?

  on Tuesday. And Donald Trump has some thoughts on the future of the Fed and its independence, which we'll play here.

• 38:42Melissa Murray?

  Sir, who do you, do you believe the Federal Reserve is an independent body? What do you think about the independence?

• 38:46Speaker 06

  Oh, it should be, it should be. But I think they should listen to smart people like me. I think I have a better instinct than him. If you look, all the economists got it wrong. I got it right, along with one other people out of 100. So they should listen to people that are smart. Nothing wrong with that. But they have to make their own choice. But they should listen.

• 39:07Leah Litman?

  And indeed DOJ has gone to the Supreme Court asking for a stay of the lower court ruling that keeps Cook as governor. So they're asking the court to allow Trump to fire Cook now. There's also now a lawsuit by Maureen Comey. Comey is a former federal prosecutor at the Department of Justice. You know, she was a prosecutor in the case against Jeffrey Epstein and Ghislaine Maxwell for sex trafficking. You know, she's one of many lawyers fired by the administration for no other stated reason besides, quote, "The Constitution allows me to not give a fuck," end quote, AKA the unitary executive. I mean, that's editorializing, but what she actually received was an attachment stating she had been terminated, quote, "Pursuant to Article 2 of the United States Constitution and the laws of the United States." Comey, of course, is also, you know, daughter of Jim Comey.

• 39:50Leah Litman?

  And the suit notes that Laura Lumer, that's Marjorie Taylor Greene, you have herpes in your pants, Laura Lumer called for Mr. Comey's daughter, you know, to be fired from DOJ. And the suit alleges, you know, the firing is in violation of federal statutes and whatnot. And so these are all instances where the president is exercising the personnel power, right? The like hiring and firing power to basically get officials to do the president's bidding. And firing power can be abused for all sorts of untoward reasons, like connections to a perceived political opponent or doing prosecutions in cases of Jeffrey Epstein. And the Supreme Court, you know, in their decisions that said Congress can't actually apply certain laws to the president, said motives don't matter.

• 40:34Leah Litman?

  Like, it doesn't matter why the president is exercising these powers. All that matters is that he is doing so. Like, law can't touch him in those circumstances. So it feels like we are living with the consequences of the chaos and discord this theory creates. I mean, even in the case of Brendan Carr, right? Like, the president just has more power to get officials to carry out these directives in a world where the president has the stronger hand vis a vis the executive branch. Sky, I guess I'm curious to hear, like, have you seen kind of in court, like, evolutions in how the administration is asserting this unitary executive theory and how that's been playing out on the ground?

• 41:18Speaker 03

  Yeah, I mean, look, first of all, it's not just these high-profile terminations where people have gotten letters that say pursuant to Article II, you're fired, right? That's what we've seen in a number, just to take it back to the earlier discussion we were having on the probationary employees, that's what we've seen in a number of these instances and the way the government has been arguing it has had different characters different times. But we've also seen in a number of immigration cases, the exertion of Article II power, including at times to try to withhold certain information from the court or from the public. I mean, in the JGG case, and this is the Venezuelan, the case of Venezuelan removals before Judge Boesberg, where we are litigating that case alongside the ACLU, in the early

• 42:01Speaker 03

  hours of that case and days of that case, we saw the, literally, the administration claim that they could not, under a state's secret privilege, which they also had an Article II theory around, that they could not disclose to the federal judge in a confidential setting. This is very alarming. I just want to say to people like that they have such an expansive view of the president's power, and then there have been times where they've suggested that that Article II power not only provides them unlimited power across the executive branch, which, by the way, for those tuning in, there's not a legal basis for that. It's not as simple as the president's the head of the executive branch, and so everything is his personal, you know, the Department of Justice's personal law firm. I mean, that's not how this works.

• 42:45Speaker 03

  And we have a number of acts by Congress and provisions in the Constitution that make it clear that there's not this unlimited power, as you would expect in a country that threw off, you know, monarchy. So just to make sure we're clear on where the law is. But we've seen this manifest in a range of ways, and it's becoming sloppier and sloppier. I mean, I had an issue with the way the unitary executive theory first reared its head. I, you know, was a baby lawyer on some of the early Guantanamo litigation in the Bush administration's pro bono. I mean, so you can have debates about that. But now, this theory that the Department of Justice is now peddling is even so much broader than that, and seems To be without bounds.

• 43:29Speaker 03

  I mean, it really does seem to be boundless, which is why I think this that what we've seen at the FCC and how it could affect media freedom, freedom of expression. We're now seeing Stephen Miller come out and say he's going to crack down across civil society. I mean, all of these things become increasingly concerning when underneath it is this view of presidential power that is inconsistent with our constitution, but that seems to be gaining some traction in some courts and particularly, you know, with some justices on the Supreme Court.

• 43:58Leah Litman?

  Yeah, as you were talking, I realized like there is some overlap between the consolidation of control that the unitary executive theory pushes vis a vis the executive branch and the consolidation of control this administration is attempting to exercise over society. Like they're just both fine, right? Like locating all of this power in a single individual when that's just a recipe for abuse and excess and again, everything we are seeing right now. Anyways, that was, that was helpful for me as someone who has thought about this for a little of.

• 44:34Speaker 03

  I think that's right. And then I think we also have to think about Congress. I mean, just even if you take the claims that this administration is making about presidential power, you know, for what they're, for what they are. It's not, you know, in some ways they've sort of made people think it's about the executive branch, but it really is also about Congress because now you have an executive branch that is doing things that is contrary to what Congress has said.

• 44:59Leah Litman?

  Exactly. Not spending federal money, right? Like firing officials in violation of federal law, you name it. Yeah.

• 45:05Speaker 03

  Correct. And so they're easing in, and this is what, this is what this far right movement does. But, but they're, they're sort of trying to normalize this path of executive control over the executive branch. But how we're seeing it manifest is actually both Article One, our legislative power, and they have asserted some of this Article Two jurisprudence or sought to sort of blur it into how the president has to respond to the courts. And so what, what you really have is this unitary executive theory is trying to take over, I think, all three branches of government. And that, you know, that's concerning to everybody that, that doesn't want to live in a, in a.

• 45:38Leah Litman?

  Yeah. Now to more legal drivel, although this stuff might be a little bit more amusing. And that is Donald Trump filing a $15 billion defamation, and I use that word lightly, defamation case against the New York Times because YOLO. And I do hesitate to call this a defamation case because when he announced it on Truth Social, because of course, he wrote, quote, "I have the great honor of bringing a $15 billion lawsuit," end quote, against the Times. Like, why? Not because they defamed him, but his first listed reason was because they are a, quote, "mouthpiece for the radical left Democrat Party," end quote, and because they put their endorsement of Kamala Harris on the front page. And he

• 46:20Leah Litman?

  thanked us for our attention to this matter, and so I wanted to oblige by giving you listeners, like, the highlights or lowlights of this suit. So I'm just going to read some quotes because they're just so unhinged. So here's some of what it says. Quote, "Thanks solely to President Trump's sui generis charisma and unique business acumen, The Apprentice generated hundreds of millions of dollars in revenue and remained on television for over 13 years. The Apprentice represented the cultural magnitude of President Trump's singular brilliance, which captured the zeitgeist of our time," end quote. It alleges that the Times failed to appreciate Trump's singular brilliance, and also that the defendants,

• 47:00Leah Litman?

  quote, "basically hate President Trump in a deranged way." Sky, you filed many complaints. You've probably seen many complaints. Is this the sort of language that federal judges are used to seeing in these matters, or any judge for that matter?

• 47:17Speaker 03

  Yeah, you know, it's not, right? I mean, it's not. And I think you see the, you see, you know, where that language landed, the president, you know, but it's, it's really

• 47:29Leah Litman?

  Where it landed, a judge dismissed the case already without the New York Times even having to ask it to do so. Like, that's how bizarre that complaint was.

• 47:41Speaker 03

  And I think that this is something, though, that we need our powerful institutions across society to really be paying attention to, right? Because there's a lot of, and I'm not making light, of the risk that we're all living in and the risk that people feel, and this is not a safe time. It's a dangerous time across the board. Nobody's getting out of here, unfortunately, with the way this president's governing in a comfortable way. But I think that one thing that's really important to remember is, you know, these things are not normal, and they're unlawful on their face. And yet, the president's trying to do these types of things to normalize, to sort of get in the heads of decision-makers and risk evaluators, that if you somehow, you know, get on his

• 48:24Speaker 03

  bad side, that you're going to end up in a place where a bully would put you, of attack. What we have seen in our work at Democracy Forward, and I think this is like what we've seen in the work in the courts, is that the institutions that have been willing to not comply early, to put the president and this administration through the paces, are really, you know, finding that that is a path to getting out of this cycle with the president of intimidation. And so I was really glad to see the district court do this, to make it clear this is not normal. It was also not normal when the administration sued judges in the District of Maryland, and you had a judge dismiss that. You know, it's not normal.

• 49:07Speaker 03

  But I think there's a lesson here for all the hand-wringing that our institutions are doing, and I'm not making it, I'm not making it seem like it's easy to have to go up against the president. Our team does it every day, but it's not easy. But I think institutions need to see that, you know, this is not normal. And we don't need to pretend like this is a normal risk assessment that some, you know, that's doing. So, good on that judge, and, you know, it's unbelievable.

• 49:32Leah Litman?

  Faken, nonexistent complaint in a fake and nonexistent defamation case. So, that's a callback to the complaint against the Wall Street Journal, anyways. Okay, so, that is unfortunately all we have time for, for the news today. Sky, thank you so much for joining this segment.

• 49:51Speaker 03

  Thank you.

• 49:53Leah Litman?

  So after this break, Melissa and Kate will join me for our segment on Justice Jackson. And after that, it's back to me and Sky for our favorite things. Don't go away. Before we go, some additional notes. A week after Charlie Kirk's death, Hysteria hosts Erin and Alyssa dig into the botched investigation from the media circus to Cash Patel's fumbling at the FBI and what it reveals about power and accountability. They also connect the dots to other stories shaking the system from the latest Epstein files to new battles over policy in California and New Mexico. Don't miss the latest episode of Hysteria. Tune in on your favorite podcast platform or watch on YouTube.

• 50:32Leah Litman?

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• 51:16Leah Litman?

  Okay, some of my anxiety with exercise and without worry. So evening out and exercise, I get what I need with Zbiotics' help. Follow's right around the corner, so that means it's time to raise a glass to your favorite team. Whether you are tailgating, enjoying a college game day, or watching Sunday's action on that fancy new TV, don't forget Zbiotics' pre-alcohol probiotic drink. Drink a pre-alcohol before drinking and enjoy great days after celebrating all season long. Go to zbiotics.com/strict to learn more and get 15% off your first order when you use strict at checkout. Zbiotics is back with 100% money-back guarantee, so if you're unsatisfied for any reason, they'll refund your money, no questions asked. Remember to head to zbiotics.com/strict and use the code strict at checkout for 15% off.

• 52:03Kate Shaw?

  Tonight, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner. For Crooked Media Presents Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 52:48Kate Shaw?

  All right, we're back. And I'm now joined by Melissa Kate and a special guest.

• 52:52Leah Litman?

  And because we continue to insist that it is still summer, despite considerable evidence to the contrary, we still have a little more time and space to go kind of more in depth than we usually do on certain topics. And also, the summer has been pretty mid, as my kids would say.

• 53:10Leah Litman?

  I'm speaking for the country, Melissa.

• 53:15Leah Litman?

  And actually, I think mid is probably putting it nicely if that's what we're talking about. So we wanted to bring you, dear listeners, an episode on something a little bit brighter.

• 53:25Kate Shaw?

  And so we decided to do a longer segment on the most interesting justice on the Supreme Court, Amy Coney Barrett. Just kidding. We're really talking about Ketanji Brown Jackson. Justice Jackson has now been on the court for three years and three terms. At the end of her first term, we did a little retrospective. But now, with more time and more perspective and more hot takes from her, we wanted to take another look at one of our very favorite justices.

• 53:54Leah Litman?

  And we are also doing this because we do occasionally need a bright spot in our coverage. And Justice Jackson is definitely one of those key bright spots. And we are delighted to be joined for this segment by friend of the pod, Sherrilyn Eiffel. Sherrilyn is the former president and director counsel of the NAACP Legal Defense Fund. She is now the Vernon E. Jordan Jr. Endowed Chair in Civil Rights at Howard University and the founding director of the 14th Amendment

• 54:17Speaker 06

  Center for Law and Democracy at Howard. She's also one of our very favorite repeat guests. Welcome back to the show, Sherilyn.

• 54:23Melissa Murray?

  Thanks for having me back.

• 54:24Leah Litman?

  There's so much that we could talk about Sherilyn with respect to Justice Jackson. And the fact that we just want to talk about Justice Jackson all the time should tell everyone everything they need to know. So let's just dive right in and start with a big picture question before we get into the specifics. So if you had one thing Sherilyn that you could identify that makes Justice Jackson so distinctive and remarkable as a justice, what would it be?

• 54:48Melissa Murray?

  You know, I find her to be fearless. And it's not that I think, you know, Supreme Court justices are fearful of anything. They're the 800 pound gorilla, every single one of them, right? And they have this lifetime tenure, they can say and do what they want. But you know, there, there, there is often this sense of joining the court and holding back a little bit and kind of earning your place to be able to say certain kinds of things and to be able to dissent in certain kinds of ways. And to be very circumspect, maybe too circumspect in your public conversation. And what I've really loved about Justice Jackson is her fearlessness, her understanding the assignment.

• 55:30Melissa Murray?

  And the assignment is not just the assignment of being able to evaluate these cases and come to a decision. It is understanding the, the public role that she plays, understanding the power of her voice, understanding the ways in which each justice has a responsibility to the public. Like this is not your personal philosophy salon, you know? It is, it is.

• 56:00Leah Litman?

  Tell that to Neil Gorsuch.

• 56:03Melissa Murray?

  You know, it's a job of public service. And so as you do the job, even as you're working with your colleagues, your obligation, I think of any job. Judge, actually, is to also be educating the public.

• 56:14Kate Shaw?

  So that is a great, I think, opening distillation. There is much more to say on the big picture and on her sort of role doing public education. And we're going to get to some of it later on. But maybe let's first go into some details regarding particular ways that she has sort of hit the ground running in the three years she's been on the job.

• 56:29Leah Litman?

  Yeah. And just to remind listeners, and I think to underscore the point, Sherilyn, you made about fearlessness, Justice Jackson hit the ground running in October term 2022, as she memorably said at a Library of Congress luncheon, quote, "I have a seat at the table now and I'm ready to work."

• 56:44Melissa Murray?

  And work it, she did. I should say, she wasn't talking about work, W O R K, although that is how it's reported. She was working, W E R K. And so I just want to remind the listeners about all of the ways in which she bedeviled her colleagues and counsel with some very targeted hypotheticals. So there was a very memorable hypothetical in 303 Creative where she talked about it's a wonderful life and the prospect of white Santas taking pictures with white children. And this so triggered Justice Alito that he felt compelled to give us a memorable glimpse of his inner life. And he spontaneously turned out a hypothetical featuring black Santa. Megyn Kelly would never.

• 57:25Leah Litman?

  And kids dressed in KKK costumes. That was the other part of it.

• 57:29Melissa Murray?

  There was also her SFFA hypothetical, and I thought this one was probably the best hypothetical of the entire oral argument, where she talked about two college applicants, both of whom wanted to attend the University of North Carolina. One was a legacy applicant whose family had a very long and storied history at the University of North Carolina. The other applicant was black, and her family had been barred from attending UNC because slavery and Jim Crow. And as Justice Jackson intimated with that hypothetical, it would present a separate, but no less profound equal protection problem if legacies could talk about their family histories, but black applicants could not because race. And I think it really changed the nature of that oral argument. And she's done it in so many other cases.

• 58:15Melissa Murray?

  But Sherilyn, for you, what has really stood out about her presence in oral argument on this particular court? Well, I had to admit, I love it when I can tell she's like annoying the chief and she's annoying Justice George because she's, she can be relentless, which I, you know, again, is all part of the fearlessness. And you can just tell when they're like, oh. God, um, you know, you mentioned the SSFA argument that was hugely important, hugely important. And this is again about her seeing the role.

• 58:46Melissa Murray?

  Justice Jackson, in part because of who she is in her background. But also because she, I genuinely believe because she was a trial court judge. That she is not uncomfortable with facts. And I'm increasingly, um, you know, I have been a long.

• 59:05Leah Litman?

  Refreshing for a justice.

• 59:06Melissa Murray?

  No, I've been a crusader for trial courts. I know, like, you know, on shows like this and all kinds of shows, we always talk about the Supreme Court. But just as a civil rights lawyer, I have always said that the trial court is so critically important because if you litigate disfavored claims. The proof where you get to show that the thing that the trial fact is disinclined to believe and fact happened. Is actually the show for you, right? And the reason why it relates to Justice Jackson is because there is an educative function to trials. You're sometimes teaching the judge about the way discrimination works. Remember, you know, Ruth Bader Ginsburg talking about the way.

• 59:47Melissa Murray?

  Paid discrimination works for women, like, it's not like you know that your male colleagues are making more than you. And she could, she could bring that to the fore from her experience as a litigator. So what happens in the trial court is that you're often educating the court and subsequent courts who are bound by that record. To how it really works in the real world, because these are people who are not living in the real world. And so when she then puts these kinds of hypotheticals out there, it shows, number one. That she is connected to the real world. Number two. As a trial judge, she understands the function of being able to relate an opinion. To what, how it would actually play out in the lives of real people.

• 1:00:30Melissa Murray?

  And I think this is a, this is especially with this particular court is so powerfully important. This court has become so distant from feeling any obligation to figuring out how things work in real life. And so that SSFA example was really perfect, but what was also really tricky about that one that I think was like fire is, you know, she was like, yeah, but I have another claim for you. Like, you know, I'm, I'm going to show you how like I could, I could actually create something here. You all did this nice little thing in your dissents in other cases, you know, raising the question of whether Asian Americans are discriminated against. You all were making up claims to hand to people so that they would know how to come at. Let me make one up.

• 1:01:13Melissa Murray?

  Let me make up the claim that actually kind of resonates, right? That it is an equal protection violation to deny black people the ability to tell their story in a way that a white applicant would be able to. And to me, that was when she threw down the gauntlet because she was saying, I'm going to put it out there. I've been thinking about this stuff for years. I'm going to put it out there, just like you put it out there and I'm going to have no shame about it. And I thought it was incredibly beautiful and empowering for her to do. And then to realize that she was really talking about herself and her husband, right? And Harvard. Yeah. That was just chef's kiss. Brett Kavanaugh could never, never.

• 1:01:49Leah Litman?

  No, no. I'd say KBJ's lovely one memoir like really goes deep on her family history, but also the Jackson, Patrick Jackson, her in-laws who basically do trace their lineage back to the Mayflower. And it is, it is in some ways like a story of both of those families. Beautiful book if you haven't read it. Okay. So let's pivot for a minute. And this is getting into the weeds a little bit, but we think it's important and it's actually one of our very favorite of many favorite contributions Justice Jackson has made to the court, and that is her approach to statutory interpretation. So, you know, for the lawyers and law students in the crowd, Cheryl, and can you talk a little bit about what sort of distinctive approach or approaches Justice Jackson has brought to the court when it comes to interpreting statutes?

• 1:02:30Melissa Murray?

  Well, first of all, she's not, you know, afraid to meet this conservative majority on their own terms, right? So you want textualism? I got textualism, you know? She is fully prepared to go toe to toe with Justice Gorsuch on a textualist approach to reading a statute, but she's also not willing to accept the intellectual limitations and the interpretive limitations of that approach. And I do think that muscularity that she brings to the table where she's saying, here's all the stuff we have to bring to the table in being able to interpret what this statute means is is really a challenge because it's hard to make the argument, which is why they

• 1:03:13Melissa Murray?

  never do in response to her presentations, as to why the other things that she brings to the table are illegitimate as a way of analyzing what a statute means, right? They they will, you know, make their arguments against what she says, but they're not really making an argument for why, why would we exclude, right? This history, why would we exclude this example of how it was used in its early years? Why would we exclude how this compares to a similar statute? Like, why would we exclude any of this?

• 1:03:45Leah Litman?

  Hearing you talk about that, it's almost like how they discount facts because here they are discounting evidence about what the statute means. And it's like, who's afraid of congressional purpose and legislative history? Not Justice Jackson, right? Like, it's all the other guys. No.

• 1:04:00Melissa Murray?

  It's almost like they're trying to get to an outcome, Leah. Yeah, it's it's really powerful. Like, they've figured out something that works for them to produce what they want to produce. The more she approaches a statute with this kind of robust engagement, the more it's making the textualist argument look silly and and thin, you know, on its own. But I think she's doing something very powerful in discrediting what they selected as the most impartial way, you know, whether we're talking about textualism or originalism. It's all supposed to be. Can we talk about originalism a little bit? Because I think the same fervor with which she goes after their uneven approach to statutes,

• 1:04:45Melissa Murray?

  she also applies to their very itinerant and selective approach to constitutional interpretation. So she has talked about originalism, she's engaged in originalism and.

• 1:04:56Melissa Murray?

  And I think in engaging in it, I think she shows that it's really a Potemkin village in the way that the conservatives are using it. Like, it doesn't have to always yield these incredibly crab outcomes. It could lead to something else. They just never want it to lead there. So can you talk a little bit about how she's sort of turning the originalist project on its head by engaging with it, but also showing it for the farce that it is? Well, this is where, like, you know, I, she just is doing something so powerful and important to me personally, which is the so-called originalists on the court are interested in an originalist reading of certain constitutional provisions, but not all.

• 1:05:40Melissa Murray?

  And along comes Justice Jackson, who is an expert on the Reconstruction Amendments, for example. And so if you want to do originalism and the Fourteenth Amendment, she's like, you know, I, I call you and I raise you one. Absolutely. Let's do it. LFG. Let's do it.

• 1:05:59Leah Litman?

  I will slay all day.

• 1:06:01Melissa Murray?

  Yeah. And so, and, and, you know, and they're not going to do a more thorough of a job than she does. This is part of what, you know, made the top of Clarence Thomas's head come off is that, you know, he had had his position as. Oh, we're going to talk about that. I have a whole segment on that. Absolutely, absolutely, absolutely. We have our whole regular segment. We need to talk about Justice Thomas. Okay. But it's in a minute. But, but, but the point is that here's someone who is, you know, a deep, a deep scholar of the Fourteenth Amendment and therefore really knows what she's talking about. And frankly, if you want to go originalist on the Fourteenth Amendment, it gets pretty bad for the conservatives if you're, if you're doing it with some, some integrity.

• 1:06:45Melissa Murray?

  And her willingness to stand in different positions and bring different perspectives on originalism, to me, is maybe the most powerful thing she's done in the last two terms. Her willingness to talk about the Fourteenth Amendment and not just talk about the so-called framers, you know, the guys in the room who actually drafted. Um, who apparently from the sky just got these ideas about equality and citizenship and so forth, not like some of them were abolitionists or influenced by abolitionist movements, or by Frederick Douglass, or by the colored conventions, or by, like, all the other things that she's citing that make clear what constitutional meaning actually is.

• 1:07:28Melissa Murray?

  It is not just what those guys say in the room, and I've told you all in my, in my Fourteenth Amendment Center, part of the project is encouraging our students and all of us to see ourselves as founders and framers of whatever is the next iteration of this democracy. And that's how it works, even when you fail in this moment, right? That becomes part of the stuff that goes into the thinking that will ultimately one day produce, you know, some other constitutional amendment. And she's doing that in real time as Supreme Court Justice in an opinion. And she's saying, you know, the petitions that the colored conventions submitted is just as relevant and significant as your, you know, Federalist Papers, or whatever else you think are the only things that matter when we're talking about originalism, to

• 1:08:11Melissa Murray?

  give voice, to elevate and to place the perspectives of Black people who were fighting over the meaning of equality and citizenship for decades, uh, in advance of the end of the Civil War. And abolitionists who were really both white and Black, giving these terms meaning, you know, who are, who are giving the concept of freedom meaning, i- it's a powerful stance for a Supreme Court Justice.

• 1:08:38Leah Litman?

  Yeah, so maybe we can talk about how she has used her voice in this respect, but she has pretty pointedly called out the court's version of originalism for, in her words, quote, "She's a little troubled by having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts," right? So she is on their game about this, but, you know, as far as her using her voice to elevate, you know, people's perspectives, you mentioned this, it comes out in the sources she cites, right? Citing the Black Conventions in the Medina dissent. It comes out in the history she draws from, when she was citing the effects of the previous Supreme Court decisions whittling away at Reconstruction, also in her Medina dissent. Comes out in the big picture she draws when in Diamond Alternative Energy, she said, "Look, this court has made it easier for the more powerful to get into court,

• 1:09:22Leah Litman?

  right, than it has for the less powerful." It comes out in so many different aspects of her work as a justice. And so we were hoping you just kind of invite your thoughts on this, this point too. There's just so much to say about her.

• 1:09:36Melissa Murray?

  You know, one thing I will say about Justice Jackson, she came to the court fully formed, maybe even more so than we thought when she was going through her confirmation process. Like, you know, I remember when Justice Kagan was, you know, nominated and being confirmed. And she obviously was fully formed. She was very sophisticated. She had been a dean at Harvard. She'd been a solicitor general. You know, all of that was true. But Justice Jackson is like, when I say she understood the assignment, you know, she understood what she was going to be bringing to this enterprise. She has a different vision of judicial decision making. And I think this is really powerful and important. And that's why she sounds, she's willing to say what she finds unsatisfactory about the way her colleagues approached the job.

• 1:10:22Melissa Murray?

  Because I think she has a very clear vision of what a judge is. You know, I've been saying for some time that like, if we understood what the job of a Supreme Court justice was and we were really interviewing candidates for the job, a candidate who said that judging is like calling balls and strikes, that would be disqualifying, right? That would, because that's in fact not what judging is like, right? And so I think that for Justice Jackson, what we can see that she has such a, a, a, a very formed, robust idea of what she's supposed to be bringing to the table, what are the various elements she's supposed to be evaluating in the process? And then the level of detail that is required to be put out to the public so the public can understand the decision. I have to say, I have sometimes been shocked by

• 1:11:08Melissa Murray?

  How unsparing she is in telling the truth. It is so refreshing. She even does it in terms of what she thinks is going on, like in the cases, you know, because it's you all are here because people don't know what's going on, you know? They've read the case, but like, what? You know? And so we constantly rely on people to connect the dots for us and to help us understand what are they really about? What could this possibly mean? And we have a whole cottage industry of people who have a, you know, a checklist of things that the courts are doing. They're trading off votes on this issue and it's all very like, but she's really opening that up, you know? When, when, when they start talking about what is happening in terms of Trump and his

• 1:11:52Melissa Murray?

  power and, and she's willing to say things about the court basically having a thumb on the scale. Yeah. That's pretty, that's heavy stuff, but like, yeah, you know? And she's willing to say it. And I think, um, I think that that is that that's because she came to the bench fully formed and aware of what the assignment was and prepared. I don't think she's, I don't think she's being blindsided in any way. I think she knew what she was walking. Now she did say when she was at the first circuit conference, I mean, I, I'm paraphrasing her, but she sounded like she said, you know, one surprise is that it's, it's boring. Like she thought, she thought there would be more collaboration.

• 1:12:36Melissa Murray?

  I don't know if you were there, Melissa, when she said like, I thought we would.

• 1:12:38Kate Shaw?

  Yeah, I was sitting next to you.

• 1:12:39Melissa Murray?

  Yeah, exactly. She said, we would do more things, we would, you know? And I thought, I thought I heard her to be saying, it's boring.

• 1:12:46Kate Shaw?

  When she said that was actually interesting because when she said, I, I was surprised there wasn't more collaboration because I think there are ways in which there's not going to be as much collaboration if you're constantly stunting on them. But I also think she's okay with that. I mean, I think she came to the court after years of living in DC. She's not trying to be friends with them. And, and I think that's different from some of the other justices who came to Washington and the court kind of became the initial locus of their social lives. That's not her. So I think there is just more room for her to like, you know, call them out because she She goes home and she's got a cute husband who's a doctor and lots of friends already.

• 1:13:24Melissa Murray?

  You know, Melissa, I think that you're right now that I think about it. And I think that she was hoping that we would mix it up. And because they don't do it enough, I think that's part of what's happening.

• 1:13:35Kate Shaw?

  She was hoping they'd challenge her, right?

• 1:13:37Melissa Murray?

  But that's what's happening in oral argument. That's what's happening. And she's like, OK, you don't want to do it in the back room. Let's, let's, let's have it out, right? And so I see here, her appetite, you know, to, to, to, to, to go at it and to, let's, let's wrestle with one another. Happens at oral argument in a way that she, I think, would prefer that if they were really in conference, you know, in the ways that the mystical conference that people think happens that doesn't happen. I think that's kind of what she was hoping for.

• 1:14:03Kate Shaw?

  But I do think you are seeing it and increasingly seeing it in some of her separate writings, right? Both her going after her colleagues and often doing it in the context of critiquing their contempt for lower courts and also in defense of and speaking up for the lower courts. So obviously, a recent example is the stay the court issued on the shadow docket. Obviously, there have been a ton of these, but the one in the Trump versus the American Federation of Government Employees case on these reduction in force and mass reorganization orders. She writes, quote, "One needs facts to answer that critical question, and the district court not only issued such preliminary findings based on actual evidence, it is also the tribunal best positioned to make that determination, at least initially. This court lacks the capacity to fully evaluate, much less override reasoned lower court fact finding."

• 1:14:48Kate Shaw?

  So I do think that she has gotten, maybe because she's not making any headway behind closed doors and maybe because she just thinks, again, gets the mission that public education is part of the job. But she is calling them out in no uncertain terms and, again, doing it often in defense of the lower courts on which, obviously, she sat for many years.

• 1:15:07Melissa Murray?

  Yeah, I think actually in that way, Justice Jackson has done something else, which is she has filled a void left by the absence of leadership on this by the chief.

• 1:15:21Melissa Murray?

  Who sits at the, at the top of the federal judiciary. Yeah. And therefore should be in position to protect all of the judges at the various levels of the judiciary. And that protection is something he has conferred selectively, right? So when, you know, President Trump talked about Obama judges, he did speak up and say, there's no such thing as Obama judges and Trump judges were all just judges. When candidate Trump said he could not get a fair hearing before Judge Manuel Curial, because he's Mexican, and this is about a Mexican-American judge. And we're putting up a wall, so of course he's not going to give me a fair hearing. The ju, the chief justice was silent. On this issue of the district courts, I mean,

• 1:16:06Melissa Murray?

  they have been taking a beating from the conservative majority. And in very ugly terms, actually, in part because the chief has not stepped up to block that. It's getting worse, right? And so, you know, Justice Gorsuch's rant about district court suggesting that they were abusing their power, which as you know, is like the ultimate thing you can say about a district court judge, is in part because there hasn't been that leadership. And we saw that contrast when she spoke at the First Circuit Conference about protecting district court judges and telling them to stand, you know, tall and be courageous, and citing a string of district court judges, southern district court judges during the civil rights era,

• 1:16:49Melissa Murray?

  who faced death threats and faced all kinds of pressure, what he's wearing and, and, and Judge Justice and all of these amazing individuals, white judges who faced, you know, threats to their life, but who stood on the rule of law and did the right thing. And in that same week, the chief justice made an appearance and talked, and in the most generalized terms that you couldn't really even understand what he was saying, but there was no effort to directly speak to judges who were increasingly feeling demoralized. And if you've been a trial judge, and I, I've said this before, you know, trial judges have a hard time in, you know, in the federal system. They have huge dockets.

• 1:17:33Melissa Murray?

  They have to do the criminal cases quickly because of this, you know, the constitutional speedy trial requirements. A lot of these complex cases take real, a really long time. So they have to clear their calendar for weeks to do this trial. And we saw this in SSFA, you know, and they accumulate these long decis-, these, you know, have these long trials, they write these long in part because they know how this court is. They write very detailed decisions, you know, a hundred pages. And the Supreme Court routinely, you know, will just wipe it away or ignore it. And so I think she felt it was incumbent upon her, given the absence of leadership of the chief, who really should be the one saying, you know what, stand up for what you believe, even when we don't agree with you, we appreciate what you do, or whatever, you know, he didn't do it.

• 1:18:19Melissa Murray?

  And so she had to do it. And as you'll remember, from that first circuit conference, she was not supposed to give a speech. It was just supposed to be a fireside chat about her book, lovely one. And minutes before she, it was to begin, she told the organizers, I would like to make remarks. And she spoke for like 20 minutes about this subject.

• 1:18:40Leah Litman?

  And she got a standing ovation, like all of those district court judges, there were lots of judges in the audience, but many of them were district court judges and they gave her a thunderous ovation.

• 1:18:51Melissa Murray?

  I mean, you could feel almost the sense of relief and pride. And so I think that part of, you know, what she is doing and, and I, I, I remember after her talk saying, yeah, there's the chief. Like saying, I don't know when we get out of this thing, but one day.

• 1:19:06Leah Litman?

  Nothing but respect for my chief justice.

• 1:19:08Melissa Murray?

  Yeah, but one day she may be, like, I just really felt that. I felt like because the job is about leadership. And, um, we, we, you know, we know you can be a judge. We know you're smart. We know you went to law school. We know you know how to read the statute. We know, you know, you know, we know all of that stuff, but in a moment.

• 1:19:23Leah Litman?

  Do we know that about Neil and Brett, though? Um, I'm not totally confident, but.

• 1:19:28Melissa Murray?

  Push on that particular piece, but, but I just think.

• 1:19:30Leah Litman?

  Sorry.

• 1:19:31Melissa Murray?

  At a time when judges are feeling besieged and they're, and they're getting it from everywhere, right? And they're being doxxed. And of course, we all, you know, know that the increased physical threats.

• 1:19:42Melissa Murray?

  We know about the murder of, of Esther Salas's son, a federal judge in New Jersey a few years ago. And, you know, the sending of now pizzas to, to, to judges, you know, in the name of Judge Salas's son in a way to intimidate them. I mean, this is very, very serious stuff. And if you've ever heard. Justice Roberts, Justice Alito, Justice Kavanaugh, even, you know, former Justice Breyer, talk about what it means for the for the members of the court to feel physically threatened. It's just shocking that they could not extend the grace to district court judges who are experiencing that feeling that they described. You know, we had to put up a gate and we're also afraid for our lives and so forth. It's just shocking.

• 1:20:26Melissa Murray?

  And to see her take up the slack, I think it's really important and should not be glossed over.

• 1:20:36Leah Litman?

  Strict scrutiny is supported by the Southern Environmental Law Center. Right now, the Trump administration is trying to dismantle our bedrock environmental protections. But here's the truth. No one voted for dirty air and water. The election was not a mandate to contaminate our water with forever chemicals, pollute our air with hazardous emissions, or trade away our public lands to the highest bidders. That's why the Southern Environmental Law Center is fighting back to protect our bedrock environmental laws and safeguards in the courtroom and the halls of government. With four decades of experience and more than 130 legal and policy experts, SELC is standing alongside their partners and the people across the South to protect the healthy environment we all depend on. Because clean air, clean water, and a healthy climate aren't political. They're fundamental.

• 1:21:20Leah Litman?

  SELC is working hand in hand with communities to stop harmful policies, fight for clean air and water, defend climate progress, push for environmental justice, and protect wild places and wildlife for future generations. Learn how you can join this work by visiting selc.org.

• 1:21:39Kate Shaw?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents: Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:22:23Leah Litman?

  So Melissa, since you mentioned the library is open, I want to now go to something Cheryl and you've alluded to and Kate has alluded to, which is the tone and register that she is writing and speaking in specifically about this court. And so the lead up to this is going to be long, but I feel like it's important to remind our listeners exactly what she's done because it is so unique and powerful. This has come out in her drawing historical parallels between what the court is doing now and what the court has done in the past with respect to, again, the court's attacks on reconstruction. This has come out in her characterizations of specific things the court is doing.

• 1:23:06Leah Litman?

  Language she uses, referring to it as Calvin ball. It's come out in sub tweets or sub texts, like in her Snyder dissent, where she began an opinion saying, "Officials who use their public positions for private gain threaten the integrity of our most important institutions." Wink, Clarence. This has come out in her characterizing implications of the Supreme Court's actions. Talking about ending temporary protected status is having devastating consequences. Talking about the systemic implications of the court's actions, whether it's in the birthright citizenship case or the immunity case for the rule of law and our separation of powers. It's come out in her citations, if you know where to look for them.

• 1:23:46Leah Litman?

  In the birthright citizenship case, she cited Ernst Frankel in her footnotes, the dual state. He was writing about Nazi courts. In Trump versus JGG on Alien Enemies Act, she cites Korematsu in talking about the Supreme Court's errors. And as you said, Cheryl, she has repeatedly said, "These guys are in the bag for Trump." Talking about the court's eagerness to insert itself on behalf of the administration, talking about the other rule to this Calvin ball, which is this administration always wins. And this came up a bit when we were talking about the third country removal cases and more, but the same way the court treats the Trump administration is like a bunch of normies who are entitled to a presumption of regularity and good faith when the court shouldn't be

• 1:24:31Leah Litman?

  doing such a thing. Like Justice Jackson seems to have abandoned a presumption of regularity when it comes to this court. So so much has been said about the way she writes and what she is saying. Again, like, what does this mean to have a justice doing this at this moment?

• 1:24:48Melissa Murray?

  Well, I'll tell you, the first thing it meant to me is it's the beginning to read her dissents is when I started to get afraid. I'll be honest with you. I just, here is someone who has been incredibly careful um in her career, you know? She is um, you know, brilliant, bright, has has had her eye, you know, on being on the Supreme Court for a long time. She's, you know, ambitious, but also incredibly measured, you know? I mean, you, her confirmation hearing was, you know, a disgrace because they couldn't find anything legitimate.

• 1:25:28Melissa Murray?

  So they had to just be foul and and disgusting in their attacks on her decision making. But um, this is not a wild eyed person by any stretch of the imagination. This is not an intemperate person by any stretch of the imagination. This is not somebody given to um broad and outrageous claims. She has a whole career behind her before she went on the Supreme Court for us to have a sense of who she is.

• 1:25:58Melissa Murray?

  And when I began to read her dissents first, you know, she was in dissent with Justice Sotomayor and Kagan. Uh, and I I started to have the feeling, it started with Trump versus Anderson, which was the Section Three Fourteenth Amendment case, and then into the privilege case. Um, so even when she was with them, I just thought the way they're talking is so unbelievable. And I believed that they were sounding the alarm that what you think is happening is in fact happening. I mean, there was a point where they said something about insulating, you know, people.

• 1:26:40Leah Litman?

  This court and the petition from further consequences, and this petitioner was Donald Trump.

• 1:26:45Melissa Murray?

  Yeah, that's so I so and then as she continued to to separately say, you know, what you're thinking, what what you what you're thinking, but you you're saying, well, maybe, you know? The the more her insistence on saying it independently.

• 1:27:04Melissa Murray?

  That's when I started to get afraid. I started to get afraid in a different way than I had been before. It's one thing to know that a court is conservative or even right wing.

• 1:27:16Melissa Murray?

  But I think her, the language, the tone, the substance, she's telling us in a million different ways that there's no other explanation for what's happening here than the obvious. When she essentially, you know, makes clear that like, this, this, these decisions are, are weakening democracy, are undermining the rule of law, that the Supreme Court is in that business in this moment. That is about as serious as it gets. This is, these are her colleagues. And anyone who believes that she would just go off on them for, you know, for jokes,

• 1:27:54Melissa Murray?

  or to be cited, or to, because she lacks the right temperament, you know, no. No, I, I, I think this is, she's not Justice Scalia, who was a bit of a, you know, enfanté, you know, for, for a long time, and, and, and relished that reputation. That's not who she is. She's a very sober person. So I would say that that's, that's been, it's almost, I'm, when I read her dissents, it's so painful. Because I'm happy that she's saying it. She is talking to the public. She's, she speaks in terms that anyone reading it could understand. Yes, she's citing all of the right decisions and, and so forth. But she is saying it in a way that it's very obvious what she's saying and it's clear.

• 1:28:40Melissa Murray?

  And what she's saying is shocking and alarming. And I honestly don't think that the array of Supreme Court pundits and media have really wanted to go there, have really wanted to confront what it means to take seriously what she is saying. Well, I mean, the right wing.

• 1:29:01Leah Litman?

  Has just like gone in on, you know, it's so intemperate for her to speak this way. This is unprofessional. This is not what a justice does. And, you know, then compounds it with, you know, she's a D E I hire, whatnot and so forth. But I think the point of all of that commentary is that they naturally understand what she's doing. And she's talking to the public. She's engaged in a kind of deimos prudence. That would be really powerful, especially if it were amplified by. They are trying to delegitimize her.

• 1:29:29Melissa Murray?

  For sure.

• 1:29:30Leah Litman?

  Right? Before people catch on to what she is saying.

• 1:29:33Melissa Murray?

  Well, and to do it in the, in the, in the age old fashion, which is that you don't know the rules of decorum. You know, it's like this, it's like the tennis player who was opposing Taylor Townsend was like, you don't know tennis etiquette. You know, it's like, um, yeah, your guy said, you know, I would put my head in a bag. So like Justice Scalia was like the most, uh, you know, intemperate and over the top. And they thought it was great. They loved it. It meant he was a maverick. He was independent and so on and so forth.

• 1:30:00Leah Litman?

  I mean, those guys are always talking about what law professors do, what justices should be doing. They only seem to say it when the people doing the talking have uteruses. So.

• 1:30:08Melissa Murray?

  And they should be, and again, if we cared about the rule of law, about democracy, we should be asking, you know, what it means to have a justice on the Supreme Court who's willing to, to say this. And often willing to say it with two other colleagues. So it's not like she's just out there on some island by herself.

• 1:30:24Leah Litman?

  Right.

• 1:30:25Melissa Murray?

  Um, but they're, they're saying something very powerful. Nobody thinks that Justice Kagan is like some wild six, you know, have, has a six shooter and just, you know, sprays the place. Nobody thinks that about her, you know? So it's, you know, I, I just, I think there's a way in which we're being given an opportunity to understand the kind of trouble that we are in. And I credit her for being willing to say it. Because some people wouldn't say it, even if they knew it to be true. And that makes it so much easier for those of us on the outside who are trying to do the work to help people understand why we need to go a different way, that this is not working.

• 1:31:08Melissa Murray?

  And that we don't have at this point, a majority on the Supreme Court that is able to confront the kinds of questions that arise in a highly fractious, multiracial democracy, and can resolve them in the in the best interests of the country. They just pretend the best interests of the country don't exist, and they just say what they want to say. And she holds them to account.

• 1:31:33Leah Litman?

  Can we jump in there for a minute, Sherilyn? Speaking of things that are not working, it's time for our regular segment. We need to talk about Justice Thomas. I think Justice Thomas and Justice Jackson are the most interesting foil on the court right now. And I really love watching them go at it in a lot of ways. I love watching her take him on. And when I say take him on, I just want to sort of make clear to our listeners that Justice Thomas has really enjoyed pride of place for the last 30 odd years, being the only black member of the court. And for someone who is very conservative, he drops race

• 1:32:15Leah Litman?

  a lot into the court's work. And he does it in very particular ways. And he has a kind of epistemic authority, because he is the only black person, or was the only black person on the court, where when he talks about something that is related to race, they listen to him. And they have listened to him. He just has this kind of authority. I'm thinking of Virginia versus Black, in which this was a case about whether the state of Virginia could criminalize certain kinds of conduct, or whether it was a violation of the First Amendment, and among the conduct was burning a cross. And Justice Thomas was like, hey, has anyone on this court ever had like someone burn a cross in your yard? Do you ever know what that feels like? Of course, they hadn't. And he just kind of

• 1:32:57Leah Litman?

  dropped that in there. And I think that case was a lot closer than I think it otherwise would have been. And he didn't prevail. It was a five to four decision. But I think it was a lot closer than people thought it was going to be going into it. I think people thought there were going to be much more votes for the First Amendment view of this. But he does that all the time. And he's able to do it because he was a There was no one else to challenge him. Now there's someone else who can challenge him. And it's not just that she's another black voice on the court. She's a different generation. And you really saw this come out in SFFA versus Harvard where he went after her. I her dissent was not materially different, I think, from Justice Sotomayor's.

• 1:33:40Leah Litman?

  But Justice Thomas came after her, named check her. And it felt a little bit, and I said this at the time. You know, the old deacon at your church who's mad because you were a young woman who came to the sanctuary wearing pants. And

• 1:33:56Melissa Murray?

  Okay.

• 1:33:56Leah Litman?

  People who have gone to black churches know what I mean.

• 1:33:59Melissa Murray?

  You know what you mean. I do.

• 1:34:01Leah Litman?

  You know what I mean.

• 1:34:01Melissa Murray?

  Yeah.

• 1:34:02Leah Litman?

  And like, I I'm going to invite you to say something about that. It's like, it's not just an interracial conflict. It is also an intergenerational conflict between.

• 1:34:12Melissa Murray?

  Well, first of all, there are a whole cadre of black people and certainly black conservatives who get a lot of their cachet from being the only one in the room. Um, and you know, it's so funny because tho- those of us who push on the idea of the importance of diversity and critical mass. It's like, we don't want to be the only one in the room, right? That that's a a position of pressure. It is unfair. It is nonrepresentative and so on and so forth. But there are certain people, particularly black conservatives, who enjoy that. That's the that's kind of their cachet, you know, they're the they're the person, they're the expert. So in then walks Ketanji Brown Jackson, who first of all, and I just want to return to this again, is in fact an expert, right? So actually has studied the Reconstruction period, knows the Fourteenth Amendment back and forth,

• 1:34:56Melissa Murray?

  understands the history surrounding it and so forth. So she's not just kind of riffing um on this, but she is has a kind of a scholarly knowledge. And then to your point, Melissa, about the generational piece, you know, there is a story about race that that Clarence Thomas has flogged to death. And people my age and know the story very well and older, you know, so I was a young lawyer at LDF. When Thomas was nominated to the court, right? So it was, you know, all the conversation about his high-tech lynching claim, about what it means to be a black conservative and to not go along with the the orthodoxy, you know, of what white liberals want and so on and so on and so on.

• 1:35:40Melissa Murray?

  And he has flogged it to death, and it has been a narrative that has has been out there and very effective. You know, black people are harmed by being forced into environments that are not their environments. And and, you know, Thomas would always flavor his opinions with, you know, the Frederick Douglass quote, and people said, oh, he's, you know, he's really like Malcolm X, you know, there were all these kind of ways in which to be like Clarence Thomas meant that you were like the blackest of the black. Because you didn't see your fortunes as relying on white liberals. So that's kind of a trope, you know? It's tired. It's really tired. And along comes Ketanji Brown Jackson, who's almost like a breath of fresh air because she has such an expansive,

• 1:36:24Melissa Murray?

  not only view, but experience, you know? She is obviously like super, super qualified. She's Harvard Harvard, you know, she was amazing in high school. She loves musical theater, like she's like the whole doggone thing. She's married to the doctor, who's a Boston Brahmin. She's like, you know, she's all of this stuff that's complicating. It's not like this old story. And when she speaks, she is knitting together all the stuff that comes from the range of things that she's seen and her experiences. Remember when she comes to the confirmation hearing? You know, she is held up by her sisters, right? You know, the group of black women that she went to Harvard with,

• 1:37:06Melissa Murray?

  who were like her best friends, who were also like super accomplished and, you know, and what have you. That's not Clarence Thomas, right? He doesn't come to his confirmation surrounded by this community. She's coming in as a complete equal. And I think I think actually that's off-putting to some of the other justices as well. I definitely get that feeling from Gorsuch that he that he finds her insolent, you know, in some way. Impertinent. Yeah, you know, all of those words. Yes, yes, yes. So I definitely get that feeling. Stay mad, Neo. And you know, sometimes I get that feeling from the chief, you know, that she's kind of a little bit out of her place, you know, like she, but she's not feeling any of that. And that I think is just, it is generational as a woman, right?

• 1:37:50Melissa Murray?

  The generation of women that she's from, which is actually different than the generation of women that Justice Kagan is from and Justice Sotomayor is from. And as a black person in a very different generation and with a very different background than Clarence Thomas, and don't forget, the key for Clarence Thomas, the reason why he was so ultimately legitimate, he said, is because he's from pinpoint Georgia. Well, she's southern too, right? She's not, she doesn't. Shout out to Miami. I mean, I'm just saying. FLA. Nobody really matters in terms of like tropes of black authenticity, right? That she's not from New York, right? That she's not from Boston. She's actually southern. Her parents are southern. Her, you know, she's, she's, so all of the, the things that, that he peddled that were supposed

• 1:38:34Melissa Murray?

  to give him greater legitimacy to be able to talk about how it really is for black people has kind of been usurped by Justice Jackson. And I think that's why he goes for her, especially in the case that involves race like SSFA. Even when she's not talking to him, he feels like she's talking to him, right? So he's calling her out and she's like, what? I didn't even say anything, you know, like what's going on? Because I think he feels personally challenged.

• 1:38:58Kate Shaw?

  Okay, so I would love to keep talking. We have unfortunately arrived at our final act. So maybe let's end with some kind of final themes and closing thoughts. And actually, if I can offer one that started to crystallize for me as we were having this conversation and it connects to what you've been saying, Sherilyn, about her relationships with the other justices and something you said, Leah, about her deciding to stop extending the presumption of regularity to her colleagues. Like she just is able to take this broad angle view that allows her to see the court in that kind of aggregate, not in this sort of atomistic, I'm just going to look at this one case and ignore everything else, the course of conduct that my colleagues have been engaged in. It's just, and she's willing to do that.

• 1:39:42Kate Shaw?

  So that was, I think, why people were so incensed about the Calvin ball comment. It was like, she's talking about other cases, but you're only supposed to talk about this case. She's not going to pretend to have blinkers on. And I think that that is going to be such an important dynamic to watch in the next term as we see whether the justices decide to treat in isolation, things that the Trump lawyers are arguing, or to take a wider angle view on what this presidency has meant for the separation of powers and the rule of law. So I think that's one of the many amazing things that she has brought in the last three years and is going to continue to bring. But, Cheryl, and what final themes or kind of closing thoughts would you like to share?

• 1:40:17Melissa Murray?

  Well, I couldn't agree more, Kate. There is a way in which she is not willing to pretend that there's not a project at work, right? So if I look at each individual case and I never knit together what they all mean together, right, then I have plausible deniability about whether there is a project happening. And I think what she has been saying over and over again in her dissents, more and more explicitly, is that you've got to see this all together. This is a project. Part of what has, I think, so limited, the kind of jurisprudence that ends up in the Supreme Court and the way it's discussed, is the concession that the way the conservatives

• 1:40:56Melissa Murray?

  approach it is the way, is the way that is the most impartial, is the, we should show that we can do whatever we do on their terms. There's just all this way in which there's this deference. And I think she is really the first of the more progressive justices to simply say it without feints and compliments, to just say, actually, no, this is the way we should be looking at these cases. These are the factors we should be thinking about. These are the things that are legitimate to deciding, making a decision in this case. This is why what you're doing is incredibly limited and therefore not very useful.

• 1:41:39Melissa Murray?

  I mean, even if we can't feel it now because we can't realize. You know, her, her vision of, of what judging could look like. I think it's important that she's laying down that marker. And it's really up to the rest of us to take it up, to have conversations like this, to talk about it with students, to talk about it with our colleagues, to push our colleagues who are inclined to leave this out of uh, the equation, you know, our originalist obsessed colleagues, for example, who, you know, have just decided that something that was just made up is now like the only way that you can interpret law, you know? We, I, I just think it's important that she's offering something else and offering it from a, from a, her platform in her voice.

• 1:42:23Leah Litman?

  That is unfortunately all we have time for on this segment. We wanted to thank our fantastic intern, Jordan Thomas, for his help preparing this episode. It's tough to surpass our OG intern, Regé Jean Page, but Jordan might have done it. And of course, thank you, the hugest thanks to Cheryl and Eiffel for joining us.

• 1:42:39Melissa Murray?

  Thank you, guys.

• 1:42:40Leah Litman?

  That was such a great conversation and I feel like my spirits are a tiny bit lifted, maybe. Um, and to end the show on another high note, I'm back with Sky to talk favorite things. Sky, we've been asking guests for their favorite things, whether that's read, watched, seen, heard, or whatnot. Can I ask you for your recommendations of the last week?

• 1:42:57Speaker 03

  Yes, I gotta tell you, in Washington right now, I live in Washington and we are big Kennedy Center fans in our house, but we've not been able to go to the Kennedy Center in a while. And so, you know, the city is occupied and um, the Kennedy Center is not what the, what, what it, what it has been. And so, um, I recently got to go see Ciara Farrell in concert at the Anthem in DC. I recommend, uh, it was a, it was Fill the Soul. There were some of our other lawyers were places at the, you know, it turned out they were there too, and they said it was amazing too. Um, and it was really for this time where so many people are feeling hopeless. Um, it gave us a dose of hope and, um, you know, and some, and some good music and good vibes.

• 1:43:38Speaker 03

  So Ciara Farrell and she, um, she has a song that she also donated to our Democracy Forward, um, album, double vinyl album that's on the Bitter Southern. So if you want to listen to some tunes and support democracy at the same time, uh, you know, she's, she's great.

• 1:43:53Leah Litman?

  I love it. So here are my recommendations. So I decided to watch all of the summer I turned pretty. I needed a brain break and I wanted to be up on the discourse. Lots of Taylor Swift in there, would recommend. Tanya Heesey Coats, Charlie Kirk Redeemed, A Political Class Finds Its Lost Cause in Vanity Fair was just a singularly exceptional piece on the, I don't know, developments we have seen in the last 10 days or so. I also had the chance to go to NYU and be with Melissa for a book event at the NYU Law Forum, and I met some wonderful Strict Scrutiny listeners, including Apple and a student who started listening in high school and is now a 2L at NYU. Please email me. I'd love to send you both something.

• 1:44:37Leah Litman?

  Sorry, I was rushing at the end. And I also got to do some pastry hunting while in New York City, and I cannot recommend Myelin in Brooklyn or La Partiment For F Cereal Enough. Okay. Those are mine, Rex. And Kate's not here this week, but as our resident kind of Philadelphian, she's asked us to remind you all that there's an important judicial retention election happening in Pennsylvania on November 4th. Three Democratic justices on the Pennsylvania Supreme Court, Donahue, Doherty, and Wecht, are all up for retention. The Pennsylvania Supreme Court is a hugely important body for protecting free and fair elections, and state Supreme Courts are only going to become more important as the Supreme Court, the US Supreme Court, does less and less to protect basic freedoms. Losing these seats would be a huge deal, so if you're eligible to vote in Pennsylvania, do not

• 1:45:21Leah Litman?

  sit this one out. And as always, our friends at Vote Save America are keeping a close eye on this one. You can learn how to get involved at votemaverica.com.

• 1:45:32Kate Shaw?

  Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rauul. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglan and Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeline Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production, and we are thankful for our digital team, Ben Heathcote and Joe Motoski. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/AtStrictScrutinyPodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:46:30Kate Shaw?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner. For Crooked Media Presents: Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd, at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.