Sex Trafficking Lawsuits, Privacy Rights, and a Court That Can’t Keep Up

The nation is on a fast-paced slide toward full-on fascism, but what else is new? Leah, Kate, and Melissa recap Matt Gaetz’s sex trafficking civil suit, Katie Zacharia’s first—and last—week as White House Press Secretary, and the disturbing raid on Congresswoman Ilhan Omar’s home. Then, they dive into this week’s blockbuster Supreme Court arguments, including Suncor Energy Inc. v. County Commissioners of Boulder County, Beaird v. United States, and Salazar v. Paramount Global. They break down the fight over climate accountability, the role of federal sentencing guidelines, and whether a decades-old privacy law can keep up with modern streaming services. Plus, they discover just how out of touch some of the justices are when conversation keeps circling back to Blockbuster. Finally, Leah talks with journalist and author Alice Ollstein about her new book, Side Effects: How Abortion Bans Impact Everyone’s Health. Favorite Things: Leah: Mad Mabel by Sally Hepworth https://bookshop.org/p/books/mad-mabel-a-novel-sally-hepworth/185634013e864e22?aid=124574&ean=9781250284549&listref=fictional-favorites-spill-the-tea-books&utm_source=chatgpt.com | Book Lovers by Emily Henry https://bookshop.org/p/books/book-lovers-emily-henry/99f6c7d4ccb34055?utm_source=chatgpt.com | Kate Manne on Call Her Daddy https://www.youtube.com/watch?v=l7FLjMW6COw | Side Effects by Alice Ollstein https://bookshop.org/p/books/side-effects-how-abortion-bans-impact-everyone-s-health-alice-miranda-ollstein/7bd4d7c625da1b34?utm_source=chatgpt.com | The Duke by Anna Cowan https://bookshop.org/p/books/the-duke-a-novel-anna-cowan/6287557a7cc62b89?utm_source=chatgpt.com | The Earl Takes All by Lorraine Heath https://bookshop.org/p/books/the-earl-takes-all-lorraine-heath/6435929?utm_source=chatgpt.com Kate: Blockers by Michael Lewis https://bookshop.org/p/books/blockers-michael-lewis/dd148042c103aee0?utm_source=google&utm_medium=cpc&utm_campaign=dsa_nonbrand&utm_content=%7Badgroupname%7D&utm_term=dsa-19959388920&gad_source=1&gad_campaignid=12440232635&gbraid=0AAAAACfld40Deke8sC364iEIeL93QORFw&gclid=Cj0KCQjwlsfWBhD4ARIsACL7p1FTYTZD-cUU7bO5ZDVlLLYkNb6C6Bl4Zk3ZcrNecVgfVekoQwHbDIsaAjD6EALw_wcB Melissa: The Correspondent by Virginia Evans https://bookshop.org/p/books/the-correspondent-a-novel-virginia-evans/87852b9a3587f7c2 | The 14th https://www.netflix.com/tudum/articles/14th-release-date-news | The Diplomat https://www.netflix.com/title/81288983 Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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

• 0:00Melissa Murray?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court, and we need you to amplify their voices before the Supreme Court gets its hands on this case.

• 0:34Speaker 01

  They're going to go up, but we're going to fight to get them taken down.

• 0:39Melissa Murray?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. There's a human cost of Christian nationalist policies like these Ten Commandment laws and the decisions that the Supreme Court hands down. You can visit au.org/tenc to learn more about this case and how you can help join the fight to protect church-state separation.

• 1:12Melissa Murray?

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano made with premium chocolate between two delicate biscuits, a Sausalito baked with rich milk chocolate chunks and macadamia nuts, or the simple buttery goodness of a chessman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie, or two. Pepperidge Farm, have a little taste.

• 1:43Speaker 02

  Mr. Chief Justice, please support.

• 1:47Speaker 02

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

• 1:55Speaker 03

  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."

• 2:25Melissa Murray?

  Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Litman. I'm Alyssa Murray. And I'm Kate Shaw. And yes, the band is back together. We are ready to tear it up. We have a great show in store for you today. So we're going to cover some news, including our nation's possibly accelerating slide into full-scale fascism. It has been quite a week. We will then recap oral arguments from last week's sitting at the court. Because last Monday was a federal holiday, it was a pretty light week, but we'll still squeeze some good and bad times out of it. And we will then bring you a terrific conversation that Leah had with Alice Ollstein about Alice's new book, Side Effects: How Abortion Bans Impact Everyone's Health. We're just trying to remind everyone that Dobbs

• 3:09Melissa Murray?

  wasn't the end of, but in some ways, the beginning of the story of how the Supreme Court has intervened and affected everyone's lives. And as usual, we will end with our favorite things. So let's get into it. First up, let's do some news, and we'll jump right into some breaking news on the DEI beat, the new DEI beat. That's right. The boys continue to outdo themselves. On Thursday, a civil lawsuit was filed in a Florida district court accusing Republican former Congressman Matt Gaetz of trafficking two young women. The allegations, which Gaetz has denied, are the latest developments in a long-running sexual abuse scandal slash allegations involving the politician who resigned from Congress in November 2024.

• 3:54Melissa Murray?

  Listeners, you will recall that after Gaetz resigned from Congress, the president, then the president-elect, nominated him to be Attorney General because dick, I mean, garrot. Gaetz ultimately withdrew when it became clear that Senate confirmation for a fret paddle turned into a real live boy via Botox injections. When that didn't look like it was going to pan through for him, Pamela Jo Bondi got the nod. 10Bucks says that if Gaetz had been confirmed, he'd still be our Attorney General regardless of the sex trafficking allegations because DEI. Dudes, ex-husbands, and imbeciles. But you know who did not mention these new Matt Gaetz developments in her first and maybe only turn at the lectern?

• 4:37Melissa Murray?

  The new, or maybe former, White House Press Secretary Katie Zacharia. Why not both? So we're recording this on Friday afternoon. The news is breaking fast and furious, but I do believe that she is out. So I guess we're just going to talk about her one turn at the press corps podium, which really did involve never-before-seen levels of a particular kind of energy. Let's talk about it. Can we talk about this energy? Because all I have to say is, right now, our girl, Virgo, Caroline Levitt, is sitting somewhere in her home stroking a hairless cat because I don't even know what to say, listeners. Roll the tape, and you'll see exactly what we mean.

• 5:16Speaker 04

  Good morning.

• 5:20Speaker 04

  I am so honored to work for President Trump and the American people as the new White House Press Secretary.

• 5:31Speaker 04

  I want to thank President Trump for his trust that he has placed in me. I have wanted to work for him for a very long time.

• 5:43Speaker 04

  I'm looking forward to working with each of you as well, especially as we are in the middle of the midterm blitz with energy and excitement never seen before in the history of midterms, thanks to President Trump. He had a historic one-day war, and now we have a booming economy and a great relationship with Venezuela. Hey, the idea of not spending evenings with my kids is completely unacceptable. So my president, excuse me, my husband, that's a good one. My husband is out here.

• 6:20Melissa Murray?

  Yeah, let's just stop.

• 6:22Melissa Murray?

  The energy, the excitement are impossible to describe. Because there's stage directions. That's the problem. No, DEI is what brought us Press Secretaries who could read. It didn't feel like it was just flowing in the way it should have. She did not exactly cover herself in glory. And again, I come back to the stage directions. Who among us hasn't read the stage directions out loud by mistake? Me, me, I have not done that. I have not done that. Also me. Also me. Okay. You know, Melanie, I'm sure would be like, I've had to cut some stuff you guys have said. That is definitely true. True, true. But never stage directions. Never stage directions. That's right. Like warmly. Say it like you mean it.

• 7:09Melissa Murray?

  Looking back on the glory that preceded Katie, you know, someone pointed out or lined up an image of Kellyanne, Kaylee, Caroline, and now Katie. And it was really. KK. It was very eerie, right? Maybe that's why Katie had to go. Very eerie when you line all that up. But as we sat down to record, we got news that Trump gave Katie the option to leave her job as White House Press Secretary. Trump reportedly said, quote, "Maybe it's not for her." I think, I think Katie made it more or around half a scaramucci. I mean, I think we got to be a little more precise. I'm not sure this is a half a scaramucci. Let's give the mooch his due.

• 7:53Melissa Murray?

  In any event, to reflect on the very short career of Katie Zacharia. Are we going to do that? We're going to spend a little retrospective right here? Let's do a retrospective right here on Katie Zacharia. Exactly. What's the last 24 hours? Before she joined the White House as Press Secretary for that one turn at the lectern, Zacharia was a talking head on Fox and Newsmax. She also received a law degree from Pepperdine University's Caruso School of Law. There's a lot of discussion in the media about whether Zacharia was a practicing lawyer. And reports suggest that she has not passed the bar, but Zacharia explained the oversight, if you will, in this way.

• 8:38Speaker 04

  A lot of the misinformation, miscommunication, Jack, is around the fact that I labeled myself lawyer and I consulted for a very long time. Many people in the field, is it okay and acceptable if I label myself lawyer, not attorney at law, not Katie Zacharia esquire, but lawyer, and provide legal analysis, not legal advice? And they said absolutely across the board, you can call yourself a lawyer, you have a JD hand. To buffer that, you have international legal experience in transactional law, which gives you the ability to analyze it, not necessarily give advice. And so that's where a lot of this discussion has come from.

• 9:23Speaker 04

  And, you know, it's unfortunate that people dub this as some kind of conspiracy or want to put me into camp. The truth is, is I was very careful how I executed this, and I never came across as someone who was an attorney at law.

• 9:39Melissa Murray?

  So it sounds like she did not pass the bar. And to be clear, there's no shame in that. The bar exam is.

• 9:45Kate Shaw?

  Is hard. California's is especially hard. A lot of people don't pass on the first or even second time they take it. And you definitely don't have to be a lawyer to be the White House Press Secretary.

• 9:54Melissa Murray?

  So probably better if you're not a lawyer.

• 9:56Kate Shaw?

  Probably better if you're not. So I just think like, our position is, if you're going to rag on Katie, and we absolutely invite you to do that, do not do it because she did not pass the bar exam. Do it because she is, or was? A spineless mouthpiece for the administration. Which meant, at least one time, opening her mouth, and I guess previously on cable news as a talking head, defending this lawless, dangerous, destructive administration. So maybe let's do a rundown.

• 10:25Melissa Murray?

  Yeah.

• 10:25Kate Shaw?

  Of the lawlessness, not Katie, but the lawlessness.

• 10:28Melissa Murray?

  Well, you know, or of women no longer having jobs. Because one of the few questions Katie actually took on her first and, first day and only presser as the new White House Press Secretary, was about the now former Ambassador to Greece one, honey, please, Kimberly Guilfoyle. Guilfoyle is now the former Ambassador, seemingly because the Wall Street Journal reported that Guilfoyle allegedly pleaded with a Trump donor to pay off her $100,000 Amex debt before her confirmation hearings. In exchange for Guilfoyle being his mouthpiece and advocate in the Trump administration. Obviously, a lot of grift going on in this place. Only women get fired for it, right? She is fired for, I think, like, trumping while female.

• 11:11Melissa Murray?

  It's the new DWI, but it's like, D, I don't know, something like that.

• 11:17Kate Shaw?

  Trumping while female and in writing. I mean, I think those are the two big problems.

• 11:21Melissa Murray?

  Papering.

• 11:21Kate Shaw?

  Papering, trumping.

• 11:22Melissa Murray?

  Papering it.

• 11:23Kate Shaw?

  In a papered fashion.

• 11:24Melissa Murray?

  Okay.

• 11:24Kate Shaw?

  Because I think if you were trumping and papered it, or trumped while female, one of those alone probably would have been fine. But, uh, but the two together, no. Couldn't, couldn't survive.

• 11:34Melissa Murray?

  Interesting. Speaking of the Trump administration and its antipathy for women, especially black women having jobs, we should bring you some new updates. Last week, Leah mentioned that the president had formed a Star, excuse me, a committee of inquiry to look into concocting new reasons for firing Federal Reserve Governor Lisa Cook. Well, in true can't stop, won't stop energy, Massаж Noir edition, last week, the DOJ announced multiple ongoing investigations into Minnesota Representative Ilhan Omar. One of these investigations allegedly concerns allegations that Omar, who came to the United States as a child refugee from Somalia, obtained citizenship through fraudulent means. As part of that investigation,

• 12:17Melissa Murray?

  DHS agents executed a search warrant on Omar's DC residence, seizing boxes of documents and other materials, including her passport, a mobile phone, personal computers, and notebooks. Federal agents have also issued more than a dozen subpoenas in this investigation, including some directed at Omar's relatives. All of this is apparently part of an effort to scour her family's history for evidence of fraud and false statements in the completion of immigration paperwork. And this is all according to New York Times reporting.

• 12:50Kate Shaw?

  And that is not even all. So our favorite box of wine slash United States Attorney, Jeanine Pirro, announced that her office is also investigating Omar's financial disclosures. So just to be clear, raiding the home of a prominent member of the opposition political party, who is also a fierce critic of the administration in the weeks before a pivotal election, is a genuinely new low for this administration. And another chilling development in this descent into fascism that we mentioned up top. All of these developments involving Ilhan Omar come weeks before the November 3 midterm elections. Control of both chambers of Congress is up for grabs in that election. Omar is seeking a fifth term representing Minnesota's 5th congressional district.

• 13:33Kate Shaw?

  And early voting is actually already ongoing in the state of Minnesota. And this matters for all kinds of reasons, but in part because as a longstanding matter of Department of Justice policy, DOJ is supposed to avoid public investigative actions involving candidates for office within 60 days of a primary or general election. So we are very much well within that window when it comes to the actual election day, but also because election is already happening. But Todd Blanch is driving the car, and it is obviously a new day at DOJ.

• 14:04Melissa Murray?

  I do want to underscore that the proximity to the election isn't the only or, in my view, most important problem. It's the racism targeting a political critic for being un-American because they are black and were not born in this country, trying to deport and denaturalize them. Right? Like, whenever this was going to happen, it was going to be a new low, and it is.

• 14:26Kate Shaw?

  And it needs to be understood in the context of the vile and racist, and specifically anti-Somali immigrant rhetoric that the president has spewed with increasing ferocity in recent days and weeks.

• 14:37Melissa Murray?

  I'm glad you guys said it, so I didn't have to. Because, yes, it's been some real fuckery.

• 14:43Melissa Murray?

  Strict scrutiny is brought to you by Cozy Earth. Now that it's fall, I'm finally able to whip out my Cozy Earth Bubble Cuddle Blanket. And it follows me everywhere. Actually, I'm lying. It doesn't. It sits right there on that couch. And as you can see, Cole the Bich Poo likes to take his naps on it. Why wouldn't he? In every single room he goes, that soft luxurious throw goes with him. Because why not? If you're a Bich Poo that's accustomed to only the best, you too would want a Cozy Earth Bubble Blanket. It is soft, it is fantastic, and it makes you feel like you're being wrapped up in love. Also awesome are Cozy Earth's bamboo sheet sets, which have made it almost impossible for me to climb out of bed.

• 15:27Melissa Murray?

  Finally feels like I'm sleeping in exactly the right temperature. No more waking up hot or cold, just relaxed and ready to take on the day, when I finally feel like getting out of bed. You can try the Cozy Earth Bubble Cuddle Blanket and the bamboo sheet set, risk-free, with a 100-night trial and an added 10-year warranty. Just head over to cozylearth.com and use code SCRUTNY for up to 20% off home and sleepware. That's cozylearth.com code SCRUTNY. And when they ask you where you heard about them at checkout, let the folks at Cozy Earth know that you heard about them right here on Strict Scrutiny. Strict Scrutiny is brought to you by Smalls. If you have a cat, you know that cat food is filled with water and fillers.

• 16:12Melissa Murray?

  In fact, many cat foods contain so much carbohydrate filler that they're actually closer to a granola bar than a prey animal. But cats actually need protein, not empty carbohydrates. And quality protein for your kitty means strong bones and toned muscles and sustained energy. My friend Laura just got a new cat, and she cannot wait to treat Olive to her first bowl of Smalls. But don't just take it from Laura and Olive. One happy customer had this to say. "This has been the best decision I have made for my cat. He absolutely loves this food. His coat is shiny, and he licks his bowl clean. High-quality products, no artificial flavors or byproducts. Absolutely love Smalls."

• 16:57Melissa Murray?

  88% of cat owners reported overall health improvements in their cats. And don't worry, if you're a little commitment-phobic, you can try Smalls, risk-free. They'll refund you if your cat won't eat their food. And the best part of all of this is that Smalls is delivered straight to your door, so there's no schlepping around with huge bags of cat food. It just comes right to your door, where you and your cat can receive it and get right to eating. Your cat's health and longevity starts with what they eat. And for a limited time, because you are a Strict Scrutiny listener, you can get 60% off your first order of Smalls, plus free shipping and free treats for life when you head over to smalls.com/strict. That's 60% off your first order of Smalls,

• 17:41Melissa Murray?

  plus free shipping and free treats for life when you head to smalls.com/strict.

• 17:51Melissa Murray?

  It may be a new day at DOJ, but it's the same old crap at SCOTUS. The court waded back into an ongoing dispute concerning discounted ad rates for political parties. Listeners, you may remember that guest host, Rashawn Robinson, and I first discussed this back in September. Under federal law, discounted ad rates are available to candidates for federal office during a 45-day period before the primary election and a 60-day period before the general election. In March, the FCC's Media Bureau issued a public notice indicating that political parties and joint fundraising committees should also be able to receive those favorable rates. Well, a group of Democratic candidates,

• 18:31Melissa Murray?

  which includes John Ossoff, aka Senator My Boo of Georgia, Sherrod Brown, a former senator from Ohio who's currently running to be senator again, Governor Roy Cooper of North Carolina, who's running for the Senate, and Michigan Representative Kristin McDonald-Rivet, they all went to the FCC in April, seeking a review of that public notice. And in June, because the FCC had not acted on that request for review, they filed a lawsuit arguing that the public notice contradicted extent of federal law. And a divided panel of the Fourth Circuit agreed. Then the National Republican Senatorial Committee and the National Republican Congressional Committee called the Wambulance 9W. AKA the emergency docket at the Supreme Court,

• 19:14Melissa Murray?

  asking the court to stay the Fourth Circuit's ruling. And the court did so, agreeing that the Fourth Circuit lacked jurisdiction to issue a ruling before the FCC, the Federal Communications Commission, had completed its review, which of course, the FCC was dragging its feet on because time and a looming election. The case went back to the lower courts. The candidates requested a court order instructing the FCC to act on their petition for a review. A divided panel of the Fourth Circuit granted that request and directed the FCC to issue its decision by noon on Friday, October 9. But SG John Sauer, as is his want, went running to his daddy SCOTUS, asking for a stay of the big bad Fourth Circuit's decision, please. And not to be outdone, in crying to daddy SCOTUS, the National Republican Senatorial

• 19:58Melissa Murray?

  Committee and the National Republican Congressional Committee again jumped into the wambulance to also file similar petitions.

• 20:06Kate Shaw?

  And that day, the chief, who handles emergency applications from the Fourth Circuit, issued an administrative stay, pausing the Fourth Circuit's order to give the justices time to consider the request and instructing the challengers to respond on Saturday. In their Saturday filing, the candidates maintain that the FCC was proceeding in bad faith and engaging in blatant procedural trench warfare to stave off judicial review of an unlawful agency directive until it is too late to matter. They urged the court to leave the Fourth Circuit's order in place.

• 20:33Melissa Murray?

  So guess what happened? The Supreme Court ruled for the government, insisting that while the FCC must act on every application it receives, it isn't required to act within a particular timeframe.

• 20:43Speaker 06

  Take your time.

• 20:44Melissa Murray?

  Exactly.

• 20:44Speaker 06

  Nothing going on here.

• 20:45Kate Shaw?

  Sometimes, agency action is OK in the eyes of this administration, or inaction, as the case.

• 20:50Melissa Murray?

  Inaction is fine. Exactly. The Fourth Circuit's order instructing the FCC to review the candidate's petition violated the system of separation of powers, according to the Supreme Court. Bottom line is, you should be prepared to see the Republicans buying shit tons of discounted ad time as we go into the final days of the midterm cycle.

• 21:10Kate Shaw?

  All right. Shifting gears, let's break down the October sitting.

• 21:14Melissa Murray?

  So shit on the shadow docket, let's do some shit on the merit docket.

• 21:18Kate Shaw?

  We can walk and chew gum at the same time. Doing it for how many years now? God, don't even want to count them.

• 21:24Melissa Murray?

  Season eight.

• 21:25Kate Shaw?

  Season eight, here we are. OK, so, season eight, the first sitting of it ran for two weeks. The first week, as we have discussed, featured a big blockbuster case, Suncor Energy, Inc. versus County Commissioners of Boulder County. Melissa and Leah discussed that case at length last week with the wonderful guest, Kirti Dotla of Earth Justice.

• 21:42Melissa Murray?

  In the same week, the court also heard arguments in three other cases we didn't have a chance to discuss in our last episode. Those cases were Anderson versus Intel on how to plead an ERISA, that is, the Employee Retirement Income Security Act, claim, and Johnson versus United States Congress on how constitutional challenges involving veterans' benefits should be brought, and Department of the Air Force versus Putehi Guahan, a case involving a challenge to a federal government plan to conduct open bomb detonation in Guam, an argument that focused a lot on whether there had been or would be final agency action that might make a challenge ripe for adjudication. Because of the Indigenous Peoples' Day slash Columbus Day holiday, the second week of

• 22:26Melissa Murray?

  the October sitting was a pretty light one at One First Street.

• 22:31Speaker 06

  I have some ideas about who treats it as Columbus Day rather than Indigenous Peoples' Day, because

• 22:36Melissa Murray?

  Great tell.

• 22:37Speaker 06

  Did you all catch the news that one Samuel Alito is reportedly fighting to keep a statue of Christopher Columbus up because taking it down would be, zero points for guessing, anti-Italian discrimination, or in his words, an insult to the Italian-American community? There is an actual Sopranos episode about this.

• 23:01Melissa Murray?

  There is, yes.

• 23:04Speaker 06

  I mean, there is, and I'm glad you remembered it, because like, that's the first thing I thought of. The other thing I thought of was that this is giving real concerned alumni of Princeton energy, where letting those ladies into Princeton is definitely going to be some anti-

• 23:20Melissa Murray?

  Not good for the men's.

• 23:21Speaker 06

  Not good, not good for the men's, not at all.

• 23:23Kate Shaw?

  Let me just say that I cannot wait to send a copy, a gift copy, to Sam Alito of my husband, friend of the pod, Chris Hayes', new book when it comes out, because it is actually a lot about the origins of Columbus Day, which it was kind of the original DEI, and Sam Alito is going to both love and hate this book. So, anyway, I'm just going to drop that right here.

• 23:39Melissa Murray?

  It's kind of like how he loves and hates originalism.

• 23:43Kate Shaw?

  And when it's convenient, when it gets us to the outcomes we want, we love it, and we discard it when it doesn't.

• 23:48Melissa Murray?

  So you're like, I like the DEI for Italians, but I don't like the DEI for the black people and the women.

• 23:53Kate Shaw?

  Exactly. That's Sam Alito in a nutshell. But, in other news on the imperialist beat, the court, known ally of Christopher Columbus, heard oral arguments.

• 24:07Melissa Murray?

  Courts, the court's like, hey, I got some blankets in the back. They only have a little bit of smallpox.

• 24:14Melissa Murray?

  Hey, ladies, want to go camping?

• 24:18Kate Shaw?

  We're going to get through this, guys.

• 24:22Kate Shaw?

  OK, let's talk through the light week the court had last week. And on Tuesday, the court heard a lone argument, right? Just the one case. Beard versus United States. And here is what the case is about. So the United States Sentencing Commission, which is an independent agency in the judicial branch of government, on which Justice Katanji Brown Jackson actually sat as vice chair from 2010 to 2014 and knows a shit ton about, this commission publishes federal sentencing guidelines for judges to follow, along with commentary to help judges interpret the guidelines. Now, in 1993, in a case called Stinson versus United States, a unanimous court gave great deference to the guidelines' commentary in sentencing decisions, holding that the commentary interpreting or explaining a guideline, which is actually promulgated in the same way that

• 25:07Kate Shaw?

  a guideline is promulgated through notice and comment, is, quote, authoritative unless it violates the Constitution, a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.

• 25:18Melissa Murray?

  So the question here in Beard is whether the Supreme Court should overturn or scale back Stinson. The defendant, Kendrick Beard, argued that recent administrative law rulings like Kaiser versus Wilkie and Loper Bright Enterprises versus Raymondo require courts to exercise their own independent judgment rather than deferring to agencies. Beard was convicted under 18 U.S.C. Section 922 G1, that is, a federal statute that prevents someone previously convicted of a felony from possessing a firearm that is moved in their possession via interstate commerce. In sentencing Beard, the district court consulted the sentencing guidelines for someone possessing a, quote, "semi-automatic firearm that is capable of accepting a large-capacity magazine."

• 26:01Melissa Murray?

  The gun that was found in Beard's possession was a Glock capable of holding 17 rounds of ammunition. The sentencing commission's official commentary on the guidelines called for a sentence of 63 to 78 months imprisonment for the possession of a semi-automatic firearm that had, quote, "attached to it a magazine or similar device that could accept more than 15 rounds of ammunition."

• 26:25Speaker 06

  So relying on that commentary, the district court sentenced Beard to 72 months imprisonment. Now, this case is in a bit of a unique posture before the Supreme Court. The federal government actually wants the decision sent back down to the lower courts because it believes the Court of Appeals, in this case, the Fifth Circuit, has precedent that goes too far in awarding deference under Stinson to the guidelines' commentary. Because the federal government wants a remand, the case sent back down and isn't defending the judgment, the Supreme Court appointed an amicus to defend the judgment. And in a stunning display of self-awareness, Samuel Alito, circuit justice for the Fifth Circuit, appointed a Dick as amicus. Yes, one Anthony Dick argued this case at the justices' request.

• 27:09Speaker 06

  Anthony is a former law clerk to Justice Alito. We actually clerked together. So remember in our first couple of seasons, when the court wasn't deep into jurisprudence of fuckery?

• 27:19Kate Shaw?

  Wasn't as deep into.

• 27:20Speaker 06

  As deep.

• 27:21Kate Shaw?

  It was already.

• 27:21Speaker 06

  Wasn't as deep into jurisprudence of fuckery. We had time to note and cover the shocking gender and racial imbalance and the advocates appearing before the justices, as well as the advocates that they appoint, which, of course, Kate has written a wonderful article about.

• 27:36Kate Shaw?

  Thank you. It was a decade ago, and I was like, huh, probably by accident, the Supreme Court keeps appointing all of these white guys with no previous Supreme Court experience to argue these cases. Surely, when someone calls their attention to it, they will change their ways.

• 27:50Melissa Murray?

  And 10 years later, Kate, a Dick steps up to the lectern. Literally.

• 27:55Kate Shaw?

  How wrong I was.

• 27:57Melissa Murray?

  Literally. If you don't get it by now, ladies and gentlemen and non-binary listeners, the imbalance persists at the Supreme Court. Only now, they've taken it to a whole new level. The appointment of the amicus here, one Anthony Dick, means that there are three distinct visions of Stinson and its vitality in light of these changes to the law regarding agency deference. So the defendant here, Beard, argues that courts should afford no deference to the guidelines' commentary. By contrast, the federal government is arguing that Stinson is actually consistent with Kaiser versus Wilkie's limits on judicial deference to agency interpretations.

• 28:39Melissa Murray?

  Kaiser held that courts must continue to defer to federal agencies' reasonable interpretations of their own genuinely ambiguous regulations, but Kaiser did impose firm limits on when and how that deference could be applied. The government believes that the lower court ignored those limits and wants the case remanded so they can properly apply deference under Kaiser. The court appointed amicus for his part, this is Mr. Dick, once again, defends a broad reading of the deference required by Stinson.

• 29:10Kate Shaw?

  And Kevin Joel Page, a federal defender arguing on behalf of Beard, faced a lot of skepticism from Justices Jackson and Sotomayor when he pressed the argument that the guidelines' commentary is not owed deference. As he explained, there's nothing- In the Sentencing Reform Act that requires deference to the guidelines commentary, Jackson, who, as I mentioned, served as the vice chair and previously as an assistant special counsel, so just an attorney on the sentencing commission, worried that Page's argument went afield of how the guidelines were intended to be used, and she should know. So let's play a clip here.

• 29:38Speaker 06

  I think what concerns me about your arguments is that you're suggesting that they are separable in some way, which is really not the way in which the guidelines were devised. And I think we sort of have a fundamental misunderstanding of how the manual works, because the guidelines and commentary are actually inextricably linked. And what I mean by that is that sentencing judges use the guidelines manual to do what is essentially a calculation. It's kind of like math, that the guidelines themselves have certain components to them, and the commentary tells you how those pieces fit

• 30:21Speaker 06

  together, how you are supposed to take them into account. When you are a judge, you're using both to reach the right answer under the guidelines. And there is a right answer as to what the guideline range is. And so what concerns me about your way of framing this is you suggest that the court can somehow look at the guidelines, not take into account the commentary, not defer to it, not use it, and yet still have an accurate guideline calculation, which is really not how the system is designed. So can you can you respond to that?

• 30:57Melissa Murray?

  So can I just say, I love that she's like, hey, you knobs, I know none of you have ever been to a district court when they are sentencing a defendant, but here's how this works. It's very different from whatever it is you all do with your time.

• 31:10Kate Shaw?

  I love her in these arguments, and in particular, in this one. And Justice Sotomayor, right, obviously, other former trial judge, was also kind of wary of what Page was arguing and the consequences of overruling or sidelining Stinson. So take a listen here.

• 31:24Speaker 03

  All I'm suggesting to you is it's only by reading the application note do I know that the magazine has to be attached to it or be in close proximity. It's only the application note that tells us. Respectfully, I disagree that that comes only from the application note. And the reason is that capable, there is an ambiguity in what capable of accepting a large capacity magazine means. It might mean- I'm a literalist. Capable to me means you can do it. You can you can give me any alternative you want, but if, without the application note, you're creating a sea

• 32:06Speaker 03

  of confusion for district court judges to fill in the blanks.

• 32:12Kate Shaw?

  Other justices also seemed concerned about the prospect of overruling a precedent. Huh, that was refreshing. So take a listen to noted Starry Desises enthusiast Sam Alito questioning Deputy Solicitor General Eric Fagan.

• 32:24Speaker 02

  So reasonably, is it reasonably foreseeable that overruling Stinson would require the resentencing of, what, 10,000 defendants from 2025 alone?

• 32:38Melissa Murray?

  It's only bad to overrule if it puts defendants back on the speed or gives them lower sentences. Those consequences, not so abstract. Not abstract. Not so abstract. Yeah, yeah. Those will actually impact the men riding on the subway who will need to have guns, per Bruin. Also, the men on the benches, right? True. Like, they're gonna have to do those opinions again. Oof. That's, that's true. So Anthony Dick, the appointed amicus curae, had to face down administrative law freak Neil Gorsuch. Dick argued that overruling Stinson would create chaos. Justice Gorsuch jumped on the distinction between the guidelines, which are advisory, and Dick's argument for an apparently binding guidelines commentary, as Justice Gorsuch explained in his view,

• 33:23Melissa Murray?

  that in his mind would create a conflict with Booker versus United States, a 2005 decision that concluded the sentencing guidelines are advisory, not binding on judges. Here's Gorsuch on this point.

• 33:34Speaker 02

  What about the topsy-turvy problem that we have binding commentary, advisory guidelines? Not a problem at all. And I know you say this is all good with Booker, but, boy, the more, the more you make these things binding, you're creeping up to a Booker problem.

• 33:50Melissa Murray?

  It's not a Booker problem, because you have to first accurately calculate the guidelines range, right? Like, that is still a mandatory part of the process, even though you don't actually have to impose a sentence within the guidelines range. But anyways.

• 34:02Kate Shaw?

  Well, you're a sentencing expert much more than me, but I was, what I was hearing Gorsuch doing here was he is sort of, this is a kind of rearguing the, kind of, so Loper Bright overrules Chevron and says, right, courts don't defer to agency interpretations of statutes. But Loper Bright and the majority kind of preserves this Kaiser idea about this narrow kind of deference to agency interpretations of agency regulations. But Gorsuch, in his separate writing, Loper Bright, was like Kaiser was also part of this bad old era of deference, and we should never defer ever to agencies. And so I think this is just this rearguard action that he is trying to fight under the guise of, well, it's a problem under Booker. So that's sort of how I read Gorsuch's question.

• 34:39Melissa Murray?

  Yeah. Not to be outdone, Coach Kavanaugh had his classic take on the issue in this case.

• 34:46Speaker 02

  Quickly, your approach that you're recommending would not be pro-defendant or pro-government, correct, in the sense that some of these, some of the commentary is pro-defendant in certain cases, and some is pro-government in certain cases? That's right, Your Honor. I think it's-

• 35:01Melissa Murray?

  This is his ultimate, like, the Constitution is neither pro-choice nor pro-life, right? It's not- Studiously neutral. It's not anti-trans, it's not pro-trans, it's not pro-defendant, it's not pro-defendant, it's not pro-government, right? Like, I am Brett Kavanaugh, and this is my galaxy brain. Take and I have it every single case.

• 35:22Kate Shaw?

  The Constitution is pro-sports, though, I'm pretty sure.

• 35:25Melissa Murray?

  Yes, definitely.

• 35:26Kate Shaw?

  So it's just not pro or anti anything else.

• 35:28Melissa Murray?

  Yeah. So how do you think this one is looking, this case?

• 35:32Kate Shaw?

  They seem torn to me. I was gonna just sort of actually say, I'm not sure. I think there are these kind of cross pressures, like, they're not sure how this, like, we're jettisoning deference elsewhere. This agency is distinct from other agencies. It sits in judicial branch as opposed to the executive branch. There's all these, you know, cases, these sentencing guidelines were once mandatory, and now they're just advisory. And so I actually don't know. I was just, I just feel like, we didn't really have a chance to talk about Johnson, the veterans' case, about whether constitutional challenges get brought in an administrative tribunal or in federal district court. But I just feel like in both of these cases, it is a little bit the court slowly maybe realizing that they are just creating a hash of so much law and so many kind of settled practices through this kind of disruptive overruling. And I mean, it's, you know, it's Loper Bright here, it

• 36:16Kate Shaw?

  is all of these cases regarding presidential control in the veterans' benefits context that are sort of implicated there. And, you know, this kind of like, what would happen if I just, like, pulled out a block from the Jenga tower based on some, like, idiosyncratic, I believe, about, like, the decision of 1789? And then just, like, they throw everything into question. And I kind of felt like you saw some of that happening in both of these arguments.

• 36:39Melissa Murray?

  Well, that suggests that they sort of, like, are having qualms about it. Like, maybe they just are pulling out the blocks, being like, let's see what happens. I mean, like, genuine, low-key chaos agent energy. I don't think we're at the me sowing, me reaping point yet, right? I think they have, like, an infinite capacity-

• 36:55Kate Shaw?

  They're gonna sow for a while yet.

• 36:56Melissa Murray?

  -to basically attribute all that is wrong in the world to everyone else but them.

• 36:59Kate Shaw?

  Okay, yeah, that's probably, yeah, maybe forever. But I at least felt like they should be starting to kind of get wise to who is responsible for the chaos that they are perceiving. It's them.

• 37:10Melissa Murray?

  It me.

• 37:10Kate Shaw?

  But actually them.

• 37:12Melissa Murray?

  It's me. Hi, I'm the problem.

• 37:14Kate Shaw?

  Yes.

• 37:18Melissa Murray?

  This episode of Sticks to Your Knees is brought to you by our friends at Wild Grain. Cozy season is here, which means cooler temperatures and warm ovens. And that is the perfect time to enjoy fresh baked breads and seasonal treats at home. And that's where Wild Grain comes in. Wild Grain delivers sourdough breads, seasonal pastries, and French butter made with simple, recognizable ingredients by small, independent bakeries. And it's all delivered to your door and ready to bake straight from frozen in 25 minutes or less. And you can customize your box of Wild Grain with classic, gluten-free, vegan, or protein options, and you can skip or cancel at any time. And right now, Wild Grain is

• 38:02Melissa Murray?

  celebrating one of my favorite holidays, carbsgiving, their biggest sale of the year with their best offer of the year. I cannot wait to try the pumpkin cinnamon biscuits. They are so yummy looking. Small, gorgeous, beautiful pumpkin color. And there are also apple cider donuts that I cannot wait to sink my teeth into. And the best part of Wild Grain is that you literally just throw them in a hot oven, wait for 25 minutes, and you have fresh baked goods, like you're actually good at baking or something, which I am not. But Wild Grain lets me fake it while I make it, and that's the whole gig. If you're ready for warm, bakery-quality food at home this cozy season, I definitely recommend

• 38:46Melissa Murray?

  giving Wild Grain a try. And for carbsgiving, one of my favorite holidays and Wild Grain's biggest sale of the year, you can get $40 off your first box plus free croissants for life. Yes, free croissants for life. Visit wildgrain.com/strict40 to get $40 off your first box and free croissants for life. Or use promo code strict40 at checkout. Again, that's wildgrain.com/strict40 or use strict40 at checkout.

• 39:19Melissa Murray?

  Strict Scrutiny is brought to you by Babbel. Guess what, folks? I'm planning a little trip. Me and my friends are headed to Paris for a little jaunt as soon as this semester is over. And as you may know, the French don't like it when you show up expecting to parlez-vous anglais. So I definitely need to get my français in check. And that is where Babbel comes in. That kind of language barrier is exactly what Babbel was built to close. Not textbook grammar, not leaderboard streaks, just the words and phrases you'd actually lose with a real person in a real place. Babbel gets you there faster than you think. People who use it just 10 minutes a day can start having real conversations in a new

• 40:04Melissa Murray?

  language in as little as three weeks. Babbel is built around real life conversation, not random vocabulary lists or endless grammar drills. It's designed by more than 200 language experts. So what you're learning is what people actually say, not what they wrote in a textbook 30 years ago. And Babbel fits into real life. Your coffee break, a commute, 10 minutes before bed. Babbel's bite-sized lessons can work with your schedule. And that's why Babbel has sold more than 25 million subscriptions and carries a 14-day money-back guarantee. Again, I am preparing for this trip by using Babbel to help me brush up on my français. And I'm really excited about being able to go into a pâtisserie and say, bonjour,

• 40:47Melissa Murray?

  and can I please get a hot buttered croissant? Something like that, but in français, right? Because I don't want to be rude. I don't want to be one of those Americans who expects to speak English all the time. I want to get to know the French people on their terms. So you too can have more authentic travel experiences. Start learning a new language today with Babbel. And right now, Strict Scrutiny listeners can get up to 60% off at babbel.com/strict. That's B-A-B-B-E-L dot com slash strict for up to 60% off. Rules and restrictions may apply.

• 41:27Melissa Murray?

  On Wednesday, the court heard oral argument in a case called Salazar versus Paramount Global. This case is a statutory interpretation case, and the question here is whether the term "consumer," as used in the 1988 Video Privacy Protection Act, VIPA, applies only to subscribers of audiovisual goods or services, or whether it applies broadly to anyone who subscribes to any service that a media company might provide, such as, for example, a free online sports newsletter. The VIPA was born in the ashes of Robert Bork's failed Supreme Court nomination. And if you haven't read Alex Wagner's book, The Steal, get on that.

• 42:10Melissa Murray?

  She talks all about the Borking of Robert Bork, and it's fantastic. But as part of Bork's confirmation process, journalist Michael Dolan obtained and published a list of videos that Bork had rented from his local video store. And I'm sure Dolan probably thought maybe there'd be something sketchy in there, but it turned out that Bork had pretty pedestrian, well, not really pedestrian, actually quite highbrow taste. So there was a lot of whodunnits and British films, costume dramas and things of that nature.

• 42:40Kate Shaw?

  That sounds like Melissa Murray's.

• 42:41Melissa Murray?

  I know. I think that's exactly what I thought. I'm like, Robert Bork and I probably would have gotten along really well, but for the smoking and the conservatism.

• 42:50Kate Shaw?

  Yeah.

• 42:50Melissa Murray?

  I know.

• 42:51Kate Shaw?

  But yeah, your taste.

• 42:52Melissa Murray?

  We just had to find places where we could agree.

• 42:55Kate Shaw?

  Costume dramas, British costume dramas.

• 42:57Melissa Murray?

  I think so.

• 42:57Kate Shaw?

  That's definitely one.

• 42:58Melissa Murray?

  But I genuinely was like, oh.

• 43:01Kate Shaw?

  Completely.

• 43:02Melissa Murray?

  In any event, Dolan published this article detailing Robert Bork's particular penchant for British films. And that kind of disclosure spurred Congress to enact the Video Privacy Protection Act, which bars, quote, "videotaped service providers from knowingly disclosing to any person personally identifiable information concerning any consumer of such provider."

• 43:27Kate Shaw?

  Now, in 2022, Michael Salazar subscribed to an email newsletter distributed by something called 247sports.com.

• 43:33Melissa Murray?

  247.

• 43:36Melissa Murray?

  You and Amy.

• 43:37Kate Shaw?

  Even I knew that. Even I knew that.

• 43:39Melissa Murray?

  247 Sports.

• 43:40Kate Shaw?

  247 Sports. That's what I called it in the argument. I just listened to the oral argument, but yes, now that you say that, Melody, save me.

• 43:49Melissa Murray?

  Get it?

• 43:49Kate Shaw?

  Please take it out.

• 43:50Melissa Murray?

  All sports, all the time.

• 43:51Kate Shaw?

  Thank you for that additional elaboration. I wasn't sure what 247 meant until just now.

• 43:56Melissa Murray?

  Hello, fellow sports fans. I'm Kate Shaw.

• 44:03Kate Shaw?

  247, unpunctuated, sports.com is, as I'm sure you all know, a website owned by Paramount that has lots of sports videos on it, in fact, all the time. It's a site on which Salazar watched videos while he was logged into his Facebook account. And he alleges that Paramount used a code known as a pixel on 247sports.com to provide Facebook with information about the videos that Salazar had watched on the site. He maintains that he never consented to the use of pixel or the sharing of his information with Facebook. And he filed a class action alleging that Paramount's disclosure to Facebook of this video viewing history without his consent violated this statute, the VPPA, VIPA. The Tennessee District Court dismissed the case on the ground that Salazar was not a,

• 44:47Kate Shaw?

  quote, "consumer for purposes of the statute." A consumer, the court held, must be a, quote, "subscriber of goods and services in the nature of audiovisual content." Because this 247sports.com newsletter was not audiovisual content, he was not, according to the lower court, a consumer within the meaning of the law.

• 45:04Melissa Murray?

  And a divided panel on the Sixth Circuit agreed they upheld that ruling. Salazar asked the Supreme Court to review it. At oral argument, Joshua Hammack, who represented Salazar, argued that Congress had explicitly placed audiovisual limitations inside the definitions of videotaped service provider and personally identifiable information, but didn't so restrict the term "consumer" to audiovisual products. Under this plain text view, because Salazar subscribed to the 247 Sports Newsletter owned by Paramount Global, he qualifies as a protected consumer when watching videos on the site that are tracked and shared with Meta/Facebook without his consent. Former solicitor general and noted NYU booster Paul Clement took the podium for Paramount Global.

• 45:49Kate Shaw?

  I just love, you're never, ever letting this go.

• 45:51Melissa Murray?

  Never.

• 45:51Kate Shaw?

  Nope.

• 45:52Melissa Murray?

  A Virgo.

• 45:54Melissa Murray?

  I hold a grudge like a microphone. I feel like I'm an honorary Virgo. You are, correct. You've got big Virgo energy. You might be on the cusp, like a rising sign. In any event, Clement urged the court to read the statute more narrowly. As he maintained, Congress designed the VIPA to protect video rental and viewing privacy, not to turn every general digital newsletter subscriber, online store customer, or user of an unrelated corporate service into a protected consumer under the law, just because the company happened to host online videos. At argument, the justices, for their part, struggled with how to reconcile the VIPA's origins in VHS cassettes and brick and mortar video stores, and I will just note Blockbuster

• 46:38Melissa Murray?

  Video was name-checked repeatedly, with this brave new world of streaming services. In fact, Justice Thomas, who we are told really knew his way around a brick and mortar video store back in the day, actually asked the lawyers on both sides whether a media behemoth like Paramount and its subsidiary, 247 Sports, were actually videotaped service providers for purposes of the law. I do love that we call him out for watching porn.

• 47:07Kate Shaw?

  Yeah, for sure.

• 47:08Melissa Murray?

  Shout out to Lillian.

• 47:10Kate Shaw?

  Yeah. What was the, what's the doc for our listeners who?

• 47:15Melissa Murray?

  Long Dong Silver.

• 47:16Kate Shaw?

  No, no.

• 47:18Melissa Murray?

  Not that one.

• 47:19Kate Shaw?

  Not the porn, not the documentary.

• 47:23Kate Shaw?

  That, in fact, is a title that should probably stay in the episode again.

• 47:27Melissa Murray?

  No.

• 47:27Kate Shaw?

  Melody, you decide. No, but there was a film that his ex-girlfriend, Lillian, who's amazing, appeared in on PBS that, anyway, hang on, I actually want to find it. Okay, yeah, so just briefly, if you are kind of newer to the show, in 2023, PBS put out a really fantastic documentary called Clarence and Ginny Thomas: Politics, Power, and the Supreme Court. Lillian McEwen is an ex-girlfriend of Thomas's, and let's just say, you'll learn a lot about his youthful days if you, you know, fire up your whatever. How are you going to watch a PBS doc these days? Highly recommend it.

• 48:02Melissa Murray?

  Stream it.

• 48:03Kate Shaw?

  But where?

• 48:05Melissa Murray?

  On your computer?

• 48:06Kate Shaw?

  I know, but like, does PBS have an app? I don't know. I don't know.

• 48:08Melissa Murray?

  Yes, PBS has an app.

• 48:10Kate Shaw?

  Okay.

• 48:10Melissa Murray?

  Girl, what? Justice for public.

• 48:13Kate Shaw?

  247 PBS.

• 48:17Melissa Murray?

  Girl.

• 48:18Kate Shaw?

  All right, well, stream it wherever you stream things.

• 48:21Melissa Murray?

  Kate's like, chisel it into your mortal.

• 48:24Kate Shaw?

  Go to Blockbuster and pick up a copy of Power and Politics at the Supreme Court. It's really good.

• 48:30Melissa Murray?

  See if Netflix will send you a DVD of it.

• 48:32Kate Shaw?

  Exactly. What were those red dot things you'd send to the grocery store? I do remember those.

• 48:36Melissa Murray?

  Yeah, I do remember those.

• 48:38Kate Shaw?

  Anyway, okay, so back to the argument. Coach Kavanagh, Coach K, seemed to embrace Paramount's argument that allowing Salazar's suit to proceed would open the floodgates to a wide range of consumer suits against any company that streams videos on their website. He is concerned. He wants to protect the ability of sports viewing websites to, you know, broadly share their content without necessarily opening themselves up to ruinous liability. Kagan zeroed in on the idea that providers could avoid all of this by simply seeking the consent from those consumers before disclosing any customer information to third parties. Or they could maybe just stop selling their customers' information. Imagine that. Wild suggestion. So let's play that clip here.

• 49:18Speaker 06

  Well, this statutory language, you know, is relatively clear. And you might have been be charged with having read it. And going forward, you have two very simple solutions. One is to get consent, easy enough. People do it every day. And the other is to stop selling people's private information. Take your pick.

• 49:39Melissa Murray?

  Shorter Elena Kagan, reading, fundamental. But really- Consent, also fundamental. Exactly, right? Like, ask or don't do it. So consent was her frame for the case. Brett Kavanaugh was open to this idea, but he did have a question, which we will hear here.

• 49:59Speaker 02

  Can you explain exactly how the consent would work, in your opinion?

• 50:06Melissa Murray?

  He really does make it too easy for us. Brett Kavanaugh has some questions about how the whole consent thing works. Just we'll leave that with a period. So Brett Kavanaugh had another revealing moment during this oral argument that we will play here.

• 50:24Speaker 02

  I think the other side's kind of big picture argument is that we are a textualist court, but usually not a literalist court, and that we have a lot of principles and doctrines, major questions, elephants and mouse holes, context, common sense. You see those terms sprinkled through a lot of our cases, including in this general field, and that we should be thinking about that so that we don't read the statute for all it's worth when the Congress in the 1980s wasn't thinking about data sharing for targeted advertising. So that's just a big picture question for you to tackle.

• 51:04Melissa Murray?

  I loved this because this was very OMG, he admitted. Like, he's just saying, look, whole major questions, elephants and mouse holes thing, it really just comes down to, like, do we think the world should work this way?

• 51:19Kate Shaw?

  What are the vibes, as I think you have long said?

• 51:22Melissa Murray?

  Do we think you should be able to sue? Exactly. What are our vibes? These video service providers, and I kind of think you shouldn't. So that's what I'm going with. And it wasn't just him that seemed to embrace the, I'm not a textualist, I am a order the world as I see fit-ist. So here is Chief Justice Roberts.

• 51:46Kate Shaw?

  Well, our former colleague, Justice Breyer, confronted with questions like this. You know, his favorite hypothetical, in that area, anyway, was a sign in a park that says, you know, no pets in the park. And the question was, did that mean that the person carrying his pet snail in his pocket was subject to prosecution? I mean, don't we have to look at the general purpose that's involved here before determining that the statute reaches as far as you would have it?

• 52:17Melissa Murray?

  Again, sir, like, you were never into Steve Breyer's approach to statutory interpretation. So the idea that you would be right out of the gate at this oral argument invoking Steve Breyer, like, what are you doing? What are you thinking? It's very odd.

• 52:32Kate Shaw?

  They've just decided, like, we're not, again, when you have six, you don't have to pretend that you're textualist anymore. You can just basically say, like, ah, I don't, I don't really feel like adhering to text this time, and so I won't.

• 52:43Melissa Murray?

  Yeah. So in other revealed preferences, Justice Barrett revealed herself to be an aficionado of online shoe shopping. Nordstrom is apparently her go-to. I mean, honestly, I found this so relatable, certainly more relatable than pilfering Ambien from your husband's jar of Ambien. Yes, that, that does check out. But I hope she's not buying those Reva Tory Burch flats that every woman in DC was wearing for, like, 10 years. I hope that's not what she's using. Again, depending on how this case goes, maybe someone could find out. But Barrett, in addition to revealing her penchant for online shoe shopping, also made

• 53:24Melissa Murray?

  clear that the justices are never beating the allegations, that they do just not understand technology. So take a listen.

• 53:32Speaker 04

  And I want you to give me the pitch on the facts of your complaint as you allege them, why you have standing. And specifically here, you know, you can have disputes about, as the 11th Circuit has taken the position, that you need to have some publicity, telling one private individual isn't enough. But here, so far as I can tell, no person got this information, whatever this pixel thing is, right? So why do you have standing?

• 53:57Melissa Murray?

  No person other than Meta, like, the largest social media company in the world, but sure. You know, as you can hear in her question, she just injected standing into the oral argument, basically being like, well, how about this standing thing? And this was another revealing moment for me because it felt very much like the Suncor oral argument, where the justices were just thrashing about for any old rationale that would allow them to rule for the party that they wanted to rule for. And since the whole textualism thing wasn't working out so well, right, for Paramount's side, it was like, well, how about standing, right? Like, let's take that baby out for a spin.

• 54:31Kate Shaw?

  Can I just say, since I wasn't on the Suncor discussion, you guys did a great one with Kirti. I just, it was so wild to see them spitball. How about this theory? How about that theory?

• 54:40Melissa Murray?

  In real time. Building the plane while we're flying it.

• 54:43Kate Shaw?

  They're like, do you know we can hear you guys?

• 54:46Melissa Murray?

  Take, hear me out, guys. What about standing?

• 54:50Kate Shaw?

  It was shocking. But yeah, I feel like we're maybe going to get a lot of that because they have only just begun this term and already they're off to the races.

• 54:56Melissa Murray?

  Right, this is the first sitting, and they didn't even do the reading for this one, right? Like, how bad is this going to get in April?

• 55:01Kate Shaw?

  Possibly real bad.

• 55:03Melissa Murray?

  So although, you know, Salazar insists all of this came about because he was watching sports, you know, the justices were, and I think rightfully so, preoccupied with other kinds of videos that one might watch and that, you know, might be disclosable. For those of you who aren't picking up what I'm putting down, yes, this case is about porn. So here, right, is Elena Kagan attempting to convey this.

• 55:30Speaker 06

  Couldn't this case kind of be the paradigmatic case? It's like, you can, like, watch lots of embarrassing sports videos that you don't want anybody else to know about. A judge could. And then they watch a lot of videos. And let's say a judge does this. And then it turns out that the judge watches some pretty funky sports videos, you know, like, a lot of women wrestling or something. And that's embarrassing. That's embarrassing in exactly the way Congress thought we're passing the statute to prevent disclosure of that information.

• 56:11Melissa Murray?

  Judge named Clarence or Brett.

• 56:14Kate Shaw?

  She could not keep it together during this question, and I loved it.

• 56:18Melissa Murray?

  She was wild. She was wild in this. She really was. It was really wild. Yeah.

• 56:23Kate Shaw?

  Do you think she, like, looked sideways at one of, one of the boys on the bench?

• 56:26Melissa Murray?

  No, I think she studiously avoids them, like, blinders. Exactly, exactly. Like, I'm not talking about you, Brett. A judge might. You know, like, maybe this judge- A judge named, named Pret or Ret. Clarence.

• 56:41Kate Shaw?

  Just spitballing. I also, yeah, she was, she was just, like, totally on fire in this argument. I also loved learning, which I feel like I really knew, and she just continually confirms it. But unlike her Luddite colleagues, Elena Kagan is extremely online. And if you didn't know that before this argument, you definitely know it now.

• 57:00Melissa Murray?

  I see you, girl.

• 57:01Kate Shaw?

  Yep.

• 57:02Speaker 06

  It's just one of those cookie boxes that comes up, right? Wouldn't you do it the exact same way? I mean, we do that 1,000 times a day.

• 57:10Kate Shaw?

  Okay, so, yeah, so just-

• 57:12Melissa Murray?

  Yeah, she got a Finsta. She got a Finsta.

• 57:14Kate Shaw?

  Yes. And, I mean, just, you know, just, nope, minimize, click that, X out, out, out, out. She is just on these internets all day long, and I love that.

• 57:24Melissa Murray?

  Yes. She's, like, talking about cookie boxes, and Amy Cundery is like, is it Girl Scout season? Do I need to buy thinnest?

• 57:32Kate Shaw?

  Totally.

• 57:35Melissa Murray?

  In addition to hearing argument, on Tuesday, the court added three new cases to the October term 2026 docket. One of the cases is an immigration case, Blanche versus Azurumba, which is brought by the Trump administration. The case asks the court to clarify what type of support an immigrant must be shown to have provided to- A terrorist organization in order to be removable and ineligible for various immigration benefits under a federal immigration law that states that an individual who affords material support to such a terrorist group is ineligible to be admitted to the United States. The second case is Berry that asked the justices to consider whether a certificate of appealability, a prerequisite for appealing a decision that denies a request for post

• 58:20Melissa Murray?

  conviction relief, may be granted to a prisoner whose claim is foreclosed by circuit precedent, but would be allowed to proceed in a different circuit.

• 58:28Kate Shaw?

  And last, but certainly not least, we got a grant in United States Doge Service versus United States District Court for the District of Columbia.

• 58:36Melissa Murray?

  Supreme Court going, big balls.

• 58:37Kate Shaw?

  They are, yep. It's big balls turn at Supreme Court. Listeners, you will probably remember.

• 58:43Melissa Murray?

  Okay, please let A-Dick be the one to argue this.

• 58:47Kate Shaw?

  They need to bring somebody in.

• 58:50Melissa Murray?

  Too soon. Federal government right is all over this one.

• 58:53Kate Shaw?

  Yep.

• 58:54Melissa Murray?

  Sadly.

• 58:55Kate Shaw?

  Yeah, I think we do have actual adversity here, but if we don't, Melissa has a nominee for you to keep in mind, justices for, I guess this would be Roberts since it's out of DC, for amicus.

• 59:05Melissa Murray?

  The legends.

• 59:06Kate Shaw?

  But just to refresh everybody's recollection. Right. Who will represent Big Balls' interests in this case? No one. We should appoint A-Dick. Okay. But in terms of what is at issue in this case, back in the early days of Trump 2.0, the president and his first vice president, Elon Musk, created Doge, the United States Department of Government Efficiency. Doge was charged with, quote, "modernizing federal technology and software to maximize government efficiency and productivity." That was always bullshit, but that was ostensibly the goal.

• 59:34Melissa Murray?

  So a government watchdog group, the Citizens for Responsibility and Ethics in Washington, filed a FOIA request, a Freedom of Information Act request, for, among other things, communications between the alleged supposed Doge administrator, Amy Gleason, and Doge staff, as well as financial disclosures submitted by Doge personnel. When there was no response to those requests, Crew, that is Citizens for Responsibility and Ethics in Washington, went to federal court, asking Doge to disclose documents that it said it wanted before Congress passed a bill to fund the federal government. Crew wanted to expedite the discovery process to determine whether Doge is a federal agency that must comply with FOIA. As part of the request to expedite the discovery, Crew asked for all kinds of information,

• 1:00:16Melissa Murray?

  including lists of current and former Doge employees, a list of government contracts and grants that Doge wanted to cancel, a list of employees and positions that Doge wanted terminated, and they also asked to depose Gleason. U.S. District Judge Christopher Cooper granted most of Crew's discovery requests, and the U.S. Court of Appeals for the District of Columbia Circuit rejected Doge's plea to pause that order. So predictably, Solicitor General John Sauer went crying to Danny Scotus, and the court, predictably, dried John's fat baby tears, dressed him in a fresh new onesie, and in June, issued an unsigned order over the objections of the three Democratic appointees that sent the dispute back to the DC Circuit for a fresh look.

• 1:01:00Melissa Murray?

  Fresh onesie, fresh look. Specifically, the majority of the court objected to the portions of the District Court's discovery order that required the government to disclose the content of Doge's recommendations within the executive branch, as well as whether those recommendations were followed. According to the court, not only were these directives too broad, but they also raised separation of powers concerns. The court put Cooper's discovery orders on hold while this litigation continued below.

• 1:01:27Kate Shaw?

  So the case went back down to the lower court. Crew modified its discovery requests, really narrowed them, and the lower court granted those requests. And Doge, even with the narrowed requests, took that quite personally. And Sauer headed back to SCOTUS, arguing, among other things, that under a 2004 decision, Cheney versus U.S. District Court, when considering requests for information directed at senior executive branch officials, special considerations should control when the executive branch's interests in maintaining the autonomy of its office and safeguarding the confidentiality of its communications are implicated. So.

• 1:01:57Melissa Murray?

  What could go wrong here?

• 1:01:59Kate Shaw?

  I mean, there were all these big constitutional questions about, you know, Musk's role under the appointments clause. You know, those are implicated for sure, like what the constitutional status and sort of what the separation of powers means for it in this kind of document request case. But it's sort of parallel to some of those other constitutional questions. But I guess I'm glad in some ways, I mean, I'm sure nothing good will come of this, and I actually think that in some ways, they have been gunning for FOIA is a meaningful transparency and oversight mechanism for the public to actually find out what is going on inside government. And they've already, they being the Trump administration, have asserted, obviously, all kinds of absurdly broad privileges from disclosure, whether to Congress or to individual FOIA plaintiffs.

• 1:02:44Kate Shaw?

  But it feels like this could be another opportunity to really limit FOIA. But I guess I'm just kind of glad that Crew is fighting this and that Doge is not, they disbanded, and I think it was a wild failure in terms of its own stated objectives. And in some ways, it's sort of good for the public to be reminded of like the chaos and carnage that Doge was responsible for in the early days of the administration. So I guess I'm not, from a just kind of public information perspective, upset that this is still on the radar, but for sure, Supreme Court will make a hash of the substance.

• 1:03:15Melissa Murray?

  They're going to unitary executives so hard over this one, right? When it's not a real department, they're basically like private individuals. And that unitary executive is going to be so unitary, it's just going to allow the president to unite whoever he wants under his great big executive privilege umbrella.

• 1:03:33Kate Shaw?

  Hundred percent.

• 1:03:34Melissa Murray?

  So that is it for news and recaps, but do please stay tuned for my conversation with Alice Olsteen, journalist and the author of the great new book, Side Effects: How Abortion Bans Impact Everyone's Health. This episode of Strictly is brought to you by Alloy Health. Let's be honest, we've all heard that aging can come with some unwelcome changes. Sleep disruption, hot flashes, brain fog, weight gain, and decreased libido can hit you hard. Menopause is inevitable, folks, but guess what? It's also treatable. Almost half of women go three-plus years, though, before seeking relief from menopausal or perimenopausal symptoms. Ladies, what are we doing?

• 1:04:18Melissa Murray?

  Most don't even know where to go for a solution. That's why we're here. That is where Alloy comes in. Alloy is a digital health platform that connects you with a menopause-specialized doctor to help you feel and look your best in midlife. Your doctor will help you find the best, safe, science-backed treatments for your symptoms, skin, hair, weight, and sexual wellness, all delivered to your door. Everything is done online and in the comfort of your home, so there's no waiting for an appointment or waiting in line at the pharmacy. Alloy is fast, accessible, and their treatments actually work. Here's how it works. You can receive a treatment plan from your doctor. You'll be matched with a menopause-specialized physician who will create a personalized treatment plan tailored to your specific needs.

• 1:05:03Melissa Murray?

  Plus, you'll have unlimited time with your doctor, so you can message your doctor anytime. You can get your three-month supply right away. Once approved, Alloy ships your prescription directly to your door with automatic refills. I love that Alloy exists. I love that you can get the help that you need in midlife without having to struggle, that there are people who know exactly what you're going through and know exactly how to help, and where your needs can be heard and addressed. So you too can join the 95% of women who have tried HRT through Alloy and saw relief in the first two weeks. Head over to myalloy.com and use the code strict and tell them about your symptoms, and you'll get a fully customized treatment plan and unlimited messaging with your doctor.

• 1:05:47Melissa Murray?

  Plus, you'll get 20% off your first order today. Head over to myalloy.com and use the code strict to get 20% off your first order. This code is valid on products only. Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano made with premium chocolate between two delicate biscuits, a Sausalito baked with rich milk chocolate chunks and macadamia nuts, or the simple buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm, have a little taste.

• 1:06:32Melissa Murray?

  For this segment, I'm delighted to be here with Alice Miranda Olsteen. Alice is a journalist at Politico, whose work focuses on reproductive justice and the law. And she's the journalist behind several important stories about the Trump administration's potential efforts to conceal their efforts to restrict access to abortion, at least until after the midterms. She's also the author of the terrific new book, Side Effects: How Abortion Bans Impact Everyone's Health, which is officially out next week. The book is about Dobbs and abortion restrictions and how that has transformed the practice of medicine. Welcome to the show, Alice. Thank you so much. Before we get to the book, which is going to be our primary focus, of course, can

• 1:07:15Melissa Murray?

  you just remind our listeners about some of your reporting about what might be happening in the Trump administration, why we have reason to think there might be some things happening that they're not being totally transparent about with respect to potential efforts to restrict abortion? Yeah, so we don't know what, if anything, is going to happen. There has been reporting that nothing will happen before the midterms, but I think that extrapolating from that, that something will definitely happen after the midterms is a bit of a leap. We just don't know at this point. That said, there are processes underway in several different federal agencies, as well as several ongoing lawsuits in various courts that could force the administration's hand.

• 1:07:58Melissa Murray?

  So most of this has all been focused on the abortion pill Mifepristone, which is one of two pills that are used together in most abortions that take place. And so, you know, there is an effort at the FDA to review the drug's safety and perhaps propose different regulations around who can access it and how and where and why. And so all of that could unfold next year. There are also efforts and some figures at the Justice Department who are interested in revisiting some of the laws around the mailing of abortion pills, reviving, I'm

• 1:08:42Melissa Murray?

  sure your listeners have heard lots about the Comstock Act, but there are some who are advocating for reviving this more than 150-year-old restriction and applying it in our brave new world. There are also ongoing efforts at the EPA to look into the alleged impact of abortion pills on the environment. And my colleagues and I broke that story. And so all of this could lead to something, it could lead to nothing. You know, I think that the political pressures around this are not going to disappear.

• 1:09:19Speaker 04

  Here after the midterms, you know, people are going to be focused on 2028. So it's not like the administration can have complete consequence-free slate to to take action on this front after the midterms. There are still going to be, you know, a lot of different political calculus involved.

• 1:09:41Melissa Murray?

  Yeah. And of course, all of these possibilities are really only a possibility because of the Supreme Court's decision in Dobbs, which ended constitutional protection for abortion. So maybe we can turn to that decision now and what your book uncovers about its consequences. So the majority opinion suggested that overturning Roe would just be a matter of returning abortion to the democratic process. But your book tells a story about how the decision fundamentally transformed the practice of medicine more generally. Could you talk a little bit about how Dobbs has changed healthcare in this country more generally?

• 1:10:14Speaker 04

  Sure. So, you know, I think by now, a lot of people have heard the tragic stories of women who have died in Texas and Georgia and some other states after being denied medically necessary abortions when they were experiencing an emergency while pregnant. But what I found traveling around the country and doing this research is that that is really only the first concentric circle of this bigger impact on medicine. And it just goes out and out and out from there, so much that it really impacts everyone, no matter where they live, their gender, their age, their health status. But, you know, of course, some people are impacted more than others, you know, particularly women of reproductive age who are living in states with these legal restrictions.

• 1:10:59Speaker 04

  And then, you know, within that group, if you're poor, if you're a teenager, you know, you have these additional challenges. But look, this is impacting how doctors are trained and educated, where doctors choose to live, what medications doctors can prescribe, what information they can even tell their patients, and what kind of research they can do to come up with future cures for conditions and diseases that, you know, people are suffering from now.

• 1:11:25Melissa Murray?

  Yeah. So I think we're going to talk more about each of those categories. But since you mentioned that this is changing where doctors live and how they can practice, I just want to remind our listeners about the political ads that are running in Idaho right now that are focused on the loss of OB-GYNs and doctors and reproductive healthcare more broadly, that that is the focus of the political messaging about the state's vote about protections for abortion. But since you began your answer with talking about, you know, women who have lost their lives because of these abortion bans, you know, the right-wing justices, as well as anti-abortion politicians repeatedly say that abortion bans are perfectly compatible with protecting women's lives because at

• 1:12:10Melissa Murray?

  least a lot of the laws contain medical exceptions. You know, you tell some horrifying stories about what actually happens when doctors try to invoke those exceptions. So can you walk us through maybe one of those stories or how this actually works on the ground?

• 1:12:25Speaker 04

  Absolutely. So, you know, what I kept hearing over and over from doctors and patients is that it's extremely challenging, potentially impossible, to write exceptions language in a way that actually protects people in real-world situations. Because if the language is too vague, doctors don't know, can I act? Does this qualify? I'm not sure. Do I have to check with lawyers? Will checking with lawyers delay the care to, you know, a dangerous extent? But if the law is too specific, you know, listing specific, you know, medical conditions that would qualify, what if something's not on that list? What if something happens that they didn't even think of or haven't even discovered yet? And so there's, there's just this tough

• 1:13:09Speaker 04

  sort of balancing act they're trying to to strike. And so I think, you know, one of the people I interviewed for the book really illustrates this. Her name is Avery Davis Bell. She lives in Georgia. And she nearly died in the fall of 2024 because her doctors were so afraid of violating the state's abortion ban that they waited until she was in really dire condition to terminate her pregnancy, even though by that point it was nonviable. Her water had broken, you know, dangerously early. And so, you know, she had this very scary situation where she was in and out of the hospital for weeks of her pregnancy. And finally, she was passing blood clots that were so big that she actually brought

• 1:13:54Speaker 04

  them to the hospital in a Tupperware to prove that something was wrong enough that they should really take her seriously. They found that she was anemic from all the bleeding. And like I said, her, her water had broken before her pregnancy could reach viability. And so, you know, not performing an abortion at that point put her at risk of infection. But still, the doctors waited and waited and waited more than 20 hours because they were saying, look, you're not actively dying yet. So our choices are either we present your case to the hospital's legal board and let them determine whether or not you qualify for this narrow exceptions language, or we wait till you, your condition deteriorates even further, then we could bypass the committee.

• 1:14:38Speaker 04

  So finally, after all of this waiting, she qualified for a blood transfusion, which was, you know, a clear enough criteria that her life was in danger, that they went ahead with this. But, you know, that delay made the abortion itself more risky. It made her recovery longer. She had to get iron infusions for months afterwards. She could barely walk. You know, she couldn't play with her toddler. And I think, you know, because the language in Georgia's ban, which is similar to the ones in a lot of states, it says that doctors can only do an abortion when there's a risk of death or, quote, "substantial and irreversible physical impairment of a major bodily function." So doctors and legal experts kept

• 1:15:21Speaker 04

  telling me, okay, what's substantial? What's impairment? What, what, what kind of bodily functions are considered major? These are not medical terms. You know, these don't really map on to what doctors encounter in real life. And that's where the challenge comes in.

• 1:15:38Melissa Murray?

  And I think that story and others like it are one of the reasons why we talk about these abortion bans as so dehumanizing, right? They are literally forcing women to beg for their lives, coming into the hospital with a container full of blood clots they are passing. And to have to say, I am close enough to death to warrant care is just an atrocity, right? That's not the actual provision of medical care as we expected. But maybe moving out of these concentric circles, you know, another striking aspect of your book's research is how many people who never wanted an abortion or who aren't even capable of becoming pregnant are suffering because of

• 1:16:22Melissa Murray?

  abortion bans. Can you give us an example of how the decision affects people or someone who might never have imagined abortion restrictions would affect them?

• 1:16:32Speaker 04

  Yeah. So a couple of examples. One is a woman who is living in Northern California. And, you know, California, it's thought of as this, you know, abortion haven with very protective laws. But when she went to the hospital and she had an emergency with her pregnancy, because it was a Catholic hospital, she was turned away and sent with some towels and a bucket to drive to the next town over to reach a hospital that would give her the medically necessary abortion. And so there's an ongoing lawsuit about that in California. And so, you know, I want to stress that this doesn't only impact people in states where there's a ban on the books. It also has these spillover effects on.

• 1:17:13Melissa Murray?

  Note to Maine voters in Maine who are hearing Susan Collins' statements about how Maine women aren't affected. But yes.

• 1:17:20Speaker 04

  Right. Exactly. Everyone's affected. And, you know, another example is going back to the fertility care issue. You know, I talked to a woman in Alabama who, in the middle of an IVF cycle, so she's getting these hormone injections. You know, there's a narrow window where you can, you know, have your embryos implanted. And there was a ruling, I'm sure your listeners remember, in that state that cut off all access to IVF temporarily. But even that temporary delay had medical consequences for her. You know, being on those hormones for so long and missing that window really threatened her health and her eventual pregnancy and birth. And so she was saying, you know, I really, when the ban went into place in

• 1:18:05Speaker 04

  my state, you know, I mainly thought about other people I knew. I didn't think about it affecting me.

• 1:18:10Melissa Murray?

  Another thing that jumps out of your reporting is, as you were saying, abortion bans can actually make it harder for people to have children in the future, but also how abortion restrictions are interfering with research into treatments for. What people might think of as completely unrelated conditions like cancer, right? Serious diseases. You describe a researcher at Indiana University who abandoned a clinical trial testing whether mifepristone could help prevent breast cancer, you know, in women with a particular mutation. So how does banning abortion end up preventing scientists from pursuing potentially life-saving medical breakthroughs? Yeah, so I think people should think of the threats to research in sort of two categories.

• 1:18:53Melissa Murray?

  The first is research about the potential other uses of mifepristone. It has really promising implications for a lot of different things. Cancer, uterine fibroids, all kinds of stuff. And there is research going on in other countries that don't have the same restrictions we have that is making a lot of progress. And so research here in the United States, some of it, like that example you mentioned, has been abandoned because it's they're just so afraid about losing access partway through a clinical trial to the medication they're testing. Or, you know, potentially being accused of violating a state law.

• 1:19:36Melissa Murray?

  But also, even the ones that haven't been completely cut off or abandoned, there's been delays, there's been hurdles. And so people who could be benefiting from this medication, and this includes men, this includes people who are too old to get pregnant. Yep. These are people who are too sick to get pregnant. So there's really no risk of an accidental or intentional abortion here. They are not having the access to this medication because of these hurdles and delays. Maybe just to give our listeners an example of that, you know, before you get into the second bucket, just so they can have something in mind. Yeah. You know, this isn't from mifepristone or the context of abortion. Right. But, you know, the drugs that people right now are using, like Ozempa or Munjaro, right?

• 1:20:18Melissa Murray?

  Like, those came about because scientists were studying the Gila monster, right? So like, you don't know what the thing, right, that you are studying or focused on could end up being used for. And of course, now the drugs, right, are used to treat certain diabetic conditions and blood sugars. But there's also research into whether they might be able to treat addictive behaviors, right? Absolutely. Or certain inflammatory diseases. And so just to give listeners example, like, it seems like this is fairly common, right? It's just how medical research works. Sorry, continue. We're going to talk about the second bucket. No, absolutely. And so, you know, in the first bucket, I talked to a researcher who has discovered that mifepristone massively helped older male veterans of Operation Desert Storm.

• 1:21:04Melissa Murray?

  It relieved their symptoms in a way that nothing else did. But because of the hurdles this researcher has run into post-Dobbs in obtaining the medication, in, you know, housing the clinical trial, in getting federal funding, you know, those veterans don't have access to a medication that could really help them. And again, these are older men. This is not, these are not people who could have an abortion, you know, even accidentally. So in terms of the second bucket, you know, research that covers women of reproductive age in any capacity, no matter what they're researching, is being threatened by this. And, you know, what a bunch of bioethicists and scientists really explained to me is

• 1:21:50Melissa Murray?

  that the ethical guidelines that basically all research in the United States follow was drafted in 1974, crucially, one year after Roe. And so our entire framework about medical ethics has been put forward in a context of people could have access to a safe, legal abortion if they needed it. And so if you're thinking about it, women of reproductive age are already so underrepresented in clinical research right now. You know, there's tons of drugs where we just don't know if they work on women because they've only been tested on men. And the little progress we've made on that is now at risk of backsliding, these researchers

• 1:22:32Melissa Murray?

  told me, because, you know, how can women feel comfortable enrolling in a clinical trial if they're taking a drug, a new, a new experimental drug that could cause a birth defect? They become pregnant during the clinical trial accidentally? If they don't have access to abortion, how can they feel comfortable participating in the first place? Yeah. So in addition to affecting research into future medications, you know, another thing you document in the book is that abortion bans actually affect access to existing medication and prescription medications. So people who might not think, right, abortion bans will affect my health care, you actually document patients with conditions varied from rheumatoid arthritis to lupus to Crohn's disease. They're now having trouble getting access to prescription medication.

• 1:23:17Melissa Murray?

  So how is that happening? Yeah. And when I started hearing about this and started looking into it, I found it was so much more widespread than I'd realized. So this is happening in states with bans, it's happening in states with abortion protections. It's happening because sometimes the doctor refuses to prescribe something. Sometimes the doctor prescribes it, but the pharmacist refuses to fill that prescription. Sometimes all of that happens, but then the insurer gets scared and is afraid to cover it. And it's happening for drugs that have the potential to be an abortifacient. And it's also happening for drugs that have the potential to cause birth defects if somebody becomes pregnant while taking it. And I found that these medication denials were happening, like you said, to people

• 1:24:02Melissa Murray?

  who aren't even capable of getting pregnant. One woman had had a hysterectomy. Several were prepubescent children. Some, you know, had proof that they were taking contraception, and this still happened. And this is because, you know, the people in the medical system are so scared of these threats of state enforcement, of these bans, and being accused of sort of aiding and abetting an abortion that, you know, if there was any question about what the drug could do or who was taking it and why, they just thought, okay, I'm just gonna stay, stay away from this. And then, of course, the patients suffer in the process. Yeah. So that is unfortunately all we have time for, listeners. But hopefully this gives you a sense of the importance and scope of the book, which,

• 1:24:45Melissa Murray?

  again, is Side Effects: How Abortion Bans Impact Everyone's Health. You can get the book from our friends at bookshop.org. And the book is officially out next week. Alice, thank you so much for writing this. It really provides a new angle on the idea that abortion rights are never just about abortion rights. They are so interconnected with so much more. So thank you for writing the book. Thank you for taking the time to join us, and thank you for all of your wonderful reporting. Thank you so much. It was great to join.

• 1:25:16Melissa Murray?

  Thanks again to Alice for joining us. Now, on to our favorite things. So I did a lot of reading. So here are some of my recs. Mad Mabel, I Finally Read by Sally Hepworth, I loved it. I also finally let myself read Book Lovers by Emily Henry. I have this real sickness where I will save a book by an author I love when I know I'm going to love it because I'm always so afraid that, like, I'll finish it and then I won't have more to read by that author, and it's very mentally difficult for me. But I finally let myself do it, and I loved it, as everyone said I would. Yeah. So I also really enjoyed Kate Mann on the Call Your Daddy podcast, trying to bring,

• 1:25:56Melissa Murray?

  right, like, understandings of misogyny to the masses, truly doing God's work. Kate Mann is just like, I think, probably one of my favorite academics, just in the entire world. Her book, Life Changing. Also really enjoyed Alice Ollstein's important work, Side Effects, which she just heard me talk about. I also read The Duke by Anna Cohen, which I really liked. And I'm currently reading about a third of the way through and loving it, The Earl Takes All by Lorraine Heath. So I've been reading- Are these all Regency bodice rippers? No, Mad Mabel isn't. Neither is Book Lovers. No, no, no, I know that. The Duke and The Earl Takes All is what I got. The Duke and Earl Takes All is, although The Duke definitely has like a unique kind of twist to it, I would say.

• 1:26:39Kate Shaw?

  Do you read these books in the last week, Leah?

• 1:26:42Melissa Murray?

  Yeah. So what, what's been going on is, in order to help my poor puppy, Stevie Nicks, try to deal with her respiratory issues, I have to lock us in a bathroom, running a hot steam shower for an extended period of time, and then nebulize her after. And so I have all of this time, and like, I can't really work on my laptop because the steam and humidity will destroy the laptop. And so I just read, and that has been one upside of this, and I love it.

• 1:27:09Kate Shaw?

  That's amazing.

• 1:27:10Melissa Murray?

  Yeah. You know, I, I pulled this clip because I wanted to spring it on both of you without warning, and I really do think it is truly in keeping with a, let's say, a theme slash running thing of this episode. So can we play that? And I treat you all to this one, real time?

• 1:27:30Speaker 02

  And if you look at that enough on a screen, it's like, if you look at pornography enough or bestiality videos all day, after a while, like, it's kind of an attractive horse. I get it. I'm not into it personally, but it's not crazy.

• 1:27:42Melissa Murray?

  Yes, that's Tucker Carlson saying-

• 1:27:44Kate Shaw?

  Leah, we need to trigger warnings before we play this stuff. We do, our listeners do.

• 1:27:50Melissa Murray?

  He just suggested he might be a little bestiality curious? That, again, right? Like, OMG, he admitted. I mean, I'm just gonna say, I don't agree with the substance. I do agree with the logic, because when I worked at The Gap in high school, there would be things that I saw when it first came in the store, and I'd be like, that is hideous. I would never wear it. But after six weeks of being around it, you're like, you know what?

• 1:28:12Kate Shaw?

  This is very different, Melissa.

• 1:28:15Melissa Murray?

  Is it? Yes. You're talking about The Gap. I mean, some of the stuff was like genuinely hideous. Not all of it. But I mean, like, by the, I'm just saying, I think his point is, like, you can, over time, become anured to anything. And I think, like, that's how we've been.

• 1:28:32Kate Shaw?

  The fish asks, what's water?

• 1:28:35Melissa Murray?

  Exactly.

• 1:28:36Kate Shaw?

  Or something. Yeah. Yeah. Well, there's some inadvertent wisdom, I suppose, there. Well, thanks, kind of, Leah, I guess, for that.

• 1:28:44Melissa Murray?

  But with no context, the Beast in Me edition.

• 1:28:48Melissa Murray?

  I'm not going to let you get me, Leah. I'm nonplussed. Oh, come on, right? I got you with that Bill Pulte clip. You did get me with that Bill Pulte. That was, oh, wow, you sure did get me with that. That's, that was, yeah, wow. I still think about that sometimes. Like, I was just not prepared for that at all, at all. Kate, I hope I didn't give you nightmares.

• 1:29:07Kate Shaw?

  You did. I wasn't even on the episode, but listening, I was like walking down the sidewalk and nearly fell in traffic. I was so horrified.

• 1:29:13Melissa Murray?

  Yeah, you gotta put a trigger warning on that.

• 1:29:14Kate Shaw?

  I think you did.

• 1:29:15Melissa Murray?

  Sorry. Okay, my favorite things this week. I started reading The Correspondent by Virginia Evans, and it is so, so, so delightful. Everyone told me that I would really love it because I like epistolary novels, but I've been putting it off, much like you, Leah, for reasons I don't- I don't know. But I finally turned to it this week and I really just love it. She like the voice, all of it is just remarkable.

• 1:29:38Kate Shaw?

  I don't generally like epistolary novels, but I do. I did really like this one and I liked teaching my children that word when I read.

• 1:29:44Melissa Murray?

  Epistolary, yeah.

• 1:29:44Kate Shaw?

  Yeah, they didn't know before. So there we go.

• 1:29:47Melissa Murray?

  The other favorite thing that happened, it actually happened last week, right after we taped our last episode. I got the opportunity to walk the red carpet at the New York Film Festival at the premiere of Ava de Vernet's The Fourteenth. And I am featured in the film alongside friend of the pod, Deborah Archer, friend of the pod, Sherrilyn Eiffel, and some other really just fantastic luminaries. Please go and see this movie. It is so fantastic. I'm not even saying that because I'm a part of it. Like, I literally, when I saw the whole thing put together, I was like, this is actually a masterpiece. And Sherrilyn is like the narrator, the spine of the whole thing. It's absolutely fantastic. So it's

• 1:30:30Melissa Murray?

  going to be shown in theaters in November briefly, and then it will begin streaming on Netflix in December. However you decide to do it, brick or mortar or streaming, take yourself to go and see it. It's absolutely fantastic. I also went to the premiere of season four of The Diplomat on Monday, and I love The Diplomat. Deborah Kahn is an absolute genius. And it was so much fun to watch the season four premiere with all of these people in a huge theater. It's just somehow funnier when you're in a big group of people, like things that might not be funny to me at home were just hilarious and fantastic. I can't wait to binge it. So I'm, I've already started binging parts of season four, but I have to

• 1:31:14Melissa Murray?

  wait for my husband to catch up and he better get on it. I just came back from Minneapolis and I wanted to shout out some stricties in the wild. Steph, Rory, Grace, Brock, Dahlia, Maggie James, Sam Logan, Emily, Bobby, and Rose. A special shout out to the great ACS student and lawyer teams in Minneapolis and Black Garnet Books for sponsoring a book signing for me. And I also want to shout out Sarah and Asia, two stricties I met in the wild at the fourteenth premiere. Great to see you all.

• 1:31:41Kate Shaw?

  I really am so excited about the fourteenth. I also, as soon as I saw your pictures, I was like, pulled up Netflix and but it's not until December that we can stream it, but I will definitely be doing that. Or maybe we should all go see it in person before.

• 1:31:52Melissa Murray?

  We should see it in person.

• 1:31:53Kate Shaw?

  Yeah, maybe let's do that. I mean, I know you already have. And Leah and I cannot offer the same kind of red carpet experience that you have already had. But Leah, maybe come to town.

• 1:32:01Melissa Murray?

  We could just like roll out some like red paper and just walk on it.

• 1:32:04Kate Shaw?

  Yeah, stand on it. That's great. Let's do it.

• 1:32:06Melissa Murray?

  Sounds perfect.

• 1:32:08Kate Shaw?

  Okay, I had far less glamorous or impressive a list of activities and books read this week. But I do want to just like scream from the rooftops that everybody should read Michael Lewis's new book, Blockers. So Lewis is like, you know, one of the most incredible nonfiction writers alive. You know, he's written now a bunch of books about these unsung heroes in the federal government. Like, he is single-handedly like the anti-Doge in many ways. But so he wrote this great book, The Fifth Risk, before the second Trump administration. He edited a collection of essays and wrote a couple of them called Who Is Government? Just these incredibly beautiful, powerful portraits of civil servants doing the Lord's work, even with this incredible hostility that people like Donald Trump and Elon Musk are trying to foment against them. And this is his latest offering, again, called Blockers, largely

• 1:32:52Kate Shaw?

  about Doge and its campaign of destruction. So it feels, you know, fitting to recommend this book this week when the court has sort of thrust Doge back into the news and the spotlight. But really, truly, there's an audiobook that is on Lewis's own platform and then there's an actual physical book. So I would, either way, highly recommend it. And I, like Melissa, am also just fresh off an airplane, which is why I think the hijinks level is so high on this episode. But I was actually at William & Mary to do a faculty workshop and got to meet with a bunch of great students from the Institute for Bill of Rights Law and the Election Law Society to talk SCOTUS and the midterms. And it was really awesome to meet and talk to you and thanks to my great faculty escorts through all of that, Alior Larson and Rebecca Green at William & Mary. Okay, little housekeeping before we go. Long

• 1:33:37Kate Shaw?

  Play, Crooked's mini-series about what it will take to win in the South is back on the air. As affordability issues erode Trump's coalition and new southern states have emerged as competitive, like this has been wild to watch in the last few days and weeks, the political stakes are higher than ever. So Jennifer Palmieri from Showtime's The Circus and award-winning journalist Erin Haines are back on the road to take a closer look at what is actually happening on the ground in the South. From the GOP pulling back in battleground districts to the unexpected consequences of gerrymandering, there is a lot to learn about the American South. So check it out before the midterms. Subscribe to Long Play wherever you get your podcasts.

• 1:34:19Melissa Murray?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Raul and Farah Safari. Music is by Eddie Cooper. Our team includes Alona Makovsky, Matt DeGroot, Van Hethcock, Adam Lippard, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

• 1:34:48Speaker 02

  In business, there's the easy way with Staples or the hard way. Hard means- Jen, did you get the weekend specials menus from the printer by any chance? No, they said they'll be done on Monday. But they're weekend specials. Easy means Staples same-day custom printing, where same-day means same day. Hard means- Our new brochures are back from the print place. So how do they look? Well, our logo is brown. But our logo isn't brown. It is now. Easy means custom prints, perfectly printed. Don't choose hard, choose Staples. That was easy. Shop Staples online in-store in the app.

• 1:35:19Kate Shaw?

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm. Have a little taste.