Gender-Affirming Care in the Court’s Crosshairs

After touching on some shenanigans from the Federalist Society’s National Lawyers Convention and Chuck Schumer’s lousy deal on judicial appointments, Leah, Kate, and Melissa preview December’s upcoming Supreme Court cases. The Justices will hear arguments in cases about gender-affirming care for minors, the FDA’s denial of authorization to flavored e-cigarettes, and the National Environmental Policy Act. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:02Speaker 00

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

• 0:13Speaker 01

  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."

• 0:44Melissa Murray?

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

• 0:53Leah Litman?

  I'm Leah Litman.

• 0:54Kate Shaw?

  And I'm Kate Shaw.

• 0:55Leah Litman?

  And on the heels of Thanksgiving, we have a Court Culture segment that will help you relive awkward family encounters with your cray cray relatives. Yes, we will be covering the Federalist Society National Lawyers Convention, so be thankful for that. We will also offer some commentary on the latest development in one of our least favorite segments, which is Democrats' unilateral disarmament on the courts.

• 1:17Melissa Murray?

  After we cover that, we are going to cover the Court's resolution of a case that was recently heard. From there, we will then shift to previewing the cases the Court will hear during this December sitting. And then after that, we will regrettably close with another tragic story about the consequences of the Supreme Court's decision in Dobbs and the restrictive abortion bans that have flourished in its wake.

• 1:42Kate Shaw?

  Okay, so first up, court culture. Last week, Special Counsel Jack Smith filed an unopposed motion to dismiss the federal election interference case against Donald Trump, and, fast on its heels, an unopposed motion to dismiss the obstruction and classified documents case. The motions made clear they were based on Justice Department policy that the Constitution does not permit the prosecution of a sitting president, and the dismissals were not based on, quote, "the merits or strength of the case against the defendant." Both of these dismissals Missiles were without prejudice. So at least in theory, they could potentially be revived at some future date. But I think to quote my colleague Karen Tany's epic foreword to the Harvard Law Review, quoting Justice Elena Kagan and also referencing the biblical prophet Ezekiel,

• 2:25Kate Shaw?

  the cases are dead, dead, dead. The Trump news is awful, but Karen's piece is incredible. So everyone go read it if you haven't.

• 2:34Leah Litman?

  So as we noted when previewing this court culture segment, we know that some of you probably spent Thanksgiving or debated spending Thanksgiving with some relatives who voted for whatever the F the Trump administration 2.0 is going to turn out to be. So for those of you who did that, we wanted to help you relive the memories of trying to spit facts at your red-pilled grandparents. And for those of you who opted out of that experience, we wanted to give you a sense of what you might have missed.

• 3:01Kate Shaw?

  So earlier in November, the Federalist Society held its annual National Lawyers Convention. The convention always offers a series of panels and a banquet with keynote speakers. And this year, one of the panels included our friend, Commander/ Field Marshal of the Left, we will explain, Steve Lattick. Steve, who's now a professor at Georgetown University Law Center, appeared on a panel titled "The Continued Independence of the Judiciary" that was moderated ostensibly by Judge Jim Ho and included as a fellow panelist Judge Edith Jones, both of the Fifth Circuit.

• 3:32Leah Litman?

  Ostensibly is exactly the right word to use for Judge Ho's turn as moderator, because he actually began with remarks unbefitting a moderator, because they were pretty much a perspective, not necessarily moderate in tone. So here's a clip.

• 3:50Speaker 05

  But now let's fast forward to the current conversation. All right. If you listen to commentary coming from academic and cultural elites today, the message is simple. The judiciary is no longer to be trusted.

• 4:05Leah Litman?

  It's almost like the courts are not trustworthy and people are just noting that, but go off, my dude.

• 4:13Kate Shaw?

  So Steve, Steve Lattick, during his remarks, talked about how courts depend on the elected branches, which means courts should be mindful of the positions of the elected branches and also be mindful of the views of the country, which of course selects who is in the elected branches. So he was emphasizing that the independence of the courts does require courts to have some minimum amount of public support.

• 4:33Leah Litman?

  And then Judge Jones. So Here is how she opened her remarks.

• 4:40Speaker 06

  I hope to respond here today in defense of my colleagues, Fifth Circuit District Judges, who came under relentless attacks during the last several years by certain professors, including notably Professor Vladek, for what he considers close to unethical situations in litigation, which have existed since the dawn of judging.

• 5:08Leah Litman?

  And then she closed her own remarks by suggesting that it is judges who are disadvantaged when there is a disagreement between a judge and a private citizen, which you can hear here.

• 5:23Speaker 06

  So it's often said that a fight between a lawyer and a judge is not a fair fight. But normally, this is the first opportunity I've had to speak up on behalf of my fellow judges in the district courts of the Fifth Circuit, because it is not a fair fight for those who have a podium, an unregulated podium in the press and the law blogs and so on, that they can use to cast these illegitimate aspersions.

• 5:57Leah Litman?

  And then things got really weird during the discussion between the panelists. So here's another clip.

• 6:04Speaker 06

  I've studied Professor Vladek, and this is a file of his articles, amicus briefs, and tweets regarding the process of judge picking that he criticizes so heavily. And he has said to me once before, and I'm sorry, this is not ad hominem, Professor, it is really about the nature of the-- Comments that are made. But he has said before to me that it is not personal. He doesn't criticize the judges on a personal level. Well, I'll read you a few tweets. November 18th of 2022.

• 6:49Speaker 06

  Someone says, isn't judge shopping a practice as old as the sun? Professor Vladic says, nope, forum shopping is, but literally picking a single judge is a relatively new phenomenon, available only in a handful of current primarily red states. Mr. Vladic said in, I think, April of 23. Just tie these threads together. He mentions a person in the Texas S P's office. And then he says, the then E I C who allowed Kazmerek to pull this nonsense is one of

• 7:31Speaker 06

  the lead lawyers steering Texas challenges. On another one, he says.

• 7:36Speaker 07

  You might note the context in which I said that, which was about something that happened before he was a judge.

• 7:43Speaker 06

  I don't think that's the case.

• 7:44Speaker 07

  Yes, it was about a dispute over a Law Review article that was changed.

• 7:48Speaker 06

  You're still saying you're referring to the judges pulling nonsense. It's part of a pattern. I've just got three more.

• 7:58Speaker 07

  I do appreciate Judge Jones making my point about how we're shouting past each other and not engaging on substance.

• 8:04Speaker 06

  We're up to three Texas judges who have no problem with Texas judge shopping. Here's Judge Hendricks denying D O J's motion to transfer. One of the articles, Professor Vladic.

• 8:16Speaker 07

  What was the attack in that tweet?

• 8:19Leah Litman?

  So let's just walk through what happened here because I think you can only fully experience this by watching the video. Judge Jones came to this panel with a manila folder that included printed out tweets from Professor Vladic. And that's what she's waving around, opening up and reading from. Like she has binders, binders full of tweets.

• 8:44Melissa Murray?

  I don't think this is a Mitt Romney reference, though. I think she was channeling Alexis Carrington Colby from Dynasty, standing on the balcony, brandishing receipts.

• 8:55Leah Litman?

  Exactly. Either that, or as other people suggested on social media, maybe this is like a Real Housewives reunion kind of shtick, because they too will come to reunions with printed out transcripts of their fellow housewives Instagram posts, or comments, or podcast interviews. You know, Janaye from Love Island, USA, did the same. But, you know, I have-

• 9:21Kate Shaw?

  I've seen zero of these. Do they do these in like manila envelope or folders?

• 9:24Leah Litman?

  Not always manila folders, but yes, folders.

• 9:28Melissa Murray?

  No one has a red weld.

• 9:30Kate Shaw?

  Some of them are. You guys have taught me that.

• 9:32Leah Litman?

  Yeah, some of them are lawyers.

• 9:33Melissa Murray?

  One or two of them are, but there are no red welds.

• 9:36Leah Litman?

  But, I mean, if this is like Real Housewives, this would be a Real Housewives that I would not watch. And that is-

• 9:45Melissa Murray?

  You would not watch The Real Housewives of Austin, Texas?

• 9:49Leah Litman?

  That is basically the meanest possible thing I can say about a potential reality TV entrant. I wouldn't watch it. I mean, I'm good with The Real Housewives of Dallas. Zero out of 10, yeah, would not watch. Yeah. But the subtext of all of this is that criticizing judges hurts their feelings. And obviously, anything that hurts their feelings is wrong. It's almost as if we should be asking who the real snowflakes are at this point.

• 10:15Melissa Murray?

  Not surprisingly, the Republican grievance machine decided to latch on to this exchange and write it like a bucking bronco for about a couple of days. In fact, it even made its way to the floor of the United States Senate. So, let's roll the tape.

• 10:33Speaker 00

  At the latest Federal Society Convention, Judge Edith Jones of the Fifth Circuit was on a panel with one of the field marshals of the academic project to undermine the judiciary. Any of our colleagues who know Judge Jones wouldn't be surprised to hear that in this academic context, she let the law professor have it. When he complained that this is unfair, and that just he wanted to talk about abstract legal principles of judicial integrity, she pulled out his tweets.

• 11:13Speaker 00

  Integrating conservative judges in Texas. The reaction from liberals in the legal academy, although I repeat myself, was outraged. "How dare," they said, "a judge give one of their own the sort of tongue lashing they give conservative judges every day." Well, bullies always cry foul when they're the ones who get punched right in the nose. So, kudos to Judge Jones for standing up for her colleagues. She proved yet again why she's the lion of the bench.

• 11:55Melissa Murray?

  Your tax dollars, ladies and gentlemen, at work. There we are.

• 12:00Leah Litman?

  Well, I mean, congratulations on the promotion, Commander. As Steve noted in a tax exchange, apparently Field Marshal is a higher rank than Commander in some places, so good for him, I guess. I don't know.

• 12:14Kate Shaw?

  I mean, to me, what really jumped out about all of this was that the right is about to control every organ of the federal government, and yet the victim mentality burns so white-hot, and that's among Fed Soc senior members and Republican Senate leadership. Like, it is just wild to observe. And I also think the style of politics that they engage in requires an adversary, and right now, like, there's not a lot in government to look to as adversaries, since they're going to have a lock, at least at the federal level. And so, obviously, there are other adversaries that they have generated. The media is, you know, sort of front and center, but the academy is also really up there.

• 12:59Kate Shaw?

  And I think you sort of saw that they decided to elevate this attack on Vlade, the way they did. Again, to a McConnell's speech suggests to me that, yeah, law professors are in the crosshairs.

• 13:09Leah Litman?

  Yeah, I mean, I think this is very much consistent with, we've talked about Teneo, which is, you know, the project to make a federal society for everything, you know, not just to take over law and government, but media, academy, arts, culture. And that's very much of a piece with this victim mentality that you were finding.

• 13:31Melissa Murray?

  I do think the culture piece is going to be hard. I mean, it's really going to be difficult to make Hulk Hogan and Kid Rock actual high culture. I mean, this is not Audra McDonald and Lin-Manuel Miranda happening.

• 13:44Kate Shaw?

  Well, we don't have to make it high culture. It just needs to have mass appeal.

• 13:47Melissa Murray?

  Like I said, Kid Rock and Hulk Hogan.

• 13:50Kate Shaw?

  I mean, you don't have to convince me, but I'm just not sure that I'll share our tastes, Melissa.

• 13:55Leah Litman?

  Well, what I was going to say is maybe Judge Jones and/or Senator McConnell or someone else can file a RICO case against Steve Vladek for, you know, too harsh a diss track for being too mean to him. Yeah, right? That's what all the cool pop stars are doing these days. Champagne happy.

• 14:15Melissa Murray?

  Do you know what we're talking about, Kate?

• 14:17Kate Shaw?

  I'm familiar with Drake. I am. Look at that.

• 14:21Melissa Murray?

  Like, I'm familiar with Drake. We meet up at the Starbucks on the corner of 57.

• 14:27Kate Shaw?

  Not that kind of familiar.

• 14:29Leah Litman?

  So, back to the Federalist Society National Lawyers Convention. At another panel, this one titled, "What is the Future of Administrative Law?", question mark. Spoiler, nothing, not great. That wasn't in the title. But anyways, at this panel, the moderator, Columbia Law Professor Philip Hamburger, led a toast to the takedown of the administrative state, which itself is notable, but so too is who participated or seemingly participated in the toast because other panelists included D.C. Circuit Judge Naomi Rao and Florida District Court Judge Katherine Meisel. And from the audio, as well as some limited video, it seems like they accepted the champagne being poured into their glasses.

• 15:11Leah Litman?

  And it at least sounds like at least one of them, maybe both of them, says here, here at the end. It's a woman's voice and it's audio, so, you know, it seems likely to be one of the panelists. So, listen to this thing.

• 15:24Speaker 05

  All of this amounts to the greatest setback to administrative power at least since 1935, perhaps ever.

• 15:33Speaker 05

  Gary Lawson, I don't know if he's in the room. Are you there? There you are. Gary Lawson. Yes, one of the leaders in this.

• 15:43Speaker 05

  Bravo, Gary. Gary has recounted the rise and rise of the administrative state. And I'm delighted, with his help, we now can see the tipping point when it starts to fall and fall. Won't that be jolly? Of course, this is just the beginning. As Churchill said, this is not the end. It is not even the beginning of the end, but it is perhaps the end of the beginning. And that puts me... Forgive me.

• 16:10Speaker 05

  That puts me in a celebratory mood.

• 16:24Speaker 05

  I'm wondering about this, yes. Yeah. There you go. Thank you. Thank you. I've never been asked to drink on a panel before.

• 16:35Speaker 05

  So I have a... Here, I have the microphones down here. Wait. Our distinguished colleagues are all...

• 16:43Speaker 05

  Yes, I... The glasses are full, but I want them to overflow, right? May our glasses all overflow. I have a toast. And the toast is a long one. To Jarkasi, to Axon Cochrane, to Cornerpost, to Loper Bright, to Relentless, and all the other wonderful cases. And to all of you. To all of you who seek a revival of our constitutional freedoms. Bravo.

• 17:10Melissa Murray?

  Here, here. Cheers.

• 17:16Melissa Murray?

  Woo! I'm just gonna say, I've gone to a lot of ACS conferences. No one ever popped a magnum of champagne or a bottle of champagne and made a toast.

• 17:27Leah Litman?

  Well, that's because they're not a debating society that doesn't take positions. And that is just about the exchange of ideas and has no real substantive or policy views.

• 17:37Melissa Murray?

  Some ideas are best shared over champagne.

• 17:40Leah Litman?

  Indeed.

• 17:41Kate Shaw?

  There will be arguments about specific constitutional questions involving agencies that these sitting judges will be tasked with deciding in an impartial manner. Like, I wish you would like to know...

• 17:52Melissa Murray?

  Are you suggesting these judges are untrustworthy?

• 17:54Kate Shaw?

  I'm beginning to think that, Melissa.

• 17:55Melissa Murray?

  What the fuck is wrong with you, Kate?

• 17:56Leah Litman?

  That's treasonous. You are personally attacking judges. Judge Jones is gonna bring that RICO case.

• 18:02Melissa Murray?

  Can't a judge sit on a dais and drink some champagne while toasting the demise of an administrative agency? And why do people have to read something into that?

• 18:13Kate Shaw?

  Right now, what we are doing is bullying them on our podcast.

• 18:16Melissa Murray?

  Yeah, toasts are not unconstitutional, Kate.

• 18:19Leah Litman?

  Why are you anti-free exchange of ideas?

• 18:23Leah Litman?

  It's really mystifying. But, you know, it does seem like from this toast, they really do want to party like it's 1935, which again is the Great Depression.

• 18:34Melissa Murray?

  Literally coat themselves in Panama oil and shuck their poultry chicken feathers and just get down.

• 18:40Kate Shaw?

  We'll get there at the end of the episode, but yeah, that's coming.

• 18:43Leah Litman?

  Yeah, no, I wasn't there last week, Melissa, when you were talking about the price of eggs. But.

• 18:49Kate Shaw?

  Milk, it was the price of milk.

• 18:50Leah Litman?

  Price of milk, okay. Well, maybe it's also the price of eggs, who knows? But, you know, maybe the eggs will be free because they're gonna be free from health and safety regulations and maybe also not free from salmonella. I don't know. So, fun times.

• 19:09Melissa Murray?

  Little bird flu for everyone.

• 19:13Melissa Murray?

  We should also note, and regrettably, we do not have the audio of this to share with you listeners, but several outlets, including the New York Post, liberal bastion that it is, and The Hill, have noted that Justice Gorsuch, in his keynote remarks at the convention, talked about, wait for it, Peanut the squirrel.

• 19:37Kate Shaw?

  And for those of you not deep in the MAGA verse, and who also did not just read the Wikipedia page the way I did, Peanut was a male gray squirrel who was seized along with a raccoon.

• 19:51Melissa Murray?

  Okay, like, I hate this part, the along with the raccoon. Like, say his name, Kate. His name is Fred. It was Fred the raccoon.

• 20:00Kate Shaw?

  But did he have like 800,000 followers on Instagram?

• 20:03Melissa Murray?

  Exactly.

• 20:03Kate Shaw?

  I think that's why no one knows the raccoon's name.

• 20:06Melissa Murray?

  No, I think it's more MAGA erasure. Say Fred's name, okay?

• 20:10Kate Shaw?

  So Peanut, I don't know if Gorsuch did, but I'm sure.

• 20:13Melissa Murray?

  I know, I don't think he did.

• 20:15Leah Litman?

  Justice for Fred too.

• 20:17Kate Shaw?

  And Fred were taken from their owner's home and reportedly, actually, I don't know if Fred was taken and euthanized. See, again, more Fred-erasure.

• 20:27Melissa Murray?

  He was. This is why, you know what?

• 20:29Kate Shaw?

  Wow. Wow. I'm so sorry.

• 20:32Leah Litman?

  You think the New York state officials showed up at this person's apartment, saw a live squirrel and a raccoon and said, "I'mma take just the squirrel"? Of course they took both. Are you serious?

• 20:41Kate Shaw?

  I didn't, maybe. No, I don't think they saw both. I think they went and took the squirrel. I only just learned from my Wikipedia perusing that there was also a roommate who was a raccoon. Fred, who I don't even think is named in the Wikipedia page, I'm so sorry to report.

• 20:55Leah Litman?

  Yeah.

• 20:56Kate Shaw?

  In any event, I guess both of them were seized and during the election became, or at least Peanut did, a rallying cry for Republicans against, I don't exactly know what I gather, government overreach. Probably the paperback edition of Neil Gorsuch's book about government overreach will have a prologue about Peanut as I say that. Of course, that's gonna happen. But I guess government overreach, justice for meme makers, that's the other thing I think maybe Peanut has become a rallying cry for. And as I mentioned, Peanut did have an Instagram account and I'm pretty sure also an OnlyFans account, which I don't totally understand, but Wikipedia tells me he did. Anyway, the fact that Gorsuch was...

• 21:39Leah Litman?

  Don't kink shame people, kid.

• 21:40Kate Shaw?

  I was mentioning the account and Peanut contained multitudes, clearly.

• 21:45Melissa Murray?

  Well, so did Fred. And I just, wait, let me, back to Fred for a moment. We can confirm WRGB, I'm not even making this up, RGB from Albany has confirmed that both Peanut and Fred were seized and both were euthanized. So, justice for Fred too.

• 22:03Leah Litman?

  The point is, if you are like red-pilled and in the MAGA-verse, Peanut the squirrel is top of mind and the thing you reference.

• 22:14Melissa Murray?

  And why not Fred?

• 22:15Leah Litman?

  Well, but again, the fact that he does Peanut and not Fred suggests it's coming from the MAGA-verse, which had focused on Peanut. And it just underscores the milieu in which these justices exist, right? Like, it is MAGA-verse.

• 22:30Melissa Murray?

  I'm not debating that. I'm sold on that. Like, that was obvious. That was obvious. The moment she said Peanut, I knew we were talking about Neil Gorsuch's media diet. I am simply suggesting, who is erased here and why?

• 22:42Leah Litman?

  Yes.

• 22:42Melissa Murray?

  What happened to Fred? Seriously, Kate, get back on that Wikipedia page. You can update it.

• 22:49Kate Shaw?

  I didn't. I am not personally responsible for seizing and

• 22:52Melissa Murray?

  Everyone can update. That's the whole point of Wikipedia.

• 22:55Kate Shaw?

  In the erasure. So, all right. Well, so I think we did learn something about Neil Gorsuch, which is that as terrible as he is on many issues, I guess I did not realize quite what a kind of MAGA silo he resides in. I don't know if he always did, but certainly that seemed to be a tell that he now does.

• 23:12Leah Litman?

  Yeah, I think we got a preview of that last term when he asked about the hypothetical of Representative Bowman pulling the fire alarm and whether that could lead to a prosecution under the obstruction statute that the January 6thers exactly had been prosecuted under.

• 23:28Melissa Murray?

  The red pilling of Justice Gorsuch was like the least surprising aspect of this story to me. So, in any event, that's what's going on on the right. And that's what the Republican-appointed judges and justices are doing. It's just all champagne, all manila envelopes, all peanut the squirrel all the time. But I just-

• 23:49Leah Litman?

  What if Shane there fucked in the head? That was the Champagne Problems reference.

• 23:53Melissa Murray?

  Very nice.

• 23:54Leah Litman?

  Thank you. I have no reason to live now that I have no more Eras Tour to go to. So I'm struggling.

• 24:00Melissa Murray?

  You're all out of us.

• 24:03Leah Litman?

  I'm struggling fast.

• 24:04Kate Shaw?

  We need you.

• 24:14Melissa Murray?

  All right. But folks, this podcast plays it straight down the middle. We are equal opportunity destroyers. And so let's now turn to see what the Democrats have been doing. And it hasn't been great either. So as we alluded to at the top, the staff of Senate Majority Leader Chuck Schumer announced that Democrats had negotiated a quote unquote "deal" with Republican senators to withdraw from consideration, or at least not move forward with the nominations of four Court of Appeals judges in exchange for the Republicans allowing the confirmation of around 12 district court judges. Senator Schumer defended this quote unquote "deal" by saying the four Court of Appeals nominees did not have the votes

• 24:59Melissa Murray?

  to be confirmed. What do we think about those?

• 25:03Leah Litman?

  I don't understand. You're in the majority. Why do you need to make a deal with the minority to confirm judges? Like, act like you're in the majority. And I understand that at least one of the Court of Appeals nominees they are planning not to move forward with, Adil Manji, did not have the votes. He was a nominee to the Third Circuit, who had been subject to the horrific Islamic-phobic attacks. But it was very unclear to me that the other nominees did not have the votes to move forward.

• 25:32Melissa Murray?

  I actually do think that Carla Campbell, who had been nominated to the Sixth Circuit, had the votes. She's a prominent labor lawyer.

• 25:40Leah Litman?

  Yeah.

• 25:41Kate Shaw?

  And the main nominee as well, I think that there was some question about Park.

• 25:44Leah Litman?

  Yeah, Julia Lopez.

• 25:45Kate Shaw?

  Yeah, yeah, Lopez, I think, was also fine. Or at least that was my understanding. So I, too, am completely flummoxed by this move. It sounds to me, for what it is worth, like, there was just some murkiness in some of the reporting. So maybe this is not a complete fait accompli. That is, we do still have the whole month of December. They do still have the majority. They're obviously not going to be there the whole month of December. But they can be there for some of it. They could be there for all of it, if they wanted to. So I'm not sure, you know, that there's zero possibility of reopening this deal, at least as to some of these Court of Appeals judges. And also, I do think this could be an area where public pushback, which I think there has been a lot of, because this deal looks insane, might be constructive. So I'm just not sure.

• 26:30Kate Shaw?

  I think it might be.

• 26:32Leah Litman?

  Well, it's like the opposite of the saying, you know, the beatings will continue until morale approves. It's like, we're going to continue to just fold, right? And give in to whatever Republicans want.

• 26:43Melissa Murray?

  Until we actually become the minority. We're going to act like a minority until we are a minority.

• 26:48Leah Litman?

  Right. It's so frustrating and mind-boggling, because, you know, foregoing the Manji seat, for example, will give Republicans a majority of appointees on the Third Circuit, I'm pretty sure. It loses the opportunity to change the majority on the Sixth Circuit in the near future. And, again, assuming, Kate, like, your optimism, right, doesn't hold, and they don't actually try to move forward with some of these nominees. I mean, hopefully, some of the Court of Appeals judges will rescind their retirements or announcements that they're taking senior status. But it's just...

• 27:17Melissa Murray?

  Because otherwise, not moving forward leaves these seats available for the Trump administration to fill. Yes.

• 27:23Leah Litman?

  Right.

• 27:24Kate Shaw?

  Appeals court seats are so goddamn important. And the Supreme Court, obviously, that's our focus on the podcast, but takes a very small subset of the cases that are brought in federal courts. And given that, there just aren't a lot of checks on the incoming Trump administration in DC, actually, federal appeals courts are going to be one of the lone remaining bulwarks, such as they are, and just willingly handing over some of these potentially decisive seats to Trump to fill seems completely insane to me.

• 27:53Melissa Murray?

  Well, so they did push through some district court seats. So, I mean, okay, maybe we should focus on the positive and maybe shout out some of these great new district court judges.

• 28:02Leah Litman?

  We now have a Judge Amir Ali on the DC, DC District Court.

• 28:07Melissa Murray?

  Fantastic. Sarah Russell in the District of Connecticut, also great. So, I mean, again, it wasn't terrible, but like, wow, why are you negotiating with yourselves at this point? Like, you have a majority, act like it.

• 28:22Leah Litman?

  The most sympathetic reconstruction is Schumer knows either or both Sinema and Manchin are not going to vote for these nominees, and so that's why they did it, right? Like, I mean, Sinema didn't vote for all of the district court nominees, for example. But again, it seems, there was no indication that Campbell and Lipez, right, were risking...

• 28:44Kate Shaw?

  No. And also, even if you do lose those two, a lot of Republicans were not in DC. You don't actually need more than 50. You just need more votes for than against. So, it did seem like the math was there because there were like Republicans, Senator Cruz, like, in Texas, Vance wasn't in town, there were a bunch of people.

• 29:02Melissa Murray?

  Texas, Cancun, come on, man.

• 29:04Kate Shaw?

  Kidding. But either way, I just don't understand, and this is like why I have this kernel of hope that sanity will descend.

• 29:13Leah Litman?

  Texas or supply closet, or Cancun. Either way, right, he's not on the floor.

• 29:19Melissa Murray?

  Yeah. So we did get an opinion from the court, sort of. A couple of episodes ago, we covered Facebook versus Amalgamated Bank, which the court has now dismissed on the view that sorcery was improvidently granted. The case concerned whether a securities fraud class action against the social media giant Meta could go forward on the theory that Facebook's disclosures improperly downplayed the risks of a data breach to shareholders. The case arose in the aftermath of the highly-publicized incident in which Cambridge Analytica harvested and then exploited for profit the data of millions of Facebook users. In its shareholder disclosures, Facebook disclosed the risk of future hypothetical data breaches,

• 30:03Melissa Murray?

  but shareholders argued that this violated securities law because the company knew that Cambridge Analytica had already exploited the user data. When the breach did become public, Facebook's stock plummeted. As is the case with Digs dismissed as improvidently granted, the court did not really explain itself. Instead, it just issued an unsigned per curiam order dismissing the case. Still, this resolution is perhaps not entirely surprising. At oral argument in the case, many of the justices, including the more conservative justices, seemed really skeptical of Facebook's argument. What this does mean is that the Ninth Circuit's ruling below stands,

• 30:45Melissa Murray?

  and that means the shareholder suit against Meta will proceed. So, an opinion of sorts.

• 30:52Kate Shaw?

  All right. Well, with that, should we move on to what's on tap for this upcoming Supreme Court session?

• 30:56Melissa Murray?

  Sure. Just moving from strength to strength. Let's go.

• 31:00Kate Shaw?

  Okay, and first is a big one. United States versus Kremety, which is a huge case about Tennessee's ban on gender-affirming care for minors. The only question the court is reviewing in this case is whether the ban discriminates on the basis of sex, such that the law is subject to more searching review under the equal protection clause.

• 31:17Melissa Murray?

  Because the court is only reviewing the equal protection issue, it's really important to situate this case and this question alongside the court's recent decision to overrule Roe versus Wade in Dobbs. Dobbs rejected the idea that abortion restrictions discriminate on the basis of sex. And I should note, most weeks, we get at least some listener questions along the lines of, hey, can't you argue that these abortion bans and the fact that they are literally killing women are a species of sex-based discrimination? Well, yes, listeners, you could make that argument. And in fact, Riva Siegel, Serena Maieri, and I did and submitted an amicus brief saying as much in the Dobbs case. But Justice Alito had already thought out a rejection of this argument, and he did so out of hand in Dobbs.

• 32:02Melissa Murray?

  And this is the best part. He rejected this argument by citing Gudaldig versus Aiello, a decision that concluded that discrimination on the basis of pregnancy is not sex-based discrimination for purposes of the Equal Protection Clause. Incidentally, Gudaldig was decided in 1974, a year after Roe versus Wade. So this is peak Trolito, citing precedent and then overruling a precedent, which is fantastic. And even more interestingly, Congress thought that the court's decision in Gudaldig was so wrong-headed that they subsequently enacted the Pregnancy Discrimination Act of 1978 to make explicit that for purposes of Title VII, pregnancy discrimination is a species of sex-based discrimination.

• 32:45Melissa Murray?

  That obviously does not address the constitutional issue that was decided in Gudaldig, but it did address the statutory issue that was decided a few years later in another case called Gilbert. All of this to say is that you listeners are not wrong or off-base, and this argument isn't wrong or off-base. It's just not in favor with either past or current courts and their impoverished understanding of equality and the Equal Protection Clause.

• 33:11Leah Litman?

  And I think immediately after Dobbs, there was a question about whether Dobbs' stingy conception of the Equal Protection Clause, that is, it's not super persuasive rejection of the Equal Protection claim, was about abortion exceptionalism, that is, the court's hostility to abortion.

• 33:27Melissa Murray?

  may have driven the legal analysis and manipulated the law. But the question in this case, Skrmetti, is whether the court's slapdash approach to equal protection and gender and sex discrimination in Dobbs will extend beyond that case Dobbs and beyond abortion.

• 33:43Kate Shaw?

  So Gudaldig and Dobbs illustrate how this court has enabled discrimination in equal protection or sex discrimination cases by insisting that these cases are not about sex discrimination at all, but instead about biological differences, right? Pregnancy or the termination of a pregnancy. But of course, it's possible to grant the biological fact of pregnancy, but also to grasp that there were gender-based stereotypes that seem pretty relevant to the legal questions in both of those cases, and that the distinctions at issue in those cases, right? The pregnancy and abortion cases were quite related to sex.

• 34:17Melissa Murray?

  Here, the law at issue does seem to involve a very straightforward distinction on the basis of sex. That is, it is an instance where individuals are treated differently and can get different kinds of medical treatment based on their sex assigned at birth. So, for example, if you are assigned a woman at birth, you cannot get hormone therapy that ordinarily would be prescribed for a man. So you could not get testosterone treatments. And by the same token, if you were assigned a male at birth, you couldn't get hormone treatment that ordinarily would be assigned to a woman. So, for example, estrogen therapy. So it's pretty straightforward.

• 35:02Melissa Murray?

  You can't get the kind of hormone therapy that would be necessary to affect a gender transition because of the sex that you were assigned at birth. Now, the question here is whether this very straightforward distinction is even going to matter to this court, or whether the court is simply going to paper over that kind of sex-based discrimination by claiming that what's really going on here is something different, like gender identity or medical care, which is the same kind of move that they did with regard to the sex equality arguments in Dobbs, where they said, this was a case about abortion, not about sex-based discrimination. An earlier court did a very similar thing with Gudaldig, where they said, this isn't

• 35:45Melissa Murray?

  a case about sex-based discrimination, it's a case about biological differences and pregnancy. So that's the question that I'm going to be looking for as the case proceeds.

• 35:54Leah Litman?

  So as the federal government's brief in the case explains, quote, "The Tennessee law declares that the state has an interest in encouraging minors to appreciate their sex and in prohibiting treatments that might encourage minors to become disdainful of their sex," end quote. And those are direct quotes from the state law, right? They are sex conscious and sex based.

• 36:13Kate Shaw?

  Yeah. And just as you were just saying, Leah, and Melissa was alluding to a minute ago, let's just maybe talk about explicitly what is in the statute. So it is sex based in the clearest of possible terms. So covered treatments are banned if they are prescribed, quote, "for the purpose of, quote, 'enabling a minor to identify with or live with a purported identity inconsistent with the minor's sex,' or, quote, 'treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.'" But those exact same treatments are entirely unrestricted if they are prescribed for any other purpose, like treating delayed or early puberty. So again, as Melissa was saying, that means a teenager whose sex assigned at birth is male can be prescribed testosterone, but a teenager assigned female at birth cannot. So I just don't understand how anyone with

• 36:58Kate Shaw?

  a straight face can say that that is not a sex classification.

• 37:01Leah Litman?

  Again, usher meme, "Watch this, right? They're gonna do it."

• 37:06Melissa Murray?

  It's just about medical treatment, Kate. Rational basis.

• 37:08Leah Litman?

  Exactly. Yeah, no, I mean, they're just gonna say, "We can describe it, right, in different terms. This is about gender identity, even though it uses sex and that's partially what's gonna do it here." Or honestly, a part of me is really worried, they're gonna do some weird history and traditions analysis and say, "This sort of distinction didn't trigger heightened scrutiny at the time or something and therefore doesn't do so now," in which case it would lock in all sorts of discriminatory treatment. I mean, who knows, right?

• 37:42Kate Shaw?

  But it would be so crazy. I mean, of course, they've done that a lot in the substantive liberty context, but they typically haven't in the sex cases.

• 37:47Leah Litman?

  Obviously it's nuts to do so, in equal protection and sex discrimination in particular.

• 37:50Kate Shaw?

  So it's certainly a move they could try to justify making, but it would be another enormous distortion in the doctrine to take that line of cases, again, they're about liberty, and use them here in the sex classification context.

• 38:01Leah Litman?

  And I think it also papers over the distinction between the substantive due process issue and

• 38:09Melissa Murray?

  What the equal protection clause is supposed to do. I mean, so it may be the case that due process is retrospective. And, you know, I guess now we're doing only history and tradition with regard to that. But the equal protection clause was supposed to be prospective, right? I mean, it's forward looking and it is intentionally disrupting the past so that we no longer have enslavement, disrupting the past so we no longer live with the discrimination that once was OK, because it's now determined to be inconsistent with equality. And so it just seems like a very, not just thin conception of equality, but just a wrong conception of what the equal protection clause is supposed to be doing.

• 38:48Kate Shaw?

  Yeah.

• 38:49Leah Litman?

  Yeah. So I think other background that's important to understanding this case and its stakes. The court is hearing this case on the heels of a pretty intensely anti-trans campaign by Republican candidates, including the Republican presidential candidate. And I think there's a real concern about what that, that is the campaign and a decision in this case could embolden governments to try and do if the Supreme Court gives them the green light, you know, on the heels of that campaign. I guess predictions, kind of. I think it is really just how ugly the case is going to get. As I suggested, maybe it will resurrect. You know, I can call what is happening something other than sex discrimination and therefore I will deny that it is sex discrimination at all.

• 39:34Leah Litman?

  I am worried we are going to get some really awful historical parallels where they try to analogize gender-affirming care to, you know, abhorrent instances of medical experimentation. Or some of the justices will write separately to indicate that. It's just, I'm very concerned here.

• 39:54Kate Shaw?

  Yeah, I mean, I wonder whether the conservative justices, Alito has talked previously about, right, Buck versus Bell, which we talked about on this podcast before, a case permitting, right, the involuntary sterilization. And they think that case was, you know, an egregious error. And it was, of course, but on their own logic, I'm not sure the history and tradition really is on their side. They're just pro-natalist and they think that anything that interferes with reproduction is a problem. But that's a substantive due process kind of view, right? Not something I don't think that they could justify is deeply rooted in history and tradition. So I think that's, we will see if they try to revive cases like that. I also just think, as I said, I don't see how you can say with a straight face that there's no sex classification here.

• 40:35Kate Shaw?

  But I also think that Tennessee is trying in this case to basically prevail on what they call an equal treatment rationale. So they basically say the law treats everybody equally because it prohibits transition-related care for all, regardless of sex. But like another sort of page of history, that is exactly what the state of Virginia said in defense of its ban on interracial marriage in Loving versus Virginia. It said, because, quote, "its miscegenation statutes punish equally both the white and black participants in interracial marriage, the statutes basically don't discriminate on the basis of race." The court rejected that justification there. And it seems hard for me to see how they could accept the same kind of logical structure

• 41:17Kate Shaw?

  of argument here without calling into question that part of Loving.

• 41:21Melissa Murray?

  Well, Kate, I think we can begin to see the kernels of a new logic emerging where we draw distinctions between sexual orientation and gender identity and race. So I think we've already seen some of those lines being drawn in cases like Masterpiece Cake Shop, 303 Creative. The case that you're referring to, Loving, Kate, not only rejected that logic, it rejected the case in which that logic had been affirmed by the court, which was an 1883 case called Pace versus Alabama, where the court upheld on, again, an equal treatment logic Alabama's anti-miscegenation law. If they were to credit that logic, they'd actually be resuscitating a previously discredited

• 42:05Melissa Murray?

  precedent, which I don't put it past them.

• 42:25Kate Shaw?

  Let's move on to the other cases the court will hear in this sitting. The court will also hear the argument in FDA versus wages and White Lion Investments, an important public health case that also concerns how aggressively the court is going to use the arbitrary and capricious standard by which courts evaluate much agency action under the Administrative Procedure Act. So, the case arises out of the FDA's denial of authorization to market certain e-cigarette flavors. And part of the FDA's rationale in these denials was that certain flavors were more likely to appeal to children, and so the FDA declined to approve them, although it did approve other e-cigarettes. And I don't know if you guys looked at the list of some of these flavors in the briefs? They're pretty wild. And it does seem as though, yeah, these seem pretty attractive to children. So, let me just tick off a few examples of the flavors seeking approval.

• 43:09Melissa Murray?

  Eh, not all of them.

• 43:10Kate Shaw?

  Okay, there's a range. Pink Lemonade, Rainbow Road, Chewy Clouds Sour Grape, Jimmy the Juice Man Peachy Strawberry, Cloud Science Alpha, which apparently tastes similar to cotton candy, Cloud Science Epsilon, I don't know what that one tastes like, Creme Brulee, Killer Custard, Strawberry Parfait, Suicide Bunny Mother's Milk and Cookies?

• 43:30Melissa Murray?

  Mother's Milk and Cookies, sounds like it could have been used at our last episode, but...

• 43:35Kate Shaw?

  That's true.

• 43:36Melissa Murray?

  It doesn't sound like the youth will like it as much.

• 43:39Kate Shaw?

  Okay, stipulated. But the rest of them, I mean, my kids would be into something called Chewy Clouds Sour Grape, I am sure.

• 43:45Melissa Murray?

  So, follow you for more parenting tips.

• 43:49Leah Litman?

  But, okay, so I agree with that. You know, some of the flavors like Creme Brulee, I don't know how kid-oriented that is, but part of the problem is, is not all people grow out of childlike obsession with sugar, specifically me. I exist on sugar. Like, the sweeter the candy, the cookies, the dessert, the more I want it. When we embarrassingly go and shop for wine and people ask, well, what sort of...

• 44:18Melissa Murray?

  You like a Moscato, don't you?

• 44:19Leah Litman?

  I love Moscato, it's my favorite.

• 44:21Melissa Murray?

  I know you do.

• 44:21Leah Litman?

  And then, but, okay, even worse, people will ask what sort of Moscato you like, and I say... More cloying sugar, the better. Right? Like, I want that cloying sugar taste.

• 44:32Melissa Murray?

  I'm going to recommend to you Barefoot Pink Mascot. No, amateur. Barefoot Pink Mascot, like.

• 44:38Leah Litman?

  I've tried that. Uh, it's not quite as sweet as I like it, which is

• 44:42Melissa Murray?

  Are you fucking kidding?

• 44:43Leah Litman?

  Mascot. Again, I, I don't do caffeine. I do sugar and I love sugar.

• 44:49Melissa Murray?

  Oh, my. Okay. Um, back to the e-cigarettes.

• 44:55Melissa Murray?

  The question in this case is whether the FDA's denial of authorization was arbitrary and capricious, or instead whether it was supported by the facts. That question masks some very interesting background dynamics in this case, and also some potential administrative law issues that the court might decide to wade into. So what's going on in the background of this case? Um, well, one thing is that the FDA denied authorization because it was concerned about particular flavors appealing to kids. Like, this was Kate's concern just a moment ago. But the reality is that what appeals to kids also appeals to adults. That's what Leah was saying, and that's what prompted that whole Moscato interlude. So there's really some question here about the extent to which sugary/sweet flavors

• 45:40Melissa Murray?

  are targeted at minors or are uniquely appealing to minors, or whether they just appeal to everyone with an undiscriminating palate. Not you.

• 45:49Leah Litman?

  No, it is discriminating. It's discriminating in favor of sugar. Um, but there's also some question about the relationship between e-cigarettes and cigarettes and tobacco, and whether picking up an e-cigarette makes someone, you know, more likely to smoke a cigarette or use tobacco or less. And those are some of the background factual issues that might have affected or might affect, you know, an FDA determination on this issue.

• 46:14Melissa Murray?

  And the case also arises in the posture of the change in administration. So the Trump administration previously took a more lenient or sympathetic approach to e-cigarettes um, relative to the Biden administration. I know you're surprised. And if you think the science doesn't resolve the question here, then you might be sympathetic to the idea that politics or value judgments are a perfectly appropriate way to come to a decision here. But, um, We shall see. A few other things happening in this case. One is the dynamics at or within the FDA, which is in some ways, one of the more cautious agencies in that they are often inclined to say no. They're concerned about replicating the failure of light cigarettes.

• 46:59Melissa Murray?

  This was a thing back in the day, the idea that you could market a cigarette that had a lower level of tobacco and it would somehow be less harmful or less addictive. So again, that might be a concern within the FDA and might shape or influence the dynamics here in this case.

• 47:15Leah Litman?

  Yeah. And there are of course, other historical examples, you know, where the FDA approved a drug only to learn later it had somewhat catastrophic consequences.

• 47:24Melissa Murray?

  Ben ben.

• 47:25Leah Litman?

  Right. So

• 47:27Melissa Murray?

  Also a good one, the little mind.

• 47:29Leah Litman?

  Right. Yeah. So the FDA also asked applicants to provide a lot of information about how the companies would keep the product out of kids' hands and specifically to include discrete plans for all of the different flavors and all of the different possible dosages. But then it turned out that was way too much information for the FDA to process and the FDA couldn't review all of the information individually. And so the FDA therefore said they wouldn't review any of them, but that all of the methods of trying to keep this out of the hand of kids were ineffective. And I think kind of concededly is, right? Like they are ineffective. But the solicitor general, that is the federal government, concedes that was an error. You know, the FDA can't do that kind of bait and switch.

• 48:12Leah Litman?

  But the question is whether that error is harmless. Again, because no one's really questioning that the methods of trying to keep this out of the hands of kids, right? Those just aren't really going to work. There's also some under the surface hostility to an agency making policy through what's called adjudication. That is, you know, adjudicating individual cases rather than going through a rulemaking process. And so here, of course, the change is a possible change in posture toward e-cigarettes and e-cigarette flavors.

• 48:40Kate Shaw?

  We should say, the court actually took a very expansive view of harmlessness in administrative law cases in a case about HHS's decision to essentially bypass public comment in implementing a very protective rule about employers' obligation to provide contraception in the Little Sisters of the Poor case. But we will see if that broad conception of harmlessness obtains here.

• 49:02Leah Litman?

  I'm guessing no.

• 49:03Kate Shaw?

  In It seems like a safe, a safe guess, but, but we will see. And in general, the case does seem to have hallmarks of Ohio versus EPA, where the court held that the EPA's good neighbor rule was arbitrary and capricious because the Republican appointees, except for Amy Coney Barrett, just weren't super convinced by the EPA's explanations about the science. Both cases, right, Ohio versus EPA in this case, are about just essentially how closely the court is going to fly spec agency explanations, rationales, assessments of facts. In Ohio versus EPA, the court freely second guessed what the EPA did. But of course, the EPA, at least under Democratic administrations, is always in the wrong and always acting illegally. The question is just how. And maybe the question in this case is whether that also holds true for the FDA,

• 49:47Kate Shaw?

  at least when controlled by a Democratic administration.

• 49:51Leah Litman?

  So I kind of agree with the suggestion or intimation that maybe the court may be inclined to, as they said at the Federal Society National Lawyers Convention, deal another blow to the administrative state. Cheers. But, so. Exactly. Pop that shamps, make sure it's Moscato. Or maybe they let this one go because the Trump administration is about to come back in and say yes to all the e-cigarette manufacturers. You know, who knows? But we'll see.

• 50:20Melissa Murray?

  The court is also hearing Seven County Infrastructure Coalition versus Eagle County, Colorado. And this case is about agencies' obligations under NEPA, the National Environmental Policy Act. NEPA requires agencies to consider the environmental impact of proposed agency actions. The question here is, what kind of environmental impacts?

• 50:41Kate Shaw?

  Here, the Coalition sought approval from the Service Transportation Board, STB, to build a new rail line. So STB put together an environmental impact statement that concluded the project should move forward. The decision was challenged on the ground that the STB failed to consider certain environmental impacts, such as the increased demand for crude oil, given the construction of the highway, the downstream effects of increased oil refining, and the possibility of accidents on the line, which could create additional environmental costs.

• 51:06Melissa Murray?

  The D.C. Circuit concluded that the STB's environmental assessment was invalid. Interestingly, the federal government is supporting the petitioners in arguing that the assessment is valid. The federal government says the STB didn't have to go further upstream or downstream in considering the environmental impact. That is, they didn't have to consider the effect on supply or demand for oil or the risks of accidents. All it had to consider was what construction and the presence of the rail line would do to the environment. Though, the federal government adds, the STB did consider the effects of increased oil production in the area. The government also cautions the court against adopting any kind of bright-line rule, like telling the agencies they need not consider consequences they don't directly regulate,

• 51:49Melissa Murray?

  like in this case, oil refining, or telling agencies they must only consider effects proximately caused by a project, things of that nature.

• 51:57Kate Shaw?

  And some of the background to the case is just the big question of the extent to which NEPA requires agencies to consider the effect of a particular project on climate change.

• 52:05Melissa Murray?

  What is climate change? Does it exist?

• 52:08Kate Shaw?

  We hardly knew ye.

• 52:09Melissa Murray?

  It's a hoax. So, other cases to note on the court's docket. One is United States versus Miller, which is a bankruptcy case that is actually a sovereign immunity case. So sovereign immunity is the rule that the sovereign, here the government, cannot be sued without its consent. And the question here is whether one sovereign, the United States, consented to being sued in some form under a provision of bankruptcy law. Under Section 544(b) of Chapter 11, a bankruptcy trustee may avoid a previous transfer if it is "voidable under applicable law by a creditor holding an unsecured claim." And the applicable law here may include state law.

• 52:50Melissa Murray?

  Section 106 of the Bankruptcy Code abrogates the United States' immunity with respect to Section 544(b). The question in this case is whether the trustee may avoid a debtor's tax payment to the United States under Section 544(b) when sovereign immunity would have barred the applicable state law fraudulent transfer action against the United States outside of bankruptcy.

• 53:12Kate Shaw?

  Let's make this concrete with facts. So, a company, The All Resort Group, Inc., paid money to the IRS to satisfy tax obligations of its principles and then later filed for bankruptcy. The trustee in bankruptcy filed suit against the United States to recover the tax payments. The trustee relied on a state fraudulent transfer statute, and the government asserted as a defense that the debt wasn't voidable under state law because sovereign immunity would bar that suit outside of bankruptcy. The government argues that the trustee can't avoid a debtor's tax payment when sovereign immunity would bar the underlying state fraudulent transfer suit. The government says that Section 106 addresses only the government's immunity from suit, not the distinct merits issue of whether state substantive law provides an avenue for relief. And the government points to the statement in Section 106 that says, quote, "Nothing in this section shall create any substantive claim for relief or cause of action."

• 53:57Leah Litman?

  Then there is Republic of Hungary versus Simon, which is another sovereign immunity case, but this time foreign sovereign immunity. Foreign sovereign immunity is governed by a federal statute, the Foreign Sovereign Immunities Act.

• 54:09Melissa Murray?

  The question here is how plaintiffs make out an exception to the FSIA, an exception that would allow them to sue a foreign sovereign. The relevant provision here says you can bring suit where property is expropriated, that is, taken in violation of international law, and the property has an adequate commercial nexus to the United States.

• 54:28Kate Shaw?

  One question in the case is how to prove an adequate commercial nexus exists. Do you have to trace a foreign nation's property in the United States to proceeds of a sale, or can you rely on co-mingling of funds? Another is the burden that a plaintiff has. Does a plaintiff have to establish in the complaint that the expropriation exception applies? Or are they subject to normal pleading standards of plausibility? And then another is also a burden question, which is whether a sovereign bears the burden of producing evidence to show their property in the US isn't traceable to historically co-mingled funds.

• 54:57Leah Litman?

  As with many of the expropriation cases, this arises out of Holocaust-era seizures of Jewish property. The Republic of Hungary confiscated property of its Jewish population and sold it, and then added that to the country's national wealth. They also recently issued bonds in the United States. So Jewish survivors of the Hungarian Holocaust brought suit asserting that the bonds satisfied the expropriation exception's commercial nexus requirement.

• 55:21Kate Shaw?

  We also have Cusis versus United States. I have no idea how to pronounce this one, and I should issue an errata from...

• 55:27Melissa Murray?

  Say Cusis, but just say it authoritatively, and it'll be fine.

• 55:31Kate Shaw?

  But I'm not a manless. I'm not sure that works. I did get a couple of listener notes that I said Navidia last week and not Nvidia. Mea culpa. Sorry. So this case, Cusis versus United States, allows the justices to continue on with their passion project of whittling down federal fraud prohibitions. This case, unlike many recent cases, actually doesn't involve fraud or corruption by a political official, so it probably won't spark as much joy in them as it could. But as to this case, the federal wire fraud statute prohibits schemes to obtain money or property by false or fraudulent representations, so the government often has to prove the fraud victim was deprived of property. The question here is whether falsely representing, compliance with a contract term, that is

• 56:13Kate Shaw?

  not economic, deprives the victim of property when it induces the victim to part with money in the contract.

• 56:19Melissa Murray?

  The specifics of this case are as follows. PennDOT, which is the Pennsylvania Department of Transportation, awarded millions of dollars in contracts to Alpha Painting and Construction, which was managed by Stamatios Cusis. A condition of the contract says that the company agreed to buy paint from a disadvantaged business enterprise, and PennDOT paid the petitioners based on the false certification that they had purchased the paint from a DVE. The question here is, what's the relevant money or property? Is it the money the victim paid? Is it the victim's intangible interest in compliance with this provision? The petitioner says the government has to show a defendant intended to harm the victim's economic interests, not compliance with a non-economic contract term.

• 57:03Leah Litman?

  So even though this case doesn't involve fraud by a public or political official, I have to say, reading into it really made me think about what we are likely to see from the Trump 2.0 administration as far as kleptocracy, grift, and corruption. Can you imagine different members of the administration funneling government contracts to themselves and their cronies? Even if said cronies aren't going to perform what might be required under the terms or they certify they're going to perform? It just really made me think of that.

• 57:35Kate Shaw?

  But Leah, there's a robust body of federal statutes that would chill the willingness of such would-be wrongdoers from actually engaging.

• 57:42Leah Litman?

  I am aware of the Supreme Court precedent that takes those statutes very seriously.

• 57:48Kate Shaw?

  Very seriously.

• 57:49Leah Litman?

  Very seriously. Yeah. I am aware that those statutes are on the books. I am also aware of what the Supreme Court has done to them.

• 57:57Kate Shaw?

  Yep.

• 57:58Leah Litman?

  So finally.

• 57:59Melissa Murray?

  It'll be fine.

• 58:01Leah Litman?

  Right. Finally, there is Feliciano versus Department of Transportation, which is about compensation for reservists. Federal civilian employees who are also reservists may be entitled to the difference between their lower military reservist pay and their civilian salaries. That's called differential pay when they are called to active duty. Under a federal law, the employing agency must provide differential pay when the employee reservist is called to active duty under one of several listed provisions or under, quote, "any other provision of law during a national emergency declared by the president or Congress," end quote. So the question is whether federal civilian employees who are called to active duty during

• 58:45Leah Litman?

  a declared national emergency are entitled to differential pay even when they are performing duties that might not be necessarily connected to that emergency. The facts here are as follows. Nick Feliciano was a federal air traffic controller for the FAA and also served as a reservist in the Coast Guard. He was called to active duty during a declared emergency, but his duties weren't connected to that emergency. And there are also some pending cases raising the same issue that the court is holding on to now. That is, they're waiting to act on those cases until they reach a decision, in this case, Feliciano.

• 59:22Kate Shaw?

  Finally, we wanted to note that ProPublica has reported on what is now the third known case of a woman dying because of Texas's restrictive abortion laws. ProPublica has also reported on what were the two known cases of women dying of the same in Georgia, Amber Thurmond and Avery Bell, as well as Texas women, Navia Crane and Giselle Barnica, all of whom died because of the denial of medically needed abortion care. The latest story involved Portia Ngumezi, who suffered a miscarriage at around 11 weeks of pregnancy. She experienced severe, severe blood loss that required two transfusions at an emergency department, but she needed a DNC, the standard first trimester miscarriage treatment. That is also an abortion procedure, and it involves a doctor removing remaining tissue from the uterus so as to stop the bleeding. But the Texas doctors didn't do that, and.

• 1:00:07Kate Shaw?

  Portia passed away. The story, like the others, is just gutting. Portia survived by her husband, Hope, and their two sons, ages three and five. When Hope returned home, one of his sons asked, is mommy still at the hospital? The youngest son didn't understand that his mother was gone for a while. When he would see a woman with braids from far off, he would run after her, shouting mommy. It is just heartbreaking.

• 1:00:32Melissa Murray?

  ProPublica also reports that Portia's husband, Hope, said this. "We all know that pregnancies can come out beautifully or horribly. Instead of putting laws in place to make pregnancies safer, we created laws that put them back in danger." End quote. Just to say, we actually hate having to talk about these stories. We hate having to share them. They are absolutely gutting. But we continue to do so because we think it's even worse to let what is happening to women, children, their families, go unnoticed in the march toward what feels like Gilead. So there are consequences here, and they're actually real-life human consequences.

• 1:01:15Leah Litman?

  And states are trying to disappear those stories. So after ProPublica obtained the Georgia Maternal Mortality Commission's findings that two Georgia women had died because abortion bans delayed necessary care, the state responded by disbanding the Maternal Mortality Commission. And then the Texas Maternal Mortality Commission was told they will not examine cases from 2022 to 2023, the first two years of Texas's restrictive abortion laws being in effect.

• 1:01:47Melissa Murray?

  I mean, this is such a standard move. Like, it reminds me of during COVID when they just stopped testing and then you couldn't talk about whether COVID rates were going up or going down. Like, it's just like, you know, the absence of information means we don't have a problem at all.

• 1:02:02Kate Shaw?

  Yeah. Like, rather than thinking about even adding meaningful protections for doctors to perform life-saving abortions, even that's something that they won't consider. But instead, they'll disband the commissions that actually study what is happening in their states.

• 1:02:17Kate Shaw?

  All right. So finally, to, you know, end on another, although different, kind of bleak note, the court granted cert in a pretty scary nondelegation doctrine case. So this is what we meant at the outset when Leah alluded to parting like it's 1935. This case involves the way that the Federal Communications Commission administers the Universal Service Fund, which impacts access to broadband in large swaths of the country. And the argument is that it violates the nondelegation doctrine, a doctrine that, again, we've said this before, had really one good year in 1935, but has been dormant and properly so since, although there's lots of interest in this venturesome court in reviving a robust version of it.

• 1:02:54Leah Litman?

  Cheers.

• 1:02:55Kate Shaw?

  And if it does that, we're gonna need a bigger bottle of champagne. If, in fact, this results in the, finally, the revival in a, you know, full-throated way of the nondelegation doctrine, could be a technical knockout for the administrative state, not just another blow, at least the part of the administrative state that does anything to protect our health and safety and welfare. I am sure they will find a way to keep standing a shell of an administrative state so that grifters can grift and amass power.

• 1:03:25Leah Litman?

  Like Doge.

• 1:03:27Kate Shaw?

  Like Doge. Whatever else falls, Doge will stand.

• 1:03:31Melissa Murray?

  Not a real department, really more like a faculty committee.

• 1:03:34Leah Litman?

  Exactly.

• 1:03:35Kate Shaw?

  The Doge cobros of the faculty committee will remain.

• 1:03:39Melissa Murray?

  Asdeans.

• 1:03:40Kate Shaw?

  The Asdeans. I guess we'll always have that.

• 1:03:44Leah Litman?

  So a few notes before we go. Last week, Pod Save America dropped a special episode featuring Dan Pfeiffer's postmortem interview with senior staff from the Harris Walls campaign. It's a must-listen episode as the staff reflects about what happened, why, and how we move forward. And on Friends of the Pod, Dan followed it up with a Q and A episode, answering listener questions polled directly from our Discord community. Do you want to join the conversation? Then subscribe to Friends of the Pod and jump into our Discord.

• 1:04:16Melissa Murray?

  And for a limited time, we are offering 25% off new annual subscriptions. Subscribing is the best way to support Crooked Media and help us continue building an independent, progressive media company. Plus, when you subscribe, you unlock perks like ad-free Pod Save America and more. You can learn more and subscribe at crooked.com/friends or directly through the Pod Save America feed on Apple Podcasts. Don't miss out.

• 1:04:43Kate Shaw?

  Strix Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauw. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Phoebe Bradford and Joe Metoski. Subscribe to Strix Scrutiny on YouTube to catch full episodes. Find us at youtube.com/strixscrutinypodcast. And if you haven't already, be sure to subscribe to Strix Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:05:32Leah Litman?

  Let's go back to the year 2000 for a moment, where the presidential election dragged on for 36 days. 36 days of uncertainty, lawsuits, and political combat. You can probably remember why. It's because the race was so close that it came down to a recount in Florida and ended at the Supreme Court. To hear the whole story of the butterfly ballot in Palm Beach, the Brooks Brothers riot in Miami, and the showdown between super lawyers David Boies and Ted Olson, check out Fiasco: Bush vs. Gore, a six-part podcast from the co-creators of Slow Burn. And find out how a dead heat in Florida put the 2000 election in an unprecedented holding pattern, during which no one knew who the next president would be, or how it would be determined. This is, in some ways, kind of the villain origin story of

• 1:06:17Leah Litman?

  the Supreme Court. So you know it's going to be an important listen. Fiasco: Bush vs. Gore is available where you're listening now. Relax and get ready for bed with Dr. Teal's magnesium spray. Made from a proprietary blend of topical minerals powered by pure Epsom salt and natural Dead Sea salt. Dr. Teal's magnesium spray is designed to help

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