The Agonies of Brett Kavanaugh

Kate and Leah run through the latest legal news, including updates on the SNAP benefits case, the email dump that revealed Jeffrey Epstein's deep ties to the establishment, and the political persecution of Representative LaMonica McIver. Then they catch up on the past couple weeks of oral arguments at the Supreme Court, which featured bad signs for a prisoner seeking damages after a flagrant violation of his religious rights, some relaxing detours into civil procedure, and Brett Kavanaugh’s deeply felt sense of injustice over…lawsuits against military contractors. Favorite Things: Leah: Broken Country https://bookshop.org/p/books/broken-country-reese-s-book-club-clare-leslie-hall/051a5eca2446f3fd?ean=9781668078181&next=t, Clare Leslie Hall; Wild Dark Shore https://bookshop.org/p/books/wild-dark-shore-reese-s-book-club-pick-a-novel-charlotte-mcconaghy/45160eba5b1e0f1f?ean=9781250827951&next=t, Charlotte McConaghy; First Lie Wins https://bookshop.org/p/books/first-lie-wins-reese-s-book-club-a-novel-ashley-elston/dcd74bea95a7e4c1?ean=9780593492932&next=t; Dopamine https://www.youtube.com/watch?v=vitil9qMN6A, Robyn; Joyce Carol Oates on X https://x.com/JoyceCarolOates/status/1987269465013428557; In Matt Gaetz Scandal, Circumstances Left Teen Vulnerable to Exploitation https://www.nytimes.com/2025/11/13/us/politics/in-matt-gaetz-scandal-circumstances-left-girl-vulnerable-to-exploitation.html, Michael S. Schmidt (NYT) Kate: The Preventionist https://www.nytimes.com/2025/10/16/podcasts/serial-productions-the-preventionist.html(Serial, NYT); Everybody Scream https://florence.lnk.to/everybodyscream, Florence + The Machine; The Long Christmas Dinner https://www.symphonyspace.org/events/thornton-wilder-the-long-christmas-dinner, Symphony Space; A Year On From Trump’s Victory, Resistance Is Everywhere https://www.theguardian.com/commentisfree/2025/nov/09/trump-resistance-is-everywhere, Rebecca Solnit (Guardian) 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.

• 0:00Melissa Murray?

  Strict Scrutiny is brought to you by Aura Frames. What if you could give a gift that's absolutely perfect? I know, just wait. Like, this isn't like Sam Alito giving the gift of reproductive despotism. It's a really good gift, not one that you want to take back. I'm thinking specifically of an Aura Frame. This is the ticket this holiday season. You can take an Aura Frame, you can load up your favorite pictures of your family, of your events, of your clients, and then give it to them as a gift. You can preload all of your favorite photos and give it to someone that you love, that you admire, with whom you work, everything. The Aura Frame is the perfect gift for every occasion, and especially perfect at the holidays.

• 0:44Melissa Murray?

  Just download the Aura app and connect to Wi-Fi and download away. It could not be easier. You can preload those photos before your Aura Frame ships to your gifty, and you can keep adding to it anywhere, anytime, using the Aura app. You can personalize your gift with a special message before it ships. You can share photos and videos effortlessly going forward, straight from your phone, all year long. Every Aura Frame comes packaged in a gorgeous premium gift box with no price tag on it, that's critical, and the person who receives it will know that you are thinking of them and thinking of them in the best possible way at the most wonderful time of the year. For a limited time, you can visit AuraFrames.com

• 1:27Melissa Murray?

  and get $45 off Aura's best-selling Carver Matte Frames. They were named number one by Wirecutter, and you can get this great deal by using the promo code STRICT at checkout. That's AuraFrames.com promo code STRICT. And this exclusive Black Friday/Cyber Monday deal is the very best deal of the year, so order now before it ends. And support Strict Scrutiny by mentioning us by name at checkout. Terms and conditions may apply.

• 1:57Speaker 01

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

• 2:09Speaker 02

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 2:39Leah Litman?

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

• 2:47Kate Shaw?

  And I'm Kate Shaw. And we are without Melissa today, but don't worry, she'll be back next week. And listeners, we are still recovering from CrookedCon in DC last week. We got to meet a ton of you. We got to catch up with old friends from various corners of the worlds of law and politics and organizing. We got to take in the mogification of DC with our own eyes. That last part, pretty bleak, but the rest of it was honestly really energizing and invigorating, and we loved being there.

• 3:12Leah Litman?

  And before we get going on this episode, I wanted to put in an early episode plug for our California live shows. We have so much fun getting to meet all of you and do this craziness with our people. And we've heard from you all that being in an audience, among other smart, cool people who are also outraged and invested, is a good time. Also, I bring surprise gifts for our VIPs, if you haven't heard, but you won't know about them.

• 3:35Kate Shaw?

  No lie.

• 3:36Leah Litman?

  Unless you're there. This is also our very first tour on the West Coast, and I personally really wanted to be invited to LA, and I want to be invited back, and San Francisco, but Southern California is like my sole home because of the donuts, mostly. So if you haven't already gotten your tickets for our California live shows, get on it. You can join us at the Herb's Theater in San Francisco on March 6th, then at the Palace Theater in LA on March 7th. Get your tickets now at crooked.com/events.

• 4:04Kate Shaw?

  So we are really looking forward to that. And as great as it was to get to do a live show in DC at CrookedCon, the constraints of live shows always mean we are somewhat limited in the legal news that we're able to cover, so we have a lot to catch you up on today. We are going to start with some breaking news. We will then turn to debriefing the oral arguments from the November sitting that we haven't had a chance to discuss yet. We did talk tariffs, but not the others. And we will end by noting some significant cert grants and denials. Okay, first up, the news. Let's start with briefly bringing you up to speed on the developments since we last recorded involving the lawsuit seeking to compel the administration to abide by the law that requires them to pay SNAP benefits even in the event of a government shutdown. So Leah and our friend Steve Vlade brought you up to speed on this litigation last week.

• 4:48Kate Shaw?

  And as a reminder, Justice Katanji Brown Jackson entered an administrative stay to give the First Circuit the chance to act on the administration's request to block a lower court that had directed the government to pay those food benefits. Okay, that's where we were last we talked. Then on Tuesday night, the full Supreme Court extended the stay that Justice Jackson had previously entered, and eagle-eyed court watchers noticed that the language the unside order used suggested that the full court might have done the extending without Justice Jackson referring the matter to the full court as is customary. Justice Jackson, in fact, noted that she would have denied the extension and she would have denied the administration's application.

• 5:25Leah Litman?

  And I think this difference in wording is some additional evidence in support of Steve and my view of Justice Jackson's administrative stay, which, just to refresh your memory, was that Justice Jackson basically did the best she could and the most she could and acted very strategically, given that she was operating against the backdrop constraint of the reality that if she didn't do something to pause the lower court order obligating the government to fully fund SNAP, five of her colleagues just would have taken it out of her hands and done something worse.

• 5:55Kate Shaw?

  So she headed that possibility off, and then the court ordered additional delay seems to have had its intended effect, which is that Congress has now passed legislation ending the shutdown and at least temporarily funding the government, although, of course, we could be back here in a couple of months. And then on Thursday, the federal government filed a letter with the Supreme Court noting that it was withdrawing its application because the application was now moot.

• 6:16Leah Litman?

  And though it seems much longer ago, because this week has been a year, if not several, on Sunday...

• 6:26Leah Litman?

  That is not this past Sunday, but the one before. Trump issued pardons to more than 75 people involved in the Stop the Steal movement, January 6th, you know, the efforts to overturn the results of the 2020 presidential election. Rudy Giuliani, Mark Meadows, Sidney Powell, and more, which is a little odd because these people are facing state charges, which presidential pardons aren't effective against presidents. Can't pardon people of state crimes.

• 6:56Kate Shaw?

  Like, full stop.

• 6:56Leah Litman?

  Right, no.

• 6:57Kate Shaw?

  They can't.

• 6:57Leah Litman?

  Full stop, they can't, and yet, and yet, I feel the need.

• 7:01Kate Shaw?

  That's what I was afraid you were gonna say.

• 7:02Leah Litman?

  I feel the need to say Clarence Thomas, Sam Alito, potentially doing the usher meme. Watch this. Just.

• 7:10Kate Shaw?

  Or can you?

• 7:11Leah Litman?

  Or can you, right? Just asking some questions, says Neil Gorsuch. And, yeah, so.

• 7:18Kate Shaw?

  Yet another thing that, like, courts have not definitively said because people haven't even tried to, presidents haven't tried to pardon people for state crimes because you just can't. And yet, they want to walk right through that, you know, potential opening. I think this is a very long shot possibility, but I think you're right, Leah, we should not rule anything out. So, there is that question, like, will there be some effort to try to make presidential pardons of state crimes great for the first time? But there's also the question of, like, why these pardons now, right? Like, they have done so much, and it's been 10 months. And so, I really, I don't know that I have a theory on timing. I mean, I do think there is one possibility, which is that this is about sending a message

• 8:01Kate Shaw?

  that the president will have the backs of people who run election interference for him this time around, since the midterms are becoming front of mind.

• 8:08Leah Litman?

  Yeah, and former USA Dick kind of suggested as much on social media, talking about the pardons or referring to the pardons. He said, "No MAGA left behind." You know, another possibility is, this is a warm-up act for a potential pardon of Ghislaine Maxwell. And on that point.

• 8:29Kate Shaw?

  Yeah. So if you were under a rock this week, you may have missed.

• 8:32Leah Litman?

  In which case FOMO, right? Like, real, real great choice on your part.

• 8:37Kate Shaw?

  Directions to that rock. I want to join you there.

• 8:39Leah Litman?

  Not a great week for people who could read or people who follow the news.

• 8:43Kate Shaw?

  No, it was bad. I have things burned into my backs of my eyeballs. I can't, I can't unsee. But if you need a refresher, or were under that rock, or just were looking for our take, we will give it to you, which is that this week we saw a release of a significant tranche of Epstein's emails. Now, these are not the Epstein files in the possession of the Department of Justice. These are many, many emails in the possession of the Epstein estate. But this is a enormously significant story for a number of reasons. One, the horrifying nature of Epstein's conduct, much of which we knew, but we got some, you know, additional detail on. The reality, which is just like splashed across the page, that he was protected for many years, didn't face consequences for sexual abuse and trafficking.

• 9:27Kate Shaw?

  All of those things are really driven home by the contents of these files. And then also, this is really important because Jeffrey Epstein conspiracies have featured very prominently in right wing conspiracy circles and Donald Trump's political machinations for many, many years.

• 9:40Leah Litman?

  And I almost feel the need to apologize to those conspiracy theorists, right?

• 9:45Kate Shaw?

  Yeah. Oh, on some level, you're absolutely right.

• 9:48Leah Litman?

  Yeah. Right. Like, the details you were a little wrong about. The details were off, right? They weren't, they weren't speaking in code, right? The people involved, not who we were alleging, but like, the underlying reality.

• 10:01Kate Shaw?

  Yeah. There was a ring to protect child abusers that had participation by people, men at the highest levels of government and the, you know, worlds of business, finance, et cetera, academia. Yeah, it's a, that's basically all right.

• 10:15Leah Litman?

  Yeah.

• 10:15Kate Shaw?

  There's a little wrong about the personages. So, you know, the emails add to, I think, our understanding of Epstein's activities, the relationships he had with powerful individuals, many of whom seem, even though making reference in quite oblique ways, but. Pretty clearly to have been quite aware of his sexual abuse of minors, some going so far as to basically seem to joke with him about it.

• 10:35Leah Litman?

  Yeah, and I have been trying to put my finger on why this has just made me feel ill. Some of it is just the gut wrenching aspect of having to read a bunch of powerful, connected, wealthy individuals like seek to acquire more powerful connections and wealth by going through this known sex trafficker like as late as 2019 after the Miami Herald broke the stories about his conduct after his initial plea deal. And, you know, all of this, the emails are being released on the heels of an election whose results we have been told repeatedly are attributable to the Democrats' overemphasis

• 11:18Leah Litman?

  on women's rights to the exclusion of men's feelings and men's lonelinesses and like the excesses of the Me Too movement, which apparently went a little too far in trying to hold people accountable for sexual misconduct.

• 11:30Kate Shaw?

  Yeah, and I think this is probably clear, but just to be crystal clear, we're talking here about the presidential election, not last Tuesday's election that, you know, unexpected was a sort of a rare bright spot in actually resulting in some important Democratic victories. But of course, that's what Leah's saying is maybe like the prevailing account of at least one of the key factors in returning Donald Trump to power.

• 11:51Leah Litman?

  Yeah.

• 11:52Kate Shaw?

  So that is one thing that's just unbelievably endlessly galling about these revelations. There are also the efforts to downplay these discoveries in certain circles that were very fixated on Jeffrey Epstein for a very long time. And I think their efforts to downplay these new revelations make clear that this was never really about sexual abuse or sexual exploitation, right? This was a political smear, a way to try to hurt Democrats, to gin up fears about trans people and gay people and women in the workforce, and not actually about protecting girls and women. And we want to highlight just a few things that have been picked out among these documents for a bunch of reasons. So Leah.

• 12:31Leah Litman?

  Yeah.

• 12:31Kate Shaw?

  I'm just starting to couple.

• 12:32Leah Litman?

  So one concerns Larry Summers, who in the year of our Lord 2017, had the impulse to email Jeffrey Epstein, who by this point had pled guilty to crimes. And Summers emailed him to complain about society being too hard on men who engage in sexual misconduct. And I'm just going to quote this here, quote, "I'm trying to figure why American elite think if you murder your baby, it must be irrelevant to your admission to Harvard, but hit on a few women 10 years ago and can't work at a network or think tank. Do not repeat this insight," in all caps. And again, the idea that you go to Epstein for counsel

• 13:13Leah Litman?

  about the excesses of holding people accountable for sexual misconduct. I mean, I just know.

• 13:20Kate Shaw?

  Well, you knew you already had a receptive audience. So if you wanted somebody to like, you're doing great, sweetie. Like, I think that's probably why.

• 13:25Leah Litman?

  But I think that that speaks to, like, these people wanted to be charmed by Epstein. Like, that's what they found attractive about him. Because if you read these emails, the guy can't spell, he can't punctuate, he's not clever, right? Like, the appeal is, he is engaged in these horrendous activities and getting away with it.

• 13:46Kate Shaw?

  It is really hard to, if you, and I mean, there are so many thousands of pages. I think I only scratched the surface. But, but what the appeal is remains completely opaque to me.

• 13:54Leah Litman?

  Yes.

• 13:54Kate Shaw?

  Right? There is, because, you know, surely all of these people who spend all of this time cozying up to this person, obviously, lots of theories, was he blackmailing all of them? Like, what other nefarious reasons were there? And one explanation that has been offered is that, like, he actually was just wildly charming, and people were drawn to him and his charisma. And it's not there. It is not. None of those things are true. So it's got to be one of the very nefarious explanations, because the charisma story doesn't hold up.

• 14:20Leah Litman?

  Yeah.

• 14:22Kate Shaw?

  Yeah. So it is not the topic of all of the emails, but there is an overrepresentation in these emails of guys talking to Jeffrey Epstein about sexual misconduct to get advice, maybe at a point in their life when they had gotten caught up in some sexual misconduct related trouble. So one case in point, one Ken Starr.

• 14:42Kate Shaw?

  Who emailed Epstein in 2018 seeking Epstein's counsel after Starr was fired from his job as the president of Baylor University for not investigating sexual misconduct. Starr signed his email, hugs.

• 14:54Leah Litman?

  There, it's just so many layers of weird and, you know, the content revolving around sexual misconduct is so omnipresent because who does Ken Starr bring up in these emails with Epstein? Jed Rubenfeld, the Yale Law professor who was accused of sexual misconduct and sanctioned for it. And in some ways, like, these documents are like a legal eagle, who's who. I mean, Epstein was quite interested in Rubenfeld. He emailed with another professor about Rubenfeld. And there are messages between Epstein and Steve Bannon where Epstein is counseling Bannon on how to discredit one of the women who accused Brett Kavanaugh of sexual assault. Epstein suggested, you know, they should say she was on medications that cause false memories or memory loss.

• 15:38Leah Litman?

  It's just grotesque.

• 15:40Kate Shaw?

  Yeah. And then there is the litany of emails concerning Trump. And we should say Trump is not himself writing any of the emails that we have seen. And it's just hard to know exactly how seriously to take the emails because Epstein, in addition to his many, many other deficiencies, was a bullshitter and a con artist. So who knows? But

• 15:59Leah Litman?

  There's just a lot there.

• 16:01Kate Shaw?

  There's how he comes up, yeah, how much he's there and what is said about him. So one example, in 2019, he writes, Epstein does, an email to journalist Michael Wolff. And in that email, he says, quote, "Of course he," and he is Trump, that's what they're talking about, "of course he knew about the girls as he asked Ghislaine to stop." And I should say, I refer to Wolff as journalist Michael Wolff. And, you know, that is his profession. But these emails really do not sound in any recognizable way, as though emails between a journalist and a source, you know, who at some point Epstein was, as Wolff had written about him, much more feels as though Wolff is helping run PR for Epstein, maybe also kind of encouraging him to blackmail Trump.

• 16:42Leah Litman?

  That email was unreal. Like, let him hang himself and, you know, you will be in a position to basically have him owe you just wild insinuations.

• 16:54Kate Shaw?

  Yeah. Then there's another email in which Epstein wonders to a different reporter from the New York Times. Why Trump-related material hadn't come out. And he asks, quote, Epstein does, would you like photos of Donald and girls in bikinis in my kitchen? In another email, Epstein recounts how Trump walked into a glass door once because he was staring at girls. This is at Epstein's place. And then there's a 2011 email from Epstein to Maxwell that says an unnamed victim, who Republicans have identified as Virginia Giuffre, spent hours at his house with Trump.

• 17:26Leah Litman?

  So there's just like a lot of noise and smoke there at a minimum, suggesting Trump was aware of Epstein's misdeeds. And then also suggestive that like Donald Trump may have been involved in some of this. And this has precipitated a complete meltdown by the president, who announced that he would both be ordering an investigation into Epstein's ties with people affiliated with the Democratic Party. AG Pamela Jo Bondi has since appointed a prosecutor to do that. But the president also maintains that this entire thing was a hoax. So like, how both of these things can be true, unclear, but like very fake and non-existent vibes, you know, as he characterized the birthday message he sent to Epstein.

• 18:09Leah Litman?

  Anyways, like, I know we have to make decisions about what to cover, and this is kind of like tangentially legal news, but it's just so grotesque and appalling. And I know some people kind of like rely on us as like a legal-ish or news-ish source. And so it felt some need to talk about it. But we do have a lot of legal news we wanted to cover.

• 18:35Leah Litman?

  Strict scrutiny is brought to you by Cozy Earth. Guess what? Here's my wish for the holiday. After all of the madness of shopping and wrapping and tree trimming and buying food and making food and doing all that stuff, what I want to do on Christmas Eve is sit on the couch with a really good book and a steaming mug of my favorite tea and just read for four hours uninterrupted by anything.

• 18:58Melissa Murray?

  If you're thinking of some holiday time that also includes some cozy time on the couch by yourself, reading your favorite books, guess what? Cozy Earth has you covered. For me, Cozy Earth has the best and coziest pajamas made of beautiful fabrics that are soft to the touch, that are temperature regulating and make every night's sleep literally like a gift that you can give yourself every single night, all year long. Their bamboo sheets are fantastic. I love them. Again, temperature regulating for when you are running hot and when someone else is running cold. No names to be mentioned here, but I'm looking at you, husband. Cozy Earth is so different from any of the other gifts that you can give because

• 19:38Melissa Murray?

  they truly make your home, your sanctuary. Cozy, loving, warm, everything you want right here at the holidays. All of Cozy Earth's products come with a 100-night sleep trial. Try them out. If you don't love them, you can return them hassle-free. But trust me, you will not be returning them because this is the coziest night's sleep you've ever had. And guess what else? There is a 10-year warranty because once you have felt this level of comfort and coziness, you will want it to last a decade. Black Fridays come early for Cozy Earth, and so right now, you can stack my code, strict, on top of their site-wide

• 20:17Melissa Murray?

  sale. That gives you up to 40% off in savings. That's cozylearth.com code strict for up to 40% off in savings. And these deals will not last. So start your holiday shopping right now. And if you get a post-purchase survey, be sure to mention that you heard about Cozy Earth's great products right here at Strict Scrutiny from the ladies who love to be cozy. Wrap the ones that you love in luxury with Cozy Earth this holiday season.

• 20:44Speaker 05

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Espina, Simone Sanders, Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website. Plus, more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 21:25Kate Shaw?

  All right, on with the legal news and then we will get to argument recaps. But staying on news for now, so this is an unexpected turn, but the Department of Justice, under one Pamela Jo Bondi, is enforcing voting rights now. This was a big development.

• 21:38Leah Litman?

  What kind of voting rights, though, Kate?

• 21:40Kate Shaw?

  There's a catch. Don't worry. So DOJ has reportedly filed in federal court to challenge the new congressional map that California voters voted for in the most recent election. DOJ joined a case filed by the California Republican Party. And I'm going to try to describe this with a straight face. The administration claims that what the California voters have done is an illegal racial gerrymander, which evidently they are very offended by. So here are some of the horrific allegations they make that led them to file suit.

• 22:13Leah Litman?

  So they allege that, quote, "they," meaning California Democrats, feared that a Latino voice in Texas is worth one third of the representation as a white voice and that Texas would slide back to the days of Black Codes and Jim Crow. Like, this is their evidence about it being discrimination, the fact that Californians were worried about racial discrimination against Black and Latino voters in Texas. Like, I will wait for DOJ's case against Texas and their gerrymander.

• 22:44Kate Shaw?

  Still waiting.

• 22:44Leah Litman?

  Yeah, still waiting. But speaking of politically driven cases, we wanted to go back to the case involving Representative La Monica McIver, who we spoke with on our last episode at CrookedCon. Representative McIver reminded us about the facts and circumstances of the charges against her. The allegation is that McIver assaulted or impeded a federal officer during the, I think, confusion surrounding Newark Mayor Ross Baraka's arrest when McIver went to inspect an ICE detention facility as part of her oversight responsibilities. ICE officials she allegedly assaulted subsequently gave her a tour of the facility and a soda. And then weeks later, Alina Haba announces on Twitter that McIver is being charged. McIver, as we talked about, sought to dismiss the charges on the ground

• 23:28Leah Litman?

  that as a legislator, she was performing legislative functions and therefore was entitled to immunity, and that the prosecution is also vindictive and malicious, motivated by political retribution. And unfortunately, the district court declined to dismiss several charges on those grounds, although it reserved judgment on one of them.

• 23:45Kate Shaw?

  So this is a very disappointing and honestly, kind of scary decision. Even if a jury subsequently acquits McIver, which we expect they will, given the circumstances, it just prolongs the proceedings against her. And as we mentioned last week, that means costing her more money and potentially, as these proceedings drag on, deterring other individuals. She said she's not going to be deterred, but other representatives from potentially engaging in additional oversight and dissent.

• 24:10Leah Litman?

  There is no transition to this next story because it is just so heinous. But there have been more administration ordered and administration executed murders. So reports that the 20th known lethal strike, i.e. execution of alleged narco traffickers, was carried out. This one apparently killed four people. The New York Times has also reported that there is apparently a secret memo prepared by the Trump administration that purports to offer a secret legal basis for the strikes. The idea apparently being that the United States is legally in a state of armed conflict with drug cartels. This is nowhere near legally plausible. It is also supposedly based largely on the assertions

• 24:54Leah Litman?

  and say so of the Trump administration. That is their characterizations of the facts. So I guess may the identity of these memo authors be revealed so that their names can forever be linked to these murders is all I have to say there.

• 25:10Kate Shaw?

  Yeah. Okay. Also, hard to transition out of that one. But next piece of legal news to mention, or, you know, news that has a legal component. So former UVA president Jim Ryan, who previously announced his resignation from UVA under pressure from the Trump administration, has now released a letter recounting his recollection of the events leading up to his resignation. It's 12 pages long. I have been at a conference all day. It was just released today, Friday. But my quick glance suggests this is a very disturbing read that suggests pretty serious misconduct on the part of a number of lawyers at DOJ, on the Virginia Board of Regents, at the Virginia Attorney General's office, and at the law firm ostensibly representing UVA slash the Board of Regents.

• 25:51Leah Litman?

  Yeah, so just some samples. And Ryan released this letter in response to an account that was put forward by the, like, head rector and, I think, the Attorney General. But just some samples from Ryan's letter. So, "UVA was apparently limited by the Virginia Attorney General's office and who UVA could retain as outside counsel. And the AG approved only conservative lawyers, one of whom worked on Project 2025." There are also allegations in the letter that raise, in my view, serious questions about whether the outside counsel was working in concert with the Virginia AG office rather than representing UVA. You know, the current rector and vice rector of the UVA board allegedly, you know, were negotiating with DOJ and wouldn't let Ryan be involved in those negotiations.

• 26:35Leah Litman?

  They didn't inform the rest of the board about DOJ's demands for Ryan to resign or inform them of Ryan's resignation until after the fact. And it recounts these DOJ threats that DOJ would rain hell on UVA and bleed UVA white. And, again, like, it's just mob-style governance that some people were affirmatively enabling. And, yeah.

• 26:59Kate Shaw?

  It just makes you wonder what is going on under the surface in so many of the administration's moves that we have yet to learn the full story of. So, let's move on to argument recaps. The court has just finished two weeks of arguments, and we have only had the chance to recap the big tariffs arguments. So, we're going to break down the others. And, warning that because there are so many, we're going to have to be pretty quick in our discussion of some of them. Before we get there, though, we actually did want to flag something. I guess we're maybe engaging in our own kind of conspiracy theory here, Leah, but, um, but I think there might be something to this, so.

• 27:30Leah Litman?

  Tin hats were right. Tin hats were right.

• 27:34Kate Shaw?

  So after we recorded our last episode, President Trump, who had been curiously actually kind of quiet about the tariff arguments after they happened, finally broke his silence. So he took to Truth Social on Sunday night, so a week ago, Sunday, with honestly what really felt like a somewhat unhinged half of a conversation about how he is losing the tariff case. So to wit, I'm going to read his half of the conversation, but it was the only bit we got. So, quote, "So let's get this straight. The President of the United States is allowed and fully approved by Congress to stop all trade with a foreign country, but is not allowed to put a simple tariff on a foreign country, even for purposes of," all caps, "national security." And then the one-sided conversation goes on.

• 28:14Leah Litman?

  This was like an oddly specific recounting of a specific legal argument that really raised red flags to me. And then this episode continued because on Monday night, he seemed to cast doubt on John Sauer's performance, maybe during the tariff argument. So Trump said, quote, "The US Supreme Court was given the wrong numbers. The unwind in the event of a negative decision would be, including investments, in excess of $3 trillion. It would not be possible to ever make up for that kind of a drubbing."

• 28:43Kate Shaw?

  Okay. So then on Tuesday, Trump floated the possibility of cutting Americans $2,000 checks, evidently from all the revenue from the non-revenue raising tariffs?

• 28:57Leah Litman?

  Checks out.

• 28:57Kate Shaw?

  So, yeah. Anyway, it is certainly possible that all of these are just reflections of a president who is panicking after receiving reports of a rough oral argument for the administration over his signature policy initiative. And he's trying in his, I think, quite ineffectual way to work the refs as they decide what to do about these tariffs. But I do think it is curious that it was not until the weekend that this temper tantrum started. And I think it's especially curious because the arguments were Wednesday. The justices would have voted at conference on Friday. And so this timing does seem to at least tee up the possibility that word has gotten back to him, and got back to him over the weekend, about the vote at the Friday conference having gone against him.

• 29:42Leah Litman?

  I want to see Ginny's texts. My other answer is Martha Ann with a fax machine. These are two possibilities we just cannot rule out.

• 29:53Kate Shaw?

  If Jody Cantor and Josh Kerstein are not on this story, they should be.

• 29:57Leah Litman?

  I totally agree. Okay, so on to the argument recaps. We haven't yet had a chance to discuss. We will start with the Week One cases. That is, the cases heard during the first week of the November sitting we haven't yet discussed. And we'll spend most of our Week One time on Hensley versus Flora Corporation because, ladies, gentlemen, and non-binary listeners, it happened. In the first week of the sitting, some Supreme Court justices finally got really worked up about some of the injustices of this world. What grave injustice do the Republican appointees, or at least some of them, seem motivated by? Lawsuits against military contractors.

• 30:33Kate Shaw?

  One of the outrages happening at the moment. So, right, so Hensley versus Flora Corp., which is the case that inspired this fit of empathy, at least among some justices, is a case about whether you can sue military contractors who violate the terms of their military contracts. So, the contract here concerned Flora Corporation's responsibilities at Bagram Air Base in Afghanistan. The plaintiff in the case, Hensley, was injured when one of Flora's subcontractors detonated a suicide bomb. Someone, and we will name names, don't worry, got very worked up at the oral argument over the possibility that military contractors like Flora Corporation might face liability.

• 31:11Leah Litman?

  That person, Brett Kavanaugh. The man who thought roving ICE patrols and ICE stops are no big deal. He could not keep his feelings in check during this argument. He was seriously out of control. So, we're going to play a quick montage of some of his interventions during this argument.

• 31:28Speaker 06

  Correct. Military contractors, though. Can you just answer my question? Is there any difference?

• 31:35Speaker 07

  There is no conflict.

• 31:36Speaker 06

  Footnote 11 of Garamendi says... I don't think that's quite what I wrote, but... Even if you didn't...

• 31:42Speaker 07

  That's something else.

• 31:44Speaker 06

  It's Bagram.

• 31:45Speaker 07

  It's a beleaguered...

• 31:46Speaker 06

  Come on.

• 31:47Speaker 07

  Yeah, it's a military base in a war zone.

• 31:50Speaker 06

  I'll stop there, but I just want to get that comment out.

• 31:53Leah Litman?

  He just had to get that comment out. He couldn't stop himself.

• 31:57Kate Shaw?

  I mean, I hope that this gives you some sense of what a crazy argument this was. So just to take stock of who he interrupted, he interrupted the petitioner's lawyer four times over three pages, and that's not all. He interrupted Justice Sotomayor, justices Sotomayor and Barrett, Justice Alito twice. So equal opportunity interrupter occasionally. He interrupted the respondent's lawyer, that's the lawyer for the military contractor, who he thought wasn't arguing hard enough. He interrupted the federal government's lawyer, who same, he just didn't think was vigorously enough defending military contractors the way they deserve.

• 32:31Leah Litman?

  This is just another occasion to remind people that there are real questions about whether men are just too emotional to be Supreme Court justices because this guy was having an actual melty over the prospect that you could sue a military contractor. But please, tell me more about how women ruin the workplace.

• 32:51Kate Shaw?

  The thing that was honestly the craziest about this argument was that it led to a moment that honestly felt like a signal of the end times having arrived at the court, which is something we thought would never happen, which you can hear here and then we will discuss.

• 33:06Speaker 08

  You should fight back on the pardon. If I might just finish. Thank you. You're going to have your shot, my friend.

• 33:15Leah Litman?

  Just to translate this, Brett Kavanaugh's behavior was so bad, Neil Gorsuch had to tell him that he was being too rude and taking up too much space. If this ever happens to you, it is a sign you need to do some deep reflection about how you got to this point and that you need to take an emotional lap.

• 33:34Kate Shaw?

  I mean, it was insane, but also whatever it is that has gotten him so worked up, like I think we want and need more of in our lives. So just live our lives in a way that will lead to Brett Kavanaugh having more meltdowns like that. Like, I think we're doing something right.

• 33:52Leah Litman?

  Preferably in like November 2026. I'd like another meltdown around this time of year.

• 33:57Kate Shaw?

  It's a good random date.

• 33:58Leah Litman?

  Yeah. Same time this next year.

• 34:00Kate Shaw?

  Sounds good. So the clip that we just played with Gorsuch and Kavanaugh, I think suggests that we may now have, in addition to Kavanaugh stops, right, which are the suspicionless racial profiling-driven stops that Brett Kavanaugh seems to think are totally fine, totally cool, totally constitutional, we also may have Kavanaugh stop as a double entendre. So not just to refer to ICE's stops and uses of excessive force, but also Kavanaugh, comma, stop, when he needs to just take a moment and find his end place.

• 34:32Leah Litman?

  Yeah. I have to say, the fact that Kavanaugh was so out of control confirms something I feel like we have talked about before, which is, the guy is a total wingnut when it comes to executive power. Like, he loves presidential power and the military. He's so thirsty for authoritarianism. You know, during this argument, he went on tangents about how war making and warfighting and combat zones are so within the exclusive power of the federal government. The states can't do anything about it, which was a little terrifying to hear when you realize that the president is invoking the same concepts and language of war and combat as a basis for militarizing American cities and deploying the National Guard and roving ICE patrols.

• 35:11Kate Shaw?

  It's also just like, dude, that's a shared power. Like, Congress has an enormous... Like, what are you talking about? Yes, like, there is this move or trope. It's commander in chief power and like, everything else falls away. But like, especially since we are tiptoeing to the edge of like, an actual war with Venezuela, like, declarations of war, that's Congress, right? And lots of other things to do with regulating the military and all kinds of other things. Those are within Congress's purview. Like, this idea that everything that you could sort of say war around is exclusively within the president's authority is just insane. And yet, that very much sounds like where Brett Kavanaugh is. So... Along those lines, as we said in the episode where we previewed this case,

• 35:54Kate Shaw?

  one of the questions here in Hensley is whether the Constitution prevents states from holding federal contractors liable for violating state law. This could have huge implications for whether states can hold accountable ICE officers, CBP officers, HSI officers, basically all of these DHS subcomponents are having their personnel terrorize the population. And the ability of states to actually hold those individuals accountable under state law is a very real and present question that certainly Brett Kavanaugh was sending very ominous signals about. So one other moment from Hensley was just surreal because it involved our friend Sam Alito, and so we had to include it here.

• 36:32Speaker 07

  What I took from your brief is you're saying Boyle's inconsistent with textualism. Who wrote Boyle?

• 36:38Speaker 06

  Justice Scalia wrote it.

• 36:39Speaker 07

  So you're saying the founding father of textualism doesn't understand textualism?

• 36:44Speaker 06

  No, that's not what I'm saying at all.

• 36:45Speaker 07

  Well, that's what I, that's what I took. Well, do you have?

• 36:50Leah Litman?

  Wow. I mean, like, how dare you accuse a great man, Antonin Scalia, who's basically Nietzsche's uber mensch, of any kind of legal flaws or inconsistencies?

• 37:04Kate Shaw?

  Also, just like Fulton County Smith, I mean, like, Alito, in other contexts, is perfectly happy to throw Scalia opinions way under the bus. Like, I think he just, like, forgot for a minute that actually he is way to the right of Scalia on a whole bunch of shit. It was like, we could never criticize him. But, um, I felt like he had a weird, I don't know, like, momentary lapse, and he just started repeating Scalia, textualism, founding father, and, uh, that's, that was, that was my read on that.

• 37:33Leah Litman?

  Yeah.

• 37:34Kate Shaw?

  Very strange moment.

• 37:35Leah Litman?

  Not great evidence that the right-wing MAGA legal movement isn't a cult was another read on that.

• 37:41Kate Shaw?

  Yeah. Okay, so as I think the excerpts we just played make clear, Kavanaugh, Alito, very sympathetic to the contractor, although I wasn't exactly sure how they would like to ultimately write the opinion. So they could extend this common law rule under this Boyle case, that's the Scalia case, we talked about it a bit when we previewed this case. They extend that as a matter of federal common law, or find some sort of constitutionally grounded war powers preemption that Kavanaugh was kind of gesturing towards. The Democratic appointees and Gorsuch having an oddly normal one seemed pretty clearly on the path to voting against broad immunity, and I just actually wasn't sure where the others were. So I don't know how to call this one.

• 38:18Melissa Murray?

  Yeah, me either.

• 38:22Melissa Murray?

  Strix Suton is brought to you by Fatty 15. As you know, I'm a person of a certain age, but you know what? I am addressing all of the many signs of aging. Poor sleep, lack of energy, stiff joints, abnormal blood work, everything else, all of these real health concerns that impede the way you are in your day to day life, make things harder than they should be. I'm all about healthy aging and the way that I deal with all of these problems and age healthfully is by incorporating Fatty 15 into my everyday routine. Wouldn't you just love to take one product and know that this one healthy aging product could help your loved ones, your parents, reverse aging at the cellular level and result in improved long-term health and wellness? Exactly, you would.

• 39:06Melissa Murray?

  That's why I use Fatty 15 every day and why I think you ought to too. Fatty 15 co-founder Dr. Stephanie Van Watson discovered the benefits of C15, the first emerging essential fatty acid to be discovered in more than 90 years. It is an incredible scientific breakthrough that supports our long-term health and wellness and healthy aging. C15 actually strengthens our cells and is a key healthy aging nutrient which helps to slow down biological aging at the cellular level. In fact, when our cells don't have enough C15, they become fragile and they age faster. And when our cells age, our bodies age too. And Fatty 15 is clinically proven to raise C15O levels resulting in lower cholesterol

• 39:50Melissa Murray?

  levels, healthier liver function, improved gut microbiome health, and improved red blood cell health, all within three months. And best of all, Fatty 15 comes in a beautiful, reusable glass and bamboo jar, and refills are shipped right to your door. Fatty 15 is on a mission to optimize your C15 levels to help support your long-term health and wellness, especially as you age. You can get an additional 15% off their 90-day subscription starter kit by going to fatty15.com/strict and using the code strict at checkout.

• 40:24Speaker 09

  Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual Crooked Con. It's going to be the positive America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.

• 41:11Melissa Murray?

  Briefly, three other cases from Week 1. One is Rico versus United States, a case about whether the so-called fugitive tolling doctrine applies to supervised release cases, even though it is not in the statute, pitting some justices' punitive instincts against their textualist ones.

• 41:28Kate Shaw?

  And the facts recall involve an individual who improperly left the jurisdiction during a period that she was on supervised release. The government argues that this departure, this like absconding, "told," here meaning something like "extended" the period of her supervised release. But here, the contrast between the federal parole statute, which does explicitly provide for tolling, and the supervised release statute, a different federal statute that doesn't have any provision for tolling, seemed pretty persuasive to the court. And so was what Rico's attorney, Adam Unikowski, described as this very counterintuitive dimension to the government's argument, which is that they Kind of maintained that she wasn't serving her sentence at all during the period of her abscondment, but also that she violated the conditions of her supervised release during

• 42:12Kate Shaw?

  that period. And it is kind of hard to have it both ways. Unikowski, I thought, in general was super effective. And in the end, there actually isn't a ton at stake because it turns out, really, whether or not there is tolling only actually impacts the sentence range for several new crimes for which Rico was subsequently charged.

• 42:28Leah Litman?

  Court also heard Coney Island Auto Parts, which was part of the civil procedure-heavy November sitting. And the argument was super short, a breezy 40-ish minutes, which never happens. The case involves a question about federal rule of civil procedure 60, which governs relief from a judgment. So the case arose out of a bankruptcy in which creditors filed suit against a number of entities with unpaid invoices, including Coney Island Auto Parts, with the bankruptcy court eventually issuing a default judgment against Coney Island after they failed to respond.

• 42:59Kate Shaw?

  So years later, Coney Island says they found out about this judgment when they had a hold placed on their bank account, and they moved under Rule 60 to vacate, claiming that they had never been served, and so this default judgment should never have been entered. So it had been seven years at this point, and the question in the case is whether, really, that's just too long under the reasonable time standard that some courts, including the Sixth Circuit here, have said applies to motions to vacate void judgments. So it's kind of a fun-ish civil procedure case because Lisa Blatt was arguing there was, of course, at least one entertaining moment, and we will play that one for you here.

• 43:31Speaker 10

  But since, you know, the coming of Justice Scalia in 1986, the court has taken just a different approach to statutory interpretation. And we cite an example of, I think it's US versus Brogan, where all the Courts of Appeals had ruled 1001 gives you a right to lie, and this court just said, you know, we're going to overrule that. And I think just last term, you ruled against a case I argued when all the courts had gone our way.

• 43:56Speaker 07

  Well, speaking of last term

• 44:01Speaker 10

  Sorry.

• 44:02Speaker 07

  And lost causes, what do you say about Fuit and the idea that a judgment that is void ab initio never existed? You know, it's, we can't see it. It doesn't exist. It doesn't exist.

• 44:17Speaker 10

  And if it's conceitedly, you know, on its face, it's issued by the Court of Clowns, you have to give effect to the judgment based on res judicata.

• 44:27Leah Litman?

  I just love how she speaks to them like they're normal people. Like, it's, it's the best part of it. Like, you're no big deal. You're just some guy I'm chatting with.

• 44:37Kate Shaw?

  And, and somehow they, they allow it. It's fast. It's a fascinating dynamic.

• 44:41Leah Litman?

  Sometimes.

• 44:41Kate Shaw?

  That's true. Last term, I guess there were a couple of

• 44:43Leah Litman?

  There were some moments.

• 44:44Kate Shaw?

  deciding he had too much. But, but this one, they were totally entertained.

• 44:47Leah Litman?

  Yeah. Okay. Onward to another civil procedure case, Haince Celestial Group. This one involves complete diversity for purposes of federal jurisdiction, remand, and fraudulent jointer. Oh my. So the plaintiffs in the case are Texas parents who alleged that their son's autism had been caused by heavy metals in baby food. They sued baby food manufacturers, Haince Celestial, a Delaware company, along with sellers Whole Foods, which is Texas-based, in state court. Haince removed the case to federal court, convincing the district court to remove Whole Foods, which created complete diversity for purposes of federal jurisdiction, i.e. all the plaintiffs, all the defendants from different states. And the case then proceeded to a trial that resulted in a ruling against the parents.

• 45:28Kate Shaw?

  So the Fifth Circuit concluded that the trial court had been wrong to dismiss Whole Foods from the case, meaning there actually wasn't diversity jurisdiction, because both the plaintiffs and Whole Foods are Texas citizens, which meant the case should have stayed in state court, where the parents should now have a chance to proceed. So that's what the Fifth Circuit found. The case is now before the court on the question of the impact of this erroneous dismissal on the plaintiff's chances to proceed. And this case actually is a rare opportunity for the court to affirm the Fifth Circuit and also side with some plaintiffs, right, who say they have been harmed, which does seem like exactly what the court is going to do. So all of the justices seemed kind of skeptical of a ruling that would prevent these plaintiffs from having their day in state court as a result of this incorrect removal of a defendant from the case.

• 46:13Kate Shaw?

  And the justices on both sides of the court seemed to be like humming the same tune, which is basically about how the plaintiff is a master of their complaint, which, if you took Civ Pro as a 1L, should be a familiar phrase. Like Coney Island Auto Parts, this was a strikingly short argument. There were very few questions for the plaintiff's lawyers. The whole thing took less than 45 minutes, which was Honestly refreshing in an age where there is just such inflation happening among other places in SCOTUS argument lengths.

• 46:39Leah Litman?

  There was a hot mic moment in this case.

• 46:41Kate Shaw?

  I missed it. I'm so glad you caught it.

• 46:43Leah Litman?

  But one that's way more innocent than the last hot mic moment we captured and covered. So listeners might recall that in the October sitting, this was the last hot mic moment. Clarence Thomas was caught on a microphone saying at the end of the Voting Rights Act argument, where the Republican appointees made clear they're going to nullify somehow, some way, what remains of the Voting Rights Act and blow up the legal protections for minority voters, political opportunities and political power. At the end of that argument, Justice Thomas said, see, that wasn't so bad and got a good chortle, you know, over the whole ending, the Voting Rights Act thing before being hushed. Well, at the end of this argument in Haines Celestial, the following moment was captured

• 47:26Leah Litman?

  in audio that isn't on the Supreme Court's website, but we were listening real time and our excellent producers caught it.

• 47:36Leah Litman?

  Civil procedure is my new favorite field.

• 47:42Leah Litman?

  So I think, I think that was the marshal talking and it just felt so innocent. Like, yes, I too would prefer listening to civil procedure than all of these culture war, right wing grievance fasts the court does, which take hours.

• 47:59Kate Shaw?

  It feels like a normal court and you can still go have lunch at a reasonable hour.

• 48:02Leah Litman?

  Exactly.

• 48:03Kate Shaw?

  I mean, win, win. Yeah. I think I'm, it me. Okay. So now on to the week two cases. First up is Lander versus Louisiana Department of Corrections. And this is a case about the availability of damages under a statute called ERUPA, the Religious Land Use and Institutionalized Persons Act. And we'll tell you more about the case, but let me just say up top that listening to the argument, I got that bad feeling, like the kind of cold chills that like spread over your skin that they're going to do real, real damage that could reverberate way beyond ERUPA.

• 48:37Leah Litman?

  Totally agree. It seems like they are basically coming for all federal spending programs here.

• 48:43Kate Shaw?

  And I honestly thought they wouldn't because the facts of this case are so egregious. I assumed that they would not want to own ruling against this plaintiff, but I think I had too much faith in them.

• 48:54Leah Litman?

  But this is partially why they love Trump. Trump drowns out everything they are doing and none of the cases that aren't related to Trump just like get major coverage.

• 49:05Kate Shaw?

  Yeah, well, we are going to do our part to make sure this one does. So here are the facts. So Lander, a devout Rastafarian, had grown his hair for nearly 20 years without cutting it. Religious exercise, like no question, no one disputes that. He's convicted of simple drug possession. He's sentenced to five months in state prison. He starts serving his sentence and he presents prison officials with a copy of a Fifth Circuit opinion. He shows up, he is so worried that he reports to begin serving his sentence with a printed copy of a Fifth Circuit opinion, holding that Louisiana state's policy of cutting Rastafarian inmates' hair violates ARLUPA, which is a 2000 statute, passed to protect the religious rights of prisoners, among other things. And the officials to whom he gives this printed copy of the Fifth Circuit opinion initially

• 49:50Kate Shaw?

  do respect it and allow him to keep his hair. Okay, so then he is transferred with a month left on his five-month sentence to a different facility, the Raymond LaBord Correctional Center. And he, again, he has his printed copy of this opinion with him. He shows it to the correctional officials. They literally throw the opinion into the garbage, bring him into another room, handcuff him to a table, hold him down, and forcibly shave his head. Truly diabolical conduct.

• 50:16Leah Litman?

  So he files suit against the warden and the guards seeking monetary damages, money damages, under that 2000 ARLUPA statute. And the question here is whether that law permits individuals to sue for damages. So the Supreme Court has already said that a related statute, RIFRA, the Religious Freedom Restoration Act, does allow individuals to sue for damages. And RIFRA, like ARLUPA, was passed in response to the Supreme Court, in Congress's view, under protecting religious liberty. Actually, in that previous Scalia opinion Kate was referring to, Employment Division versus Smith. And Arloopa has language that does seem pretty clearly to allow private individuals to sue to enforce it.

• 50:57Leah Litman?

  It explicitly authorizes suit, allows for a quote, "claim or defense in a judicial proceeding" to obtain appropriate relief against any official or any person acting under color of state law, end quote. Seems, I don't know, pretty clear. And if you can sue, traditional thing you can get is damages.

• 51:15Kate Shaw?

  Okay, so just to take stock here, we have a case holding that private damages are available under a very closely related statute. Sometimes people refer to RFRA and Arloopa as these twins. You have in Arloopa, very clear statutory language that Leah just read, saying that you can obtain appropriate relief against any official in a judicial proceeding. There was a just pretty wild array of amicus support for Lander. So everyone from the Beckett Fund to the Constitutional Accountability Center, which don't agree on a whole lot, Senator Ted Cruz, a group of civil rights organizations represented by Americans United for Separation of Church and State. I mean, really, a very, very long list of people with very diverse ideological commitments on the side of Lander.

• 51:59Kate Shaw?

  You had one amicus brief on the side of Louisiana by some sheriffs. The Trump Justice Department is even on Lander's side? Like, that is how lopsided this case is? And yet, these Republican appointees-

• 52:12Leah Litman?

  Supreme Court gonna be to the right, more extreme than the Trump Justice Department.

• 52:15Kate Shaw?

  Than the Trump administration on a lot of these cases. Like, it cannot be emphasized enough. So yeah, that, I think it's pretty clear that these Republican appointees are looking for a way to rule against Lander, to hold that because Arloopa is spending clause legislation passed by Congress under its power to spend, there needs to be not just the kind of clarity that is in the text that Leah read, but something even clearer, like a super duper clear statement that you can sue for damages and the language in the statute isn't clear enough. So here is Kavanaugh essentially making that point.

• 52:44Speaker 06

  But the hard part, as I see it for your case, for me, is that you need a clear statement and appropriate relief.

• 52:53Speaker 06

  You know, it's not as as clear as it could be in encompassing damages. So how do you deal with that? I don't want to water down our precedent on that. But at the same time, I want to hear your response to how you how you get there.

• 53:10Leah Litman?

  I feel like we should understand this case as like cross pressure, you know, on the justices, kind of like we were talking about with Rico, punitiveness versus textualism. We talked about in the tariffs, like billionaire BFFs safeguarding the Republican Party from itself. On the other hand, like expanding presidential power and giving Donald Trump what he wants. Here, on one hand, you have religious liberty. On the other hand, you have the opportunity to gut the modern social welfare state, much of which is accomplished via spending clause legislation. And it seems like that impulse is going to win out.

• 53:44Kate Shaw?

  And it may not be irrelevant that this is not like mainline Christianity.

• 53:47Leah Litman?

  Yes, for sure.

• 53:48Kate Shaw?

  If if he's being deprived of a different kind of religious liberty, has a different caste, I wonder if they would be so cavalier about it.

• 53:54Leah Litman?

  Yeah.

• 53:55Kate Shaw?

  Seems like probably not. The other big line of argument in the case, in addition to this, the super clear language is lacking here, was that because figures like guards and wardens are not themselves taking federal money and agreeing to conditions, like a condition that they have to respect the religious liberty of inmates, it is only states, as opposed to officials, that are bound by this sort of condition. The chief justice seemed to be all in on this.

• 54:19Leah Litman?

  And any sort of ruling along any of those lines might not just mean you can't sue under our Luba. So its protections of the religious liberty of inmates would be functionally unenforceable. It would also mean that tons of other legislation passed under Congress's spending power also couldn't be meaningfully enforced. And this is especially galling because the Supreme Court, in an earlier decision, Talefsky just turned away several years ago a broad attack on the ability to sue to enforce spending clause legislation. Here's Justice Jackson sort of silently screaming on this point and tag teaming with Justice Kagan.

• 54:58Speaker 11

  Didn't we answer that question, Ian Talefsky? I thought we said. In the 1983 context, that it didn't matter that it was spending clause legislation. We said a law is a law.

• 55:08Speaker 12

  We said secured by the laws of the United States include secured by laws enacted pursuant to the spending clause.

• 55:17Leah Litman?

  And remember, they did, I think, like a narrower sneak attack on enforcing federal spending programs in the Planned Parenthood versus Medina case. That was the case about whether you can sue to challenge a state's decision to disqualify Planned Parenthood from the Medicaid program in violation of federal law. Now they seem like they are going to broaden that Medina ruling even further and suggest that spending clause legislation is even more law-ish, like not like a real law than they suggested in Medina. It's more like a cool law that just isn't enforceable. And this is, I think, like in this moment, you know, a terrifying posture because of the prevalence of federal spending programs as part of federal welfare programs and because

• 56:01Leah Litman?

  of the president's current posture vis a vis federal spending legislation. He has basically claimed that he can decline to spend funds in violation of federal law. Under the Constitution, of course, it is Congress that has the spending power. But if the Supreme Court isn't going to treat spending clause statutes as real laws, like laws of the kind that people are actually bound to and are enforceable, woof.

• 56:23Kate Shaw?

  An enormous blow to social welfare programs in general. And even though it was like two beats ago, Leah, I just want to say I did catch that that was, I believe, a Mean Girls reference. So I'd like my credit for it.

• 56:33Leah Litman?

  So this is two weeks in a row, Kate. You're just crushing it.

• 56:35Kate Shaw?

  I got some culture. Those are movies. I'm not terrible on movies.

• 56:38Leah Litman?

  Yes, that's true.

• 56:39Kate Shaw?

  Okay, so one other thing to note, Gorsuch and several other justices really heckled Lander's lawyer, Zach Tripp, about the fact that he was asking for a ruling that would go against the consensus among the federal courts of appeal. So let's play that clip here.

• 56:55Speaker 08

  As I understand it, the circuits are unanimously against you and have been for many, many, many years. So saying that something awful is going to happen, it's all whatever's happened has happened, right?

• 57:09Kate Shaw?

  I mean, this was so enraging. The court has been absolutely delighted to upset Court of Appeals' consensuses in other cases. So Shin versus Ramirez in 2022, D.C. versus Heller back in 2008.

• 57:23Melissa Murray?

  And they had, you know, I think Justice Corset and Alito, I think it was, had this same faux modesty earlier in the term in the Bowie case, suggesting like, oh, you're advocating for a position that all of the Court of Appeals rejected. We couldn't possibly rule it that way.

• 57:38Kate Shaw?

  They don't put any stock in what the Courts of Appeals say. They don't even pretend to if you actually ask them what they think. And yet they just cannot resist the temptation to just layer that on. So, you know, I thought this case was going to be a clear win. I thought Zach Trip did a great job, but man, did it look bleak.

• 57:52Melissa Murray?

  Yeah.

• 57:58Melissa Murray?

  Strict scrutiny is brought to you by Skims. Here is the thing about pajamas. As you might expect, I'm very particular about the kind of sleepwear that I enjoy. I do not like sleepwear that cuts into my body. I don't like things that are loosey goosey and gap and gape and then have elastic that cuts into you, like one or another. Be loose and free or don't be at all. And that is why I love Skims sleepwear. Their sleepwear and their soft loungewear is exactly what you need for a wonderful night's sleep or just some time lounging on the couch. What do I love about the Skims sleepset? One, I love that they come in gorgeous colors for every mood that I'm in. Two, I love that they have

• 58:40Melissa Murray?

  amazing soft fabrics that feel so good against my skin. And three, I love that they're made for truly any kind of body. Like, you can find something that works for you. And better yet, you can find something that works for all your friends. So this is the perfect gift that you can give to yourself and to everyone that you love and be all confident that you'll find something that works for everybody. Like, I was never one of those people who liked sleeping in an old T-shirt from college, just not my vibe. I like to look put together, even when I'm hopping in the bed to go to sleep. And that's what I love most about the Skims sleep set. It looks put together. They're full piping that comes in fun colors or fun patterns for the holidays. You look put together and you're just going to sleep. Now just take that energy and apply

• 59:25Melissa Murray?

  it to everyday life. You can do it. Skims will help you. You can shop your favorite pajamas at skims.com and after you place your order, be sure to tell them where you heard about it. That's us, Strict Scrutiny. Select Podcast in the survey and be sure to use the dropdown menu to select Strict Scrutiny at checkout. And if you're looking for the perfect gifts for everyone on your list, the Skims Holiday Shop is now open at skims.com and they have you covered.

• 59:53Speaker 09

  Right now, the midterms are the biggest story in American politics, but however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual CrookedCon. It's going to be the Positive America hosts and some of the smartest people in politics. We're going to try to answer some big questions, stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to CrookedCon 2026. Head to crookedcon.com to get your tickets now.

• 1:00:42Kate Shaw?

  All right, onward. Next case we wanted to talk about, GeoGroup versus Menocol. This, like the FlorCorp case, is a contractor immunity dispute with potentially significant implications. Although on its face, it's about this kind of narrow procedural question involving the availability of immediate appeals. So the case involves claims by ICE detainees against a government contractor who operates an ICE detention facility and who the plaintiffs in the case allege entered into a contract with the federal government to provide detention services, then forced detainees to perform much of the labor actually involved in running a detention center on a contract with the government, like cooking, like janitorial work. And this is work that detainees were sent to solitary confinement or denied food if they refused to perform.

• 1:01:27Leah Litman?

  And this case actually came to be in part because a man died in custody performing this work while being paid a dollar an hour for it. So Cesar Gonzalez Baez died in ICE custody from being electrocuted doing work for the LA Sheriff Department because, you know, this contractor also kind of contracted out some of the labor as well.

• 1:01:51Kate Shaw?

  So Gio raised what is known as a yearsly defense, essentially that ICE directed them to compel their detainees to perform this labor and that they were thus immune from suit. And they lost that argument in the district court. So the question in this case is whether the contractor gets an immediate appeal from that order. And this, unlike Hensley, actually seemed easier to call. I mean, I hope I don't prove to be unduly optimistic, but I did feel pretty good about actually the outcome, the likely outcome in this case, in part because of the flawless performance of Gupta Wessler, Jennifer Bennet, whose praises we have had occasion to sing before. She was amazing. And I think also possibly also in part because, although it's not probably going to be enough

• 1:02:33Kate Shaw?

  to carry the day in Lander, but in this case, because the federal government is actually on the side of the plaintiffs, that is, the detainees, rather than the ICE contractor. The contractor's arguments about protecting the federal government

• 1:02:44Leah Litman?

  Ring hollow.

• 1:02:44Kate Shaw?

  Ring a little hollow than the federal government is making the opposite set of arguments.

• 1:02:48Leah Litman?

  I just wanted to say one more beat on how amazing Jennifer Bennet is. Like, she and the team at Gupta Wessler, like, they're so good at selecting these winnable cases and being able to identify and channel and engage with and speak to the views of others who are probably not inclined to agree with them. Like, again, as you were saying, like, even the Trump administration isn't on the side of the contractor. The contractor is just stretching precedent, making silly policy arguments. And I think I really only heard Sam Alito ask a question that was friendly to the contractor.

• 1:03:21Kate Shaw?

  All right, so you're with me. Like, this one is one we can feel pretty good about. Okay, great. One more case, and this is on a topic that is near and dear to Leah's heart, Fernandez versus United States. And that is, of course, a sentencing case and an important federal sentencing case concerning the First Step Act's amendments to so-called motions for compassionate release. So, prior to the First Step Act, the Bureau of Prisons could file a motion in federal court where, quote, "extraordinary and compelling reasons warrant a reduction in the term of imprisonment," and where a reduction is consistent with the guidance from the U.S. Sentencing Commission. The First Step Act, or FSA, amended the law to allow persons who are detained, not just the Bureau of Prisons, to also file these motions.

• 1:04:00Leah Litman?

  And the question in this case is what constitutes extraordinary and compelling reasons? And the question specifically asks whether extraordinary and compelling reasons can include reasons that would also provide a basis for vacating someone's sentence under the, you know, more general standard federal post-conviction remedy in Section 2255. But it's not entirely even clear that this case cleanly presents that question, because the petitioner in this case argues that one of the extraordinary and compelling reasons warranting a sentence reduction is that he is actually innocent of the offense he was convicted of. And I know this will be shocking, but it is true. It is not clear whether establishing your actual innocence is grounds for federal post-conviction relief under Section 2255.

• 1:04:44Leah Litman?

  This was such a frustrating argument to listen to for several reasons. One is that the justices are just so obsessed with the prospect of possibly opening the floodgates for compassionate release motions. Like, they are so fixated on looking for ways to limit them, even when those limits ignore, like, the structure, function, and context of the relevant statute. I am working on a Law Review article about this. It just, like, drives me nuts. But just to, like, explain the precise issue here. So, Congress amended this statute, as you were saying, because Congress thought the Bureau of Prisons was not making sufficient use of these sentence reduction motions. I.e., they weren't filing motions when there were extraordinary compelling reasons.

• 1:05:26Leah Litman?

  But now, some justices, like Sam Alito, are all in a tizzy about how, before the law was amended, the Bureau of Prisons never sought sentence reductions in cases of trial Or changes in the law, but that just can't be dispositive of whether those kinds of claims can constitute extraordinary and compelling reasons since Congress amended the law because it thought the Bureau of Prisons wasn't bringing enough sentence reduction motions in cases of actual extraordinary and compelling reasons. Like, it's just obvious.

• 1:05:53Kate Shaw?

  Yeah, that seems like basically unanswerable and yet not sure the justices were seeing it that way. Brett Kavanaugh also wants to read the law to require the sentencing commission to affirmatively authorize a particular ground or basis for seeking a sentence reduction. That, too, doesn't really make sense under the statute. One advocate tried to suggest that relying on the sentencing commission for affirmative authorization in defining what constitutes extraordinary and compelling reasons would raise questions under Loper Bright, the decision overruling Chevron and announcing that courts, not agencies, define legal terms in a statute, to which Brett Kavanaugh kind of waved his hands and said, ah, seems like lots of policymaking discretion here, so looks good to me.

• 1:06:31Leah Litman?

  One, one, one singular bright spot in this argument was Justice Jackson, who, as is often the case in these federal sentencing matters, was just extraordinary, pointing out the many ways in which the federal post-conviction remedy is just different than these motions for compassionate release, such that it just doesn't make sense to think of compassionate release motions as end runs around post-conviction motions, even if you can raise similar claims in both contexts.

• 1:06:56Kate Shaw?

  I'm reminded of when then, you know, young-ish or younger Katanji Brown Jackson was being put on the sentencing commission in the early Obama administration and someone in the counsel's office was talking about Justice Jackson and doing an imitation of Justice Breyer talking about Justice Jackson, but he called her Katanji. And Breyer, as people know, is extremely fond of KBJ. And the imitation went something like, Katanji knows things. She knows things. And that was very high praise from Justice Breyer. And one of the many things she knows is sentencing, and it is very gratifying. She just knows it. And, you know, the rest of them just don't.

• 1:07:37Leah Litman?

  Is that one of the ways women ruin the workplace? By knowing things?

• 1:07:40Kate Shaw?

  By knowing things. I think that's, yeah, for sure. Definitely. Yep. But conferences among the justices? Oh, man, conference has been ruined by the knowers of things. The knowers with the notes, they know things and they take and bring their notes and the fun has just been gone for a while now. Okay, so let's briefly cover some cert grants and denials. As we predicted, so did lots of other people. The court denied Kim Davis's cert petition, which remember, among other things, had asked the court to overrule Obergefell. The fact of the denial was totally expected. It was kind of interesting that no one wrote to say, I am still gunning to overrule Obergefell, which, you know, there have been post-Obergefell separate writings by Thomas that have sort of let it be known that they're gunning to overrule.

• 1:08:24Leah Litman?

  I just don't think they have to, right? Like you have already emboldened so many state legislatures and other officials to try to chip away at Obergefell, if not directly target it, right? Like the Texas state system, allowing judges to decline to issue marriage licenses, you know, where they have religious objections. So anyways, but the court's denial of Kim Davis's cert petition generated such unearned good PR for the court because all of the headlines were just court turns away, request overrule Obergefell. And it just made them seem and look less extreme and reactionary than they actually are.

• 1:09:05Kate Shaw?

  Yeah, so modest, so restrained.

• 1:09:07Leah Litman?

  So demure, so mindful.

• 1:09:11Kate Shaw?

  One grant that it's not, I would say is not demure or mindful, but I think they actually kind of had to take this case because the Fifth Circuit ruling was completely insane. Okay, so this is a case that the court granted cert in involving Mississippi's rule for counting late arriving ballots. So this is actually a case we've mentioned before. A lot of states allow mail-in ballots to be counted if they are postmarked on or before election day, even if they arrive after election day. States take a bunch of different approaches to this, but you know, more than a dozen do allow those ballots to be counted. And in Mississippi, they allow ballots to be counted if they arrive within five days of the election. Again, so long as they're, you know, cast and postmarked on or before election day. People might remember, there was a lot of litigation over this question in Pennsylvania.

• 1:09:53Kate Shaw?

  In this case, the RNC has challenged the Mississippi law. And a divided panel of the Fifth Circuit issued a pretty unhinged opinion finding that Mississippi scheme wasn't consistent with federal law.

• 1:10:06Leah Litman?

  It's just like, wow, we've discovered after like 100 years that originalism and this statute actually means you can't count ballots after election day, right? Just at the very same time that the president, the leader of the Republican Party, has started making these claims. What a coincidence.

• 1:10:22Kate Shaw?

  Totally. Although the dynamics of kind of participation and voting by mail and all that, the partisan valence of all this is somewhat in flux. And so I don't know exactly how anyone is going to be benefited or disadvantaged, depending on how the court decides this case. I think that the reasoning of the Fifth Circuit was embarrassing, and I hope the court rejects the case on grounds of, you know, law.

• 1:10:44Leah Litman?

  Shame.

• 1:10:46Kate Shaw?

  But in terms of practical impact, I actually don't totally know. But in any event, the thing that I think is really important, in addition to disavowing like the really shoddy reasoning in the Fifth Circuit opinion, is the timing, right? Like, it's so important that they not sit on this case as states are gearing up to administer the midterm elections. So they have to decide it quickly so that there is a stable rule and states can conform their election administration to that rule. One other cert denial I just wanted to mention briefly that had an interesting statement attached to it. So this case was United States versus Vannano, and the court denied cert. But there was a SCOTUS blog post that I think has just gone up by Right to Democracies' Neil Weir, that basically the separate statement by Thomas and Gorsuch said that the territories

• 1:11:29Kate Shaw?

  clause of the Constitution gives Congress power over the territories, rightly understood, quote, "does not endow the federal government with plenary power within the territories." That's never been said by any federal judge, and it could be a very big deal if embraced by the full court. So just wanted to mention that statement.

• 1:11:46Leah Litman?

  And, I mean, that's a good thing. So maybe we should transition to our favorite things.

• 1:11:51Kate Shaw?

  Great.

• 1:11:51Leah Litman?

  Okay, so with Crooked Con and travel, I was able to do a lot of reading, so I have several recommendations. Broken Country by Claire Leslie Hall was beautiful in just like unexpected ways. I loved it. I also read, and I know I've already recommended this one to you, Kate, because it's kind of climate survival-ish, climate apocalypse, Wild Dark Shore by Charlotte McConaughey. Another great book I read, First Lie Wins by Ashley Elston. In the non-reading bucket, Robyn has a new single, her first, I think in like seven years, Dopamine. It is excellent. New album coming next year, so cannot wait for that. Also, Joyce Carol

• 1:12:31Leah Litman?

  Oates' social media feed, just murdering Elon Musk over and over, like, great defense of the humanities, of reading, of like, just terrific. And it called to mind, and I'm sorry, Kate, this is a TV reference, but the show your oats kind of opening conceit in the early episodes of Younger, and I just, I love the confluence.

• 1:12:54Kate Shaw?

  I've actually seen that first season.

• 1:12:56Leah Litman?

  You have?

• 1:12:56Kate Shaw?

  Yeah, I have.

• 1:12:57Leah Litman?

  Look at you!

• 1:12:58Kate Shaw?

  Yes, show your oats, right? She gets everybody flashing for Joyce Carol Oates.

• 1:13:03Leah Litman?

  Exactly. And, you know, if her takedown of Elon doesn't, you know, merit doing that again, I'm not sure what will. So yeah, listeners, make show your oats happen again. One last favorite thing was just getting to hang out in DC, like, not only with you, Melissa, Melody, Michael, and the other wonderful people who are part of Crooked, but also all of the Crooked Con attendees and listeners. I wanted to give a special shout out to Ben at Albie, who is a fan of the show and listens, and I hope that we, as a team, are able to make it back there and get together. I'll be with you.

• 1:13:42Kate Shaw?

  Okay, so those are great recommendations. I am very excited to read Wild Dark Shore. I have not started it, but I will. I have started listening to the newest season of the Serial podcast, The Preventionist, which is about a spate of removals of children from their families on very dubious grounds of alleged child abuse in Lehigh County, Pennsylvania. Totally gripping. Serial's still got it, even though they've been going for a lot of years. I saw Robin has a new single I haven't listened to yet. I didn't realize it had been that many years since like, I mean, I still listen to like Call Your Girlfriend, like Dancing on My Own all the time. So I'm very excited for new album. Florence and the Machine dropped a new album a couple of weeks ago, which is great. Leah, you know this, but there was a performance at Symphony Space of the playwright Thornton Wilder's one act, The Long Christmas Dinner,

• 1:14:27Kate Shaw?

  that is just like a great and kind of searing, very short play that a friend of the pod, true friend of the pod, not like Sam Alito, friend of the pod, Chris Hayes, was in the reading of. And so was Renee Elise Goldenberry and a bunch of other really amazing

• 1:14:41Leah Litman?

  It's so much FOMO.

• 1:14:43Kate Shaw?

  It was really cool. We should have flown you in for it. But that was, that's just like a great show that I did, that I did not know. Rebecca Solnit's A Year Out From Trump's Election: Resistance Is Everywhere, really good uplifting read in The Guardian. She is amazing. So yeah, those are some things that gave me some hope this week.

• 1:15:01Leah Litman?

  I have to just note one other thing. This isn't a favorite thing. This is like a thing I hate. But just in this last week of like the waves of misogyny last few weeks, just like being reminded of, like, listeners, if you haven't, you kind of need to read the New York Times story that provides more details about one of the women victimized by former representative and former Attorney General nominee Matt Gaetz, you know, human frat prattle with Botox injections. Like, it just gives more details about her story. And it just makes clear like how our society's like tattered social safety net is part of what makes girls so vulnerable to abuse

• 1:15:41Leah Litman?

  and exploitation. This is like a 17 year old who, you know, lived in a homeless shelter and needed money for braces. Like, it's, it's just excruciating.

• 1:15:50Kate Shaw?

  Yeah, like a teenager doing sex work to raise money to get braces to fix her teeth. And any reporting on this story that does not include and high up include that this is the person that Donald Trump wanted to make the Attorney General of the United States is engaging in malpractice.

• 1:16:06Leah Litman?

  Yeah.

• 1:16:06Kate Shaw?

  But I agree. It's a very hard but necessary read. So everybody should read it.

• 1:16:10Leah Litman?

  Yeah.

• 1:16:11Kate Shaw?

  Okay, so some housekeeping before we go. Once again, want to thank everybody who came to CrookedCon and made it possible. Attendees, speakers, sponsors, we could not have done it without you. We really did enjoy meeting listeners. It was awesome to hang out with hosts of other shows. Ben Wikler, Jessica Valenti, Andrew Golis, our friends from Americans United for Separation of Church and State. They were there and just like so many other great, great people in the fight in various ways.

• 1:16:38Leah Litman?

  Yeah, and getting to hang out in like the take lounge with the, you know, content creators and again, like getting to hang out with like the people we, you know, work with at Crooked, but remotely. I just loved like getting to talk with the listeners, you know, after the live show and taking pictures with them. That is always so fun and yeah, it was just wonderful.

• 1:16:59Kate Shaw?

  It was great and turns out there were cameras rolling. Of course there were. So if you were not there, but you are interested in listening to some of the conversations and the panels, et cetera, you can go to crookedcon.com and there will be a bunch of live from CrookedCon content there. I guess there's also some exclusive CrookedCon merch for sale. You can also, at that same URL, crookedcon.com, sign up to get details for our next CrookedCon, which is coming to you sometime in 2026, just in time for the midterms.

• 1:17:30Leah Litman?

  And Brett Kavanaugh's next melty, hopefully.

• 1:17:33Kate Shaw?

  Hopefully.

• 1:17:33Leah Litman?

  One of his next melties.

• 1:17:35Kate Shaw?

  Yeah, I mean, I wouldn't mind more between now and then, but certainly one then.

• 1:17:38Leah Litman?

  Yeah.

• 1:17:46Leah Litman?

  Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me, Thea Litman, Melissa Murray, and Kate Shaw. Melody Raul is our senior producer and editor. Our producer is Michael Goldsmith. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. And thanks to our digital team, Ben Hathcock, Joe Motosky, and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:18:40Speaker 09

  Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is gonna have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual Crooked Con. It's gonna be the Podstate of America hosts and some of the smartest people in politics. We're gonna try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.

• 1:19:21Speaker 13

  In business, there's the easy way with Staples or the hard way. Hard means...

• 1:19:26Speaker 14

  Hey, did you proof the signs before having them printed?

• 1:19:28Speaker 13

  I think so.

• 1:19:29Speaker 14

  Because we're having a clearance sale, not a Clarence sale.

• 1:19:32Speaker 13

  Oh, big difference. Easy means professional-looking prints every time. Don't choose hard, choose Staples. And now at Staples, get 25% back in points on all custom prints. That was easy. Shop Staples online, in-store, or in the app. Ends 10/31, limit $250 and earn points. $100 minimum purchase. Exclusions apply. See app for details.

• 1:19:51Speaker 15

  Monday night brings one more big matchup to settle into. And when every play matters, the last thing you wanna do is step away to figure out dinner. That's where DiGiorno comes in. Get a DiGiorno pizza ready before kickoff, then enjoy restaurant-quality taste fresh from your own oven while you stay locked into every play. Stock up on DiGiorno over the weekend so when Monday night rolls around, the only thing you sweat is the game. Shop now at the link in the episode description. It's not delivery, it's DiGiorno.