Will SCOTUS Sign Off on Religious Charter Schools?

Is this the term when the Court says “see ya” to the Establishment Clause? Leah, Melissa and Kate consider that question in their recap of this week’s religious charter school case, Oklahoma Charter School Board v. Drummond. Also covered: Advocate Lisa Blatt’s run-in with Neil Gorsuch during oral arguments for a disability rights case, opinions concerning SSI benefits and the Department of Transportation, and the Trump administration’s absurd investigation into the Harvard Law Review. Hosts’ favorite things: Kate: Sinners https://www.sinnersmovie.com/; Is It Happening Here? https://www.newyorker.com/magazine/2025/05/05/is-the-us-becoming-an-autocracy by Andrew Marantz (New Yorker) Leah: Girl on Girl How: Pop Culture Turned a Generation of Women Against Themselves https://bookshop.org/p/books/girl-on-girl-how-pop-culture-turned-a-generation-of-women-against-themselves-sophie-gilbert/21683668, Sophie Gilbert; The Tide is Turning https://slate.com/news-and-politics/2025/04/100-days-trump-tide-finally-turning.html, Dahlia Lithwick (Slate); Trump & Bukele’s Concentration Camp https://nymag.com/intelligencer/article/el-salvador-cecot-concentration-camp-trump-bukele.html, Andrea Pitzer (NY Mag); Just Security Litigation Tracker https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/ Melissa: The Secret History of Home Economics: How Trailblazing Women Harnessed the Power of Home and Changed the Way We Live https://bookshop.org/p/books/the-secret-history-of-home-economics-how-trailblazing-women-harnessed-the-power-of-home-and-changed-the-way-we-live-danielle-dreilinger/95ac0c5fb50a192e?ean=9781324004509&next=t, Danielle Dreilinger; The Pauli Murray Center for History and Social Justice https://www.paulimurraycenter.com/ Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:01Leah Litman?

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

• 0:45Leah Litman?

  Join Americans United for Separation of Church and State and their growing movement, because church-state separation protects us all. Learn more and get involved at au.org/crooked.

• 0:57Speaker 01

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

• 1:09Speaker 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."

• 1:39Leah 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. I'm Melissa Murray. I'm Leah Litman.

• 1:49Speaker 03

  And I'm Kate Shaw. And the Supreme Court has just wrapped its April sitting, so we're going to start with a recap of the cases the court heard last week. We will also cover some developments in pending cases, as well as the two opinions the court issued last week. And we will then turn to some developments in the executive branch and a bit beyond, including delving into some of the political polling that was conducted to gauge public views at the administration's 100-day mark. We're a law podcast, but at this moment, law and politics are even more inextricably linked than they usually are, and we are taking the glimmers of hope where we find them. And we'll end the episode with some court culture, including some explicit efforts to make the pages of top law reviews white again.

• 2:27Leah Litman?

  So first up are recaps, and we will begin with an argument the court heard in the super important case out of Oklahoma involving what would be the nation's first religious charter school. This is the third major religion case the court has heard in the last month. And here too, religion, or at least some religions, the ones the court likes, look headed for a big win. And this one with potentially seismic consequences, both for education and for the principle that there are any limits government may place on religion in public life.

• 3:01Melissa Murray?

  It's worth noting here that the math is going to be very different in this case from the other religion cases that the court heard this term because Justice Amy Coney Barrett is not participating in this particular case. She has not told us why she has chosen to recuse herself. But we will note that the charter school at issue, St. Isidore's, is represented by the Religious Liberty Clinic that's housed at Notre Dame's law school, where Justice Barrett taught before becoming a federal judge. And Professor Nicole Stell Garnett, who's apparently a very close friend of Justice Barrett, teaches at Notre Dame and has been a leading and very vocal advocate for allowing the use of public funds at religious schools. So maybe that all has something to do with it. Who can say?

• 3:44Speaker 03

  Who can say? Seems likely. And what all this means is that if the court ties four to four with Barrett recused, the Oklahoma Supreme Court's ruling against the Charter School Board would stand. So the key question going into this case was whether there was one vote, a man, any man, to join the Democratic appointees. But after the argument, I am really not seeing one.

• 4:07Melissa Murray?

  There's not one man.

• 4:08Speaker 03

  No, not, not. Can't find a good man out there.

• 4:11Leah Litman?

  Apparently it is all men.

• 4:12Speaker 03

  Yeah, it is definitely all of those men.

• 4:15Melissa Murray?

  If only we could find a bear to join the liberal justices.

• 4:18Speaker 03

  Definitely pick that one.

• 4:19Melissa Murray?

  That would solve our problem.

• 4:20Speaker 03

  Yep. But what all this means is that between Catholic Charities and Mahmoud, those are the earlier religion cases the court heard this term, and this one, we are likely looking at a clean sweep for religion plaintiffs in the court this year. And this case, together with Mahmoud, could have like genuinely transformative effects on public education. So we will get into all of that.

• 4:40Leah Litman?

  So here's how this case arose. Oklahoma, like many other states, allows charter schools as part of its public school system. By law, such schools have to be, quote, "equally free and open to all students as traditional schools," end quote, and not charge tuition. Also, like other public schools, they must be, quote, "nonsectarian" in programs, admissions policies, employment practices, and all other operations.

• 5:04Melissa Murray?

  So that has actually been the law in Oklahoma for 25 years. But what is a little subtle law among individuals who'd like public subsidies for religious institutions? So in January 2023, the Archdiocese of Oklahoma City and the Diocese of Tulsa formed a nonprofit corporation called St. Isidore of Seville Virtual Charter School. St. Isidore's is explicitly organized as an instrument of the Catholic Church, and its founding documents reference evangelizing. St. Isidore is applied to the state charter board for recognition as a charter school within that charter school network. The charter board granted the application, which set in motion this particular case.

• 5:42Speaker 03

  So in response to that decision by the charter board, the state attorney general then sued to challenge that decision, and the Oklahoma Supreme Court ruled that this contract with St. Isidore violated Oklahoma as well as federal law. It concluded that public funding for a religious charter school violated the Oklahoma State Constitution's prohibition on the public funding of religion, as well as Oklahoma's statutory requirement that Leah referenced a minute ago, that charter schools must be nonsectarian in their programs, admissions policies, and other operations. In addition, the Oklahoma Supreme Court concluded that including a religious school in the public charter school network raised concerns regarding the federal Constitution's Establishment Clause.

• 6:18Leah Litman?

  What's that? Don't know her? Uh-uh. Question?

• 6:23Speaker 03

  A lot of the men's on the Supreme Court also raised questions in that spirit when there were valiant efforts made by Greg Gar, representing the Oklahoma Attorney General, to remind the justices that that is still a thing in the Constitution, but they were not hearing it. But at least the Oklahoma Supreme Court seems to think that that's still a part of the Constitution, and that it did not allow a scheme in which public school students were required to spend time in religious instruction and activities, and that permitting state spending in support of the religious curriculum and activities within St. Isidore also violated the federal Constitution's Establishment Clause. The court also held that St. Isidore is a government entity, given the many ways that Oklahoma charter schools are integrated into the state and the state's public school system.

• 7:03Melissa Murray?

  So just to be clear here, the very conservative Oklahoma Attorney General and the very conservative Oklahoma Supreme Court seem to think law still matters. So weird. These are not liberals and they are not hostile to religion. I do admire their optimism and they have emphasized throughout these proceedings, including in the Attorney General's brief in the Supreme Court, that they are very supportive of free exercise of religion, but they still recognize that there are limits on permissible government support for religion and that one of those limits is state funding for religious public schools is unlawful. But that position may be too much for the Supreme Court.

• 7:47Melissa Murray?

  I will say, reading the briefs from the Attorney General, it's like being in some kind of weird Republican fever dream where he's like, seriously, I'm a Republican. But there's this thing called the separation of church and state. Do you remember that? You haven't yet gotten the memo that there isn't actually such a thing. Yeah. It hasn't trickled down Oklahoma yet. Fed Soc, get to work there. Anyway, so that, of course, is the question in this case. So we're now before the Supreme Court with the federal government on the side of the charter school. And, ooh, boy, they were not interested in even modest limits. No, not at all. The idea that there should not be public religious sectarian schools, too much for this Supreme Court.

• 8:32Melissa Murray?

  And I think it just suggests that we are literally about to be in this brave new theocratic world that is very gilead forward. So I want to play a couple of clips. Let's first start with Justice Kagan toward the end of the argument where she asked about the consequences of a ruling for St. Isidors. And the attorney here, who is the lawyer for the Oklahoma AG, Greg Gahr, is a former federal government lawyer. He's a longtime alum of the Solicitor General's office. He briefly was the Solicitor General and he's now- In a Republican administration, in a Republican administration. All to say, no liberal squish here. He's not listening to this podcast. Anyway, let's hear that tape.

• 9:19Speaker 05

  What would happen in Oklahoma, in these 40-plus other states with laws of a similar kind that declare charter schools to be public schools? What kind of issues would they have to confront in the future? What do you think the range of choices they would make is likely to be?

• 9:36Speaker 06

  First, every charter school law in the federal charter school program is unconstitutional because they all require the charter schools to be public schools and that they be non-sectarian.

• 9:44Leah Litman?

  Cool, cool. Every charter school is now unconstitutional. Every charter school law, no big deal. Now that we have that little thing out of the way, maybe we can go into the details of this delightful argument. So, a couple of different questions to unpack. There's the question of whether these schools are state actors, that is, public entities. If they are state actors, public entities, then the Constitution applies to them because the Constitution applies only to state actors, not private actors. And at least for now, that should mean, as state actors, they should not be teaching religion as truth. So that's one thing. Then there's the question of whether it is permissible to exclude religious charters

• 10:28Leah Litman?

  from the school system of public charter schools. You know, these two questions can't really be separated. If these are public schools, then at least for now, the rules at least permitting, if not requiring them, to avoid teaching religion as truth are still intact, so this exclusion would be fine. And if these are private schools applying for a government benefit like tuition assistance or playground repaving, then the court's recent cases could require Oklahoma to grant a charter to St. Isidore's, but not necessarily. So, I kind of wanted to just summarize what Justices Kagan and Jackson were kind of saying on these two points. So, Justice Kagan kind of told the slate of three lawyers arguing for the charter schools' position, "Look, my guys, there's one of two ways this plays out.

• 11:12Leah Litman?

  Either these schools are public schools. They look public. They receive public supervision. They are integrated into the public school system in which case..."

• 11:19Melissa Murray?

  Quack, quack, quack.

• 11:20Leah Litman?

  Right, right. "In which case, public schools shouldn't be teaching religious indoctrination. Or, they're private schools, in which case, the schools could..." That because, you know, they're religious schools, they get to go through all of the conditions in the state's charter school program and say, you can't apply any of those requirements to me because I'm entitled to participate in this program. So that would potentially allow the schools to get out of those requirements that insist they be open to all individuals. Another way of looking at these same issues came from Justice Jackson, who said, look, you know, the key question and rule here is that the state has to offer the same benefit to religious believers and nonreligious believers. Here, that benefit is nonsectarian

• 12:03Leah Litman?

  education. And religious schools aren't asking for the same benefit. They are asking for a different, special one, namely sectarian education and religious indoctrination.

• 12:15Melissa Murray?

  Basically, the two ways this plays out are both a bag of dicks.

• 12:18Leah Litman?

  That is a shorter TLDR of what's going on here. And part of the issue in this case was how to read the court's prior decisions in this area that had taken in on this steady march toward Gilead. So there was Trinity Lutheran, where the court had said states could not deny funds to religious schools when those funds were going to be used for playground paving. In that case, the court had a hilarious footnote that said this case is just about playgrounds, you know, wink, wink, nudge, nudge, Catherine Hahn, winky face here, because we all know how that played out. Because subsequently, in Espinoza versus Montana, the court said, no, you can't actually deny tax credits that

• 13:00Leah Litman?

  are going to be used for religious schools. And then Carson versus Makin, they said, no, you can't actually deny tuition assistance for religious schools. So that has been the slow descent into Gilead, where we are now.

• 13:13Speaker 03

  Roberts, I thought, was initially a little hard to read, although by the end of the argument, I was where I started our conversation with, which is there's not a man. But he, I thought, at least early on, you know, having authored the opinion in Trinity Lutheran that set us on this path, and maybe at one point actually believed the bullshit in his own footnote, like, seemed to kind of suggest that maybe this case does go significantly further than cases involving these discrete issues, playground resurfacing, tax credits. So let's play that clip here.

• 13:43Speaker 07

  You rely heavily in your brief on a number of cases. Trinity Lutheran, Espinoza, Carson. Those involved fairly discreet state involvement. In Trinity Lutheran, they're going to pave the, or you know, put wood chips on the playground. In Espinoza, it was a tuition credit. In Carson, again, tax credits. I mean, this does strike me as a much more comprehensive involvement. And I wonder, what case do you think supports the position with respect to that level of involvement?

• 14:24Speaker 03

  But later in the argument, I totally lost hope for the chief.

• 14:28Leah Litman?

  Yeah. And after the chief deigned to suggest that maybe this case requiring a state to establish a school with religious instruction and religious indoctrination might be a step beyond the court's prior cases that provoked a little fit of passive aggressiveness from Justice Alito, who felt the need to characterize any such distinctions with those prior cases as absurd. So you can hear that here.

• 14:55Speaker 07

  The three cases the chief justice referred to, Trinity Lutheran, Espinoza, and Carson, involved grants and tax credits. This involves a contract. Is that a relevant constitutional distinction?

• 15:08Leah Litman?

  Sam just has such a winning personality.

• 15:11Melissa Murray?

  He does have a winning personality.

• 15:14Leah Litman?

  Smile more.

• 15:15Melissa Murray?

  He should smile more. He's so pretty when he smiles. Not to be outdone by Justice Alito, Justice Kavanaugh stepped in to reframe all of this as extremely very, very normal. So this is response to Justice Sotomayor, and I just want to make sure this is clear. You're not saying that the state can favor one religion over another? We are not saying that at all. And you're not saying, I think, but confirm.

• 15:44Leah Litman?

  That the state could say, we're going to have charter schools, but only religious charter schools. We are not saying that at all. Right. If you have charter schools, you can't favor religion. Your point is you also can't disfavor religion. That's right. This is just a classic effort to sanwash what is happening. He is literally floating things, trying them out as possible vignettes to include in his future cab currents. That's just going to say, sure, we're saying religious public charter schools are all good, but here are all the things we haven't yet okayed. So please write that I'm very reasonable and very smart in your coverage. Right? Like, right.

• 16:25Speaker 03

  It writes itself. No, yep, yep.

• 16:27Leah Litman?

  Exactly.

• 16:28Melissa Murray?

  I just hope it's not just bullet points of like things that are still okay. And, oh, you know it will be.

• 16:33Leah Litman?

  We'll see how much effort he puts into this one and whether he, whether he arrives at a banger like the Constitution is neither pro-life nor pro-choice. I'm not sure how he's going to massage that one here. Like, he's just going to have to say, the Constitution actually is pro-religious indoctrination.

• 16:51Speaker 03

  Yeah, yeah.

• 16:52Melissa Murray?

  I will give him credit for saying, there are still lines that we're breaking. Here are all the lines.

• 16:57Leah Litman?

  Just like all of those lines in Trinity Lutheran, right?

• 17:00Speaker 03

  It's pro, it's pro-religious schools, but not anti. It's not required that all schools be religion. He's going to say that. It's not required that all schools be sectarian. And he's going to offer that up as an important note of compromise.

• 17:11Leah Litman?

  The Constitution neither requires nor prohibits all schools to be religious.

• 17:17Speaker 03

  Exactly.

• 17:18Leah Litman?

  Notice how I have arrived at a compromised institutionalist position.

• 17:22Speaker 03

  We got it.

• 17:23Leah Litman?

  Woof. So I listened to this argument live and therefore I wasn't able to listen to it at like two times speed like I usually listen to arguments.

• 17:32Speaker 03

  Because we're recording on Wednesday afternoon and I found that really frustrating.

• 17:36Leah Litman?

  It was, especially because I know the phrase mouth breather is usually meant as an insult, but Justice Kavanaugh just sounds like a mouth breather to me.

• 17:45Speaker 03

  He's dead. Stop it, Leah. He's gone.

• 17:48Leah Litman?

  Look, I just, those are my thoughts. Speaking of mouth breathers, the newly confirmed Solicitor General John Sauer participated in the case on behalf of the federal government. And his participation is perhaps best summed up by Justice Sotomayor's statement during the sereatum questioning period. The sereatum questioning period, just to remind everyone, is when each justice in order of seniority is given the chance to ask an advocate questions if they so choose. And when it was Justice Sotomayor's turn and the chief asked if she had questions for Solicitor General Sauer, she just said, No, thank you. And I thought, same girl, same. I'm good. I'm all full up here. I'm bullshit. Thank you.

• 18:33Leah Litman?

  Exactly. Like, the specter of the federal government arguing that the Constitution requires publicly chartered religious schools was so striking to me. And Justice Sotomayor and Kagan kept asking the Solicitor General, are you conceding that the federal charter school program is unconstitutional? And his response was, not exactly, or, well, only parts of it.

• 18:55Melissa Murray?

  Well, I mean, that's going away because we don't have a Department of Education, which is honestly the answer he should have given.

• 19:00Leah Litman?

  Snaps.

• 19:01Melissa Murray?

  It's moot.

• 19:02Leah Litman?

  No need to decide that, you guys. Saved you the problem.

• 19:05Speaker 03

  And we should say that Sotomayor declined her opportunity to go back at Sauer during the sereatum period. She did take some opportunities to probe the position of the federal government during the free for all, when she did note that the federal government had strikingly changed positions in this case during the Biden administration. It was on the other side. It switched to join the charter school and the charter board in this argument. So as we alluded to earlier, there was just a lot of dripping contempt for the Establishment Clause on display among the men's on the Supreme Court. So maybe let's just play a couple of clips of the Democratic appointees basically noting the contempt their brethren seem to have for that clause that is still in the copy

• 19:50Speaker 03

  of the Constitution.

• 19:51Melissa Murray?

  And has always been there, originally there in the text, originally and textually there.

• 19:56Speaker 05

  So I'm just trying to understand your Establishment Clause, nothing to see here position. So what you're basically saying, there's no longer no play in the joints, this has nothing to do, there's no Establishment.

• 20:12Leah Litman?

  Really, what you're saying is the free exercise clause trumps the essence of the establishment clause. So, looking for crumbs here, did appreciate Justice Kavanaugh offering a plug for a key theme of my book, which is how these guys love to maintain that they in mainstream Christian religions are the real victims of everything, including law. So, let's play that here.

• 20:38Speaker 03

  All the religious school is saying is, don't exclude us on account of our religion. I mean, if you go and apply for, to be a charter school, and you're an environmental studies school, or you're a science-based school, or you're a Chinese immersion school, or you're an English grammar-focused school, you can get in. And then you come in, and you say, "Oh, we're a religious school." It's like, "Oh, no. Can't do that. That's too much. That's scary. We're not going to do that." And our cases have made very clear, and I think those are some of the most important cases we've had, of saying, "You can't treat religious people, and religious institutions, and religious speech as second-class in the

• 21:23Speaker 03

  United States." And when you have a program that's open to all comers, except religion, "No, we can't do that. We can do everything else," that seems like ranked discrimination against religion. And that's the concern that I think you need to deal with here. This is literally ripped from the pages of your book. It was incredible.

• 21:47Leah Litman?

  I didn't send him an advanced copy. I don't know who did.

• 21:50Speaker 03

  Somehow, he got one.

• 21:52Leah Litman?

  Yeah.

• 21:53Speaker 03

  The idea that we are preferencing environmental charter schools, Chinese-language immersion schools.

• 21:59Leah Litman?

  No.

• 22:00Speaker 03

  Yeah.

• 22:01Melissa Murray?

  Let me tell you what that means. He's talking about wokeness, like the religion of wokeness. Environmental charter schools, like schools that, you know, like let kids play in forests and talk about climate change, Chinese immersion schools, diversity, he's talking about wokeness, and we can subsidize wokeness, but we can't subsidize religion? That's his basic point.

• 22:20Speaker 03

  Totally.

• 22:21Melissa Murray?

  I get that mouth breather.

• 22:22Leah Litman?

  Yeah. Also, it was always the natural endpoint for a bunch of bros who insist that LGBT equality and the mere acknowledgement of the existence of LGBT individuals is ranked discrimination, to eventually claim that the Establishment Clause is also ranked discrimination. So, thank you Brett Neal, Sam Clarence, and Chief Y for confirming everything I wrote about you and warned about you in Chapter 2. So, the book will be out next week, next week, but you can preorder it now. The book is called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. There's a preorder link in the show notes. And again, Brett Kavanaugh just performing Chapter 2.

• 23:02Melissa Murray?

  Speaking of Chapter 2, Justice Alito was in rare form. So, let's play this question/sililoquy, which was really a mashup of some of his favorite right-wing Fox News tropes. Schools telling kids to change their gender, the 1619 Project, and then the nostalgic invocation of the randomly selected year, 1955. Let's go.

• 23:27Speaker 03

  All right. Could a school say, "We're going to be a LGBTQ+ friendly school so that the books that elementary school children are going to read are going to have lots of LGBTQ+ characters, same-sex couples, and they are going to send the message that this is a perfectly legitimate lifestyle." They're going to tell the little kids, "If your parents may say you're a boy or a girl, but that doesn't mean you really are a boy or a girl." Could they do that?

• 24:02Speaker 07

  All right, I'll give you another example. Could a school say, "We're a progressive school, and we're going to do everything the state wants you to do, but we're going to teach history from the 1619 Project standpoint"?

• 24:15Speaker 06

  No, because they'd have to meet the state's academic standards, and that would not be allowed.

• 24:20Speaker 07

  Why would that not be allowed? We're going to make sure students know a lot about slavery, and Jim Crow, and the treatment of Native Americans.

• 24:34Speaker 06

  Just like a traditional...

• 24:36Speaker 07

  They can't do that? They can't emphasize...

• 24:39Speaker 06

  Just like a traditional public school, there would be some leeway there, but with respect, they could certainly couldn't set focus their curriculum just on that. And let me give you the citation so you can look at the academic standards.

• 24:48Speaker 07

  On the other hand, I don't want this to be one sided. So suppose the school says, we're going to teach American history like the way it was taught in 1955. So we're going to celebrate the founding fathers and we're not going to say anything about their shortcomings. And we're not going to make, we're not going to say a whole lot about the dark episodes in American history. Could they do that?

• 25:11Melissa Murray?

  What is so salient about 1955?

• 25:14Speaker 03

  Just randomly just pulled it out, random number generator.

• 25:18Melissa Murray?

  What is it?

• 25:19Speaker 03

  This was truly like a Mad Libs of-

• 25:23Melissa Murray?

  Just random conservative Fox News talking points.

• 25:27Speaker 03

  Yep. He had something get off his chest, got it off his chest.

• 25:31Melissa Murray?

  I'm just waiting for the day he flies the Confederate flag upside down at Long Beach and then we'll know.

• 25:38Speaker 03

  Yeah. No, you gotta fly right side up. You can't disrespect it by flying it.

• 25:42Melissa Murray?

  That's true. That's true. That one goes right side up, baby.

• 25:45Speaker 03

  You're right. What am I thinking? Wokeness. Upside down Confederate flags. That is woke mind virus. That's right.

• 25:55Melissa Murray?

  Correct. That would be ranked discrimination against Sam Alito.

• 25:59Speaker 03

  Correct.

• 26:00Melissa Murray?

  Correct.

• 26:03Leah Litman?

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• 27:28Speaker 03

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• 28:05Speaker 03

  All right, so I just, I somehow thought that Barrett being out of this case meant there was a chance that at least the chief would sound no sanity. The whole thing was completely insane. I mean, there's no problem for St. Isidors operating as a private school. You would have tons of freedom and autonomy. But the idea that we have gone as far from settled principles of the Establishment Clause as fast as we have is pretty stunning. And yet, you know, at this point, like, everything is up for grabs. Public schools, prayer, all of it.

• 28:39Melissa Murray?

  Can I just come back to something? I'm going to come back to Trinity Lutheran. Our good friend, Justice Breyer, concurred in that case. And again, I just come back to, he was so optimistic. Kagan did too. Yes. This First Amendment appeasement does not work. They just keep chipping away. And like, Justice, I'm bringing up Justice Breyer because he wrote a separate concurrence. And he seemed to be like, so we're going to hold this line, right? We're going to hold this line. I was like, no, Steve, they're not going to hold this line. They're not. You sweet summer child. You sweet summer child, Steve Breyer.

• 29:13Leah Litman?

  So, just wrapping up this bad boy, let's play this colloquy at the end between Greg Gahr, who again was representing the Oklahoma Attorney General, and Justice Kavanaugh, which was both surreal in treating the court's pending decision in Mahmoud versus Taylor as already decided, and seemed to suggest that if the court allows this religious charter school, it's not clear why the cases like those preventing prayer in public schools should stand either.

• 29:39Speaker 03

  In terms of the principles, how is it different from a choice program in the sense that no student is compelled to go to a religious charter school? And I would, of course, agree with you, if that were the case, that would be a huge problem. No one's compelled to go. You have a choice to go to the traditional public school, or you can go to a charter school of your choice that you can obtain admittance to, or you can go to a private school. No one's being compelled to go to any school. It's just another option that is available.

• 30:13Speaker 06

  That's right. And this court had a case last week in Mahmoud where it involved, you know, story time with certain offensive messaging. No parent was required to send their child to that charter school. And I don't think that case would come out differently to that public school, because I don't think it would come out differently because they could have picked a charter school. And similarly, this case in the--

• 30:31Speaker 03

  The other options in the Mahmoud were not free. Okay, so that's a big difference. It was telling the parents there, "Oh, don't go to the public school if you don't like it. Go pay $10,000." Well, that's a pretty big burden. That's not what we're talking about.

• 30:44Speaker 06

  I don't think Mahmoud would come out differently if you had, in jurisdictions where parents had the option to send them to a charter school, Your Honor. Maybe the court will say otherwise, but I doubt it.

• 30:53Leah Litman?

  We're just taking enormous leaps and bounds on the path toward theocracy.

• 30:59Speaker 03

  Indeed.

• 31:00Melissa Murray?

  I just want to point out, obviously, this case is going to have enormous consequences for religious liberty as we move boldly to make America Christian again. It will also have huge consequences for charter schools, especially charter schools in blue states, who I think are really going to be upended here. But it's also worth noting that one of the questions presented to the court here is about the scope and substance of the state action doctrine, and that is-- Doctrine that tries to sort out, among other things, the circumstances under which a nominally private entity is so intertwined with the state and the performance of public functions that it effectively becomes an arm of the state. And so one of the issues here is whether St. Isidore's, as part of this public charter school network, is performing state functions, education, and therefore is no longer wholly private, but is an arm of the state.

• 31:44Melissa Murray?

  And if it is, whether the kinds of constraints that exist for public actors, like the Establishment Clause, are now in play. Again, it seems clear that the court doesn't think the Establishment Clause is a thing, may not think that St. Isidore has become sufficiently entwined with the state to become a public actor. But either way, this isn't just going to upend religious liberty. It's also going to upend the state action doctrine as well. And that, I think, is also deeply problematic.

• 32:12Leah Litman?

  It's like the court is channeling Oprah. And it's like, we're going to blow up that area of law and this area of law and you, you, you. Right? Like just YOLO forever.

• 32:22Melissa Murray?

  Although I bet they're not going to be consistent about it because they might not find that St. Isidore is a state actor here. But you know, there are questions when we get to the part where we talk about making Law Review's white again, where there's a real question about whether the Harvard Law Review is an arm of Harvard University, not a state actor, but an actor that is in receipt of federal funds. Similar questions have occurred in the context of public schools and whether, you know, certain aspects of public schools are part of the state, too.

• 32:48Leah Litman?

  Yeah. I am not going to include what I had planned to be my super bleak wrap up of this argument recap. Instead, I am just going to march us onward to the next argument recap, which also concerned schools, public education. So the court heard an important disability rights case, AJT versus Osseo Area Schools. And I'm nervous to describe the issue the court took up when it granted cert in this case because characterizing the party's positions and the issue in the case provoked a little bit of a kerfuffle during the argument.

• 33:24Speaker 03

  What you're saying, depending on your characterization, somebody might just fly through the computer screen and scream at you for your blatant mischaracterization. Yeah.

• 33:33Leah Litman?

  Precisely.

• 33:35Melissa Murray?

  Leah is understanding things. There was almost a shanking up at Wood First Street. Let's just put it that way. Okay. The case concerns the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which require reasonable accommodations for persons with disabilities. The question for which the court granted cert was whether, when a child with disabilities sues under these provisions because they say their educational services didn't offer a reasonable accommodation, whether the child has to show bad faith or gross misjudgment in order to prevail under the laws. That is, the petitioner and the federal government, as well as the court, thought that they were taking a case that would decide whether the ADA and the Rehabilitation Act claims seeking reasonable accommodations in the educational context have this uniquely

• 34:20Melissa Murray?

  demanding standard, that is to show bad faith or gross misjudgment.

• 34:23Speaker 03

  But the respondent's school district's lawyer, Lisa Blatt, did not appreciate this characterization of their position or the characterization of what the court had supposedly said below. So rather than describe it, let's just play that clip here. Well, what is a lie and what is inaccurate?

• 34:39Speaker 05

  Well, no, no, no.

• 34:39Speaker 03

  If I could just get this out, please. What is a lie and inaccurate is that we ever said in any context that this court should take the same language and define it differently depending on context. That is not true. There is no statement. They adding words to our mouth. We never said you should have a double regime. What the school district has said, which is what Monahan said, is-

• 34:59Speaker 01

  You believe that Mr. Martinez and the Solicitor General are lying?

• 35:03Speaker 03

  It's an oral argument. Yes, absolutely. It is not true that we-

• 35:07Speaker 01

  I think you should be more careful with your words.

• 35:09Speaker 03

  Okay, well, they should be more careful in mischaracterizing a position by an experienced advocate of the Supreme Court.

• 35:15Leah Litman?

  We're also going to play one more exchange along these lines, just because Lisa uses a phrase, uniquely stupid, which may come in handy and seems appropriate when discussing the Supreme Court. So let's hear that moment.

• 35:30Speaker 03

  Now, to be sure, they add the pejorative term uniquely stringent. But had the question said, should this court adopt a uniquely stupid, bad faith standard, the question would still not be, should courts adopt uniquely stupid? Stupid standards, it would be should courts adopt the bad faith standard.

• 35:46Speaker 05

  But Ms. Blatt, in order to say it's uniquely stupid, I think you would have to point to at least one other circuit that has actually applied the bad faith standard in a different context.

• 35:56Melissa Murray?

  You know who did not appreciate Ms. Blatt's tone? Well, not really just her tone, her claim, her word choice, everything she was saying. Who did not appreciate Ms. Blatt in that moment? One Justice Neil M. Gorsuch. So, let's play an exchange between these two.

• 36:12Speaker 03

  Ms. Blatt? Yeah. I confess I'm still troubled by your suggestion that your friends on the other side have lied. Okay, let's pull it up. Yeah, I think we're gonna have to here. And I'd ask you to reconsider that phrase. At oral argument? If I might. It was incorrect. If I, incorrect is fine. Oh, lying. People make mistakes. Okay. You can accuse people of being incorrect, but lying. That's fine. Ms. Blatt, if I might finish. Sure. Lying is another matter. Page one of your brief in opposition. Yep. As applied to the provision of idea services, the overlap between these statutes leads to a conceptual particularity that exists only in this context. Yep. That seems to suggest you're arguing for a unique rule.

• 36:57Speaker 03

  Page two. For more than 40 years, courts of appeals considering this unique subset of ADA and rehabilitation claims directly challenging ideas, educational services have widely recognized that plaintiffs must establish more. Yep. One can interpret those perhaps different ways, but surely a reasonable person could interpret them as arguing for a special rule in the educational context, correct? No, only because of the text. Ms. Blatt. Okay, well, you, I mean. A reasonable person, all of those emphasize the unique context of primary and secondary education and the need for a special rule, don't they? Fine, but what I'm objecting to. Fine, then would you withdraw your accusation? I'll withdraw it. Thank you. That's it.

• 37:41Leah Litman?

  That's fine. Woof. Um, you know, the withdraw your accusation and then Lisa Blatt saying, fine. You know, on one hand, I like SCOTUS advocates acting like petulant four year olds before the Supreme Court because I think that's how the justices deserve to be treated.

• 38:05Leah Litman?

  On the other hand, wow, wow.

• 38:08Melissa Murray?

  I actually was like mildly impressed by, she was just like, who are you again? Oh, a justice of this court?

• 38:15Leah Litman?

  That's why I like it.

• 38:16Melissa Murray?

  Oh, okay.

• 38:17Leah Litman?

  That's why I like it. Fine, I'll withdraw.

• 38:21Leah Litman?

  Like, whatever, guy.

• 38:24Melissa Murray?

  I mean, I, you gotta respect that.

• 38:27Leah Litman?

  Yes, no, that's why I said, on the one hand.

• 38:31Melissa Murray?

  But on the other.

• 38:33Leah Litman?

  Again, on the other, wow. Listening to these exchanges, a part of me wondered whether Justice Gorsuch's revulsion, for lack of a better word, had anything to do with the fact that Lisa Blatt had previously been Oklahoma's lawyer in the litigation that ended up being resolved in McGirt. And she had also represented litigants seeking to chip away at the Indian Child Welfare Act in other cases, like adoptive couple versus baby girl. Like, is that part of the dynamic here? Or is it just because she is very imperious and Justice Gorsuch is like, I'm the emperor here? I don't know.

• 39:13Speaker 03

  It's hard to say. The Indian law case background is really interesting. Yeah, she was taking positions that he found and said were really odious in those cases. And, and it's, it's, you know, it is totally possible that that has carried over to some acrimony between the two here because there was a lot going on there. It did seem to be more about maybe more than just kind of the briefing in this case.

• 39:32Leah Litman?

  Yeah.

• 39:33Melissa Murray?

  This is, I mean, it's an interesting posture for someone who is a repeat player before this court.

• 39:37Leah Litman?

  Yes.

• 39:38Melissa Murray?

  I mean, again, I cannot help but stand a little. And also that this is usually the kind of dismissiveness that I see advocates leveling at some of the women justices, like Justice Sotomayor, Justice Jackson. So I appreciate it that she's an equal opportunity to her.

• 39:53Leah Litman?

  Yeah.

• 39:55Speaker 03

  Yes. Okay, so back to the substance of the case. It, you know, it seemed like the school district was asking the court to effectively adopt an intentional discrimination standard for all 504 or ADA Title II claims. That would likely have sweeping effects on the availability of reasonable accommodation claims, you know, and just to sort of define the terms a little bit, intentional discrimination claims are where somebody or some institution is purposefully discriminating against you, in this instance, because of your disability. But reasonable accommodation claims can arise in circumstances where there are seemingly neutral policies, like a classic disparate impact type of claim, although I did note that the attorney for the parents in this case very deliberately avoided using the phrase disparate impact, which is quite disfavored. But the idea here is like, say there's a set of stairs that impedes access.

• 40:40Speaker 03

  The building might not have done that, right, constructed the stairs for the purpose of discriminating against students with disabilities, but students with certain kinds of disabilities would still need a reasonable accommodation in order to access the educational services that are in the school building. So same could exist with things like a no service animals policy, or a no laptop policy, or you name it. They may not have been adopted in order to discriminate, but they may still bar students with some disabilities from accessing education. So the lawyer for the petitioner, Ramon Martinez, offered, I thought, a nice illustration in this colloquy with Justice Gorsuch, which was also kind of unintentionally funny. So let's play that clip here.

• 41:16Speaker 01

  And, and as Justice Sotomayor suggested, and maybe I just missed it, when we think of discrimination in many contexts, causation, you're right, but the act of discrimination is to treat someone else differently because of their disability, right? And I would have thought that that might have meant, I intend to treat someone differently. It doesn't matter about my further motive. I agree. I take that point. Bad faith. But why wouldn't that be the test?

• 41:49Leah Litman?

  So, Your Honor, two things on that. First of all, I guess what I would say is with respect to the need for intent in every context, what actually helped this whole area of law click for me was reading your decision for, in the Cinnamon Hills case, which was addressing, explaining sort of the theory of reasonable accommodation.

• 42:07Speaker 01

  I'm glad you remembered that, because I'm not sure I do.

• 42:09Leah Litman?

  Well, it was actually a very thoughtful opinion that really kind of teased out the differences. Between disparate intentional treatment and reasonable accommodation claims. And what you said in that opinion was that sometimes formal equality isn't enough. And in the disability context, it isn't. And the reason for that is that you can have people discriminated and excluded by reason of their disability, even though there's no intent. And so because you have a disability, you're not able to take advantage of a program. And so even when there's not animus, when there's not a bad actor on the other side, you know, imagine someone rolls up-

• 42:44Speaker 01

  I follow you.

• 42:45Leah Litman?

  Okay.

• 42:45Speaker 01

  I got it. Thank you. That's helpful to me.

• 42:48Speaker 03

  He actually really slayed inside the room, I thought. And he didn't like correct himself or take it back. He just like pressed on and I thought I had respect for that.

• 42:59Leah Litman?

  Yeah, you know, the only cheekiness you can get away with is cheekiness about how awesome and thoughtful and amazing and brilliant the Supreme Court justices are.

• 43:08Speaker 03

  Yeah, if you embed it in this, when I tell my kids that when they're asking for something, you need to do a compliment sandwich, which is like, say a nice thing. Ask me for a thing. Say a nice thing. And anyway-

• 43:17Leah Litman?

  Oh, that's smart. Follow you for more great parenting tips.

• 43:22Speaker 03

  So it's so ridiculous. They'll be like, your hair looks great today, Mom. Can I please have my allowance? Also, I don't know, whatever.

• 43:28Leah Litman?

  Loved dinner last night. Great, great cooking. Really innovative.

• 43:32Speaker 03

  So anyway, that I think actually does describe the way Martinez was handling Gorsuch.

• 43:37Leah Litman?

  Yeah, so back to the substance in this case, you know, as we said, the position that the school district was offering would have pretty dramatic widespread effects and could undermine, if not eliminate, wide swaths of reasonable accommodation claims under federal law. And there is actually another case, there was another case concerning Section 504 of the Rehabilitation Act that would also affect or could have also affected a sweeping change as far as access to civic society for people with disabilities. A few listeners had written in asking that we cover it, and we thought we'd do so in conjunction with this case, AJT. So that other case is Texas versus Becerra. That was a case filed last year by Texas Attorney General Ken Paxton, challenging

• 44:19Leah Litman?

  some updated regulations that sought to implement Section 504 of the Rehabilitation Act. Now captioned Texas versus Kennedy for our great new Secretary of HHS. Anyways, the updated regulations that were challenged concerned reasonable accommodations and ensuring access to medical treatments and whatnot. And the preamble to those regulations acknowledged that gender dysphoria may in some cases be considered a disability. And the lawsuit initially asked a court to prevent the new regulations from being enforced and to quote, "declare section 504 unconstitutional," end quote. Now, when asked about the litigation, the Washington Post reported that, quote, "many of the 17 attorneys general have said they want to prevent the inclusion of gender dysphoria

• 45:02Leah Litman?

  and not to overturn section 504 entirely," end quote.

• 45:06Melissa Murray?

  We just want to do a surgical thing, a surgical discrimination, not a widespread discrimination.

• 45:12Speaker 03

  Right.

• 45:13Melissa Murray?

  Anyway, there was a subsequent joint report that was filed earlier this year, and it's still explicitly targeted section 504. But now that threat has passed because the case has been stayed. And a later status report said that states are no longer challenging the constitutionality of section 504, probably because they expect the Trump administration will, on its own, walk back the regs and will not vigorously enforce section 504. So basically, insert Olivia Pope, it's handled meme right here.

• 45:44Speaker 03

  Yeah.

• 45:45Melissa Murray?

  We just want to note this case because we wanted to situate the interpretation that it's offering of section 504, which is that it doesn't require that many reasonable accommodations at all, with the more explicit broadside challenge to the law that's also out there.

• 45:59Speaker 03

  And as litigants turned to the courts to try to cut back on the ADA's inclusion of people with disabilities, we also wanted to note that it's happening in tandem with Trump administration policies that would do the same thing. So that includes the executive order on dismantling the Department of Education. You know, again, an executive order, we've said this before, can't say it enough times, cannot repeal a statute, cannot blow up an agency created by a statute. But the administration can and has been really doing the most to try to hollow out the Department of Education. And doing that would be a huge blow to students with disabilities since education is a key site for students' inclusion and access to And historically, the federal government and the Department of Education in particular have been important actors in enforcing those statutory guarantees.

• 46:42Speaker 03

  Project 2025 also has some really alarming recommendations about the Individuals with Disabilities Education Act, essentially changing the way IDEA funding works to kind of convert it into these no strings formula block grants to states to administer, which I think would functionally end requirements on schools that they actually ensure students' inclusion. But to briefly wrap AJT, the case we were just talking about, I don't know what you guys thought. I actually did think it seemed pretty clear, or at least there was a really good chance the court was going to rule against the school district, right, against Lisa Blatt's clients, in favor of AJT, the girl whose family filed the challenge after her school district failed to sufficiently accommodate her epilepsy. So that, at least, I thought,

• 47:23Speaker 03

  was some good news.

• 47:28Leah Litman?

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• 49:31Leah Litman?

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• 50:17Leah Litman?

  So the court also heard argument last week in Martin versus United States, a case about whether and when individuals can sue the federal government under the Federal Tort Claims Act for the actions of law enforcement officers. The case arose out of an FBI raid on a home with flashbang grenades and gun strong, only it was the wrong home. So they went to the wrong street. And the people in that home, who were terrorized, subsequently tried to sue the federal government under the Federal Tort Claims Act, the FTC, for the wrongful search. The FTC is a federal law that allows you to substitute in the federal government as a defendant in some cases. When you are challenging the actions of federal officers.

• 50:58Leah Litman?

  And the plaintiffs said they could do so in this case because of a provision in the FTC that says, quote, "With regard to acts or omissions of investigative or law enforcement officers, the provisions of the FTC shall apply to any claim arising out of assault, battery, false imprisonment, and a few other things, too." The federal government, by contrast, says the United States cannot be sued for the actions of these officers because the officers were performing discretionary functions. And that is one of the limitations in the Federal Court Claims Act for when it's not applicable.

• 51:29Melissa Murray?

  And so the real question in this case is how do these two different provisions of the FTC interact with each other? The one that offers individuals an opportunity to sub in the federal government because of law enforcement actions and those that limit the opportunity to do so because these actions are apparently, quote, discretionary functions. It seemed like this case might be headed for a very narrow win for the plaintiffs. So maybe that's a good thing. I will say that Justice Gorsuch seemed to be having a real one. He seemed super annoyed in this case. So let's roll that tape.

• 52:03Speaker 07

  How about making sure you're on the right street? Is that, is that? And how does that? Just the right street. No, I mean, I, I was just gonna say. Checking the street sign? Is that, is that, you know, asking too much?

• 52:15Speaker 03

  Just a little stop clock occasionally. Gets worked up about the right things. So often about the wrong things, but occasionally the right things. The facts here were kind of eerily similar to those of a story that broke the day of the oral argument. And that story, not the one in the case, involved an Oklahoma mother who says that ICE broke into her home, took the family's electronics and cash, and made them stand in the rain in their undergarments because they had a warrant for individuals. This time, it was the right house and the right street, not the wrong house and the wrong street. But the warrant named individuals who did not live in that house. This family, according to reporting, has still not had their belongings returned. So their ability to get redressed if they do want to file a lawsuit against these federal officers will turn on what the Supreme Court says in this case.

• 53:01Melissa Murray?

  In other related news, we wanted to note another recently signed executive order of strengthening and unleashing America's law enforcement to pursue criminals and protect innocent citizens. This EO announced that, quote, "The Attorney General shall take all appropriate action to create a mechanism to provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law. This mechanism shall include the use of private sector pro bono assistance for such law enforcement officers," end quote.

• 53:37Leah Litman?

  So, gonna love to see those pro bono hours that the law firms that's settled with Donald Trump promised to give him go to officers sued for excessive force, illegal arrests, and using flash grenades on the wrong home. We should, I think, understand this executive order as part of a broader effort to make law enforcement unaccountable above the law. You know, listeners, you can probably recall the terrific interview with UCLA law professor Joanna Schwartz about her book, Shielded: How the Police Became Untouchable, which makes clear that it is already really difficult to hold law enforcement officers to account for their actions. But back to Dear Leader, he is literally trying to seemingly redeploy the entire legal

• 54:21Leah Litman?

  profession in service of law enforcement, you know, through his executive orders against the law firms. He has decided who gets access to legal representation and who does not, targeting lawyers who practice immigration law, punishing law firms for representing black churches, now demanding that law firms represent law enforcement officers who might be accused of using excessive force against black people and who can have the force of the legal profession behind him. Like, that is what he is claiming to decide.

• 54:49Speaker 03

  I hope that this executive order is giving some pause to some of the folks high up in law firms who basically took the position that they weren't actually really agreeing to do anything they weren't already going to do because they did so much pro bono anyway. We will see when he comes calling, demanding representation for these kinds of causes. As for this case, as Melissa mentioned a couple minutes ago, it seems likely there's a, at least a good chance, these victims are looking at either a narrow win or maybe a remand to the 11th Circuit for another look.

• 55:17Melissa Murray?

  The court also heard oral argument in LabCorp versus Davis, which is about whether a federal court may certify a class action pursuant to federal Rule of Civil Procedure 23B3 when some members of the proposed class lack an Article III injury, which is to say when some members of the proposed class don't actually have standing. The basic dispute seems to come down to whether a court at the outset has to define the class in such a way as to limit the class to those with Article III injuries, or whether, instead, it can weed out non-injured people later, such as when it orders relief.

• 55:51Leah Litman?

  So here are the basic facts that might help to understand that legal question. In 2016, LabCorp replaced traditional patient check-ins at service centers with self-service kiosks, but the issue was, blind patients are unable to check in at those kiosks. So two blind patients who were unable to access the LabCorp Express sued LabCorp under the Americans with Disabilities Act and California's Civil Rights Act, and their complaint alleges that LabCorp violated those laws by denying them equal access to LabCorp services and auxiliary aids and services that would be necessary to ensure effective communication. LabCorp responds, among other things, that not everyone in the proposed class, you know,

• 56:33Leah Litman?

  of blind consumers and customers, wants to use kiosks, and therefore, the class includes uninjured people.

• 56:40Melissa Murray?

  Feels like we're slicing the bologna rather thin here, but...

• 56:43Speaker 03

  Indeed.

• 56:44Melissa Murray?

  Just me.

• 56:45Speaker 03

  And, well, not just you, also the plaintiff's lawyer, Deepak Gupta, who I thought did a great job lawyering in front of a court that has been pretty hostile to class action litigation broadly. And, you know, he did a great job explaining how, you know, defendants could protect their rights without this sort of initial threshold determination, and also explaining why the rule the defendant is seeking is inconsistent with the court's prior cases.

• 57:09Leah Litman?

  Yeah, he also did a phenomenal job pointing out how this particular case doesn't even cleanly present the issue the court wanted to decide, namely whether you can and should approve a class action that includes members of a class that might not be injured. So that reminded me of how this court has already had to dismiss a few cases because those cases did not cleanly present questions. The court might have been a little overly zealous in trying to reach. So as Deepak Gupta said, neither the district court nor the Court of Appeals determined that there were actually any uninjured class members. The Court of Appeals actually found the opposite, that all class members were injured in the same way. And the issue seems to relate to the fact that there are two district court orders, and LabCorp wants to argue that one

• 57:53Leah Litman?

  of them adopted a broader definition of the class, but that order might not have been appealed. So it's just super messy and a bad vehicle, and we will see what the court does with it.

• 58:01Melissa Murray?

  Okay, we also wanted to update you on Kennedy versus Braidwood. That's the case involving the Preventative Services Task Force of HHS that we covered in an earlier episode. As we noted, the key question in that case, Kennedy versus Braidwood, is whether the task force members are principal officers, which would mean that they would need to be appointed by the president and confirmed by the Senate, or whether they are just, in fact, inferior officers. It seemed pretty clear at oral argument that the court was going to find that the task force members were inferior officers, which then raised a separate question, whether Congress had authorized their appointment by the head of the department. And here, the head of the department is Secretary Baby Bear Carcass/Well Juice/Raw Milk Connoisseur.

• 58:45Leah Litman?

  So no statute explicitly says that secretary, whoever they may be, can appoint the Preventative Services Task Force members, but the secretary does have the statutory power to administer the program, which the government says includes the power to appoint the members of the task force, as well as to convene the members of the task force. So the lower court did not address this because it concluded that the task force members were principal officers. At oral argument, it seemed like the court might send the case back to the lower courts on that question or issue, but instead it asked for supplemental briefing on the issue.

• 59:24Speaker 03

  So again, it's a little hard to know exactly how to read this. I mean, it may be a good sign for the government in that they were like, well, the Fifth Circuit's going to screw this up further, so maybe we'll just go ahead and decide it ourselves. But I also would not rule out the court saying, "The text is just not clear enough by not containing the sentence the secretary shall appoint." And they might do that even if that means this task force, which Congress clearly set up and intended to do something, cannot function because literally no one has the authority to appoint its members. That is, I would not rule out the possibility that these complete chaos monkeys decide, "Let's just blow the whole thing up using a totally different theory than that embraced by the Fifth Circuit."

• 1:00:02Leah Litman?

  Yeah, so that was kind of Justice Thomas's line or suggestion and argument, like, "Are you sure the statute, which allows the secretary to convene the task force, allows the secretary to appoint members of the task force?" So we'll see. Whatever does happen, it is clear that the Trump administration is trying to turn the Department of Health and Human Services into a right-wing grievance machine in addition to a dead bear carcass factory. So Politico reports that the Office of Civil Rights within HHS, quote, "shifted its focus from investigating cybersecurity breaches and protecting patient privacy to enforcing bans on DEI programs and transgender health care," end quote.

• 1:00:43Melissa Murray?

  We should note that dismantling DEI programs in the context of HHS often means eliminating research programs that were intended to address or probe the nature of health disparities on the basis of gender or race.

• 1:00:57Leah Litman?

  Yep.

• 1:00:58Melissa Murray?

  So, yeah, anyway. More merit, more dead people.

• 1:01:02Leah Litman?

  Exactly. More on how this party might be a death cult. So with the specific example being HHS, The Latin Times reported that Secretary Bear Carcass/Whale Juice/Raw Milk Aficionado is reportedly backing plans to end a federal Narcan distribution program. Narcan, of course, being the drug that is used to administer to people who are experiencing opioid overdoses to save them. That is a $56 million annual grant program that is credited with helping drive a steep drop in opioid overdose deaths.

• 1:01:41Speaker 03

  And just to be clear, right, $56 million is nothing Nothing. in the context of the federal government. This is a very cheap, incredibly effective intervention To save millions of lives. for a serious public health problem this administration says it cares about, actually is using it as a predicate for all kinds of insane immigration policy, like madness. Terrorists. Yeah, so there we go. All right, the court gave us just two opinions this week. Let us just very briefly mention both. The first is Advocate Christ Medical Center versus Kennedy, a case in which the court held in a 7-2 opinion authored by Justice Barrett that hospitals will be reimbursed as part of the Medicare program, based on whether they provide care to individuals who are eligible for SSI benefits when they are eligible to receive an SSI cash payment during the month of hospitalization, not based on whether they receive noncash benefits like rehab services or continued Medicaid coverage.

• 1:02:26Speaker 03

  This is a variation on a question the court has already had a couple of times. This one was a win for the federal government, and Justice Jackson, joined by Justice Sotomayor, dissented.

• 1:02:35Melissa Murray?

  We also got an opinion in Feliciano versus Department of Transportation. In that case, the court held that a federal civilian employee who is called to active duty pursuant to any other provision of law during a national emergency is entitled to differential pay if that service coincides with a declared national emergency, even without having to show that the particular service that the person was called to do bears a substantive connection to that emergency. So this was a kind of interesting lineup in terms of justices. It was a 5-4 Gorsuch opinion, and he was joined by the Chief Justice, Justice Sotomayor, Justice Kavanaugh, and Justice Barrett. There was a Justice Thomas dissent in which Justices Alito, Kagan, and Jackson joined. So very strange bedfellows.

• 1:03:20Speaker 03

  I can't remember that, yeah, particularly. There may have been that lineup previously.

• 1:03:22Melissa Murray?

  I don't think so.

• 1:03:23Speaker 03

  I could not remember.

• 1:03:24Melissa Murray?

  I don't think so. This one's kooky. It's a kooky one.

• 1:03:27Speaker 03

  Okay, so we are going to shift now to other news. And the first one is court-adjacent, and that is that last week, ABC's Terry Moran had an Oval Office sit-down with President Trump that really broke some important news on Abrego Garcia. This is Moran asking Trump about, you know, efforts or not, as the case may be, to get Abrego Garcia back.

• 1:03:47Speaker 07

  You could get him back. There's a phone on this desk. I could. You could pick it up, and with all the power of the presidency, you could call up the President of El Salvador and say, send him back right now. And if he were the gentleman that you say he is, I would do that. But the court has ordered you to facilitate that. I'm not the one making this decision. We have lawyers that don't want to do this. You're the president. The buck stops in this office. No, no, no, no.

• 1:04:09Melissa Murray?

  Follow the law. I'm not the one making these decisions. I'm just the president.

• 1:04:14Speaker 03

  Yeah, sort of back to Leah's, okay, wherefore art thou unitary executive? Observation from last week, but also that is an important concession. Like, yeah, I could and I don't want to, and so I haven't. And I imagine courts will be interested.

• 1:04:29Melissa Murray?

  Both I don't want to and the people who work my buttons don't want to either.

• 1:04:33Speaker 03

  Yeah.

• 1:04:34Melissa Murray?

  Anyway, we wanted to talk for just a couple of minutes about some of the polling on this presidency as it reaches its 100 days. That felt like 100 years, Mark. This matters a lot, I think, on its own terms. It's been a horrifying three months, but it is enormously gratifying and booing to know that it's been horrifying for everybody.

• 1:04:54Speaker 03

  Yes.

• 1:04:55Melissa Murray?

  Right? That's good. So the polling has been pretty dismal. And again, it matters just in terms of optics. It also matters from the perspective of law. It means that the kind of lawlessness that we've been watching, if it doesn't engender this kind of pushback or response from the public, it can become normalized really quickly. But when it's rejected, as it has been, and as these polls show, both by the public and the courts, well, then you're in perhaps a different kind of place. And the public support is really critical here, especially when it comes to getting courts to try and do their jobs and stand up to this administration. So let's go through some of the highlights from all of this polling.

• 1:05:37Speaker 03

  Yeah, and courts to do their job and also to be heeded, right, by government actors who don't have public support at their backs. If they ignore courts, right, that I think is all really, really important. So, you know, I think it's pretty common at the 100-day mark in a new administration for there to be just this kind of flurry of polls, as we saw last week. And we wanted to just highlight some of the key findings. So some of the numbers are wild. So you have 39% of people surveyed for this recent ABC News/Washington Post/IPSOS poll approve of how Trump is serving as president. 39%. This is the lowest 100-day job approval rating of any president in the past 80 years. And I'm, I think it also might be ever-

• 1:06:15Melissa Murray?

  And all those people are drinking whale juice, so you gotta discount them anyway. Injecting themselves with measles, you know, doing whatever else.

• 1:06:24Speaker 03

  No, when you think about it, it is wild that there are even 39%.

• 1:06:27Melissa Murray?

  Feels too-

• 1:06:28Leah Litman?

  High for me. The pro measles coalition is strong, Kate.

• 1:06:31Speaker 03

  Apparently stronger than I had realized. But it is a country with incredibly polarized parties and not a huge amount of movement under normal circumstances. And yet, these are not normal circumstances, and the numbers really reflect that. So a couple of other, and it's like, not just this one poll, right? Like polls can be outliers, as we know. So Rasmussen, which often is like a more conservative poll, or it's viewed that way, also finds that by a 51, 42 margin, Americans think the country is headed in the wrong direction under Trump.

• 1:06:58Leah Litman?

  Which was really surprising, given Trump's recent statements that like, maybe kids should just receive fewer dolls for Christmas. And it's fine if the dolls cost more, too.

• 1:07:09Melissa Murray?

  Well, the one that was really shocking to me was the Associated Press Ipsos poll that finds that 53% of Americans now disapprove of the president's handling of immigration policy. Like, immigration was their big winning issue. They like flogged the way the Biden administration handled the open borders during the campaign. And this is just insane, right? I mean, like, just 46% of people approve of the way he's handled immigration policy, which I would think would be much higher than this if he had real public support here. Independent voters, again, this is a block that's really critical for the administration, disapprove of his handling of migrant and refugee concerns by a staggering 61 to 37% margin.

• 1:07:52Melissa Murray?

  And that's not limited to a single issue. The new Fox News poll finds that just 38% approve of Trump's approach to taxes and the overall economy, another area that was really an area of strength for him during the campaign. And an even smaller cohort, just 33%, thinks that he's handled inflation well. And that was another thing that he liked to flog the Biden and Harris administration with. So this is really interesting.

• 1:08:18Speaker 03

  And just one more poll to note that is germane to our kind of topic, the law and the courts. So Elon University had another poll last week that found that 54% of Americans believe the executive branch should not have the authority to override or ignore court rulings it believes are bad for the country, while 24% believe it should have this power. So that's a pretty small number of people who do think the president should get to ignore the courts. So if you're contemplating doing something that 24% of Americans support your ability to do, you may want to think twice about doing that.

• 1:08:51Leah Litman?

  Yeah, so while most people are not doing well in this economy,

• 1:08:57Melissa Murray?

  Some people are.

• 1:08:58Leah Litman?

  Some people are, and the New York Times had a story about some of those people that had a certain MAGA theme to it, namely, "Make America a Grift Again." So we learn more about the great ongoing grift that is the second Trump administration in this story that describes the wild, wild world of world liberty, a Trump family crypto company. So according to this Times story, the company has directly benefited from some of Donald Trump's official actions as president, including his announcement of this federal crypto stockpile. It has sold cryptocurrency to investors abroad, including in Israel and Hong Kong.

• 1:09:40Leah Litman?

  And indeed, immediately after the election, when there was this uptick in investment in the company, apparently, many of the investors were based abroad in places like Singapore, South Korea, and the United Arab Emirates. Also, apparently, several investors in this firm, managed firms that the federal government had accused of wrongdoing, almost as if they wanted to buy their way out of those investigations.

• 1:10:07Melissa Murray?

  All of that is very illuminating. The grift that keeps on grifting, amazing. But let's turn to one of my favorite segments, Ed Martin Watch. The interim U.S. Attorney for D.C., also known as USA Dick. And for those of you who have written in wanting to know why we call Ed Martin USA Dick, it's because it stands for U.S. Attorney for the District, D.I. of Columbia. That's what it stands for.

• 1:10:31Leah Litman?

  That's all. That's all.

• 1:10:31Melissa Murray?

  That's it. So USA Dick, apparently, is not on a glide path to being confirmed as the actual USA Dick. So last week, Ed Martin submitted written answers to questions from a number of senators. I'll just say, to put it generously, these answers were not entirely encouraging.

• 1:10:52Leah Litman?

  So can we just say like, why he had to answer these additional questions?

• 1:10:56Melissa Murray?

  Please do. Please, please provide that additional context.

• 1:10:59Leah Litman?

  Apparently it had just escaped USA Dick's, you know, mind that he had made numerous appearances on Russian state television. And just like, whoopsie, right? Like totally blanked on that one. So, so that is-

• 1:11:16Speaker 03

  Who among us has not forgotten multiple appearances on Russian TV?

• 1:11:19Leah Litman?

  Exactly.

• 1:11:20Melissa Murray?

  There, I mean, sometimes you go on MSNBC so much, you forget when you were on. But if I were on Pravda TV, I think I might remember it.

• 1:11:29Leah Litman?

  You know, yeah, who, right. Anyways.

• 1:11:33Melissa Murray?

  Anyway, so he, because he had made these omissions, obviously inadvertent, as is typically the case, USA Dick, in his quest to become the actual USA Dick, had to submit some written answers to questions posed by the senators. So here are some of those answers. And again, I've already alluded to this, they were not especially encouraging answers. So Ed Martin refused to say that there had been violence on January 6, 2021, which is surprising, since he did actually represent some of the individuals charged with said violence. So he might have had some inkling that there had been questions about whether violence had happened. He also declined to directly answer if he believed the 2020 election was

• 1:12:16Melissa Murray?

  stolen. He also would not rule out the idea that Donald Trump could serve a third term as president, perhaps evincing an inability to read the Constitution, which is a problem. And there were also a lot of, I don't recall, answers. For example, he was asked if he ever equated a Democratic politician to Adolf Hitler, and he wrote, quote, "I do not recall doing so." Yet, in an October 2022 episode of his own podcast, The Pro-America Report with Ed Martin, Martin said that, quote, "President Joe Biden is Hitler," end quote.

• 1:12:55Melissa Murray?

  It's hard to say for sure, but it does seem that Ed Martin's confirmation as the actual factual USA Dick may be in real jeopardy. And I'm just going to say for the Democratic senators who are on the case here, I hope you push a little harder on the confirmation of USA Dick Ed Martin than you did on the confirmation of Marco Rubio, where y'all fell into line real fast.

• 1:13:20Leah Litman?

  Yeah, and that one has not turned out so well.

• 1:13:23Melissa Murray?

  Not so good.

• 1:13:24Leah Litman?

  So I have to say, Melissa, when you were talking about Ed Martin and the third term, these nightmare visions flashed before my eyes of the Supreme Court like ghosting the 22nd Amendment or announcing it had been abandoned because they just hadn't cited it recently.

• 1:13:42Melissa Murray?

  Recently haven't cited it. There's no question about it. There was never a case.

• 1:13:46Leah Litman?

  Well, you know, we can't opine on that. Or they could just declare the 22nd Amendment, rank discrimination against Donald Trump, the most successful president in US history, just like the Establishment Clause ranked discrimination against certain religious believers. So don't want to do their work for them, do want to suggest that this might be on our horizon.

• 1:14:06Melissa Murray?

  100%.

• 1:14:07Leah Litman?

  Okay.

• 1:14:08Melissa Murray?

  So I just want to put you on to something that I don't think has gotten a whole lot of media coverage, in part because it's a little wackadoodle, but Stephen Miller's America First Legal Foundation, whatever it is, has apparently sued Chief Justice John Roberts.

• 1:14:26Leah Litman?

  Yeah.

• 1:14:27Melissa Murray?

  Welcome to the resistance.

• 1:14:29Leah Litman?

  But no. So the complaint is a little all over the place in that it mostly appears to be an extended rant about how Democratic officials, liberal commentators and whatnot, have unfairly demonized the court and how John Roberts has not adequately stood up for the very principled Sam Alito, et cetera.

• 1:14:49Melissa Murray?

  And Justice Thomas. Like, it names them personally.

• 1:14:52Leah Litman?

  Yes. But then, at the end of the day, it is a FOIA case that is asking for the records of the Judicial Conference, as well as the Administrative Office of the US Courts.

• 1:15:04Melissa Murray?

  Well, I think that part's really interesting because in requesting those records as part of the FOIA request, the complaint seems to make the case that the Federal Judicial Conference and the Administrative Office of the Federal Courts is an arm of the executive branch and the Chief Justice is merely the head of the agency in the manner of Robert F. Kennedy Jr. or similar.

• 1:15:28Leah Litman?

  Yeah, right. Like, this is like unitary executive on steroids, right?

• 1:15:32Melissa Murray?

  Ketamine, on ketamine.

• 1:15:33Leah Litman?

  Like, now the Supreme Court, right, is part of the Article II.

• 1:15:38Melissa Murray?

  Just this part.

• 1:15:39Leah Litman?

  And merely, right, right, and like merely embodying the President's will. I don't know if that means, right, the President can just fire at will. Justices, we will see how this one plays out.

• 1:15:49Melissa Murray?

  I've got to say, like, you know, when it comes to like what it means about the administration heeding the courts, this does not bode well.

• 1:15:56Leah Litman?

  Nope.

• 1:15:57Melissa Murray?

  Yeah. Anyway, moving on.

• 1:15:58Leah Litman?

  Yep.

• 1:16:03Leah Litman?

  Strict scrutiny is brought to you by the ACLU. The Trump administration is pushing a dangerous and sweeping agenda to control our bodies, our families, and our lives. President Trump has signed far-reaching executive orders that target transgender people, their rights, and their health care. But the ACLU and their partners are in court fighting back. Meanwhile, the ACLU is also at the Supreme Court fighting to protect the future of transgender people's freedom and bodily autonomy for all. United States versus Skermetti centers on a Tennessee law restricting health care access for trans youth. Tennessee has asked the Supreme Court to expand the ruling that overturned Roe versus Wade. This would not only violate the constitutional right to equal protection under law, it hurts everyone's freedom to control their bodies and lives.

• 1:16:45Leah Litman?

  Learn more at ACLU.org/news/LGBTQrights/thesupremecourtcaseontranshealthcareexplained.

• 1:16:56Leah Litman?

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

• 1:17:38Leah Litman?

  So a few additional legal adjacent, legal culture matters to discuss. We wanted to talk about some disturbing reporting about a lawyer who has been penalized for merely responding to a request for help on scene. So the basic story is as follows. Clay Jackson, who was an attorney in Texas, was approached by an attendant at a gas station asking if he would help an immigrant family whose father is undocumented and had been targeted by Immigration and Customs Enforcement. Jackson agreed and went to the family's home. He's not an immigration lawyer, but you know, told the family about their basic rights and offered to help them find an immigration lawyer. Two days later, plainclothes officers showed up at his house and said they heard he instructed an immigration investigation and asked if they could come in.

• 1:18:22Leah Litman?

  Jackson declined, so this initially was reported by Radley Balco at his Substack.

• 1:18:27Speaker 03

  We have no idea if this was intentional or related, but it is also the case that the wifi at Jackson's home appears to have gone down right when these officers arrived. So curious. Balco then reported this story and did not name Jackson's employer. He had told his employer, which is Fidelity National Financial, a Fortune 500 company, that he wanted to speak publicly about these events. His employer told him that obstructing an immigration investigation would generate bad press, could amount to professional misconduct, and so he should not. The day the story went public, Jackson was fired. Now, we highlight this because it is important to elevate the story. What the company did here is pretty horrifying.

• 1:19:10Speaker 03

  What Jackson did was basic kindness, compassion, courtesy. He just responded when asked to lend a little professional expertise and has met this extreme punishment for it, right? It is bad enough for the administration to penalize lawyers. That is bad enough, and we are obviously going to stay on talking about that, but to have the administration's punitive posture vis-à-vis lawyers.

• 1:19:34Speaker 03

  Also replicated by private companies is shocking and it cannot be allowed to happen. So if you would like to support Clay, you can sign up for his Substack, which I gather he has just launched. It is clayjack, J A K, dot Substack, dot com. And we also know that Karen Vladek, partner at Rise Point Search Partners and friend of the pod, is helping Clay in his search for a new job.

• 1:19:57Melissa Murray?

  It's time to talk about all the stuff that's going on at Get It House. Get It House is where the Harvard Law Review is housed, and they are the subject of a DOE investigation. It was actually kind of interesting, since I thought the Department of Education no longer existed. Anyway, the Trump administration has announced an investigation into whether Harvard University and the student-run law journal, the Harvard Law Review, violated federal civil rights law in its article selection process. According to Craig Trainor, the US Education Department's Acting Assistant Secretary for Civil Rights, a very weird position for an entity that apparently does not exist and is in the process of being dismantled. According to Craig Trainor, quote, "Harvard Law Review's article selection process appears to pick winners and losers on the basis of race, employing a spoils

• 1:20:39Melissa Murray?

  system in which the race of the legal scholar is as if not more important than the merit of the submission," end quote.

• 1:20:48Speaker 03

  And of course, they are dismantling genuine civil rights enforcement, both at the Department of Justice and the Department of Education and across the rest of the federal government. But there is one kind of civil rights enforcement that they are very laser-focused on, and that is enforcing the civil rights of white men, and in this instance, white male law professors.

• 1:21:05Melissa Murray?

  No, even smaller, white male law professors.

• 1:21:07Speaker 03

  Right. Well, I'm saying generally, white men in other fields are a source of concern for them as well. But in this instance, white male law professors. Right. That is the focus of the tax dollars being spent at the Department of Education's Office of Civil Rights, protecting the prerogatives of white guy law professors whose articles were rejected after being submitted to the Harvard Law Review. This is our priority, America.

• 1:21:30Melissa Murray?

  Just like, who cares about individual education plans for kids with disabilities? Who cares about accommodating kids in school? The real racism that we're going to address is right here. At the Harvard Law Review, this is the injustice. Proceed.

• 1:21:47Speaker 03

  Correct. Okay, so this broke-

• 1:21:48Melissa Murray?

  Let's talk about the spoil system.

• 1:21:50Speaker 03

  Well, I mean, I just love them all of a sudden getting real incensed about the existence of a spoil system because I kind of thought that's what they were gonna try to return all of the federal government to. But of course, it depends on what kind of spoil system we are talking about. Okay, so let's say a little bit more about how this story broke last week. So basically, the Washington Free Beacon reported in an article last week that there was all of this evidence of, quote, "race-based discrimination" at the Harvard Law Review, and among that evidence was the damning fact-- well, sorry, this fact isn't damning, this fact is normal, this is right, this is how it should be-- for a period of 25 years, from 1993 to 2018, all of the scholars selected to write the Harvard Law Review's Supreme Court forward were white.

• 1:22:30Leah Litman?

  Yeah, that's what we call merit.

• 1:22:32Melissa Murray?

  That's merit, that's the merit part.

• 1:22:34Speaker 03

  We can also call it the natural order of things. Yeah, so that's how things were and should have remained. But lo, come 2018, things change. And between 2018 and now, which is, you know, a solid seven years, but it sounds like centuries, as they put it, only one author was white. The rest were all women of color.

• 1:22:54Melissa Murray?

  Only one author of the forward, because there are other white authors published.

• 1:22:58Speaker 03

  So of the Harvard Law Review forward, which is this very prestigious thing you can get invited to do where you write about the Supreme Court's term, but after 2018, only one author was white, the rest were women of color, and one black male scholar. And this-

• 1:23:12Leah Litman?

  To be clear, that's six forwards.

• 1:23:14Speaker 03

  That's a number.

• 1:23:15Melissa Murray?

  As opposed to the 25, when everyone was white.

• 1:23:18Speaker 03

  But this six is deeply, deeply suspicious.

• 1:23:21Melissa Murray?

  Too much.

• 1:23:21Speaker 03

  Right. We had, we had a couple, a handful, we had a few women of color write the forward, and now it's literally a federal case. So the Washington Free Beacon did not probe the 25 years of, you know, all forward authorship by white male scholars, did not even seem to grasp the possibility that there might be some evidence of bias on display in that unbroken record. No, that era is invoked in a tone of wistful nostalgia, with the more recent and more diverse volumes, again, all six of them, with forwards authored by non-white guy authors, a source of outrage.

• 1:24:03Melissa Murray?

  I have some thoughts.

• 1:24:04Speaker 03

  Let us hear those thoughts.

• 1:24:05Melissa Murray?

  And again, I will say at the outset, I've published four times in the Harvard Law Review. The students were excellent. It was a great experience every time. I've also been rejected a whole shit ton of times by the Harvard Law Review, as has like every single person.

• 1:24:20Speaker 03

  Of course, we all have.

• 1:24:21Melissa Murray?

  And I were just rejected.

• 1:24:22Leah Litman?

  I have never had an article accepted by the Harvard Law Review. It never occurred to me to make a fucking civil rights case out of it.

• 1:24:30Melissa Murray?

  Because you're a grown up. Leah, the... So I just want to point out to our listeners what the point of this investigation really is about. So, one, I think this is intended to scare the Harvard Law Review editors, make them really scared so that they don't accept pieces from women or scholars of color going forward, or they make it much more limited, when in fact, after 2018, they tried to be more deliberate about including authors from underrepresented backgrounds, authors from non-top 10 schools. That doesn't get talked about as much, so the fact that there's often letterhead bias in academia and people who are writing great things but are not at a fancy school have

• 1:25:13Melissa Murray?

  a harder time getting through in some of these fancy law reviews, taking things from scholars who are much more junior in their career. So it was diversity on a wide range of axes that they were trying to promote here. This is to make them scared to do this. This is kind of like the way we talked about Mahmoud versus Taylor and, you know, when the Montgomery County School Board decided to include content that reflected the diversity of their community, people lost their shit and now it's going to be all Dick and Jane going forward. So now it's going to be, as you said in the last episode, all Dick, I guess. It's also, I think, intended to taint the scholarship of those scholars of color who have been published in the Harvard Law Review.

• 1:25:54Melissa Murray?

  And it's intended, I think, even more problematically to signal to appointments committees that when they review the work of these scholars, they should discount it, that it's somehow not fair, it's unmeritorious, whatever, which is absolute bullshit. And the reason why I know it's absolute bullshit is... Not just because my stuff's in there. It's also because that many of the articles that are implicated are actually amazing, full stop, pieces of scholarship. So they talk about the women of color who've written the forewords in the last couple of years. Among those authors are Dorothy Roberts, who wrote abolition constitutionalism, which was the foreword in 2020. My colleague at NYU, Maggie Blackcock, who wrote the Constitution of American Colonialism for the foreword in 2023.

• 1:26:37Melissa Murray?

  And Karen Tani, who wrote last year's foreword, curation, narration, erasure, power and possibility at the US Supreme Court. All three of those are absolutely phenomenal and exceptional. And it makes sense that they were chosen as the foreword writers. In a year when the Supreme Court took a ton of administrative law cases and we're thinking about history and tradition, Karen Tani is an historian of the administrative state.

• 1:27:02Speaker 03

  Yeah.

• 1:27:03Melissa Murray?

  Like, duh, motherfucker, that's why she was chosen.

• 1:27:06Speaker 03

  Well, they're all, those are stunning. Those are incredible pieces of scholarship, each and every one of them. And they don't, you know, Department of Education, Free Beacon, like, they don't even, they don't even suggest any substantive deficiencies in any of these pieces because they never could.

• 1:27:20Leah Litman?

  Well, and also, you know, among the other evidence that the story kind of marshals in support of its claim that something is amiss here. So it notes as if this is some kind of indictment that when you included new voices in the foreword, these new voices expanded the topics that were covered in the foreword, right? They suggest like, oh, right, over the past few years, right? This has affected the topics. Like, they've talked about abolitionism or colonialism or curation and narration. And I'm kind of like, is that bad? Like, why is that bad?

• 1:27:53Melissa Murray?

  Those were topics on the court's docket. The court took a bunch of race cases in those years.

• 1:27:58Leah Litman?

  Also, if you weren't having forewords touch on certain topics, and now you do, isn't that kind of like part of what intellectual diversity, academic freedom and academic discourse is supposed to be for? And what it's supposed to do? No, okay.

• 1:28:11Melissa Murray?

  It's only about getting rid of wokeness. I see. The whole central conceit of this entire investigation is that they want people to think that the very fact that scholars of color were selected and accepted means that there was no merit here. And that there couldn't be. Like, there's just no way in hell that you pick a person of color or a woman and her work, their work, is good. And If you think about that, that doesn't actually suggest that you were invested in merit. It means that you're literally invested in racial hierarchy. If you cannot even contemplate the possibility that one of these people actually deserved to be accepted. Like, I mean, that's racial hierarchy in a nutshell. And you don't even think critically about the 25 years when you didn't have a single

• 1:28:55Melissa Murray?

  person who was not white. Insane.

• 1:28:58Leah Litman?

  Yeah.

• 1:28:59Melissa Murray?

  Anyway.

• 1:29:02Leah Litman?

  Other legal culture news to cover?

• 1:29:05Melissa Murray?

  SCOTUS blog got bought by The Dispatch.

• 1:29:08Leah Litman?

  Yeah, so, um...

• 1:29:12Melissa Murray?

  You got some thoughts?

• 1:29:13Leah Litman?

  Yeah, so The Dispatch is like a right-leaning news organization. I have to say, you know, I have some concerns and qualms about this. SCOTUS blog has obviously been, continues to be, an incredible resource for people following the Supreme Court. It provides very readily accessible information about all of the court's cases, you know, that you can easily track their progress and whatnot. It also offers commentary on, you know, some of the cases and statistics about them. And, you know, The Dispatch, which is the organization or entity that acquired this, you know, includes people like, you know, former Trump Justice Department spokesperson

• 1:29:57Leah Litman?

  during the family separation, Sarah Isger, who said during a podcast back in January talking about the Mahmoud versus Taylor case, that she would not want her child reading Pride Puppy, not necessarily because of its LGBTQ content, but because of the, quote, "really graphic sex stuff." This is a book that merely depicts, you know, a woman in leather.

• 1:30:20Melissa Murray?

  No, in a leather jacket. No, a leather jacket. She's not wearing... Not like that kind of leather.

• 1:30:26Leah Litman?

  Well, again, it just like, it doesn't, like, it doesn't matter to me whether it's like leather jacket or leather. And, you know, so, so the idea that this is just not going to affect or influence SCOTUS blog at all, I mean, I am not positive about that. Yes, some of the wonderful people of SCOTUS blog are going to... Continue with the organization now that it's become part of the dispatch like Amy Howe, for example. But, you know, you know, just looking at it now, you know, after this acquisition, the SCOTUS blog calendar link now leads to a 2015 blog post and the calendar itself is missing. And again, like, I just don't know what is going to happen there. But I, I just

• 1:31:08Leah Litman?

  think people should know that, like, as they peruse SCOTUS blog and might approach it this decision season, just to know the ecosystem that it is now part of.

• 1:31:19Melissa Murray?

  I really did have to go and pick up a copy of Pride Puppy because I'm like, did I miss something? And like, I went looking for the graphic sex content and I genuinely didn't find it. I have to say, I went looking for the leather folk. There was no leather folk, just a woman in a leather jacket, like I might wear. Maybe I'm leather folk. It's hard to say. And I definitely didn't see any graphic sexual content. I did see, like, you know, two people with their kid jumping on the bed with them.

• 1:31:46Leah Litman?

  And a dog in like a rainbow bandana?

• 1:31:49Melissa Murray?

  Yeah, it was, yeah, an old Chevrolet. I don't know. It was a lot going on.

• 1:31:53Leah Litman?

  Okay, so we have some fun news that we wanted to end on before we get to our fun segment. And this fun news is actually about some of the very fun guests we have had on the show. So former Strict Scrutiny guest Alexandra Petry won the Thurber Prize for Best Humor Writing for her book Alexandra Petry's U.S. History. So congratulations to her. Very well deserved. It is hilarious.

• 1:32:20Melissa Murray?

  She's hilarious.

• 1:32:21Speaker 03

  She's great. And I think I've said this before on the pod, but my eighth grader is obsessed with that book, like truly obsessed. So it's, but it's also like, it's a good book for adults. It's a good book for like, high school students. It's a great, great book. And I am so glad to see it deservedly honored.

• 1:32:35Melissa Murray?

  It's like the Pride Puppy of history books.

• 1:32:38Melissa Murray?

  Yeah.

• 1:32:39Leah Litman?

  Oh dear. Um, so.

• 1:32:42Speaker 03

  I'm sure the family will be really mad about it. So it has that in common.

• 1:32:46Leah Litman?

  Yeah.

• 1:32:46Melissa Murray?

  I hope you can opt your kid out when it's taught.

• 1:32:49Leah Litman?

  Another, well, I mean, she's a woman author and so therefore, right? People might have objections to that. So another congratulations, former Strict Scrutiny guest, Ellie Mistall, won the Hillman Journalism Prize for Opinion Analysis, also extremely well deserved, super big deal. So congratulations to Ellie.

• 1:33:09Melissa Murray?

  And he does have opinions.

• 1:33:10Speaker 03

  Yes, he does.

• 1:33:11Leah Litman?

  Yes, he does. Good ones.

• 1:33:13Speaker 03

  Okay. One other piece of good news, really good news, before we get to our recommendations. And that is that the Columbia student, Mosan Matawi, who had been picked up as he went to a naturalization interview, he was a permanent resident, he was going to naturalize, and instead he was snatched by ICE and detained for over a month. But he was, last week, ordered released by a Vermont judge. The court also said the federal government cannot remove him from the state or the country. And he continues to be the most impressive person. So let's just play this clip from him upon his release.

• 1:33:49Speaker 07

  And I'm saying it clear and loud. Yes. Yes. To President Trump and his cabinet. Yes. I am not afraid of you.

• 1:34:01Speaker 03

  I mean, when people who have everything to lose are brave like that, like everyone else, like those of us who are safe, or at least for now we are, maybe no one is safe, but safer, like have such a profound and pressing obligation to at least do the same. So really, really good result. Let's turn to things that we read or saw in the last week we want to recommend. I'll go first this time. So I ran the Brooklyn Half Marathon last weekend and I saw, yeah, I mean, I was low. But it was fun. It was a beautiful day.

• 1:34:32Melissa Murray?

  That is still a big achievement.

• 1:34:34Speaker 03

  Totally. And I saw some signs that I wanted to mention. It's the first, like, race that I've really noticed political signs in. There's not that many, and it was striking that there were a bunch in this race. So I saw signs that said things like, "You're running better than our." Government and hurry up JD Vance is coming for you. And a genre of signs I thought was really good that said things like due to inflation. This run is now 16.4 miles instead of the 13.2 that a half marathon is. So

• 1:35:03Melissa Murray?

  That's actually a favorable tariff rate.

• 1:35:05Speaker 03

  Politics can be fun. It could be more. Protest can be fun. I just love this. Exactly. Yes, no, I that's that was right. So and things that are not always political kind of maybe should be right now, but that doesn't mean that they can't be fun. And when you go to protests, which are political, absolutely, those are fun. So yeah, so I thought that was all great. Okay, I went to see Sinners on Monday night. I don't see a lot of movies in the movie theater. Go in this weekend. Okay, good. So excited. Oh, my God. I talked to Melissa afterwards and I was like, I am literally still quivering from the experience.

• 1:35:33Melissa Murray?

  You said throbbing. And I said, that was the Michael B Jordan. And I think that's right.

• 1:35:39Speaker 03

  Both of him, yes. Smoke and Stack. That honestly, just like, it's incredible. It's extraordinary. Ryan Coogler is a genius. The performances are incredible. The soundtrack, I've been like, listening to the music all week since. Go see it in the theaters while you can. And Lee, I'm so glad you're going to go this weekend.

• 1:35:56Melissa Murray?

  Yeah.

• 1:35:57Speaker 03

  And then finally,

• 1:35:57Melissa Murray?

  It was great.

• 1:35:58Speaker 03

  This is like my second Andrew Marantz from The New Yorker shout out in recent weeks, but he had a great and really scary piece called Is It Happening Here? Involves in part, interviews with my friend David Pressman, the former ambassador to Hungary. And it's a great read, so check that out.

• 1:36:14Leah Litman?

  So I have a few recommendations. One is Sophie Gilbert's new book, Girl on Girl, How Pop Culture Turned a Generation of Women Against Themselves. I just thought it was really interesting, important work about, you know, different ways in which like media and pop culture like pit women against each other.

• 1:36:33Leah Litman?

  You know, and as like a women led, women forward podcast, it's just something I kind of like, think about, you know, in the public sphere. So would recommend that read. Another piece, this one optimistic, Dahlia Lithwick in Slate, The Tide Is Turning, kind of related to the polls we were talking about. So I enjoyed that read. One that was a little bit more disturbing and troubling is Andrea Pitzer in New York Magazine, Trump and Bukele's Concentration Camp. You know, I think it is a really important piece of writing describing the El Salvador Terrorism Confinement Center for what it is. And, you know, alongside that, there have been images coming out of the Blue Bonnet Detention Facility in Texas of the Venezuelan

• 1:37:15Leah Litman?

  men who narrowly escaped being sent to El Salvador, literally making an SOS, like aligning themselves in an SOS sign, like to be captured in photographs. It's just extremely chilling. Another one, I know we've mentioned this before, but I wanted to highlight it again, is the Just Security Litigation Tracker. So Just Security is, you know, the blog that is run in part by Melissa's colleague at NYU, Ryan Goodman. I'm working on like some pieces that are about some of the ongoing Trump litigation, and it's just such a huge help to be able to rely on that for all of the real time updates and just like a consolidated

• 1:37:55Leah Litman?

  place for the cases. One additional note, and this is kind of like a random one, but it turns out that like the final phase of book writing is my least favorite part, and that is all of the asking people for favors, where you say, can you talk about my book? Can I be on your show? And whatnot. And the, one, getting emails in response rather than people ghosting is nice. And two emails that don't make me feel bad for promoting the book like that. Yeah, anyways. So I had to put that on the list.

• 1:38:26Speaker 03

  And if you're one of the people ghosting, take note. Don't ghost.

• 1:38:30Leah Litman?

  Whew, don't do her book like the Establishment Clause. Okay. I would also like to co-sign Sinners, which I think is one of the most original movies I've seen in a long time. I also want to say, like, just to connect it sort of to the political zeitgeist in this moment, I'm not going to ruin this for you, but like, literally a movie about annihilating white supremacists is the number one movie in America, which

• 1:38:57Melissa Murray?

  I think is really interesting.

• 1:38:58Speaker 03

  And it's incredible. Can I say, the whole time I was like, oh my God, the Trump administration is going to try to figure out a way to shut this shit down because it is so fucking it's just like, it is intellectual, it is political, it is fucking revolutionary, and it is also just beautiful and fun.

• 1:39:14Melissa Murray?

  Yeah, everyone is gorgeous.

• 1:39:16Speaker 03

  Also, I love Vampire. Even, I think I would have loved the movie just as much with no vampire plot, but I do love a good vampire movie.

• 1:39:23Melissa Murray?

  Yeah, I will also say Hailee Steinfeld is a fucking revelation in this movie.

• 1:39:29Leah Litman?

  She's awesome.

• 1:39:30Melissa Murray?

  And there's this one point where, I'm not spoiling anything, where she just says, "Boy, if you don't get the fuck out my face, I'm going to say that in a faculty meeting one day."

• 1:39:38Speaker 03

  Don't say-

• 1:39:39Leah Litman?

  I'm going to say that to Sam Alito when I go to DC.

• 1:39:41Speaker 03

  Don't say some of the other stuff she says.

• 1:39:43Melissa Murray?

  Next time we play an oral argument. Yeah, there's something she said that you shouldn't say in faculty meetings. There's no occasion in which that would come up. Okay. None, zero.

• 1:39:53Speaker 03

  Great.

• 1:39:54Melissa Murray?

  Zilch.

• 1:39:55Speaker 03

  Good.

• 1:39:56Melissa Murray?

  But, "Boy, if you don't get the fuck out my face." Everyone. Anyway, in addition to watching Sinners, I also read Danielle Dreilinger's The Secret History of Home Economics: How Trailblazing Women Harness the Power of the Home and Change the Way We Live. And it's actually really good. It sounds like it would be like, kind of dry, but she's, she's a great storyteller. It's very narratively driven. She brings out people who I think have been lost to history, like Margaret Murray Washington, no relation, but the wife of Booker T. Washington, who was this black woman who really did a lot at the Tuskegee Institute to build up the whole field of home economics. And she was kind of shut out as it became professionalized by white women. And just a really great book.

• 1:40:41Melissa Murray?

  And if you're thinking about trad wives, like, there's a whole slant on that, too. It's really fantastic. Another thing I did that made me feel really great was I gave some money to the Polly Murray Center for History and Social Justice, which is cited in Durham, North Carolina, at the childhood home of Polly Murray. The center commemorates the life of Polly Murray and offers programming that advances the causes of social justice and equity. And because it does that, this administration- Obviously does not like what it is doing. And in April, the center lost over $300,000 worth of federal funding that it had previously been awarded in 2024 from the Institute for Museum and Library Services, which has a set of museum grants for African American history and culture.

• 1:41:25Melissa Murray?

  The administration maintains that, quote, "The grant is no longer consistent with IMLS's priorities and no longer serves the interests of the United States and the IMLS program," end quote, "in alignment with the executive order on the continuing reduction of the federal bureaucracy." So this is all part of DOGE, make America great again, make the government more streamlined, and make Black history no longer part of the history we talk about. But the center, despite all of that, remains steadfast in its commitment, and it has launched a $200,000 giving campaign, and it's trying to get donations so it can continue its great work. So if you have an opportunity, consider taking a look at their website and supporting them.

• 1:42:08Melissa Murray?

  Finally, I ran into a bunch of Strict Scrutiny super fans last week when I was not here because I was in Philadelphia and then later in the Bay Area, and I just wanted to shout out some of those super fans, Angelica.

• 1:42:21Speaker 03

  My colleague at Penn, yes.

• 1:42:22Melissa Murray?

  Yes, Angelica, your colleague at Penn, who let me know that her wife is a huge Strict Scrutiny super fan, so shout out to her. Also wanted to shout out Claudia in Oakland, who is also a regular listener, and Ryan in San Francisco, and we really appreciate you and we love hearing from you. And I think we really need to think about adding some West Coast whistle stops to the Bad Decisions tour.

• 1:42:45Leah Litman?

  Here, here. Oh, yeah, I'm down.

• 1:42:47Melissa Murray?

  I'm down. Let's do it.

• 1:42:49Speaker 03

  I gotta get out there.

• 1:42:50Melissa Murray?

  Yeah, we should come for Oakland.

• 1:42:53Leah Litman?

  And LA. So additional notes, you should join over 1 million listeners around the world who are tuning into Shadow Kingdom, God's Banker, Crooked's newest true crime podcast. All episodes are out now, so you can binge the full story from start to finish. As host Niccolo Magioni investigates the mysterious death of the Vatican banker, uncovering a web of mafia ties, a fascist secret society, covert Vatican ops, and a missing $1.2 billion, he interviews spies, prosecutors, and the last person to see Roberto Colvi, the banker, alive, all to answer one question: who killed God's banker?

• 1:43:34Melissa Murray?

  This is the perfect podcast for right now. If you've been completely enmeshed in all of this Pope stuff, like the new Pope. And if you're watching Conclave and you're ready for, you know, Popapalooza and the Conclave, this is going to be really fantastic. I mean, like, I think the Vatican is just insanely interesting just as an organization and so shrouded in secrecy. And this was fun and immersive and very mysterious and spooky and very timely right now.

• 1:44:02Leah Litman?

  And you can binge all episodes of Shadow Kingdom wherever you get your podcasts or on Apple Podcasts.

• 1:44:10Melissa Murray?

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

• 1:45:09Leah Litman?

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

• 1:45:51Melissa Murray?

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