BREAKING: SCOTUS Greenlights Trump’s Cruel Immigration Policies

In this emergency episode, Kate, Melissa, and Leah unpack the two major immigration opinions handed down by SCOTUS today. The brutal TL;DR, courtesy of Justice Sotomayor: “The consequences of today’s decision are predictable. More people will die.” Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:00Leah Litman?

  Strict scrutiny is brought to you by Americans United for separation of church and state. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers specifically. A multi-faith group of federal employees filed a new lawsuit against the United States Department of Agriculture for violating the separation of church and state and the religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out, saying, "The proselytizing Easter email sent by Secretary of Agriculture Brooke Rollins to more than 100,000 USDA employees is an abuse of power

• 0:43Leah Litman?

  that violates the separation of church and state promised in the First Amendment." They are absolutely right. Con law, it doesn't have to be that hard. I mean, Constitution just straight up says, "Shall make no law respecting an establishment of religion." Seriously, what is with these guys and erasing the first sentence of constitutional provisions? That's what birthright citizenship is about, too. Anyways, the hits keep on coming from this administration, and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to au.org/crooked to learn more about their work and how you can get involved.

• 1:18Speaker 01

  Hola, es Mr. Monopoly. ¿Has soñado con ganarte 50,000 dólares para el pago inicial de una casa? ¿O una gift charity del año? Monopoly volvió a McDonald's. Y esos son algunos de los premios que podrías ganar. ¡Fé por lo tuyo! No se necesita comprar 50 estados de Estados Unidos y DC. 18 años o más. Consulte las reglas en playrmcd.com y playrmcd.com/ame para información sobre jugar sin una compra por correo antes del 2 de noviembre. El Chance Card Game termina el 8 de noviembre. El juego termina el 22 de noviembre de 2026. Detalles de los premios en las reglas. Monopoly es una marca registrada de Hasbro.

• 2:32Melissa Murray?

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

• 2:39Kate Shaw?

  I'm Kate Shaw.

• 2:40Melissa Murray?

  And I'm Leah Litman, and ugh, this is an emergency episode. We got four opinions today, including two major immigration cases we wanted to cover right away. These immigration cases, written by Sam Alito.

• 2:56Kate Shaw?

  Which, basically, we can stop the episode.

• 2:57Melissa Murray?

  Yeah. Stop, stop. That is the emergency. We're done.

• 3:00Kate Shaw?

  Yep, yep.

• 3:01Melissa Murray?

  We're done. Basically, folks, you already know, if Sam Alito is writing, we're crying.

• 3:08Kate Shaw?

  Yeah.

• 3:08Melissa Murray?

  We're talking about these cases right now because they are very, very significant. They will enable a lot of the Trump administration's gratuitously cruel, careless, and deeply, deeply consequential immigration policy. These decisions will free this administration of most legal obligations, maybe even give them a get out of law free card to just do their worst with regard to people who are here in the United States who they believe are not, quote unquote, heritage Americans.

• 3:39Kate Shaw?

  Yeah. And there are a lot of what we might call legal problems with the analysis on display in Sam Alito's two opinions. But also, there's just kind of a bottom line sort of takeaway that we wanted to start with, which is, you know, a line from Justice Sotomayor's dissent in one of the cases that kind of sums up the two opinions together. And that is, quote, "The consequences of today's decision are predictable. More people will die."

• 4:05Melissa Murray?

  And if you're thinking, that sounds like Dobbs, you're right.

• 4:08Kate Shaw?

  Yeah. Also Sam Alito.

• 4:09Melissa Murray?

  Sam Alito's like, let's run that back again.

• 4:12Kate Shaw?

  Yep, just one day off of the four-year anniversary, and we will do more of that. So, we're going to focus in this emergency episode on the case about the administration's termination of temporary protected status programs for Haiti and Syria, and then the case about an asylum procedure that would allow the administration to avoid processing asylum seekers as required by law, so long as immigration officials stop a person at the border. As we said, there were two other cases today. We will say at least a few words about those in our regular episode that will be in your ear holes on Monday morning.

• 4:45Leah Litman?

  And despite what you may hear about this very non-ideological, nonpartisan court, both of these opinions were 6-3, and both of them were about as bad as can be.

• 4:56Kate Shaw?

  Yeah. Okay, so we'll start with the asylum case, Mullen versus Al Otrado. Okay, so as we said, 6-3 decision authored by Justice Alito, and the court basically gave the administration in this case a get out of the law governing asylum free card. The specific question in the case is whether an individual who has been stopped at or outside the border, quote, "arrives in the United States for purposes of asylum law," which would mean the individual has to be allowed to claim asylum and have their asylum claim assessed.

• 5:27Leah Litman?

  Here, the court held that for purposes of the relevant asylum statutes, an alien arrives in the United States when the noncitizen crosses the border into the United States. As the majority reasoned, you don't say a running back is in the end zone when they are standing outside of it. Yes, this was Sam Alito's legal analysis of complicated immigration law.

• 5:47Melissa Murray?

  I think he got an assist. I think he got an assist on that one from you know who.

• 5:51Leah Litman?

  Entire logic here requires divorcing the word "in" from the entire structure of immigration law, its context, the fact that this provision exists in a broader statutory scheme, why this provision wasn't acted, and so on.

• 6:05Melissa Murray?

  We should talk about the broader context of all of this right now. So in 2016, the Department of Homeland Security responded to a surge of asylum seekers at the southern border by implementing a metering system that imposes a daily limit on the number of asylum seekers that can be processed in a given day. And to enforce that policy, DHS officials would stand on the US side of the border, and if the allotment for the day had been met, they would stop asylum seekers from entering into the United States in order to be processed. So if you reached your limit for that day, people had to stay on the other side of the border, even if they were presenting themselves, even if they were interacting with officials from the United States, despite the fact that

• 6:49Melissa Murray?

  asylum law exists and requires them to be processed. So there's this artificial limit.

• 6:55Leah Litman?

  Even when you're right on the border, interacting with US officials, if they've reached the limit, you're out of luck. The metering policy, however, was rescinded in 2021. And if you're wondering, doesn't that make this case moot? Well, good for you. You could be a lawyer, but not for the Supreme Court. This is all to say that the court deciding to take up this challenge was totally a choice because this issue isn't really live anymore because this policy is no longer extant.

• 7:24Kate Shaw?

  But evidently, the court just could not let pass the opportunity to tell the administration what it could do if it wanted to, say, revive a policy like this. And it is essentially handing, through this very tortured reading of this statutory term arrives or arrives in, an insane loophole to the administration. If you are two feet from the US border in Mexico, that should not give the administration the authority to deprive people of human rights like the right to claim asylum or to ignore asylum protections under, like putting aside international law, under US statute. But right now, the administration, under this reading, may be able to circumvent a

• 8:06Kate Shaw?

  bunch of laws protecting asylum seekers just by physically obstructing, preventing their entry at the border.

• 8:14Leah Litman?

  And I want to situate this case within a broader trend of just rendering legal protections, at least the ones these guys on the court don't like, completely unenforceable. So again, we'll talk more about this on our regular episode, but another decision issued last week said protections for legal permanent residents at the border, those don't actually apply at the border because LOL. Second, the terms of spending programs, those can't be enforced against state officials that are obligated by them because why? We said so, and we made a fun little analogy, international human rights law, that can't really be enforced in Cisco. Why? Because Justice Scalia didn't want to.

• 8:58Leah Litman?

  State court suits in Monsanto, that was an opinion decided by today, those can't proceed because that would allow corporations to be sued. And we'll talk about that in our regular episode. So just greatest hits, lots of bangers.

• 9:12Kate Shaw?

  Denying access to courts and severing rights from remedies and also just like big wins for the Trump administration. I think those are the two

• 9:19Melissa Murray?

  And corporations.

• 9:20Kate Shaw?

  And corporations, right, who are obviously on the same side of these cases. Those are two big themes, I think, of this week's decisions.

• 9:28Melissa Murray?

  Well, I also think another theme here is we do what the fuck we want to do. Like, who gonna check me, boo? Like, I mean, to reiterate, the court didn't have to make this decision. Like, the metering policy is no longer in effect. The Trump administration, however, asked the court to take up this case and made moves about how maybe it could revive this policy. Therefore, there was not a mootness issue. Again, they wanted this case before the court because they wanted the go ahead for basically obliterating what exists for protections for asylum seekers. And the court was like, yeah, bet, that sounds great. Let's do that.

• 10:07Leah Litman?

  Hashtag YOLO, YOLO Court.

• 10:10Kate Shaw?

  We started off by referencing a line from Justice Sotomayor. She was not going to go quietly in dissent in this case. We were not in the courtroom on Thursday. So when the court issues decisions, they take the bench and the author of a majority opinion typically reads a summary. And when the dissent feels really strongly about the case, then they will sometimes also read what's called a bench statement. But I have never heard of like a reply from the author of the majority opinion. A rebuttal? What I, there's no name for it because it doesn't happen. But evidently, Alito on the bench responded to Justice Sotomayor.

• 10:47Leah Litman?

  Yeah, so Chris Guiner at LawDork, Lawrence Hurley at NBC, reported that Alito countered Justice Sotomayor with a further statement from the bench because he is the saddest, whiniest little man, never beating the allegations that he is nothing more than an angry 80-year-old grandpa whose brain has been addled by Fox News and needs to tilt at the wind. Sorry, Melissa.

• 11:12Melissa Murray?

  So we do have a readout from The Hill on what happened in the courtroom. So as you just recounted, he first briefly read the majority's position. Justice Sotomayor then read her dissenting opinion. When she criticized the majority opinion as egregiously wrong, The Hill reports that Justice Alito leaned forward in his chair, propped his chin on his hands and stared up at the ceiling. Okay, that's such a picture. Then, when Justice Sotomayor commented about the majority opinion's reference to the language of arrival in the context of immigration and briefly used the example of landing at Reagan National Airport, Alito briefly set his gaze on Sotomayor. Then, after she concluded, he softly cleared his throat

• 11:55Melissa Murray?

  before issuing a rare, off-the-cuff response to a dissent. Not just rare, I think kind of unprecedented.

• 12:00Kate Shaw?

  I think unprecedented.

• 12:02Melissa Murray?

  The conservative justice appeared testy as he said that there was much more that he would have added if he'd known that Sotomayor would read her dissent aloud in full.

• 12:12Kate Shaw?

  What a fucking sore loser. It also is a winner. It's a winner. It's just...

• 12:19Melissa Murray?

  What are you talking about?

• 12:21Kate Shaw?

  This is just like, remember, obviously, the 2010 State of the Union address, when he shakes his head when Obama describes Citizens United and he just cannot control himself. This is, I think, that energy. Oh, completely. And it's possible that he was stirred to taking this perhaps unprecedented step because Justice Sotomayor was unsparing in her dissent and evidently from the bench statement, too. So she said the court's opinion kind of amounted to, "Well, we said never again, but that turned out to be yes again after 80 years." Because as she notes, international humanitarian law, including protections for asylum, emerged after the Holocaust and the international moral reckoning it provoked.

• 13:05Kate Shaw?

  That's what this opinion largely dismantles.

• 13:08Leah Litman?

  Yeah, so she recounts, quote, "one infamous incident when the voyage of the MS St. Louis in 1939, over 900 Jewish refugees attempted to flee persecution in Nazi Germany and were turned away, only for many of them to be murdered." And Congress passed the Refugee Act in 1980, quote, "because it did not want this country to repeat the mistakes of its past, being able to turn away refugees only for them to die horrific deaths." And again, this is what the court's opinion allows the administration to do, to just effectively deny any one asylum protections, even if they have very meritorious asylum claims. And the administration would otherwise be required to consider them under federal law

• 13:52Leah Litman?

  and international law because they just managed to block them at the border.

• 13:56Melissa Murray?

  Can I go back to Justice Alito? I'm sorry, like, I definitely appreciated the history lesson, both from you and from Justice Sotomayor. And I think it's really useful context for people who aren't familiar with these statutes. There is a provenance here and one worth remembering. But I will just say, Justice Sotomayor has a history of calling out her conservative colleagues on just like the batshit things that they do. So if you'll recall in Trump versus Hawaii, which I'm going to come back to another point in this episode, in Trump versus Hawaii, she basically talked about the travel ban and analogized it to the court's infamous decision in Korematsu, which was the case that basically greenlighted the

• 14:38Melissa Murray?

  internment of Japanese, people of Japanese descent and Japanese Americans during World War II. And the chief justice, you know, I felt like, it almost felt like he went back to the original opinion he'd written and just like, oh, by the way, that's not true. And we are dismantling Korematsu right now where it's no longer good law. It was never good law. And yeah, and so there.

• 15:00Leah Litman?

  Remember, he says, "The reference to Korematsu gives us an opportunity to make explicit what's already been like written in the annals of history, but we're going to do it ourselves."

• 15:07Melissa Murray?

  Right. I mean, it was a more decorous kind of way to respond to her, but it's basically what Alito is doing. Like, these guys hate being called on their shit. Like, Alito's is just more- More bitchy and mean spirited than

• 15:21Leah Litman?

  And petty and trolish and small.

• 15:24Melissa Murray?

  But they're all doing, they hate being called on this. They hate being told.

• 15:28Leah Litman?

  Can I say on that, all of them? Because as the Hill suggests, apparently, the Hill says that the other conservative justices displayed little reaction to Justice Sotomayor with several of them, like Barrett Gorsuch and Thomas staring down at their papers, and Kavanaugh staring directly at Justice Sotomayor throughout her speech from the bench as if she was the problem.

• 15:50Melissa Murray?

  Well, I mean, so again, remember that remark that Justice Sotomayor made for which she later apologized about, you know, I have a colleague and he's got rich parents and he doesn't know anyone who works a day job and he's just out of touch. And then she apologized for it. I think there's, there's a lot of stuff going on here. Um, yeah. And yeah.

• 16:10Kate Shaw?

  They don't like to be called out. They don't like to be called out by her and they also

• 16:14Melissa Murray?

  Yes.

• 16:14Kate Shaw?

  must have the last word. Um, so whether that's in the form of an opinion or this kind of final statement, it's pretty wild. They just won six, three. Like you cannot let her speak.

• 16:26Leah Litman?

  But it's not enough to win. You must be celebrated as the most amazing justice who is doing perfect law and no politics as well. No one can criticize them.

• 16:37Melissa Murray?

  On that tip, do you remember after Daz, when the Chief Justice issued his year end report to the federal judiciary? And he was like, you know what this all reminds me of? It reminds me of segregationists. Yeah. Where these judges stood up for the constitution and the rule of law in the face of massive resistance. And all these segregationists came for them. Like basically you ladies who want rights over your body, you're basically like segregationists and us, we're those noble judges standing up for the constitution and the rule of law and taking away rights.

• 17:06Leah Litman?

  Trying to segregate us from controlling your body. Ain't no thing.

• 17:11Melissa Murray?

  We would like to integrate you into trad wife life.

• 17:18Leah Litman?

  This episode of Strict Scrutiny is brought to you by Alloy Health. Let's be honest, aging, not always awesome. I mean, take a look at Sam Alito's skin. Sleep disruptions, hot flashes, brain fog, and more. I don't want my brain to work like Brett Kavanaugh's. Menopause is inevitable, but it's also treatable. Almost half of women go more than three years before seeking relief from menopause or perimenopausal symptoms. Why would we do that to ourselves? It's because 43% of women reported that their doctors never even mentioned menopause hormone therapy as an option for treatment. Another 40% didn't know where to go for a solution. Alloy can help you feel and look your best through menopause and beyond, offering unlimited access to expert physicians and safe, science-backed treatments for your symptoms, skin, hair, all delivered to your door.

• 18:02Leah Litman?

  Everything is done online from the comfort of your home, or anywhere. No waiting for an appointment or in line at the pharmacy. Alloy is fast, accessible, and their treatments actually work. Here's how it works. Step one, complete your intake. Alloy's solutions are available by prescription, so you'll need to complete an intake form and patient verification. Step two, receive a treatment plan from your doctor. You'll be matched with a menopause-specialized physician who will create a personalized treatment plan tailored to your specific needs. Step three, get your three-month supply. Once approved, Alloy ships your prescription directly to your door with automatic refills. Easy peasy. Look, I can't function without sleep, just a fact. So the prescribing physicians with Alloy are there to help with hot flashes and night

• 18:46Leah Litman?

  sweats keeping you up at night. I cannot recommend Alloy enough. Join the 95% of women who tried Alloy and saw relief in the first two weeks. Head to myalloy.com and use the code STRICT and tell them all about your symptoms and you'll get a fully customized treatment plan and unlimited messaging with your doctor. Plus, you'll get $20 off your first order today. Head to myalloy.com and use code STRICT to get $20 off your first order.

• 19:16Leah Litman?

  Strict Scrutiny is brought to you by Wild Alaskan Company. We eat pescatarian at home, but we don't eat fishy smelling fish. You know, the stuff that doesn't taste fresh and just has that yucky smell and yucky texture. Ruins the meal. Really doesn't matter how much sauce you use. And trust me, I've tried. But I don't want to give up eating fish at home. I basically think of myself as part dolphin, given how much I swim. So I need the fish to keep me swimming. Wild Alaskan Company offers the best way to get wild-caught, high-quality seafood delivered to your door on your schedule. Here's what Wild Alaskan Company has on tap. Each Wild Alaskan box comes with individually portioned fillets, vacuum sealed, easy to prep, and great for any meal, no matter how quick or elevated. It makes it super easy to portion size out the meals, and everything is precut for you.

• 20:01Leah Litman?

  And all their fish is quick-frozen, fresh from the Alaskan waters, which helps lock in its freshness, texture, flavor, and key nutrients like omega-3s. And, and, and, it's fish you can trust, unlike some guys on the Supreme Court, with no GMOs, antibiotics, or other additives. Every order supports sustainable harvesting practices and Alaskan fishermen whose history is tied to the region and practice. Some of my favorites from the Wild Alaskan Company are the Pacific Halibut. Halibut is firm, but not too overpowering, so it holds up well with thicker sauces like the sheet pan fish tikka masala or Goji Jang's motherfish. I also like the Pacific Rockfish. That's more of what I use for lighter sauces, like more of a Mediterranean flavor. Wild Alaskan Company is so confident that their fish is the best, that they offer a

• 20:46Leah Litman?

  100% satisfaction and money-back guarantee. So you can try your first box risk-free. Go to wildalaskan.com/strict for $35 off your first order of premium wild-caught seafood. That's wildalaskan.com/strict for $35 off your first order. Thanks to Wild Alaskan Company for sponsoring this episode.

• 21:12Melissa Murray?

  Should we do the TPS case?

• 21:14Kate Shaw?

  Yeah, because if you thought it was bad, it somehow gets so much worse in the TPS case.

• 21:20Melissa Murray?

  Yes.

• 21:21Kate Shaw?

  Because this is another 6-3, Sam Alito authored a decision. And here, the court basically said, one, immigration statutes, or at least some of them, maybe all of them, those aren't real laws that are actually enforceable against the Trump administration. Specifically, here, the court said that the federal statutes governing this temporary protected status or TPS designation, and the kind of revisiting of the designation, either to terminate or extend it, that those statutes, which require certain procedures, be undertaken before any modification is made, and specifically before TPS status is canceled, these statutes and their requirements are basically not subject to judicial review, full stop.

• 22:06Melissa Murray?

  Just to be clear, that's really important that the court is sort of hanging its hat on these are just not reviewable, because there is very little question that the Trump administration failed to comply with the letter of the law here. As we discussed in our live show in New York City last week, The New York Times has reported, and emails confirm, that the Department of Homeland Security canceled the TPS program for Haitian nationals without waiting for the required statutory consultation with another department, in this case, the Department of State. But don't worry, the court manages to avoid that unfortunate factual and statutory wrinkle by concluding that the statute doesn't permit review of the secretary's determination

• 22:49Melissa Murray?

  that TPS should be rescinded. And to be very clear here, the majority gives the term determination a very broad meaning that includes not just the decision to rescind TPS, but basically the, quote, "chain of events" that leads to that decision. And this, again, sparks the man with the butterfly meme. Is this textualism?

• 23:13Leah Litman?

  Oh, for sure, for sure. As Justice Kagan said, quote, "Very broad would be one description for that reading of the term determination. Very strange would be another."

• 23:25Leah Litman?

  But in addition to rejecting the statutory claims, the claims that the executive branch had not followed the laws as far as the required procedures they had to follow.

• 23:35Kate Shaw?

  Wait, can we, before we go on to constitutional, can we just, can I say one more thing about the statutory? Because right, those are the two arguments in the case, right? Let the statutes weren't followed, statutory argument, and then there's a separate constitutional argument that also fails, Leah, we'll talk about in a minute. But I just, I was trying to figure out whether, because in the oral argument, I thought the plaintiff's attorney, you know, tried, I think, very kind of savvily to say, if you guys accept this no judicial review argument, then literally anything goes. So administrations could cancel everybody's TPS, they could like grant TPS to every country in the world. And like, they were trying to appeal to the conservatives' sensibilities of the majority by saying, what if a Democratic president decides to like let everybody in the world in using TPS designation?

• 24:19Kate Shaw?

  And I just couldn't tell whether Alito tried to be like, to leave a little crack open so that if there is a future Democratic administration that uses TPS in a way that is too expansive or too generous, they might still say, well, we didn't say no judicial review, just not much judicial review. Like, I don't know if you guys had a read on that, but it felt like there might have been some effort to kind of like see around that corner and make sure that if it came to actually reining in expansive use of this authority, then they'd be very able to do that.

• 24:48Leah Litman?

  No, no, no. Kate, that's never going to happen. We're never going to have a Democratic president because we're going to fuck up the election so hard, change these districts so incredibly, that it's going to be Republican rule forever.

• 24:59Kate Shaw?

  Yeah, but just that they may be just like

• 25:01Leah Litman?

  Don't worry about that.

• 25:02Kate Shaw?

  Belt and suspendering in case they are unsuccessful somehow in doing that. So, anyway, I just wanted to throw out that possibility, but sorry, Leah, you're going to talk about the other, the constitutional equal protection argument.

• 25:10Leah Litman?

  Yeah, so the court also rejected the claim that the cancellation of TPS for Haitian nationals was the product of unconstitutional animus and racial discrimination. So I think in one of the more cowardly and craven moves Sam Alito has made, which is saying something, he refuses to even quote, "and include"

• 25:34Leah Litman?

  The foul racist remarks that the president made about Haitian nationals before his administration canceled the TPS program for Haitian nationals. To my mind, like, he kind of goes see no evil, hear no evil, speak no evil, and applies that to the horrific blatant racism, which included the grotesque remarks from the president about how Haitians have AIDS, were eating cats and dogs, would poison the blood of the country, and how Haiti is a shit hole country, when, according to the president, we should really be taking people from Norway and Sweden. This apparently, to Sam Alito's delicate eyes, ears, and pen, who could not even recite

• 26:16Leah Litman?

  this, is not racist, which means I think the effect of this ruling is to legalize racism. You know, as Justice Kagan noted in her dissent, the majority declined to put these statements in print, like, they apparently find the statements so repellent and racially inflected that they don't go in the opinion. And just to situate this case, kind of, in some context of the court's other jurisprudence, talking about poisoning the blood of the country isn't racist, but you know what is racist? Enforcing the Voting Rights Act and multiracial democracy, also from the pen of Sam Alito.

• 26:55Kate Shaw?

  Yeah. Not from his pen, but also trying to ensure a modicum of diversity in institutions of higher learning.

• 27:01Leah Litman?

  Yes, very racist.

• 27:03Kate Shaw?

  Also relying on state laws from Reconstruction to justify restrictions on gun rights. We'll get to that in our next episode. That, too, is racist. I mean, those laws were racist, but the reliance on it being racist is sort of an innovation of this majority. Yeah, so there's lots of examples, but Trump's words, those aren't among them.

• 27:24Leah Litman?

  Yeah. And also, you know, what is evidence of animus? Again, not saying that Haitian nationals will poison the blood of the country, but talking about how if someone wants to do business in a state, they might have to comply with laws that go against their religious beliefs, that is animus.

• 27:39Kate Shaw?

  Yeah.

• 27:41Melissa Murray?

  Rule of law.

• 27:42Kate Shaw?

  Yeah, I mean, so Alito actually has the gall to basically say, you know, he won't actually reproduce verbatim any of these statements. And then he has the gall to basically say that this rhetoric is just the rough and tumble of politics. Like, he says, quote, "I almost can't even believe that he put this in the opinion, but he did."

• 28:04Melissa Murray?

  Just read it.

• 28:04Kate Shaw?

  I will. "Political discourse by prominent public figures is increasingly couched in terms that would have scandalized the public just a short time ago. And the statements cited by Meowt respondents, the plaintiffs in the case, in the Haiti case, especially those concerning Haiti and Haitian immigrants to this country, exemplify this development." It's just the coarsening of the culture, ladies. Everyone does it.

• 28:23Melissa Murray?

  Well, also, one additional thing he says about them, he says, quote, "The respondents, that is, the federal government, identify a strong, race-neutral explanation of these official statements. The present administration's general stance on immigration and its obvious antipathy toward past administrations' TPS policies." I'm sorry, is their general stance on immigration racist? And also, did they not like the previous administration's TPS policies because they admitted black people? Like, what the fuck?

• 28:53Kate Shaw?

  But it's also their xenophobia completely cleanses the racism. Like, it's just wild reasoning.

• 28:59Melissa Murray?

  Well, I mean, are you surprised by, I mean, like, this is kind of like partisan versus racial gerrymandering. It's not racism if it's xenophobia.

• 29:10Melissa Murray?

  It's not racial gerrymandering if it's partisan gerrymandering.

• 29:13Kate Shaw?

  Completely.

• 29:13Melissa Murray?

  Like, duh. Again, I think all of this smacks of the court's decision in Trump versus Hawaii, which upheld the third iteration of the travel ban, the one that had been sanitized to some degree. And I really think, although it's against type, you should read these cases in tandem with Calais and the other Voting Rights Act cases, where the court is, I think, giving birth to a new understanding of discriminatory intent. And basically, it's this, like, no one white is ever being racist when they say blatantly racist things, or when they organize extent government structures to disadvantage racial minorities.

• 29:56Melissa Murray?

  That's not racism, like the intent isn't there that that can be explained by other race neutral criteria or events. Instead, as Leah alluded to before, what actually gives rise to racism is thinking about diversity, thinking about equality and equity, suggesting that the nation's history may be punctuated by episodes where we disadvantage and even subjugate certain groups. You know, and I'm thinking here specifically of the recent Third Circuit case that clears the way for the National Park Service at the direction of the president to eliminate all references or many references to slavery in a public exhibit on Independence Mall. That's the real racial intent here that is discriminatory and subject to judicial censure.

• 30:41Melissa Murray?

  The rest of this, you know, it's all fine, like there are perfectly plausible race neutral explanations for all of these things.

• 30:49Leah Litman?

  Yeah, I can't tell if it's like plausibly race neutral or the coarsening of our politics like both.

• 30:54Melissa Murray?

  Or both.

• 30:55Leah Litman?

  Right? Yeah.

• 30:57Melissa Murray?

  Or both.

• 30:57Leah Litman?

  Anything but racism.

• 30:58Kate Shaw?

  Yeah.

• 30:59Melissa Murray?

  Yeah, I mean, yeah.

• 31:00Kate Shaw?

  Okay, we are going to do some quoting from Elena Kagan's dissent, which I think sums all of it up pretty well. She says the plaintiffs are entitled to stay in the country while these suits go forward. Remember this case, these cases came up like way early, like there was, there had been some discovery, but the cases were still ongoing. So she says that, and then she says respectfully, I dissent from the court's decision that they may instead.

• 31:24Melissa Murray?

  Respectful.

• 31:25Kate Shaw?

  Be put on the next plane. She kind of goes out of her way. It's interesting. At one point she says, you know, she does call the majority out in refusing to actually reproduce the racist statements at issue in the case. But then she also says that those actually contrast with the majority's quite respectful discussion of the conditions in Haiti. And it's like the majority's refusal to denigrate Haitians as a group. I'm not quite sure. She goes out of her way.

• 31:52Leah Litman?

  The bar is literally in hell. Way too nice to her colleagues.

• 31:56Kate Shaw?

  Yeah, I mean, it's, this is why it's, it is so hard. And Melissa, you said this, you know, call. To mine, Trump versus Hawaii, like absolutely. I have a piece that I think will be out by Monday. I, I, I think this is just so much worse because in Trump Hawaii, I at least read it as having, there is this like through line of A, the president's, there is at least a distaste that the Roberts opinion is, is able to muster about the statements, which you don't have in the Alito opinion because like he won't even explicitly talk about them. So it's not enough, but it's more. But I do think you also have, at least on my read of Trump versus Hawaii, this like the tenor of the opinion is, okay, the president said some crazy stuff, but there was this inter-agency process and like those experts like cleansed the process of like whatever

• 32:41Kate Shaw?

  discriminatory taint the president's statements might have confirmed.

• 32:44Melissa Murray?

  Better at this than Sam Alito.

• 32:46Kate Shaw?

  I, I hear you saying.

• 32:47Leah Litman?

  And he assigned him this opinion. He assigned him both these opinions.

• 32:50Kate Shaw?

  And staying silent, not writing anything separate, I thought was a very revealing choice because yeah, he doesn't have, you know, even if he wanted to call the administration out in the way that he did in the census citizenship case and the DACA rescission case, he doesn't have the votes to do it, but he all, he does have his vote and he decided to give his vote fully and without a separate writing at all to Sam Alito and this appalling

• 33:17Leah Litman?

  As Melissa says, see which got your voice slash pen, John? Like what's going on?

• 33:23Kate Shaw?

  Yep.

• 33:23Melissa Murray?

  Well, I mean, the best part is Samuel Alito is only too happy to carry water for the chief justice to do this. I mean, like, I mean, have you ever seen a more willing foot soldier? Yes, sir. I'll jump into the racism. Yes.

• 33:40Kate Shaw?

  I'm sure he asked for these opinions. He wanted to write these cases.

• 33:43Melissa Murray?

  No, no, I, I'm sure he did. I mean, but like, I mean, like my point with regard to, you know, it's gotten so much worse. Like I don't absolve John Roberts of it. I mean, like, I think he just makes it look more decorous in Trump versus Hawaii. He's better at it. He's better at making it look just, you know, okay, it's not total, like there are reasons and, and here's why, even though we know that Trump said those things and of course they inflected the process by which that. Executive order was promulgated. Of course it did, but now they don't even care about just sort of like, okay, we're going to deal with this, but there are actually these other reasons. Now they're like, you know what? There's no racism here because what there really is is xenophobia. And that's okay. That's like, that's a choice. I mean, it's the same way.

• 34:28Melissa Murray?

  We used to hate partisan gerrymandering. We wrote a whole decision about how unseemly partisan gerrymandering is. And now, you know, I, John Roberts, am going to cede the pen to Sam Alito to talk about how partisan gerrymandering is your birthright if you're a Republican.

• 34:42Kate Shaw?

  Completely.

• 34:43Melissa Murray?

  You know what? Even though this is a short episode, I think we need to have our evergreen segment. We need to talk about Justice Clarence Thomas. Do we? I think we do.

• 34:54Leah Litman?

  Yes. Because you know what? He would go further.

• 34:57Melissa Murray?

  Shocking. I'm shocked.

• 34:59Leah Litman?

  These Alito opinions, not far enough for Clarence Thomas.

• 35:03Melissa Murray?

  No.

• 35:04Leah Litman?

  How far does he want to go, Leah? He would make it a fish, a fish. Um, he would say that the equal protection guarantees actually don't apply to the federal government also, even if it was racial discrimination, that wouldn't be unconstitutional.

• 35:18Melissa Murray?

  Fifth Amendment, you endanger, girl.

• 35:22Leah Litman?

  Yeah.

• 35:23Melissa Murray?

  Yeah, that's where we're going. Invitation to basically rescind the Fifth Amendment, which includes a due process clause that has been interpreted by this court in Bowling versus Sharp, a companion case to Brown versus Board of Education, to include an implicit equal protection guarantee that applies to the federal government as much as the states. And apparently Clarence Thomas takes that personally.

• 35:44Leah Litman?

  Well, if Justice Thomas has to live through the indignity of seeing the court enforce the first sentence of the 14th Amendment, he really wants to take the Fifth Amendment out to the woodshed. Um, you know, he, he, he needs a little consolation prize.

• 36:01Melissa Murray?

  Anyway, folks, if in the next couple of weeks, probably next week, when we get the court's decision in birthright citizenship and you hear all of those hot takes talking about how decorous this court has been, how they really stood up for the rule of law, how they stood up for the Constitution, and they went toe to toe with this president and did not blink, I want you to come back and run this episode back and just think about all the things the court did on immigration before it did that one thing that it actually could have done a year ago, but didn't.

• 36:28Leah Litman?

  Yeah. Please do not forget everything that happened this week, including how the court, again, enabled a lot of the racist xenophobic elements of Trump's immigration agenda, sometimes gratuitously, right? Just telling them they could do something they weren't even doing at the time.

• 36:43Melissa Murray?

  Yeah. Yeah.

• 36:46Kate Shaw?

  All right, ladies, till next time. Opinions coming down. Well, we will reconvene tomorrow. We will have an episode in your ears and eyes on Monday. The court will have more opinions. There are eight to go, so probably Monday and Tuesday. Is that what we're assuming?

• 37:02Leah Litman?

  Definitely Monday, and Monday will not be the last day. I am hoping it's Tuesday and it won't go into July because what is taking them so long?

• 37:12Melissa Murray?

  I know. Girls are fighting. No, I'm the most right wing. No, I'm the most right wing.

• 37:20Leah Litman?

  Is this racism or are we saying racism is legal? We need to mull over that a little bit longer.

• 37:26Melissa Murray?

  I would go further and overrule the whole Constitution, actually.

• 37:32Kate Shaw?

  All right, well, we've got a couple of days of suspense until we figure out which of the above it actually is. Why not?

• 37:45Melissa Murray?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rauel and Michael Goldsmith. Jordan Palm is our intern. Our team includes Matt DeGroot, Ben Hethcote, Johanna Case, Kenny Moffett, Eric Schut, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

• 38:12Speaker 04

  Have you ever ordered an ice cold Coca-Cola Zero Sugar and told yourself, "I'm just going to take one sip while I wait for my food," but somehow the first sip turns into a second? And then before you know it, your meal arrives and you're looking at an empty glass? Well, we've all been there. That's the thing about Coca-Cola Zero Sugar. It has a delicious Coca-Cola taste you love with zero sugar. Coca-Cola Zero Sugar, real Coke taste.

• 38:35Speaker 01

  Zero sugar, it's too good to wait. Hola, es Mr. Monopoly. ¿Has soñado con ganarte 50 mil dólares para el pago inicial de una casa? ¿O una gift Cherokee del año? Monopoly volvió a McDonald's. Y esos son algunos de los premios que podrías ganar. ¡Fe por lo tuyo! No se necesita comprar 50 estados de Estados Unidos y DC. 18 años o más. Consulte las reglas en playrmcd.com y playrmcd.com/moe para información sobre jugar sin una compra por correo antes del 2 de noviembre. El Chance Card Game termina el 8 de noviembre. El juego termina el 22 de noviembre de 2026. Detalles de los premios en las reglas. Monopoly es una marca registrada de Hasbro.