SCOTUS Keeps Rewriting Gun History

Melissa, Leah, and Kate briefly recap the Court’s two major immigration decisions last week (for a deeper dive, check out last week’s emergency episode https://www.youtube.com/watch?v=E_wetONQXfI), before digging into the Second Amendment case, Wolford v. Lopez, which featured a cage match between private property rights and the right to bear arms, as well as Sam Alito’s funhouse-mirror version of history. Also covered: opinions involving green card holders, tax foreclosures, the Religious Land Use and Institutionalized Persons Act, the Foreign Sovereign Immunities Act, corporate liability for human rights abuses, and pesticides. They wrap up the show with some of the latest voting rights news. Favorite things: Leah:Kate on Hasan Minhaj’s podcast https://www.youtube.com/watch?v=xqQIQTBYI00&t=491s; JD Vance’s Richard Nixon revival https://bsky.app/profile/atrupar.com/post/3mp5ddlp3322x; SDNY on trans minors https://storage.courtlistener.com/recap/gov.uscourts.nysd.665317/gov.uscourts.nysd.665317.65.0.pdf Kate:Judge Patrick J. Schiltz’s opinion https://www.ag.state.mn.us/Office/Communications/2026/docs/00043_Immigration-Enforcement-Subpoenas_Order.pdf quashing the subpoenas to state and local Minnesota officials 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.socialFor a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected].

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

• 0:00Melissa Murray?

  Strix Hirtney 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 who have filed a new lawsuit against the U.S. 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 to say that the proselytizing Easter email sent by

• 0:40Melissa Murray?

  Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abuse of power that violates the separation of church and state promised in the First Amendment. They are absolutely right. And I just have to remind you, as we continue to think about the nation's 250th anniversary, that the whole question of religious freedom is not solely about religious pluralism, about different religious sects being able to flourish in the United States. It is also a hedge against tyranny, the idea that religion provides alternative sources of values and allegiances that imbue the individual with the capacity to be skeptical when the government comes peddling its own orthodoxies.

• 1:22Melissa Murray?

  So, when you think about this, it's not just about letting a million flowers bloom. It's literally about keeping limited government in place. And the hits just keep coming from this administration, and Americans United is doing their level best to keep up the fight against Christian nationalism. And if you want to help, head over to au.org/crooked to learn more about their work and how you can get involved.

• 1:48Speaker 01

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

• 2:00Speaker 02

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

• 2:30Melissa Murray?

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

• 2:38Kate Shaw?

  I'm Leah Litman. And I'm Kate Shaw. And we are in the home stretch of this Supreme Court term with opinions and argued cases coming fast and furious. So we're going to spend today's episode mostly breaking those opinions down for you. There will be even more opinions released the day this episode drops. That's Monday, so who knows? We might be in your ear holes again soon. And either way, it's going to be a busy and probably terrible week for all of us. So buckle up.

• 3:01Melissa Murray?

  Awesome, Kate. What a way to start. All right. So last week, we got 10 opinions from the court and nine were in argued cases. On Thursday, we did a same day emergency episode covering two immigration decisions. So we'll briefly discuss those here, but we'll spend more time covering the decisions we didn't talk about in that emergency episode. The first decision that we covered in the emergency episode was Mullen versus Joe, which is a decision from the court, 6-3 decision, that allows the president to cancel temporary protected status protections for Haitian and Syrian nationals. There were two questions in this case. One was a statutory question, whether the administration had complied with the required

• 3:42Melissa Murray?

  statutory procedures for rescinding temporary protected status, or TPS. And the second question, which was a constitutional question, whether the administration had acted with unconstitutional animus in rescinding those statuses. As Justice Alito, who wrote for the majority, explained, "Courts cannot review whether the executive branch has complied with the statutory procedures that Congress imposed for the rescission of those protected statuses." And with regard to the constitutional question of racial animus, our favorite woke warrior, Samuel Alito, reminded us all that "the only way to stop discrimination on the basis of race is to ignore discrimination on the basis of race and instead allow the administration to engage in rank xenophobia."

• 4:26Melissa Murray?

  Actually, the court specifically said that the cancellation of TPS for Haitian nationals was not racist, despite the president's many, many racist and targeted remarks about Haiti and its people.

• 4:36Leah Litman?

  Woke Lido, so many takes. When we covered the TPS cases in our emergency episode, we had just digested them. Since taping the episode, we have some additional thoughts which we wanted to highlight. First, we should discuss the practical implications of the decision, which will likely bring about the largest de-legalization of immigrants in our history. It will affect more than 300,000 Haitian nationals and 6,000 Syrian nationals. And the de-legalization isn't going to be confined to those groups. The administration has sought to cancel TPS for many other countries as well. Note, not really majority white countries, but when Trump took office in 2025, there were over a million people with TPS, and many TPS holders have been in this country for decades.

• 5:21Leah Litman?

  I think it's easy for American citizens to think this won't affect them, but it's going to. Many people who work in the healthcare industry, whether it's physicians, nurses, orderlies, EMTs, are immigrants who are TPS holders. Many childcare workers and others in care industries are TPS holders, people who work in construction trades, basically every industry. This will be massive, and we will all be impacted in ways both profound and banal. And this is to say nothing about the law enforcement practices that the administration might undertake to effectuate these mass removals and deportations, which are likely to sweep in citizens as part of racial profiling and more.

• 5:55Kate Shaw?

  And if the administration actually does kick that mass deportation into high gear and returns TPS holders to their home countries, they will face horrific conditions. The conditions in Haiti are particularly egregious, a fact that Justice Barrett is likely acutely aware of, given that two of her children were adopted from Haiti. Okay, should we play a clip from the administration's reaction to this decision? Let's play a clip of Stephen Miller, I don't know what the fuck he is, Deputy Chief of Staff, is that what he is? Anyway, let's play a quick clip.

• 6:26Leah Litman?

  White wing chief of staff? I don't know.

• 6:29Leah Litman?

  Again, I'm so fucking angry already. I apologize to our listeners.

• 6:33Kate Shaw?

  Yeah, no, especially on TPS. I feel like I've been that my rage level has been increasing basically by the hour since the opinion came down on Thursday. Okay, anyway, yeah, so this is Miller's reaction to the opinion.

• 6:46Speaker 05

  In the first Trump administration, President Trump ended TPS for Haitian illegals and was frozen by the courts. The Biden administration came in, they flew Haitians right over the border by airplane, dumped them into American towns all over the country, particularly in Springfield, Ohio, destroying these tight-knit communities and gave them all again this TPS, temporary protective status, which gives them unfettered access to welfare and other benefits in the United States. Trump ended that benefit again here in the second term, even though the statute says that it is judicially unreviewable, meaning Congress said the courts can't review it. Our rogue radical judges stymied that for the last 16 months.

• 7:28Speaker 05

  And again, now here we are because of the Supreme Court, and we can finally remove these Haitian illegal migrants from the United States.

• 7:35Melissa Murray?

  I'm going to say something incredibly pessimistic that you probably don't want to hear, and it is this: We were feeling kind of optimistic about where things were headed in the birthright citizenship case after the oral arguments. I'm not so sure anymore.

• 7:50Kate Shaw?

  I have the same thought.

• 7:52Leah Litman?

  So can I tell you something else along those lines? As we talked about when we talked about these cases, the dissent said respectfully. All of the dissents have said respectfully. What are they saving their not respectfully for?

• 8:02Kate Shaw?

  There was a way to, I mean, there was no remotely reasonable way to decide this case, but you could have said judicial review exists and somehow like they did enough, they consulted by asking, and that's like a ridiculous statutory argument, but like they did something, they being, you know, the administration, to satisfy the statutory criteria. The decision to find that there is literally no judicial review of these determinations, except maybe for some future Democratic president's TPS decisions, that is the maximalist disposition of this case. And I, Melissa, had the same thought. The tenor of these cases is so scary on an immigration question. I still think that most likely...

• 8:48Kate Shaw?

  The birthright order goes down. But I would say I'm far from 100% certain.

• 8:54Leah Litman?

  Yeah. Again, I just feel like whether it's absentee ballots or birthright, there's got to be that case that they are.

• 9:04Melissa Murray?

  It would be birthright.

• 9:05Leah Litman?

  Right, yeah. And it's just nauseating. But there was a second immigration case that we covered on our Thursday episode, and that was Mullen versus Al Oto Lado, where in another 6 to 3 opinion authored by Samuel Alito, the Republican supermajority allowed the administration to circumvent all of the required procedures and protections for asylum seekers arriving in the United States so long as a US border official manages to stop the asylum seeker at the border and prevent their entry across the border.

• 9:36Kate Shaw?

  So on both of these cases, if you want to hear more about how the court has enabled the Trump administration's aggressive and inhumane immigration policies, including policies designed to exclude or expel Black and Brown immigrants, listen to that emergency episode from last week. Also, if you want to read more, I and also friend of the show Alora Mukherjee have pieces in The Times on various aspects of the first case, the TPS one, and Leah has a piece in The Atlantic touching on TPS and other cases, and also one in The Contrarian on the TPS and asylum cases.

• 10:06Leah Litman?

  Yeah, so we played a clip of Miller on the TPS cases, also wanted to play a clip of him talking about asylum protections in the wake of Al Oto Lado, which you can hear here.

• 10:18Speaker 05

  I think the most important point is that this administration on the asylum point is we've implemented international agreements all over the world to take in our asylum seekers. So America's doors are closed fully to asylum seekers.

• 10:31Leah Litman?

  And I guess what I wanted to flag about this is he seems to be saying there's just no asylum, period. And in Al Oto Lado, Justice Alito basically dismisses the discussions about how this ruling might generate extreme egregious callous takes on asylum policy as just hypotheticals that weren't worth his too precious time.

• 10:57Melissa Murray?

  Much like the Chief Justice's immunity opinion dismissed the fears of the Democratic dissenters as fear mongering and far fetched when many of them have come to pass. And within the same day of Justice Alito's opinion in the asylum case, Stephen Miller is already maxing it to its most white nationalist extent.

• 11:19Kate Shaw?

  Excellent work, John Roberts, assigning that opinion to Sam Alito, joining it in full. Good work, sir.

• 11:25Melissa Murray?

  I mean, it felt like Thursday was Alito Day at the court, which we will get into.

• 11:29Kate Shaw?

  Which is the worst kind of day.

• 11:31Melissa Murray?

  The worst kind of day.

• 11:32Kate Shaw?

  In any timeline. Okay, before we move on to the other opinions we want to discuss, I just wanted to quickly correct something we said in our emergency episode. So we were talking about Alito issuing from the bench a rebuttal to Sotomayor's bench statement, and we thought that we speculated that that might have been unprecedented, but commentators have now identified a couple of other examples of that. So Mark Walsh noted that, actually, I didn't remember this, but in 2015, in the lethal injection case, Glossop versus Gross, Justice Scalia responded from the bench to Justice Breyer's bench statement. That was his dissent. And then also, really, really, sort of dialing the clock back, Rory Little

• 12:05Melissa Murray?

  In the archive.

• 12:06Kate Shaw?

  Right.

• 12:07Melissa Murray?

  In the archive.

• 12:08Kate Shaw?

  Noted that in 1961, there was an exchange between Warren and Frankfurter about a criminal justice case. So anyway, Alito's conduct, though peevish and very much on brand, was actually not unprecedented. But it was definitely unusual. We don't typically see that sort of thing with the court. But obviously, this is not your typical court.

• 12:28Melissa Murray?

  I appreciate your commitment to Arada, but I like, seriously, 2015, okay, that's reasonable, but like 1961, Jesus Christ, come on. Anyway, doesn't happen a lot.

• 12:43Kate Shaw?

  Sure doesn't.

• 12:46Melissa Murray?

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• 17:06Melissa Murray?

  So listeners, I don't know how else to tell you this. We are in the thick of bad decisions season, which means that we now have to focus on the other decisions that were handed down last week. Although, we've got lots to say about these TPS cases and they may continue to filter through our discussion of these cases, but we're going to focus on these other cases because guess what? They suck too. All right. First up was a Second Amendment case Wolford versus Lopez. And this was a six to three opinion authored by, you guessed it, Samuel Alito, in which the court invalidated a Hawaii law that created a default presumption prohibiting guns on private property that is otherwise open to the public unless the private owner

• 17:50Melissa Murray?

  consents to the carrying of guns on the property. Writing for the conservative supermajority, Justice Alito concluded that the challenge law violated the Second Amendment because it, quote, "hobbles what the Second Amendment protects, the right of Americans to carry arms for self-defense as they go about their daily lives." And at this point, you should insert the meme of Arthur the Aardvark clenching his fists. Now, if that seems a little overstated to you, because the law does little more than require the private property owner's consent before allowing firearm possession on the private property, I'm just here to tell you that this case probably created a real conundrum

• 18:32Melissa Murray?

  for the court's homosexuals because it pits the history and tradition of bearing arms against the equally long history and tradition of protecting private property rights, something that conservatives have always been really into. But now they seem less into it because the real property interests that this court seems willing to protect is the property interest in a Glock. So, there we are.

• 18:55Leah Litman?

  William Blackstone paraphrased, "Guns are the true private property."

• 18:59Melissa Murray?

  Right.

• 19:00Leah Litman?

  Black Glock.

• 19:01Melissa Murray?

  Right, exactly.

• 19:02Leah Litman?

  Black Acre.

• 19:03Melissa Murray?

  Black Acre, no, exactly.

• 19:06Leah Litman?

  Black Glock, Black Uzi.

• 19:08Melissa Murray?

  Right.

• 19:09Leah Litman?

  This, I have to say, I just found it to be a kind of weird take to think that the founders would have said property owners can't keep dangerous stuff off their property, or at least that the state couldn't require you to ask a property owner and get their affirmative, explicit consent before bringing something dangerous onto their property, but always appreciate Sam Alito's historical fiction, you know? So...

• 19:34Kate Shaw?

  Making black AR-15 happen.

• 19:37Leah Litman?

  Exactly. And, you know, because he's so great at history, this was unsurprisingly an application of the Supreme Court's legal test from Nysorba versus Bruin, the Second Amendment decision, which said courts should determine whether a gun control measure is constitutional by asking if it fits within the nation's historical tradition of firearm regulation. As an added bonus, however, Alito provided some additional gloss on the Bruin test, injected more squishiness, more discretion, more opportunities for subjectivity, like the vibes weren't vibing enough for him, so he had to make room for even more. He's got so many feelings.

• 20:15Kate Shaw?

  It's like, wake up, babe. New Bruin factors just dropped. And these factors, I wish I could say I really understood them, but there's like, I gather you're not supposed to just ask whether there were historical analogues, but now how many, which we sort of knew, but also whether any analogous historical laws were well-accepted? So I think that's new and also sounds super objective and determinate.

• 20:39Leah Litman?

  We're making Second Amendment law popularity contest. So that's gonna go super well.

• 20:43Kate Shaw?

  Sure, why not? It did feel like, for an originalist opinion, they definitely had some original takes on history. So, again, as Leah said, under the Bruin test, to comply with the Second Amendment, the challenge gun safety law has to fit within the history and tradition of firearm regulation in the United States. Like, that is what Bruin says, and now there's been all of this overlay atop it. So here, Justice Alito basically made clear how the test is now going to work, at least for the kind of ammo sexually inclined. Hawaii defended its law by pointing to a common law tradition in defense of private property rights, rights to exclude people for whatever reason the property owners dreamed up. Well, although that sounds like the sort of

• 21:26Kate Shaw?

  Anne Randian kind of fantasy that you'd think Alito would be drawn to, actually, no. Proletary Alito!

• 21:34Kate Shaw?

  We haven't pulled that one out in a while.

• 21:36Leah Litman?

  I know.

• 21:37Kate Shaw?

  Was that from the first Nisserpa case?

• 21:39Leah Litman?

  I honestly cannot even remember.

• 21:41Kate Shaw?

  Yeah, in any event. So, the opinion begins with a declaration of, quote, "overwhelming evidence of," quote, "an enduring American tradition permitting public carry." He somehow seems to be saying with a straight face that there was a common law rule about access to private property, carrying a gun, when it's not even clear what, like, private property open to the public meant at the founding? Given that here we are talking about, like, unenclosed or unimproved lands? Like, what is he talking about?

• 22:06Leah Litman?

  Are they carrying around muskets on private? I just don't understand.

• 22:11Kate Shaw?

  Yeah, none of this makes any sense. Yeah.

• 22:12Leah Litman?

  Hawaii invoked the anti-poaching laws from early US and English history that prevented carrying guns onto private property. Justice Alito dismissed these historical analogs, saying, well, that was to prevent unauthorized hunting and poaching.

• 22:26Kate Shaw?

  Hunting with guns?

• 22:27Leah Litman?

  Poaching with guns? No, no, no, no, no, no. Guns don't kill animals. Hunting does. Melissa, I think that that was his reasoning.

• 22:36Kate Shaw?

  People kill animals.

• 22:38Leah Litman?

  Right. But he just said that was simply too different from Hawaii's law because they did not affect the Second Amendment's central objective of protecting self-defense. It just feels like the court's analysis of historical analogs is a perpetual cycle of Lucy, Charlie Brown, and the football. Like, I'm sure, right, you'll be able to get it sometime. It just turns out the history is never quite on point.

• 23:03Melissa Murray?

  Speaking of Bruin football, the court, when doing history and tradition, seems A-OK with saying that some history counts and some history doesn't. And the history that should not be able to count is really dependent on whether the court thinks that history is, wait for it, racist. Right? So, this is another segment about the woke court doing woke history. So, the Hawaii state government defended its gun control law by analogizing it to a Louisiana law from the 1860s that prevented gun possession on private property without the private property owner's consent. Hmm, seems on point. But if Bruin requires consistency with the nation's history and tradition and firearm regulation...

• 23:45Melissa Murray?

  That regulation actually has to be consistent with being anti-racist, as this court has always been an anti-racist court as well. So the problem with this law from the 1860s is that it is basically a law that was passed in Louisiana in the 1860s for the purpose of disarming African Americans. Because the law was intended to disarm newly freed African Americans, Justice Alito has surmised that it is racist and cannot be considered, or should not be considered, in the history and tradition calculus. So despite the fact that it is completely on point with the modern law that has been challenged, we can't even consider it as part of the nation's history and tradition of firearm regulation because racism.

• 24:28Melissa Murray?

  Just a reminder that at the oral argument in Wolford, Justice Jackson made several pointed remarks about how the conservative justices constantly cherry pick history and cherry pick whether or not they give a fuck about legalized racism.

• 24:43Kate Shaw?

  And in addition to that reminder of Justice Jackson, also a reminder that on the very same day that Justice Alito issued this decision decrying consideration of a 19th century law because it was irredeemably tainted by racism, he issued, he authored, and he read from the bench, another decision in which he maintained that the president's vile smears of Haiti and Haitians were not in fact racist, but merely the rough and tumble of politics, merely stating the nature of affairs on the Caribbean island. I mean, it's not news that these guys are wildly hypocritical, but this, I felt, was a particularly galling example of that hypocrisy.

• 25:22Melissa Murray?

  Trolito. Mm-hmm. Woke Trolito. Okay. Um, I want to take a few more beats on cherry picking history, because we need to note that woke warrior Sam Alito, who will not deign to consider a racist law from the 1860s, is also the author of Dobbs versus Jackson Women's Health Organization, which rescinded the constitutional right to an abortion on the view that in 1868, when the 14th amendment was ratified, there were laws criminalizing abortion in existence. And notably, many of The laws that Justice Alito cited were laws that were animated by, wait for it, nativist slash racist fears that native born white women were using contraception and abortion

• 26:06Melissa Murray?

  to limit the number of children that they had while their black and immigrant sisters were having large families and that this birth disparity would inevitably shift the demographic character of the country, making the United States less white and less WASP-y. All to say that Justice Alito seems to be someone who doesn't mind taking account of laws tainted by racism when the ultimate goal is to rescind a woman's right to choose an abortion.

• 26:32Kate Shaw?

  No, but Melissa, he already told us racist, it's xenophobia, not racism.

• 26:35Melissa Murray?

  That's right.

• 26:36Kate Shaw?

  It is just fine.

• 26:37Leah Litman?

  Well, and also I vaguely recall something in Dobbs about him saying, well, we, the court, don't like to question legislature's motives and ignore laws based on conclusions that the legislature's motives were improper, both and, and.

• 26:55Kate Shaw?

  Bernovich too, yeah, he's definitely, yeah, yeah.

• 26:58Leah Litman?

  So on and so forth. You, well, speaking of Louisiana versus Calais, despite Sam Alito being very triggered by considering the relevance of racist laws to constitutional analysis in Woolford, I will remind him that he wrote the decision in Louisiana versus Calais, nullifying Section 2 of the Voting Rights Act, the law that literally made the country a multiracial democracy, such that any laws passed before the Voting Rights Act, particularly in the South, would be products of Jim Crow segregation. So should we be ignoring all of them? I just am so curious.

• 27:37Melissa Murray?

  How do I do the history, sir?

• 27:39Leah Litman?

  Exactly.

• 27:40Melissa Murray?

  Please tell me.

• 27:41Leah Litman?

  Exactly.

• 27:42Kate Shaw?

  This is just like drunk history is the way he is doing it, drunk and opportunistic history. And, you know, we've sort of belabored this, but maybe just another example is that the conservative supermajority brushes away, in addition to the other kinds of evidence that Hawaii marshals, evidence from before Hawaii actually became a state that limited the carrying of deadly weapons. Now, I don't know that it's On Bruin's own terms, like what the actual weight of that evidence should be, but it is definitely meaningful and problematic that Alito doesn't really engage with how to weigh a state's pre-statehood legal history, instead insisting, in what felt to me like a pretty dismissive and even contemptuous kind of way, this idea that the spirit of

• 28:24Kate Shaw?

  aloha could somehow justify gun regulations. He says, "The spirit of aloha cannot shrink the rights guaranteed by the Second Amendment."

• 28:32Leah Litman?

  Thank you. I'm making a T-shirt. I am the spirit of aloha. Spirit of aloha, this Sam Alito.

• 28:37Kate Shaw?

  Would wear. Yeah.

• 28:39Melissa Murray?

  Unsurprisingly, Justice Jackson sharpened her pen in dissent to once again take aim at Bruin and how stupid and misguided the tests and maybe even her colleagues are. She also had this to say, quote, "With this decision, the court has now manipulated Bruin into a free-for-all that lets the judiciary thwart the will of legislatures by privileging access to firearms above all else. Today's decision makes one thing clear: The court's objective is protecting guns, not consistently preserving any principle of law. Shorter, KBJ. This dumbass test is just another vehicle for my awful colleagues to continue aggrandizing power to themselves and the National Rifle Association. KBJ out."

• 29:21Leah Litman?

  And I think she was pointedly on to something, which is, the court is just all over the map on how Bruin works, and Wolford seems to gerrymander the test in ways that are designed to strike down gun control regulation and just view gun control regulation as just not a legitimate part of governance. So, for example, in Bruin, the court had suggested, in order to show a historical analog, you really need to focus on enacted laws. Rahimi said, no, that's not the test. Now Wolford comes back and actually says, well, the best evidence of historical tradition is enacted historical analogs. It also defines the arms that are protected under the Second Amendment somewhat more capriciously than some lower courts have. It's just all over the place.

• 30:05Kate Shaw?

  I just want to say briefly, like, a word or two about Justice Barrett's concurrence, which did feel to me like her gloves have kind of come off. I'm thinking particularly of her accusations.

• 30:14Melissa Murray?

  The gloves were always velvet.

• 30:17Kate Shaw?

  Well, there are no gloves at all at this point. But basically, it's not the majority on Barrett's account that smuggles things into the Bruin test, as we have just been suggesting, but actually, it's Hawaii and Justice Jackson in dissent. So she, like, three, I think, or maybe four times, calls out the principal dissent, which is Jackson's dissent by name, accuses the Jackson dissent of erroneously claiming that Bruin leaves judges free to insert any meaning they desire into the text of the Second Amendment. And she basically says, no, that's not true. Basically, you're asking us, you dissent in Hawaii, to smuggle additional limits drawn from our regulatory tradition into the plaintext stage of the inquiry. So they are sort of fighting about both stage one and stage two of the Bruin test, such as they are, which I don't even really understand at this point.

• 31:02Kate Shaw?

  But one other Barrett point, she draws an analogy to a law that set the default that religious garb could not be worn on private property without the express consent of the owner. And she's like, aha, you wouldn't like that, and so you shouldn't like this default. And I do think that the kind of, the trolly quality to that example suggests that she is learning from her woke warrior colleagues. And I just, all I can say in response, not that it matters to these goals, is that in any sane world, the fact that hijabs are not instruments of injury and death would make a difference in assessing a state's regulatory interest in those two things. But alas, that is not Amy Coney Barrett's world, and it is not ours.

• 31:40Melissa Murray?

  So I thought her concurrence was super interesting, for all of the reasons you suggest, Kate, but also because she seems to be contesting the grounds of the debate. So one of the things that Justice Jackson did was to call out the majority for a decision that is not just inconsistent with the history of firearm regulation, but a history in which conservatives and the law have always prioritized private property rights. And Barrett seems to be suggesting that this case isn't about private property rights at all. It is first and foremost about gun rights, and therefore, there is no inconsistency or lack of principle. And, you know, as she explains, everyone knows that private property owners have the right to exclude people and guns from their property. But in this case, she writes, quote, "The Second Amendment

• 32:25Melissa Murray?

  doesn't apply to private parties. It does apply to the states. And when a state enacts a property law that regulates arms-bearing conduct, that law implicates the Second Amendment." So basically, she's saying if you're going to plausibly limit gun possession on private property, the prohibition cannot come from a state enacted law. It has to be an individual prohibition from each private property owner, which is obviously untenable as a policy matter for gun safety. But this seems to be the future of Second Amendment jurisprudence. Anything that the government does to regulate guns is going to be presumptively unconstitutional. Everything would have to happen through private ordering.

• 33:05Melissa Murray?

  This episode is presented by Planned Parenthood Federation of America. If you listen to district scrutiny, you already know this administration, this Congress, and these courts have spent the last few years making it harder to get health care in this country and its patients who are paying the price. Take the Supreme Court. The Supreme Court paved the way for states to exclude Planned Parenthood Health Centers from state Medicaid programs in Medina versus Planned Parenthood. This undoubtedly violates patients' rights to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients with low incomes from accessing birth control, cancer screenings,

• 33:47Melissa Murray?

  STI testing, and more. That's why Planned Parenthood is fighting back. But fights like these take resources and supporters just like you. No matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect patients' access to care when and where it matters the most. If you believe that all people should get health care, no matter their income, donate now at PlannedParenthood.org/defend.

• 34:15Melissa Murray?

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• 34:58Melissa Murray?

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• 35:42Melissa Murray?

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• 36:04Leah Litman?

  Now for the other decisions. So, one decision from last Tuesday was Blanche versus Lau. So, this case concerns legal protections for lawful permanent residents. And in the hierarchy of immigrants, lawful permanent residents, green card holders, are supposed to have the most rights, including the right to leave the country and return to the country. Federal immigration law carefully restricts when lawful permanent residents are not allowed to return to the United States with their immigration status. It allows immigration officials to refuse to allow a lawful permanent resident to return to the United States, that is, to be denied admission to the United States with their legal status as a lawful permanent resident if there is clear and convincing evidence

• 36:47Leah Litman?

  that the lawful permanent resident committed a crime of moral turpitude. And in this case, the Supreme Court said, fuck laws, and decided that immigration officers can refuse to admit green card holders even if the government doesn't have clear and convincing evidence that the green card holder committed a crime of moral turpitude, which kind of takes the whole, I don't know, lawful, permanent, and resident elements out of lawful permanent resident. The court made federal immigration law more of a suggestion than a rule. And I vaguely recall how this court really hates it when previous courts had quote unquote "made" laws rather than interpreting them, and how they railed about how only Congress can change the meaning of statutes and their terms.

• 37:29Melissa Murray?

  Hmm, yeah. All right. Let's turn to Pung versus Isabella County. This case involved the problem of tax foreclosures. Side note for you listeners, later this summer, we have on deck for you a terrific conversation with the University of Southern California's Professor Bernadette Atuhaheny about her recent book, "Plundered," which considers tax foreclosures in Detroit and is very much on point with this case, so please stay tuned for that. In any event, in most tax foreclosures, homes are often sold below their fair market value in order to satisfy existing tax liens on the property. And in this case, the plaintiff's home was foreclosed and auctioned to recover about $2,200 in unpaid property taxes.

• 38:10Melissa Murray?

  The wrinkle, though, was that the home was assessed at $194,000 but sold at auction for just $76,000. The owner, Pung, received the difference between the sale price and the amount of taxes, but he sued, claiming that the state also owed him the difference between the assessed value and the sale price. Specifically, he argued that the failure to pay the difference amounted to an unconstitutional taking and a violation of the Eighth Amendment's prohibition on excessive fines. Predictably, in a six to three opinion authored by who else, Justice Alito, the court foreclosed on Pung's argument by doing some history and tradition interleavened with some personal responsibility moggling. Basically, the foreclosure method, Justice Alito held, is consistent with the history

• 38:54Melissa Murray?

  and tradition of foreclosing on homes, and Pung should have refinanced and paid his property taxes like a responsible homeowner would. As for the Eighth Amendment's excessive fines claim, well, history and tradition rules that out, too.

• 39:06Kate Shaw?

  On to Lander versus Louisiana Department of Corrections, and this is a big one. So you know how the Roberts Court has a huge Jones for religion and religious practice?

• 39:16Melissa Murray?

  Sure do.

• 39:17Kate Shaw?

  It was weirdly, you think you do, and yet that was not on display, strangely, in this religious liberty case, leaving the strong impression that said Jones is only for white Christians.

• 39:28Melissa Murray?

  And religions that they recognize.

• 39:30Kate Shaw?

  Yeah, that's fair. So maybe we learned that, and we may also have learned that this Jones, in general, plays, or maybe just in a case like this, plays second fiddle to the right-wing project of clipping Congress's wings and attacking public benefits programs and the social safety net. Lander involves a Rastafarian prisoner whose dreadlocks were cut off by prison officials in violation of his religious convictions and religious practices. It's worth noting that when he was transferred from one facility to another, he was afraid that he would have his locks cut, so he provided prison officials with a printed document that explained that they could not cut his hair because free exercise. And what did they do? They threw that printed judicial opinion in the garbage and held him down and forcibly

• 40:15Kate Shaw?

  cut his hair, shaved his head.

• 40:17Melissa Murray?

  Because, Kate, who cares about free exercise unless you're a trad wife or a trad dad? Right?

• 40:23Kate Shaw?

  Not this report, clearly.

• 40:24Melissa Murray?

  Doesn't matter for you. That's right. To be clear, this case, despite the religious overtones, is not a straight-up free exercise claim. Instead, the prisoner, Lander, sued the prison officials for damages under the Religious Land Use and Institutionalized Persons Act, or also known as RULUPA. RULUPA was enacted to ensure that prisons and other state institutions protected the religious practices of those who are in their charge and the statute was enacted under Congress's authority under the spending clause and its terms apply to any local prison that accepts federal funding. Those terms from the statute require state prisons to protect inmates' religious liberty and explicitly permits prisoners to sue for quote unquote appropriate relief when their rights under Ralupa have been violated.

• 41:09Melissa Murray?

  Yet, despite these very clear provisions, the prison officials that Mr. Landor sued argued that they could not be sued in their individual capacities under Ralupa.

• 41:20Leah Litman?

  And the Supreme Court agreed. Again, because laws, at least spending clause laws, those aren't real. They're just guidelines, not actual laws. They're more law-ish. So in a decision authored by Neil "Mild Gummy" Gorsuch, a six to three majority held that Ralupa itself is basically a mild gummy and does not authorize lawsuits seeking damages from prison officials in their individual capacity. The court bifurcated the idea of obligations on one hand from liability on the other and said, well, the spending clause can impose an obligation, but no liability unless they specifically consent. So Justice Gorsuch explained pedantically, quote, "Congress's power to spend money does not include the power to regulate.

• 42:02Leah Litman?

  Spending clause statutes can bind only those who voluntarily and knowingly undertake obligations by agreement with the federal government." Here, the individual prison officials didn't agree to be bound by Ralupa's terms, so they can't be sued for violating them. Even though the court maintained they are still subject to and bound by them, it's just brrr.

• 42:21Melissa Murray?

  So Justice Jackson issued a vigorous dissent here, and the dissent basically boiled down to this. This is entirely batshit crazy and effectively renders all spending clause statutes as unenforceable against individual officers who are charged with carrying out the terms of the statute. And that is to say, that's a lot of statutes. In the last 30 years, as this court has foreclosed Congress's authority to pass legislation under the Commerce Clause and Section 5 of the 14th Amendment, really narrowing those heads of congressional authority, it is the spending clause that's emerged as a crucial means by which Congress can continue to enact legislation, or at least could continue to enact legislation.

• 43:03Melissa Murray?

  This is not to say that Congress can't do that under the spending clause, but now it seems like whatever they do under the spending clause is really more legislation-ish, a suggestion, not necessarily binding law.

• 43:16Kate Shaw?

  I'm not even totally sure. So back to the immigration cases for a moment. Like with the TPS case, I mean, an administration, you know, willing to completely defy the law is going to be hard for Congress to respond to. But Congress could legislate and explicitly extend protections to individuals who are current TPS recipients. And I mean, there are legislative responses that are possible. It's not even totally clear to me, like, what Congress is supposed to do here if it's acting under the spending clause that would have produced a different result. I mean, maybe create some mechanism by which like individual, state and local prison officials, like consent to the terms of like federal monies. But I honestly don't even know how that would work. And it just, this, the kind

• 43:56Kate Shaw?

  of breadth of this opinion, and also like, ah, it's foreclosing of kind of democratic avenues for response is like really pretty stunning. Okay, on that note, on to the next case, Exxon Mobil Corp. versus Corporacion Cemex. Let me give a little bit of background before delving into what's at issue in this case. So after the Cuban Revolution, Castro's government seized a lot of property, including property owned by American businesses. Then in the mid 1990s, to afford what this statute called victims of, quote, Castro's wrongful seizures, a, quote, judicial remedy in the courts of the United States, Congress passed a law, the Helms Burton Act, which created a private right of action for US nationals, including US corporations, whose property had been unlawfully confiscated by the Cuban

• 44:40Kate Shaw?

  government. Well, you might be thinking, in light of the conversation we just wrapped, didn't Arlopa also create a private right of action for prisoners whose religious liberty was violated? Well, you'd be right. But one critical difference, I mean, there are others, but this is one important one, is that prisoners aren't oil companies. When the party seeking to enforce a right is a wealthy US corporation, the analysis and the outcome is of course different.

• 45:03Melissa Murray?

  Anyway, said wealthy corporation, Exxon, brought this suit against Cemex, a company that is controlled in part by the Cuban government. Again, this case is kind of a right wing fever dream in some ways. It involves oil corporations in a communist country that America is determined to starve into supplication. But notably, it wasn't all smooth sailing for Exxon in enforcing its judicial remedy. ...against CEMEX for expropriating its property. Exxon did have to get over the hurdle of what is known as foreign sovereign immunity, which means that foreign sovereigns, like Cuba, are presumptively immune from suits in United States courts. The principle of foreign sovereign immunity is codified in the Foreign Sovereign Immunity

• 45:45Melissa Murray?

  Act, which says that foreign sovereigns can't be sued in the United States courts unless one of the act's statutory exceptions is satisfied. Accordingly, the question for the court here is whether the Helms-Burton Act abrogates foreign sovereign immunity, or whether plaintiffs like Exxon satisfy one of those statutory exceptions in the Foreign Sovereign Immunities Act that allows it to abrogate foreign sovereign immunity.

• 46:08Leah Litman?

  Here, in a six to three opinion authored by Coach Kavanaugh, the court held that the Helms-Burton Act abrogates the Cuban government's sovereign immunity, meaning that plaintiffs who rely on the Helms-Burton Act to sue the Cuban government or its instrumentalities are not required to satisfy an exception to the Foreign Sovereign Immunities Act. As Coach Kavanaugh wrote, "Stacking an FSIA requirement on top of the Helms-Burton Act would thwart Congress's design and directly contravene the president's foreign policy judgments," and quote, "Sounds like textualism to me." A few things to note about this decision. First, for a self-identified textualist, Brett Kavanaugh had to engage in some pretty tortured statutory interpretation to arrive at this outcome because, inconveniently,

• 46:50Leah Litman?

  the Helms-Burton Act doesn't say that it abrogates sovereign immunity. Obviously, the lack of an explicit text abrogating Cuba's sovereign immunity was not going to pose an obstacle to this court having a good time. So TLDR, Exxon wins, Cuba loses, six-three. This is a ruling that will likely accrue to the benefit of Marco Rubio and any oil companies who want to sue Cuba for appropriating and expropriating their oil. It seems that foreign sovereign immunity, like stare decisis, is also for suckers.

• 47:23Melissa Murray?

  I just want to chime in here to say that I think this decision benefits more than just Exxon and Marco Rubio. And I think Coach K tips his hand a bit when he says that requiring compliance with the FSIA would, quote, "directly contravene the president's foreign policy judgments." It seems to me that Coach Kavanaugh is trying hard to make Curtis Wright happen again. And Curtis Wright versus the United States is a 1936 decision written by Justice George Sutherland that is widely credited with advancing the view that the president enjoys wide, even plenary, authority in the conduct of foreign affairs. And although the decision hasn't been entirely discredited, many commentators have rightly noted that it is somehow a historical, in its account, of how the president came to

• 48:06Melissa Murray?

  be the primary mover in the field of foreign affairs, and that it substantially discounts Congress's own congressional power in the arena of foreign affairs.

• 48:15Kate Shaw?

  And can we say Chief Justice Roberts, in his Zbrotowski opinion, basically says that. So it's not even just like, once upon a time Roberts kind of agreed that Curtis Wright should not be overread in exactly the way it's, you're suggesting Kavanaugh seems eager to do. Sorry to jump in, Melissa.

• 48:28Melissa Murray?

  No, no, no. Like, that's exactly right. I think, though, you should read this Exxon opinion in tandem with Kavanaugh's 63-page dissent in the tariffs case, where he seems to be aggrandizing the president's authority in foreign affairs policymaking and shrinking the judiciary's ability to review and check that authority. So it's not even that Curtis Wright limits the authority that Congress might have. Now Kavanaugh is also trying to limit the authority that the courts might have to check the president in this area. And he's basically advocating for the executive to be a monarch in foreign affairs at a time when I think it's increasingly difficult to draw the boundary between what is domestic

• 49:09Melissa Murray?

  and what is foreign affairs. And the tariffs case are a perfect example of that. Like, the majority in the tariffs case treat the question of the tariffs as though they are a domestic affairs question, and they apply the major questions doctrine. But Kavanaugh in dissent talks about this as a foreign policy kind of question. And, you know, I think they're both, right? It is a foreign policy question that obviously has domestic implications and a domestic question that has foreign policy implications because we live in increasingly globalized economy and society where foreign affairs and domestic affairs are often inextricably intertwined. And I just think this is a really dangerous take, and he's making it happen.

• 49:50Kate Shaw?

  Totally.

• 49:51Leah Litman?

  We also got the decision in Cisco Systems versus Do, which considered corporate liability for human rights abuses. Here, the plaintiffs, Falun Gong practitioners, allege that the Chinese government persecuted them for their religious beliefs and that Cisco enabled the persecution by developing surveillance technology that the Chinese government used to identify and apprehend them. An issue was whether the plaintiffs could bring lawsuits against Cisco to hold the company liable under the Alien Tort Statute. There is also a secondary question as to whether two of Cisco's executives could be liable under the Torture Victim Protection Act.

• 50:27Kate Shaw?

  And the court held, again, 6-3, that courts may not create new causes of action, that is, authorization to file suit, for violations of international norms under the Alien Tort Statute. The court reasoned that Congress, rather than courts, is in the best position to weigh the implications and policy trade-offs of creating liability under the statute. The TLDR is that this court won't allow plaintiffs to sue for human rights abuses that, in recent years, have come to be understood as violations of international law. The ATS, like spending clause statutes and some parts of federal immigration law, is evidently more of a vibe than hard law. And we should say, this was not the first time the court considered this issue of private causes of action under these statutes, and specifically, the ATS.

• 51:09Kate Shaw?

  For years, then-Chief Justice Rehnquist and Justices Thomas and Scalia had a bee in their collective bonnet about this question. So, they had a lot of righteous indignation over court-created causes of action, but one thing they did not have was a majority. So, back in 2004, in a case called Sosa, a majority of the court actually held that courts could recognize international law violations under the ATS. But when you have six, they let you do what you want, no matter what five justices said previously. So, stare decisis, respect for precedent, and international human rights. List is long, all for suckers.

• 51:45Leah Litman?

  So Kate and I did a same-day rapid reaction video on YouTube when Lau, Landor, Cisco, and Exxon came down. Not going to repeat everything here, including the profanities I directed at Neil Gorsuch over Landor, but you can check it out if you'd like. Did, however, want to underscore or just highlight a few themes that emerged from that set of cases in particular. One is that it's pretty good to be a corporation. We are in the regilded age. Think about the combined effect of these decisions. Corporations can sue foreign governments, or at least Cuba and Cuban government entities, for expropriation of oil, but corporations can't be sued for assisting foreign governments in human rights abuses. Beneficiaries of public benefits programs and victims of human rights abuses can't sue

• 52:30Leah Litman?

  because some statutes don't say explicitly they have a cause of action. But corporations can sue a foreign government, Cuba, under a statute that says nothing about foreign sovereign immunity, kind of like how Trump can't be sued but can sue media companies, pollsters, and his own IRS. This is, as always, known as the rule of law. And these decisions also render legal protections for the less powerful unenforceable, basically parchment promises for victims of human rights abuses, lawful permanent residents, and the incarcerated.

• 53:02Melissa Murray?

  These cases are also an attack on the government's capacity just to do government, and specifically Congress's ability to legislate. When Congress exercises its spending power and allocates funds to government entities, it often makes receipt of those funds contingent on compliance with other laws or certain laws or other conditions. And now the court is saying that those conditions on spending can only be enforced against individual state officers if they first consented to be bound by those conditions. Spoiler alert: who would do that? In a similar vein, when Congress enacted statutes like those creating protections for particular groups like lawful permanent residents, the court is basically stepping in and saying that those protections aren't binding when they're being executed at the

• 53:47Melissa Murray?

  border. It's kind of a big, giant fuck you to Congress and its ability to create protections for certain groups. And, you know, side note question: wasn't there a book, Leah, that you recommended that argued that all of the court's BS was really just a secret plot to empower Congress to step up? I didn't read it because I don't read science fiction.

• 54:07Leah Litman?

  Was that a book I recommended or was it an op ed that maybe is kind of recited in some form in a book, maybe both and, but I'm just waiting for that, I don't know, punchline or moment when the court finally reveals itself and does that, oh yeah, Congress gets to be empowered, final act?

• 54:32Kate Shaw?

  That'll probably be this, this week, Leah.

• 54:34Leah Litman?

  Okay, sure.

• 54:35Kate Shaw?

  I'm almost sure it's gonna happen today or tomorrow.

• 54:37Melissa Murray?

  I think it's, yeah, it's coming, it's coming.

• 54:39Leah Litman?

  Cannot wait.

• 54:40Kate Shaw?

  I can feel it.

• 54:41Melissa Murray?

  The apotheosis of Congress is imminent, the rapture.

• 54:44Kate Shaw?

  Yes. Okay, so bottom line, from that group of cases, this is a six, three court, it will decide in its infinite wisdom, benevolence, discretion, when it wants to be a full blown six, three, right wing ideologically captured court, occasionally will deviate from that. Apparently, the justices decided to lean fully into it on Tuesday, June 23rd, when that group of opinions was released, and I think double down in many ways on Thursday, the 25th. But across last week, they really seemed to want to fulfill some long running goals of the right wing legal movement, and they did. Basically, all the Republican appointees got on board with Justice Thomas's, I would

• 55:23Kate Shaw?

  go further mantra, and some kind of real right wing legal movement maxing of the law occurred.

• 55:31Melissa Murray?

  We got one other opinion in an argued case. The case was called Monsanto versus Jarrell. It was an unusual case in which the court displayed real empathy for the Environmental Protection Agency, but only because doing so allowed the court to rule for a huge corporation, one for which Justice Thomas worked from 1977 to 1979, while also sticking it to cancer victims. Not Justice Thomas, but the court. In any event, the case concerned a federal law, FIFRA, the Federal Insecticide, Fungicide and Rotenticide Act, I love saying that, which authorizes the EPA to regulate the sale, use, distribution and labeling of pesticides. The statute contains a uniformity requirement that prohibits states from imposing any requirement.

• 56:15Melissa Murray?

  For product labeling that differs from the requirements that are imposed by the federal government.

• 56:19Kate Shaw?

  For decades, there has been debate and litigation over the safety of glyphosate, a very popular herbicide that is the main active ingredient in Monsanto's Roundup weed killer. Concerns about safety accelerated in 2015 when an arm of the World Health Organization issued a report classifying the herbicide as probably carcinogenic to humans. The report led to tens of thousands of lawsuits at the state level against Monsanto over the labeling of Roundup products, and specifically, the company's failure to warn about the potential harm. Monsanto argues that FIFRA, this federal law, preempts state-level failure-to-warn claims. It also argues that if these lawsuits are not preempted by FIFRA, the future of the domestic agricultural industry is imperiled.

• 57:00Kate Shaw?

  So the justices, who are obviously great friends of the American farmer, or more accurately of Big Ag, took this case and on Thursday issued a 7-2 opinion authored by Coach Kavanaugh, holding that FIFRA expressly preempts these state-level failure-to-warn claims and people who argue that they have had or have cancer because of their exposure to Roundup products and Monsanto's failure to warn of the potential harms, cannot sue in state court.

• 57:26Melissa Murray?

  As Coach Kavanaugh explains in this opinion, the EPA undertakes an extensive review of pesticides and the proposed labeling and determines whether the proposed label includes all of the warnings necessary and adequate to protect human health and the environment. Once the pesticide is registered, the company is required to use the approved label until it receives EPA approval for a labeling change or the EPA orders a change to the label. And since the EPA here has consistently studied glyphosate and has not determined it to be a cancer risk and has not required Monsanto to change its label, Monsanto is therefore under no obligation to provide additional warnings and any state-level claims regarding

• 58:08Melissa Murray?

  failure to warn are expressly preempted by the statute because they would effectively violate the statute's uniformity requirement.

• 58:16Leah Litman?

  Now, it wouldn't be an episode of Strict Scrutiny if we didn't feature our evergreen segment, We Need to Talk About Justice Thomas.

• 58:25Leah Litman?

  In our live show in New York, we mentioned that I mentioned that Justice Thomas might be jonesing for a Commerce Clause freak off because he's been going through a dry spell. Seems he really has a hankering for some Commerce Clause kink because in a concurrence in Monsanto, which per usual, no one joined, Justice Thomas identified what he called FIFRA's, quote, "underlying constitutional infirmities." Chief among them was that FIFRA, quote, "likely exceeds Congress's authority under the Commerce Clause." Because why agriculture and manufacturing are entirely separate from commerce?

• 58:59Melissa Murray?

  I just want to note here that this is exactly the kind of formalistic reasoning and argument that the Gilded Age Court used to invalidate parts of the Sherman Act and other economic regulations that were enacted under the Commerce Clause in the late 19th and early 20th century. Literally, there are no new ideas at all.

• 59:19Kate Shaw?

  Just make Lochner Court jurisprudence great again, like entirely. He is fully in order with that project. Yes. So it actually also, though, seems as though Justice Thomas may not just be down for Commerce Clause kink, but also non-delegation doctrine kink. Because he argues that FIFRA also, quote, "raises questions about Congress's ability to delegate core legislative power to the EPA." Once again, make Lochner era jurisprudence great again. He is very concerned that FIFRA and the modern administrative state presents important separation of powers questions, which is to say, all in good time, young Jedis. We will get to all of this and bring down this whole government thing in the process.

• 1:00:03Leah Litman?

  But then finally reveal that we are empowering Congress.

• 1:00:06Melissa Murray?

  I mean, genuine question. Why didn't Neil Gorsuch join parts of this opinion? Like, this is part of his villain origin story.

• 1:00:14Kate Shaw?

  I think it's you can't protect big ag without something of a shell of an EPA that has some delegated authority. So you may want to be able to keep it around just for these moments. Thomas, to his credit, like, has a courage of his convictions. He's like, oh, all right, I will be OK to throw Monsanto to the wolves. And I just don't know if they all are.

• 1:00:32Melissa Murray?

  Well, is he actually throwing Monsanto to the wolves? I mean, just Congress can't do any of this stuff.

• 1:00:39Kate Shaw?

  Yeah, but if Congress can't pass this law that preempts these state level claims, then yeah, I mean, I think that the kind of like

• 1:00:46Melissa Murray?

  He's torn. I think he's torn. Yeah.

• 1:00:48Kate Shaw?

  Yeah, they're cross pressured.

• 1:00:49Melissa Murray?

  Yeah.

• 1:00:50Kate Shaw?

  But for him, I do think the kind of deconstructing all of it is the major preference that he's willing to subordinate all minor preferences to.

• 1:00:58Melissa Murray?

  You know who I think really loved this decision? Soybean farmer Scott Besant. That's one for him. This one's for him. All right. Finally, the court also issued a procuring opinion in a case that was not argued. This was McCarthy versus Hernandez. This was a GVR, grant, vacate, and remand in a case that involved the individual who'd been convicted of the murder of six-year-old Etan Patz, who disappeared on his way to school in New York City in 1979. Many years later, Hernandez confessed to the murder, but only after hours of police interrogation without a Miranda warning. He was ultimately convicted by a jury, but the Second Circuit later granted his habeas petition on the ground that the jury had been incorrectly instructed about the confession,

• 1:01:43Melissa Murray?

  and the court ordered a new trial. The Supreme Court here said that the Second Circuit was wrong, since they think habeas should basically never be granted, and they reinstated the conviction. Strict Scrutiny is brought to you by Slow Burn. Slow Burn, the award-winning narrative series from Slate, is back with a new season, and it feels like one that was literally manifested by the ladies of Strict Scrutiny: becoming Justice Gorsuch. That's right. In this season, host and Slate executive producer Susan Matthews traces Neil Gorsuch's formative years, from his mother's rocky tenure in the Reagan administration to his coming of age as a young conservative in the 1980s.

• 1:02:26Melissa Murray?

  She'll lead you through his legal philosophies and his controversial nomination to a stolen seat on the High Court, and she'll shed light on a man who many Americans can't even identify in a lineup, but who has nonetheless played a major role in ending affirmative action, limiting abortion access. And upending voting rights. Featured in this season are friends of our podcast, Dahlia Lithwick and Mark Joseph Stern, the hosts of Amicus, Slate's podcast about the courts. They break down how Gorsuch fits into the current court, where he's going next, and why he never took his job on the court's cafeteria committee very seriously. As you all know, the Supreme Court's end of term is upon us, and this is the perfect

• 1:03:07Melissa Murray?

  podcast to learn why Justice Gorsuch is such an unpredictable vote and to round out your understanding of this Supreme Court. Listen to the entire season of Slow Burn, Becoming Justice Gorsuch, now on Apple Podcasts, Spotify, or your favorite podcast app.

• 1:03:29Kate Shaw?

  All right, we are going to briefly tick through some legal news before we go. And the first one involves voting rolls. Okay, so listeners, as we've discussed, the president is on one about the upcoming midterm elections. It is almost like he's worried that his party might lose control of Congress, and he might be impeached again, there might be oversight, who knows? All of this may explain why he seems determined to fuck around with the upcoming elections. There is obviously the spate of mid-cycle redistricting that he requested and largely received thanks to Texas and the Supreme Court, but the administration is not done there because they've also been demanding that states turn over voter rolls to the federal government so that the feds ostensibly can compile some kind of nationwide voter

• 1:04:11Kate Shaw?

  registration database to ensure the integrity of future elections. Obviously, that is just the claim, we are not suggesting that is the true motivation. And we also can't help but wonder whether anyone has told them that the Constitution commits election administration to the states. So those requests were made, and the federal government has now sued around 30 states to compel them to turn over voter rolls, which often contain sensitive voter information. And last week, a Trump-appointed federal judge in Maryland dismissed a DOJ lawsuit against Maryland, seeking access to that state's voter records.

• 1:04:44Melissa Murray?

  In that opinion, the court wrote that its decision accords with, quote, "every court to have addressed this issue," in concluding that the unredacted voter registration filed is, quote, "not a record or paper that the state must produce to the United States." Just to be clear, that district court dismissal brings the DOJ to a zero to nine record in lawsuits in which they have tried to compel the states to turn over this kind of data, which includes dates of birth, addresses, driver's licenses numbers, and partial social security numbers. So, very sensitive information that I guess could be used to verify eligibility to vote, but also could be used to do other things, like maybe round up people you think shouldn't be in this country? I don't know, just riffing here, spitballing.

• 1:05:29Leah Litman?

  So, a part of this streak was that on Wednesday, a panel of the Sixth Circuit rejected DOJ's efforts to force Michigan to turn over its voter rolls, including sensitive voter information. I was a little worried the decision wasn't unanimous, but I'll just try to put a pin in that. Last Monday, in a different lawsuit, a federal judge in the District of the District of Columbia ruled that the DHS program, known as SAVE, which aims to verify citizenship and eligibility for voting, violated federal privacy laws and was wrongly identifying eligible voters as non-citizens. And she ruled that the system could no longer be used.

• 1:06:04Kate Shaw?

  So despite this unbroken losing streak, the administration continues to pursue its efforts to get this kind of data. According to reporting from multiple outlets, the US Postal Service has been instructed not to deliver mail-in ballots in states that refuse to provide this voter information to the federal government. And if that stands, it will have obvious implications in states like Oregon, where mailed ballots are the default way to vote.

• 1:06:30Melissa Murray?

  Some other related voting news. Some of you may have heard that in a rare case of bipartisanship, both houses of Congress managed to pass an Affordable Housing Bill. This is likely because soaring housing costs and the increasing inaccessibility of homeownership is a major problem for legislators on both sides of the aisle, but is perhaps a particular problem for the GOP, which in 2024 campaigned on an affordability platform.

• 1:06:56Melissa Murray?

  Well, folks, again, sometimes it bees your own people. Just hours before the public signing ceremony was to take place at the White House, the president announced via Truth Social, where else, that he would not be signing the Affordable Housing Bill into law unless the Senate moved to enact the SAVE Act, which is the voter ID bill that experts argue will likely result in the disenfranchisement of millions of eligible voters, including those Americans who are not in possession of their birth certificate or do not have a passport, as well as married women whose married names are not reflected on their identity documents.

• 1:07:33Leah Litman?

  So several of you have written in to ask what happens if the president refuses to sign a bill into law. The Constitution provides a few avenues. One is that if the president ignores the bill for 10 days excluding Sundays while Congress is actively in session, then the bill will automatically become law even without the president's signature. A second option is a formal presidential veto, which is the president returns the bill to Congress with a statement of objections. Within 10 days, Congress can either override the veto if both the House and the Senate vote to pass the bill again with the supermajority. If the override succeeds, the bill becomes law. If not, it fails. This typically is

• 1:08:15Leah Litman?

  a procedure if the president has substantive objections to the bill, which doesn't really seem to be the case here. Here, the president just seems to be holding Affordable Housing hostage to disenfranchising the electorate. And I guess that brings us to the third option, which is the pocket veto. So if before the 10-day period expires, Congress adjourns and the president takes no action, then the bill dies. And that can't be overridden by Congress via the supermajority. So that option puts the ball in the hands of the party in control of Congress to call for an adjournment to facilitate the president's tantrum.

• 1:08:56Leah Litman?

  This is not the first time the president has held legislation hostage to his whims. Earlier this year, the president derailed a bipartisan deal on intelligence and surveillance legislation while pressing lawmakers to adopt that controversial voting bill known as the SAVE Act. Now, he's using a housing package that many lawmakers expected would be signed into law today as a new point of leverage, the art of the deal.

• 1:09:21Melissa Murray?

  The art of the steel. Yeah. In addition, there are other things going on in the executive branch that we should make note of. The Office of Legal Counsel recently released an opinion detailing its take on obligations under the Americans with Disabilities Act and the Rehabilitation Act as interpreted by the Supreme Court's 1999 decision in Olmsted versus Zaring. Olmsted is a hugely significant case for disability rights because it restricts the unnecessary institutionalization of those with disabilities. Olmsted held that, quote, "unjustified institutional isolation of persons with disabilities is a form of discrimination that is prohibited under Title II of the ADA."

• 1:10:04Melissa Murray?

  And the prohibition on unjustified institutionalization, you would think, would require entities to move toward deinstitutionalization and the integration of individuals who are living with disabilities.

• 1:10:16Kate Shaw?

  But the executive branch has said you would be wrong to think that. The Trump DOJ seems to want to institutionalize more people, that is, to take them out of homes and communities where they can receive at-home care and put them into institutions. So it is basically trying to do to Olmsted what segregationists did with Brown, say that while the decisions might prohibit discrimination, they don't actually require integration. Think about that for one second. OLC's opinion says, quote, "We conclude that Congress has not imposed an integration mandate on states." Think about where you might have heard similar logic before.

• 1:10:51Melissa Murray?

  Well, you know what, Kate? All Congress has to do is pass a law making clear that when they enacted the ADA, they meant to emphasize integration. I know Congress is definitely going to do that.

• 1:11:01Kate Shaw?

  Well, Congress is obviously going to do that, and then the court will surely give it full expression.

• 1:11:06Melissa Murray?

  This is a court that's about empowering Congress, Kate. Like, let's be real.

• 1:11:10Kate Shaw?

  Yep. Okay, so the opinion wrote, "Unsurprisingly raises significant concerns, given that it effectively says people with disabilities don't have a right to live in their communities. It is a recipe for institutionalization of persons with disabilities when states and the federal government refuse to offer services and support and accommodations."

• 1:11:29Leah Litman?

  And who do you think might have had a hand in pushing for this legal slash policy change?

• 1:11:37Leah Litman?

  Peewee German. That would be correct. So Bloomberg reports that, quote, "White House adviser Stephen Miller was the driving force behind the Justice Department's recent memo authorizing states to institutionalize people with disabilities rather than fund community-based care." Absolute ghouls.

• 1:11:54Kate Shaw?

  There is no bright note to end the substantive portion of the show on. It is bleak.

• 1:11:58Leah Litman?

  It's pretty bleak.

• 1:11:59Kate Shaw?

  This court is a menace.

• 1:12:01Leah Litman?

  Yeah.

• 1:12:01Kate Shaw?

  And we have eight more cases for them to hand down this week.

• 1:12:07Melissa Murray?

  Okay. Um, should we do favorite things?

• 1:12:12Leah Litman?

  Yes.

• 1:12:14Melissa Murray?

  I'll start.

• 1:12:17Melissa Murray?

  I went to an MS Now America 250 event in Philadelphia and I met a number of stricties there. It was really great to see you all. Also really great to be in community there. One of the speakers, Sherilyn Eiffel, noted friend of the pot, absolutely fantastic, mentioned that, you know, it's really good to be in community with people who support the same things that you support. Not to be in an echo chamber necessarily, but in these moments where things look bleak, we really need each other. And this was an enormous auditorium, a beautiful opera house, literally filled with people who cheered every time a photo of Barack Obama was displayed. And, you know, I didn't realize how much I needed

• 1:12:57Melissa Murray?

  that, but I kind of did need that. My second favorite thing this week comes from Jordan Thomas, AKA Jordan the Intern. Our Jordan was invited to deliver the commencement address at his alma mater, the University High School in Newark, New Jersey, and he delivered a banger of an address to those graduates in the class of 2026. It was inspiring. It was sweet. It was thoughtful. Classic Jordan. And he-

• 1:13:29Melissa Murray?

  Urged all of these students to really engage with this whole question of the American experiment and government. And Jordan is not just brilliant and wonderful and a great intern, he's incredibly generous. He went and bought each of these graduates a copy of my book, The Constitution, and he gave one to each of them. So, thank you for supporting The Constitution, my book, Jordan, and thank you for being such an inspiring figure to these young people. I know they got so much out of this graduation speech. And, once again, we're just really lucky to have Jordan. I don't know how he got so lucky.

• 1:14:04Leah Litman?

  I don't know.

• 1:14:05Kate Shaw?

  Jordan is the best, truly.

• 1:14:07Leah Litman?

  Yeah. Okay, so my favorite things are kind of social media stuff. One is, Kate, you're on Hasan Minhaj Doesn't Know. For people who might not realize, I run the podcast social media accounts. So, basically, anytime there's a collab request and whatnot, I get to see them.

• 1:14:26Kate Shaw?

  Wait, doesn't Michael do the YouTube collab requests?

• 1:14:28Leah Litman?

  Yes, that's true.

• 1:14:29Kate Shaw?

  Okay, for one exception, but Leah does almost everything.

• 1:14:32Leah Litman?

  Yes.

• 1:14:33Kate Shaw?

  Sorry, I should have given you a heads up about all those requests.

• 1:14:34Leah Litman?

  No, no, no, no, no. I enjoy receiving them, but yeah, no, I had fun with those. And then second is another thing on social media, which is, J.D. Vance just let his whole fucking ass hang out, making explicit something we have kind of joked about before was implicit, but you can hear him here.

• 1:14:54Speaker 06

  I'm actually fascinated by Nixon as a character in history. I think that his historical legacy is enjoying a bit of a renaissance, but I think deservedly so. As I joked with Robert backstage, if Watergate happened tomorrow, it would be like a 12-hour news story. The idea that it would have taken down a presidency is crazy. And, by the way, if you look at the story of how the deep state took down Richard Nixon, it's not all that different from what the same groups of people, the same institutions tried to do to Donald Trump and the first Trump administration. There is a parallel.

• 1:15:41Speaker 06

  I also just, at a personal level, you know, okay, young senator, vice president, writes some bestselling books, is hated by the media. It kind of sounds like J.D. Vance. So I'm a little, you know, I've always liked, I've always liked Richard Nixon.

• 1:15:56Melissa Murray?

  He's just straight up saying they want to make Tricky Dick great again.

• 1:16:00Kate Shaw?

  Yes. Which we knew.

• 1:16:02Melissa Murray?

  I really thought you were going to talk about the knee slap heard around the world.

• 1:16:05Kate Shaw?

  Oh, in, in, okay, so for people who didn't hear the knee slap, so

• 1:16:09Melissa Murray?

  Oh, go on.

• 1:16:09Kate Shaw?

  Second Lady Usha Vance, I learned this week, why does everybody need a goddamn podcast? So she apparently has a podcast where she like has people read books to kids.

• 1:16:17Melissa Murray?

  Okay, that's awesome. The people with a podcast asking, why the fuck does everyone need a podcast?

• 1:16:22Kate Shaw?

  Not everyone needs a podcast.

• 1:16:23Leah Litman?

  We've had one for seven years.

• 1:16:24Kate Shaw?

  Oh, long hours.

• 1:16:25Leah Litman?

  It's true.

• 1:16:26Kate Shaw?

  I mean, look, fine, you're welcome to say the same thing about us. But I really do think that the second lady, I'm not quite sure what value the second lady's reading books to people podcast is adding, but I guess she has guests. I mean, I learned about the podcast because she had her husband on. And anyway, so wait, tell the niece, that was just the context, Melissa. Now, what was the knee slap?

• 1:16:45Melissa Murray?

  She introduces him as her guest. And I think in what is supposed to be a moment of conjugal familiarity, he reaches over to say hello to her by slapping her on the knee and

• 1:16:58Kate Shaw?

  I'm so embarrassed.

• 1:17:03Melissa Murray?

  I mean, if my husband greeted me like this in front of people, he would be a was-bend, not a husband. Like, he would be, this is was-bend material.

• 1:17:15Kate Shaw?

  Whatever the opposite of chemistry is, that was what appeared on display in that knee slap. It was really visible to all.

• 1:17:24Melissa Murray?

  Listen, I mean, who knows? Like, the only people who know what happened in a marriage are the two people in it. But I was like, this is a visual medium. You might want to make it look a little more convincing.

• 1:17:37Kate Shaw?

  Yes. Anyway, but then after I became aware, after the knee slap sort of turned me onto the existence of this podcast, I saw somebody put together a bunch of clips of her like opening remarks for each of the, I don't know, six or seven episodes, I guess. And I'm not sure she's a natural at the medium. It doesn't, it's not quite working, not just in the knee slap exchange, but kind of more broadly. But, um, okay.

• 1:18:02Leah Litman?

  It's not for everyone, Kate.

• 1:18:03Kate Shaw?

  It's not for everyone. And to me, there was definitely, I definitely meant it somewhat self-aware to the not everyone needs a podcast. But yes, anyway, obviously, second lady, it's, this is not, there's no scarcity. Everyone is welcome to join the podcasting world. In any event, okay, last favorite thing, busy end of term, so I haven't like been really reading fiction or anything like that, but I did want to just mention a district court opinion that I don't think we've had a chance to mention yet on the pod, which is one by the chief judge of the district of Minnesota, Judge Shultz, quashing the subpoenas that the federal government issued to state and local officials, including Governor Tim Walz, Attorney General Keith Ellison, and a bunch of other Minnesota officials. This order was so unsparing and so blistering, I just want to quote a couple of lines from

• 1:18:47Kate Shaw?

  it. "The dominant purpose of the challenge subpoenas is to coerce Minnesota officials into assisting the federal government with enforcing civil immigration law to harass and retaliate against them for failing to do so." The judge calls it "a blatantly unlawful and unethical use of the grand jury process." And it just was really satisfying to see yet another district court like hand the administration its ass. And in the kind of midst of the Supreme Court doing everything it can to shore up the administration, it's just like an important reminder that district courts remain the bulwark against the worst excesses and lawlessness. And also, on a less serious note, I will say, I've really loved how often the word "quashal," like I am engaging in quashal, I guess. I don't even really know how to use it properly, but when district courts quash things, the

• 1:19:32Kate Shaw?

  thing they are issuing, I guess, is quashal. And so I have heard that more than ever before in just the last few months.

• 1:19:39Leah Litman?

  So can I add a quashal to favorite things?

• 1:19:41Kate Shaw?

  Yeah, we should maybe have a quashal section.

• 1:19:43Leah Litman?

  Okay, the Southern District of New York's quashal of the Justice Department's efforts to seek or obtain invasive patient information about trans minors who receive gender-affirming medical care in New York City. In the bench ruling, the judge indicated that the request shocked the conscience. And so, yeah, that's in my favorites.

• 1:20:05Kate Shaw?

  All right. Well, that was our effort at ending on a high note.

• 1:20:10Leah Litman?

  We tried.

• 1:20:11Kate Shaw?

  All right, I guess we will see and talk to all of you probably a bunch of times in the next few days. So, once again, buck off.

• 1:20:20Leah Litman?

  I promise to be in a better mood, but no promises.

• 1:20:22Kate Shaw?

  You can't do that.

• 1:20:23Leah Litman?

  Yeah.

• 1:20:27Leah Litman?

  Strict Skirtney is a Crooked Media production. Our show is produced by Malady Raul and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Heathcote, 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.