How to Lose a Democracy in 10 Laws (with Elie Mystal)

Leah, Kate, and Melissa are joined this week by Elie Mystal, justice correspondent for The Nation, whose new book is Bad Law: Ten Popular Laws That Are Ruining America https://bookshop.org/p/books/bad-law-ten-popular-laws-that-are-ruining-america-elie-mystal/21644222?ean=9781620978580&next=t. They talk about what rotten laws should be done away with while touching on the latest news, including the detention of Mahmoud Khalil and the dismantling of the Department of Education. Hosts’ favorite things this week: Melissa: The Trouble of Color: An American Family Memoir https://bookshop.org/p/books/the-trouble-of-color-an-american-family-memoir-martha-s-jones/21616977 by Martha Jones; Paradise (Hulu) Leah: Bad Law https://bookshop.org/p/books/bad-law-ten-popular-laws-that-are-ruining-america-elie-mystal/21644222?ean=9781620978580&next=t by Elie Mystal; The Bee Sting https://bookshop.org/p/books/the-bee-sting-paul-murray/18789047?ean=9780374600303&next=t by Paul Murray; Martyr! https://bookshop.org/p/books/martyr-kaveh-akbar/20032523?ean=9780593537619&next=t by Kaveh Akbar; Corruption & the Maximalist Theory of Presidential Power https://executivefunctions.substack.com/p/corruption-and-the-maximalist-theory?r=n7gw1&triedRedirect=true by Bob Bauer (Executive Functions); Five Questions about The Khalil Case https://www.stevevladeck.com/p/131-five-questions-about-the-khalil by Steve Vladeck (One First) Kate: Character Limit: How Elon Musk Destroyed Twitter https://bookshop.org/p/books/character-limit-how-elon-musk-destroyed-twitter-kate-conger/21224329?ean=9780593656136&next=t by Kate Conger and Ryan Mac; Interview with Lindsay Nash on Mahmoud Khalil https://www.newyorker.com/news/q-and-a/mahmoud-khalils-constitutional-rights-and-the-power-of-ice by Isaac Chotiner (New Yorker) Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:01Melissa Murray?

  Strict scrutiny is brought to you by the ACLU. The Supreme Court case, U.S. versus Skermetti, could shape the future of transgender people's freedom and bodily autonomy for all of us. Tennessee wants to take away transgender people's autonomy over their own bodies. They think the ruling that overturned Roe versus Wade allows them to do it. This would not only violate the promise we all deserve of equal justice under law, it hurts everyone's freedom to control their bodies and their lives. The case offers a critical opportunity to judicially check President Trump's sweeping efforts to control people's bodies, families, and lives. The government has no right to deny a transgender person the health care they need, just as they have no right to tell someone if, when, or how they start a family.

• 0:43Melissa Murray?

  The ACLU is calling on the court to uphold constitutional guarantees for everyone, including trans people. Learn more at ACLU.org/autonomy.

• 0:52Speaker 01

  Mr. Chief Justice, may it please be poured. It's an old joke, but when I argue, men argue against two beautiful ladies like this, they're going to have the last word.

• 1:04Speaker 02

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

• 1:36Melissa 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 Alyssa Murray.

• 1:44Leah Litman?

  I'm Leah Litman.

• 1:45Kate Shaw?

  And I'm Kate Shaw. And we have a jam-packed episode for you today, featuring a great interview with one of our absolute favorite repeat guests. Friend of the pod, Ellie Mystal, is back to discuss his new book, Bad Law: 10 Popular Laws That Are Ruining America.

• 1:59Leah Litman?

  And in the course of discussing the book, we're also going to be covering breaking news, including the attempted deportation of lawful permanent residents for expressing views with which the administration disagrees. Other breaking Article 2 news from our favorite Move Fast and Break the Constitution Doge bros, including the destruction of the Department of Education. The new federal regulations for federal contractors apparently Make America Great Again requires empowering contractors to maintain segregated workplaces. We'll also cover some cert grants that you should be aware of, and we'll end on a hopeful note. One of the great things about Ellie's book is that it proposes some concrete solutions to many of the problems we are witnessing now, which is part of why we're excited to talk to him and to link current events to his book.

• 2:41Melissa Murray?

  Wow, that was quite a preview, Leah. I don't even know where to start. Let's just start by welcoming our favorite repeat guest, friend of the pod, maybe best friend of the pod, BFF of the pod. He's also a columnist for The Nation and a New York Times bestselling author. So please join us in giving a warm, strict scrutiny welcome to Ellie Mystal.

• 3:02Speaker 05

  Hello, professors. How is fascism treating you today?

• 3:06Melissa Murray?

  As fascism does, I guess.

• 3:08Leah Litman?

  It's rough up there. Yep.

• 3:10Speaker 05

  I'm stocking up on cigarettes because I'm going to have something to trade when they come get me, that's for sure.

• 3:17Melissa Murray?

  Yeah. Well, listeners, Ellie has a new book out, and it's not called Fascism or How to Trade Cigarettes for Good Treatment While in the Gulag. It is instead called Bad Law: 10 Popular Laws That Are Ruining America. And I'm not going to lie, at first I read this and I thought the title was Bad Law: 10 Unpopular Lawmakers Who Are Ruining America. And I immediately thought 10 seems kind of low for this administration and Congress and the Supreme Court. But then I put my readers on because I'm an older person, and I was like, oh, OK, bad laws, 10 popular laws that are ruining America. And it all seemed to make more sense. But given that very provocative title, we decided that we had no other choice

• 4:00Melissa Murray?

  but to bring Ellie into the studio to talk about his latest work post haste. So let's get to it, Ellie.

• 4:08Speaker 05

  Thank you so much. For for for having me and for doing this. Yeah, but Professor Murray, you kind of get at the problem with the book, right? There's a scoping issue, right? There there are lots of laws. Lots of them are terrible. How do you pick just 10? And so my my way of scoping the book was, well, what law can we just be rid of? Right? I'm not talking about reform. I'm not talking about massaging it. I'm not talking about like re triangulating the forces. I'm talking about just like, take the white out, get rid of the law and move forward and the country is better. So I tried to focus on laws that are not the 10 worst laws I can think of, but the 10 laws that I that I could research that we could just be rid of.

• 4:53Speaker 05

  And things would kind of immediately, the next day, be a little bit better for most people.

• 4:59Kate Shaw?

  It's almost like if a party needed a legislative agenda, you kind of proposed one for them.

• 5:05Speaker 05

  You know, ju- just saying, if you wanted to run on actual laws, if you wanted to run on actual policies, if you wanted to do something other than orange man is very bad.

• 5:17Kate Shaw?

  Or holding up paddles.

• 5:19Speaker 05

  Or or.

• 5:20Kate Shaw?

  Just stay out of sight and and hope that all the bad will redound to the detriment of the guy in office. Those are, you know, approaches. Those are theories of governance, but they're not as good as yours, Ellie.

• 5:29Speaker 05

  The point is, there are things that we can do. The point is, and and you guys know this so well, our country looks the way it does on purpose. Right? It's not an accident. It's not an act of God. These things are not inevitable. People die in the streets from guns because we allow the guns to be on the streets. We could not. We could do things differently. And so the book is really about 10 things that, again, we could just do differently today and things would be better tomorrow.

• 5:57Kate Shaw?

  So we actually want to ask you to drill down on some of those laws. But I kind of wanted to ask a sort of framing question first, and this is based on something you said in the introduction. You have this kind of provocative claim about how we should all think about laws that were passed before 1965 and the Voting Rights Act. And again, you're not saying that all laws today should be struck down. And you're not really even talking about court challenges to these laws. But will you just?

• 6:19Leah Litman?

  Particulate that claim and then we'll ask you to talk about some of the specific laws you want to see gone.

• 6:22Speaker 05

  Yeah, so before nineteen, the nineteen sixty five Voting Rights Act, which is what finally, for the first time in American history, made the fifteenth amendment real, made the idea that you could not be barred from voting because of your race, color, or creed. The Voting Rights Act makes that real. It extends the franchise not just to black people, but also specifically to black women who really had no right to vote before the nineteen sixty five Voting Rights Act. So before that act, before nineteen sixty five, America is functionally an apartheid state. It's functionally a white supremacist apartheid state where not everybody living here gets to participate in the choosing of laws.

• 7:03Speaker 05

  Therefore, every law passed before nineteen sixty five is inherently suspect. Every law passed before nineteen sixty five is inherently a hangover white apartheid law. So I don't respect any of them, right? Now, I'm not saying, as you're, as you pointed out, Professor Shaw, they're not all bad, but surely if there is a good law that we passed before nineteen sixty five, we could pass it again. This time with everybody getting a vote and a say and a representative and whatever. As, you know, my favorite fictional character Kermit the Frog says, we need more dogs and cats and bears and chickens and things, right?

• 7:44Speaker 05

  So if you have a good law, like for instance, the nineteen sixty four Civil Rights Act, surely we could pass it again. But just saying like, oh, we passed this law in seventeen ninety, I don't give a damn. I don't give a damn what only white bourgeoisie men said in seventeen ninety eight. I don't care.

• 8:03Leah Litman?

  Ellie, I have to say, what you just said sounded a rare note of optimism, which is you think we would currently pass the nineteen sixty four Civil Rights Act. And I look at Congress and the White House and I think.

• 8:18Melissa Murray?

  Would they?

• 8:19Speaker 05

  Oh, Professor Levin.

• 8:20Melissa Murray?

  I'm looking at the show note and I'm thinking, would they?

• 8:25Melissa Murray?

  Stay tuned.

• 8:25Speaker 05

  Professor Levin, I said could, not can.

• 8:28Melissa Murray?

  That's fair. That's fair.

• 8:31Speaker 05

  There is a chance that we could pass it. Again, I'm not saying that we necessarily would, not in this current environment. Although I do think, you know, let's, let's, not to get beyond the book so quickly. But does anybody sitting here honestly think that the 1964 Civil Rights Act is going to survive a direct challenge to it in front of this particular Supreme Court? Because that's, that is absolutely where we're heading with all of this anti DEI, all of this Doge bull crap. Because as I keep saying, the fight here, at least for me, is not for DEI. I don't, I don't care about DEI.

• 9:13Speaker 05

  DEI was something white folks invented to make them follow the 14th Amendment and the Civil Rights Act, right? So if you want to get rid of your white policy of DEI, go right ahead. How are you going to follow the Civil Rights Act? How are you going to provide equal employment opportunity? And when that case gets in front of the Supreme Court, that is arguing that these anti DEI policies violate the Civil Rights Act, I'm not sure the Civil Rights Act is going to survive the six conservatives on the Supreme Court. Certainly it's not going to survive Clarence Thomas, Sam Alito, and Brett Kavanaugh, or Neil Gorsuch. Whether or not Roberts thinks the 1965, 64 Civil Rights Act is good, or whether he thinks it needs to go the way of the dodo, like he thinks the 1965 Voting Rights Act needs

• 9:58Speaker 05

  to go, that's still an open question.

• 10:04Melissa Murray?

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• 10:47Melissa Murray?

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• 12:12Kate Shaw?

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• 12:57Kate Shaw?

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• 13:12Melissa Murray?

  So Ellie, I will note that many of the bad laws that you chronicle in this book are actually enacted after the Voting Rights Act. So these are relatively recent laws, many of them passed with bipartisan support. So they're not presumptively sus like some of the other laws that you have mentioned. Can you go through some of these bad laws quickly, like the ones that you selected here, and maybe tell us why they're so terrible?

• 13:37Speaker 05

  Sure. So you wanted me to go through all 10?

• 13:39Melissa Murray?

  Just, yeah, more briefly. Briefly.

• 13:43Speaker 05

  All voting registration laws are, should be repealed. Like there's, we're the only country that does it this way. Other advanced democracies, they have automatic voter registration for anybody who is eligible to vote. Our extra step of voter registration is just stupid. We should be done away with it. That's chapter one. Are the penalties for illegal reentry in the immigration context, that is a literal Nazi policy. And when I say Nazi policy, I mean, the American the Nazis brought in to tell them how to do things is the guy who put forward this policy illegally, reentry, is immoral and wrong. It should be done away with. The Airline Deregulation Act is what gave away the skies and most of our federal government to corporate oligarchs.

• 14:28Speaker 05

  I think that should be done away with. The Armed Career Criminals Act, everybody likes to talk about-

• 14:33Melissa Murray?

  No, no, Leah is literally melting.

• 14:35Leah Litman?

  No, no, no, I'm good. I'm good.

• 14:37Kate Shaw?

  She's very happy repealing that.

• 14:39Melissa Murray?

  But what will we talk about, Leah, if we don't have ACHA? Oh, there are plenty. What will you have to get mad about? Oh, wait. Oh, wait. Oh, wait. Never mind.

• 14:47Speaker 05

  Everybody talks about the 1994 crime bill. The ACCA is what started it all. That should be gone. Obviously, I think the PLCAA, the Protect Lawful Commerce in Arms Act, the thing that the giant liability shield for gun manufacturers, that should be gone. Now, getting into some state issue laws, I think the our precepts and concepts around felony murder is one of the most grotesque aspects of criminal law. We are, again, the only Commonwealth nation that still has it. Canada got rid of it in the 90s. Ireland and England, they got rid of it in the 50s. We are behind the times on felony murder. That should be gone. Stand your ground. One of the most racist laws we have evidence for,

• 15:31Speaker 05

  provably racist laws that we have evidence for, that should be gone. All the "don't say gay, don't say this" book ban, all of Florida should just have its entire legislative code just X-ed out with a big, like, red marker. All of that is bad, but specifically "don't say gay," that should be that should be gone. The Hyde Amendment, the idea that the federal government cannot use funds to provide abortion services. It's the only law we have in this country where there is something that you can legally do, get an abortion, but the government is not allowed to legally assist you in doing it. That's stupid and wrong, and the Democrats' refusal to get rid of the Hyde Amendment is one of the reasons why the abortion fight has been lost in this country.

• 16:16Speaker 05

  And then finally, the Religious Freedom Reform Act, the thing that allows Hobby Lobby to say, like, "I'm not going to give you contraceptive because my god wants you to buy yarn and clay but not have birth control." That's ridiculous, and the RFRA should also be gone. Those are the 10, I think.

• 16:33Melissa Murray?

  Those are the 10.

• 16:33Leah Litman?

  Yes. So, well, that was a good 10. I'm slightly worried that on the current court's 10 would be the Voting Rights Act of 1965. But we want to go deep on the ones you are proposing to do away with. And as we mentioned at the top, current events kind of underscore the pressing nature of some of the case you're making against these laws. So, as listeners likely know, in the last week, the administration recently detained Mahmoud Khalil and now is trying to remove him from the United States. Khalil is a graduate of Columbia, was one of the organizers of the student protests against Israel's military campaign in Gaza. Khalil is a lawful permanent resident, married to a citizen who is eight months pregnant, and the Trump administration arrested Khalil and announced they planned to deport him.

• 17:18Leah Litman?

  He was arrested in New York at his Columbia apartment. He later disappeared for a period of time, when his lawyer and family did not know where he was. And he is now being detained at the Jenna Detention Facility in Louisiana. So his lawyers have challenged his detention in the Southern District of New York, and the judge issued a modest order halting the immediate removal from the United States while courts are looking into this. And apparently, as all of this was happening, Khalil was removed to the Louisiana facility, which is located in the Fifth Circuit. Curious and curiouser.

• 17:49Melissa Murray?

  To be very clear, listeners, Donald Trump personally took credit for Khalil's arrest and attempted deportation on Truth Social. And Secretary of State Marco Rubio also was invoked. Marco Rubio cited a provision of the immigration law that allows the Secretary of State to determine that the presence of non-citizens has adverse effects on U.S. foreign policy and that these individuals can then be deported on that basis. As Leah just mentioned, Khalil has challenged his detention and removal, and he initially filed that challenge in the Southern District of New York, where he was initially arrested. The government is fighting to get the case dismissed, and as we know, Khalil has been relocated to the Gina facility in Louisiana, which, again, would mean that if this is

• 18:33Melissa Murray?

  dismissed and Khalil had to refile, he would have to refile in Louisiana. And if there was a challenge that was appealed, that appeal would then go to the Fifth Circuit. So that is why Leah finds this curiouser and curiouser. Ellie, I don't know what you think about this, but I found this absolutely chilling this week. We are six weeks into a four-year sentence, and they're basically black-bagging people on the streets.

• 18:55Speaker 05

  Yeah, look, I wrote about this in The Nation this week. This is what fascism looks like. This is exactly what it looks like. It's not fascism that's coming around the corner. It is right here because when you can be ripped out of your Manhattan apartment and sent to the swamp in Louisiana without committing a crime, simply because you had, you, you organized a protest, simply because of your speech rights, and nobody comes to save you, that is what fascism looks like. That is what it feels like. And it is supposed to have not just a chilling effect on the poor life of Mr. Khalil and his eight-month-pregnant wife. It's supposed to have a chilling effect on everybody else.

• 19:40Speaker 05

  It's the government saying, no matter who you are, no matter where you are, we can come get you. And there's nothing you can do about it. So that is where we are with the situation. Khalil has good arguments, but, you know, talking about my book again, this is why I'm saying that 1921 Immigration and Nationality Act should be repealed, must be repealed, because the, the particular legal hook that Rubio is using, that comes from the 1921 Immigration and Nationality Act, right? This idea that the Secretary of State, on his say-so, with no evidence, with no hearing, with no proof, can just say, ah, you're against the interests of the foreign, the policies of the world,

• 20:22Speaker 05

  and remove, again, a legal permanent resident, a green card holder, and can just get rid of that entire process on his whim. Um, that, that is a, that is not just a failure of morality. It's not just a failure of politics. It is a deep failure of law that we have a law like this on the books.

• 20:44Leah Litman?

  Yeah, and just to unpack exactly like the provision that Rubio is relying on that's part of the INA that Eli, you know, recommends repealing. It is this provision that allows the Secretary of State to say the presence of a non-citizen has adverse effects on the United States' foreign policy and therefore can be removed on that basis. And it purports to give Extensive amounts of deference to the Secretary of State in making that determination, which is part of why it's so scary that Rubio is making this claim that, again, organizing a student protest somehow is affecting our foreign policy. Like, really? Does France fucking care, like, about the Columbia protests? I don't think so. And actually, Donald Trump's sister, Judge Mary Ann Trump Berry, invalidated that particular provision. You know, as a judge, her decision was later reversed by then Judge Alito on

• 21:29Leah Litman?

  the Third Circuit. But the point is, like, these laws are on the books, and this administration is basically providing us a crash course in identifying various laws that are susceptible to gross abuse that we need to get rid of.

• 21:41Speaker 05

  Can I ask you guys a question?

• 21:42Leah Litman?

  Yeah.

• 21:43Speaker 05

  So, part of the issue here with Khalil is whether or not he has First Amendment protections, right? There is a 1999 case that I wrote about, Reno v. Arab-American Anti-Discrimination League, where Scalia writes an eight-to-one opinion that protections of speech that would ordinarily be protected by the First Amendment can be the basis for removal for undocumented immigrants. Now, that decision doesn't extend to documented immigrants like Khalil, but what do you guys think? Do you think that the Supreme Court will extend that precedent to documented immigrants like Khalil when they get a chance to in a few years?

• 22:26Leah Litman?

  I mean, like, as a predictive matter, I don't really know. My guess is there are at least four votes to extend those protections to particularly lawful permanent residents. As to whether there are five, I don't know. But as a matter of precedent, right, I think it is very clear that lawful permanent residents have constitutional protections that individuals without documentation lack. So, for example, you cannot just simply revoke an individual's lawful permanent residence status. Like, that has to go through an immigration court and then is susceptible to review in federal court, right? They possess due process rights that other individuals with lesser status lack. And, you know, this is clear in the court's cases, to the point where I think it is just grossly inaccurate to say

• 23:10Leah Litman?

  individuals like Khalil do not have First Amendment rights or other analogous constit- Now, again, I think part of the problem is like this statute purports to give the secretary broad authority to determine what constitutes a threat. And my guess is the administration is going to try all sorts of maneuvers, right, in order to characterize what exactly the threat is and not precisely link it to the content of Khalil's speech. And so like that's partially how they are going to walk around or try to walk around the First Amendment question. But I think, again, that just underscores like the solution here, right, is to get this law off the books. Going to the case against the INA, you kind of alluded to this already in talking about the origins of the INA. Could you expand a little bit more on

• 23:53Leah Litman?

  your case against the INA and some of its origins?

• 23:58Speaker 05

  Yeah, so I like to start from 30,000 feet. The kind of idea motivating the INA is that we should be an exclusionary country, right? That there is not enough space, there's not enough resources for everybody. And so we need to decide who should be allowed in and who shouldn't be allowed in, right?

• 24:15Leah Litman?

  This is eugenics thinking.

• 24:17Speaker 05

  Right? Well, just at a 30,000 foot level, it's wrong. It's a giant country with more than enough space for everybody. And so that kind of premise is wrong. But then, yes, exactly right, Professor Murray. The way they then decided in the INA to figure out who should be allowed in and who should be excluded was based on eugenics, was based on literal studies and congressional testimonies that said there were certain races that were high quality and certain races more prone to degeneracy. And all of this literal eugenics and Nazi language is what informed the INA and thus the exclusionary practices that,

• 24:58Speaker 05

  for lack of a better word, focus on the global South, right? Focus on browner people being thought of as degenerate races and thus unable to participate in the American experience at the same level as as white Europeans. And when I'm not, I just want people to understand, again, I talked about this in the book, I am not being hyperbolic. This is what these people said in real time when supporting, developing, and voting for this law. There was an entire court case out of the Ninth Circuit where they tried to get a portion of the INA revoked because of this racist language and backstory.

• 25:43Speaker 05

  And the judge was basically like, "The Ninth Circuit," right? Which is not, you know, known for its shrinking violets, right? The Ninth Circuit was like, "Yeah, if we started getting rid of every law just because they were racist, I mean, we'd basically have no laws."

• 26:00Melissa Murray?

  You know, you know who really hates eugenics and inflected laws?

• 26:02Leah Litman?

  I was just about to say, Clarence.

• 26:05Melissa Murray?

  Yeah, our boy Clarence Thomas really cannot stand eugenics, especially when it's being practiced by people like, I don't know, Margaret Sanger, the mother of the modern birth control movement. And he has conflated the eugenics movement and the birth control movement to the rise of abortion in the United States. It's not the same history, but don't let that stop you. And he's basically suggested that abortion is a eugenics tool that can now be used in this century to essentially deracinate races that we find problematic or groups of people that we find problematic to a quote unquote "eugenic order." And I guess with that in mind, he's going to be really against the Immigration and Nationality Act and its eugenics origins.

• 26:50Kate Shaw?

  He's a model of consistency, and he, I think, is going to be the first clear vote against the INA.

• 26:53Melissa Murray?

  Right, 100%.

• 26:54Kate Shaw?

  As Ellie outlines.

• 26:55Melissa Murray?

  We'll ask the first question, for sure.

• 26:57Kate Shaw?

  That's right. So Ellie, you both like make a broad case, I think, against the kind of core precepts of the INA and against illegal reentry, that specific prohibition. I think, as we all learned this last week, there are probably tons of chilling, specific provisions in the INA that we aren't even aware of. Like, I have to say, I know immigration lawyers who, when Rubio invoked this authority as justification for the Khalil detention, they were like, "I literally didn't know that was a statutory provision. It's so rarely invoked." Though, again, as Leah mentioned, the one case that anyone has found on it, a district court finds it unconstitutional, as our discussion, I think, makes clear. It seems very hard to square with core. First Amendment principles, but you know, we will see what the Supreme Court makes.

• 27:37Melissa Murray?

  Maybe they are reading. I think that's what we're learning. They actually can read.

• 27:40Kate Shaw?

  The people inside the Trump administration looking for these authorities. Yeah, maybe, unfortunately.

• 27:44Speaker 05

  Well, I mean, I always go back to Jonathan Mitchell, right? Like, the conservatives have people that are scouring, scouring the code, scouring every old piece of statutory code to find any way to take this country back. This is what they do for a living. And, and as you say, Professor Shaw, like, I was not in any way aware of this particular provision. And again, I wrote a book. I wrote a whole chapter of a book on this law. I was not aware of this provision until Rubio invoked it.

• 28:16Kate Shaw?

  Yeah. Shifting topics. Given other current events, we actually wanted to talk to you about the chapter on neoliberalism, kind of generally, but airline traffic in particular. And we think that the chapter really speaks to the current moment in that what we are seeing unfold right now is, in some ways, the peak pathologies of neoliberalism, right? Urges to privatize all manner of public service, and here, you know, to pillage it along with privatizing it. This is essentially the core of the move-fast, break-things approach that Elon Musk has cast across government. They're coming for public education, as well as many, many other services, things like Social Security, Medicare. All of that is, I think, on the Doge chopping block. So, wanted to ask you to talk a little bit about

• 28:59Kate Shaw?

  what your chapter has to say about the kind of episode involving airline deregulation.

• 29:03Speaker 05

  Yeah. So, Professor Shaw, so just to bring you behind the curtain a little bit, right? This is the first chapter that I wrote for the book. And as I start with every bit of my writing, I kind of look at an issue, look at some badness, and think, okay, how did Republicans screw this up? Right? That's always my first kind of assumption. Like, you know, where is the evil Republican, you know, hiding behind the curtain, right? And so for this chapter, I literally came up with the idea after being delayed on a flight. And I'm like, how did Robert Bork do this, right? Like, how did he get this law passed, right? And as I was doing the research, yeah, it's a Robert Bork idea, but then all of these... Liberal people start popping up in the story, right?

• 29:47Speaker 05

  Ralph Nader is involved and Stephen Breyer shows up and the liberal lion Ted Kennedy. How did this happen? How did? And so the chapter is basically about how Bork's ridiculous radical extremist and untested deregulation idea took over the Democratic Party, right? And it kind of completely changed my framework, both for this book and truly for how I understand neoliberalism. I always call myself a recovering neoliberal because you go back to like 1996 and I'm 18 and I'm voting for the first time, I'm voting for Bill Clinton, baby. I'm, I'm voting for triangulation. I'm voting for all that stuff, right?

• 30:32Speaker 05

  And like my personal journey to realize that I, I was probably wrong. Should have voted for Dennis Kastinich. You know, my personal journey there is also kind of captured in this chapter about airline deregulation. The other big influence I had in this chapter is that as I was researching it, Professor Ganesh Sidaraman came out with a wonderful book called Why Flying Is Miserable, right? And he really went into the pre 1978 regulatory environment of the airline industry. And I was like, yeah, that sounds awesome. Why didn't it work? And, and that's how we, we get to, to this chapter where we see a regulatory industry

• 31:17Speaker 05

  that had been captured, which happens a lot where, where a big government industry was captured by the rich people it was supposed to regulate. And it turned into a closed market cartel. That's Stephen Breyer's words of what the, the pre regulatory environment was. And then we see Bork kind of pushing this kind of, you know, laissez faire deregulatory environment. And then eventually we see Kennedy, who is desperate to run for president, right? Like this is like for, for your listeners who, who are younger than us, like Ted Kennedy was supposed to be president. Except he killed a woman is the thing. See, he killed somebody.

• 31:58Speaker 05

  And so he couldn't run for president in 1976 when he should have. And so he was all prepared to run against Carter in the primary in 1980. And he was looking for an issue to like distinguish himself from Carter. And to the shame of the entire party, deregulation was the issue that Kennedy picked. And we've been on almost a downward spiral since.

• 32:23Melissa Murray?

  Also, it's not just airlines that they're trying to deregulate. We saw this week that now it's also education and schools that are the subject of their deregulatory impulses. As listeners know, a few weeks ago, Lynda McMahon, the former CEO of the World Wrestling Entertainment Group, WWE, the people that brought you the pile drive, the screwdriver, and Hulk Hogan are now running the Department of Education. And Donald Trump has very explicitly said that Lynda McMahon's charge as Secretary of Education is to essentially dismantle it and put herself out of a job. And they have wasted no time. The New York Times reports massive layoffs and firings at the DOE.

• 33:05Melissa Murray?

  Around 1,300 employees have been let go. It is about half the size it was at the beginning of the year, just six weeks earlier. And the DOE actually does a lot of things. It enforces federal laws with regard to education, like the IDEA, the Individuals with Disabilities in Education Act. It provides grants to localities and states for special education. What it does not do, and this I think is the really important part, it doesn't regulate school curricula. It doesn't prescribe curricula. It doesn't certify teachers. Like, states and localities still do that despite what the Trump administration continues to push about the DOE and why it needs to be dismantled. Here's my question. Why are they coming for education so hard?

• 33:50Melissa Murray?

  Why are they trying to make education essentially like the airline industry where it's going to be privatized, it's going to be run by a cabal, and it's going to be terrible?

• 34:01Speaker 05

  Two reasons. One, because education makes people smarter and smarter people are more liberal. That's just a fact. Like, it's not my fault. It's not my fault that the Republican agenda appeals to the poorly educated, but it does. The more you learn, the more you know, the more you understand about multiple systems interacting intersectionally, the more likely you are to be a little bit more liberal. Because knowing things, right now, the Democratic Party is the party of knowing things, and the Republican Party is not. It wasn't always the case. It wasn't always that way, but it is that way now. And so Republicans kind of understand at a core kind of survival

• 34:42Speaker 05

  level that to get their agenda through, they need people to be stupid, right? That's number one. Number two is the religious aspect, right? A lot of Republican voters are crazy fundamentalist Christian-type people, or at least, you know, the kind of people who don't listen to what Jesus said, just use the cross to smash people over the head, which is not at all Christianity, but whatever, it's their version of it, right? And they've always felt that public education has been hostile towards religious indoctrination, which it is, because we live in a society, right? And that's always been a problem for them. So in my book, like I discuss in the Anti-Florida

• 35:23Speaker 05

  Don't Say Gay chapter, I point out to people that we used to have a place for hardcore religious conservatives who do not think that the public school is promoting the values of their family and their God. It was called homeschool. That's what you do. But conservatives have realized that instead of teaching their religion to their own children on Sundays as God intended, they have to infect Monday through Friday. They have to evangelize their religious precepts to all children, including children with no religion, including children with different religions.

• 36:06Speaker 05

  And that's why, in a kind of secure this rebound way, Lyndon McMahon is now ruining the Department of Education and trying to ruin education for everybody.

• 36:19Melissa Murray?

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• 38:27Melissa Murray?

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• 38:43Leah Litman?

  Should say, I should be clear, Eli is hilarious. And one of my most favorite lines from the book is about conservatives' demonization of schools, in which you talk about how the most woke elementary school in the world is not sensitizing kids to LGBTQ issues by teaching math through the operation of adding partners with a double-ended dildo, and I died. Okay, so not surprisingly, the book gives special attention to the Supreme Court's role in upholding bad laws and further cultivating a craft and limited legal landscape for individual rights. You spent a lot of time discussing the Hyde Amendment. Could you explain what Hyde is and how the court has essentially made it a fixture of both statutory and constitutional law?

• 39:27Leah Litman?

  And sorry, one other plug that I just remembered, since you brought up Jonathan Mitchell. Eli refers to him as the fetus whisperer in the book. Listeners, like, you have to read this book. Like, everything is bleak and horrible, and this book just, I loved it. I loved it. Anyway, sorry.

• 39:42Speaker 05

  Thank you so much. So, the Hyde Amendment was proposed in 1973 by Henry Hyde, right after the court's decision on Roe v. Wade. Henry Hyde was a Republican congressman from Illinois. He was also an adulterous hypocrite who was, like, caddying on a long-term affair and then was like, Bill Clinton shouldn't have affairs. So, that's, you know, every accusation is an admission with these people. And he proposed it as a budgetary rider that has been part of every single congressional, senatorial budget passed since, which says that federal funds cannot be used to support abortions. Now, that could just mean that you can't use Medicaid money to get an abortion, which

• 40:26Speaker 05

  would itself, to my mind, be an unconstitutional violation of due process rights and First Amendment rights, right? But the Hyde Amendment has metastasized to be interpreted as stopping not just Medicaid funds from going to poor women who need abortions, it's been understood to stop any federal funds or programming that would in any way provide- Or encourage the provision of an abortion throughout the country. And it's become this real stop on the federal government doing anything to protect abortion rights at the state level, even in a world where those abortion rights are being taken

• 41:07Speaker 05

  away or severely restricted post Roe after Dobbs. It is one of the worst amendments ever. It is one of the worst amendments every single year because it has to be reauthorized every single year. And in a post Dobbs environment, where states are going out of their way to restrict abortion access and abortion rights. It is now, I believe, simply untenable because the federal government now must play a role in providing abortion services, especially in states where they're otherwise outlawed.

• 41:48Melissa Murray?

  So this is a great point about the Supreme Court and its work in operationalizing the bad laws that the other branches are getting into. And it reminds me of, well, let me marry that point to the earlier point you made about the privatization of education. Like, right now, there is a case pending before the Supreme Court, St. Isidors, which is all about the question of whether there has to be public support for religious charter schools. And, you know, that's going to be a vehicle, I think, for the court to operationalize some of the impulses that we're seeing in the dismantling of the DOE. So this isn't just about abortion, it goes elsewhere. It also extends, I think, to the Second Amendment.

• 42:30Melissa Murray?

  So you spend a lot of time in this book taking down various laws that deal with gun rights. And you talk a lot about the court's role in cultivating a Second Amendment jurisprudence that really privileges the Second Amendment as a kind of Uber individual right above all others. So can you unpack for us how the court's interpretation of the Second Amendment has really facilitated a spate of really terrible gun laws in the United States?

• 43:01Speaker 05

  Yeah, so the courts, I have often argued that the court's interpretation of the Second Amendment is wrong. It's not even the court's interpretation of the Second Amendment. It's the NRA's interpretation of the Second Amendment, and that only existed from like the 1970s, when there was like a big takeover in the NRA. This idea that the Second Amendment provides a right for gun ownership for personal self-defense is found nowhere in the Constitution. The Constitution does not say personal self-defense in any phrase, right? If anything, the Constitution says, the Second Amendment says, "well-regulated militia." And I argue that in 2008, Antonin Scalia read out "well-regulated militia" from the Second Amendment,

• 43:44Speaker 05

  and added in "personal self-defense" to the Second Amendment. So he took out a word that was there, and he added in a word that wasn't there, and all the conservatives like clap like seals, or more likely, shot their guns up into the air like Yosemite Sam, "Yee-haw! We can..." Like, that's where we are in this country, and it is disgusting and pathetic. And so I've argued that if we're not going to change the conservative interpretation of the Second Amendment, which I believe is wrong, then our only answer is to repeal the Second Amendment. And you know who agrees with me is John Paul Stevens. Justice Stevens, literally in dissent

• 44:24Speaker 05

  in Heller, was one of the centers in Heller, and afterwards, after he was off the court, Stevens wrote, "The Second Amendment needs to be repealed. If this is how the conservatives are going to treat it, then the entire amendment is trash." I mean, he didn't use the word "trash", and that's a me word, but you get my point. Stevens was like, "This has to be repealed, if this is what the conservatives are gonna do with it."

• 44:47Leah Litman?

  And speaking of Melissa's summary of Eli's characterization of how the Second Amendment has taken this preeminent role in constitutional law, just another line from the book that I loved. Eli says, "Entire swaths of Americans consider the Constitution to be made up of the Second Amendment, plus a whole bunch of woke liberals to see us suggestions."

• 45:07Kate Shaw?

  I also like the term amosexual. Amosexuality. Which I had not encountered, but I now know. So the Second Amendment and the court's hypercharged conception of it forms the backdrop of some of the specific statutory discussion in the book, in particular of a law called Placa, which might sound familiar to listeners because it was the law at issue in a case we discussed on a recent episode. It's a case in which Mexico sued Smith & Wesson and some other gun manufacturers for, you know, Mexico alleges essentially making sure that guns would get to drug cartels south of the border. And in our discussion, we really focused on whether this exception applied such that Mexico could go forward, but we didn't really stop and explain and break down this federal

• 45:48Kate Shaw?

  statute that confers enormous immunity on gun manufacturers and just truly how bananas the law is. And that was an oversight, but luckily there's a corrective, which is Ellie has a whole chapter on the insanity that is Placa. Okay, I got to ask a kind of wrap-up question for you, Ellie. What can ordinary Americans do to blunt the force of the bad laws you write about and those you don't have space to write about in order to improve our legal system and our lives?

• 46:14Speaker 05

  Yeah, so obviously the first answer is vote, and I hate that being the first answer because it's so like, "Vote harder!" And like, I don't want to talk... But like, people need to vote smarter. People need to vote, especially in the primaries, for politicians who are talking about these laws, right? So don't vote for the politician who's just like, "We gotta do something about the guns! We gotta take the gun!" Like, don't vote... That guy doesn't know what he's talking about. Vote for the politician who's like, "We have to repeal Placa." Like, because that's a specific thing that can be done, that kind of gets around some of the other larger culture war issues. There are solutions here. So one thing is vote smarter. But the second thing, because I don't want to just say, "Just vote and then be fine."

• 46:56Speaker 05

  Like, we have to just be a more informed society. Because so many of these laws, again, these are popular laws. They were popular when they were passed. Because so much of our political discourse kind of goes to the headline and stops, doesn't read the whole article, right? And then with the laws, it's they read the... Protect them! American Freedom Job Law, right? You don't realize the freedom is to pick cotton and the jobs are unpaid, right? They never go to the rest of the statute. So we just have to be more informed when talking about our politics. Click through to the article, read the entire law, like become more informed, because then you will see where some of these landmines are.

• 47:39Speaker 05

  I absolutely believe that if people understood how most of these laws worked, they wouldn't have been popular when they passed. They just wouldn't have been if people had actually drilled down and looked at what the law would actually do. So don't get confused, don't get intimidated by the legal ease. Read the laws, read the commentary on the laws and in real time as they are happening, and then make your voices heard. That is, that would stop a lot of this.

• 48:08Melissa Murray?

  And read and share Ellie's book because that's part of changing the narrative behind these laws, right? And reducing their like popularity and ability to influence the rest of our law too.

• 48:17Speaker 05

  I hope so.

• 48:19Melissa Murray?

  Ellie, I think we're going to have to leave it there. More people reading, digesting, reading your work and understanding how these bad laws are ruining our lives. The book is called Bad Law: Ten Popular Laws That Are Ruining America. The author is the indomitable Ellie Mistal. Strick Scrutiny, super guest, super fan, and BFF of the pod.

• 48:42Speaker 05

  Thank you guys so much. And I guess we'll do it again in June, once the really bad decisions start coming out.

• 48:47Melissa Murray?

  Time for some bad decisions. Thanks, Ellie.

• 48:55Melissa Murray?

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• 51:22Melissa Murray?

  That, as always, was bracing, so maybe let's just end with a glimmer or two of hope. So as we noted in our last episode, the administration issued an executive order targeting Perkins Coie, the Seattle law firm that has done work for, among other people, Hillary Clinton. The EO stripped the firm's lawyers of their security clearances and denied them access to federal buildings. It's unclear if that prohibition also included a bar to federal court, which would have been insane and facially unlawful. Obviously, this was a move that was intended to deter other law firms from taking on clients and causes that do not align with the administration's agenda. So again, very chilling. And we lamented the obey and advance posture that many of the nation's law firms have

• 52:07Melissa Murray?

  taken with regard to Trump, the sequel, which is why we were so heartened to learn that Williams & Connolly, the venerable DC law firm, is now representing Perkins Coie. Williams joined our Nolan Porter, which is co-counsel with several groups on challenges to a number of the administration's more lawless early actions. And we think that is amazing news. Law firms stepping up to defend other law firms because they are stepping up to defend the rule of law. Good on you.

• 52:34Leah Litman?

  Yeah. In a world of law firms that are staying quiet, be it Williams & Connolly, at least with regard to this representation, and I feel the need to say that because another immigration law in the news episode that makes Ellie's book all the more urgent involves Supreme Court Advocate Lisa Blatt, who is also at Williams & Connolly, who, according to reporting from Bloomberg, got the Department of Justice to drop a case against alleged child rapists. So as Bloomberg reports, quote, "The Justice Department plans to drop a Biden-era lawsuit alleging sexual abuse by employees of a company that houses thousands of unaccompanied migrant children and has received billions of dollars in federal grants to operate the facilities. The decision follows a push by,

• 53:19Leah Litman?

  among others, Lisa Blatt, who represents Southwest Key Programs to get the Trump Justice Department to dismiss the matter. Blatt said it could hobble the administration's goal of cracking down on illegal immigration." End quote. We're saying some nice things about some lawyers now at this part of the episode, and this was not one of those times. So getting back to the Perkins Coie executive order challenge, the complaint that Williams & Connolly filed was epic. It opens, in part by saying that the order is an affront to the Constitution and our adversarial system of justice. Its plain purpose is to bully those who advocate points of view that the president perceives as adverse to the views of his administration.

• 53:57Kate Shaw?

  So we're recording on Thursday afternoon. And yesterday, Wednesday, Judge Beryl Howell in the District of DC issued from the bench a temporary restraining order on Sections 1, 3, and 5 of the executive order. And I think only those 3 because those 3 were the focus of the challenge. And as her oral ruling, I think, very eloquently explained, a personal vendetta is not a legitimate government motive. The retaliatory animus here was clear as day. A number of people were in the courtroom, providing dispatches, and it just sounded as though she was absolutely "rip shit," is the technical legal term, from the bench at the administration, both the order and the defense of it. She called it chilling, among other things.

• 54:40Kate Shaw?

  So, again, this was an order from the bench, but it sounded as though she had a written order, close to ready to go, so presumably that will issue shortly, and I really look forward to reading it in its entirety.

• 54:51Leah Litman?

  Just on the judges being "rip shit" at the administration, just wanted to add in two other examples. So Judge Alsup told the administration he was getting mad and angry at them for their attempts to obfuscate and not actually, like, provide the evidence that they were claiming existed. And then Judge Anna Reyes, in the District of DC, told the government lawyer that it was something like, this is, you know, summarizing the quote, like, "It's generally a good idea to read your sources before you come to court. That's a free practice tip." Yeah, it was, wow.

• 55:27Melissa Murray?

  Judge Alsup is a pretty even-tempered guy. He's like, "I'm really mad at you." I mean, like, he's coming for you. It's over.

• 55:34Leah Litman?

  In one of the other personal favorite moments out of the Judge Reyes hearing, she was attempting to explain the veil of ignorance to the government lawyer. It was just, anyway, sorry.

• 55:45Melissa Murray?

  Did it need to be explained?

• 55:50Kate Shaw?

  Back to the positive lawyer, good lawyering developments. So there is other organizing happening. Associates at law firms are gathering signatures urging their firms to stand up for the rule of law. And I know there were some other developments we wanted to highlight, too.

• 56:06Melissa Murray?

  Well, there was a very important law school development that broke after we recorded last week. So we've spoken on this podcast before about USA Dick, Ed Martin, who is, in other terms, the interim and acting U.S. Attorney for the District of the District of Columbia. Well, USA Dick Ed Martin sent Georgetown Law Dean William Traynor a letter that led the New York Times' David French to observe, quote, "I've rarely read a more unconstitutional letter."

• 56:36Kate Shaw?

  It made me wonder what the rare more unconstitutional letter was. Because for me, I'm prepared to say that was the most unconstitutional letter I've ever read. So at the top or near the top, for sure.

• 56:48Melissa Murray?

  That's a lot of wind out. So here's what the USA Dick's letter said. "It has come to my attention reliably that Georgetown Law School continues to teach and promote D E I. This is unacceptable." He then announced that he had launched an inquiry into the school and then issued the following threat, quote, "No applicant for our fellows' program, our summer internship or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize D E I will be considered," end quote.

• 57:21Kate Shaw?

  Yeah.

• 57:22Melissa Murray?

  Do you remember that meme of Arthur the Artwork clenching his fists? Like, that's all I can think of. USA Dick doing while writing this letter.

• 57:30Kate Shaw?

  You can sort of see him doing that on the page. It's true. And we want to get to Dean Traynor's response, but first, actually, we wanted to situate this letter alongside something that happened in February, which was that the GSA, the General Services Administration, which operates federal buildings, it's kind of like the landlord for the federal government, it also deals with federal contracts, issued a memo that instructs federal agencies to remove certain longstanding boilerplate language from the contracts that the government enters into with federal contracts. And among the offensive contractual language, this wasn't just remove your DEI language, no. Among the language targeted for removal was language prohibiting contractors

• 58:11Kate Shaw?

  from operating segregated workplaces, including segregated restaurants or drinking fountains. Like, that is where we are. Not you have to remove DEI language from your contracts. You actually have to allow contractors to bid, and I don't know, maybe give them a bonus on their bids if they maintain segregated facilities.

• 58:33Melissa Murray?

  Well, I don't think it's a requirement to impose segregated facilities, but it's just like, if you have segregated facilities, it does not require you.

• 58:41Kate Shaw?

  That's cool.

• 58:42Melissa Murray?

  It's good.

• 58:43Kate Shaw?

  So let's give them credit for not requiring segregated.

• 58:46Melissa Murray?

  Because that would be apartheid. That would actually be apartheid.

• 58:50Kate Shaw?

  We're just inching. We haven't actually jumped all the way there yet.

• 58:54Melissa Murray?

  I mean, all of this to say that the attack on DEI is not about sort of woke orthodoxies being imposed by law schools. It does seem to be like-

• 59:05Leah Litman?

  Unless you mean integration is a woke orthodoxy.

• 59:08Melissa Murray?

  That's kind of what I'm saying. The woke orthodoxy to which they object seems to be just the general presence of people of color who are students as opposed to menial employees. And that really, you know, gets their goat. Well, you know what really gets Georgetown University Law Center Dean Dean Trainers goat?

• 59:28Leah Litman?

  Unconstitutional letters.

• 59:30Melissa Murray?

  Exactly. Unconstitutional letters.

• 59:32Leah Litman?

  So he had a banger of a response that addressed USA Dick Martin as interim US Attorney, which is just a fact, but one that Martin very conspicuously omitted from his own letter.

• 59:45Melissa Murray?

  Like, should we share with the dean our own moniker for Ed Martin?

• 59:50Leah Litman?

  Yeah, maybe.

• 59:51Melissa Murray?

  It's just an acronym.

• 59:52Kate Shaw?

  No, he's a dignified guy. He's not going to call him USA Dick.

• 59:55Leah Litman?

  Free tip.

• 59:57Leah Litman?

  But as for the substantive response, Dean Trainor wrote, quote, "Given the First Amendment's protection of a university's freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the university's mission as a Jesuit and Catholic institution." It continues, quote, "As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution," end quote. Just wanted to-

• 1:00:39Kate Shaw?

  I really feel like this was a love letter to Samuel Alito, Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett.

• 1:00:46Leah Litman?

  Look, he knows his audience, and this was just fantastically done, right? In substance and tone. It was perfection. It reminded me of this moment from Judge Marina Perez's confirmation hearing. She's a judge on the US Court of Appeals for the Second Circuit, where Tom Cotton, I believe, was like screaming at her about her work on behalf of individuals who were incarcerated. And he's like, "Do you think that someone who committed this like really bad crime is like redeemable?" And she was like, "I believe every child of God is redeemable." And he just like had to shut the fuck up. It was incredible.

• 1:01:23Kate Shaw?

  I don't remember that moment. That sounds amazing. Yeah.

• 1:01:25Leah Litman?

  Yeah. Yeah. Kudos. It was a fantastic response. I do think that it will speak to

• 1:01:30Kate Shaw?

  the conservatives on the court and sort of in the broader culture in a way that frankly, like a, you know, non-religiously affiliated law school like might not be able to at least respond in this register. Like, I think that Trainor has the ability to invoke the religious status of Georgetown, which is of course, a religious institution. I just fear that Trainor wins this standoff, but it's not clear to me that the dean of a secular law school necessarily is going to prevail in the same way. But as far as I know, Martin has been real quiet since Trainor responded.

• 1:01:59Leah Litman?

  I think you're right. Trainor has the advantage of-

• 1:02:03Melissa Murray?

  A one-two First Amendment punch.

• 1:02:05Kate Shaw?

  Yes.

• 1:02:05Melissa Murray?

  Like, there is the question of Georgetown's

• 1:02:07Kate Shaw?

  Speech and religion, absolutely.

• 1:02:08Melissa Murray?

  status as a religious institution and the protections for religious institutions. But there's also this broader question of academic freedom, which he mentions in the letter, and the university's freedom to deliver its curricular program in the manner of its choosing, which the court has upheld in the past. And so that is something I think even secular institutions should embrace as they face the onslaught of attacks from this administration, and it is coming.

• 1:02:35Kate Shaw?

  Yeah, absolutely. But yeah, I think it's an important point. It is a First Amendment violation for the federal government to punish, because of the content of their speech, any institution of higher education, not just Georgetown. So I think that that cannot be said clearly enough or often enough.

• 1:02:51Melissa Murray?

  Leah, thank you for that call back to Senator Cashcroft. I appreciate it.

• 1:02:56Leah Litman?

  Anytime, anytime, girl.

• 1:02:59Kate Shaw?

  Before we go, should we do our favorite things we read or watched in the last week?

• 1:03:03Leah Litman?

  Yeah, let's do it.

• 1:03:04Melissa Murray?

  Wasn't no executive orders on my list this week.

• 1:03:07Leah Litman?

  Nope, me either. So obviously, I have to say, Ellie Mystal's Bad Law, 10 Popular Laws That Are Ruining America. As the interview suggested, it's hilarious, it's educational, it's incredible. It is going to be available at all major booksellers, including our favoritebookshop.org. It's coming out March 25th, but you can preorder it now. Also, I was on spring break last week, and I read Bee Sting by Paul Murray and Marter, Kate, on your recommendation, and I loved both of them.

• 1:03:36Kate Shaw?

  Oh, that's great. I'm so glad.

• 1:03:37Leah Litman?

  And then, slightly more substantive, Bob Bauer's post at executive functions, Corruption and the Maximalist Theory of Presidential Power, I found very illuminating. And Steve Laddick's post on One First Street, Five Questions About the Khalil Case, I thought was very helpful in kind of crystallizing the many issues about what the administration is doing.

• 1:03:57Kate Shaw?

  Okay, so I am finally reading the book Character Limit about Elon's acquisition of Twitter. The authors are Kate Conger and Ryan Mack, both investigative reporters at The New York Times. I saw the book. I was sure it was going to be interesting, but I was like, I actually don't need to know the details of Elon's acquisition of Twitter. And now, unfortunately, I think I do. And it's scary because it's essentially what he's doing to the federal government right now. And Twitter, like, that episode didn't end well, and I doubt we're headed for a different outcome here if things proceed on the current trajectory. Okay, and the other thing I will mention is Isaac Chotiner did an interview for The New Yorker with Cardozo's Lindsay Nash, who co-runs the Immigration Justice Clinic there, also about Khalil. And I thought it was just a really illuminating interview in terms of what the law says and where the kind of open questions are.

• 1:04:38Melissa Murray?

  So this week, I read Martha Jones, who is an historian at the Johns Hopkins University. She has a memoir out called The Trouble of Color, an American family memoir. And like all of Martha's work, it is absolutely riveting and beautifully written, and in this sense, very, very personal about her family and their experience with the color line in the South and throughout the country. And she's just fantastic. Highly, highly recommend. In terms of television, I have just started Paradise, which is the Dan Fogelberg vehicle on Hulu starring Sterling K. Brown. And, whoo, it's a ride.

• 1:05:20Melissa Murray?

  And can I just say, I have met Sterling K. Brown before. When I was a law student, Sterling K. Brown, who had attended Stanford, was friends with someone I went to law school with. So at one point, this guy's friends from college showed up, and among them was Sterling K. Brown. And he was just, like, wandering around this guy's apartment in gray sweatpants and a tank top. And I mention this because I read on Twitter recently, someone was just saying that Sterling K. Brown is the most swole guy who is muscular for no good reason, because he never plays a role in which he actually has to be super cut up. He's, like, always, like, a lawyer for a greeting card company or something.

• 1:06:04Kate Shaw?

  Just filling out that suit.

• 1:06:05Melissa Murray?

  But he's got, like, a 12-pack for no good reason. And so I thought that was actually hilarious. And I was remembering, he was cut up back then, too.

• 1:06:12Kate Shaw?

  Oh, it was the same. I thought you were going to say, no, he was, like, really scrawny.

• 1:06:15Melissa Murray?

  No, no, he was super cut up back then.

• 1:06:17Kate Shaw?

  So maybe he just comes by it naturally.

• 1:06:18Melissa Murray?

  I mean, maybe. But he's a great actor, and this is a great vehicle for him.

• 1:06:23Leah Litman?

  So one other note before we go, which is tickets to Strict Scrutiny Live, The Bad Decisions Tour 2025 are on sale now. And this time, I actually plan to be at our live shows because I have stopped riding my bike, and therefore, there is no risk of bike accidents. So join us, all three of us, at a theater near you as we brace ourselves for the fresh hell the Supreme Court will unleash this year. We'll dissect the opinions and analyze the cases that have the potential to reshape our daily lives. We have three great shows planned thus far. May 31 in Washington DC at Capitol Turnaround, June 12 in New York City at Sony Hall, and October 4 in Chicago at Athenaeum Center. So many of you have already bought tickets during the pre-sale, and tickets are going fast, so don't miss out.

• 1:07:08Leah Litman?

  Go to crooked.com/events for more information. We can't wait to see you all soon.

• 1:07:14Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Lea Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote and Joe Motowski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com-at-strict-scrutiny-podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.