What Does Peak Fascism Look Like?

Huge news for lawyers: You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleLeah is joined by guest co-host Somil Trivedi, advocacy director & senior counsel at Court Accountability, to run through last week’s legal news, which involves a whole lot of straight up fascism, the corruption that enables it, and the rising tide of Christian nationalism. They also ask the important questions: Who’s the richest SCOTUS justice? And…what exactly is Trump babysitter Natalie Harp’s whole deal? Then Melissa sits down with Jesse Wegman for a conversation about his book, The Lost Founder: James Wilson and the Forgotten Fight for a People's Constitution https://bookshop.org/p/books/the-lost-founder-james-wilson-and-the-forgotten-fight-for-a-people-s-constitution-jesse-wegman/908fb8618fdcd180?ean=9781250851079&bkshp-astro=t. Favorite Things: Leah: The Natalie Harp https://www.nytimes.com/2026/08/18/us/politics/natalie-harp-trump-devotion-white-house.html saga; The Five-Star Weekend https://www.peacocktv.com/stream-tv/the-five-star-weekend (Peacock); Lost Weekend https://open.spotify.com/album/2NSzwyYvQvdOQAoEjrlw9c, Phoebe Bridgers; He Was Deported to a Country He’d Never Heard Of. He May Never Go Free https://www.nytimes.com/2026/08/12/magazine/deportation-immigrants-prison-eswatini.html, Nicholas Casey (NYT); Kate’s conversation https://youtu.be/nQg4iZQm9YM?si=P63-HKJTf29AF0c5&t=3261 with Julia Angwin and Ami Fields-Meyer about their book, On Courage https://bookshop.org/p/books/on-courage-how-to-be-a-dissident-in-an-age-of-fear-ami-fields-meyer/5114a6bf6c9eb615?ean=9780063491946&bkshp-astro=t; The Wrong Kind of American https://www.theatlantic.com/magazine/2026/10/trump-white-house-transgender-mike-pence/688284/?gift=v2nq5wGhfBDeTXIqnKhHrt97ZWxQ4HbMzHVPeKXvBF0&utm_source=copy-link&utm_medium=social&utm_campaign=share, Julia Curlee (The Atlantic) Somil: Lost Weekend https://open.spotify.com/album/2NSzwyYvQvdOQAoEjrlw9c, Phoebe Bridgers; Frozen Charlotte https://open.spotify.com/album/0VV4lddlDaShTgEzohQ7Jj, Jack White Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialGet 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]

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

• 0:00Melissa Murray?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. 250 years into the American experiment, it's time for all of us to decide, what kind of a country do we want to be? The founding fathers got a lot of things wrong, but one thing they got right was knowing that church and state need to be kept separate. Christian nationalists are trying to destroy that history and take this country down a scary path. They're misusing government power to impose their beliefs, rewrite our history, and decide who belongs in America. Americans United refused to let that happen. Every single day, Americans United is fighting back and holding the line against Christian nationalism with everything they've got. AU has sued the Trump administration seven times in the last year alone and 12 times since his second administration began.

• 0:44Melissa Murray?

  AU has challenged government officials who use taxpayer resources to promote their religious beliefs. They've exposed abuses of power, defended public schools, and held the government accountable when it violates the Constitution. But filing lawsuits, changing policy, and community advocacy don't happen on their own. They happen because people like you decide to be part of AU's fight. If you're looking for an empowered community to join, take a look at what's going on with AU. Visit au.org/crooked to learn more and join the fight today.

• 1:15Speaker 01

  Coca-Cola. For the big, for the small, the short, and the tall. Peacemakers, risk-takers. For the optimists, pessimists. For long-distance love. For introverts and extroverts. The thinkers and the doers. For old friends and new. Coca-Cola. For everyone. Pick up some Coca-Cola at a store near you.

• 1:46Speaker 02

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

• 1:58Speaker 03

  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."

• 2:28Melissa Murray?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your lone regular host for today, Leah Litman, and I'm very happy to be joined by guest host Somil Trevedi. Somil is the Advocacy Director and Senior Counsel at Court Accountability, whose work we'll be talking about some on this episode. He's also worked previously at Democracy Forward, ACLU, Maryland Legal Aid, DOJ, and Wilmer Hale. Welcome to the show, Somil.

• 2:52Speaker 04

  Hey, thanks for having me, Leah. Happy near end of summer.

• 2:55Melissa Murray?

  Near end of summer, which I cannot mentally get around to, given that school starts today, the day this episode is released.

• 3:03Speaker 04

  Yep.

• 3:04Melissa Murray?

  What a world. Okay, so, wow, I already started out kind of somewhat bleak at the top of this episode.

• 3:12Speaker 04

  Yeah, we're gonna have to lift up.

• 3:13Melissa Murray?

  We haven't even gotten to legal news yet. No, I'm excited for the school year. I did after all choose to stay in school forever. So here's what we have in store for you today. Somil and I are going to discuss some legal news, maybe even play a little game or two, then we'll share our favorite things. After our conversation, you'll hear a great conversation that Melissa had with Jesse Wegman about Jesse's great new book, The Lost Founder: James Wilson and the Forgotten Fight for a People's Constitution. So be sure to stay tuned for that. And also, this isn't the only episode of Strict Scrutiny this week. This Thursday, you will have your second episode that's part of our bonus series, Know Your Rights. Two weeks ago, I had a conversation with Jocelyn Simonsen about knowing your rights regarding cop watching to observe and record law enforcement. This week, you'll hear Melissa and me talking with Daniel Harawa about your rights not

• 3:58Melissa Murray?

  to respond to law enforcement officers. So be sure to listen in for that. But first, the news. I'm thinking about shortening this transition or name of the segment just to the EUs, as in yucky, like emphasizing the U in news going forward. Anyways, this is the mindset I am in, so apologies for all of the puns that might fall your way. But Somil and I are going to talk about several developments that at least mentally I've grouped into a few categories. Straight-up fascism, also efforts to fight back against said fascism, so little uplifting. Then corruption, that is adjacent to and probably enables said fascism. And then rising Christian nationalism as a cherry on top. As always, it's going to be a great time.

• 4:41Speaker 04

  Yeah, I'm glad that some of that will be news you can use, you know?

• 4:47Melissa Murray?

  I'm glad you're into the rhyming and puns as well. So with that, maybe let's just start with the straight-up fascism and the freaks that are into it. And when I say fascist freaks, you say what? Harmeet. As in Harmeet, you are Ho's Dylan, the Assistant Attorney General for Civil Rights, or as Melissa would say, Civil Wrongs. Anyways, Assistant Attorney General, you are Ho's, announced that DOJ's Civil Rights Division will be sending around 1,000 election monitors around the country, as you can hear here.

• 5:16Speaker 05

  In and out since the 1957, the United States Department of Justice Civil Rights Division has sent monitors to election hotspots, polling places, to increase voter confidence to troubleshoot problems. And we are doing that now. We just did it in the primary. We're going to do it to the tune of approximately 1,000 election monitors in the November election.

• 5:39Melissa Murray?

  Somil, what are your thoughts? They're just doing what like the Lyndon Johnson and other administrations did, sending election monitors to the South, right?

• 5:47Speaker 04

  Yeah, exactly. You know, later on in that clip, she goes on to say all the people she's going to target with these new election monitors, and turns out none of them are, you know, black people in the South or people in rural areas who have been disenfranchised, right? It is the same laundry list of scapegoats, immigrants on down, that they are going to try to intimidate. And in case you didn't believe her, her boss, Todd Blanch, keeps saying out loud in front of every camera, "What's so weird about sending ICE to polling places?" Well, first of all, Todd, the law says that you can't do that. You're the one charged with enforcing the law in this country. You probably ought to know that. And of course, their big boss, the president, has said at every possible turn, the Republicans

• 6:31Speaker 04

  should simply try to rig the elections for themselves. He's messing with mail balloting. He's doing mid-cycle redistricting. Like, nobody believes that this is the kind of civil rights era monitoring that previous administrations have done. Get out of here.

• 6:45Melissa Murray?

  Yeah, and, you know, as she notes, they did send election monitors during the midterms. And so on some level, this isn't like escalation, thousand, time to panic, but it is something that people should be aware of going into November. It is designed to depress turnout. It shouldn't be allowed to depress turnout. And so maybe this is a great moment for the kind of collective stubbornness that Kate, Ami, and Julia talked about in their discussion on On Courage, where we all kind of share this information as well as what to do about it.

• 7:15Speaker 04

  Yeah, that's right. We can't let them scare us out of voting. Voting is still safe and effective in this country. And if you're nervous, let's make a plan together.

• 7:24Melissa Murray?

  Right.

• 7:25Speaker 04

  Vote early. Vote by mail and vote early. If you can go in a group, go in a group. If you're a vet, or a priest, or a lawyer, or somebody else who the administration doesn't want to see roughed up on TV, take a group of people. There's actually an amazing effort called Project Halo going on that's recruiting community leaders, faith leaders, vets, et cetera, to be chaperones to the polls for other people who may not be in the same position. And so the pro-democracy movement has at every turn, like stepped up to the plate to combat these fascist, straight-up fascist attempts by the government, and this will be no different. So if you are seeing this in the news and you're a little bit scared, believe me, there are resources out there for you.

• 8:11Melissa Murray?

  Yeah, and I'd just add, other opportunities you can volunteer for are election observers or poll monitors or, you know, challengers, because if you stay and observe, right, you can identify if and when there's any federal law enforcement overreach or intimidation.

• 8:27Speaker 04

  Exactly.

• 8:28Melissa Murray?

  Yeah, so in what I think is peak fascism and peak fascism that was enabled by this Supreme Court in one of the absolute worst decisions, not from this most recent term, but from the last, we learn more about the so-called third country removals that the administration is still carrying out. Third country removals, you might recall, are where the administration expels people to countries they may have no connection to. And of course, the administration picks countries with horrific prisons and where people face risks of torture, violence, being trafficked into slavery, or death. Now, a lower court had blocked the removals, only to require the government to allow individuals to challenge whether the government could in fact send them to one of these places where they faced these grave risks before the government sent them there.

• 9:11Melissa Murray?

  But the US Supreme Court said, nope, administration can just go ahead and ship people off with no due process. Now, The New York Times managed, through incredible reporting, to actually speak to some of the people who were shipped off to these third countries, here specifically to Esuatani, where they are now incarcerated, with little to no sign of how or whether they might ever be released. People need to read this story in its entirety, but I just want to give people a taste and highlight some of the things that have stuck with me. So the story primarily features a man who arrived in the United States when he was 12 as part of the Mariel boat lift from Cuba. And the story begins, quote, "As he stepped out of the American military cargo plane, Roberto Mosquera still couldn't tell where he was or what he had been taken there."

• 9:56Melissa Murray?

  This man is 59 years old. He was arrested when he went to a regular immigration check-in to renew a work permit. He was forced inside a metal cage. While in prison in Esuatani, he developed glaucoma, losing half his vision in one eye and 80% in the other. He struggled to receive treatment. When the New York Times first spoke to him on this WhatsApp video, he said, quote, "Can I ask you a question? Do you think I'll ever get out of here?" So I just ratted off like a ton of details. Like, what stuck to you from that story?

• 10:26Speaker 04

  Yeah, so a couple of things. One, you know, sometimes we can get lost in the cruelty of this administration. But this, as you said, is one of the most disgusting things that they're doing on a daily basis. And we just cannot, cannot, cannot forget the moral and legal cruelty that they're visiting on people. Second, I want to re-up your point about the Supreme Court. Their decision on the shadow docket in DVD is what allowed this to happen. For my money, probably the most disgusting use of the shadow docket that we've seen so far. Because people like Roberto Mosquera were given literally no ability to challenge their

• 11:06Speaker 04

  removal before they were taken off to places like El Salvador and Secot or Esuatini or where have you. And this blood is on the Supreme Court's hands. And third, I want to focus on a bit of a wonky detail, but one that keeps coming up, and I want folks to know about it. Mosquera is from Florida, right? He was part of the Cuban boat lift. He lived in Miami, but he was taken to Texas first.

• 11:29Melissa Murray?

  Yes.

• 11:29Speaker 04

  Just like Kilmar Brago Garcia was taken from Maryland to Texas. And Badar Karan Suri, the Georgetown professor, was taken to Texas. And so many of the Alien Enemies Act detainees, right, were taken from the Northeast to Texas before they were flown out of the country. Now, why is that? Like, why is it that the DOJ wants to make damn sure that the last place that these people are, are in Texas? Could it be because of the favorable judges there? Could it be because of the bloodthirsty Fifth Circuit? And that's where they will have their day in court, if they ever have it? I think this is a piece of lawfare that we're not paying enough attention to and something that needs to absolutely be fixed. Some of these defendants have been able to be moved back to their home jurisdictions,

• 12:13Speaker 04

  and that hasn't worked. But in some cases, it will, and it should be absolutely illegal.

• 12:19Melissa Murray?

  Yeah, it's the perfect encapsulation of how the stakes of these technical issues, like venue or jurisdiction, right, are anything. But, and also when we talk about the stakes of, for example, blue slips and being able to nominate judges.

• 12:34Speaker 04

  Yes.

• 12:35Melissa Murray?

  The, what has happened to the Fifth Circuit and Texas is so much a part of that story. And it has enabled some of these absolutely horrific.

• 12:44Speaker 04

  100%.

• 12:45Melissa Murray?

  Yeah, abuses. Just one other detail from the story, you know, for a Supreme Court that supposedly cares about religious freedom and religious exercise, you know, another detainee that the Times spoke to is Muslim. And he describes how guards blasted Christian music through speakers and ordered the men to stand outside and pray, and that this man is terrified he will die in a Christian country and will not receive a proper burial. And as I was saying, you have to read this piece to understand what's being done in our names and the stakes of all of these decisions. When you hear people, both sides are trying to equate the parties, like, look, Democratic Party, I could list a trillion things they could be doing better, and they're not doing this.

• 13:29Melissa Murray?

  And, you know, the Times reported that Liberia agreed to take more than 1,000 additional people who were going to be expelled. So these third country removals are still happening and may even accelerate.

• 13:40Speaker 04

  Oh, yeah. Oh, yeah, they have carte blanche right now. It's horrific.

• 13:43Melissa Murray?

  Yeah, carte blanche, Todd Blanch, as we said. So in more fascism, no transition here, I'm not Melissa, but wanted to talk a little bit about the efforts to fight back against fascism. There were some recently filed lawsuits that we wanted to discuss. And one is Disney and Disney's subsidiary, ABC, lawsuit against the Federal Communications Commission. That lawsuit argues that the FCC's review of Disney's broadcast licenses, essentially the licenses for Disney to distribute its material across a ton of networks, that the FCC's review of those licenses is an unconstitutional retaliation against the company that violates the First Amendment because it's being done in response to content and views that ABC had broadcast. Welcome to the Resistance, Minnie Mouse.

• 14:26Melissa Murray?

  I always knew she had it in her. So the lawsuit was filed by former Republican Solicitor General Paul Clement. So I'll ask you for your reaction first, since I've been talking for a while, but there's a lot about this lawsuit that I feel like is worth flagging.

• 14:41Speaker 04

  Yeah, I mean, I definitely want a constitutional law professor's take on the First Amendment issues here. But I will say, from the point of view of the Resistance and Minnie being welcomed in, I know a lot of people will want to say, screw these guys. They capitulated early on. They paid blood money, right? They almost canceled Jimmy Kimmel until a bunch of us moms and dads canceled our Disney Plus subscriptions, and then they magically brought Jimmy Kimmel back. I get that. I get the, like, the instinct. But for me, it's never too late to do the right thing.

• 15:12Melissa Murray?

  Yes.

• 15:13Speaker 04

  The tent is large. If folks, especially the most powerful folks in the world, like the owners of Disney and ABC, want to finally come around and realize that it's bad for business and bad for humanity for you to continually capitulate, and if you finally realized that no amount of lunch money is going to satisfy these fascists, great. Like, the water at Splash Mountain is warm. Come on it. And I think the other, the other point I want to make is like, we've been having this like, national re-freak-out about woke one, right? Like, relitigating the whole thing, we're putting the hair shirt back on and like, flogging ourselves, but like.

• 15:50Melissa Murray?

  Mute, mute, mute, right?

• 15:52Speaker 04

  Exactly. First of all, woke one was largely about holding, like, sexual abusers and racialized police violence accountable. And I think we might have gotten that part right, because we have a sexual abuser unleashing police violence on the country. So like, it wasn't all bad. And second, I know this is like an easy take, but where are the cancel culture warriors, right? You were told that the major overreach of woke one was that you couldn't say anything anymore, and the government or the mob would shut you down. And now we have the FCC actually shutting people down. Like, where you at, Bari Weiss? Where you at, Matt Taibbi? Where are all of you motherfuckers?

• 16:29Melissa Murray?

  Well, and also, like, look around the world. You think our problem is that woke one went too far? The Supreme Court just, you know, said that the president's vile racist smears of Haitian nationals were not overtly racial. So yes, tell me more about how woke one went too far. But since you asked, what the con law professor's take on this lawsuit, I would say that the major lesson here is a life lesson. And that is always listen to fucking Stringer Bell when he says, do not take notes on a motherfucking conspiracy. Because this lawsuit just uses the president's words against him to establish the retaliatory motive. And similarly, with the words of FCC Commissioner Brendan Carr. So the third paragraph in the complaint is a truth post from Trump that says, "If network

• 17:14Melissa Murray?

  newscasts and their late-night shows are almost 100% negative to President Donald J. Trump MAGA and the Republican Party, shouldn't their very valuable broadcast licenses be terminated?" I say, yes, in all caps. This is, as we say in the biz, OMG, he admitted. Like, just saying, should I do this unconstitutional thing? For the very reason that would make it unconstitutional. You know, and then you add to that the Brendan Carr quotes in like, two paragraphs down, where he's talking about Jimmy Kimmel and says, "We can do this the easy way or the hard way." Just making clear they're operating a mob-style, government-threatening broadcast licenses when they don't like what these networks say. It's just utter insanity.

• 17:56Speaker 04

  Yeah, you wouldn't even bother giving this as a final in your class? Like, the kids wouldn't even need to use AI to answer it. It's just too easy.

• 18:04Melissa Murray?

  Yeah, I know, I know. Now, if you are interested in hearing more of life's legal lessons, like always listen to Stringer Bell, may I remind you that Strict Scrutiny is now offering CLE. Our first course is available through Lawline. Not all states qualify at this time, so you should check the eligibility before you purchase, but we are approved in California, New York, Texas, North Carolina, Georgia, Washington, Oregon, Pennsylvania, Illinois, and Virginia. So if you'd like to see the state your bar license is in added to the approved list, you can send an email to [email protected], and we are working on it. Go to crooked.com/strict underscore CLE to learn more and buy the course.

• 18:46Melissa Murray?

  And once your purchase is complete, you'll receive a confirmation email with the link to access your course. Okay, so that's lawsuit number one. Another recently filed lawsuit concerns something we've talked about on this show before, and that's Minnesota's efforts to try to ensure some accountability for the lawlessness that resulted in the shootings and killings of Minnesotans during Operation Metro Surge earlier this year. So we had Mary Moriarty, who's county attorney for Hennepin County, on the show to talk about Minnesota's efforts to protect their citizens in the fight against federal overreach. And yes, that is a hat tip to the name of their great organization, FAFO, that she co-founded. But Minnesota has charged a former ICE agent with unlawfully firing a gun into an occupied

• 19:28Melissa Murray?

  home, hitting Sulyo Sesar Sosa Salis, who he then, the officer then falsely accused of attacking a federal officer with a broom handle. Now, the former ICE agent, Christian Castro, is currently in state custody in Texas, and Texas being Texas, is refusing to sign a warrant extraditing him to Minnesota, sending him to Minnesota until Minnesota, quote, "steps up and repays the United States of America and Americans for all the fraud that they've committed in their state through federal programs." Womp, womp. This is just bullshit and noise. Governors don't have authority to refuse to honor a valid interstate extradition request, but it seems like the game here is to run out the clock. Because Texas's law, which implements a federal law on extradition, authorizes a court

• 20:13Melissa Murray?

  to place in custody someone who's been arrested on an out-of-state charge and extend their time in custody, but only up to 90 days. And at that point, poof, the detention authorization just.

• 20:25Melissa Murray?

  Goes away. So Castro was arrested May 29th, which means the 90 days, the detention commitment could expire on Wednesday, the 27th. Now, Minnesota has sued Abbott to force him to comply with the extradition rules. They've also sought a temporary restraining order barring Castro's release, likely because they may be concerned that Castro, once released, might flee to Mexico, where there is no state extradition law. And also, it seems like he might have a girlfriend in Mexico, according to the complaint. But I'm at least like really concerned about gamesmanship here, where, you know, it's in the Texas district courts, which, as we were saying, in the Fifth Circuit, like, are those courts just gonna sit on it and allow this to kind of disappear undercover of night? Like, I guess, what are you watching for or hoping or thinking will happen?

• 21:11Speaker 04

  Yeah. So first, I want to point out just how obviously illegal it is for Abbott to refuse to send him. Like, it's not just statutory law, it's in the Constitution. We have an extradition clause of the Constitution. Fun fact, it happens to be next to the one about fugitive slaves. So like, it's a real dichotomy of America situation. But in any case, we have an extradition clause, a mandatory extradition clause in the Constitution. We have federal law, we have state law, we have, you know, administrative law, all of it being violated here. Keith Ellison is pointing that out very clearly in his motion. And you're right, the only thing that the court could do here, the courts in Texas could do, is let the clock run out. And I worry that that's exactly what's going to happen. And, you know, two other points.

• 21:56Speaker 04

  One, do we want to live this way? Like, do we want to have states using the criminal justice system to make political points? Like, you know, hot murderer Luigi Mangione was just extradited from Pennsylvania to New York. Like, what if all of a sudden, the governor of Pennsylvania decided, we're not gonna do that anymore, because I want to make a point about healthcare costs, or whatever? We would have total lawlessness and anarchy across the country, which obviously Greg Abbott doesn't care about, but the rest of you definitely should, including people in Texas. If this guy gets out, he's on the lam in Texas for a while, and he's already shown-

• 22:29Melissa Murray?

  Right. Is he gonna be shooting into your homes?

• 22:31Speaker 04

  Exactly, exactly. So all these people who cry on about law and order and about public safety and how they're the party of it, just look at this example of how they're harboring a criminal or an alleged criminal for the purpose of making a political point. And second, I just want to end on another hopeful note here. Much like, Harriet Dylann's gonna send her election monitors, and we're gonna step up and keep the elections safe. Local and state officials who are facing ICE violence by the federal government have options to fight back. And Mary Moriarty and Keith Ellison are doing it. And of course, they're gonna face an uphill battle with shenanigans

• 23:12Speaker 04

  like this and in the law itself. But not doing anything is not an option. And I really hope that local and state officials all over the country, red or blue states, doesn't matter, stand up for their own constituents and start filing these cases. ICE is committing crimes in every state in the Union. This could happen anywhere. And so I really hope that they see that it's not impossible. The law does support them, and they go out and do it.

• 23:37Melissa Murray?

  Yeah. And it seems like, at least to me, what Texas is doing here is something that, in my mind, I am thinking of as aiding and abetting federalism. Because, you know, we all see how, obviously, federalism interests and who cares about federalism change a little bit when we're talking about partisan violence. But here, we have a pretty simple case of a state attempting to enforce a state law when federal law enforcement officers are harming their constituents. So apparently, another state steps in to try to help the federal government and federal officers maintain no accountability and immunity from, you know, accountability to a state. It's just all kinds of fucked up federalism.

• 24:17Speaker 04

  Yeah, that's right. And to like, put a fine point on it, Texas has no problem, say, trying to invalidate the votes of other states, like they did in 2020. They have no problem, like, investigating women who get abortions in other states, right? In those instances, the other states can go kick rocks. But now that Minnesota's trying to make its interests known in Texas, they won't let them. Like, that's very convenient for Greg Abbott.

• 24:40Melissa Murray?

  Yeah. And Greg Abbott has been processing other extradition requests from Minnesota, right? Like, this is, as you were saying, just like pure politics and just absurdity at that. So since we're talking about lawsuits involving my home states, I did want to talk about another one that is near to me, because it concerns my current home state, Michigan. So I have ranted on this podcast before about how this administration has nominated to a lifetime federal judgeship, a US attorney who allegedly, among other things, was involved in the firing of career federal prosecutors who had the audacity to enforce the law. Specifically, a law the administration doesn't like, the FACE Act, the Free Access to Clinic Entrances Act, which makes it a federal crime to obstruct people entering healthcare clinics, including abortion providers. This

• 25:25Melissa Murray?

  lawsuit was filed by Sunita Daramani. It alleges she was fired for her perceived political affiliation and beliefs in violation of the First Amendment and the Civil Service Reform Act, among other laws, because she had worked on this prosecution. I want to remind people that both of the ostensibly Democratic senators in Michigan returned a blue slip for the guy who allegedly was involved in facilitating the violation of these various laws by being involved in the firing of this career prosecutor and perhaps others as well. The firing notice itself was issued by Attorney General Todd Blanch under Article 2, because of course it was. But, you know, the prosecutor had worked on prosecutions against those who plotted to kidnap Michigan Governor Gretchen Whitmer. And the complaint lays out, you

• 26:07Melissa Murray?

  know, the Trump administration's anti-FACE Act campaign and actions. But it's a super compelling document, and I hope this keeps the retaliation campaign in the news and maybe even prompts a rethinking of returning a blue slip against a guy who may have been involved in all of this.

• 26:24Speaker 04

  Yeah. It's another heartbreaking story about, like, public servants being fired for their jobs, right? We went through this with the January 6 prosecutors, we went through it with the FBI agents, right? And this is yet another one. And so I totally agree, we should keep it in the news. Second, the motherfucking blue slips. I mean, like, you know, we talk a lot about court reform in our spaces and the low hanging fruit, right? Term limits-

• 26:47Melissa Murray?

  This is the lowest of the low hanging fruits.

• 26:49Speaker 04

  But we can do it today. We can just stop aiding and abetting fascism by ending this practice today. There's another horrific story out of Illinois about a judge who got a blue slip from Senator Dick Durbin and then went and provided the only win that the administration has had in these cases, trying to get rid of in-state tuition for undocumented kids. It's a long story, but they've been basically achieving their policy goals through collusive settlements, right? With like, friendly folks on both sides that are illegal in their own right. But in this case, this judge handed them an out-and-out win on the merits. And it was a blue-slip judge from our side of

• 27:29Speaker 04

  the aisle. And I just don't understand how, like, when we're gonna get the message that these judges are just henchmen for the apocalypse, and we need to stop, like, paving the way for them?

• 27:41Melissa Murray?

  Right. And I understand the argument is, well, if I don't return the blue slip, then they're just not going to ask for a blue slip, and the practice is gonna be gone. But it's like, okay, but they're just getting your permission to confirm these election-denying people who are destroying the civil service. And so you're just giving them permission to do that? I just don't understand why you think that's better.

• 28:02Speaker 04

  Because that'll finally make the scales fall from their eyes and lead back to an era of bipartisanship. Like, come on.

• 28:09Melissa Murray?

  Exactly.

• 28:12Melissa Murray?

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• 29:37Melissa Murray?

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• 31:02Melissa Murray?

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• 31:19Melissa Murray?

  So since that lawsuit did also speak of DOJ senior leadership doing illegal shit, that's a nice transition into our corruption section because good occasion as ever to remind people that now Attorney General Todd "Card" Blanch offered this assurance when he was pressed about the prospect of him doing illegal shit at the Department of Justice at Donald Trump's direction.

• 31:40Speaker 06

  Can you pledge that the Justice Department will always act independently of the White House?

• 31:46Speaker 07

  Well, there's a big difference between saying we will always do our job and investigate any case and act independently of the White House. No, I'm not going to pledge that. And no Attorney General should ever pledge that. The President, I mean, if I were to pledge I will be independent of the White House, what that means is that if President Trump says, "I want the Department of Justice to go after every violent criminal in this country," which is what he has said, what you're saying to me is I should say, "No, sir, not going to do it." So I will act with integrity. Our prosecutors will act with integrity. We will prosecute without fear or any sort of favor. And that's exactly what we've been doing, and that's what every Department of Justice should do.

• 32:27Speaker 06

  Well, I guess, big picture, if the President asks you to do something that you feel crosses an ethical or legal line, would you do it?

• 32:34Speaker 07

  The President will never ask me to do something unethical or illegal. He never has, he never will.

• 32:39Melissa Murray?

  I can hear Sam Alito being like, "Well, he didn't ask me to do anything overtly illegal." But, you know, the lawsuit we just talked about, the one challenging the firing of the career prosecutor alleges one illegal action, and Blanch couldn't even keep himself from doing more illegal shit during his first week on the job. Because here is the corruption on top of the fascism, Todd Blanch, at a fucking campaign event.

• 33:05Speaker 03

  We just heard from our great Nassau County Executive Bruce Blakeman, who is doing everything we need him to do to back the blue, to support law enforcement, and to make this county, and to make this county a safe county that we can all raise our kids in.

• 33:26Melissa Murray?

  Somil, why is this illegal? Why can't the Attorney General be going around to campaign events?

• 33:33Speaker 04

  First of all, it should be illegal because of the utter lack of charisma that Todd Blanch is bringing to that campaign stage. I mean, I don't know if he just cost his boys some votes there.

• 33:41Melissa Murray?

  No riz, no aura.

• 33:42Speaker 04

  None. That's right. Second, okay, so we have this thing called the Hatch Act that bars certain people in the government from campaigning politically. The obvious reason for that is because once you're part of our government, you should be working for everybody and not just one political party. Quaint, I know, but we used to have a government that operated on rules like that. And the nitty gritty of it is that Todd Blanch is almost certainly a further restricted person under that act, which means he can't engage in political activity of any kind, which obviously he was doing there. And even if he were not in that higher tier of restriction, he couldn't do it when he was on duty. And what we didn't show in that clip was that he was actually announced in his official

• 34:27Speaker 04

  capacity. This was during work hours in the middle of the day. Maybe they buried him not in prime time for a reason. But all of that also speaks to the fact that he was doing it while on duty. So this is illegal in a million ways. Now, Public Citizen, like, one of our fantastic pro-democracy organizations in the United States, if you don't know them, look them up, filed this complaint. They're going to face an uphill battle. There's just no way around that. The internal HR systems in the government, the Office of Special Counsel, and the Merit Systems Protection Board are both subject--

• 35:01Melissa Murray?

  Have been gutted.

• 35:02Speaker 04

  That's right. They've been gutted in their personnel, they've been gutted in their budget, and they're subject to the slaughter case so that if anybody even tries to bring a Hatch Act complaint or substantiate their Hatch Act complaint, they'll be fired anyway. However, does that make it not worthwhile? Not at all. We need to, like, cede the historical record with all of this illegality, all of this wrongdoing every time it happens, because we're going to get power back one day, and we're going to need to not memory-hole all this stuff. And what might seem like a minor appearance at a campaign rally a week from now when the news cycle moves on is not. It was illegal, and we need to hold him accountable for it.

• 35:38Melissa Murray?

  Yeah. So, as ever, the corruption isn't just in Article 2. We also had some newsy items that kind of tied it to Article 3 as well, and that's the Supreme Court's finances. So some of this isn't exactly new, but I did want to table-set. So, little game. Who, listeners, is the wealthiest Supreme Court Justice? Somil, you probably know, but want to venture a guess?

• 36:04Speaker 04

  John G. Roberts.

• 36:06Melissa Murray?

  Correct. So Forbes has suggested it's the chief with some wealth estimated around $25 million, although that was back in 2024. Okay, how about, listeners, who do you think is the second wealthiest justice, or likely wealthiest justice, according to Ford? Somil, your organization actually did an analysis of this, so do you want to explain?

• 36:29Speaker 04

  Yeah, I think it's Sam Alito, and I'll tell you why. So my organization has a sister wing called True North Research, and they do some of the most cutting-edge investigative research and reporting, especially on the Supreme Court. If you remember the Clarence Thomas RV stories and the earlier stories about Sam Alito and other corruption on the Supreme Court, that was our folks. Hat tip and shout-out to my peeps. And they just did yet another, like, blockbuster investigative piece about Sam Alito's investments in the oil and gas industry, noting that he's probably made up to $2.9 million, million

• 37:10Speaker 04

  dollars in oil and gas holdings over his tenure at the Supreme Court. Now, why is this a problem? Obviously, Sam Alito decides cases that impact the oil and gas industry, including a major case coming up this term called Suncor, which will decide whether states and localities, in this case Colorado, can sue fossil fuel companies for the harms that they're doing to the environment, including in their states. Now, it doesn't take a lawyer or an ethics expert to know that Sam Alito is going to have proclivities toward the industry that made him a multimillionaire.

• 37:50Speaker 04

  And so he is, at the very best, skirting the ethics laws that apply to him and refusing to recuse from this case where any person on the street can see his conflicts of interest here. And I'll also point out that it was Sam Alito, in the pages of the Wall Street Journal, who said a couple of years ago that the Congress cannot regulate the Supreme Court, period.

• 38:18Melissa Murray?

  Period.

• 38:19Speaker 04

  This is him yet again thumbing his nose at anybody who would dare regulate this oracle of the Supreme Court. He can make money any way he damn well pleases, and he can decide any cases he damn well pleases.

• 38:32Melissa Murray?

  Yeah. And just on big oil at the court, you know, something else that kind of came out this week is that the American Legislative Exchange Council, at their annual meeting, they're kind of like a right-wing legislative group. So at the meeting, they were kind of discussing why having a right-wing Supreme Court is crucial for protecting oil companies from, among other things, climate lawsuits. So one of the speakers at the meeting, who's a partner at a firm that's unsurprisingly received millions of dollars from Leonard Leo's network, said, "Big oil really benefits from having the court in its pocket." Like, that's a paraphrase, but the quote is supposedly--

• 39:02Speaker 04

  Yeah, I agree.

• 39:03Melissa Murray?

  Right? Like, "If we had a different Supreme Court, this would be a very different presentation, a good reminder of how close we are to really catastrophic outcomes." And it's like, again, did he just admit it? Right? Like, yeah, we agree, right? Like, big oil does really benefit from having this Supreme Court. Like, what else do we need to say?

• 39:22Speaker 04

  Yeah, Stringer Bell yet again shakes his motherfucking head. Yeah, I mean, so, you know, the justices you mentioned, Roberts, Alito, Gorsuch is way up there on the net worth list. All of them have, of course, been huge capos for big oil. And, you know, it takes me back to, like, 2016, when the court was deciding the Clean Power Plan, right? And this is a little bit of a throwback, but bear with me. And The New York Times had that blockbuster reporting about how, on these secret memos, John Roberts, multimillionaire John Roberts, was saying that the Clean Power Plan had

• 40:04Speaker 04

  to be emergency stopped because, not because the plaintiffs or the big oil had met their burden, not because we had heard anything on the merits, but because it would hurt the oil industry. Literally, he said it out loud, speaking yet again of Stringer Bell. He wrote it down in a memo that he was basically inventing the shadow docket in the winter of 2016 in order to save big oil. Neil Gorsuch, we know, has been out for big oil his entire life, avenging the wrongs to his mom, right? And, you know, writing opinions that are actually the predecessor to Suncor, the BP case, which allowed these cases about fossil fuel accountability to be removed to federal court.

• 40:48Speaker 04

  So all of these guys are so deep in big oil's pocket and are actively, at least in Alito's case, making a lot of money off of it.

• 40:56Melissa Murray?

  Yeah. Also, the quote from Alec is like the perfect encapsulation of the victimization complex. Like, they're winning. They have shaped an entire docket, and yet they're working themselves into a frenzy about how they're on the verge of a catastrophe. It's just insane, right? Not the catastrophe, my guys.

• 41:14Speaker 04

  No, you're up 6-3, and you're going to be until 2065 if we don't do anything about it.

• 41:20Melissa Murray?

  Exactly, exactly. And like, I agree, that is a catastrophe, but not the one you have in mind. So one last question for listeners playing along with the game. This one might be the easiest, and that is, who has received the most grift, I mean gifts, while on the Supreme Court? No points for this one. Fix the Court's analysis has indeed confirmed it is Clarence Thomas, who has received over $4 million in gifts while on the Supreme Court. Quite the job perk, I have to say.

• 41:52Speaker 04

  Yeah, I'll take the RV.

• 41:54Melissa Murray?

  Right, exactly. I'll take the PJ trips or the life-size Hagrad Hut. Or weren't there also like special milkshake machines or something like malt machines? Those also sounded good.

• 42:06Speaker 04

  Yeah, he's got to up his grift game. These are like a weird set of things to put in your trophy case.

• 42:12Melissa Murray?

  Indeed, indeed. So one final entry in the corruption court complex, and it's kind of an entry that is developing, unfolding TBD, and that's we are currently awaiting the Supreme Court's action on the federal government's shadow docket application request to block lower court decisions that had halted the president's continued demolition of the White House and construction of a fucking ballroom. So one, he says, is essential both for throwing a good party and for national security. Really, two birds, one stone here. Now, as we had explained on a previous episode, a district court blocked the continued construction. The US Court of Appeals for the DC Circuit left that decision in place over a dissent

• 42:56Melissa Murray?

  by a Trump appointee auditioning real hard. And now the federal government has, as always, run off to Daddy SCOTUS on the shadow docket and asked the Supreme Court to stay the lower court's injunction. The DC Circuit had given the administration a temporary stay, so allowing the construction to continue, i.e. wait for this injunction telling them no more construction to go into place in order to allow the federal government to seek review at the Supreme Court. But that temporary stay expires Friday, the day we are recording. And already, the administration is chomping at the bit and sending like warning shots to the court that they're gonna do what they're gonna do, as you can hear here.

• 43:35Speaker 05

  So unless the Supreme Court acts today, that stay, that construction injunction will remain in place. We hope that will not be the case. And I don't want to get in front of the president on this, but I do know that other options are in fact being considered because the president has committed to the completion of this project.

• 43:55Melissa Murray?

  I mean, like, the Supreme Court produced this. You know, like, they have enabled this lawlessness and the threats by rewarding the administration's defiance of lower court orders. I know this is always hazardous. I'll share my guess first about what the court is gonna do, unless you want to share yours. Do you want me to go first, or do you want to do? Okay. So I think the court is probably going to grant the government's application and block the lower court orders. I'm not super confident about this, but my guess is they are going to use this case to limit the ability of plaintiffs to challenge government action on environmental grounds. And specifically, you know, for plaintiffs to argue that, you know, any federal government

• 44:37Melissa Murray?

  project is harming, you know, neighboring lands or species or whatnot. And so I think that that's probably the direction that they are going to go. Again, because they just, they're so fucking thirsty for King Trump and his ballroom.

• 44:52Speaker 04

  Yeah, that's right. And I'll take your parlay, because there's also this totally fake national security element that they've grafted onto it. And this Supreme Court loves nothing more than to bootstrap terrible arguments onto a national security argument and make them good and polish that turd, right? And so, and the Supreme, and the administration has gotten wise to this, right? Literally, everything they're doing can arguably have a national security valence, and the Supreme Court has just given up, or, I mean, willfully given up on parsing the real ones from the pretextual ones. And so even though this is obviously a vanity project, so he can throw himself parties

• 45:37Speaker 04

  and leave himself a structural legacy in DC, he'll carve like a little bunker for him and Natalie in the bottom of it, call it national security, and that'll be enough to get him to stay, I think. Fingers crossed, no, but I think.

• 45:51Melissa Murray?

  And of course, literally as we are talking, the chief justice issued an administrative stay of the lower court orders. That has the effect of allowing the administration to continue the demolition and the construction until the full court says more. And I take it that this administrative stay is a sign about what the full court is going to do. So, believe me, Natalie, as they say. Don't worry, we're gonna get to the Natalie game. But now, now for the last segment, which, you know, as I kind of suggested, is the healthy dose of Christian nationalism that we are being fed on top of fascism and corruption. And for this segment, we will start with a pretty horrifying development out of the

• 46:36Melissa Murray?

  Ninth Circuit, which is supposed to be some great big liberal bastion, but by a two-to-one vote, upheld one of the Department of Justice's subpoenas that was directed at hospitals that seems designed to harass the hospitals over their provision of gender-affirming care. The subpoenas seek invasive patient information from the hospitals that provide gender-affirming care, seemingly as part of the Department of Justice's request to like persecute trans people and try to find ways to persecute and potentially prosecute hospitals and medical providers who support trans people. So DOJ said that the subpoenas are seeking information in investigation of a federal health care offense. District courts have overwhelmingly blocked these subpoenas, you know, multiple grounds.

• 47:20Melissa Murray?

  Sometimes because they say these subpoenas have an improper purpose or they're done in bad faith. Other times because the privacy interests outweigh whatever the department's interest in getting the information might be, given that there's only a minimal connection to any seeming federal law enforcement purpose. So, Mo, what's your take on this Ninth Circuit case greenlighting the subpoena?

• 47:41Speaker 04

  So I think it's a disaster, but a mitigated one. As you said, there are multiple grounds on which you can quash or limit a subpoena. This opinion was about whether there was an improper purpose. I think it's obvious that there is. The president has made clear that he just wants to expel trans people from society. And the irony of using HIPAA, which is about medical privacy, to go after the medical privacy of trans people in states where they're protected is disgusting. And so I think the Ninth Circuit got it wrong. I hope that the plaintiffs go en banc. And if and when they do, they'll also have a chance to argue the burdensome nature of this, the overbreadth of this, right? So there's arguments left, but it's really not a great look.

• 48:25Speaker 04

  And of course, it once again leaves trans people and their families in limbo about whether they can get medical care without having the boot of the government on their necks. And so it's really, really awful. But I hope that there's a light at the end of the tunnel on this one.

• 48:41Melissa Murray?

  Yeah, there was a really great dissent by Judge Paez, because what the majority basically says is like, what's the big deal? Presidents can have policy preferences about how laws are enforced. But as the dissent points out, like, their preference can't be to ignore the limitations that federal law places on their ability to make these subpoenas, and yet.

• 48:58Speaker 04

  Yeah, like, hold my beer. Of course, they're gonna take this one to the Supreme Court, too, but we'll see.

• 49:02Melissa Murray?

  Right, yeah. But, you know, I think you're right to kind of situate this case as part of like the broader kind of attack on, you know, trans people and trans health care, you know, on that kind of context. I wanted to note that this past week, Keg's Breath confirmed the anti-trans animus of this administration. So wanted to play a short clip of him at a campaign event in Iowa. If you do not want to hear an anti-trans slur, just hit fast forward for 30 seconds right now.

• 49:33Speaker 03

  At the Department of War, we do training, not trannies.

• 49:41Melissa Murray?

  Just like disgusting, gross, hateful rhetoric that, again, confirms what is actually animating so many of their actions. And this same week, you know, since we were talking about like public service, public servants, you know, in the federal government, there was a really moving and I think courageous essay by a trans CIA officer, Julia Curlee, in The Atlantic called "The Wrong Kind of American." And it's just astonishing. It documents her time serving Trump during the 1.0 Trump administration and Vice President Pence specifically. And what's astonishing is they knew she was trans, but as she says, they needed her because she's a fucking good CIA officer.

• 50:23Melissa Murray?

  And it seems she was fired when essentially it got out that she was trans and other people found out because someone may have leaked it to Laura Lumer. And it's just a gutting essay about how this woman continued her service, obviously putting country above, you know, her own kind of personal interests, safety and whatnot, and serving people who went out of their way to target trans people, people in same-sex relationships. And it just paints a very stark picture of what is real public service and who has courage in this situation.

• 50:55Speaker 04

  Exactly. I mean, what a contrast, right? If you were in a national security information, do you want coked-up Pete Hegseth?

• 51:01Melissa Murray?

  Right.

• 51:02Speaker 04

  Or Julia Curlee? I'll take Julia Curlee every day of the week and twice on Sunday.

• 51:08Melissa Murray?

  One last note on development at the court related to Christian nationalism to watch, and that is, the case challenging whether states' public schools can display the 10 commandments is now up at the Supreme Court. So, assert petition has been filed in the case challenging the Texas law that requires 10 commandments to be displayed at schools. The Fifth Circuit, you know what I'm about to say. It is the Fifth Circuit upheld the law, because it is the Fifth Circuit, and everything, including lack of respect for binding Supreme Court precedent, is bigger there. So, there is a directly on point Supreme Court case, Stone versus Graham, from 1980, that invalidated a Kentucky law requiring the display of the 10 commandments at public schools. But the Fifth Circuit opinion was written by Stuart Kyle Duncan, because Stuart Kyle Duncan, who basically said, like, what's the big deal?

• 51:53Melissa Murray?

  This is a poster. Please note that this is a poster that says, "I am the Lord thy God; thou shalt have no other gods before me." Also, the opinion by Stuart Kyle Duncan said Stone versus Graham isn't real law, because the Supreme Court has abandoned Lemon, the Lemon test about, you know, when something violates establishment of religion. And Stone had cited that decision in Lemon. That cannot possibly make every case citing Lemon invalid, but whatever.

• 52:20Speaker 04

  Yep.

• 52:20Melissa Murray?

  Also, the Fifth Circuit said, like, you plaintiffs challenging this law, you can't rely on the Supreme Court's decision in Mahmoud versus Taylor, the case about opt-out rights for parents during LGBTQ inclusive curriculum. I think the Fifth Circuit was kind of like, well, you plaintiffs challenging the 10 commandments aren't Christian nationalists, you know, kind of a paraphrase, but you get the point. But their attitudes seem to be, like, it's coercive for kids to be read storybooks with LGBT characters, but not coercive for them to have to stare at the state's select edited version of scripture. Like, that's called law, you idiots. But now Texas, together with other states, Louisiana, Alabama, Tennessee, are trying to make this happen. And, you know, as a proud graduate of public schools in a community where I was not part of the, you know,

• 53:04Melissa Murray?

  majority faith, it's just so deeply sad and gutting to watch this happen. But the case is now up at the Supreme Court, and I guess my guess is they'll probably take it, but I guess we will see.

• 53:16Speaker 04

  Yeah, I mean, seconding your point about public school, also a minority religious attendee of public schools in the Midwest and South, and I can tell you, it would have felt coercive and exclusionary for me to have to read that every day, not for lack of trying in the states that I grew up in. And I think the other dynamic here, we've sort of been like circling around this, is that oddly, the best way to audition for upcoming Supreme Court seats is actually to thumb your nose at the Supreme Court right now, because even Donald Trump is annoyed with the Supreme Court. So Stuart Kyle Duncan is auditioning, James Ho is auditioning, Greed O'Connor down below is auditioning, right?

• 53:59Melissa Murray?

  Andy Oldham.

• 53:59Speaker 04

  And they are all, they're all issuing opinions in outright defiance of current Supreme Court precedent, because that is actually how you get yourself on the Supreme Court right now, to show your fealty to Donald Trump and the extreme right wing, and not even Supreme Court precedent. So this is just one more example of that. I actually think that the Supreme Court will take this to shoot it down, to show their independence, right? That whole game and song and dance that they've been playing.

• 54:24Melissa Murray?

  Oh, interesting, okay, yeah.

• 54:24Speaker 04

  I think so. I think they will take it to rule against the Fifth Circuit. They have been, you know, decently good at shooting down the worst Fifth Circuit cases, but that's only one more feather in the cap of the Fifth Circuit judges trying to take over. And so that's, I think that's what's happening, sort of one step under the radar here.

• 54:41Melissa Murray?

  Okay. So, I guess, no transition can ever really take us to favorite things, but that is where we are.

• 54:49Speaker 04

  Maybe a catering cart?

• 54:51Melissa Murray?

  Yeah, right, in a catering cart, and that is going to be part of my favorite thing. So my real favorite things, well, the last is going to be a real favorite thing, too, but Phoebe Bridgers' album, Lost Weekend, love that. Just watch Five Star Weekend, terrific. Recommend to everyone, the New York Times piece on third country removals, as well as the segment Kate did last week on Encourage. But my new favorite thing? Jon fucking Ossoff. Let's play that clip.

• 55:18Speaker 07

  And while the sailors on the Lincoln fight his war, while he fruitlessly drains our munitions and oil reserves, the president sleeps through his meetings. He golfs and trades stocks. See, he doesn't want to do the job. He wants to build his ballroom and travel with Natalie on their apparently defenseless flying palace gifted by the Emir of Qatar.

• 55:50Melissa Murray?

  Okay, so I have to say, like, I'm extremely online. I did not know who the fuck Natalie was when this clip came out, but Jon Ossoff knew, because he set off this insane media firestorm, where we all learned so much about Natalie Harp, the president's personal aide. So, now, do we play the weirdest facts about Natalie Harp game? Where we go back and forth?

• 56:18Speaker 04

  Yeah, it's real hard, but there's a lot.

• 56:19Melissa Murray?

  Okay, okay. You're the guest, you can go first.

• 56:22Speaker 04

  So, I will start, so the little bit of background that you need to know is Natalie Harp is dangerously obsessed with Donald Trump.

• 56:28Melissa Murray?

  Yes.

• 56:29Speaker 04

  To the point where other staffers will, like, try to get rid of her on trips, and she just couldn't be gotten rid of. And so, one time, in order to be close to the president, she hid in the trunk of a car.

• 56:42Melissa Murray?

  Yes.

• 56:42Speaker 04

  Another time, to be close to the president while he was golfing, she slept in the women's locker room. I've taken two off the board, I apologize, but-

• 56:50Melissa Murray?

  That's totally fine.

• 56:51Speaker 04

  That's the level of stalkering and single white femaleing we have going on here.

• 56:56Melissa Murray?

  Yeah, she reportedly ran behind his golf cart so she could remain available to him, and she's written super personal letters to Trump that reportedly concern the Secret Service, because they say things like, "You are all that matters to me," and they thank him for being her, quote, "guardian and protector in this life."

• 57:17Speaker 04

  Yeah.

• 57:17Melissa Murray?

  And it's just so fucking weird.

• 57:23Speaker 04

  Yeah.

• 57:24Melissa Murray?

  So fucking weird.

• 57:26Speaker 04

  Yeah, and like, the fake outrage machine on the right has kicked into overdrive, right? And I'm of two minds here, because like, yes, in some ways, Natalie Harp is like a deeply damaged person to be, like, hero worshiping Donald Trump, and ultimately, this is Donald Trump's fault for allowing this kind of relationship to fester, et cetera, right? So like, put that on the table. But, she is a highly paid, highly powerful, adult human being in the federal government, who's like inches from the nuclear codes all day, so she gets treated as such. So, this like, this like, claim that we're attacking a

• 58:08Speaker 04

  vulnerable, young, female staffer with our innuendo about what she's doing with Donald Trump in the catering cart, like, miss me with that. She spends 24 hours a day with the most powerful human alive, often has to wake him up as he's asleep in meetings, she has a lot of power over our lives, and she should be scrutinized as such.

• 58:28Melissa Murray?

  Yeah, she's also reportedly declined a security clearance, which is not something you can decline, but is apparently what she does. And, you know, also on the, like, spare me, the accusations of sexism, like, your Secretary of Defense literally fires officers because they're women, and blocks women from promotions because they're women, like, get over it. Also, I don't really take all of this innuendo to be about, like, they're in some sort of, like, sexual or romantic relationship. She kind of seems to be like his nanny or nurse, like, his sort of comfort pet, which is also weird and creepy as fuck. And, like, it's just a weird situation, and it's just, I'm over it.

• 59:05Speaker 04

  It obviously bothers them way more that he needs a nanny than has a concubine.

• 59:10Melissa Murray?

  Exactly.

• 59:10Speaker 04

  Like, they would love the story that he was having sex with a 35-year-old. He obviously isn't and can't, most likely, and this is way, way worse.

• 59:18Melissa Murray?

  Yeah.

• 59:19Speaker 04

  Yeah.

• 59:20Melissa Murray?

  Yeah. Okay, so that was my set of favorite things. So, what would you like to add?

• 59:26Speaker 04

  Yeah, so, seconding Phoebe Bridgers. I also, I declined to go backstage and meet Phoebe Bridgers the last time I saw her. I declined that.

• 59:33Melissa Murray?

  Seriously?

• 59:33Speaker 04

  Yeah, no, I didn't, of course.

• 59:34Melissa Murray?

  Oh, right. I get it, I get it. I was like, I was first so floored, like, what the fuck?

• 59:39Speaker 04

  But staying on, staying on the music front.

• 59:40Melissa Murray?

  You're never going to be invited back to the podcast.

• 59:42Speaker 04

  So, that's right. No, no, no. Phoebe, I'm available to come backstage anytime. Staying on the music front and staying in your home state of Michigan, I've been wearing through Jack White's new album, please go check it out. It's not exactly recent, came out last month, but it resurfaced this week, because he's in a beef with some no-name country singer, because the country singer, his name is Charlie Crockett, dropped one of his opening acts because they were too satanic. This is like, you know, some MAGA attention play, and Jack White nicely scooped them up and said, "You can open for me instead." And now this country singer is trying to get his 15 minutes of fame by going after the American hero, Jack White. So, all to say that it's re-upped my love for the man, and I'm listening to his new album, you should check it out. And I'll close with where we opened today, which is,

• 1:00:27Speaker 04

  the kids are going back to school next week. And I love my children, we all love our children, but it is time for them to go back and free me of my mornings and afternoons. And so, to all the parents out there, like, making it through, back to school week, good luck and Godspeed.

• 1:00:44Melissa Murray?

  All right. Well, thank you so much to you, Somal, for joining this episode. Again, Somal's at Court Accountability. Please check out their work, which we were discussing in this episode, as well as the work of their partner, True North, and we hope to have you back sometime soon.

• 1:00:57Speaker 04

  Absolutely, thanks for having me.

• 1:00:59Melissa Murray?

  And listeners, now stay tuned for a great conversation that Melissa had with Jesse Wegman about the lost founder, James Wilson, and the forgotten fight for a people's constitution.

• 1:01:11Melissa Murray?

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• 1:01:53Melissa Murray?

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• 1:02:36Melissa Murray?

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• 1:03:20Melissa Murray?

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• 1:04:03Melissa Murray?

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• 1:04:50Melissa Murray?

  Stricties, this summer marks the 250th anniversary of the founding of the United States. And obviously, we here at Strict Scrutiny wanted to commemorate the semi-quinqucentennial of the nation. And there were so many options available to us, so we thought about having a cage fight on Leah's lawn. Couldn't get the permits for that. Then we thought about maybe doing a tall ships parade. We don't have any ships, though, so that was obviously a problem. We thought about maybe creating a fair on the grounds of one of our law schools. Couldn't get permits for that either. And so when all of those options were exhausted, we realized we actually had the perfect commemorative

• 1:05:31Melissa Murray?

  event right here at our fingertips because we had been given advanced copies of Jesse Wegman's recent book, The Lost Founder: James Wilson and the Forgotten Fight for a People's Constitution. And we realized that maybe an interview with Jesse Wegman about the lost promise of a populist constitution would be the perfect way to commemorate America's 250th birthday. So with that, let me bring in our guest, Jesse Wegman. Welcome to Strict Scrutiny, Jesse.

• 1:06:03Speaker 02

  Thank you so much for having me. I'm thrilled to be here.

• 1:06:05Melissa Murray?

  I'm sorry that you're getting short shrift relative to the cage fight and the tall ships. I think we all are second fiddle to such events, but what a backup you are. Like, this is absolutely fantastic, and we're so excited to have you on the show. Listeners, Jesse really needs no introduction, but I am going to give him one anyway. He is a graduate of NYU School of Law, where only the best lawyers go, and he was for many years a member of the New York Times Editorial Board. He is now a senior fellow at the Brennan Center. Much of Jesse's journalistic career has been spent covering the court, legal affairs, and politics, and ultimately culminated in his 2020 book, Let the People Pick the President:

• 1:06:48Melissa Murray?

  The Case for Abolishing the Electoral College. His most recent book, The Lost Founder, focuses on James Wilson, the founder that you may never have known you needed to know, but that's where we'll start today. Who is James Wilson, and why should we know this forgotten founder?

• 1:07:06Speaker 02

  Well, I have the exact same question. Who is James Wilson? And this was something I discovered him while I was working on that Electoral College book. I was in the basement, the sub-basement of the NYU Law Library, actually. This is probably 2018, 2019, so I'm utilizing my alumni privileges. And I'm reading the Madison's notes of the convention to find out where it is that the founders adopt the Electoral College. I was like, how did they do? How did they actually settle on this weird method of choosing the president? And while I'm reading the notes, I keep running into this guy, this long-winded guy from Scotland, who keeps talking about political equality and popular sovereignty and the

• 1:07:50Speaker 02

  importance of people being directly involved in the choosing of their leaders and represented equally. I mean, all of these things that we talk about today are sort of second nature. This guy is talking about 250 years ago in a room that's pretty hostile to those ideas, largely hostile to those ideas. And I see it's James Wilson. I'm like, I think I've heard of him. I don't know if I've heard of him. Either way, how could I be unaware, so unaware of someone who seems so central to the whole story? He then proposes electing the president directly, right? This is his first, one of the first things he says at the convention is, when they're talking about how to choose this new executive of the country, he says, well, it's the people. The people should choose the president directly.

• 1:08:35Speaker 02

  And obviously, as we all grew up learning, the founders were not people who had a lot of trust in the public at large. They were building a government that was in many ways meant to deflect or limit the participation of the regular person. So to read about this guy Wilson saying the opposite was just a shock to me. And then, as I dug into him more and his history, I couldn't believe that I didn't know who he was. And this is what the who is James Wilson part comes in. I was like, I can't believe, I can't believe I don't know him. I went to law school. I write for the New York Times about the Supreme Court.

• 1:09:13Melissa Murray?

  This is neither a failing of NYU Law nor the New York Times. Like, I don't think many people know much about James Wilson. And part of that is that Wilson doesn't leave behind a lot of archival material. So one question for you is, how'd you find him? I mean, like, he's hiding, but there's not a lot of written material. He's not a guy who keeps a diary. He's not like Jefferson, who not only writes voluminously, but has a machine of his own making that makes copies of every letter that he writes. So Jefferson leaves behind an archive of his own. Wilson doesn't seem to be that self-conscious about his legacy, yet his legacy is outsized. So how did you find him here?

• 1:09:54Speaker 02

  This is a, it's a great question, and you really raise a critical point, which is that so many of the American founders saw themselves in that outsized way, right? They understood themselves as world historical figures even at the time, which is an enormous amount of-

• 1:10:10Melissa Murray?

  Which should be a signal to us that maybe something was going on.

• 1:10:13Speaker 02

  Well, there's a lot of hubris in that, and yet, at the same time, they were right, you know? Thank God that they, that they were so full of themselves, because now-

• 1:10:22Melissa Murray?

  We call that a Neil Gorsuch problem. Stock clocks are right at least once a day.

• 1:10:26Speaker 02

  Fair enough. But for biographers of those founders, the ones we know, the Jeffersons and the Hamiltons and the Washingtons and the Madison's, you know, they have a kind of, it's a mixed blessing. They have so much to work from that it's hard to know what to cut. Whereas with Wilson, I had the opposite problem. Wilson, like you say, is somebody who kind of was, although very ambitious and very interested in his own political and legal and financial advancement, he didn't quite understand how to preserve his own legacy, how to build a legacy and preserve it. He cared very much about the principles, the ones that I mentioned, of popular sovereignty, the idea that all people-

• 1:11:07Melissa Murray?

  You know, that people are at the foundation of government. People are the ultimate authority in government. But, you know, he didn't save his letters. He didn't save his speeches. You know, that was left to other people. His son, after his early death, his son had to scramble just to collect what was left. And then, you know, almost a century later, one of his granddaughters delivers this like mess of papers to the Historical Society of Pennsylvania and says, you know, do what you will with these. I don't know what's in there. What happened to be in there was, among other things, the first draft of the United States Constitution, which Wilson wrote. So, so, so he actually, he is this repository, this incredible repository of American history.

• 1:11:50Melissa Murray?

  And yet, he did his best to kind of disappear himself from our founding narrative. So, this book was really as much of a resurrection project, it was an excavation project. That's a great way to put it. So, as you're excavating him, as you implied earlier, he's something of an anomaly, right? He's kind of a radical populist at a time where most of the people around him are elitist, and which is not to say he doesn't have elitist tendencies. He does, and he ultimately becomes quite wealthy. But nonetheless, he maintains this staunch belief in the people and their ability to govern themselves. What made him stand out in this way? And what made him so committed to this idea of popular sovereignty?

• 1:12:34Melissa Murray?

  Was it his hardscrabble upbringing in Scotland, where he attended a Presbyterian church, like far less hierarchical than the Anglican church and the Catholic church? He also attends a Scottish common school, so this is sort of the precursor of what we would know as public education. But that kind of education that was intended to educate everyone in Scotland was unknown in either the rest of Great Britain and certainly in the Americas. So, was that the genesis of his populism? The fact that he was just in these very democratic circles in his early life? Yes. What you just described is the essence of it. This upbringing, he was born into a poor farming family in the lowlands of Scotland.

• 1:13:18Melissa Murray?

  So, that's outside of Edinburgh in the south. And he was raised in, as you described, these very democratic environments, right? And I mean that in the, just in the most general sense, not politically democratic, but democratic in terms of their conception of peoples being treated as equal. So, he went to a school where everyone gets educated the same, right? The Scottish schools are famous at this time for educating all the Scottish children, no matter what station in life they come from. And, you know, that was, that was in order to teach them scripture. But of course, the effect of it is, they make a nation of readers. Scotland is the most literate country, or the country with the highest literacy in Europe at the time. And it had only recently been a fairly backwards nation.

• 1:14:03Melissa Murray?

  So, you have that training. You have the Presbyterian church, which, as you say, is much more democratically structured than the Anglican or the Catholic churches. There, you know, the congregation has votes to elect the presbyters, the leaders. And that's another way in which he's just being imbued from very, very early with these notions that everybody is equal and everybody should have a say in how they are governed. The third element that I would add to that is Wilson's unique training in the, what we now call the Scottish Enlightenment. He went to Saint, he went to Saint Andrews University, which was down the road from his farm in, in Scotland. And he also went to the University of Glasgow.

• 1:14:47Melissa Murray?

  And there, he's studying with the great minds of the Scottish Enlightenment. This is Thomas Reed, Adam Smith, you know, this earlier, a generation earlier was David Hume and Francis Hutcheson. These are the people who, in many ways, defined a lot of modern thought in the West with, you know, ideas about democracy and self-governance and philosophy and society. And Wilson is, you know, all the founders read these guys, but Wilson Right, but he's trained at their feet. He is literally studies with them. He comes to America as a 23-year-old in this, in 1765, completely filled with these ideas that I think really set him apart from the other founders, who are much more, you know,

• 1:15:30Melissa Murray?

  they're warier of the, of the public, they're warier of the rabble. And Wilson is just kind of enamored of them. And he brings that spirit into the new country, and he starts to spread it. He has a kind of Horatio Alger story. I mean, like, he has these opportunities that are created by, you know, mass education that's available to him. So, he gets a great education. He's able to harness a little bit of privilege, like he has a cousin who's able to help him buy some land, and he uses that to like, afford his passage to the United States. He gets to the United States, and he marries up. Like, I mean, part of this, I thought, was an interesting story about the upward mobility

• 1:16:12Melissa Murray?

  of marriage for a guy who's, you know, born, you know, pretty lowly. And he marries the daughter of someone who's actually quite wealthy. She survives her father, and she's a huge heiress. And, you know, he jumps on that, literally. And, like, your, your discussion of their courtship is so, just so interesting, because he's kind of a stalker, right? He's just like, I'm not coming up. That was the word that came to my mind. I didn't put it in the book, because it felt a little bit anachronistic. You did it. Absolutely. He had stopped, there was, there was, it was, today, he would be canceled for that behavior. Today, she would have a restraining order. Today, she would have, exactly. Back then, she had a marriage license, right? Right, right.

• 1:16:54Melissa Murray?

  Well, so she, right, and she says to him, this is this young woman, Rachel Byrd is her name, and I'm glad you focus on her, because, I mean, she does open vistas to him and opportunities to him that are both extremely important to his acceptance into the Philadelphia elite, which is part of what helps him become the major figure in the founding that he is, but also to buying and selling land, right? That's the dark side of all this. Which becomes his downfall. Which becomes his downfall, right? I'm not blaming Rachel for either of these things, but definitely her wealth, right? She's the daughter of a, of an ironworks, you know, a guy who owns an ironworks. And, you know, it's the equivalent of millions of dollars today that her estate is when, when her father dies. Wilson pursues her with just incredible tenacity.

• 1:17:39Melissa Murray?

  She says, no, I'm not the marrying kind. She rejects him again and again and again, and he just keeps writing her letters. And then he writes his best friend, Billy, letters, and he says, Billy, I'm so, I'm just basically so, I mean, it is kind of like, it's a little creepy, right? But he finally, in, in, in a way that we can, we don't have a record of sadly, or that I wasn't able to locate a record of, he wins her over. And part of me thinks like I would say wears her down, but okay. Yeah, fine. Wears her down is, it may be a fair description, but it also, there's, there's a troubling element to that, which is, I would expect, the lesson he takes from that is, if I just push hard enough, I can overcome reality. I can overcome opposition. If I just am persistent and dogged enough and refuse to take no for an answer.

• 1:18:24Melissa Murray?

  And you see that play out in his political life, too. You see that play out in how he attempts to convince other founders of the principles that he believes in, sometimes, often, not successfully. So, it's, it's a really interesting, that relationship is a really interesting proxy in a way for all the other relationships of his life. You know, it, it's a really uniquely American story. You know, someone who is imbued with all of these talents, and then really does meet opportunity. This heiress that he marries, whose wealth underwrites his ambitions. And then he finds himself in the center of a revolutionary generation that is poised to do the unimaginable.

• 1:19:09Melissa Murray?

  And it's actually his logic that fuels the American experiment. So, you note in the book that he writes an essay that is actually radical for the time. So, at the moment, the colonists are struggling with their relationship with the British Crown and Parliament. Parliament has taxed them relentlessly, and they are chafing at it. But they still understand themselves to be subjects of the British Crown and British Authority. They just don't think they should be subjects for the purposes of taxation. So, they are trying to kind of have it both ways, like, we are subjects, but not for this purpose. And he writes an essay that's like, wait a minute, Parliament can't check me, like,

• 1:19:54Melissa Murray?

  Parliament can't check us. Like, we are the people, and government proceeds from the consent of the people. And that's radical. I mean, it's part of the Scottish Enlightenment, but no one else is talking about it. And he writes it, I think he realizes at the time that this is too much for this moment. And so, he puts it in a drawer, and then it surfaces again. It is attributed first to Ben Franklin, and he's like, no, no, no, this is not Ben Franklin. This is James Wilson. And suddenly, he finds himself like, primed for this moment of revolution. Yeah, that's exactly right, is that, he writes this essay when he's 26 years old, which I've been pointing out to people is the same age that Bruce Springsteen was when he wrote Born to Run.

• 1:20:36Melissa Murray?

  So, it, it's in a similar way, it's a kind of summational statement of principle that will carry through his life, right? And it is the, it is the argument that Parliament, the British Parliament, has no authority at all over the colonies. And that, as you say, is an incredibly unorthodox, bold thing to say at the time, 1768. Yes, people are getting upset, we've had the Stamp Act crisis, right? There's all kinds of burbling up of independence energy, but no one is prepared yet to go that far. Wilson writes it, it's actually his mentor who kind of nudges him and says, James, this is too much, don't, don't publish this right now. It's going to destroy your career. It's way too bold. He puts, he puts it in a drawer.

• 1:21:21Melissa Murray?

  Six years later, he publishes it. And yes, it does get attributed to Benjamin Franklin. Wilson and Franklin have this very funny kind of, throughout their lives, their, their lives kind of intersect multiple times in, in amusing ways. But this is, this is one of the first where Franklin gets the credit for this argument, and somebody, maybe even Franklin himself, is like, you know, there's a letter to the editor of the newspaper that published it, and attributed it to Franklin, saying, this isn't by Ben Franklin, this is by the

• 1:21:47Speaker 06

  Scottish guy, James Wilson, right? And that helped make his name. Um, and, and this is 1774 when it publishes. So now, six years on, there is a lot more energy and a lot more openness to arguments for independence, arguments to push back against British sovereignty. And Wilson is the man who's made this argument most clearly. Two years later, less than two years later, actually a year and a half later, Thomas Jefferson is drafting the Declaration of Independence. And he has Wilson's essay, this essay about British

• 1:22:19Melissa Murray?

  Right.

• 1:22:19Speaker 06

  Uh, Parliament on his desk. And we know this because he has copied huge passages of it into his commonplace book, where he keeps quotes that he likes. The essay is 11,000 words long, right? It's not, it's not a brief, like, sort of polemic, you know? It's not a common sense or a summary view like Jefferson. It, it is a legal, it's a legal argument. It's heavily footnoted. It's incredibly learned. It dips into history and, you know, philosophy and all these various things.

• 1:22:47Melissa Murray?

  It's a large view article.

• 1:22:48Speaker 06

  It's a large view article and Wilson is showing off, right? He knows he's smarter than everybody else, so he's showing off a bit. Uh, he's very, he's always prolix. He's always like says more than he needs to say. Um, but, but Jefferson, uh, derives, I think we can, uh, historians going back now a century have really credited Wilson with inspiring the key lines for us of the Declaration of Independence. We hold these truths to be self-evident. Can I just, can I read just briefly that, that passage from the essay? So Wilson says, in the beginning, in the first installment of this essay, he writes, "All men are by nature equal and free. No one has a right to any authority over another without his consent.

• 1:23:30Speaker 06

  All lawful government is founded on the consent of those who are subject to it. Such consent was given with a view to ensure and to increase the happiness of the governed." And so on and so forth. It's not that these, uh, these, that he came up with all these ideas, but he was putting them together in a way that nobody had to that point. And you really hear their echo in the Declaration of Independence, the preamble to the Declaration two years later. So Wilson is right there at his, you know, the youngest, you know, 26 years old, coming up with these principles that become, you know, central to the American experiment.

• 1:24:01Melissa Murray?

  It's almost like we hold these truths to be self-evident. Apparently the greatest sentence ever to be written, according to Walter Isaacson, um, was a heat heat in some ways. Uh, you know, so Jefferson is profoundly influenced

• 1:24:13Speaker 06

  Yes.

• 1:24:13Melissa Murray?

  by Wilson. Um, Wilson, in turn, is one of the signatories of the Declaration of Independence. And then 11 years later, he is a signatory to the Constitution. He is one of only six framers to have signed both documents. And he, I think, maybe among all of the framers, is the only one who really seems to grasp the relationship of each of those documents to each other into a greater American project that is about to be launched. How does he put the Declaration and the Constitution into conversation with each other? And what is he able to discern about this country and its government and its values

• 1:24:56Melissa Murray?

  that his peers don't quite grasp at that moment? And, and maybe will not grasp for generations?

• 1:25:03Speaker 06

  I love that you bring this up because it was one of the most fascinating things I learned in writing the book. And I, I credit the scholar at University of Pennsylvania, Bill Ewald, uh, who's one of the leading Wilson scholars in the world for making this connection. But Wilson, unlike any other founder, saw that the Declaration of Independence was the ultimate expression of the idea of popular sovereignty, right? This idea that the people are in charge and they may change their government whenever and however they please. This is Wilson's guiding light, right? Throughout his life. It, it is what embodies his essay in seven, that he writes in 1768. It's all the way through to his law lectures in 1790.

• 1:25:46Speaker 06

  And then to the, the most important Supreme Court decision he wrote, uh, a few years after that, Chisholm v. Georgia. But where he connects it is, you know, that document for most of the founders was, was primarily important for its, its list of grievances, right? That is a document where, you know, it is, it is explaining why we are separating from Britain. And so what matters is the reasons for separation, not this other part that says, you know, people are equal, right? That's something that we hold to today quite fiercely, uh, at least in theory. Uh, but, but it was not something that came up among the founders. You know, Professor Ewald goes through all of their records, their speeches, their letters, their, uh, you know, all the documents pertaining to their lives.

• 1:26:30Speaker 06

  And there's no mention of self-evident, uh, "All men are created equal." You know, all the quotes that are, are central to us today, they didn't, they didn't cite. They didn't seem interested in them. Wilson alone has that, he sees the connection. And when he is at the Constitutional Convention 11 years later, he insists that the Declaration is the foundation for everything. He pulls it out on the floor of the convention and starts reading from it, right? From the beginning, from the preamble, right? The part that he inspired. And he's reading to his fellow framers and saying, "This is what we are doing here. This is a people's document." So he says, he puts the words "we, the people" at the beginning of the Constitution.

• 1:27:11Speaker 06

  And that is, that is importing the spirit of the Declaration of Independence, that popular sovereignty spirit into the very beginning, the very opening of the Constitution to say, "The people ordain and establish this document and it is the people's document" front to back.

• 1:27:29Melissa Murray?

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• 1:29:31Speaker 01

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• 1:30:06Melissa Murray?

  There's this tension that he's constantly surfacing at the Constitutional Convention because there are those among the framers who understand the relevant unit of governance to be the state, right? The states, um, all 13 of them. And he's like, it's not about the states, it's about the people, right? It's like, and, and so he is pushing for popular representation in Congress. He is successful in one chamber of Congress, the House of Representatives, is popularly elected. He is not successful in getting the Senate to be popularly elected. Like this becomes sort of state-based representation where the smallest states that are least populous have the same power as the most populous states. And this really chafes at him.

• 1:30:49Speaker 06

  Yeah.

• 1:30:50Melissa Murray?

  But, but he is very much like the people, that's the unit. That, that's what we should be thinking of. But there are these other moments in the Constitutional Convention where Wilson is really confounding and, and almost mired in his own contradiction. So he's totally committed to popular sovereignty, even after almost being killed by an angry mob. So you write about the siege on Fort Wilson, his home in Philadelphia. And even after he's almost killed by this angry mob, he's still like, I'm all for the people. So he's deeply committed to popular sovereignty. He believes in equality. And yet, he becomes the person who proposes what becomes the Electoral College system for presidential elections.

• 1:31:35Melissa Murray?

  He does that as a compromise when it's clear that he will be unsuccessful in persuading his colleagues to popularly elect the president. He's also the person who endorses and proposes the three-fifths clause, which, you know, the, the idea of enslaved persons counting as three-fifths is not new. But he is the one who offers it up as a compromise to the southern states when they're trying to figure out the representation arithmetic of the country and how to deal with the problem of slavery. And in doing so, he kind of entrenches minority rule, at least in presidential elections, and certainly slavery in the Constitution itself.

• 1:32:12Speaker 06

  It's one of the great ironies of his life that he is in, in, at least indirectly, but significantly responsible for two of the provisions of the Constitution that we look back on today as the most anti-majoritarian, the most anti-egalitarian, right? Um, and obviously the most morally profane in the, in the case of slavery. Just to very briefly touch on each of those, the idea for the Electoral College originates with him and it's the day after he had proposed popular election for presidents and there's cricket.

• 1:32:42Speaker 02

  Gets in the room, right? Everybody's looking around. They're all feeling pretty uncomfortable. They're like, why are we talking about this? George Washington's sitting right there. You know, Washington is the president of the convention and he does says almost not a word for the whole summer. But his very presence, it just it pervades the room and influences the way the delegates are thinking about forming this new government. They knew that if they had a leader, an executive, it was going to be him. So they're very uncomfortable with talking about how he's going to get chosen. Wilson gets virtually no buy in on a popular election. So he say, James, go home, come up with something better. He comes back the next day and he proposes this idea of these electors who are sort of an intermediary step between the people and the executive.

• 1:33:26Melissa Murray?

  Middleman, yeah.

• 1:33:27Speaker 02

  Yeah, it's it's four months later that they actually adopt what we today refer to as the Electoral College. But it was almost identical to the idea Wilson had proposed in early June. So that's that's that irony. And then, of course, as you say, three fifths, you know, I I was trying to address this in so many ways in the book. And I eventually had to pull it out and make it a whole separate chapter. Because there's just no way to grapple with Wilson's inconsistencies here. His willingness to countenance human bondage. You know, when everything else about his life seems to augur against that. So I, you know, I've had people say to me, well, don't be presentist. Don't, don't, don't apply your 21st century values to this guy in the 18th century.

• 1:34:12Speaker 02

  And I say, I'm not applying my values, I'm applying his values. Like, he, he at the time was so clear about the importance of consent and people being in control of their own destiny and human equality. Like, those were his values. And he very well could have spoken up more aggressively about the evil of slavery, as many of his peers did. And among those peers are slaveholders themselves, right? I quote in the book from Thomas Jefferson and from George Mason and from Luther Martin. People who, you know, Madison, people who hold slaves, in some cases, hundreds of people in bondage and who are who are very clear eyed about the evil that they are perpetrating. Wilson could never bring himself to speak so clearly.

• 1:34:57Speaker 02

  And I found that to be a real moral and political failing on his part. I don't, I don't harbor any illusions that he could have, you know, single handedly kept slavery, you know, ended slavery. But you're right, by by introducing the three fifths clause, as he did in the middle of the summer, to placate the southerners who were threatening to walk away from the convention if they didn't get credit for their slaves. He was placing the the union and the establishment and the cohesion of the union, the American Union, above the human rights and the and the equality of, you know, what would become millions of enslaved Africans brought to America. It was just, it was a deal that many of them made, some of them more explicitly than others. He wasn't a slaveholder, of course.

• 1:35:42Speaker 02

  He, you know, he did have one man he kept named Thomas Purcell. It's unclear exactly what the relationship was, but he was certainly at at the least an indentured servant. And yet he couldn't bring himself to to speak out against it. And I was, I'm, I was really upset at him for this. I was, that's why I did a whole chapter and I was like, James, what, why can't you speak out more?

• 1:36:03Melissa Murray?

  What are we doing here?

• 1:36:04Speaker 02

  Yeah, what are we doing here if if we're not arguing to end this this nefarious practice as the other founders described it? So, you know, in the end, I think it really was that. It was that he, in his hierarchy of of sort of urgency, creating the union, having a stable and coherent cohesive union was more important than ending slavery. He says, hey, I'm, I don't like slavery. Uh, we did the best we could in the in the convention. He tells this, you know, he says this at the ratifying convention in in Philadelphia. A few months later, he says, but we we did the best we could. It wasn't enough, but you know, I I hope we've laid the groundwork for the eventual end of slavery. But, you know, that's, that's kind of cold comfort, you know, at the time.

• 1:36:47Melissa Murray?

  I mean, it's it's kind of a slavery apologia, like many of them engage in it. And to be fair and generous to James Wilson, um, there is something of a modernity about him that is, I don't think glimpsed in the other founding fathers, notwithstanding his very complicated and, you know, and maybe cowardly stance on slavery. But he he is much more forward thinking about these questions of popular sovereignty, about who should be included than any of the other founders. I mean, like, these are people who are elitist. And and he too is an elitist, but not quite in the same way.

• 1:37:27Melissa Murray?

  And and he's much less wary of the common man than some of his contemporaries. He didn't succeed in persuading his contemporaries of the value of popular sovereignty. But he does lay the foundation for what comes later, generations later. So Wilson's thinking is cited by the Supreme Court in cases like Reynolds versus Sims, which espouses the principle of one person, one vote. His views also underwrite the Electoral College reforms of the 1960s and the unsuccessful attempt to abolish the Electoral College, which is actually interesting. Like, you know, he is the architect of the dismantling of the thing that he is the architect of.

• 1:38:13Speaker 02

  It's true. I mean, you're right.

• 1:38:15Melissa Murray?

  He really is a person of incredible contradiction, but also a person who seems ill suited for his own time.

• 1:38:22Speaker 02

  Oh, my God, absolutely. And I I wonder if he had lived longer, if we could have seen his reaction to some of the the development of the country that he had had such a central hand in creating. The way that, say, Madison, you know, Madison and Jefferson and Adams, they got to see it. They got to see Madison lived 50 years after the Constitution, right? That's an incredible stretch of time. He got to watch these theories play out. And interestingly, Madison starts coming more to Wilson's view of things over those decades. When he, when he sees the country in practice, he says, oh, right. Majority rule really is the only way to run a republic. Uh, this is something that Jefferson comes around to also, right? It's, it's not like that they hadn't thought of it at all before, but they were more wary of it than Wilson was.

• 1:39:05Speaker 02

  Wilson was there from the beginning and he had no question about it. You know, it's, it's interesting. I'm glad you brought up the the Supreme Court in the 1960s because Wilson had been essentially ignored by the court. I think I note in the book that 100 years after he died, he was cited more in Supreme Court opinions for the cases in which he was involved, the the land, the land ownership cases in which he was involved as a plaintiff or a defendant than in than for his own contributions as a Supreme Court justice. You know, he sat on, he was appointed to the first Supreme Court by George Washington. He's the greatest lawyer in the land. He gives law lectures that define American law for generations. And yet he kind of disappears, except in this kind of pathetic and, you know, in the in in his financial entanglements.

• 1:39:50Speaker 02

  But then, in the 1960s, uh, the court, in its, in its decisions in the one person, one vote cases, which, to be clear, these transformed American society, right? And government by requiring that all legislative districts and all congressional districts be of equal size. That that is Wilson's central idea is that people need to be treated the same for political purposes, no matter where they live. And it's not fair to give 10,000 people in one state the same amount of power as 40,000 people in another, right? Or in a district. So when the court did that, they cite Wilson, right? Wilson is their primary source, their primary authority for the argument that all people everywhere need to be treated equal.

• 1:40:34Speaker 02

  That's an amazing vindication nearly 200 years after he first started making that argument. And so it's kind of exciting to see it in the Supreme Court cases of of the early 1960s. I just, I wish he could have experienced a little more of the country. But he dies so so soon after the founding that we just, we never get to see that.

• 1:40:54Melissa Murray?

  And his death is the opening of the book, like much of the book is a flashback in many ways. But he dies in, I think, really problematic circumstances. So he is on the run from creditors. He dies in the back room of a North Carolina tavern, um, on the run and a fugitive from those to whom he owes money. What do you make of that? Like, I mean, like, so land speculation was a big part of his American journey. Maybe not surprisingly, like a country that is like an expanse of land and the opportunity to completely remake yourself as the son of hard scrabble Scottish farmers into a member of the elite.

• 1:41:39Melissa Murray?

  I think one way in which you could characterize it is that he falls prey to the worst excesses of America, even as he is the architect of some of its greatest virtues.

• 1:41:50Speaker 02

  It's, it's, it's absolutely true. And he he's a classic tragic figure in that sense in that his, everything is tangled up together, the, you know, the best and the worst of him. And some historians have, I think, very smartly tied it all back to his training in the Scottish Enlightenment. You know, Scotland connected virtue and commerce. The Scottish thinkers saw virtue and commerce as being inextricable from each other, right? And whereas many other thinkers of the era saw virtue as something that was in opposition to commerce. Commerce reflected the baser parts of our personality, right? The, the, the, the market side of things. Wilson comes to America, I think, filled with that notion that it's all part of the same energy.

• 1:42:32Speaker 02

  And he ends up becoming this land speculator with a recklessness that none of the other founders approached. They're all land speculators, right? Because that's what wealthy men did then and do now. And and this is another way in which he reflects some.

• 1:42:49Melissa Murray?

  Modernity and beyond that of his fellow founders. But he gets so entangled in the land selling and buying and flipping business that he owns four million acres near the end of his life in the early 1790s. This is at a time when he is a sitting justice of the Supreme Court. And he is arguing before Congress, he's writing memos to Congress as a sitting justice about the importance of how they, you know, policies that they enact regarding land ownership and land sales. You know, I mean, say what you will about the ethics of some of the current justices. This is breathtaking to see. And I think it was sort of mortifying to some of his colleagues on the court. Wilson was the leading lawyer in America.

• 1:43:34Melissa Murray?

  He had, you know, he had been appointed to the court based on that reputation, but he did not get the job he wanted, which is chief justice. He had written a letter, he had written a personal appeal to George Washington before he even took office, saying, Mr. President, you know, I think I'm, I think I deserve this seat. And, you know, he had just created. Giving Brett Kavanaugh. He had created the office just a few years earlier. And now it's like, it's my, it's my seat. Obviously, I'm, I'm the only person for it. Washington refuses to appoint him. And I think it's pretty clear from letters between some of the other founders that I quote in the book, that one of the reasons, if not the reason, that Washington declines is because of Wilson's financial situation.

• 1:44:18Melissa Murray?

  So six years later, seven years later, after he's appointed to the court, as you say, he is on the run. He gets thrown in jail not once, but twice. He gets thrown in debtor's prison because he has gone bankrupt and he can't pay back his creditors. We're talking about the equivalent of millions of dollars of debt today. So these are not small amounts of money. And Wilson is in major trouble. He's the only justice ever to date, ever to have seen the inside of a jail cell. And. To date. He, he, he gets bailed out by his son from his second stint in jail. And he goes on the run. He goes down to coastal North Carolina, to this town, Edenton, where one of the other Supreme Court justices, James Iredell, had a home.

• 1:45:03Melissa Murray?

  And he goes to this tavern by the harbor and he hides in the back room of a tavern. He basically lives there in the back room for more, almost a year. And he eventually contracts malaria, which was something that was endemic to the region at the time. And late summer and fall, the mosquitoes would just, would descend. And it's a horrible way to die. And he gets malaria in the summer and dies in late August of 1798. This is even, you know, he predeceases even George Washington. So he dies very early in the American experiment. I mean, not even barely a decade after the Constitution is ratified. And he's been on the Supreme Court for about nine years at that point. And suddenly he's gone, right?

• 1:45:48Melissa Murray?

  He's the, one of the leading founders. He's the most respected legal mind in America. He's one of the wealthiest lawyers in America. And he dies in like rags in the back room of this tavern. So his fall from grace is so shocking and so kind of bracing when you think about what he had contributed to the country. Nobody wants to even, there's no funeral, there's no obituary, there's no, there's no public recognition of his death. I think everyone by that point had grown so sick of him, they were so ready for him to be off the stage, that his erasure is kind of locked in at that point. So it is a stunning end to what had been a brilliant and glittering career.

• 1:46:32Melissa Murray?

  And as you suggest, it might be the case that James Wilson, if he were here today, would not look askance at the prospect of Supreme Court justices and the private jets of billionaires, like maybe wouldn't care about ethics reform. Do you think he would be interested in other species of court reforms? Like, for example, you have made the proposal that justices should be limited to 18-year terms, where they then rotate off in the way that lower federal court appellate judges do. And, you know, simply take senior status. And that would be a congressional fix that would perhaps lower the temperature on judicial appointments and give each president the opportunity to appoint at least one or two justices in each term.

• 1:47:17Melissa Murray?

  How do you think he would have regarded the prospect of Supreme Court reform and a reform like that? That's a really interesting question, you know? I feel like it's hard to know, based on his writings, what he would have said about that specific reform of term limits. What I can say is I think he would have been all in on the fact of reform and that people should be able to change their government when they please. If it's not, like, it shouldn't be this hard, right? He was, he was so much of an advocate of the ability of the people to be in charge of their government, that the idea that you would have a court that was essentially immune from being changed, a court that was locked in for,

• 1:48:00Melissa Murray?

  in many cases, as we, as we're watching right now, generations, and, and making it almost impossible to, to like, scale back their aggregation of power. I think he would be all in on, you know, that people absolutely have a right to change that immediately if they want to. And whether the solution was term limits or a larger number of justices or whatever it might be, I think Wilson would be a strong advocate that the people can do that and they can do it immediately. What do you think he would think of the current electoral or political moment? The distortion in the House of Representatives through partisan gerrymandering? Do we have majoritarian government anymore?

• 1:48:45Melissa Murray?

  And what would he make of the prospect that we might not? So Wilson is, is, you know, his fundamental principle is people are equal and a majority of them make the decisions that govern us, right? He says that again and again at the convention. To him, the biggest abomination, the biggest violation of those principles is the Senate, right? We look back on the convention and we look at slavery. We look at the, you know, the dirty deals that allowed slavery to survive. And that's absolutely worth all of the condemnation that we bring to it. But for Wilson, and also for Madison, you know, the two of them are really hand in hand on this point for a lot of the convention. It's the Senate. The Senate is the biggest blot on the Constitution.

• 1:49:30Melissa Murray?

  And Wilson says this, he says, he can't believe that they are going to establish a branch of government that treats states as equal, not people. This is what I said earlier. He says, how can you treat 40,000 people in one state as the same as 10,000 people in another? He says, this is magic, not reason, right? And at one point, when they're debating the Senate and he's realizing he's going to lose this fight, right? Because there's too many people who care about their state power. They've had the state power through the Constitution 1.0, the Articles of Confederation, where all the states have an equal vote. That Wilson saw, as many of the other framers did, was the fundamental problem with the Articles of Confederation.

• 1:50:14Melissa Murray?

  It was why nothing could get done. And so Wilson is like, wait a minute, we came here to fix that problem and now you're just going to import it into the new government? He says, this would be a fundamental and a perpetual error that will end in disease, convulsions and death, right? That was how much he hated the Senate. So I think Wilson today would look at the Senate, which by the way, is far more unrepresentative now even than it was in 1787, right? At least then, the difference between the largest state and the smallest state was something like, what, 10 to 1, 15 to 1, something in that range. Today, it's 80 to 1. It's like California and Wyoming is. Yeah, they take the obvious ones. California is 40 million people, Wyoming's what, 5, 600,000? 80 to 1.

• 1:50:59Melissa Murray?

  Like, that discrepancy, that violation of majority rule is at the core of so much of our national ills today. And I think Wilson would, would, would look at it and say, I told you so. I warned you this was going to happen, right? So, you know, we can talk about the Electoral College until the end of time. We can talk about gerrymandering in the House, which also obviously is making a House that is in theory, based on proportional representation, far less so. But the Senate, from the very beginning, the very principle of the Senate is what infuriated him so much. And I think he would say, that was where you went wrong. And I think many of us might agree. It's such a gift, Jesse, to have this book in this moment, to resurrect James Wilson

• 1:51:43Melissa Murray?

  in all of his contradictions. I mean, because he does seem like someone who is meant for this particular moment, even if he was out of step with the moment that he occupied. The book is absolutely fantastic. It's really a pleasure to read. And you learn so much about the country, its history, and these two documents that he puts in conversation with each other. And ultimately, a promise that is unrealized, both in his own life and in the life of this country. So the book is called The Lost Founder: James Wilson and the Forgotten Fight for a People's Constitution. And the author is the incomparable Jesse Wegman. Jesse, thanks so much for joining us today. Thank you, Melissa, so much. It's really been a pleasure.

• 1:52:27Melissa Murray?

  This episode was also due in large part to the work of Ella Wade, a Brown University student who is in the class of 2029. Many thanks to Ella for her help with all of this. Thanks again to Jesse Wegman for joining. And one last thing before we go. We want to hear from you. Whether you've been listening to Strict Scrutiny from the beginning or just recently joined, we want to know what you love about the show and what you'd like to see more of. This short survey will help us better understand what matters most to Strict Scrutiny listeners, including your favorite segments and what new content or experiences you might be curious about. Your feedback will help us think through the future of Strict Scrutiny and make sure anything we build is something you genuinely want. Go to crooked.com/strictsurvey. It takes just a few minutes to share your thoughts with us. Kate will be steering the ship next week.

• 1:53:21Melissa Murray?

  Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Raul and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt Degrope, Ben Heathcote, Johanna Case, Kenny Moffett, Adam Lippert, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

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