Jingle Bells, the Fifth Circuit Is Hell

Leah, Melissa, and Kate cover some breaking news before recapping last week’s SCOTUS arguments. They also touch on some lower-court opinions and court culture including the Fifth Circuit going buck wild (yet again), KBJ’s Broadway debut, Mitch McConnell’s never-ending hypocrisy, and TikTok’s fate in America. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:02Speaker 00

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

• 0:13Speaker 01

  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 or fall next."

• 0:44Melissa Murray?

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

• 0:53Kate Shaw?

  And I'm Kate Shaw. And we've got a jam-packed episode for you today. First, we have a little Strict Scrutiny news to let you in on, or maybe to remind you of. We will then cover some breaking news and then recap last week's arguments. We'll briefly cover recent opinions and resolutions of pending cases, and we will bring it home with a little court culture.

• 1:09Melissa Murray?

  First up, a little Strict Scrutiny tea. As you know, listeners, we are big, big readers. We read a lot of books, but the one book we cannot wait to add to our bookshelves next year is from Strict Scrutiny's own Leah Litman. Yes, you heard it right.

• 1:27Kate Shaw?

  That's right. Not just readers, also writers.

• 1:29Melissa Murray?

  Yeah. One writer. Well, there's a lot of reading in the writing, but like, reading in the drag queen sense, so, you know, little both and.

• 1:38Kate Shaw?

  In all the senses.

• 1:39Melissa Murray?

  Yeah.

• 1:40Kate Shaw?

  Yes.

• 1:41Melissa Murray?

  All to say, the library is open because our girl Leah is about to be a published author. Simon and Schuster, I know you've heard of them, will publish her book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes, on May 13, 2025. So, put it down in your calendars right now so you don't miss your chance to get your copy.

• 2:02Kate Shaw?

  But don't just put it down in your calendars. Order, preorder, at least one copy. Ideally, three to five. Super fans should consider double digits.

• 2:11Melissa Murray?

  That means you Sam Alito. Or you could send him, write a Grace copy. Harlan Crowe will be sending it to Justice Thomas. I'm pretty confident.

• 2:21Kate Shaw?

  That's true. You can send your friends, lovers, enemies, a copy. All of these things can happen, but do not wait till May. Put your orders in now. So, the official Simon and Schuster website has this to say about Leah's book. Quote, "With the gravitas of Joan Biscupic and the irreverence of Ellie Mestall, Leah Litman brings her signature wit to the question of what's gone wrong at one First Street. In Lawless, she argues that the Supreme Court is no longer practicing law. It is running on vibes." Oh, my gosh, I love making Leah listen to us read this. It's the best.

• 2:49Melissa Murray?

  Very uncomfortable.

• 2:50Kate Shaw?

  I'm going to finish it.

• 2:51Melissa Murray?

  The love child of Joan Biscupic and Ellie Mestall is this book.

• 2:55Kate Shaw?

  Leah Litman, or this book at least, yes. I'm going to finish reading the Simon and Schuster website. So, they go on to say, "By vibes, Leah means legal-ish claims that repackage the politics of conservative grievance and dress them up in robes. Major decisions adopt the language and posture of the law, while in fact displaying a commitment to protecting a single minority, the religious conservatives and Republican officials, whose views are no longer shared by a majority of the country." So, this love child, this podcast in book form can be yours, starting in May. Would read, 10 out of 10.

• 3:29Melissa Murray?

  This is the Luigi Mangio mugshot of books, like, hot. Is that a compliment?

• 3:34Kate Shaw?

  Yeah. Not sure.

• 3:35Melissa Murray?

  Have you seen that mugshot? Right, like, okay, okay. No, I understand filling it in with hot. I am not condoning the con, Doug, but I've never seen a glamour mugshot like that way. Like, this book is on that level. Okay. Well, I appreciate that.

• 3:49Kate Shaw?

  Hot, but not murderous.

• 3:50Melissa Murray?

  Right.

• 3:52Kate Shaw?

  Anyway, as I said at the outset, pre-orders are available now. We will put a link in the show notes, but you can go to the Simon and Schuster website. You can go to bookshop.org. You can go to amazon.com. There will also be an audiobook, so that will be an option as well.

• 4:05Melissa Murray?

  All right. So that's our Strick's scrutiny tea. Now for a little breaking news. We always love it when the court makes sure that Leah has enough gas in the tank for a sequel. And so it is with great pleasure that we alert you to some news involving our favorite friend of the pod, one Samuel A. Alito, who has been back on his hustle dissenting from a denial of certiorari in PPOC versus Eau Claire School District. The case involves a challenge to a Wisconsin school district's guidance for supporting trans students. The policy instructs schools to support students when appropriate or necessary with respect to restroom use, athletic participation, and processes to facilitate living in accordance with their gender identity.

• 4:50Leah Litman?

  A group of parents challenged the policy on the ground that it violated the fundamental right of parents to raise their children in the manner of their choosing. Specifically, the parents argued that the policy encouraged students to transition and encouraged schools to keep parents in the dark about their children's gender identities. The school district argued that this characterization of the policy was misleading, noting that while the policy instructs schools to create gender support plans, those plans were part of the student's permanent school record and therefore always available to parents and guardians. But I just, I so appreciate that the week after Sam Alito cannot give two shits about the parents of trans kids, he goes all in on the parents of children and those parents,

• 5:35Leah Litman?

  they have rights when they don't want their kids to be transitioning.

• 5:37Melissa Murray?

  You're getting ahead of yourself. You're getting ahead of things.

• 5:40Leah Litman?

  It's just incredible. It's incredible.

• 5:42Melissa Murray?

  It is. We're going to get there, though. So all to say that this case was presented for court review and the court declined to do so. And it's really important to understand the procedural posture here. The lower court never got to the substantive questions here about whether or not this policy violated the fundamental rights of parents as protected by the law. Liberty interest in the 14th amendment because they determined that the parents who brought the challenge lacks standing because the policy had never affected them. They did not have students in the schools who were trans or who were implicated by the policy. And so at this point, I felt like staring in 303 creative, but I'm glad that some lower courts haven't forgotten this whole jurisdictional wrinkle that you have to observe. In this case, the

• 6:27Melissa Murray?

  Supreme Court hasn't exactly forgotten those jurisdictional wrinkles because a majority of the justices agreed that standing was still a thing and they rejected this petition for certiorari on standing grounds. And some justices took that personally.

• 6:40Kate Shaw?

  So Justice Kavanaugh would have granted the petition. And as Leah was just alluding to, so would Justice Alito have. And in fact, Justice Alito wrote a dissent from the denial of cert, which Justice Thomas joined. And it was basically a Fox News inflected rehash of these parents' arguments that the schools were encouraging gender transitions and keeping that information from parents. Obviously, tons of tension between this concern and the total lack of concern on display for the parents of actual trans kids in Tennessee.

• 7:13Leah Litman?

  It's seriously like he just pulls up ChatGPT and asks, how can I be hypocritical based on what I said last week this go around? It was just, the timing was art.

• 7:26Melissa Murray?

  There are lots of justices here who have things to say that are a little inconsistent. So for example, one thing that we ought to note here is this fundamental right of parents to raise their children in the manner of their choosing is nowhere explicit in the text of the Constitution. This is one of those unenumerated rights that is viewed as fundamental because it is a kind of human right that precedes the state. The state can't give it to you because you already have it by virtue of being human. And it's just really nice to see justices Alito and Thomas out here supporting at least this species of substantive due process liberty. Doesn't work for them in the context of abortion or same sex marriage, but right here, this is where it counts. And I just want to say, maybe that's a bright spot for us.

• 8:12Melissa Murray?

  Not for me, not for thee.

• 8:15Kate Shaw?

  That's right, yeah. And even, but to Leah's point, it's, you have to slice it even more thinly because it is for some parents and their choices for their kids.

• 8:23Melissa Murray?

  Parents who don't want their kids to transition.

• 8:27Kate Shaw?

  A pretty, or even to be around kids who might be. I mean, it is a really narrow slice of liberty that they're willing to sign on to. But you're right, it is a kind of liberty, not enumerated anywhere in the Constitution. So I suppose we should give them that. But I do think that these writings certainly do suggest that if and when the right set of plaintiffs, not like the plaintiffs in Scremety, the Tennessee case, but the aggrieved parents here, only somehow able to manufacture a stronger standing claim, materializes, this case will be back at SCOTUS and we very much know where two at least of the justices will be on this issue. So the court didn't take this case up, but that does not mean the question is not coming back.

• 9:08Melissa Murray?

  It's definitely coming back. Oh, yeah. All right, speaking of coming back, we're coming back to these new Trump cabinet picks. Justice Alito wasn't the only one making a strong bid to be included in Leah's lawless sequel. The incoming Trump administration is also going to have a bite at the apple. Last week, President-elect Trump announced that Harmeet Dilan will be his pick to be the Assistant Attorney General for Civil Rights. The Civil Rights Division of DOJ is the one that enforces voting rights, the one that investigates police departments for police brutality, and enforces federal anti-discrimination laws. What could go wrong?

• 9:47Leah Litman?

  So Dilan is well-known in Trump world. As a lawyer, she was co-chair of Lawyers for Trump, a group that in 2020 filed a number of election challenges on behalf of candidate Donald Trump. She's especially well-suited to lead the Civil Rights Division, according to Donald Trump, because she has made a name for herself, quote, "taking on big tech for censoring our free speech," that's capital free speech, comma, "representing Christians who were prevented from praying together during COVID and suing corporations who use woke policies to discriminate against their workers," end quote. The new civil rights.

• 10:22Melissa Murray?

  You heard it here first.

• 10:23Kate Shaw?

  In other breaking news, we wanted to mention Luigi Mangione in the case of the ghost gun. So we've already alluded here to the principal suspect in the killing of the United Healthcare CEO, Brian Thompson. Mangione, the suspect, was apprehended last week after a days-long manhunt. He was apprehended in an Altoona, Pennsylvania McDonald's. And while many individuals, as Melissa referenced earlier, were transfixed by Mangione's strangely kind of glam shotty mugshot.

• 10:50Melissa Murray?

  Sultry, sexy.

• 10:51Kate Shaw?

  It was. We were transfixed by another development in the case, which is that apparently the gun that Mangione allegedly used in the fatal shooting was a ghost gun made with a 3D printer, which should sound familiar to listeners to this podcast.

• 11:07Melissa Murray?

  Because you know, currently pending before the United States Supreme Court is a case, Garland versus Vanderstock, which considers whether ghost guns are firearms within the meaning of the federal statute that regulates firearms. Now, after this shooting, I ask you, is that even a question? Are ghost guns firearms? It seems that they can definitely do firearms things. And all of this to say is that I think we are really looking forward to how the court's gun nuts are going to contort themselves to figure out a way to exclude ghost guns from the ambit of this statute when this case is finally decided. So watch this space.

• 11:45Leah Litman?

  Although I have to say, there is a chance they are going to end up at the right place in this one particular case.

• 11:51Kate Shaw?

  Yeah, even without this. Yeah, that whole argument, partly because Prelogar was just so virtuosic, it did actually seem as though, even though we were pessimistic going in, they were maybe going to allow this regulation to stand.

• 12:01Melissa Murray?

  Well, here's the dream team we didn't see coming. Elizabeth Prelogar, Luigi Mangione, changing hearts and minds.

• 12:07Kate Shaw?

  No one saw that coming.

• 12:09Melissa Murray?

  No one did.

• 12:10Kate Shaw?

  One more piece of breaking news, which is that former podcast guest, current North Carolina Supreme Court Justice and candidate for that court, Allison Riggs, has, after two separate recounts, narrowly defeated her Republican opponent, Jefferson Griffin, who is a Court of Appeals judge in North Carolina, which means she should remain on the North Carolina Supreme Court.

• 12:30Leah Litman?

  It's usually how those elections work.

• 12:32Kate Shaw?

  Typically. If you win more votes, which in this case she did by a very narrow margin. So there have been two separate recounts and she has still won by around 700 votes, which really calls to mind, Leah, you reminding listeners how close these elections in North Carolina specifically have been, right? This really drives it home. So you would think, close, but she won. End of story. And yet, her opponent seems not to get this because even though the State Board of Elections has, following those two complete recounts, ruled against this outlandish set of challenges, he is mounting to disqualify 60,000 votes. He has yet to concede and he may yet try to take those arguments to the North Carolina Supreme Court, the body he is vying for a seat on. We don't know as we record this on Thursday afternoon.

• 13:15Leah Litman?

  You mentioned the challenges being outlandish. The board ruled, among other challenges, against disenfranchising military and service members who did not provide a voter ID when they cast their ballots. So this is-

• 13:30Kate Shaw?

  But that's what he's asking to do, right? He's trying to disqualify those votes, among others. It is wild.

• 13:35Leah Litman?

  This is a shameful effort. I hope it fails, but it speaks to the ripple effects of election denialism in this country, which we are going to be feeling for years to come.

• 13:47Kate Shaw?

  Absolutely.

• 13:47Melissa Murray?

  It also speaks to the incredible efforts that were made in North Carolina to turn out the vote. Like, there were really important local efforts to turn this out in particular counties and seems like it paid off, even though the win was a narrow one, it was a win.

• 14:03Leah Litman?

  Yep.

• 14:03Kate Shaw?

  It did. And but that's exactly why this stuff is so pernicious, right? So if people do see how hard everyone worked to turn out enough votes to actually eke out a win for Riggs and he manages to use these bad faith arguments to somehow get onto the court anyway, it is understandable that people begin to lose faith in democracy. And you know what? Maybe that is the point.

• 14:23Leah Litman?

  Yeah.

• 14:37Leah Litman?

  On that bright note, on to argument recaps. So, the court heard arguments in a number of cases last week. First up is Seven County Infrastructure Coalition versus Eagle County, Colorado. At issue here is whether the National Environmental Policy Act, or NEPA, requires an agency to study environmental impacts beyond the immediate effects of the action that the agency has the power to regulate. It seems like a dry issue, but if the amicus activity in the case is any indication, this is a case that corporate interests are attentively watching. Why? Well, because environmental reviews can make it harder to "drill, baby, drill" and develop real estate projects. If the court rules in favor of the petitioners and weakens NEPA, it would dramatically lower environmental review standards

• 15:22Leah Litman?

  for infrastructure projects on federal land.

• 15:26Melissa Murray?

  And if NEPA sounds familiar to you listeners, it's because just a few days ago, Donald Trump posted the following message on Truth Social. Quote, "Any person or company investing $1 billion or more in the United States of America will receive fully expedited approvals and permits, including, but in no way limited to, all environmental approvals." He then followed this with "get ready to rock", in all caps, and three exclamation points. This obviously raises some real questions, given its conflict with NEPA, but you see the point here. NEPA is a real thorn in the sides of those who are really interested in this kind of development work, and the incoming administration is certainly very interested in this. So, here we are.

• 16:07Kate Shaw?

  God, that Truth Social post, I was just so torn between like wanting to shout, that's not how any of this works, and can't rule out SCOTUS saying, "Actually, maybe that is how this..."

• 16:19Melissa Murray?

  Okay. The foreign investment that's likely to come from this seems really problematic and also perhaps violative of other laws that aren't even named here.

• 16:29Kate Shaw?

  But what if the Supreme Court just doesn't have a problem?

• 16:32Leah Litman?

  But those two instincts, Kate, I think it is, I want to say more about this later on, but I think it's important to hold to both, both that that's not how any of this works. And of course, we can't rule out the Supreme Court saying that that's how this works.

• 16:48Melissa Murray?

  For this guy.

• 16:49Leah Litman?

  But I'll put it right, I'll put a pin in that and come back to it.

• 16:52Kate Shaw?

  We'll come back to it. The stakes of this case were so high for deregulation kind of generally, that among the amici who submitted an amicus brief in this case was a company owned by oil baron Philip Anshutz. So why is that relevant? Well, because Anshutz and his company have very close ties to EPA superfan Neil M. Gorsuch. And in October, accountable.us issued a report detailing Gorsuch's connections to Anshutz, including the fact that Gorsuch served as outside counsel to his company, and that an in-house lawyer at the company recommended Gorsuch for his seat on the 10th Circuit. Gorsuch also apparently owned land with a director and an employee of the company. And to be fully transparent, as a judge on the 10th Circuit, Justice Gorsuch recused himself from cases involving Anshutz's

• 17:37Kate Shaw?

  company. So in the wake of this recent report from accountable.us, he did so again. So he did not participate in the oral argument, nor will he participate in the decision in this case. As the report noted, the court's resolution of this case could have major financial benefits for Anshutz, whose companies have a number of drilling projects that require environmental review. So it's actually a really good and important thing that Neil recused here.

• 18:01Leah Litman?

  Yeah. And so this is the pin I wanted to come back to because we're detailing this, it's a bright spot in an otherwise bleak landscape. I mean, Gorsuch didn't recuse until Accountable put out this information and the report. And I think it underscores that it is important and will occasionally have benefits to stay focused on the core, to continue beating the drum about their excesses, to say, that's not how any of this works, while not ruling out the possible. That they are going to do the bad, terrible, horrible, no good, very bad thing. But at least if you are maintaining that's not how this works, that's not how this is supposed to work, right? They have to own the costs of fucking it up.

• 18:44Leah Litman?

  And I think this is, we are seeing this play out in the birthright citizenship context, where the text is perfectly clear. People born in the United States are citizens. There's also a federal statute that says the same thing. Of course, we cannot rule out the possibility that the Supreme Court is going to blow that all up. But neither should we be saying, well, oh, they just can do whatever they want. Like, law is just politics. No, no, no, no, no, no. Right? Like, it's fine to acknowledge how law is political, but that cannot boil down to, and these guys are just going to do and can do whatever they want. Like, law has to mean something, and it does, like, here, there, elsewhere.

• 19:24Kate Shaw?

  I totally agree with all of that. I am going to stay on birthright citizenship. I would not rule out that one, two, or three of them might do something

• 19:31Leah Litman?

  Oh, yeah.

• 19:31Kate Shaw?

  catastrophic. But I actually don't think there's much of a chance that there's more than that to ignore the clear text and consistent practice of the 14th Amendment. So I at least feel not super nervous there. But I think you're right, we probably shouldn't rule out any possibility.

• 19:44Melissa Murray?

  Are you not nervous because there's a history and tradition of respecting the 14th Amendment? Is that why?

• 19:51Kate Shaw?

  Well, because I think the Constitution means more than what these jokers say. And yes, the sort of taking a capacious look at the history and tradition of the 14th Amendment, I actually do think that respecting

• 20:01Melissa Murray?

  Because they've done that how many times? Taken

• 20:03Kate Shaw?

  They've done what, how many times?

• 20:06Melissa Murray?

  Taken a capacious look at the history and tradition of

• 20:08Kate Shaw?

  Well, because they don't doesn't mean we don't.

• 20:11Leah Litman?

  Well, they were just doing so in that Eau Claire case, right? They were super into

• 20:14Kate Shaw?

  Enormous capacious.

• 20:15Leah Litman?

  The 14th Amendment there, so

• 20:17Melissa Murray?

  Yeah, it's true.

• 20:18Leah Litman?

  Can't rule it out.

• 20:19Melissa Murray?

  Yeah, yeah. Basically, we just got to get some parents to talk about the fundamental rights to raise their children as birthright citizens.

• 20:26Kate Shaw?

  I'm sure those parents, they're going to be

• 20:28Leah Litman?

  Right, they've got to be the right parents.

• 20:30Melissa Murray?

  True.

• 20:31Leah Litman?

  You know what I mean?

• 20:32Melissa Murray?

  True.

• 20:33Leah Litman?

  White parents.

• 20:36Melissa Murray?

  Nice ones. Anyway, this is a case that pits agency review of environmental impacts against corporate interests. So like really a trifecta of Mother Earth, the EPA, and corporate interests. Seriously, where do you all think this is heading?

• 20:54Leah Litman?

  So it seemed like all of the justices thought the environmental study in this particular case was sufficient. And the question is how broadly they are going to write an opinion about what agencies don't have to do, right? Or entities don't have to do as part of NEPA. But as to those interests in the case, it seemed to pitch two things the Republican justices hate against one another. On one hand, the environment, not so big fans of planet Earth. On the other hand, they don't like agencies. And so here, if they rule against the environment, they have to say that what the agency did is enough. And so it seems like they're going to give agencies a pass and tell courts to be reasonable when reviewing agency decisions when agencies are assessing environmental impacts.

• 21:39Kate Shaw?

  Or at least some agencies, right? So one possibility I thought was that because the agency involved in this case, even though it's an environmental case, is actually not the EPA, here, the key federal agency is the Surface Transportation Board, or STB. Maybe the court is OK with handing that agency a win this time, especially if they can identify another villain here, which was like the DC Circuit with its excessive concerns about the environment. So I just kind of had this thought, like, the Surface Transportation Board is like somehow a more MAGA-coded agency. And so siding with them, rather than the like Enviros at the EPA, is something that maybe this court could stomach.

• 22:15Leah Litman?

  OK.

• 22:16Melissa Murray?

  So I'll just say one thing. These environmental reviews, like, I think they can be incredibly important, especially for large-scale projects that can have major impacts on the environment. But they're also, I think, really unpopular, even in localities. Like, so, you know, if you live in a place like Berkeley, for example. Environmental review can really hem up basic things like improvements to a shopping center or a parking lot and stuff like that.

• 22:40Leah Litman?

  Or housing projects.

• 22:41Melissa Murray?

  Yeah, and so I think this one, it's really interesting. You saw a flavor of this in the oral argument, just sort of the idea that this actually, the fact of environmental reviews, the need for environmental reviews and so many of them actually makes it hard for government to work efficiently. And that was a really interesting strain that didn't necessarily cohere to sort of broader deregulatory talking points.

• 23:05Leah Litman?

  Well, also, there's no question that I think courts have taken NEPA to unreasonable ends. So we previously highlighted the district court decision that purported to invalidate a piece of Biden's immigration policy because they hadn't considered the environmental impacts of increases in unauthorized migration. And again, no question NEPA has been abused, but I think we still want a reasonable decision, right? That preserves some environmental assessments.

• 23:33Melissa Murray?

  Yeah. All right. The next case we'll take up is Cusis versus United States. And at issue here is what does it mean to defraud someone of property under federal law? Do you defraud someone of property only when there is a traditional property interest like money at stake? Or can you defraud someone when you're just lying about complying with a non-economic term in a contract? So for, in this case, there was a contract which required subcontractors to be a particular kind of business. If the contractor selects a subcontractor that doesn't adhere to those qualifications, are they defrauding you within the meaning of the federal law?

• 24:16Melissa Murray?

  So a number of the justices here seemed really fixated on the question of whether there is a kind of value in expecting certain services or a certain type of services and ultimately not getting them, even if there is no actual economic loss or impact to the individual. Here's a clip of Justice Sotomayor, who is pressing Jeff Fisher, the lawyer for Cusis, on this point.

• 24:38Speaker 05

  I'm sorry, Counselor. Let's assume the example that I contract to have a certified plumber fix whatever. All right? And I don't use a certified plumber. I just use a handyman. But the toilet is fixed. Under your theory, even if I didn't use a certified plumber, because the toilet was fixed, I got money from, I got value under the contract?

• 25:09Speaker 06

  No, I don't think so. Justice Sotomayor, there, the fraud would be promising services that were more valuable. Now, the certified plumber presumably would charge more per hour.

• 25:18Speaker 05

  But I don't understand what the difference between that in this case is. The services the government contracted for was to have a particular type of vendor sell me something.

• 25:30Speaker 06

  But a partic, well, that's not precisely right. I think what happened with the contract here was with Alpha Construction, and Alpha Construction then got to choose its own subsidiaries.

• 25:40Speaker 05

  But of a particular, but someone who was certified?

• 25:44Speaker 06

  Right.

• 25:45Speaker 05

  Someone who had a certain composition.

• 25:48Speaker 06

  But certi, I think that, so I think you're right about the word certified in a sense. But the certification in your plumber hypothetical deals with somebody who has greater expertise or experience and therefore charges more.

• 26:00Speaker 05

  So what difference does it make if I want someone of a particular quality when I hire a portrait artist? I want that person. I can get a portrait artist from anybody. Here, the government wanted a particular person to provide the service. That's unique, what they wanted.

• 26:21Leah Litman?

  And what she's saying is that Penn Department of Transportation, the government agency, valued working with businesses that were certified as disadvantaged business enterprises. And the petitioner, Cisys, said that they were subcontracting with a disadvantaged business enterprise, but in fact channeled the work to its own subsidiary. According to the federal government, that was fraud, even if the work was performed and there was no economic harm to the Penn Department of Transportation. Justice Sotomayor suggesting that the question of whether there was fraud turns maybe on materiality? You know, did you get what you paid for, you wanted, not whether there was an economic injury as a result of the deception?

• 27:00Melissa Murray?

  And there was an interesting moment where it seemed like there was a kind of odd gender schism on the bench with all of the female justices seemingly interested in this question of the materiality of the harm. Like, can you be injured or deprived of something even if the contractor gave you something of equal economic value if it wasn't what you actually wanted? So here's a rundown of Justice Barrett, Justice Jackson, and Justice Kagan getting in on this point.

• 27:26Speaker 07

  Mr. Fisher, what about this uniqueness thing? Let me kind of bring you back. You mentioned to Justice Sotomayor that uniqueness matters. What about your Grover Cleveland example? The one about if you contract for a painting of your grandfather and you wind up with one, say, of Grover Cleveland? That's not exactly what you wanted, but let's say it's of equal value. So you've suffered no economic loss. So why or would that qualify as an injury?

• 27:52Melissa Murray?

  What about the family that says, "It's very important to me to have a Christian babysitter. We are devout. We want this. This is a characteristic that we're telling everybody. This is what we're looking for." And someone comes and they purport to have this characteristic, but they don't ultimately.

• 28:14Speaker 06

  I think that's egregious behavior, but it's not property fraud. If the babysitter is otherwise fully qualified and performs the services. Now, there may well be a very serious civil suit. If you're dealing with the government in that kind of a situation, there can be a 1,001 prosecution or maybe a 371 charge. So I'm not saying these things are okay, and I'm not saying the law doesn't provide a remedy. But what I am saying is that this is an age-old problem when it comes to fraud. Well, suppose you enter into a contract and you think you're going to get, you pay for gold bars that are worth a million dollars.

• 28:52Speaker 07

  Instead, you get lots of coal that's worth a million dollars.

• 28:58Speaker 07

  Have you, is that, have you been defrauded?

• 29:00Speaker 06

  So I don't think you've been defrauded under the property fraud statutes. You may have been defrauded if you were dealing with the government under section 371, which doesn't have an injury requirement.

• 29:09Speaker 07

  But you really have totally not gotten what you wanted. I mean, you're creating a world where because I have a dollar's worth of loss, it falls within the statute. But rather than a dollar's worth of loss, I've gotten something that I have no use for, that I never wanted, that I made clear I never wanted or had use for. It happens to be the same in a marketplace out there, but it sure isn't the same for me. I think that this is a terrible deal that I've gotten. And it's not the one that I signed up for.

• 29:39Speaker 06

  So let me say.

• 29:40Kate Shaw?

  All right, so predictions? I thought it was actually kind of hard to read where the court was on this question. It sounded like Sotomayor and Jackson were more skeptical of the defendant's position. Only Gorsuch seemed clearly on the government's side. But maybe because this is a fraud case that doesn't involve a political official, a majority might be open to ruling for the prosecutors slash the federal government because it wouldn't spark the same joy as it would to rule against the federal government in a political corruption case, maybe?

• 30:10Leah Litman?

  So an additional wrinkle came out in the case. It seems like this might be another case where the question or issue the court thinks it's taking up might not be presented at all. So the federal government said it introduced evidence that Penn Department of Transportation was willing to pay more for contracts with a term requiring certain businesses to be included, the disadvantaged business enterprises. So there was an economic loss to the Penn Department of Transportation. And as the federal government notes, you know, they urged the Supreme Court to deny certiorari in this case on that basis. So it's possible this case could be headed, as a few others have been, to some kind of non-decision, saying the issue isn't presented, or maybe even a dismissal as improvidently granted. I think it's unlikely here, but, you know, can't rule it out.

• 30:55Kate Shaw?

  It's possible, and it's wild. They're already taking so few cases, and they are just like dispensing with so many of them, or at least a couple of them, and seem on the path to potentially others. They just want to do as little as possible. And as we've said before, I think we're OK with that.

• 31:08Melissa Murray?

  It is interesting, though, that the federal government made this case and explained that they had presented this evidence and said, like, do not grant cert on this case. And they're like, no, we're good. We got it. We got this.

• 31:22Kate Shaw?

  Okay, so let's-

• 31:24Leah Litman?

  Can't tell me shit.

• 31:26Kate Shaw?

  Until the arguments, and then you're like, oh.

• 31:28Leah Litman?

  Oh, fuck.

• 31:29Kate Shaw?

  Oh, fuck.

• 31:30Leah Litman?

  Damn it.

• 31:33Leah Litman?

  Why didn't you tell me? Why didn't you persuade me, federal government?

• 31:38Kate Shaw?

  So, we've got some other cases to cover. The next one is Feliciano versus DOT. And at issue in this case is whether reservists get, quote, "differential pay" when they are called to service slash up from reserves during an emergency, but where the work that they perform is not actually related to the emergency. So differential pay means that in addition to regular reservist salary, they also get paid the difference between the reservist's salary and the salary of their regular job. So, the statute at issue says that reservists will get differential pay during an emergency. The petitioner argues that the emergency designation is temporal, but not substantive. That is, it just reflects the circumstances in which the reservist is called up. So, they get called up in an emergency, they get the emergency pay. By contrast, the federal government maintains

• 32:22Kate Shaw?

  that the emergency designation also has a substantive connection to the actual work performed.

• 32:27Melissa Murray?

  At an oral argument, the advocate for the petitioner really doubled down on this argument that the plain language of the statute means that emergency is only a temporal designation. It's not a substantive designation. And this raised some eyebrows from some of the justices. So, let's roll the tape.

• 32:44Speaker 05

  Well, again, we win on the language of the statute. So, I mean, it's, if we aren't speculating and we're just going to return to ground and go to the language, there's just no way to read this statute in the way that the government wants to read it.

• 33:00Speaker 07

  But doesn't during have, I mean, I appreciate during has a temporal meaning, but even in your introduction, you said it virtually always means temporal. Aren't there circumstances in which it could be construed reasonably as a substantive connection?

• 33:18Melissa Murray?

  With this in mind, the justices had a lot of questions about the legislative history of the statute and specifically the fact that in enacting the statute, Congress explicitly rejected proposals to extend differential pay to anyone who had been called up, suggesting that maybe this was a substantive designation.

• 33:36Leah Litman?

  Yeah, and the justices also noted that, of course, the statute doesn't say anyone called up, but instead referred to categories of emergencies. Some justices also pointed out that, you know, there has been a national emergency in effect since 1979 related to Iranian sanctions and that it's unlikely, you know, we will soon be in a period without emergencies. And that means petitioner's interpretation would mean reservists get differential pay all the time, since there would always be a national emergency in effect. So here's Justice Alito on this point.

• 34:06Speaker 00

  Your thinking is that Congress said, well, you know, we realize that there have been national emergencies now for decades and decades and decades. But if we look ahead, we foresee the time when there will be peace throughout the world and nothing threatening, and the lion or the wolf is going to lie down with the lamb, and there isn't going to be a national emergency. So that's why we've put in, what is it, eight specific provisions that would be superfluous if your interpretation were accepted.

• 34:46Melissa Murray?

  I have to say, I found this interjection a little chilling. Like, what sort of national emergencies is Sam Alito envisioning in the future, creating in the future, or some combination thereof?

• 35:00Leah Litman?

  Like Nosferatu? Conjuring them up.

• 35:03Kate Shaw?

  Lion or the wolf, yeah.

• 35:06Melissa Murray?

  He wasn't the only one who was a little doomsday here. So Justice Kagan, and I think this is the first time they've ever actually been on the same page this entire term, she was right there with him about the oddity of the petitioner's interpretation, given the prevalence of emergency declarations. So here she is. I mean, but to that point, really, what does Congress believe? There are 43 national emergencies now. Every time we have--

• 35:34Speaker 05

  A sanctions program in place, we declare a national emergency. I mean, this is just a sort of feature of modern life. There are politicians who go on morning news programs and say, we are going to, you know, end the authorization for the use of military force, that we are going to end. They don't necessarily say pending national emergencies, but I think that that's a fair implication. We are always one election away from ending all pending national emergencies. They could change the way- We're not going to have any sanctions programs. We're not going to have any hurricanes. We're not going to, I mean, it just seems like a world which couldn't possibly exist.

• 36:13Melissa Murray?

  I also, I don't know, predictions? Feels like he's going to lose.

• 36:17Leah Litman?

  You know, I'm not sure, but another wrinkle that came up again in this case is there was a question about whether the petitioner would prevail under the government's interpretation. That is, whether the legal issue or question matters to the case because this petitioner was escorting military vessels in and out of the harbor, which seems like it could be related to the emergency. And the FAA, you know, the agency has its own regulations, you know, apart from the statute that might award compensation, even if the federal circuit's interpretation about what is generally required under the statute would not. And again, you would think these would be the sort of things they would check before granting a case.

• 37:01Leah Litman?

  And yet, this also seems to have escaped their notice.

• 37:04Melissa Murray?

  That's what happens when you run on vibes.

• 37:07Kate Shaw?

  For more details, pick up your copies of Leah's book.

• 37:10Melissa Murray?

  Pre-order.

• 37:11Leah Litman?

  The concept of law is just going to increasingly be fading into the background as these guys just continue to finger paint their way through the US Code and the Constitution.

• 37:21Melissa Murray?

  And these cert petitions, it's-

• 37:23Leah Litman?

  Right, yes.

• 37:26Kate Shaw?

  All right, so moving on to the next case, Dewberry Group versus Dewberry Engineers. And at issue here is another pretty narrow question, this one related to trademark litigation.

• 37:37Leah Litman?

  I have to say, of course, this is a trademark case because just reading it, I was like, which Dewberry is it? Which Dewberry did what? And that's why it's a trademark problem.

• 37:45Kate Shaw?

  Because you're confused.

• 37:46Leah Litman?

  Yeah, exactly.

• 37:48Kate Shaw?

  Form and content.

• 37:49Leah Litman?

  Exactly.

• 37:51Kate Shaw?

  And specifically whether, under the Lanham Act, an award of profit disgorgement can require the defendant to disgorges profits of a legally distinct entity. So the Lanham Act requires, as a remedy for trademark infringement, the disgorgement of, quote, "the defendant's profits." Here, the infringers, who are the Dewberry Group, argue that the language suggests that a plaintiff should sue and thereby make into defendants all of the entities from which it hopes to recover damages. In this case, all of the damages awarded were profits earned by other entities, none of which were actually a defendant to the suit. And in addition to the question of whether that was proper, there are also some looming questions about how to calculate the profits. Do they include only money required under a contract or also the fair market value of the contract?

• 38:33Leah Litman?

  Now, petitioner doesn't dispute that you might be able to attribute or assign one entity's earnings or profits to another in calculating how much an entity owes by way of disgorgement. But on the specific legal question, Justice Barrett characterized the case as having, quote, "vehement agreement" on the narrow question about whether you can just lump separate corporate entity's profits together and essentially treat them as one, but that there was a lot of disagreement about how and when a court could still say this one company's profits don't capture the full economic realities of what they gained. So lots to say on those more difficult questions. But one thing that stood out for me during this argument was Neil Gorsuch woke up on

• 39:16Leah Litman?

  the wrong side of the fucking bed that morning because he was a big jerk. So take a listen here.

• 39:24Speaker 00

  I'd agree, Hugh, that there are many ways to skin the cat. You can sue these people. You can pierce the veil. You've got all kinds of equitable theories. You just had a great list of them a second ago. But as I understand it, the Fourth Circuit below did none of those things. And you all actually agree with that? And you agree that on the question presented, the Fourth Circuit heard. Is that right? No, Your Honor. So Solicitor General is wrong. There isn't total agreement here today. There is total. So if I can answer that two ways. There is. And pick one. Maybe I can combine them into one answer. Give me your best. There is total agreement.

• 40:08Melissa Murray?

  I think he could really use a Helix mattress.

• 40:10Leah Litman?

  It's just like, sometimes there is more than one thing to say in response to your dumb question, Neil, right? Sometimes you're wrong for multiple reasons. And if the point of an argument, right, is to get at, right, like, what's going on? Sometimes there's more to say.

• 40:27Melissa Murray?

  Sometimes you're doubly wrong, triply wrong, quadruply wrong.

• 40:30Leah Litman?

  Yes. You need to get it all out there. But he just doesn't want to hear it.

• 40:34Melissa Murray?

  I think if he had a good night's sleep, he would be just more receptive to the possibility of those differing kinds of wrongs. Anyway. All right. That was the week in oral arguments. We also got some opinions, sort of, from the court. So let's do some opinion recaps. First up, Buarfa versus Mayorkas. In a unanimous opinion that was authored by Justice Jackson, the court held that revoking a visa based on a determination that there was a sham marriage is the kind of discretionary decision that the federal courts cannot review because it falls within the discretion of an agency. And again, this is even though courts can review the sham marriage determination if the visa is initially denied on that basis.

• 41:18Melissa Murray?

  So in this narrow context, it's not subject to federal court review. Nine to zero, Justice Jackson with the pin.

• 41:25Leah Litman?

  A lot of the cast members of 90 Day Fiance are going to be in for a, yeah, unpleasant surprise.

• 41:33Kate Shaw?

  The men's were not happy with our pronunciation of the next case the first time when we previewed it, so we'll get it right this time. Nvidia Corp versus Omen J or Fonder AB, but Nvidia is the next case we got, kind of, but basically in what seems to be a trend, the court didn't actually issue a decision in the Nvidia case. Rather, they dismissed the securities fraud dispute and the crux of the suit, just as a reminder, since people were so distracted by my mispronunciation, they probably can't even remember what the case was about. But it's about a shareholders' claim that Nvidia did not disclose the extent to which sales to crypto miners rather than gaming companies put the value of their shares at risk. The question presented to the court was whether the complaint was sufficiently specific to make out an allegation of fraud under the Private Securities Litigation Reform Act.

• 42:17Kate Shaw?

  And the lower court said the complaint actually did meet the PSLRA's heightened pleading standard.

• 42:22Melissa Murray?

  Based on the oral argument, it's probably not surprising that the court chose to dismiss the case on the ground that certiorari had been improvenantly granted. You'll recall, it did the same thing in Facebook versus Amalgamated Bank, another shareholder suit. But in the Nvidia case, throughout that oral argument, a number of the justices commented that the dispute was really, really fact-specific, maybe too fact-specific for them to decide. And again, perhaps this was something you might have considered before accepting the case for review, but that's just me, a busy, working mom with not a lot of time for bullshit. So here we are.

• 43:04Melissa Murray?

  Anyway, the case will go back to the trial court and the investors will attempt to prove their case against Nvidia.

• 43:10Leah Litman?

  I love the idea that it's like, oh, this is too fact-specific, too many facts for us to like-

• 43:16Melissa Murray?

  Well, I mean, you remember Kennedy versus Bremerton School District where the facts were just so, so specific, we couldn't get them right.

• 43:24Leah Litman?

  Okay, silver lining is maybe they've recognized they're just not good at facts and so they won't actually engage with any cases that turn on the facts.

• 43:31Melissa Murray?

  We do the law, not the-

• 43:33Leah Litman?

  We are law finders, not fact finders. We find the lost law that no one's ever heard of and we surface that. Yeah. So it's not just the Supreme Court that has decided not to do its job or not to decide things. The Fifth Circuit also decided to get in on the quiet quitting shtick. The Fifth Circuit decided to rather ostentatiously refuse to decide a case that they had agreed to take up as an en banc court. So the mess here is just incredible.

• 44:06Melissa Murray?

  It's messy, very, very messy.

• 44:08Leah Litman?

  It is, and I'm here for it. The en banc Fifth Circuit chose to affirm the decision of a district court in a case that it had taken en banc and for which it heard oral argument in May 2023. And it did so without issuing an opinion in the case. The order said only, quote, "The en banc court heard oral argument in this matter in May 2023. That was more than 18 months ago. Moreover, the parties in this case have already endured multiple appeals and remands back to the district court over the course of nine years. Another remand would mean that the appellate proceedings in this matter will have delayed resolution of this case by over a decade. Justice delayed is justice denied. Had we known that it would take a year and a half after en banc oral argument to issue an opinion,

• 44:50Leah Litman?

  we would not have granted en banc rehearing. We accordingly affirm," end quote. And that's the extent of the order.

• 44:56Kate Shaw?

  Okay, so the most important thing about this order is the insane infighting on display in the separate writings. But just for one second to tell you that there was a case here, which was about whether plaintiffs could sue and seek civil penalties under the Clean Water Act. But what is the most interesting is no specifics about that legal question. But the fact that in addition to this text of the order that Leah just read, the case generated this flurry of separate opinions in which the justices really seemed

• 45:23Leah Litman?

  Judges.

• 45:24Kate Shaw?

  Judges.

• 45:25Melissa Murray?

  Not give them promotions. How sick are you? Are you okay?

• 45:29Kate Shaw?

  Wow. Yeah, a lot of Dayquil. I'm in a lot of Dayquil. That's my excuse. Yeah. Judges, not justices. The judges of that court. Although we did call them the Supreme Court of the Fifth Circuit last week.

• 45:41Leah Litman?

  That's true.

• 45:42Kate Shaw?

  That might be why I inadvertently gave them that promotion.

• 45:44Leah Litman?

  Don't blame this.

• 45:45Melissa Murray?

  They've decided to take on some of the powers that the Supreme Court has here. So we'll get to that.

• 45:51Kate Shaw?

  They sure, yeah, they sure did. Anyway, so for now, just judges on the Fifth Circuit seem to air some of the court's really dirty laundry, accusing one another of preventing the court from reaching a decision. So there is a separate writing by, count them, Judge Oldham, Chief Judge Elrod, Judge Richmond, Judge Jones, Judge Davis, and Judge Ho.

• 46:14Melissa Murray?

  So basically, they took 18 months. They have nothing to show for it. And so they have decided to stick with the district court opinion and then, just for fun, offered us 150-plus pages of irreverent sniping at one another. And the TLDR of all of this tea seems to be that the Fifth Circuit en banc split eight to eight over the question of reversing and affirming. And there was one judge, the Ninth Judge, who happens to be one Jim Ho, who apparently refused to make a decision and instead decided, insisted, really, on doing his own thing, such that the court was deadlocked and couldn't get

• 46:57Melissa Murray?

  a majority to do anything. This is the same Judge Ho who seems to always be auditioning to be Justice Thomas's replacement on the Supreme Court. And so I don't know if he's going to get the votes of his colleagues when America's next top Supreme Court justice comes to the Lone Star State. But, I mean, Judge Oldham's separate writing can only be described as pissy, right? He's real pissed. It accuses the court of making up a procedural maneuver that doesn't exist. This would be dismissing en banc review as improvidently granted/ordered, or vacating a rehearing order as improvidently granted,

• 47:38Melissa Murray?

  I guess a vig. He accuses the court of announcing a, quote, "new shot clock for disembonking a case." That's the first time disembonking has been used. And Judge Oldham underscored all of this by insisting that he emphatically dissent it just in case. You were not sure. He also adds that, quote, "The majority's per curiam opinion is bad, but Judge Davis's concurrence is worse." Meow, bowl of milk, table two.

• 48:08Leah Litman?

  This is seriously like untucked of Drag Race. Like, you're not getting the full story.

• 48:14Melissa Murray?

  This is, this is, this is a reunion, Real Housewives of New Orleans.

• 48:19Leah Litman?

  I know. Well, he saw what Judge Jones did at the National Federalist Society's convention. He's like, he's like, I want to be a housewife too.

• 48:28Melissa Murray?

  Right.

• 48:30Leah Litman?

  I've got big NeNe leaks energy and you're going to see it.

• 48:34Kate Shaw?

  Because we're not even done with Oldham.

• 48:35Leah Litman?

  We're not done.

• 48:36Kate Shaw?

  No, so, so Oldham, after saying that the per curiam opinion is bad and Judge Davis's concurrence is worse, proceeds then to go after Judge Ho and says that over a period of several years, Judge Ho cast four separate votes that would have led to different results in this case, some affirming, some vacating, some reinstating the district court decision in the course of refusing to decide the case as an en banc court, some not. I mean, this is, of course, in the dictionary, under impartial, principled, consistent judging. Oldham included a chart showing the different votes that Judge Ho cast in this case.

• 49:15Leah Litman?

  Yeah, and, you know, not to be outdone, Judge Ho responds by suggesting that maybe the court shouldn't take big corporate cases en banc, but only political ones. So he writes, quote, "I'd focus our limited en banc resources on advancing the rule of law where we need it the most, protecting our national borders and protecting our constitutional rights," end quote.

• 49:41Melissa Murray?

  From the invading hordes, remember.

• 49:43Leah Litman?

  This man could not try harder for that Supreme Court seat. Like, it would be impossible. He is already doing so much.

• 49:53Melissa Murray?

  It is very Meredith Grey, like, pick me, choose me.

• 49:57Leah Litman?

  Yes.

• 49:57Melissa Murray?

  Nominate me.

• 49:58Leah Litman?

  Yes. And Judge Oldham is over it. Judge Jones is also over it and pretty much comes out and says, "This entire thing is Jim Ho's doing." She writes, quote, "It is most unfortunate that because of one judge's refusal to vote, this court has taken no position on this issue," end quote, the issue being whether the plaintiff's head standing and like could seek the penalties in this case. It's just.

• 50:24Melissa Murray?

  10 bucks, she had all of his draft opinions in a file and she brandished them during conference and accused him of undermining the judiciary.

• 50:32Leah Litman?

  She should have included a video of that, right? In her dissent, that was the missing.

• 50:37Melissa Murray?

  I appreciate that she's an equal opportunity destroyer. It's not just progressives like Steve Wadak. She'll eat her own.

• 50:44Leah Litman?

  Enough haterade to go around. But just stepping back, you know, it is, of course, a judge's job to reach a decision in a case. Refusing to do so, that is not judicial or judicious. And sometimes, reaching a decision requires compromise. And of course, that is something that these Fifth Circuit judges are temperamentally incapable of doing. And here, it just puts into stark relief how this temperament, like this approach, is fundamentally at odds with the position of being a judge.

• 51:19Melissa Murray?

  You know, you know what, Leah? You're not being generous enough here. This is a species of judicial restraint. We are restraining from reaching a conclusion. This is modesty.

• 51:29Leah Litman?

  This is the passive virtues I see.

• 51:32Melissa Murray?

  Neutral principles.

• 51:33Leah Litman?

  Deciding not to decide.

• 51:35Melissa Murray?

  I mean.

• 51:36Leah Litman?

  Judicial minimalism.

• 51:38Kate Shaw?

  You know what's minimalism? Just raising your hand and saying, "Let's talk about the Constitution and the border" in a totally fucking unrelated case. That is modesty.

• 51:46Leah Litman?

  Minimalism. Also, like, imagine the post-argument deliberations in the en banc court, right? Like, one judge, "I affirm, I reverse, I vacate, I affirm, I reverse." Judge Jim Ho, "I refuse, I refuse to cast a vote." Like, what does that even look like or sound like?

• 52:05Melissa Murray?

  I think what you just did.

• 52:06Kate Shaw?

  Again, that's not how any of this works, not how any of this works.

• 52:09Melissa Murray?

  I think it sounds like how it just sounded.

• 52:11Leah Litman?

  Yeah.

• 52:21Kate Shaw?

  Although it's hard to top that, let's turn to some additional court culture and culture in other courts specifically. So, starting with the TikTok case, the D.C. Circuit issued, what do you know, an opinion in a case, in a very anticipated case,

• 52:35Melissa Murray?

  maximalism.

• 52:36Kate Shaw?

  About the law that could end TikTok access in the United States. Essentially, this law passed by Congress says that TikTok, which is owned by a Chinese company, ByteDance, will shut down by law in the United States by January 19th if it does not find a U.S. buyer before then.

• 52:52Melissa Murray?

  The law was passed, the government says, out of national security concerns because China has access to all of the data shared by Americans on TikTok. And using that data, it could manipulate the content in a way that poses a threat to national security. We should note that some legislators said that the ban was based on hostility to certain content and views, what one Republican representative called propaganda. And other Republican representatives suggested was content leading younger people to be too pro-Palestinian. No, anyway. Under the First Amendment, if the law is aimed at suppressing certain content or views, it should get rigorous searching judicial scrutiny. If instead, it's not aimed at suppressing content or viewpoints,

• 53:37Melissa Murray?

  but is simply about national security, then the review is more deferential. This is why so many people are framing this in terms of national security. And even if they do frame it in terms of national security, though, there still seem to be some holes in the government's case for the law. So, the government doesn't have evidence showing any Chinese content manipulation in the United States, for example. And even if they did, it's unclear if the First Amendment would or should permit censoring content based on the idea that that content could corrupt people's minds or unduly sway them or change their views. And just, you know, also stepping back, TikTok is primarily an app for dance videos. And they're going to have to pry

• 54:21Melissa Murray?

  those surprise song videos from my dead cold hands because watching Taylor

• 54:26Leah Litman?

  Swift surprise songs on TikTok has literally been a way of like microdosing a will to live for me and they they can't take that away from me. But the D C Circuit unanimously rejected TikTok's challenge to the law. I think TikTok is likely to ask the Supreme Court to put the law on hold while litigation is ongoing. And we will see what the Supreme Court does.

• 54:50Melissa Murray?

  We do have a bit of good, if entirely unexpected news. Fresh from her successful book tour, Justice Katanji Brown Jackson has crossed another milestone from her bucket list. She recently made her Broadway debut. That's right. No longer content to answer the door during conferences, the most junior justice recently took her place among the stars of the Great White Way. On Saturday, December 14th, Jackson appeared for one night only in Anne Juliet, a jukebox musical that offers a difference land on Shakespeare's Romeo and Juliet. She also participated in a talkback with the audience following the performance. Did any of you see this?

• 55:30Leah Litman?

  No.

• 55:30Kate Shaw?

  Not her, but I have seen the musical. It is delightful. It's a totally delightful show.

• 55:34Melissa Murray?

  It is delightful. I wish I could see this with her. I was out on Saturday night, but this sounded fun. I wish she'd let us know.

• 55:42Kate Shaw?

  If you read her memoir, you know, she actually is quite a singer. So this is something that, you know, I gather.

• 55:47Melissa Murray?

  I don't think this was a musical interlude.

• 55:49Kate Shaw?

  I don't think it was a singing role. I think it was a non-speaking role where she just like did something on stage, but I don't know what. Anyway, I love this for her and everyone in the audience.

• 55:59Melissa Murray?

  Do you remember when Justice Ginsburg appeared in the opera at?

• 56:03Leah Litman?

  Yes.

• 56:03Melissa Murray?

  In D C.

• 56:04Kate Shaw?

  But it wasn't Broadway. Broadway was might be the first.

• 56:06Melissa Murray?

  Broadway is different. I think I think that's right. But good, good for her. I love that she is breaking out, doesn't have to just confine herself to answering the door. Like she can do other things and I love that for her. I hope Dr. Patrick Jackson presented her with an enormous bouquet of flowers afterwards.

• 56:22Kate Shaw?

  Oh, you know, he did.

• 56:22Melissa Murray?

  Yes, of course he did. Husbands everywhere, take note.

• 56:26Kate Shaw?

  So in less auspicious news, a Trump judge in the District of North Dakota blocked the Biden administration's rule that allowed DACA recipients to get health insurance on the A C A marketplace. This is a ruling that applies to 19 states. So not only are these judges throwing into question the actual status of DACA and of course, the incoming administration will, you know, at best throw it into further question. But. Screwing with people's health insurance in the meantime, like the sadism really knows no bounds.

• 56:56Leah Litman?

  Yeah. Also, under the less auspicious category, we had some listeners ask us to flag this development, which is something to add to our cancel culture watch, which is all the things about how left wing political correctness has gotten out of control. So this incident comes out of Louisiana, where the Louisiana governor has called on Louisiana State University to punish a law professor for statements the professor made in the classroom about the 2024 election. The governor went so far as to share a video of the professor on social media and send a formal letter to LSU calling on officials to punish the professor. Once again, left wing political correctness and censorship just too much.

• 57:37Leah Litman?

  But I think this is a frightening indication of something you alluded to maybe a few episodes ago, Kate, which is, you know, the Republican Party treating the academy as the opposition party and punching bags, since they are always the victim, right? They need to identify somebody who is supposedly victimizing them. And as they are about to have all the power in the federal government, you know, they are turning to media, academy, and others as the victimizers.

• 58:06Melissa Murray?

  All right, here's some better news. In a unanimous decision, the Montana Supreme Court kept gender-affirming medical care available to minors on current terms while litigation over Montana's ban on such care is pending in the state court system. This is a ruling that upheld a preliminary injunction that barred the enforcement of the ban whose constitutionality has been challenged. So we've already mentioned that President-elect Trump has tapped Harmeet Dhillon to be the head of the DOJ's Civil Rights Division. There's obviously been a lot of discussion about the administration's picks from Matt Gaetz, whose nomination has failed, to Pete Hegseth, whose nomination has not failed,

• 58:47Melissa Murray?

  despite some really interesting emails from his mom and some really interesting profiles by reporters like Jane Mayer. He seems to be on track to getting confirmed as Secretary of Defense. So you know, there's that. We've also had the selection of Cash Patel to head the FBI. And there was news last week of Christopher Wray stepping down voluntarily before he can be fired by Donald Trump in order to install Cash Patel in that seat. I don't know what more to say about all of this. Like, it is literally like watching a car wreck.

• 59:25Kate Shaw?

  Yeah, but also Patel install, but Patel has to be confirmed by the Senate as well, right? Like, there are ways to get him installed in other positions via recess appointments.

• 59:33Melissa Murray?

  Yeah, you're right. I'm assuming the Senate is going to roll over. Why would I assume that? I don't know.

• 59:38Leah Litman?

  Because when it rains, it pours. We also have some newsy culture items related to judicial ethics. So the judicial ethicist expert has weighed in. I'm, of course, talking about Mitch McConnell, who has some opinions. So two district court judges have withdrawn their announcements and plans to retire and take senior status, likely because of the change in administration and the fact that their successors weren't confirmed. And Senator McConnell doesn't want anyone else to do that, especially the Court of Appeals judges whom the Biden administration, or at least the Senate Democrats, agreed not to confirm successors for. So on the Senate floor, McConnell called any decision to change plans,

• 1:00:22Leah Litman?

  quote, partisan. It also apparently, quote, undermines the integrity of the judiciary. It exposes bold Democratic blue, where there should only be black robes, end quote, said the guy who ensured that the only thing under black robes would be MAGA red, and who was reportedly calling around to judges urging them to retire during the first Trump administration. And obviously, this is galling and hypocritical, but I think one thing to underscore about it is it is part of a trend of what I think some people are calling like gangster government. I mean, I would be concerned that McConnell is potentially drumming up hostility toward these judges. Like, you know, if he is going to go so far as to publicly name and shame

• 1:01:07Leah Litman?

  them for a change of plans, you know, we have seen absolutely horrific episodes of attacks, physical attacks on judges and their families. And I think, you know, this strategy needs to be evaluated in that light.

• 1:01:24Melissa Murray?

  Well, I mean, everyone changes their plans.

• 1:01:26Leah Litman?

  Yes.

• 1:01:26Melissa Murray?

  The Senate Judiciary Committee was going to have a hearing for Merrick Garland, and then it changed its plans and said, we're just going to wait until after the election and let the people inform the hearing.

• 1:01:38Leah Litman?

  The Senate Judiciary Committee was going to look into the accusations against Brett Kavanaugh.

• 1:01:42Melissa Murray?

  Then they changed their plans.

• 1:01:44Leah Litman?

  And they changed their mind, so.

• 1:01:45Melissa Murray?

  I mean, it happens.

• 1:01:46Leah Litman?

  Yeah.

• 1:01:47Melissa Murray?

  Like, I mean, yeah. Plans change. Plans change. All right. You know whose plans don't change? The Koch Brothers. Their plans stay the same, it seems. And according to recent reporting from The Washington Post, Justin Juvenal, John Swain, and Anne Marimo, the Koch Brothers had some real plans to overturn the Chevron doctrine, and they succeeded. So as you know, from our own coverage, the Koch Brothers Network has been very interested in deregulation for some time. And as we have intimated on this podcast, it seemed like there were lots of close associations between the effort to overrule Chevron and the interest in deregulation that the Koch Brothers Network has spearheaded over the years. So the reporting here was not really surprising to us.

• 1:02:32Melissa Murray?

  As this trio turned up, there are a lot of close associations between this network and the effort to deregulate. Lots of ties between various pockets of the conservative legal movement and the multi-pronged effort to overrule Chevron and then to extend the ruling in Loper, Bright, and Relentless to thwart even more governmental regulation of corporate interests. But one thing that was actually notable about the reporting is that those seeking greater deregulation in the future have relied on amicus briefs filed by those seeking to preserve Chevron, which detailed the many regulations that would be vulnerable if Chevron fell. And they have used those amicus briefs to craft a roadmap for future challenges that

• 1:03:16Melissa Murray?

  would extend the logic of Loper, Bright, and Relentless, which

• 1:03:21Melissa Murray?

  I mean, again, raises, I think, some real strategy questions for the left. If these arguments aren't even going to get any purchase with these justices, but they are instead going to seed future efforts to expand this deregulatory interest, maybe we just ought to close up shop on those kinds of briefs. The other thing that I wanted to note about this reporting was they also made explicit note of Justice Thomas's curious 180-degree turn on Chevron, which is to say that he was for it at one point and then he was against it. And while the reporters don't draw any conclusions as to why Justice Thomas had this about-face, they do note that his change in his views of Chevron came sometime after he started

• 1:04:06Melissa Murray?

  hanging out at the Bohemian Grove with the Koch brothers and their network of friends. And again, I just want to underscore, it's not unconstitutional to have friends. It is unconstitutional to regulate.

• 1:04:19Kate Shaw?

  And change your mind.

• 1:04:19Melissa Murray?

  Yes, yes, and change your mind.

• 1:04:21Leah Litman?

  Unless you're changing your mind about Chevron being-

• 1:04:23Melissa Murray?

  About the regulation.

• 1:04:24Leah Litman?

  That's fine.

• 1:04:25Melissa Murray?

  That's fine.

• 1:04:26Leah Litman?

  The judges, though. Some liberties, some parental rights, some changes of mind.

• 1:04:30Melissa Murray?

  If your friends help you to change your mind, it's especially constitutional.

• 1:04:32Leah Litman?

  Yes.

• 1:04:33Melissa Murray?

  Unless your friends are liberal.

• 1:04:35Leah Litman?

  Right.

• 1:04:36Melissa Murray?

  Then it's not.

• 1:04:37Kate Shaw?

  The thing you said a minute ago, though, Melissa, about amicus briefs as roadmaps for future challenges, I feel like dissents present the same problem, right? And I think we've talked about this before. They're just really hard tactical questions presenting the court's liberals in the next couple of years, which is, do you speak the truth about the actual implications of some of the court's really big decisions and provide roadmaps for actually full implementation? Or do you hold your fire? You know?

• 1:05:03Melissa Murray?

  Podcast, too.

• 1:05:05Kate Shaw?

  About us? Yeah. All right, well, we're all going to wrestle.

• 1:05:08Melissa Murray?

  I don't know.

• 1:05:09Kate Shaw?

  Similar questions.

• 1:05:11Melissa Murray?

  We should put some different Easter eggs in there for them.

• 1:05:15Kate Shaw?

  A New Year's resolution. We will get those. We'll get to work on those.

• 1:05:18Leah Litman?

  You know what would be great? Just the ticket. You know what you should do? That's what we should do.

• 1:05:22Kate Shaw?

  Yeah, yeah. Because we know they're all listening.

• 1:05:25Leah Litman?

  Right.

• 1:05:27Kate Shaw?

  Okay, we wanted to highlight a case to watch out of the Eighth Circuit that court granted rehearing on Bank in a case about whether mandatory equity training violates the First and 14th Amendments. The panel had concluded correctly that it did not, but you know, the court taking the case on Bank could be ominous unless they decide to go the way of the Fifth Circuit, in which case, doesn't matter. But this case could be one of the sort of opening or, you know, latest salvos in the new frontier in the fight against DEI initiatives, equity, diversity. So we're going to keep an eye on it as the court takes it up on Bank.

• 1:06:00Leah Litman?

  And I think related to that case was another justices Alito and Thomas dissent from the Supreme Court's decision not to hear a case about some admissions policies of Boston schools. So Boston City Schools admitted a percentage of students based on GPAs and test scores, and then at the next step, considered students' ZIP codes and tried to admit students from areas with lower median household incomes. You'll note, there was no mention of race there. That is race neutral. But the city schools were thinking about racial equity and trying to achieve diversity. So naturally, these guys think it's illegal. The Supreme Court declined to hear the case, but their writing, as well as Justice Gorsuch's, which I'll note in a second, is a warning sign of what might come and the possibility

• 1:06:43Leah Litman?

  that the Supreme Court will police race neutral efforts to achieve diversity. So Justice Gorsuch wrote a statement about the case, so not a dissent from the denial of certiorari, but a statement.

• 1:06:53Melissa Murray?

  Making you stuff up.

• 1:06:55Leah Litman?

  In which he noted that Boston had changed its policies, and that's why the court didn't review the case.

• 1:07:01Melissa Murray?

  You can never change your mind.

• 1:07:04Leah Litman?

  Well, those policies were no longer in effect, but you know, it's possible they might be looking for another school and another policy to get their grubby little fingers all over. Hard to rule out.

• 1:07:14Melissa Murray?

  Well, this is very much in the flavor of the Thomas Jefferson High School case that they denied cert on to. And the bottom line is, is even thinking about diversity unconstitutional.

• 1:07:25Leah Litman?

  The real thought control, thought police.

• 1:07:27Melissa Murray?

  Yeah.

• 1:07:28Leah Litman?

  We are about to find out.

• 1:07:30Melissa Murray?

  Also related, it seems that the Fifth Circuit actually can issue a decision and can do so en banc, but it seems that that en banc decision making is really confined to circumstances where they're dealing with DEI. So in this particular en banc decision, the Fifth Circuit held that the SEC is not permitted to approve NASDAQ's diversity disclosure rules. So there you are. Minimalism, yeah, but maximalism. Why not both? Anyway, finally, the Supreme Court is starting an online lottery today for public seating for oral arguments. They're starting it as a pilot program that will begin with

• 1:08:11Melissa Murray?

  the February 2025 arguments. It will begin as a hybrid system with some public seats being available via the lottery and some being available through the traditional in-person line. So if you want a front row seat to this disaster piece theater, just go to supremecourt.gov and check out the courtroom seating link and that will get you to the online ticketing page. I guarantee there's going to be some kind of Ticketmaster meltdown in the manner of the era's tour.

• 1:08:38Kate Shaw?

  With the wait, like with the tens of millions of Taylor Swift-esque fans just vying to get in to see them dig some cases. I don't know. I mean, if they take up the TikTok case, I think there will be a lot of interest. Like, there are things that will definitely generate, but I just don't get the sense, I haven't been there in a long time, but I don't get the sense that like the lines around the block are enormous.

• 1:09:00Leah Litman?

  Well, there are the occasional cases in which people camp out, you know, like overnight. And of course, that's what this is designed to address. But of, yeah, right, as a matter of course, it's not like there are hordes of people lining up to hear, you know, about Lanham Act profit disgorgements.

• 1:09:16Melissa Murray?

  I mean, I think that's only because nobody can tell who the Dewberry in question is.

• 1:09:22Leah Litman?

  I'm going to call one of you Dewberry from now on. Better than Dingleberry.

• 1:09:27Kate Shaw?

  Dewberry. That's true.

• 1:09:28Leah Litman?

  Dewberry Engineers, Dewberry Group.

• 1:09:30Kate Shaw?

  One last thing before we go. Critics are calling Empire City "the untold origin story of the NYPD," quote, "riveting, thought-provoking, and essential listening." If you haven't started it yet, now is the perfect time. It has been hailed by Vulture as not just an expose, but a call to action. In just eight episodes, Empire City takes you back to the origins of the NYPD and completely reframes the way we think about policing today. Listen to the series now, wherever you get your podcasts, or binge all episodes ad-free on Wondery Plus, in the Wondery app, or on Apple Podcasts.

• 1:10:03Leah Litman?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Heringer and Ari Schwartz. Matt DeGroot is our head of production. Thanks to our digital team, Phoebe Bradford and Joe Motoski. Subscribe to Strict Scrutiny on YouTube. To catch full episodes, you can find us at youtube.com forward slash at Strict Scrutiny Podcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 1:10:51Leah Litman?

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