Will the Court Actually Push Back Against Trump’s Unlawful Firings?

First, Leah and Melissa explain the legal battles around the ICE occupation in Minnesota and what might come after the killings of Renee Good and Alex Pretti. Then, Leah, Kate, and Melissa run through the latest legal news, including Jack Smith’s testimony before the House Judiciary Committee, before diving into this week’s blockbuster oral argument, Trump v. Cook, on whether Trump has the power to fire Lisa Cook from the Federal Reserve Board. They also cover the week’s other oral arguments, including a Second Amendment case where Sam Alito came out as woke…for guns. Finally, with apologies to the Fifth Circuit, a new nominee for America’s worst circuit court. Preorder Melissa’s new 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&next=t&affiliate=1688, out May 12, 2026. Favorite things: Melissa: Valentino Was the Last of Fashion’s Old Guard https://www.nytimes.com/2026/01/20/opinion/valentino-was-the-last-of-fashions-old-guard.html, Robin Givhan (NYT); The Supreme Court Just Held an Anti-Trans Hatefest https://www.thenation.com/article/society/supreme-court-trans-athlete-bans/, Elie Mystal (The Nation) Kate: The Purged https://www.theatlantic.com/magazine/2026/02/trump-federal-worker-layoffs-interviews/685321/, Franklin Foer (The Atlantic); There’s Much More at Stake in the Fed Case Than Interest Rates https://www.nytimes.com/2026/01/20/opinion/trump-federal-reserve-independence.html, Lev Menand (NYT); God of the Woods https://bookshop.org/p/books/the-god-of-the-woods-a-novel-liz-moore/c3cbf4f80cbe4a47?ean=9780593418925&next=t, Liz Moore; Broken Country https://bookshop.org/p/books/broken-country-reese-s-book-club-clare-leslie-hall/051a5eca2446f3fd, Clare Leslie Hall Leah: Lindsey Halligan being a shitty lawyer https://storage.courtlistener.com/recap/gov.uscourts.vaed.586311/gov.uscourts.vaed.586311.23.0.pdf; Mark Carney at the World Economic Forum https://www.youtube.com/watch?v=izDAOvHz5Wc; Stand With Minnesota https://www.standwithminnesota.com/; Your Friendly Neighborhood Resistance https://nymag.com/intelligencer/article/minneapolis-vs-donald-trump-ice-invasion.html, Kerry Howley (New York Magazine) 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.

• 0:00Melissa Murray?

  Strut, Strut & Toot is brought to you by Americans United for Separation of Church and State. We're all legal nerds here, and we know that precedent set in any area of the law ripples out across our lives in so many ways. And our right to religious freedom is one of the most sacred areas of the law. It protects almost every aspect of our daily lives, rights we all hold dear, like LGBTQ+ rights, freedom to choose the type of healthcare you need, and ensuring a well-funded and inclusive public school system. Protecting the separation of church and state is, in fact, protecting the very foundation of our democracy. If you're looking for ways to more deeply understand the connection of and from religion to so many of the civil justice issues we see today, you should check out the Summit for Religious Freedom, or SURF, an annual conference held in DC and virtually,

• 0:45Melissa Murray?

  April 25th through 27th in 2026. At SURF, advocates, organizers, faith leaders, atheists, and everyone in between will come together to take on the growing threats of Christian nationalism and the efforts to impose one narrow religious belief on all of us. This is a movement for big change and collaboration across the entire spectrum of religious belief and non-belief. It strengthens our democracy, it will protect public schools and reproductive and LGBTQ+ rights, and so much more. So be a part of the movement that's pushing back and standing up for freedom. You can register to attend today at thesurf.org. That's T-H-E-S-R-F.org.

• 1:24Speaker 01

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor J.B. Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Espina, Simone Sanders Townsend, Eugene Daniels, David Pakman, Jessica Tarlov, Heather McGee, and then all the other people that we've announced on the website. Plus, more to come. Great list. Check out the full lineup and get tickets right now at crookedcon.com. We'd love to see you there. That's crookedcon.com.

• 1:56Leah Litman?

  Hi, everyone. It's Leah.

• 1:58Melissa Murray?

  And Melissa. After we originally recorded today's episode, ICE officers, more than one of them, shot and killed another American citizen in Minnesota. The victim this time is Alex Jeffrey Preddy. This is the second killing this month. We wanted to talk briefly about what happened in Minnesota, in part because those are the wishes of Alex Preddy's parents, who survived him. We also wanted to do so to just talk about what is happening and to briefly answer some common questions that we received from listeners. And then we'll share today's regularly-recorded episode with you.

• 2:33Leah Litman?

  So Alex Preddy was a 37-year-old intensive care unit nurse at a Veterans Affairs Medical Center in Minnesota. On Saturday morning, he, along with other Minneapolis residents, was observing and monitoring ICE officers patrolling and terrorizing the neighborhood. We are going to describe what happened based on the videos we watched and the witness declarations that have been filed in several cases. We're not going to tell you to go and watch the videos. They are gutting. But DHS and the federal government are once again lying about what happened and smearing the memory of the person they killed. Last week, it was reported that DOJ attempted to get a warrant to investigate Renee Good, the last person they shot and killed, only to be told by a judge that,

• 3:17Leah Litman?

  no, the dead woman probably isn't a proper subject of this investigation. Even if you don't watch the videos of what happened to Alex Preddy, you owe it to Alex Preddy and the many other Minnesotans who are putting their lives on the line every day to find out what happened. So find a source you trust to describe the video or watch it. New York Times, CNN, many other outlets have breakdowns.

• 3:40Melissa Murray?

  The videos show that mere minutes before he was killed, Alex Preddy was holding up a phone, filming officers as they, quote unquote, enforced the law. Again, we cannot emphasize enough, that was within Alex Preddy's rights to do. You have a right to be able to observe law enforcement and even to film them while they are doing their jobs. A witness declaration describes Preddy as directing traffic as people gathered and blew whistles to alert the neighborhood to the presence of ICE officers. Witnesses then note that officers confronted Preddy and another observer. And in the videos, you can see multiple officers dragging Preddy to the ground where they appear to beat or pistol with him.

• 4:25Melissa Murray?

  You could also see the officers, or an officer, disarm Alex Preddy. Alex Preddy was carrying, not brandishing, a gun. According to his family, he had a concealed carry permit and was lawfully authorized to carry a weapon on his person. And it is important to note that the Supreme Court confirmed this facet of the Second Amendment a few years ago in Nysurpa versus Bruin. We'll have more on the Second Amendment in this topper, but also later in the episode. But I will just say, apparently, the Second Amendment is only a second-class right if you are protesting the government. More on that in a bit. According to the witnesses' testimony in the videos, Preddy was not brandishing his weapon or threatening anyone with it.

• 5:06Melissa Murray?

  He was just carrying it on his person as he was legally authorized to do. You can also see in the videos that Preddy puts up an arm, which again, is not holding any weapon, in part to protect a woman who is being pepper sprayed alongside him. And Preddy's last words to the woman he was trying to protect were, quote, "Are you okay?" He was then shot multiple times and died from his wounds.

• 5:32Leah Litman?

  So a witness declaration was filed, in a case I will describe in a second, by a, quote, "children's entertainer who specializes in face painting," who took one of the videos. She recalled, quote, "It didn't look like Preddy was trying to resist, just trying to help the woman up. Four or five agents had him on the ground and they just started shooting him. I don't know why they shot him. He was only helping. I was five feet from him. I have read the statement from DHS about what happened, and it is wrong. I feel afraid. I don't feel like I can go home because I heard agents were looking for me. I've heard that other witnesses might have been arrested and taken to a federal building." A second declaration was filed by a medical resident who also observed the shooting and then attempted to check on Preddy.

• 6:14Leah Litman?

  After initially being refused access, he found Preddy lying on his side after agents said they didn't know if Preddy had a pulse. The agents were not administering CPR but were counting bullet wounds on Preddy. The doctor observed three gunshot wounds in Preddy's back. What case were these declarations filed in? Some Minnesota residents had sought and obtained an injunction that prevented ICE officers from using tear gas and pepper spray on people who were merely observing the officers. The injunction also barred ICE from using non-lethal munitions in various scenarios. A district court granted that injunction. Then, the U.S. Court of Appeals for the Eighth Circuit stayed the injunction, allowing the ICE officers to go back to tear gassing, pepper spraying, and more. A few days later, this incident happens.

• 6:59Leah Litman?

  The doctor who tended to Preddy and observed the shooting describes being basically unable to shelter in the doctor's own apartment as the tear gas sept in. These declarations were filed by the plaintiff's lawyers in an effort to get the Eighth Circuit to reinstate the district court's injunction. And there is yet another pending case with a hearing previously scheduled for Monday, today, the day this episode airs, and the case that has been brought by Minnesota that seeks to enjoin the entire mass ICE deployment, Operation Metro Surge, on several grounds.

• 7:27Melissa Murray?

  A few observations we hope might inform or contextualize the commentary that you may be hearing at this time. First, we've heard an awful lot from the Republican Party and this court about people's right to possess a firearm. Indeed, in this episode, you will hear advocates and Republican appointees talking about how the Second Amendment gives you a right to enter private property with your gun, regardless of whether the owner of that property wants you to do so. We just want to suggest the radical idea that it cannot be that everyone is allowed to carry a gun for their safety, but the government can still murder you in the streets if you lawfully possess a gun.

• 8:08Melissa Murray?

  Having a gun, we are told, does not make you a criminal, except, apparently, when you are protesting the government. Even more maddening is that the Republican Party and the court have attempted to justify the Second Amendment right to carry and possess a firearm by saying that people have a right to defend themselves, wait for it, from the government. We have been told for decades that America must tolerate mass shootings because the broad availability of guns would help us defend ourselves in the event that the government took a turn and became tyrannical. Hmm.

• 8:43Leah Litman?

  I thought that happened when Joe Biden canceled student debt.

• 8:47Melissa Murray?

  Apparently, that was it. You can't, I mean, literally, you cannot make this stuff up.

• 8:54Leah Litman?

  No.

• 8:55Melissa Murray?

  Anyway, just to reiterate and put a finer point on it, Alex Preddy was the lawful owner of the firearm that he was legally carrying. It wouldn't matter if he wasn't carrying it legally. Officers still wouldn't be permitted to shoot him simply for having the weapon. They can only use lethal force where they reasonably feel that they are in imminent danger, which they could not have felt, given that he had already been disarmed. They were pepper spraying him and multiple agents were restraining him. So, again, the gun rhetoric around Alex Preddy and what he was or wasn't doing doesn't add up, given what the agents did in advance of the fatal shooting.

• 9:36Leah Litman?

  The administration, I mean, they unleashed on train zealots and masks with guns. They ramped up rhetoric about the awful terrorists in Minnesota, told the officers they have absolute immunity, even though the officers do not have absolute immunity. They refuse to investigate officers who shoot and kill citizens and instead smear the people who are killed, all while insisting that the federal officers are the victims. Here is Greg Bavino making the media rounds yesterday.

• 10:01Kate Shaw?

  With respect, it feels as though, in some ways, you're blaming the victim here.

• 10:05Speaker 04

  The victim, the victims are the border patrol agents. I'm not blaming the border patrol agents. The victim are the border patrol agents.

• 10:13Leah Litman?

  Their position, as you were saying, Melissa, seems to be something like, this man who was exercising his First Amendment rights was therefore violating ours. He aggressively attacked a canister of pepper spray, was laying on the ground, which is obviously very dangerous when he had a firearm that we'd already taken from him. This is basically like a Pearl Harbor on ICE agents. Oh, and the firearm is a model that accidentally might go off, something we could definitely see while forcing him to the ground. And again, we're so concerned that the firearm we had taken from him might go off that we had to shoot him in the back. Like, that is the narrative.

• 10:47Melissa Murray?

  I've got nothing. So we got a couple of listener questions that we should tick through. So one question we received from a listener is, why won't state officers prosecute the federal officers here? And the short answer is that the state can prosecute these federal officers, but there are several obstacles to doing so. One, the state of Minnesota has to be able to investigate what happened here. And there are reports that the federal government is and was obstructing any state attempt to investigate the situation. They are arresting and detaining witnesses. They won't give the state of Minnesota the names of the officers who were involved. They are blocking state officers from accessing the crime scene. And

• 11:28Melissa Murray?

  this has been so robust, the federal obstruction into the state investigating this, that the state government has already obtained an order from a judge, a Trump appointee, no less, who has ordered the federal government not to destroy evidence. Like, get that. A Trump appointee worries that what the federal government is doing in this moment is literally destroying evidence. Minnesota is, in our view, trying to investigate and possibly bring a prosecution against the officers. The state officers who were on the scene did not just go away after ICE directed them to do so. And now the state is suing to get ICE out of the state and to stop ICE from obstructing any investigation that the state might launch.

• 12:13Melissa Murray?

  So Minnesota is doing stuff. Again, this is a really volatile and, I think, unprecedented situation. I don't know that we've ever seen any situation where the federal government has been this vehement about prohibiting the state from being involved in an investigation.

• 12:30Leah Litman?

  And after the state investigates, the state could launch a prosecution. But federal officers have a right to remove their case to a federal court. And I just told you what the Eighth Circuit, which handles cases from Minnesota, did with an injunction that had been issued against ICE enforcement practices. Federal officers can also raise what's called supremacy clause immunity as a defense. They can argue they are immune from criminal charges on the ground that they were acting pursuant to federal duties and doing what is reasonably necessary to carry out those duties. Now, the video suggests that defense shouldn't apply here. But the reality is, there's very little case law on this topic. As Melissa notes, this is unprecedented. And this is part of what makes the investigation so important.

• 13:14Melissa Murray?

  Other listeners have asked, what about federal prosecutions? And we just want to say, think about it. You know who's in charge of launching federal prosecutions here. And I have to say, we have seen the federal government just jump into the moral void of not even pretending to wait for information about the shooting. They have immediately issued blatant lies about the victims in these shootings. They've suggested that Alex Preddy somehow deserved what happened to him on Saturday morning. Really, the government's message seems to be, if you disagree with us, we can kill you. The end. The country's leading law enforcement officer, one Pamela Jo Bondi, made clear in an absolutely

• 13:58Melissa Murray?

  ghoulish letter that the federal government is essentially extorting the state of Minnesota. The letter, which Senator Chris Murphy of Connecticut also discussed on cable news this weekend, suggests that ICE would withdraw from Minnesota if the state turned over to the Trump administration its voter rolls, which is definitely not about enforcing immigration laws. Maybe necessary to enforce the Voting Rights Act. Wilbur Ross would like a word, but not necessary to enforce immigration laws. The letter also notes that the federal government would like additional information on Medicaid and SNAP benefits, which, we should note, are also not about immigration enforcement.

• 14:43Melissa Murray?

  So, again, this campaign of terror seems to be about a lot of things. I don't know if it's necessarily about making sure that immigration laws are properly enforced against the people that this administration campaigned on enforcing those laws against.

• 14:59Leah Litman?

  No. So another common question we get is, well, what about civil suits that might be filed by the family? Well, this is part of why we are a Supreme Court podcast. In order to sue anyone, you need what is called a cause of action, a legal authorization to bring suit. Congress has not passed a law that says you have a cause of action to sue federal officers for damages who violate your constitutional rights. Congress has a law that says you can sue state and local officers. That's Section 1983, but it doesn't apply to federal officers.

• 15:32Melissa Murray?

  Obviously, this gap means that some people are left without recourse and without a remedy when their rights are violated by federal officers. The Supreme Court, back when it was still into this odd concept called the rule of law, decided a case that is known as Bivins versus Six Unknown Agents of the Federal Bureau of Narcotics. In Bivins, the court said that where federal officers violate your constitutional rights and you don't have a remedy unless you could sue them for damages, then you are permitted to sue the officers for damages. That is, to keep the federal government within the bounds of the law and to vindicate your rights, including your Fourth Amendment rights.

• 16:11Leah Litman?

  Well, guess what? This court hates Bivins. Several justices have called for it to be overruled, and the court's Republican appointees have said, "You can't sue federal officers for damages for violating your constitutional rights unless your case is basically exactly like the three cases where the Supreme Court had recognized a Bivins cause of action." None of those cases involve ICE officers being deployed in this way and using lethal force against people observing them and trying to protect others.

• 16:40Melissa Murray?

  And that, basically the lack of a cause of action for individuals to bring a civil suit against the officers, would essentially extinguish the prospect of civil litigation, even before you got to the question of whether the officers would be entitled to qualified immunity. And if you don't know what qualified immunity is, go back into the Stricksetonian archives. We have an amazing episode with Joanna Schwartz of UCLA Law about her book, "Shielded," which is all about how the Supreme Court has essentially immunized federal officers and state and local officers from any kind of responsibility or accountability because of qualified immunity. It's a terrific episode.

• 17:20Leah Litman?

  Yeah. And we say all of this in discussing these questions, not to make you resign to there being no consequences, but instead to underscore the bravery and the importance of what Minnesotans are doing, including Alex Preddy. They are documenting what is happening and risking their lives when they do so to get people to care, to stand up, you know, to stand with them and to do something to an innocent. ...able justice to be done, perhaps eventually, if you get enough people, including people in power, to say no more. I mean, imagine what the federal government, DHS, might think they could get away with if there were not videos, you know, if Minnesota was not attempting to engage in investigations.

• 17:58Melissa Murray?

  And to be clear, that's kind of the point of what is happening here. The fact that you could wind up dead if you go out to film officers, if you are killed, that you would be smeared and your family would basically have to recuperate your reputation in the face of what the federal government says about you, that's all meant to be a deterrent to ordinary people going out, exercising their First Amendment rights, observing what the government is doing, and essentially making their displeasure, making their objections to what is happening in their name known. So this is not just about a show of force. It's truly about deterring this from happening in other places. So, folks, if that's not your bag, if you don't like the federal government cowering you into silence, if

• 18:43Melissa Murray?

  you're looking for something to do, some action item, one thing you can do is call your congressional representatives. Tell them not to fund DHS or ICE while they are terrorizing Minnesota and preparing to terrorize other cities. Tell them to add a provision to federal law allowing individuals to sue federal officers, or at least these officers who violate their constitutional rights. As always, think about how you can help your community and keep people safe. And if you want more reading on this, we recommend M. Gessen's "State Terror Has Already Arrived." That was a piece in the New York Times. It describes how the Trump regime, quote, "seeks to reduce us all to a state of constant fear, a fear of violence from which some people may, at a given moment, be spared, but from which no

• 19:28Melissa Murray?

  one will ever truly be safe."

• 19:31Leah Litman?

  So we mentioned up top that we are doing this episode topper in part because Alex Preddy's family has asked people to, quote, "get the truth out," end quote, about their son. We are not going to read their statement in full, in part because I will just start sobbing again if we do, but you should. It begins with, quote, "We are heartbroken, but also very angry. Alex was a kind-hearted soul. His last thought and act was to protect a woman. The sickening lies told about our son by the administration are reprehensible and disgusting. Please get the truth out about our son. He was a good man."

• 20:04Melissa Murray?

  On that note, we wanted to end by playing a clip that was posted to social media by the son of one of the veteran patients that Alex Preddy attended to as part of his work at the VA hospital. It is Alex Preddy reading out the final salute of a veteran he cared for until the end of his life in the intensive care unit. This was posted to Facebook by the veteran's son with a note of gratitude to Alex.

• 20:25Speaker 05

  Terrence Lee Randolph, March 30th, 1947, December 10th, 2024. Today, we remember that freedom is not free. We have to work at it, nurture it, protect it, and even sacrifice for it. May we never forget and always remember our brothers and sisters who have served so that we may enjoy the gift of freedom. So in this moment, we remember and give thanks for their dedication and selfless service to our nation in the cause of our freedom. In this solemn hour, we render them our honor and our gratitude.

• 20:58Melissa Murray?

  And now to our originally scheduled episode.

• 21:03Speaker 06

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

• 21:15Speaker 07

  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."

• 21:33Melissa 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 today. I'm Leah Litman.

• 21:54Kate Shaw?

  I'm Kate Shaw.

• 21:55Melissa Murray?

  And I'm Melissa Murray, and we have a jam packed episode for you. We are going to start off with some legal news, and there is a lot of legal news. And then we are going to pivot to cover the oral arguments that the court heard last week. And then we will close it out with opinions, some happenings around the country in the various courts. And then, of course, we will end with our favorite things, which, per usual, are not opinions of the United States Supreme Court. First up, the legal news. We learned this week that Vice President of the United States JD Vance and his wife, the second lady, Usha Vance, are expecting a baby. Congrats to them. They are expecting a boy who will arrive in July. Now, this has prompted

• 22:36Melissa Murray?

  some internet chatter that I feel we have to reckon with in some way. So first of all, some people on the internets, Leah and Kate, are calling this a Band-Aid baby. And I did not know what that meant. So in the spirit of just the tip, I'm going to ask you to gently tell me what this means.

• 22:55Leah Litman?

  Seriously? A Band-Aid baby?

• 22:57Melissa Murray?

  What is a Band-Aid?

• 22:58Leah Litman?

  You didn't know what that meant?

• 22:59Melissa Murray?

  I did not know. What is it?

• 23:00Leah Litman?

  A fix-the-relationship baby?

• 23:02Melissa Murray?

  I didn't either, but... Did you not know either? No, no. Okay, I was like, is a baby already got a boo-boo? Like, what is happening in utero that the baby needs a Band-Aid? Okay. You got a wound. Oh, so this is like related to... Okay, so this explains why the other people that I was noticing on the internets were doing some calculations to determine the time that the Vance baby was conceived. And they were talking about the proximity to that moment when Erica Kirk rubbed JD Vance's head on stage. And so maybe this is all related. That is how pregnancy happens.

• 23:35Leah Litman?

  Are you saying it was an immaculate conception?

• 23:37Melissa Murray?

  Rub his head. There you are. That's how we're going to solve the birth rate problem.

• 23:45Leah Litman?

  The birds and bees.

• 23:46Melissa Murray?

  That's how we're going to solve it. Anyway, congrats to them. Great. Okay. And other news.

• 23:54Leah Litman?

  So we also learned last week, the Associated Press reported the existence of an internal Immigration and Customs Enforcement memo dated May 2025 from ICE Acting Director Todd Lyons, in which he advised ICE officers and agents that they can forcibly enter homes of people subject to deportation orders without warrants that are signed by judges. Whistleblowers shared the memo with members of Congress. The group whistleblower aid, which is representing the whistleblowers, said this policy flies in the face of longstanding federal law enforcement training material and policies all rooted in constitutional assessments. Fact check true, right? Definitely inconsistent with the Fourth Amendment. You know, the executive branch, executive officers, you know, they have these administrative warrants.

• 24:37Leah Litman?

  They are not just allowed to declare, oh, by the way, we can enter homes without warrants. Not how any of this works. We would really like to see what possible legal arguments some geniuses have produced to justify this apparent conclusion. My guess, it has something to do with the black codes.

• 24:56Melissa Murray?

  In other news, we also learned this week that ICE detained a five-year-old. It was the photo listeners that gave words to the horror that so many are feeling about ICE's presence in Minnesota. The picture was of five-year-old Liam Conejo Ramos, who is standing by while ICE arrested his father. Father and son are apparently asylum seekers from Ecuador. And the facts of the child's detention by ICE are very much in dispute. So some maintain that Liam was separated from his father and then was used as bait by the ICE officers to try and get other immigrants who were living in this home to open the door so that they in turn could be apprehended by ICE.

• 25:40Melissa Murray?

  The administration maintains, however, that Liam's father fled from the ICE agents, leaving the child on his own. Both Liam and his father were taken to Dilly, Texas, which is just outside of San Antonio, where they are being held at an immigration detention center, according to Mark Prokosh, who is a lawyer working with the family.

• 26:00Leah Litman?

  This is not the first five-year-old at this particular school that ICE has detained and trafficked to another state. And if you have not seen the image of this little boy bundled in a blue hat and backpack.

• 26:14Melissa Murray?

  It's like a Pokeyman hat with a Spider-Man backpack.

• 26:17Leah Litman?

  You need to look at it and just stare it in the face to see what is happening.

• 26:21Kate Shaw?

  Yeah, it's a devastating image and I think has rightly produced additional horror at ICE's tactics. And the horrors are just compounding because we also learned last week that a Cuban detainee in ICE detention has died in a death that has been ruled a homicide. So this is Geraldo Lunas Campos, who is 55 years old, who died on January 3rd in ICE custody at East Camp, Montana. This is according to DHS and his death, according to an autopsy report from El Paso County, has been ruled a homicide. So.

• 26:53Leah Litman?

  The officials determined that Campos died from asphyxia due to neck and torso compression. Attorneys for Campos's family filed an emergency petition last week on Tuesday to prevent those who may have witnessed the death from being deported. This petition was granted by a federal judge, and Campos is already the third detainee to die at this particular facility, East Camp Montana, which only opened last year. And in case you didn't realize, we were really living through the horrors that some people, you know, projected another Trump administration would be when they envisioned what the headlines and whatnot would look like. Former CNN anchor Don Lemon found himself in the administration's crosshairs. Last week, Lemon, you know, a journalist, attended a broadcast, a protest at a St. Paul

• 27:38Leah Litman?

  church. The church was the site of the protest, apparently, because a pastor at the church serves as the acting field director of a local ICE office. Videos of the protest and Lemon's coverage of it went viral, and the Trump administration, of course, went after him. You know, they tried to bring criminal charges against Lemon, but a federal magistrate judge refused to sign off on the charges, a move that reportedly enraged Attorney General Pamela Jo Bondi. Generally, federal prosecutors can go before a magistrate judge for a determination that there's probable cause to initiate criminal charges. A grand jury must then return an indictment. While there are other ways the DOJ could move to charge Lemon, a magistrate judge's refusal to sign off on the case, extremely rare, is not a good sign for the government. And I hope it suggests a grand jury would be quite skeptical, too.

• 28:22Leah Litman?

  Abby Lowell, who was representing Lemon, called the administration's actions "another attempt to deter negative coverage and to cower the media." And that seems clearly true. And because, as Melissa said, this was a very, very busy week, we have yet more legal news to bring you. Last week, former special counsel Jack Smith testified publicly before the House Judiciary Committee. This was an all-day hearing on Thursday, and parts of it were pretty wild. It's clear why the hearing was called. Jack Smith is continuing to live rent-free in Donald Trump's head, and the Republicans in Congress still haven't figured out to whom they should pledge their allegiance in this lame duck season other than Trump. And so, at his behest, whether explicitly or not, they convene. This hearing, they used the hearing to flog claims that Trump has been the victim

• 29:07Leah Litman?

  of lawfare, that the legal system has been weaponized against him, Donald Trump. They also wanted clearly to discredit Jack Smith and paint him as some kind of lackey for the Biden administration. They droned on incessantly about Smith subpoenaing congressional toll records.

• 29:23Melissa Murray?

  This was like probably the biggest topic in the hearing. Toll records are just phone records. Here at issue, the toll records were records from the phones of members of Congress. But these toll records are basically just like metadata. They contain numbers called and length of time of phone call, but not like the words exchanged. There's no substantive content. Smith and his team asked for those records so they could piece together the timeline from January 6th, who was calling whom and when. And Republicans tried to act as though this was Watergate 2.0, the way, way, way worse, and Smith was bugging all of their phones. For his part, Smith was really disciplined. He gave measured answers about how he came to be the special counsel, charged with investigating and prosecuting a former president for election fraud and improper document retention.

• 30:06Melissa Murray?

  And he was uncowed and unapologetic about the choices that he made as special prosecutor. And, you know, the choices he made were to charge someone who clearly to him had committed crimes with those crimes. Sort of end of story. I will say, I thought the Democrats on the Judiciary Committee acquitted themselves reasonably well. Many of them, I think, properly viewed the hearing as an opportunity, in fact, maybe the only opportunity for Jack Smith to ventilate the case that he had amassed against Donald Trump, the kind of information that would have been aired at a public trial if not for the Supreme Court foot dragging for months and months and months and preventing the prospect of a trial and then giving Donald Trump immunity toward the end.

• 30:51Melissa Murray?

  So many of these Democratic representatives actually just let Jack Smith cook. They just gave him a question, just let him go, and he told his story about how he'd amassed this evidence, what the evidence was, and his very firm belief that he could have successfully prosecuted the case against Donald Trump to a conviction beyond a reasonable doubt. But not all Democrats. Were as disciplined in doing this. So there were many who I think tried to be very helpful, clarifying the whole toll records issue. Jamie Raskin did this. And that made sense because the Republicans were flogging it to death. But a couple of Democratic members, and I'm looking at you, Chewie Garcia and Jared Moskowitz,

• 31:32Melissa Murray?

  decided to follow Jamie Raskin's lead by doing a little this you internet trolling. By this, I mean, at one point, Jamie Raskin noted that one of the Republicans who had just very sternly questioned Jack Smith had actually been someone who, in the immediate aftermath of January 6, had denounced the activities and the conduct that had happened on that day. And now here that person was in the chamber, denouncing Jack Smith and basically big upping Donald Trump. We all got it. We get it that these folks are feckless hypocrites who are nothing but obedient to Donald Trump. But Chewie Garcia and Jared Moskowitz, I thought, wasted a lot of precious time simply going through the list of all

• 32:16Melissa Murray?

  of the Republicans who had kind of done an about face on January 6. And it just, it wasn't necessary. I get it. But I think more time spent letting Jack Smith cook would have been great.

• 32:29Leah Litman?

  So the hearing brought out many individuals who witnessed the January 6 assault on the Capitol. Capitol Police Officers Harry Dunn and Michael Fanone were in the gallery, as was E. Stuart Rhodes, the founder of the Proud Boys, who had been convicted of seditious conspiracy in conjunction with his actions on January 6. Trump commuted Rhodes' 18-year sentence on the very first day of Trump's second term. Other thoughts on the hearing?

• 32:55Melissa Murray?

  Well, I love that the hearing had a little scuffle, some fisticuffs. That was interesting. So at one point, Michael Fanone, who was in the gallery, along with Harry Dunn and two other former Capitol officers, was seated in front of Ivan Raklin, who is apparently a conservative provocateur. And they kind of got into a little argument, altercation. And the whole chamber had to basically be gavelled back into So that was a little raucous. I thought there was also a very unnecessary and unfortunate moment where Texas Representative Niels lectured the members of the Capitol Police, who were in the chamber, on who exactly was responsible for the violence that took

• 33:39Melissa Murray?

  place on January 6. And here's a hint, it was not Donald J. Trump. And his statement that it was really the fault of the head of the Capitol Police prompted some incredulity and also a little profanity from the Capitol officers in the gallery. And so I thought that was interesting. You know, at one point, Michael Fanon was shown giving the representative the finger. Don't we all wish we could do that sometimes?

• 34:05Leah Litman?

  I appreciated it.

• 34:07Melissa Murray?

  Another time, he coughed into his hand and apparently he was like, go fuck basically. He was wearing a T-shirt that said, Hunting Nazis Since 1996. I mean, Michael Fanon had zero fucks left in the tank. So there we are.

• 34:22Leah Litman?

  One, just kind of final broad thought on the hearing. I did think that in the age of Pamela Jo Bondi, and Todd Blanch, and Hermine Dillon, and until last week, Lindsey Halligan, I actually think there is some real utility in reminding the public of what an actual federal prosecutor sounds like. And that is not the list of people I just offered, but in fact, Jack Smith.

• 34:43Melissa Murray?

  I love that your takeaway from this was a high minded thing about the importance of federal prosecutors being independent. And we're like, and then this guy said, fuck yourself.

• 34:51Leah Litman?

  Well, you use the fuck yourself draws in the listeners and then maybe they are the, you know, the viewers of the hearing. And then maybe they actually listen to Jack Smith. So I think both are important to the larger, you know, restoration of democracy, ladies.

• 35:04Melissa Murray?

  Why not both?

• 35:05Leah Litman?

  High and low. Other goings on, other goings on in Article One, the House Oversight Committee voted on January 21 to hold former President Clinton and former Secretary of State Clinton in criminal contempt of Congress after the couple defied a congressional subpoena by refusing to testify in connection with the panel's investigation into the Jeffrey Epstein case. The panel's Republican members said they gave the Clintons plenty of chances to appear, but they refused to show for their scheduled closed door depositions. The Clintons have called the subpoenas legally invalid and said they have already shared with the committee what little information they know.

• 35:38Melissa Murray?

  Now, to be clear, the Clintons have turned over information to the committee. They have offered alternatives to testifying under a different format. Democrats have urged the committee to try to negotiate an interview with former President Clinton, who apparently is willing to cooperate. We should say contempt of Congress is a rare charge, but not unheard of. During the Biden administration, Steve Bannon and Peter Navarro each actually served time in prison after failing to cooperate with the investigation into the January 6th attack on the Capitol, and then being held in contempt and criminally prosecuted for contempt of Congress. So I will say one thing about this. Say what you want about whether the Clintons are being defiant or whether they're trying to cooperate. They're keeping the Epstein files in the news, even though there is so much other stuff going on that could overshadow the fact that DOJ has been absolutely recalcitrant in

• 36:23Melissa Murray?

  releasing those files as they are required to do by law. So I think that is the silver lining of all of this. Speaking of documents, internal DHS documents that were unsealed by a federal judge last week have revealed new details about how the Trump administration decided to target student activists for deportation. The tranche of documents, which were part of the record in AAUP versus Rubio, contained memos that were prepared by the Department of Homeland Security and sent to the State Department. The memos recommended the deportation of five students: Mahmoud Khalil, Ramisa Osturk, Mosin Badwadi, Badar Khansuri, and Yunsef Chang. And the memos detailed that the five students had participated in pro-Palestinian protests

• 37:07Melissa Murray?

  and had written things in their respective school publications about the war in Gaza. All five were in the United States lawfully, but were arrested and threatened with deportation last spring. All of these documents were part of the record that Reagan appointee Judge William G. Young relied on in ruling that the administration had violated the students' constitutional rights. However, per the administration's request, they had remained sealed because they contained information regarding some other investigations. That said, The New York Times petitioned to unseal the documents, and that request was granted by Young last week, making these documents public.

• 37:45Leah Litman?

  So in a recent episode, we mentioned that the US Court of Appeals for the Third Circuit had actually overturned the district judge's decision that he had jurisdiction to release Mahmoud Khalil, you know, from immigration detention and, you know, defer or block his removal. In light of that decision, the administration has announced that it is threatening or will be attempting to carry out an arrest and deportation of Khalil to Algeria. This administration is definitely ramping up the abusive punitive deportations. It has also announced, you know, on the heels of mass protests in Iran, in which the regime responded by killing, you know, thousands of people, that it has planned to restart deportation flights to Iran.

• 38:29Kate Shaw?

  Okay, last piece of legal news up front. Last Wednesday, in a court filing, the Department of Education, still exists, right, albeit in a skeletal format, moved to dismiss its appeal, leaving in place a federal judge's August decision finding that DOE guidance telling schools and colleges that they would lose federal money if they maintained a wide range of practices that the administration labeled unlawful DEI, violated the First Amendment and federal laws regarding agency policymaking. So just to break that down, DOE lost in the district court. Administration was initially appealing and has now moved to dismiss its appeal, letting its loss, the administration's loss, stand. DOE didn't immediately comment when it decided to withdraw its appeal, but Democracy Forward, the legal

• 39:13Kate Shaw?

  advocacy firm, whose head's Scott Perryman, we've had on the show several times, calls the dismissal a welcome relief and a meaningful win for public education. So a little bit of good news.

• 39:23Leah Litman?

  This is why you stand up and fight back, right?

• 39:25Kate Shaw?

  Yes.

• 39:25Leah Litman?

  Sometimes they fold. Do not obey in advance.

• 39:28Kate Shaw?

  Yep.

• 39:28Leah Litman?

  Or consent.

• 39:29Kate Shaw?

  So good on Democracy Forward for bringing that case, too.

• 39:31Leah Litman?

  Yes.

• 39:36Melissa Murray?

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• 40:20Melissa Murray?

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• 41:05Melissa Murray?

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• 41:50Melissa Murray?

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• 42:30Melissa Murray?

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• 43:19Melissa Murray?

  So let's move on to the argument recaps. The Supreme Court has just finished two weeks of arguments. We covered the first week of the sitting in our last episode. We will now focus on the second week of the sitting, and it was a real doozy of homosexuality and muscular executive power. Let's start first with Trump versus Cook. For those of you who have been living under a rock, damn, bring me with you. I want to live under a rock too and forget all of this. This case concerns whether the president can remove Lisa Cook, the first black woman to serve as a governor of the Federal Reserve Board. To be very clear, this is not exactly the same kind of challenge as the one that the court recently heard in Trump versus Slaughter. That case involves the removal of FTC Commissioner Rebecca Slaughter, and it is a direct challenge

• 44:04Melissa Murray?

  to the law that creates the FTC and insulates its commissioners from executive removal. Here, the administration is not challenging the law that structures the Fed and insulates its government. From removal. Instead, the president is arguing that he is complying with that law and operating within its strictures because he contends that he has ample cause to remove Lisa Cook. Specifically, he claims that prior to her appointment to the Fed, Cook falsified a mortgage application by characterizing the property in question as her primary residence, when in fact, it was going to be a second home. This information about the mortgage application came from Trump official Bill Pulte, who has made similar claims regarding mortgage

• 44:48Melissa Murray?

  fraud against New York AG Letitia James and California Senator Adam Schiff. Just reminding you that there are no new ideas. So Cook, in addition to forcefully refuting the factual allegations against her, argued that these allegations do not meet the standard for removal for cause, which, although is not explicitly defined in the statute, has long been understood as requiring

• 45:10Leah Litman?

  inefficiency, neglect of duty, or malfeasance. She also maintains that she was never given an opportunity to present her evidence, that is, due process, which the Constitution requires she be given to defend herself and her position against these charges.

• 45:24Melissa Murray?

  The president, in this case, for his part, says that the mortgage fraud allegations are sufficient to remove Cook, and they're totally not a pretext for removing a governor and installing your own lackey, who will vote to lower interest rates so you and your cronies can enjoy a bustling economy in advance of the midterm elections. He also claims that his decision that there is ample cause to remove Cook is unreviewable by any court. Sounds weirdly autocratic and monarchical and like a death sentence for Fed independence, which is kind of the point, I think. Paul Clement, the former Solicitor General in the George Bush administration, who was arguing the case on behalf of Lisa Cook, made this very point.

• 46:03Leah Litman?

  I think there needs to be judicial review of that question for all the reasons that were alluded to in the various colloquies, because if there's no judicial review, then this is all

• 46:12Melissa Murray?

  Kind of a joke. I mean, we can, we can sit here and posit that, well, this would be for cause and that would be for cause, but none of it would be matter because there'd be no judicial review.

• 46:20Leah Litman?

  Okay, so the case comes to the court in a pretty weird procedural posture. The president removed Cook via Truth Social, like really he did, as you do in this cursed timeline. Cook filed a lawsuit that challenged her removal. The federal district court issued a preliminary injunction blocking her removal. The administration then sought a stay of the district court's order at the intermediate appellate court, so the DC Circuit. That request was denied. And now the administration is before SCOTUS, seeking a stay of the preliminary injunction on a very limited record. And that limited record was actually a pretty significant issue in the argument last week. At one point, Justice Alito, of all people, asked Sauer whether the mortgage documents at issue were in the record, to which Sauer

• 47:03Leah Litman?

  basically said, yeah, they're in the Truth Social post, which is basically the same thing. So let's roll that tape here. Are the mortgage applications even in the record in this case?

• 47:15Leah Litman?

  I know that the text of the social media post that screenshots of the mortgage applications is in the record, but I don't recall if the paperwork itself is in the record, in the district court's record. In addition to taking aggressive positions about the limited availability and limited scope of any judicial review of the president's grounds for cause, the administration opted for several other go-big-or-go-home approaches. For example, it said that while federal courts generally have the authority to remedy wrongful removals by ordering reinstatement of a wrongfully fired official, the federal courts can only do so via a writ of mandamus. But wait! And oh, by, oh, by the way, the administration added, a writ of mandamus just isn't available

• 47:57Leah Litman?

  against the president, which means there is no way to reinstate an officer who has been wrongfully fired by the president in violation of federal law. As Justice Kagan pointedly remarked, if the only available remedy doesn't apply, what does this cause requirement even do? The answer seems to be decorative wallpaper. Extremely overpriced decorative wallpaper, or wait, is that a different

• 48:18Melissa Murray?

  Effort to discredit a Fed governor. I can't remember.

• 48:22Leah Litman?

  Yeah. Speaking of pretext, wait until we get to the Second Amendment, but back to Lisa Cook's case. The administration also resisted the claim that Lisa Cook was entitled to any process or procedures related to her removal. No real notice, no real hearing, no real opportunity to contest the charges against her. John Sauer would not even agree that an in-person meeting in the White House might be required, which was a suggestion floated by Justices Gorsuch and Barrett. At one point, Justice Gorsuch asked whether a meeting across a table in which the president says, "You're fired," would suffice.

• 48:52Melissa Murray?

  I actually thought he was trying to be funny, Justice Gorsuch, and it was a reference to The Apprentice, but no one seemed to be picking up what he was putting down. But Justice Gorsuch, I see you. I was around. He actually was. Gorsuch is usually not as funny as he thinks he is, but he was a little funny there. But yeah, nobody really got it. Which is itself funny. Like, I mean, I was like, oh, I remember, I remember that show. Like, that's, that show brought us to where we are today. That show is literally the reason we're in this. The reason that this timeline is as cursed as it is. Right. Very true.

• 49:23Leah Litman?

  If we just not had a writer's strike, and we were like, it's done scripted television. Damn it.

• 49:29Melissa Murray?

  All different.

• 49:30Leah Litman?

  Okay.

• 49:31Melissa Murray?

  So Sauer, representing the administration, did not seem interested in the prospect, whatever the origins of Gorsuch's hypo, he wasn't interested in the prospect of any kind of meaningful hearing in which Cook might defend herself. He instead took the, I thought, pretty unorthodox position that a Truth Social post is the process that is due under the Constitution. So let's play that exchange. Is Cook given the opportunity in some sort of formal proceeding to contest that evidence or explain it? Not a formal proceeding. She was given the opportunity in public because she was going to apply. In the world, like she was supposed to post about it, and that was the opportunity to be heard that you're saying is, was afforded to her in this case? Yes. Got to say, I think the drafters of the Fourteenth Amendment were like, "Truth

• 50:14Melissa Murray?

  Social, that might be enough. That might be okay." Would disagree. Yeah. And, you know, who else wasn't that excited about it was Justice Jackson, who at one point asked, "But what if she doesn't have a Truth Social account?"

• 50:26Kate Shaw?

  How would you know and respond? Yeah, it was pretty surreal that this administration would be defending essentially shitposting as constitutional due process, but that is where we are. And I actually found it especially difficult to swallow the administration insisting that none of the many unhinged things that the president says on Truth Social are remotely relevant or proper to kind of speak to the president's intent in all kinds of other contexts. But here, they literally constitute constitutionally adequate due process.

• 50:55Melissa Murray?

  I will say, that clip that you just played, Kate, the idea of the first black woman to sit on the United States Supreme Court, having to articulate what kind of process is due to the first black woman to sit on the Board of Governors of the Federal Reserve was just kind of wild to me. And she really pressed the point, I think, much more strenuously than maybe some of the other justices did. Like, she's like, what the fuck are you talking about? Like, you can just move people out of their jobs and they have like absolutely no recourse? They can't say anything about it? Like, be so for real? And I was really glad in that moment that she was there.

• 51:32Kate Shaw?

  Sarah was like, well, it's her fault for not having a Truth Social account that she can fire back with, because that's how law is done these days.

• 51:38Melissa Murray?

  Get yourself a Truth Social account.

• 51:42Melissa Murray?

  All right, so that was some of the minutia of the oral argument. Let's step back a bit, though, and kind of take the big picture view. It seems pretty clear, at least to me, I don't know what you all think, but I think the court is going to reject the president's request to remove Lisa Cook while this litigation is pending. So it's not to say that they are never going to say the president cannot remove Lisa Cook. They're just, for the pendency of this litigation, she has to remain in her position. And I want to just emphasize, I don't think that means that this court is suddenly interested in constraining a lawless president. And again, if you've been listening to this podcast, you know that this is merely just

• 52:23Melissa Murray?

  another ploy on the part of the court to appear independent, to burnish their independent laurels. But I think this is actually about something else, because the court was really, really... Concerned that anything that might prompt volatility around the Fed would in turn prompt volatility in the global economy, and that might provoke, I don't know, a massive recession that would really hit a lot of people, including the justices, where it hurt.

• 52:53Leah Litman?

  And that gave them a little pause, it turned out.

• 52:57Melissa Murray?

  Realpolitik, right? It was so wild that the kind of but the stock market mode of reasoning was as integral as it was to the justices' thinking, and also that there wasn't really any effort to even try to manufacture any principled explanation for this coming out differently from the way slaughter is likely to be decided. They're not trying to hide the centrality of but the stock market. It may even factor explicitly into the reasoning in the opinion. They might put it, we'll talk about this, but under the guise of the stay factors. But this is really just naked consequentialism. And even if you're maybe happy the president is gonna, you know, get a loss in this case, if you care remotely about principle and law.

• 53:36Leah Litman?

  I thought it was one of the most disheartening arguments I remember hearing before this court, truly. Yeah, so let's talk about the evidence of the but the stock market approach to this case. Here was part of Justice Kavanaugh's first intervention in the case during the sereatum period of questioning, when the justices take turns asking advocates questions. So here is America's favorite Fourth Amendment expert questioning Solicitor General John Sauer.

• 53:58Speaker 06

  Let's talk about the real world downstream effects of this, because if this were set as a precedent, it seems to me, just thinking big picture, what goes around comes around. All the current president's appointees would likely be removed for cause on January 20th, 2029, if there's a Democratic president, or January 20th, 2033. And then...

• 54:29Speaker 06

  We're really at at-will removal. So what are we doing here?

• 54:33Melissa Murray?

  If only the folks being detained by ICE were stockbrokers.

• 54:39Melissa Murray?

  Oh, my gosh.

• 54:39Leah Litman?

  Yeah. I wanted to pause on this particular remark for a second. You know, at other points, Coach Kavanaugh explicitly invoked and quoted from a brief filed by former Fed chairs and Treasury secretaries, which said a ruling for Trump would incentivize presidents to raise trivial, old allegations that are impossible to disprove. And in the clip we just played for you, Coach Kavanaugh also quoted from something that he said in his Senate confirmation hearing. You know, recall that when the Senate reconvened nominally to consider the allegations that he had sexually assaulted Christine Blasey Ford, Kavanaugh delivered, you know, the extremely emotional, angry, inappropriate tirade about how the allegations were part of a smear campaign and revenge on behalf of the Clintons. And in it, he warned, what goes around comes around.

• 55:23Leah Litman?

  And I just wanted to, I'm sorry to do this, but play that clip here, even if it forces you to relive the moment, just because it was so striking to me.

• 55:31Speaker 07

  This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups. This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades.

• 56:11Speaker 07

  This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country. And as we all know, in the United States political system of the early 2000s, what goes around, comes around.

• 56:33Melissa Murray?

  He really cares about retribution.

• 56:36Melissa Murray?

  He thinks a lot about it. Yeah, he does. And I had the same, my memory also went right back to the confirmation hearing when I heard that monologue. But back to the president's efforts, which this case really affords, to merge his desire for low interest rates with his antipathy for people of color holding positions of authority. Justice Barrett reiterated Justice Kavanaugh's suggestion that the importance of independent monetary policy would be central to the court's analysis. She basically asked, don't we have to consider the risk of a recession when we're thinking about whether to grant your application? So that is, again, folding the naked consequentialism into the stay factors. Let's roll that tape.

• 57:12Leah Litman?

  Jen, can I ask you a question that's also related to the stay factors? Justice Sotomayor brought up the public interest here, and we have embargoes briefs from economists who tell us that if Governor Cook is, if we grant you your stay, that it could trigger a recession. How should we think about the public interest in a case like this?

• 57:32Melissa Murray?

  Okay. If but the stock market, or really but our investment portfolios, is driving the analysis here, it seemed like a lot of the argument was devoted to the justices looking for ways to rule against the administration, but without having to say that the President of the United States is a liar and that the grounds that he gave for removing Lisa Cook are absolutely pretextual. It's not even clear to me, though, that they even want to go that far and say that much. They didn't give any indication that they wanted to elaborate what for cause would mean, what would constitute cause under this statute, or how courts should review the asserted grounds for cause. Instead, they just kind of floated a bunch of different possibilities about why Lisa

• 58:15Melissa Murray?

  Cook could stay in her position while the case was being litigated. And one possibility that the chief justice floated early on in the argument was that they could simply say something about the nature of the allegations in this case and how the allegations of wrongdoing, which might entail negligent or inadvertent actions, are such that the public interest doesn't weigh in favor of removing Cook immediately, but instead allowing her to continue serving while the case is being litigated. Another way to put this, the chief justice, but shorter, inadvertently filling out a mortgage application is not a reason to take my 401K. Right, yes. Right? Yeah, maybe they can just write that as the opinion. Per curiam. People make mistakes. Right.

• 59:00Melissa Murray?

  Let's not make another.

• 59:05Leah Litman?

  Okay, so that's one possibility. Another possibility, just to develop something I said before from the Barrett quote, is that the justices might just focus on the stay factor that is about where the public interest lies. So if there's a risk of recession from allowing the president to easily remove a Fed governor, maybe the public interest weighs against allowing immediate removal. Justice Jackson also kind of emphasized and drew out this point, asking really like, what is the public harm from allowing a Fed governor to continue to serve when no president has attempted to remove a governor in more than 100 years and both the presidency and the Fed have been functioning relatively smoothly? And then another possibility would be they might actually say something about process, right? Like whether it was adequate for a removal, the due process laid in Truth Social post that we were talking about.

• 59:49Leah Litman?

  Some of the justices actually did seem skeptical, despite Sowers' efforts, about whether the process that was due was in fact provided, asking questions such as like, what is the removal order, right? The Truth Social post itself, they were dubious.

• 1:00:06Melissa Murray?

  Now I'd like to tell you all about a brand new podcast, The Briefing with Michael Waldman. Michael is a former White House speechwriter, lawyer, and constitutional scholar, and he leads the Brennan Center for Justice, which works to repair and strengthen American democracy across a range of issues, from gerrymandering to abuse of presidential power, from reforming the Supreme Court to corruption and so much more. We've all worked with Michael and his team of experts, and we can tell you that no one understands these challenges better than they do. What makes the Brennan Center unique is that it's more than a think tank. It's focused on turning ideas into policy. And that's what I love about The Briefing podcast. You're going to hear new ideas, and you're going to learn about the strategies, the political fights, the deal making that will shape the next phase of American democracy.

• 1:00:50Melissa Murray?

  So if you care about American democracy, this is the podcast for you. You can subscribe and listen to The Briefing with Michael Waldman wherever you get your podcasts. And full disclosure, I am a board member of the Brennan Center, a proud board member, and I think this podcast is one, two star, and favorite. Strict Scrutiny is brought to you by OneSkin. Guess what, folks? I'm totally over new year, new me. Short-term fads never deliver long-term results, and those are the only results that I'm looking for. But guess what does? Science, especially when it comes to skincare. And that is why I love OneSkin. Their formulas are powered by the OS1 peptide, a patented peptide built on longevity science that is proven to target aging at the cellular level.

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• 1:03:03Melissa Murray?

  that the ladies of Strict Scrutiny sent you.

• 1:03:11Leah Litman?

  So a few other notes on the argument and what a ridiculous farce it was and also indicates the court is. So both Paul Clement and John Sauer fairly early on in their remarks invoked the Supreme Court's gibberish in Trump versus Wilcox about how the president can fire basically the head of any agency except the Fed because the Fed is a quote, "uniquely structured quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States," end quote. That is word salad, which again, the advocates just recycled and pretended like it's the law. And to my mind, this was just an incredible indictment of this court and the legal system that we're just recycling this gibberish because that word salad and bespoke unprincipled exception make clear

• 1:03:55Leah Litman?

  what a hackish joke the unitary executive theory is and like this entire charade. Can I also just say like they're doing the same thing like they're in Slaughter, they're also going to just recite the empty words from Sal a Law. Like they just, they say stuff and then they just decide they repeat it often enough that they I think believe it's legal reasoning. It is turtles all the way down. Turtles all the way down. And yet, you know, on that, you know, the Fed is a uniquely structured quasi-private entity. It seemed like Justice Barrett basically floated that the court would take that, double down on it, and maybe just put it into the public interest factor into the stay analysis and just say, things just cash out differently when the court has decided the unitary executive theory applies than when it has decided the theory does not, as you can hear here.

• 1:04:40Leah Litman?

  When the president, if you're thinking about the unitary executive, when the president has untrammeled authority to fire a subordinate, keeping that subordinate in office, I think, inflicts maybe a different kind of irreparable harm than the argument that the government would be able to make here because the government, the president doesn't have the same control over the Fed, at least based on the assumptions we have in this case. What do you think about that? This question was just, hey, I'm just spitballing here. What if we just put our made up standard about presidential power into the stay standard and the factor of the public interest and just call it a day? Well, it was a little bit like in the Slaughter argument when she was like, what? Oh, is it? What clause of the Constitution do we think the unitary executive really comes from? Doesn't matter. Does it have to be take care? Could it be the vesting clause? It doesn't really matter.

• 1:05:25Leah Litman?

  So it sort of had that kind of feel to it. And because arguments these days are basically always FedSoc Mad Libs and efforts to prostrate oneself for the legacy of the great man himself, one Antonin Scalia, yep, wolves came up again. Let's play that clip.

• 1:05:41Speaker 07

  That leads, I mean, that brief, that amicus brief cites Justice Scalia's dissent in Morrison, which is always a good place to look for wisdom.

• 1:05:49Melissa Murray?

  Leave the wolves out of this.

• 1:05:52Leah Litman?

  Some of them are in danger, damn it. Like, let them live. Anyway. I will say that I actually thought the reference to Morrison was very cleverly used in the amicus brief that Kavanaugh was citing in this question. That was the one that we were talking about a couple of minutes ago by the former Fed shares and Treasury secretaries. And yet, for Kavanaugh's part, it was pretty rich to rely on Scalia's dissent in Morrison, which is the writing that is supposed to be the godfather of this entire unitary executive theory, as support for concluding that the president should not be able to fire Fed shares at will, when the dissent is all about how the president must have the power to fire everyone at will.

• 1:06:28Melissa Murray?

  Don't listen to her, Brett Kavanaugh.

• 1:06:29Leah Litman?

  Has he even read it?

• 1:06:30Melissa Murray?

  Don't let them tell you, you can't use that dissent for whatever you want. You just do it. You do it.

• 1:06:36Leah Litman?

  This guy is truly a champion of citing cases for the exact opposite of what they actually say, whether it is ren for the proposition that you can't stop people based on race, or boomadien for the proposition that non-citizens abroad like constitutional rights, just performance. The president has to lose here because Morrison dissent.

• 1:06:56Melissa Murray?

  You guys, you're being hard on Brett Kavanaugh. Brett Kavanaugh, don't let them tell you.

• 1:06:59Leah Litman?

  He just hasn't read past this wolf comes as a wolf. That's it. That's the whole thing. There's more in there, Brett.

• 1:07:05Melissa Murray?

  He just hasn't read. Okay.

• 1:07:09Melissa Murray?

  All right. In other signs of the rapture, the end of times, the chief justice actually told John Sauer to stop being ridiculous and stop interrupting the female justices. Let's roll that tape. The Federal Reserve governor who sets interest rates for the entire country appears to have engaged in

• 1:07:29Kate Shaw?

  No, no, I understand. You're repeating. You're repeating. You're repeating the allegation.

• 1:07:38Melissa Murray?

  I want to just be very clear here. John Sauer was interrupting Justice Jackson. Like, this was going on, but he had been interrupting almost all of the female justices who had spoken thus far. So I thought it was nice that feminist John G. Roberts stepped in here to be an ally and to tell John Sauer to get it together.

• 1:07:59Leah Litman?

  Taking a page from the father of daughters, Coach Kavanaugh.

• 1:08:03Kate Shaw?

  Well, we salute them both.

• 1:08:05Leah Litman?

  ERA now.

• 1:08:10Leah Litman?

  I'm gonna send him a pussy ad.

• 1:08:15Melissa Murray?

  Feminist podcast for t-shirt coming your way, John G. Roberts.

• 1:08:18Kate Shaw?

  That's right. Angry, angry feminist.

• 1:08:20Leah Litman?

  She, the people.

• 1:08:21Kate Shaw?

  Exactly.

• 1:08:24Kate Shaw?

  Okay, returning for a minute to the question of the procedural posture of the case. It did actually feel to me as though the justices were kind of realizing, and I guess better late than ever, that it was kind of insane to be considering a case this important in this posture. We already played the clip of Alito asking whether the actual applications were even in the record. Here is Kavanaugh also making the point. I mean, and the thinness of the record wasn't actually even his point here, but that aspect of the case is pretty hard to miss in these questions.

• 1:08:50Speaker 07

  Again, I'm not talking about the facts of this case. I'm taking, I don't know the facts of this case, so I'm taking no position on that. And again, none of my questions or comments are about the facts of this case. I don't know the facts of this case, but thank you.

• 1:09:02Kate Shaw?

  Facts, schmacks. It's just somebody's livelihood and the meaning of, you know, Article II of the Constitution, but.

• 1:09:07Leah Litman?

  Just invent a citation. It'll all be good. You didn't need facts in that Kavanaugh stop concurrence. You just declared them to be.

• 1:09:14Kate Shaw?

  You do know how to do this, but all of a sudden, you're getting cold feet. Come on. But they, you know, truly only have themselves to blame for incentivizing and rewarding the administration, running to them, seeking relief in all these cases in which they suffered lower court losses. And you would hope they'll learn the lesson at least a little bit here and stop doing that, but we are not holding our breath. Truly a dispiriting, again, argument if you care at all about law, but maybe some glimmers of hope from the perspective of constraints on executive power.

• 1:09:41Melissa Murray?

  It's a great argument if you care about the stock market.

• 1:09:43Kate Shaw?

  The shadow docket.

• 1:09:44Melissa Murray?

  If you care about the stock market, it's all good. Get yourself a quarter zip and a fleece, you're gonna be okay.

• 1:09:52Melissa Murray?

  All right. The court also heard oral argument in Wolford versus Lopez. This was the case challenging the Hawaii law that prohibits concealed carry on private property that is open to the public unless the property owner first consents. And as predicted on this podcast, this is shaping up to be another effort to clarify the scope and substance of the Vaccahta Bruin test. I'll just say, maybe you wouldn't have to clarify the test so often if the test actually made sense in the first instance, but who am I anyway?

• 1:10:26Leah Litman?

  Just insert a butt the stock market into Bruin, right? That'll fix it.

• 1:10:30Melissa Murray?

  I mean, so those who were defending the Hawaii law tried to take the Bruin test seriously by pointing to anti-poaching laws that prevented hunters from entering private property without the owner's consent. They also pointed to the post Bellum Black Codes, which prohibited newly freed African Americans from entering private property with firearms. These historic laws they maintain show that there is a national tradition of regulating firearms in a way that would allow private property owners to restrict the carrying of firearms on their private property, even if that property is open to the public.

• 1:11:09Melissa Murray?

  And I'm just going to say, the invocation of the Black Codes seemed to strike a very personal note with some of the justices. Let's take a listen to friend of the pod, Woke Lido. They wanted to disarm the black population in order to help the Klan terrorize them and other and law enforcement officers in that period, in that region, they wanted to put them at the mercy of racist law enforcement officers. So is it not the height of irony to cite a law that was enacted for exactly the purpose of preventing someone from exercising the Second Amendment right to cite this as an example of what the Second Amendment protects?

• 1:11:52Melissa Murray?

  Can I just say, did I not predict, did I not call this? I called it. Hundred percent. I'm just so glad that I didn't actually get specific and say, if you hear the term Black Codes, then drink. I just said very generally racial justice. If I had said Black Codes, drink, everyone would have had alcohol poisoning. Like, this came up like 27 times in the oral argument?

• 1:12:19Leah Litman?

  So much. I mean, social justice warrior Sam Alito truly cares.

• 1:12:24Melissa Murray?

  Well, did you hear him thumping the desk? Listeners, roll it back.

• 1:12:27Leah Litman?

  He's enraged.

• 1:12:28Melissa Murray?

  He is enraged and thumping the desk for emphasis. Like, he care. I wish a gun had tried to get into Harvard in SFFA versus Harvard. I really do. Like, affirmative action would be secure right now if a rifle had just tried to get into Harvard.

• 1:12:44Leah Litman?

  Right, yeah. I mean, who knows? Maybe people should be writing their application essays about how they would like to bring their gun to Harvard. And Sam Alito would say, you have a First Amendment right to enter that campus, sir. But, you know, for better or for worse, it was for worse. It was not just Sam Alito who decided to be all over the Black Codes. Neil Gorsuch on this topic was so gross, suggesting that people who want to restrict guns love to invoke the Black Codes, which would otherwise be like garlic to a vampire for them. I mean, just disgusting.

• 1:13:19Melissa Murray?

  I will be clear. Neil Gorsuch is not new to this. He's true to this. He is the author of Ramos, where the Supreme Court basically overruled. I think it was Louisiana. He mentioned Louisiana again. So someone has gotten him all of the Louisiana racist laws. He knows them all. But someone in Ramos, the court invalidated Louisiana's law that allowed jury verdicts to proceed, even if they were non-unanimous. And it was invalidated on the view that this had been a Reconstruction era policy intended to disenfranchise or to diminish the authority of black jurors. And he was all over this. He was woke Neil Gorsuch in this case. And he's still woke, apparently. And he's still on this Black Codes.

• 1:14:01Melissa Murray?

  I will say, you know who was not having any of this invocation of the Black Codes as a means of expanding the Second Amendment? One Justice Katanji. Lovely one, Katanji Brown Jackson. She was having none of this selective historicizing. So let's roll that clip. Let me just ask you about the Black Codes. Justice Gorsuch raised it. And I guess what I'm wondering, your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruin test, that to the extent that we have a

• 1:14:39Kate Shaw?

  That relates to historical regulation, but all of the history of regulation is not taken into account. I think there might be something wrong with the test. So can you speak to that? There's nothing wrong with the Broom test, Roger. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small No, I understand why you're saying they can't be used, but it's because we've moved away from that history, not because that history didn't exist. And so to the extent that the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table. And if we start taking pieces off, whether it's

• 1:15:20Kate Shaw?

  because we've moved away from it, or we don't agree with it anymore, I think there's going to be a problem with respect to the accuracy of our test.

• 1:15:28Melissa Murray?

  Right? Correct?

• 1:15:30Leah Litman?

  Yes.

• 1:15:31Melissa Murray?

  Right?

• 1:15:31Leah Litman?

  Correct.

• 1:15:32Melissa Murray?

  Like, you can't start talking about the black codes here and then just, like, forget about reconstruction when you're dealing with affirmative action.

• 1:15:39Leah Litman?

  No, you cannot.

• 1:15:40Melissa Murray?

  Or voting rights.

• 1:15:41Leah Litman?

  And yes, yet, yet they managed to do it. So there was a big disagreement over what this Hawaii statute actually regulates, or what it might implicate, you know, whether it was the Second Amendment, or the rights of property holders, you know. And here, Justice Jackson, I think, was also really excellent. You know, she suggested there is a difference between a law that infringes a right, or implicates a right, and a law that merely affects something we associate with a right. So, you know, as she said, quote, "I'm suggesting, you know, it might affect a right." And the United States was here just last term, or sitting, talking about how you could have rights and regulations that affect someone's interests, but they actually don't implicate their constitutional rights. And so here,

• 1:16:25Leah Litman?

  I'm saying, yes, gun owners are going to be affected, but that doesn't mean it implicates their Second Amendment rights, end quote. I took this to be a reference to the Supreme Court disputing whether laws that ban gender-affirming care for minors, or laws that exclude, you know, trans athletes from participating in sports discriminate on the basis of gender identity or sex. And to my mind, her interjection

• 1:16:49Leah Litman?

  Of the court's different approach to these different rights. Call to mind, something we've talked about before on the podcast, abortion distortion. You know, just as the Supreme Court used to accuse the previous majority of the court of warping law and doctrine to protect abortion. And now they are warping law to chip away at reproductive freedom. They used to chastise courts for treating the Second Amendment as a disfavored right. Now they are insisting on treating the Second Amendment as a better, you know, favored right that gets differential treatment, but in the opposite direction. Another example of this for me was during the argument time for the lawyer for the federal government. The federal government asked the court to strike down the law by doing a pretext analysis,

• 1:17:31Leah Litman?

  basically saying the law was an effort to manipulate property law, to stick it to the Second Amendment, to which Elena Kagan said, that is not how constitutional law works. The court usually shies away from asking about whether every state has acted pretextually. And P S, I would know since I wrote a fucking Law Review article about this.

• 1:17:49Melissa Murray?

  Whoops. I like, so I think this is such an important point. Another thing came out, I think is related to it, that you actually predicted in the preview of this case is just the tension for the justices, especially the conservative justices, between their embiggening of the Second Amendment and their traditional concern for the rights of property owners. So, I mean, if you were around in the 2000s for Kelo versus New London, like, you'll remember how much they're really into private property ownership, except here, when the property right is also somehow intersecting with the Second Amendment. And there was, I think, a very frustrating exchange with Sarah Harris, who argued on behalf of the Solicitor General's Office,

• 1:18:31Melissa Murray?

  about whether this was really about the Second Amendment or if it wasn't really about property ownership. And Justice Jackson and Sarah Harris kind of got into it on that. And again, I mean, I think Justice Jackson got the better of the argument, but I also don't think it matters here. And I also don't think the previous interest in property rights is going to hold up against the ammo sexuality that was very much on display here.

• 1:18:57Leah Litman?

  And in case you wanted more evidence of the tension between Second Amendment and property rights in this case, or more evidence that the Second Amendment is about to cannibalize all other law here, just listen to these exchanges between the advocate who is arguing to challenge Hawaii's law and some of the justices.

• 1:19:17Melissa Murray?

  You say that there is

• 1:19:18Kate Shaw?

  A constitutional right to carry a gun on private property? Yes, Justice. I've never seen that right. Do you concede that there is no Second Amendment right to carry a gun into someone else's house? I do not, Your Honor. You do not concede.

• 1:19:40Melissa Murray?

  So one other exchange stood out to me, and it was another moment during the argument time for the federal government when the lawyer for the Solicitor General's office, which is usually, I think, fairly circumspect, I mean, not in this administration, but usually cautious in the positions they take, decided to just let it loose and throw out a pretty hot take on what the Second Amendment says, which was so aggressive, it even made amisexual Sam Alito pause. The purpose of the Second Amendment right is to allow citizens to bear arms for self-defense and other lawful purposes. And other lawful purposes.

• 1:20:18Melissa Murray?

  Yes. Not just self-defense. Did Heller say that? I don't think Heller excludes it. Do I want that kind of Second Amendment? I don't know. Well, maybe I don't. I went back to Heller, and Heller a few times says lawful purposes like self-defense, so she is really reading a lot into it. Right. Oh, they must have had a lot of others in mind, but Heller doesn't really talk about others. So, yeah, that was aggressive, for sure. Don't let texts get in the way. No.

• 1:20:45Leah Litman?

  Just cite Heller for the opposite of what it says, right? Like Kavanaugh will love it.

• 1:20:50Melissa Murray?

  That's constitutional law with a K.

• 1:20:58Melissa Murray?

  There were also just, like, a few points when I wanted to pull my hair out as the conservative justices. So we mentioned Heller already, but post Heller and McDonald and Bruin, somehow, with this court's just bare hug of the Second Amendment, is somehow still trying to convince everyone that the Second Amendment Is really the victim here. It is a disfavored and second-class right. They said this repeatedly. John Roberts, in a long passage, said that. It's another species of the conservative grievance. Like, just, yeah. Yes, no, like. You hate us, you hate our rights. I want to hear the clip, though. The sort of like, practice of Christianity. Okay, yeah. So let's play that clip here.

• 1:21:36Speaker 07

  It strikes me that one of the things that your side of the case has to come to grips with is that it is a very clear constitutional right under the First Amendment. If I, for example, as a candidate for office, want to walk up to your door on private property and knock on the door and say, here, give me your vote, that's exercising the First Amendment right. But you say that it's different when it comes to the Second Amendment. Yet you can walk up, the candidate wants to walk up and he's carrying a gun. What exactly is the basis for the distinction?

• 1:22:12Melissa Murray?

  Can we just talk about how fucking wild it is to compare walking up to someone's door to ask them to vote for a candidate and walking up to someone's front door with a fucking gun? Like, what? I mean, gosh, guys, like, what could be the basis for the distinction between the First and Second Amendments? What possible difference? It's a real mystery. And the population at large have in regulating politicians asking for your vote, on the one hand, and literal weapons of death, on the other. In terms of the pulling my hair out, though, like, I kind of expect it from the bench at this point. But the fact that, like, no one, like, even Neil Caciulli, who's representing the state of Hawaii, said anything about, like, there may be actually being kind of some principled reasons for treating the First and Second somewhat differently here, I just found kind

• 1:22:56Melissa Murray?

  of crazy-making. I get that it is like political kryptonite to even say, like, oh, yeah, Second Amendment might be a bit different. But like, it just is. And I don't understand why no one can say that. Like, if you're losing this case anyway, like, please speak some sense while you do it. Yeah, you know, from your lips. So one other case the court heard, M and K Employee Solutions versus Trustees of the IAM Pension Fund. This is an ERISA statutory interpretation case that involves a type of pension plan in which a group of employers in the same industry band together to form a multi-employer pension plan, often under the auspices of a collective bargaining agreement that requires them to provide specifically defined benefits.

• 1:23:37Melissa Murray?

  This is different from the more common defined contribution plan largely because it involves less risk for the employer. So multi-employer pensions spread the risk among a bunch of employers, but they can also be complicated to administer, especially when an employer leaves the fund and the remaining employers are on the hook. Congress has responded by requiring the departing employer to pay what an actuary calculates as the departing employer's share of any shortfall, calculated, quote, "as of the last day of the year before an employer withdraws."

• 1:24:05Leah Litman?

  So here the dispute between the departing company and the pension fund arose because after the valuation date, the actuaries changed their views as to the assumptions they were using about the future performance and obligations of the plan. So the departing employer liked the assumptions the actuary had used the previous year, the fund liked the new assumptions. The question is which assumption should prevail?

• 1:24:24Melissa Murray?

  And the justices seem pretty skeptical of the departing company's argument that calculating the withdrawal liability, quote unquote, "as of the valuation date" requires the actuary to use out-of-date assumptions. And in particular, they seem concerned that the company's approach would require actuaries to ignore market realities that were happening in real time, like major economic events. The justices brought up COVID, Pearl Harbor, all of these were mentioned in favor of a set of outdated assumptions that were not rooted in real-time conditions. And I don't know how this is going to go. I'm not an ERISA head. I know some of you out there are, so maybe you have better ideas. But I

• 1:25:05Melissa Murray?

  thought it was incredibly telling that the argument was very short. It was under an hour. Most of the questions from the justices were directed almost exclusively at the lawyer who was representing the departing company, and his name was Michael Kneely. They had Very few questions for John E. Roberts, although the chief was clear that they were not related. Thank you, sir. That was a concern. He was representing the fund, nor did they have a lot of questions for Kevin Barber, who appeared on behalf of the federal government in support of the fund. But if I were a betting person, I would put my money on or in the fund. Get it? I'll be here all week.

• 1:25:49Leah Litman?

  But our pension plans.

• 1:25:50Melissa Murray?

  I'll be here all week.

• 1:25:51Leah Litman?

  Like, it's the theme. It's the theme.

• 1:25:52Melissa Murray?

  It was. He's like, get that pension together.

• 1:25:59Melissa Murray?

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• 1:27:48Leah Litman?

  Long Play, our docu-series exploring the people and forces shaping the South, is back. Newsflash: The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South, too.

• 1:28:02Kate Shaw?

  We're in the final stretch of the midterms, and the political map has only gotten more competitive with new states and districts emerging as potential flips. So we thought it was time to get back out on the road and take a closer look at what's actually happening on the ground.

• 1:28:15Leah Litman?

  I'm Erin Haines, journalist and expert on all things Southern politics.

• 1:28:19Kate Shaw?

  And I'm Jennifer Palmieri, former White House Communications Director.

• 1:28:22Leah Litman?

  Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 1:28:27Melissa Murray?

  All right, so that was a week of oral arguments. I'm very sorry that Arissa got overshadowed by a muscular vision of executive power and the probability that the president might be able to ask for your vote while also holding a gun. We got a couple of opinions this week that we should mention. To be clear, none of them were about tariffs or the continued vitality of Section 2 of the Voting Rights Act. I'll talk about the first one, Burke versus Choi. This was the case that concerned a conflict between a state evidentiary law and the federal rules of civil procedure. Under Delaware law, a plaintiff suing for medical malpractice is required to provide an affidavit from a medical professional that attests to the suit's merit.

• 1:29:08Melissa Murray?

  However, in a unanimous opinion written by Justice Barrett, the court held that the Delaware law conflicts with Rule 8 of the federal rules of civil procedure and, per Arri versus Tompkins, does not apply in federal court. The court reversed the decision below and remanded it back to the district court. Should also note that Justice Jackson filed a concurrence in which she joined the judgment, but noted that, in her view, the conflict between the Delaware law and the federal rules of civil procedure was not between Rule 8 and the Delaware law, but between Rule 3 and Rule 12.

• 1:29:52Melissa Murray?

  So we also got the opinion in Ellingberg versus United States. This is a case about whether restitution under the Mandatory Victims Restitution Act of 1996 is considered criminal punishment for purposes of the ex post facto clause. The ex post facto clause of Article I prohibits Congress from enacting laws that impose penalties on or criminalize conduct after the conduct has already occurred. Here, the petitioner Ellingberg committed his crime before the MVRA was enacted but was nonetheless sentenced under the MVRA in order to pay restitution. He argued that the restitution obligation violated the ex post facto clause. The A Circuit concluded that restitution is not considered criminal punishment subject to the ex post facto laws, but the court, in a brisk, six-page unanimous opinion written

• 1:30:35Melissa Murray?

  by Justice Kavanaugh, in ink, no less, held that the terms of the MVRA make plain that restitution is considered a species of criminal punishment for its purposes. Also, stay tuned to hear more about that A Circuit. But back to Ellingberg. Justice Thomas penned a lengthy concurrence, almost four times as long as Justice Kavanaugh's opinion, arguing that the court should apply the ex post facto clause even more broadly than it did in Ellingberg. I mean, that's just classic, Justice Thomas and a Justice Thomas concurrence. I would go further, right? Yeah. I would go all the way back to 1692. Anyway. Yeah. All right. We also got an opinion in Coney Island Auto Parts Unlimited, Inc. versus Burton. This was another unanimous opinion. I guess the court found its consensus. This case considered the amount of time that litigants have to challenge judgments as

• 1:31:20Melissa Murray?

  void. Writing for the court, friend of the pod, Sam Alito, held that federal rule of civil procedure 60(c)(1) places a reasonable time limit on motions seeking relief from an allegedly void judgment. Justice Sotomayor stepped in to file a separate concurrence, noting her agreement with the judgment, but not the majority's reasoning. As she explained, "The majority, quote, unnecessarily opines on the potential validity of a constitutional challenge to the reasonable time limit under the due process clause. Coney Island did not make this argument blow, and the Sixth Circuit did not pass upon it," end quote. Where have we all... Yolo. I mean... Just do it. Why not? Anyway. Yeah.

• 1:32:03Melissa Murray?

  So we also wanted to highlight a writing that we got on the Orders List, which was a dissent from Justice Jackson. So the Orders List specifies the cases on which the Supreme Court has denied review. Or as was the case here, denied what's called informa popperis or IFP status. IFP status is granted when a litigant is indigent. It results in the court waiving the usual filing fees and printing costs associated with seeking Supreme Court review. The court will generally grant IFP status unless, as the court's rules indicate, it deems the filing frivolous. But the court then started the practice of adopting a policy of denying IFP status across the board if a litigant had filed a certain number of petitions or requests for relief that the court deemed frivolous.

• 1:32:47Melissa Murray?

  It partially formalized this practice in an opinion, Martin versus District of Columbia Court of Appeals, such that the practice of denying IFP status across the board is now called Martinizing. The court's decisions denying IFP status don't usually get a lot of attention, but this week, Justice Jackson decided that she had something to say about it. As she wrote, quote, "The court has steadily expanded the reach of Martin, transforming what was once an extraordinary measure into a routine order." In this particular case, we should note, the petitioner was subject to a bar because he filed six petitions over the span of 14 years, with the last one in 2018 being eight years ago. Justice Jackson announced in her writing that she will not impose the filing bar,

• 1:33:30Melissa Murray?

  which again prohibits people from filing IFP papers ever again. As she notes, "The bar applies even if the indigent litigant might be raising new claims based on favorable changes in the law or to challenge the ongoing conditions of their confinement. The future," she noted, "is famously hard to predict." So, as promised, some developments in the lower courts. It has been a while since we have had an entry in Who Can Beat the Fifth Circuit and Be Crowned: America's Worst Circuit Court? Until now, America, meet the Eighth Circuit. So, this particular entry involves the case brought by Minnesota activists who sued the Trump administration in December on the grounds that the administration's tax

• 1:34:12Leah Litman?

  As part of, you know, their mass deployment of ICE against protesters violated their constitutional rights to protest and to observe the enforcement actions. A Minnesota district judge issued a preliminary injunction barring federal immigration agents from retaliating against nonviolent, unobstructed protesters and explicitly prohibiting federal agents from using pepper spray, tear gas, or other crowd control munitions against peaceful demonstrators or bystanders who were observing or recording immigration enforcement operations in the Twin Cities. The injunction was to remain in effect while the merits of the lawsuit would be litigated, but predictably, the Department of Homeland Security appealed that ruling and last Wednesday, the Court of Appeals for the Eighth Circuit lifted the lower court's order that had restrained

• 1:34:55Leah Litman?

  federal officers from arresting or tear gassing peaceful protesters when thousands of immigration control agents had been deployed over the wishes of state and local leaders and their citizens. Literally hours after the Eighth Circuit's ruling, video surfaced showing DHS's Greg Bavino deploying tear gas against protesters. There were also photos of ICE officers holding down people's faces while directly pepper spraying them in the face. So, thank you, Eighth Circuit.

• 1:35:23Melissa Murray?

  I just, I don't know if you've ever had like pepper spray or tear gas or mace sprayed in or near your face. I just don't know if people realize like how insane an experience and sensation that is at any distance. Seeing these people pepper sprayed in the face and the eyes and the nose and the mouth from like inches away, which we've now seen on a number of occasions, is just so horrifying.

• 1:35:48Leah Litman?

  Well, wasn't there a pepper spraying of a baby?

• 1:35:50Melissa Murray?

  In the, in, through a car window. It's now not like directly in the face of a baby, but yeah, they, they are spraying inside cars, including ones with children and infants in them. Absolutely. Um, yeah, it's just a reminder that, you know, obviously.

• 1:36:04Leah Litman?

  Lethal violence is the thing that is attracting the most attention and rightly so. But the kind of casual but very serious violence that we are seeing perpetrated against dozens and hundreds of protesters in Minnesota and elsewhere is also something that people should be paying an enormous amount of attention to. So, final piece of news to kind of wrap on. In a case out of Chicago, Judge Sarah Ellis, who people might remember from, you know, another challenge to DHS, in that case CBP, a tactics in Chicago, dismissed a Jonathan Mitchell backed lawsuit accusing Northwestern Law School of discriminating in its hiring against white men. The suit makes its case in part through truly odious smears of some of the amazing black

• 1:36:47Leah Litman?

  professors at Northwestern or recruited by Northwestern. There's no opinion yet in the case and the dismissal was without prejudice. So this is unfortunately not the last word, but there is a hearing scheduled for mid-February and I expect that we will know more then.

• 1:37:01Melissa Murray?

  Can I just say something about this lawsuit? First of all, I was looking forward to the discovery where we would parse the records of the individuals who are allegedly discriminated against in the same way the complaint parsed the records of the people of color that it smeared so liberally in drafting, whatever you want to call this lawsuit. I'll also say that the lawsuit, regardless of whether it's thrown out, dismissed with or without prejudice, has likely had the intended impact. And the intended impact was to smear these professors of color, to make them unappealing prospects for lateral hires, for entry level hires, for students who are doing law review selection.

• 1:37:43Melissa Murray?

  I mean, and that was kind of the point, to paint all of them with the broad brush of inferiority. And I hope that people understand that and resist that characterization. So I'm glad that Judge Ellis got rid of this. I'm really sad for the people whose careers were smeared by this. It was unfortunate and unnecessary.

• 1:38:04Leah Litman?

  I don't know all the individuals in the complaint that well. Miriam Gillis is a relatively recent hire at Northwestern, who was at Cardozo for many, many years with me for a lot of those years, and is like an unbelievable, extraordinary scholar. And, you know, it was despicable for the complaint to smear her and others the way that it did. And I hear you, Melissa, on discovery actually would have been helpful in rebutting the smears. But also, this case should not be allowed to proceed. And so I'm glad, at least for now.

• 1:38:35Melissa Murray?

  It's like, again, like, you can just say whatever you want about someone in a complaint and sort of make this point that these other people were passed over. Like, tell me about their records. What's going on?

• 1:38:45Leah Litman?

  Yeah.

• 1:38:45Melissa Murray?

  I want to know.

• 1:38:46Leah Litman?

  Absolutely. Yeah.

• 1:38:48Melissa Murray?

  All right. Let's turn to happier things, favorite things, in fact.

• 1:38:53Leah Litman?

  Melissa, do you have anything to share? Melissa's up first.

• 1:38:57Melissa Murray?

  Well, folks, I wrote a thing.

• 1:39:02Leah Litman?

  It's in, it's physical, it's in your hands?

• 1:39:04Melissa Murray?

  It's in my hands. I wrote a thing.

• 1:39:06Leah Litman?

  It's real. Okay, tell our audio listeners what you're holding. Exactly.

• 1:39:10Melissa Murray?

  I am holding my forthcoming publication. Wait for it. It's called The U.S. Constitution. No.

• 1:39:17Leah Litman?

  Melissa wrote the Constitution.

• 1:39:18Melissa Murray?

  I wrote a new one, a better one.

• 1:39:21Leah Litman?

  We do need a better one.

• 1:39:22Melissa Murray?

  True, but I didn't write.

• 1:39:23Leah Litman?

  I would take yours.

• 1:39:24Melissa Murray?

  So this is basically a guide to the Constitution. So it replicates the entire Constitution. And then clause by clause, I explain the history, the origin story of the various parts of the Constitution and give folks a sense of what the framers were trying to do. And by framers, I also mean people in the 19th century and even in the 20th century with some of these amendments. So I'm not just talking about James Madison and where he went to summer camp, but a broader range of people for purposes of originalism. So it's forthcoming from Simon & Schuster. It will be out in May of 2026, but you can preorder it now. And I actually think it's kind of fun reading. I tried to make it very accessible.

• 1:40:06Melissa Murray?

  It's not pitched at you ladies, not for Law Professor Cowd. It's literally for. People who are just wandering around wanting to know what's going on with this. Um, yeah.

• 1:40:16Leah Litman?

  So two things about this US Constitution as annotated by Melissa. First, as this court insists on warping history and inverting constitutional protections, I feel like this is a very necessary corrective where you can get the real story and understand, you know, what they are doing with the Constitution. And then second, you know, as ICE is asking all of us for our papers, I feel like everyone should really be carrying around a Constitution annotated by Melissa Murray to present ICE officers and say, these are the only fucking papers I need, bitch.

• 1:40:56Melissa Murray?

  But can they read them?

• 1:40:58Leah Litman?

  They don't have to.

• 1:40:58Melissa Murray?

  True, true. Um, I will note that the section on the Fourth Amendment is dedicated to Brett Kavanaugh.

• 1:41:08Leah Litman?

  It's not.

• 1:41:09Melissa Murray?

  And Greg's moving on, no?

• 1:41:10Leah Litman?

  It's not, it's not.

• 1:41:14Melissa Murray?

  Woo, that's all I got.

• 1:41:15Leah Litman?

  Carrying it around in your, in the protest bags you're packing, I think is actually a really good idea, Leah. Yeah.

• 1:41:22Melissa Murray?

  Hop to it, hop to it, folks.

• 1:41:24Leah Litman?

  Yeah, so more to come, but I also do think on a serious note, like they are in real time trying to refashion the Constitution into something that is very different from what we have long understood it to be for all of its shortcomings. It's got lots of very good things in it and they want to remove the last sort of good provision standing. And so actually arm yourself with the knowledge of what these provisions actually do mean and do. So a favorite thing, obviously forthcoming in May, your book. What other favorite things do you want to share?

• 1:41:53Melissa Murray?

  I have one more favorite thing. I loved Robin Givhan's New York Times op ed titled Valentino Was the Last of Fashion's Old Guard, which considers the impact of Valentino Garavani, the fashion designer who passed away last week at the age of 93. I love Robin Givhan's writing. She used to be the fashion editor for the Washington Post and she is not just an observer of fashion, but if she was, that would be fine. But she's someone who thinks about fashion in the larger context of culture and society. This piece makes clear why she is the first fashion writer to win the Pulitzer Prize for criticism, because it puts Valentino's career as a designer in conversation with evolving standards of beauty, the changing role of women's society, the retreat to

• 1:42:35Melissa Murray?

  traditionalism that is embodied in the current moment. So I think it's a really great profile and I love it. We should also note, friend of the pod, Ellie Mustal, has a great piece in The Nation on the arguments in the trans ban cases, that's He Cox and BJP. The piece is titled, "The Supreme Court Just Held An Anti-Trans Hate Fest." I think that pretty much encapsulates it.

• 1:42:57Leah Litman?

  I saw the Robin Givhan piece and I was like, Melissa would want me to read this, I should read it. And I haven't, but now I will with that pitch. Just a couple of things for me. One, there was a great piece in The Atlantic by Franklin Foer, "The Purged", that has, I think, a great opening just about what has already been lost in the decimation of the civil service in the first year of the Trump administration. And then there are some great profiles with fired, or in some cases, resigned, federal workers, just enormous loss in capacity and expertise that is going to affect all of us and society at large for years or decades to come. Grim stuff. Lev Menand had a great piece in The Times, an opinion piece about, you know, not just the kind of like unitary executive

• 1:43:41Leah Litman?

  stuff that we've been talking about with the Trump versus Cook case, but also like the potential for corruption and self-dealing, not just, again, in interest rate manipulation, but in all these other ways that presidential control of the Fed would invite that were even more chilling than I had sort of realized. And two more kind of like reading recommendations, I finished "God of the Woods", I really recommend it. And I'm currently reading "Broken Country", and I'm not sure yet how I feel about it.

• 1:44:06Melissa Murray?

  I liked it, but it's not on "God of the Woods" level.

• 1:44:10Leah Litman?

  No.

• 1:44:10Melissa Murray?

  Just no.

• 1:44:11Leah Litman?

  Yeah. Okay, all right. I'm gonna finish it, but "God of the Woods" really was great. Yeah. So my favorite things, there was an order last week telling Lindsey Halligan that she's such a shitty lawyer and her briefs fall so below standard, she can't sign them as US Attorney. And by the way, she's not US Attorney, so she needs to stop representing herself that way. That order was amazing. And then Halligan decided to just out and say, I'm no longer going to be whatever I was acting or pretending to be in the US Attorney's Office for the Eastern District of Virginia. So that was a happy kind of storyline. If you didn't catch it, highly recommend Prime Minister Mark Carney's

• 1:44:49Leah Litman?

  speech at the World Economic Forum. Just a very powerful and clear articulation of the changing world order and what Donald Trump is doing by way of self destruction of the United States and its position, you know, in the like global state of affairs, the world. Yeah. Two Minnesota things. So for those of you who might not have heard, at the end of last week on Friday, you know, Minnesota businesses and schools basically announced a collective strike in which everyone shut down for a day in order to protest the continued presence of ICE. And if you're looking for ways to help support Minnesota

• 1:45:29Leah Litman?

  groups, businesses, there is a website, Stand with Minnesota, Stand with M I N N E S O T A dot com that you can check out. There was also a piece in New York Magazine by Carrie Howley, The People Versus ICE, the details, you know, communities banding together, organizing and standing up to ICE, that is very much worth checking out.

• 1:45:51Melissa Murray?

  All right. Some housekeeping before we go. Listen up, stricties. We're bringing this show to the beautiful West Coast. And it's not just the great show. We're going to have giveaways. We're going to have games. We're going to have all the things. And as you may already know, our San Francisco show is already sold out because it's going to be awesome. But you can still join us in LA on March 7th at the Palace Theater. LA is going to be absolutely amazing because we love LA and we are bringing our A game, our LA game to LA. LA Face, Oakland Booty, all the stuff is coming for you, LA. Be ready, be so ready. And

• 1:46:35Melissa Murray?

  We have some pretty clutch guests.

• 1:46:38Leah Litman?

  We do.

• 1:46:39Melissa Murray?

  Should we tell them?

• 1:46:39Leah Litman?

  We do.

• 1:46:40Melissa Murray?

  We do. I don't know. I don't know. I don't know.

• 1:46:42Leah Litman?

  We'll just say they really span the law culture kind of divide in.

• 1:46:48Melissa Murray?

  Only for you, LA.

• 1:46:50Leah Litman?

  Exactly.

• 1:46:50Melissa Murray?

  Only for you.

• 1:46:51Leah Litman?

  Exactly. So grab your tickets before they are gone at crooked.com/events.

• 1:47:07Melissa Murray?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Littman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rauel. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper, and we get production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production, and we are really grateful for our video team, Ben Heathcote and Toshana Case. Our production staff is proudly unionized with the Writers Guild of America East. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast 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.

• 1:47:58Kate Shaw?

  Long Play, our docu-series exploring the people and forces shaping the South, is back.

• 1:48:03Melissa Murray?

  Newsflash: The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South, too.

• 1:48:12Kate Shaw?

  We're in the final stretch of the midterms, and the political map has only gotten more competitive with new states and districts emerging as potential flips. So we thought it was time to get back out on the road and take a closer look at what's actually happening on the ground.

• 1:48:25Melissa Murray?

  I'm Erin Haines, journalist and expert on all things Southern politics.

• 1:48:29Kate Shaw?

  And I'm Jennifer Palmieri, former White House Communications Director.

• 1:48:32Melissa Murray?

  Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 1:48:39Melissa Murray?

  Relax and get

• 1:48:40Leah Litman?

  Get ready for bed with Dr. Teal's Magnesium Spray. Made from a proprietary blend of topical minerals powered by pure Epsom salt and natural Dead Sea salt. Dr. Teal's Magnesium Spray is designed to help you unwind and get in a nighttime state of mind. Dr. Teal's Magnesium Spray is wellness you can feel, and you can find it in your local bath aisle. Dr. Teal's. Yep, you needed that.

• 1:49:08Leah Litman?

  Monday Night brings one more big matchup to settle into. And when every play matters, the last thing you want to do is step away to figure out dinner. That's where DiGiorno comes in. Get a DiGiorno pizza ready before kickoff, then enjoy restaurant-quality taste fresh from your own oven while you stay locked into every play. Stock up on DiGiorno over the weekend so when Monday night rolls around, the only thing you sweat is the game. Shop now at the link in the episode description. It's not delivery, it's DiGiorno.