How SCOTUS is Making Project 2025 a Reality

Our fearless hosts continue to slog through this sh*tty shadow docket summer, covering an order from the Court okaying racial profiling by ICE officers, some ominous administrative stays, Amy Coney Barrett’s ongoing press tour through right wing media, and the lower courts’ continuing frustrations with this Supreme Court. Then, Leah and Kate speak with special guest Symone Sanders Townsend, co-host of MSNBC’s The Weeknight, about how the Supreme Court is carrying out key parts of Project 2025, and enabling and facilitating other parts of the government to do the same. Hosts’ favorite things: Leah: The Guatemalan Children’s Case and the Judicial Learning Curve https://www.lawfaremedia.org/article/the-judicial-learning-curve, Anna Bower (Lawfare); What Should a Lower Federal Court Judge Do When SCOTUS Plays Calvinball? https://www.dorfonlaw.org/2025/09/what-should-lower-federal-court-judge.html By Michael Dorf (Dorf on Law). Kate: Bonus 177: A Closer Look at Justice Kavanaugh's ICE Raids Opinion https://www.stevevladeck.com/p/bonus-177-a-closer-look-at-justice, Steve Vladeck (One First); Zohran Mamdani’s ‘Stop Sending Us Money” TikTok https://www.tiktok.com/@zohran_k_mamdani/video/7546597703447350558 Melissa: “Trump’s Treasury Secretary Threatens to Punch Housing Official in the Face https://www.nytimes.com/2025/09/08/us/politics/trump-treasury-bessent-pulte-threat.html,” Maggie Haberman and Shawn McCreesh (Washington Post) 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?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and our lives. Church-state separation is the bulwark that blocks their agenda. One of the last bastions of church-state separation is our public school system. So they are pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools. And they're arguing for it at the Supreme Court in a case that we talked about just this year, Saint Isidore.

• 0:45Melissa Murray?

  If you're listening to us, you're already seeing the writing on the wall. You know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement, because church-state separation protects us all. Learn more and get involved at au.org/crooked.

• 1:02Speaker 01

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

• 1:13Speaker 02

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

• 1:44Melissa Murray?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I'm Kate Shaw.

• 1:51Leah Litman?

  And I'm Leah Litman, and because it's just the two of us, you might not want to have this on 1.5 speed or higher.

• 1:57Kate Shaw?

  1.2 might be tolerable, but.

• 2:00Leah Litman?

  Maybe, maybe. I'm going to get pretty amped, my guesses. But it's still summer pumpkin spice season, meaning the Supreme Court is in summer even though it's fall. So we will be covering legal news before we share a conversation we had with the wonderful Simone Sanders Townsend, host of MSNBC's show The Weeknight. That's a great crossover, but we talked about a craptastic one, and that is the crossover between the Supreme Court October term 2024 and Project 2025. On tap for the news, we have the latest atrocities of the shadow docket and the atrocity that is Brett Kavanaugh's legal reasoning, as well as Barrett's fairly atrocious book appearances. And then the continued evolution of the relationship between the lower courts, the Supreme Court and the administration.

• 2:44Kate Shaw?

  And we are recording this episode on Friday, so two days after conservative activist Charlie Kirk was brutally gunned down during a speaking event in Utah. During the days since his murder, the president, who the Supreme Court has spent the summer handing more and more power to, has blamed those on the radical left and pledged retribution, which is literally the most dangerous and destructive thing a national leader can do at a moment like this.

• 3:11Leah Litman?

  And they have arrested the person who allegedly shot Kirk, a 22-year-old white man who grew up in a seemingly Republican household with guns and who loaded a gun with phrases revealing someone who is deeply online and into online trolling. It was just a lot to see the violence play out amidst the easy availability of guns and online radicalization and misinformation, while leaders and their allies whipped up hate against vulnerable groups and commentators valorize and whitewash those who do. And seeing some of the coverage of this play out, you know, reports that unthinkingly parroted and then did not retract efforts to blame trans people for Kirk shooting, others that seemed to almost create a permission structure for violence and targeting of Democratic leaders and progressives. It was terrifying.

• 3:56Leah Litman?

  I was genuinely shaken the morning after on Thursday when I went to teach, so I wanted to acknowledge this because I'm sure some of our listeners were quite shaken as well. But on to our regular programming. It is still shitty shadow docket summer.

• 4:13Kate Shaw?

  So that means last Monday, before it was even noon on the East Coast, the court released two significant orders on the shadow docket. One clearing the way for some of the Trump administration's more chilling exercises of immigration enforcement authority, and the other clearing the way for this court to continue to favor this president over actual precedent. And that was just last Monday.

• 4:34Leah Litman?

  So the court released an unreasoned, and yes, we are including Brett Kavanaugh's writing in the category of unreasoned, an unreasoned order staying a lower court decision that had restricted the administration's plainly illegal immigration law enforcement in LA. The court's order cleared the way for the administration to round up, question, and detain almost half the population of Los Angeles and potentially beyond.

• 4:59Kate Shaw?

  So we're talking about the order in Noem versus Vasquez Perdomo. And that's a case in which the Supreme Court said, or functionally said, because it actually didn't say anything, that racial profiling is actually constitutional now. So this case grows out of the immigration raids that started in Los Angeles earlier this summer, basically roving patrols of federal officers, questioning people, detaining them, and then possibly sending them to immigration facilities for further detention. We have likely all seen pictures of ICE officers doing things like showing up at Home Depots and just trying to round up day laborers and evidently anyone they thought was a suspicious shade of brown.

• 5:39Leah Litman?

  And the immigration stops and detentions were challenged in federal court, and a federal district court issued a detailed opinion containing many findings of fact, based on actual evidence presented in court, about what was happening in Los Angeles, including how ICE officers were rounding people up based on their skin color and shoving them into immigration detention and processing facilities where they were kept incommunicado, in deplorable conditions, for extended periods of time.

• 6:04Kate Shaw?

  And because the district courts of this country are places where things like facts and evidence still matter, the district court issued an injunction that said the government cannot stop individuals based solely on these factors or a combination of them, their apparent race or ethnicity, whether they spoke Spanish or an accented English, the type of location at which they were found, like a car wash or a bus stop, and the type of job they appeared to be working or seeking.

• 6:30Leah Litman?

  And this case obviously concerns the Fourth Amendment to the Constitution, which requires the government to have what is called reasonable, articulable, particularized suspicion before it can even stop someone, much less arrest, detain, and deport them. So reasonable, articulable, particularized suspicion requires the government to show there is a reason to think a particular individual is in violation of the law.

• 6:52Kate Shaw?

  And the criteria that the government was using, the ones the district court found the government was using, like skin color and where individuals are working or looking for work, are not criteria that are remotely particular to individual people, right? Some of the criteria described in this litigation apply to almost half of the population of Los Angeles. So these criteria don't distinguish US citizens from immigrants who are in the US with legal authorization, from people who are in the US without legal authorization. People in all of those categories might have brown skin, might speak Spanish, might spend time at Home Depots, and that's who ICE was indiscriminately rounding up, conducting

• 7:34Kate Shaw?

  these suspicionless questionings and arrests in these roving patrols of immigration officers.

• 7:40Leah Litman?

  And the Supreme Court did not purport to disagree with the district court that this was happening. The court also didn't explain how on earth this would be legal. Instead, the court once again issued an order putting on hold a carefully reasoned 50-some-page district court opinion, which a court of appeals panel in another 50-some-page, carefully reasoned opinion had declined to disturb, with no explanation at all.

• 8:04Kate Shaw?

  As Justice Sonia Sotomayor wrote in her powerful dissent for the court's three Democratic appointees, and we're going to return to that dissent a few times during this episode, quote, "We should not have to live in a country where the government can seize anyone who looks Latino, speaks Spanish, and appears to work a low-wage job. Rather than stand idly by while our constitutional freedoms are lost, I dissent."

• 8:23Leah Litman?

  We've alluded to the Cav concurrence, a separate writing from the great concur himself, which is the only writing that deigned to offer any explanation for why the district court's decision was stayed. And it was written only by Kavanaugh for himself. He did not get any other votes for reasons that will probably become clear. Before we kill some brain cells by discussing said Cav concurrence, we wanted to note the deep hypocrisy of what the court has done here.

• 8:48Kate Shaw?

  This is a Kavanaugh concurrence is like the worst kind of brain cell killing because it isn't even enjoyable while you're doing it.

• 8:53Leah Litman?

  No, it's not well-written.

• 8:55Kate Shaw?

  It's miserable and you get dumber.

• 8:56Leah Litman?

  Yes.

• 8:57Kate Shaw?

  So.

• 8:59Leah Litman?

  Like, I award no points and may God have mercy on your soul.

• 9:02Kate Shaw?

  Exactly.

• 9:05Kate Shaw?

  But on the hypocrisy point that Leah just mentioned. So first, the court went ahead and basically told the government, yeah, if you can round up people based on their skin color. And that court, the court that just did that, is the same court that wrote the actual words, quote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." That is one of many lines and modes of circular reasoning the court used when it limited schools' ability to consider race as a way of integrating institutions of higher education. And the line that I just quoted actually traces back to the parents-involved case. So if I follow the court's reasoning between these two cases, it is intolerable, invidious discrimination to consider race as a way of creating diverse institutions of higher education.

• 9:50Kate Shaw?

  But it is completely okay to consider race as you are hauling people off the streets into prolonged detention and possible removal.

• 9:58Leah Litman?

  That is not colorblindness, despite them calling this colorblind constitutionalism. That is white supremacy. And, you know, this differentiation or relationship between the two came up in our conversation in the last episode with Professor Justin Driver about his book, The End of Affirmative Action. There are, in my view, also some clear historical parallels between the court's decision on these roving immigration patrols and some infamous pieces of history. One is the Fugitive Slave Act. That was a federal law that effectively deputized white people to seize Black Americans, to kidnap them and render them into slavery. And Black people who were seized under the Fugitive Slave Act were forced to prove they were freedmen. In other words, that too was an arrest first, prove second regime, also based on skin color.

• 10:43Leah Litman?

  And the other one, of course, is Korematsu versus the United States, which blessed the executive branch interning American citizens for no other reason than they were of Japanese descent. And remember, this is the same Supreme Court that during Trump 1.0 insisted that Korematsu was overruled and that if American citizens were ever being rounded up and detained on the basis of race or skin color, well, then obviously this court would step in and do something about that.

• 11:07Kate Shaw?

  Yeah. So let me just read a little bit from Chief Justice Roberts' opinion for the court in Trump versus Hawaii, the case upholding Trump 1.0's travel ban. And I'm not going to read the whole thing, but there are, I think, a couple of choice excerpts that are worth discussing here. So Roberts is sort of indignant that Justice Oto-Moior, in dissent, highlights and compares these facts and this case to Korematsu. So he says that dissent invokes Korematsu and accuses the dissent of just seeking some rhetorical advantage, and then goes on to say, quote, "The forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race is objectively unlawful and outside the scope of presidential authority, but it is wholly inept to liken

• 11:51Kate Shaw?

  that morally repugnant order to a facially neutral policy." The chief goes on to say, quote, "That dissent's reference to Korematsu affords this court the opportunity to make express what is already obvious. Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and has no place in law under the Constitution." So I just want to actually highlight something from the first excerpt that I just read. So a friend of the show, Jamal Green, who teaches at Columbia, has a great, very short piece about how actually there's less to that passage than meets the eye. It's a piece in the Yale Law Journal, soon after Trump versus Hawaii. And he sort of says, if you actually read closely, so what Roberts says is impermissible is forcible relocation, U.S. citizens, concentration camps. Solely and explicitly. Solely and explicitly on the basis of race.

• 12:35Kate Shaw?

  You can imagine a John Roberts wiggling out from under the weight of that language by saying, "Well, these aren't concentration camps. This isn't solely and explicitly on the basis of race. It's also language and Home Depot." And it actually sort of, the more you read that language from Trump versus Hawaii, and especially in light of much of what the court has blessed in the last eight months, the scarier, I think, it gets, that the court was as narrow in certain respects as it was in describing what exactly their overruling or purported overruling of Korematsu rules out. And it's not everything, and it actually may leave a lot of space for things like what the court appeared to bless here.

• 13:21Melissa Murray?

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• 14:05Melissa Murray?

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• 15:25Speaker 05

  CrookedCon is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB 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.

• 16:03Leah Litman?

  And now to Tweedle Dum. So Brett Kavanaugh offered a concurrence, and it has some listical elements to it.

• 16:09Kate Shaw?

  Of course.

• 16:10Leah Litman?

  But we have to go through it because it underscores the lengths the court and some justices will go in order to justify what the Trump administration has done. So let's start with his attempts to do facts. So first, Justice Kavanaugh offers up that, "When you think about it, this is all really Joe Biden's fault." So he writes, quote, "The government estimates that at least 15 million people are in the United States illegally, many millions illegally entered or illegally overstated just in the last few years," end quote. There are no citations for these claims, just vibes he may have picked up from Steve Bannon's YouTube channel.

• 16:43Kate Shaw?

  Do you notice, as he's describing this crisis, he editorializes that his unsourced numbers are extraordinary? I mean, it's like, you're not writing an op-ed, my dude, but he sort of maybe thinks he is. Anyway, so he continues, "Illegal immigration is especially pronounced in the Los Angeles area, among other locales in the United States. About 10% of the people in the Los Angeles region are illegally in the United States, meaning about 2 million illegal immigrants out of a total population of 20 million."

• 17:10Leah Litman?

  What the fuck is he talking about? Like, "especially pronounced in LA, 10% of the population," throwing out these numbers. Once again, zero citations. Like, maybe he's getting this from a Signal chat with Stephen Miller. We just have no idea.

• 17:23Kate Shaw?

  Yeah. I mean, it's also, so LA actually has 4 million people in it. I mean, he's clearly talking about LA County, which gets much closer to 20 million. But I actually don't think these raids are happening all over the county. And he just also has what feel like baseless and incomplete and misleading characterizations of what is actually going on in Los Angeles in terms of this enforcement effort. Once again, the characterizations lack any citations and do not even acknowledge the contrary fact findings of the district courts in this case. So this is what Justice Kavanaugh, in his infinite wisdom, says is actually going on in L.A. Quote, "The government sometimes makes brief investigative stops. If the officers learn that the individual they stopped is a U.S. citizen or otherwise lawfully in the U.S., they promptly let the individual..."

• 18:08Kate Shaw?

  I'm sorry, I can't even read this.

• 18:09Leah Litman?

  I know.

• 18:10Kate Shaw?

  "They promptly let the individual go." It sounds like what Justice Kavanaugh is saying is, what, here's how ICE is operating. They are basically like the fresh-faced Greenpeace canvassers you sometimes get flagged down by on the sidewalk, at least in New York City. They want you to make a donation, and if you're like, "I'm in a rush, I'm sorry," they smile and say, "Okay, have a lovely day." Like, that is the picture of ICE enforcement that Kavanaugh wants you to believe is happening on the streets of Los Angeles.

• 18:34Leah Litman?

  You were reading it. I mean, that is some shitty-ass fiction. Like, sir, this is not a fucking Wendy's. Like, this administration has deported citizens. The evidence in the district court described prolonged detention at immigration processing facilities.

• 18:47Kate Shaw?

  But Kavanaugh not only doesn't acknowledge this, he is so sure that his characterization is, in fact, the accurate one. This, I don't know, fanfic that he's writing, he says it twice. So I already read one place he says it. He also says, quote, "Moreover, as for stops of those individuals who are legally in the country, the questioning in those circumstances is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens or otherwise legally in the United States."

• 19:15Leah Litman?

  What universe are you living in? I mean, Justice Sotomayor, who, as you noted, wrote the dissent for the three Democratic appointees, you know, absolutely let him have it. She wrote, quote, "The concurrence relegates the interests of U.S. citizens and individuals with legal status to a single sentence, positing that the government will free these individuals as soon as they show they are legally in the U.S. That blinks reality," end quote. And she describes how citizen plaintiffs in this very case were not treated, as he so describes. Also, people do not walk around with their passports.

• 19:46Kate Shaw?

  Or their immigration paperwork or anything else. And yet, what the court has done is create a state of affairs in which a subset of the population, and not a random one, is going to feel compelled to walk around with some kind of paperwork lest they be mistakenly sent into some kind of detention. And again, we know that what Justice Kavanaugh described isn't what is happening, in part because of testimonials of people who have been personally swept up in ICE raids. Here is a clip from one of those individuals.

• 20:14Speaker 06

  I was on my way to work, which I did every day. I cycled every day. And I was arrested by an ICE officer and kind of kidnapped, I guess, off the street and taken to Chrome Detention Center. The conditions in Chrome were the most inhumane thing that I've ever experienced in my life. They had nowhere for anyone to sleep. They weren't feeding people, and they were very abusive to the inmates. The holding cell that had us in for almost eight days was meant to have 10 people in it, and there was at least 100 men. We were like sardines, all just stuck on like a concrete, cold concrete floor.

• 20:59Speaker 06

  I want people to know that it's not just criminals that are being taken. It's like normal, everyday people, like myself. Like, I had like a correct visa. I had all my paperwork together. I had a social security number. I paid my taxes. I've never been in trouble with the police before in my life, either in America or Northern Ireland. And still, they took me. You know, I think they're just looking for numbers at this point.

• 21:30Kate Shaw?

  And here's a clip of a news story recounting a raid the day after the court issued the order that we are discussing.

• 21:37Speaker 07

  The Supreme Court lifted the ban on so-called roving immigration patrols. This video of federal agents swarming a car and detaining people at gunpoint was captured in a Van Nuys parking lot this morning.

• 21:50Speaker 08

  With weapons drawn, federal agents walked toward the driver's side of this red vehicle in a Van Nuys parking lot. Luis tells us he was in the area when he saw what was happening and began to film.

• 22:02Speaker 09

  That's when I saw this chaos, guns drawn, everything. The girl was there screaming like, oh, like, why are you guys pointing guns at us? They were not doing anything. That's when they got closed. They break the window, they drag the guys out. And then the female, she said she was pregnant, but they were just, all these guys gang up on her.

• 22:18Leah Litman?

  There is so much wrong with this cab currents. We could write a dissertation on it, but we did want to tick through a few additional things before we offer some high level takeaways.

• 22:28Kate Shaw?

  So first, Justice Kavanaugh attempts to suggest the court is being consistent here because the court had set aside some lower court injunctions against the Biden administration on matters related to immigration, so treating all presidents fairly. And in support of that claim, he invokes United States versus Texas, a case about the rescission of the remain in Mexico policy, and also Biden versus Texas on immigration enforcement guidelines. But here is the thing, as I think our friend Steve Vladeck was maybe the first to point out, the court, he's, he's, he seems to be invoking the ultimate disposition of those cases, but the court denied emergency stays in these cases. So the big smoking gun evidence that Kavanaugh offers up to support like his big claims

• 23:12Kate Shaw?

  actually point in exactly the opposite direction if we're talking about the court's intervention on the emergency docket.

• 23:17Leah Litman?

  Yeah, Justice Kavanaugh also invoked the court's, I think, infamous decision in City of Los Angeles versus Lyons, which ruled that a black man who had been placed in a chokehold by the LAPD at a time when the Los Angeles Police Department had a policy permitting chokeholds could not obtain an injunction to stop that policy because who was to say if he'd be put in another chokehold? And in this case, Justice Kavanaugh says there's no standing because there's just apprehension that the plaintiffs might be swept up in an immigration raid. And I read this and I just screamed in 303 creative when he joined Justice Gorsuch's opinion allowing a fake wedding website designer to challenge Colorado's non-discrimination ordinance because she had reasonable enough fears it would be enforced against her.

• 24:01Kate Shaw?

  It is also, at the very most generous, Lyons is a contested and controversial standing precedent. So to just trot it out like it's just obviously the governing standard when it comes to standing, sort of brought to mind Justice Alito's invocation of Godoldig versus Aiello to say there's no equal protection problem with abortion prohibitions or restrictions. I mean, they really want to make some of the worst cases ever decided by the Supreme Court great again.

• 24:29Leah Litman?

  Oh, yeah.

• 24:29Kate Shaw?

  Seems obvious. Justice Kavanaugh also wants you to know that common sense tells him that racial discrimination is OK. So he genuinely just says common sense supports what he writes in his concurrence here. So these practices are A-OK according to Justice Kavanaugh under this court's precedents.

• 24:46Leah Litman?

  And common sense is commonly known as originalism, right?

• 24:50Kate Shaw?

  Right.

• 24:50Leah Litman?

  So that's what he's doing there? OK, great, got it. So Justice Kavanaugh also says the plaintiffs in the immigration case didn't need an injunction because they have other remedies available to them in, you know, case they are swept up in these roving patrols. What, pray tell, are those other remedies, Brett? Because you have joined opinions holding that victims of civil rights violations cannot sue federal officers for damages when the federal officers violate their constitutional rights. So if it's not an injunction and it's not damages, what's left?

• 25:24Kate Shaw?

  For now, I guess you can exercise your First Amendment rights to say mean things about them after it happens, if you're lucky enough to be out.

• 25:31Leah Litman?

  Well, that's only if you're a citizen.

• 25:32Kate Shaw?

  Right.

• 25:33Leah Litman?

  Because apparently now, right, the State Department does not honor the First Amendment.

• 25:37Kate Shaw?

  Great point. All right. So maybe you have no recourse at all. He also characterizes the balance of harms as between the federal government wanting to engage in this kind of profiling, which is apparently super important and compelling, against the interests of people swept up in immigration raids. And the way he balances those harms is by saying that the interest of the affected individuals is merely, quote, "an interest in evading the law," which really...

• 26:06Kate Shaw?

  Calls the question like, are you Brett Kavanaugh familiar with the Fourth Amendment? It has long been understood to protect the privacy and the person of everyone, no matter whether they are guilty or innocent. That's not an interest in evading the law. It's an interest that we all possess to be free from unwarranted, unjustified, suspicionless intrusions on our liberty. And, and, and the plaintiffs in this case are people who were lawfully present. So even on Justice Kavanaugh's reasoning, they would seem to have a pretty weighty interest in not being unlawfully detained, I think, but he offers no explanation on this score.

• 26:43Leah Litman?

  Oh, gosh.

• 26:44Kate Shaw?

  All right. So let's step back and offer some general thoughts. I mean, the opinion read like policy analysis, but bad policy analysis with these weird, obvious legal errors, which again, like raises a question we have posed before, which is, do his law clerks hate him? Like, they let him do this, and it's gotta be really embarrassing for the public to read these opinions. And the people who would ordinarily be shielding him from that embarrassment seem not to be doing that.

• 27:20Leah Litman?

  Yeah, they are not doing great at that job. And it's so bad, I almost feel bad for him. Like, not really, but there's like a pity element as though he's so dumb, he doesn't realize it. And I just want to tell him, show yourself some self-respect and do not share your innermost thoughts with the entire country. Like, it read as a desperate defensive effort to justify what Kavanaugh was doing. You know, our friend who you've already invoked, Steve Lattick, you know, described this as Brett Kavanaugh rationalizing what he's done. And to that, I'd add, like, this reads like a guy who wants to convince himself he's doing law and that he's the kind of judge who's respected by both sides, which was

• 28:01Leah Litman?

  an image he really tried to curate and cultivate for himself as a court of appeals judge. And because he's just not that smart, this writing works for him. Like, he can convince himself he's doing law, even though it would utterly fail to convince anybody else.

• 28:15Kate Shaw?

  So he's like, I'm doing great, sweetie?

• 28:17Leah Litman?

  Yes.

• 28:18Kate Shaw?

  Did I use that properly?

• 28:19Leah Litman?

  You did.

• 28:20Kate Shaw?

  Yay. I like varied it a little bit.

• 28:22Leah Litman?

  Case smart and can learn.

• 28:27Kate Shaw?

  I mean, on a Brett Kavanaugh scale, I guess I'll take it. All right. Well, we've already noted a couple of times, Justice Ochmira's dissent. We're going to read two additional passages because it really is very powerful and we encourage people to actually just read the whole thing. But here are a couple of other choice quotes. One, quote, "The government, and now the concurrence, has all but declared that all Latinos, US citizens or not, who work low-wage jobs are fair game to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agent's satisfaction." And here is one more, quote, "The Fourth Amendment protects every individual's constitutional right to be free from arbitrary interference by law

• 29:09Kate Shaw?

  officers. After today, that may no longer be true for those who happen to look a certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little, because this is unconscionably irreconcilable with our nation's constitutional guarantees. I dissent."

• 29:24Leah Litman?

  Yes, there's no respectful or respectfully in there, right? She's not respectfully dissenting, and she shouldn't be. Her characterizations of what the court has done call to mind like one additional historical episode, and that is the Supreme Court's decision in Dred Scott versus Stanford, when the court infamously declared that black people could not be citizens because, and here we will quote from the court in Dred Scott, "That was because black people, quote, 'have no rights, which the white man was bound to respect,' end quote."

• 29:51Kate Shaw?

  Yeah. All right. So we have been hard on Brett Kavanaugh and his intellect, and we have been inclined to favorably compare to him at least one of President Trump's other nominees, Justice Barrett. But she has not been exactly covering herself in glory on her press tour about her new book. And it has honestly left us wondering if we have just been grading her too easily on the Kavanaugh curve. So to take one example, Justice Barrett is on book tour, and she recently appeared on Sarah Isger's SCOTUS Podcast Advisory Opinions. This is part of her promotional tour, which has really largely involved speaking to conservative outlets and journalists. And as part of her conversation on Sarah's

• 30:32Kate Shaw?

  podcast, they talked about the emergency slash shadow docket. And Justice Barrett's defenses of it, I found shockingly poorly thought out. We were texting as we listened to this, and...

• 30:47Kate Shaw?

  I couldn't believe how thin and unreasoned the answers she was giving were. So at one point, she says, well, courts of appeals have shadow dockets. And yeah, maybe, but they have been using them way more responsibly than you have, have not been doing what the Supreme Court, really only the Supreme Court is doing what it has done, which is granting in case after case, extraordinary emergency relief for totally unexplained reasons.

• 31:12Leah Litman?

  And she also tried to justify the lack of writing or the cursory writings on the shadow docket by saying, you know, we don't have the time to pour over words and get things right. It's an emergency docket. And again, if it's unclear and you're having to workshop the language to figure out what to say to justify granting emergency relief, emergency extraordinary relief probably isn't warranted if it's not clear how the lower courts, you know, were obviously wrong. Like, you just don't grant relief.

• 31:41Kate Shaw?

  I just, and I do wish there had been a follow up on that score, but it just sort of hung.

• 31:46Leah Litman?

  She would never go to an outlet where that would happen.

• 31:48Kate Shaw?

  Kind of that sort of follow up. I guess not, but it's just like then, so you guys can't agree. And her sort of, yes, there's a lock in effect. She's had that a number of times. And like, that's right. Like, if you're going to do rushed, sloppy opinion writing, maybe it's best to stay your hand and not do it. But the obvious answer there is then don't intercede to disrupt what lower courts have carefully decided.

• 32:10Leah Litman?

  Or don't insist that your weird things on the shadow docket have lock in effect and scream at district judges and continue to stay orders in other cases.

• 32:19Kate Shaw?

  You just can't have it always, and they don't seem to appreciate that. Justice Barrett also went on Fox. There obviously is a pattern here. And she was asked, and actually, I think a genuine question about the 22nd Amendment, which limits presidents to two terms. And let's play that clip.

• 32:37Speaker 10

  The 22nd Amendment says you can only run for office for two terms.

• 32:42Leah Litman?

  True.

• 32:42Speaker 10

  You think that that's cut and dry?

• 32:44Leah Litman?

  Well, that's what the amendment says, right? You know, after FDR had four terms, that's what that amendment says. Really, girl? This is textualism? Because that was not reassuring.

• 32:57Kate Shaw?

  It says you can only run for office for two terms. And you can sort of see, obviously, you are on a tightrope. And you don't want to say anything that's going to suggest prejudging a particular case. It might come before the court. But you just can't even say, seems pretty clear. That's what the amendment says. And then just like, you know, it was, it left open a possibility that I found deeply, deeply concerning and didn't provide a whole lot of confidence in the even sort of easiest, seemingly easiest kind of answers that are going to come from this court.

• 33:33Leah Litman?

  Yeah. And then in a CBS interview, she had one of the worst answers to what has been a recurring question that she should have anticipated, and that is, are we in a constitutional crisis? To which she said, no joke, quote, "I don't know that I could give a definition of a constitutional crisis because I don't know that we've really faced one in this country." End quote. She had acknowledged, "We have constitutional challenges resulting from deep disagreement." Girl, have you heard of the Civil War? Like, this response perfectly encapsulates one of the court's deepest, biggest failures, its inability or unwillingness to acknowledge the facts around them and that these are not normal times.

• 34:11Kate Shaw?

  Right. There's a way to say that the system is under stress and it has been under stress before, and I'm confident that we will make it. You know, you can keep it pretty general, but she sounded clueless about both the present and the past in a way that, again, was just really disheartening if you were hoping to get more sophisticated answers from her.

• 34:29Leah Litman?

  Ladies and gentlemen, the originalists. You know, she had also a USA Today interview in which she insisted she's nobody's justice. And in all of these appearances, she has a very weird habit where she likens Every aspect of judging to being a mom, you know, remember her concurrence in the student debt relief case, which was about babysitters and talking about how she runs her chambers. And this was on the podcast. She said, it's like parenting. You emulate what you like and change what you don't. And in the USA Today interview, in responding to, you know, a question about Justice Jackson's accusation that the Supreme Court's rules, the administration always wins. Justice Barrett said the court doesn't make decisions the way she might handle her children's disputes, like evening things out.

• 35:14Leah Litman?

  I don't understand why she does this. And I just want to let her know, like, the country does not need mommy issues. And yeah.

• 35:22Kate Shaw?

  I think there is, in theory, a way to bring examples that are not like insane and ridiculous and obnoxious Neil Gorsuch examples to the task of trying to do public education and explanation about the law. But each time she has tried in her opinions and in this interview as well, it feels like it misses badly and ends up belittling or infantilizing really serious stuff. And so I totally agree. I don't think this is working and I think she needs to try another tack. So she's been very busy on the book circuit. I have not yet read the book. So we'll see if there's more to say. Once we have actually looked at the book with our own eyes.

• 35:58Leah Litman?

  If my brain cells survive it.

• 36:00Kate Shaw?

  I mean, I don't think it's going to be like reading a Kavanaugh concurrence. I feel pretty confident it's not going to do the same thing to our brains. But I guess we'll see.

• 36:06Leah Litman?

  The bar is in hell.

• 36:09Kate Shaw?

  Speaking of, let's go back to the shadow dog. Because the court was really on a roll this week, like a steamrolling all the way over kind of role over the district courts. So we also wanted to note some administrative stays the court has issued in recent days. So administrative stays aren't usually or often necessarily signs of what the court might do on the actual stay. An administrative stay is meant just to block a lower court order briefly, like hit pause for a matter of days so that the court has enough time to decide whether to issue a regular stay that will last until like the full request makes its way to the Supreme Court. But given how often they have granted actual stay requests when the administration is the one asking,

• 36:53Kate Shaw?

  and just given the subject matter here, administrative stays can be revealing.

• 37:00Leah Litman?

  And one of them definitely was. So you remember Humphrey's executor? No.

• 37:04Kate Shaw?

  Already mourning her.

• 37:06Leah Litman?

  Right. Humphrey's executor, you're not just in danger, girl, you're dead.

• 37:10Kate Shaw?

  Or mostly dead. It's not all the way dead. It's sort of a princess bride dead. But Wesley came back and I don't think that's happening to Mr. Humphrey. Okay, so let us explain. On Monday, Chief Justice Roberts issued an administrative stay blocking a lower court ruling that had blocked the president from firing one of the commissioners of the Federal Trade Commission without cause. So that is a firing that would be in violation of federal law, as are many of the firings that the president has carried out since taking office. But here Humphrey's executor is more directly implicated than in many of the other firings that we have talked about on this podcast. So that case is the nearly century old decision that upheld Congress's power to create independent agencies, to insulate

• 37:53Kate Shaw?

  heads of these commissions or independent agencies. And at issue in Humphrey's executor specifically was a commissioner of the Federal Trade Commission, who was protected by law from being fired at will by the president, who challenged his firing, and where the Supreme Court upheld the statute that limits the president's firing power.

• 38:12Leah Litman?

  As we noted last episode, although the court had allowed the president to fire the heads of other multi-member commissions, thus ghosting Humphrey's executor because it hadn't even mentioned the decision, the lower court in this case said, look, Humphrey's executor is still the law. You, Supreme Court, haven't said it's overruled, so we are going to follow it. LOL, jokes on them, of course. Story Decisis is for suckers. And, you know, real curious definition of irreparable harm that the chief seems to be working on here. You know, the president not being able to preemptively overrule our decisions by FIA is apparently now irreparable harm.

• 38:46Kate Shaw?

  Yeah. So that was an administrative stay. Doesn't necessarily tell us how this case will shake out, but it was a very telling one. And if that was not enough for just this one week. The chief also entered an administrative stay in the foreign aid litigation that we also talked about during our last episode. So this again is the case where a district court concluded that the administration's freezing and canceling foreign aid grants violated federal law. And after some complicated proceedings in the appellate court, the D.C. District Court once again entered a preliminary injunction that would require the government to pay out the wrongfully withheld funds. And the D.C. Circuit denied a stay, meaning until the Supreme Court decided to get involved, those funds were ordered to flow. So that was the status quo. And then?

• 39:30Leah Litman?

  And then the chief issued an administrative stay indicating it seems like the court is seriously deciding whether to grant a stay here.

• 39:39Kate Shaw?

  And we talked about this on the last episode, but we want to highlight again how utterly shameless, maybe even sanctionable, the government's conduct has been in this case. So we won't go through the entire backstory here, but we talked about how the government was pulling bait and switches in order to paint the district court in an unfavorable light and suggest that it was making unreasonable asks of the government. This episode, we wanted to give you a flavor of the kinds of arguments the government is making in this case for a stay.

• 40:04Leah Litman?

  So as Judge Ali explained, the government rescinding these funds violates federal laws, including the Empoundment Control Act. So here's what that law says. Quote, "Any amount of budget authority proposed to be rescinded, or that is, to be reserved as set forth in such special message, shall be made available for obligation, unless, within the prescribed 45-day period, the Congress has completed action on a rescission bill." You know, and so it goes.

• 40:30Kate Shaw?

  And here is how the government characterized and quoted from that same statute, the ICA, in its brief. Quote, "If Congress does not complete action on a rescission bill, rescinding all or part of the amount proposed to be rescinded within 40 days of continuous session after receiving the message." The ICA provides that the amount proposed to be rescinded shall be made available for obligation.

• 40:52Leah Litman?

  If you want to replay that, you can, but it is the opposite of what the statute says, right? It totally changes the presumption about when or if the funds are available, but textualism, right? Am I right? And these are the kinds of arguments and behavior that the Supreme Court is rewarding.

• 41:11Kate Shaw?

  So we will see what the Supreme Court does in this case. Roberts crossed over and joined the liberals at a much earlier stage involving a different set of legal arguments, but in an earlier stage of the same basic disputes over foreign aid funds before Judge Ali at the very beginning of this administration. His voting the other way all these months later, after the kind of litigation conduct that Leah was just discussing, would be a really important and profoundly concerning indication of just how things have changed in the last eight months. All right. In other SCOTUS news, the court granted Solicitor General John Sowers' cert petition in the case challenging Trump's tariffs. The one that warned the court a year ago the US was a, quote, "dead country."

• 41:55Kate Shaw?

  It made me wonder if that was a callback to Scalia's describing the Constitution as dead, dead, dead, although he meant that as a compliment, and Sowers is saying it's bad, it's dead. Anyway, the court agreed to hear the case on an expedited basis, so arguments will be the first week of the court's November sitting, which means that we will get to talk about that argument in the tariffs case when we are doing our live show in Washington, D.C. as part of CrookedCon. So it is now official. We will be at CrookedCon doing a live show on Friday, November 7th, during which we will be chatting about how the oral arguments in the tariffs case went, among many other topics. So there are tickets now available. You can get them at crookedcon.com, which I think I said, okay, it's very hard to say. I think I hit it.

• 42:38Leah Litman?

  Yeah. It does confirm that the Supreme Court's real job is just to be content creators for us.

• 42:43Kate Shaw?

  I'm happy for them to retire from that job.

• 42:45Leah Litman?

  Same.

• 42:46Kate Shaw?

  I would much rather talk about other things. But I guess, yeah, the silver lining is that we will definitely not want for things to talk about at that show.

• 42:53Leah Litman?

  Yeah.

• 43:00Melissa Murray?

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• 44:24Melissa Murray?

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• 44:40Speaker 11

  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. 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. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmieri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 45:26Kate Shaw?

  A bit of other news. The lower courts continue to do their jobs versus the administration, right? Like, those are two key players right now. This is litigation that we haven't had a chance to discuss. There is just so much legal news going on. But a few weeks ago, specifically over Labor Day weekend, the Trump administration began to attempt to carry out a hurried slapdash effort, again, over a holiday weekend, to deport a bunch of children to Guatemala. So a district court's 2:00 a.m. in the morning intervention is the only thing that blocked that effort. And a Bauer at Lawfare put together a spectacular piece describing how the litigation unfolded and what it says about how lower courts are responding and updating their approach

• 46:11Kate Shaw?

  to handling litigation against the administration, where that administration does not even act in good faith. So these district judges are learning from the things that went down with, say, Judge Boesberg in the District of D.C. So in this case, a district judge halted this proposed deportation through a temporary restraining order. The children in this litigation, which is an insane thing to even say, but yes, these are children and they are trying to enjoin their deportation. And another judge is evaluating their request for a preliminary injunction. So we're going to continue to monitor that case.

• 46:43Leah Litman?

  And there's already been one striking development. So as the government was attempting to hurry these children off in the dead of the night, it insisted to the district court in the emergency temporary restraining order proceedings that the children's parents wanted them sent to Guatemala. The plaintiffs challenged this. The district court halted the deportations because the judge wasn't convinced. And now, after the judge blocked the government from sending children to Guatemala, the government has conceded to the district court that they don't have a basis for saying the children's parents want them sent back to Guatemala. So they would have done this in the dead of the night, on a holiday weekend, based on a lie, a falsehood. And in my view, like, this just totally kills the presumption of regularity. And it basically confirms that interim emergency TROs should almost be presumptively

• 47:28Leah Litman?

  available against the government.

• 47:30Kate Shaw?

  And...

• 47:32Kate Shaw?

  That conduct in this case, it feels like it should infect the government's representations and conduct in all other cases, but we will see if courts are willing to at least relax this presumption of regulatory, if not flip it, as it seems like it should be flipped. In other news, a district judge in DC, Judge Cobb, concluded that Trump likely acted unlawfully when he purported to fire Federal Reserve Board Governor Lisa Cook on the basis of allegations of mortgage fraud. The relevant laws only allow the president to fire governors for cause. Trump claimed he had cause because of this alleged mortgage fraud, which subsequent reporting by ProPublica has suggested multiple officials in Trump's cabinet have also engaged in the exact conduct that Lisa Cook is alleged to have done, which is namely just list more

• 48:15Kate Shaw?

  than one home as a primary residence, not even clear there were any favorable terms that followed from that listing. And yet, these other officials have, for some reason, I can't quite put my finger on, not been fired. Anyways, the federal judge in the case involving Lisa Cook concluded that the cause that the statute requires only includes behaviors and conduct engaged in while holding office. So whatever happened with the mortgage application far before a term of service in government, none of that supplies the requisite cause in order to satisfy the statute.

• 48:50Leah Litman?

  So the court also concluded that Cook's removal violated the due process clause, and the court pointed to some of Trump's social media posts in support of that ruling, which is bringing back some very bad memories of the Muslim ban litigation, when the Supreme Court was telling us whether we could consider Trump's statements, promising a complete and total shutdown of Muslims entering the United States. But this is also an occasion to remember, Kate, your very excellent article beyond the bully pulpit presidential speech in the courts, although we should say the court in the Cook case is using the social media posts quite differently than how social media and presidential statements came up in the travel ban. And the Trump administration is already seeking a stay of this opinion.

• 49:31Kate Shaw?

  And I'm nervous for this case going on.

• 49:33Leah Litman?

  Oh, yeah.

• 49:33Kate Shaw?

  So, given the kind of winning streak with respect to these removals that the administration has been on. And I don't think we're the only ones who are nervous, apprehensive, frustrated with the way the Supreme Court is proceeding on the shadow docket, because that same kind of frustration, or at least some frustration, has now officially bubbled up to the Courts of Appeals. We mentioned district courts punching back last week. This week, the Fourth Circuit en banc heard oral argument in an appeal from one of the cases involving a preliminary injunction that SCOTUS had stayed. So, just to remind people of how this works, the court grants a stay of the preliminary injunction. But all that means is that the preliminary injunction is not in effect while the normal litigation process still plays out.

• 50:17Kate Shaw?

  So, it is now happening that these cases are returning to the federal appeals courts, and some of them will be returning maybe back to SCOTUS, just without the preliminary injunction that the district courts had issued in place in the meantime.

• 50:29Leah Litman?

  So, here, the Fourth Circuit still has to issue a decision on the merits of the appeal of the preliminary injunction, even after the Supreme Court has granted a stay. And this particular case involved the challenge to Doge's access to sensitive social security records. And suffice to say, the judges on the Fourth Circuit were not totally sure what the F they should do with this stay. We're going to play a montage of the frustrations. Here's one.

• 50:54Speaker 12

  The Supreme Court reversed our decision in terms of a stay here. And it seemed unusual in the order that they entered, because they didn't simply enter a stay. They provided that the stay would continue regardless of what this court does. It seems a little unusual to me.

• 51:15Leah Litman?

  Some judges floated the possibility of, hey, let's just pull a SCOTUS.

• 51:19Speaker 13

  I don't see- One answer to that would be to write a one-sentence opinion that says, "We don't really know how or why." Right? We don't have to figure that out. It might be on the merits, it might be on the equitable factors, it might be on irreparable harm. We don't know. Yeah. But we know what the answer is here. Yeah. The answer here is that the plaintiffs lose.

• 51:37Leah Litman?

  Other judges, not so into that.

• 51:39Speaker 14

  The problem we have is the Supreme Court isn't giving us opinions. It's giving us signals. And this so-called shadow document, that docket that's being put out here, we can glean and probably predict pretty accurately. If that's our job, is to predict the Supreme Court and call that a win, I can tell you how we'll do. We'll just do it with the Supreme Court. You don't need this court. But you have to agree, as you answered Judge King's question, we have an independent obligation to consider the merits of this appeal. If it wanted to, it could have just told us, "You don't need to do anything else. We're going to go ahead and decide it for you." So if it's decided the merits of the appeal, then it would have done that. It didn't do that. It didn't even tell us that. And that's the problem we got is,

• 52:24Speaker 14

  we have a Supreme Court. I'm not criticizing the justices. I'm just saying you're using a vehicle that's there, but they're telling us nothing. And they're leaving the lower courts, circuit courts, the district courts out in limbo as to guess what they are doing or to glean or predict what they're doing. That's a problem. We have an independent obligation. That's what we ought to undertake here. And we do so independently, even though some might want to predict or even you could accurately predict what the Supreme Court. I don't think we should guess that. We have a job to do. That's our constitutional duty. The Supreme Court has its constitutional duty. We all should just do our job. The problem is, you know, we're being asked to follow signals and signs.

• 53:06Speaker 14

  I mean, that's really not the way in which we like to operate up here. I mean, we're going to follow and do what the Supreme Court tells us to do, but there needs to be a clearer way of saying it. As I said, the Supreme Court didn't give us opinion. It gave us a signal at best. I agree with Judge Wilkinson on that. As to whether it's precedent, we follow it. I mean, we're going to try to do the best we can.

• 53:25Leah Litman?

  Other judges liken this whole sitch to a traffic signal.

• 53:28Speaker 15

  You know, you can go through an orange light. You can, you know, wonder whether when you go through that orange light, you're also taking a chance that you're going through red. And surely what the Supreme Court did must mean something.

• 53:46Leah Litman?

  And even the federal government itself was hard pressed to explain what exactly the Supreme Court's stay meant.

• 53:53Speaker 16

  Not to argue against myself here, but I think one complication is, you know, the stay order in this decision, the Supreme Court's stay order, I should say, said that we were likely to succeed on the merits, but precisely because there are multiple totally independent reasons why we might be likely on the merits, and the court didn't. Explain which justices thought, you know, maybe three of them thought we were going to win on standing and three on EPA reviewable action. So I'm not taking the position that it's strictly binding on this court.

• 54:23Speaker 14

  Is a single precedent?

• 54:25Speaker 16

  Again, I mean.

• 54:27Leah Litman?

  And we will end with this Fourth Circuit clip.

• 54:30Speaker 14

  And now at the merits, this question seems to be, do we just accept yes with nothing else? And the Supreme Court perfectly can do it. It said yes, but nothing else. But they didn't get to the merits. And we do it all the time. We go back and reconsider cases because certain points were not considered. To ensure that this is an opportunity for the Supreme Court to do this, we go to the merits, we write an opinion that analyzes the merits, goes to the Supreme Court, and with great hope, we will get an opinion that will also follow that same reasoning and give us not only precedent and reasoning, but will give greater confidence to the public that judges don't sit up here and just

• 55:13Speaker 14

  give you an answer and make it look like it's on one side or the other that you did it. They didn't do that. There's a reasoning. But we are left here to say, well, do what the Supreme Court said. Well, they just said, it just gave a state. It gave no reasoning. Somebody ought to give a reason. Some court, some judge ought to tell the public, ought to tell the litigants in the case, here are the reasoning. That's the way our system works in America.

• 55:40Kate Shaw?

  We just want to say, Fourth Circuit, we hear you. And someone else heard you too, because someone did recently speak out in defense of the lower courts who are doing their jobs, a SCOTUS justice even.

• 55:53Leah Litman?

  That SCOTUS justice was Justice Breyer. So The New York Times reported that Justice Breyer offered public comments in defense of Judge Young, the District of Massachusetts judge in the National Institutes of Health case, whom Gorsuch and Kavanaugh had accused of being part of an epidemic of district judges defying the Supreme Court.

• 56:11Kate Shaw?

  I mean, and I think he's Reagan appointee, Judge Young, if I'm not mistaken.

• 56:14Leah Litman?

  Yes.

• 56:15Kate Shaw?

  So as we noted in the last episode, that Judge Young offered an apology in a hearing. And then last weekend, Breyer weighed in to say, quote, I never saw an instance where he, meaning Judge Young, would deliberately defy a controlling opinion or legal statement from our court or from the Supreme Court. I never had an instinct or a guess or a hunch or anything that he was doing anything like that deliberately. Sorry, Melissa's not here, so I'm the thespian.

• 56:38Leah Litman?

  You're doing a good justice, Breyer.

• 56:39Kate Shaw?

  That's okay. It's an okay, Breyer. Like, if you know Breyer's, like, you know, kind of rhythm cadence, it's not horrible. So, Breyer continues, he was honest, he was a straightforward judge, a very decent person, and a good judge. So, thank you, Breyer, for writing to his defense.

• 56:52Leah Litman?

  So, Justice Breyer, you know, before becoming a Supreme Court Justice, was a judge on the First Circuit, the Court of Appeals, adheres cases from the District of Massachusetts. So, he served together with Judge Young and would have reviewed his cases in that capacity. So, he knows of which he speaks. That is all we've got time for, but stick around for a fabulous interview with the fabulous Simone Sanders Townsend. An amazing MSNBC Strict Scrutiny crossover that is, alas, about a less than awesome crossover.

• 57:22Kate Shaw?

  Before we go, some announcements. You've probably heard us mention Crooked Con over the last few weeks, but if you haven't, Crooked Con is your chance to join some of the smartest organizers and least annoying politicians in America to strategize, debate, and commiserate about where the pro-democratic movement goes from here, hopefully up. We are excited to share a preview of the Crooked Con lineup, which includes Sarah Longwell, Hassan Piker, Faiz Shakir, Brian Taylor Cohen, Jessica Tarlov, Senator Ruben Gallego, Andy Beshear, Representative Sarah McBride, Representative Janelle Bynum, Ben Wikler, and more. We are also going to close out Crooked Con with a Strict Scrutiny live show. To come see us, get your Crooked Con tickets at crookedcon.com. The ticket will give you access to the full day of conversations, panels, workshops, and you can end the day with our live show.

• 58:03Kate Shaw?

  Before they sell out, get your tickets at crookedcon.com.

• 58:08Leah Litman?

  Strict fans, we are in session. So, tickets for our Chicago live show on October 4th at the Athenaeum Center are going fast, so get them while you still can. If you can't make it to Chicago, remember that we will be closing out Crooked Con on November 7th in Washington, D.C. with a live recording of Strict Scrutiny. The tour is already delivering precedent-setting chaos. And West Coast is next on our docket, so stay tuned for that announcement soon. In the meantime, don't miss your chance to see us in person in Chicago or D.C. Grab tickets now at crooked.com/events.

• 58:49Melissa Murray?

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• 1:01:22Speaker 11

  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. 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 Phillips. 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. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmieri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 1:02:09Leah Litman?

  Hello and welcome back to a very special segment of Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it.

• 1:02:16Kate Shaw?

  And we have a very special guest for this very special segment. Longer time listeners will remember that last summer, we did a series on Project 2025, trying to give people the download on the reactionary agenda that was being prepped to be implemented at lightning speed during a, at that point, hypothetical second Trump administration.

• 1:02:33Leah Litman?

  We called it Disaster Piece Theater, and we tried to warn you all. And the segment on the general welfare was specifically called DEI for Men With Bad Personalities, but Disaster Piece Theater was the general title.

• 1:02:44Kate Shaw?

  That was an especially good segment. So, since then, a good amount of attention has been paid to how this administration is indeed carrying out many elements of Project 2025, the policy agenda they claimed at the time to have no knowledge of, no association with, and no interest in.

• 1:03:01Leah Litman?

  Well, Sinead O'Rebellion, shock me, shock me, shock me with that deviant behavior.

• 1:03:06Kate Shaw?

  So less attention has been paid since the inauguration to the way the Supreme Court is carrying out key parts of Project 2025 and at the same time, enabling and facilitating other parts of the government to do the same thing.

• 1:03:18Leah Litman?

  So in keeping with our mission to try and inform people about what the weirdos are up to at One First Street and how the court has its dirty little fingers all over the shitty ass cookie jar we find ourselves in, today, we're here to talk about the Supreme Court October term 2024 through the lens of Project 2025. And to do that, we're delighted to be joined by someone whose journalism and commentary did so much to try and inform the country about the impending doom that was the disaster piece theater of Project 2025, and that is Simone Sanders Townsend. Simone Sanders Townsend is co-host of The Weeknight, which airs weeknights at 7:00 PM Eastern on MSNBC. Before joining MSNBC, Simone served as senior advisor for President Biden's 2020 presidential campaign, deputy assistant to the president, and senior advisor and chief spokesperson

• 1:04:03Leah Litman?

  to Vice President Kamala Harris, and as the national press secretary for US Senator Bernie Sanders' 2016 presidential campaign. Welcome to the show, Simone.

• 1:04:12Speaker 17

  Greetings. I've had a lot of jobs.

• 1:04:14Leah Litman?

  All of them fabulous and super impressive.

• 1:04:19Kate Shaw?

  Trying to save the country from doing the thing that it then did, including we also, the list was long, but also we omitted that you and our wonderful co-host, Melissa Murray, partnered on the Black Women in America Road to 2024 series last fall, which is also fantastic.

• 1:04:34Speaker 17

  Thank you.

• 1:04:35Kate Shaw?

  Yeah, so, and yet here we find ourselves.

• 1:04:38Speaker 17

  Look, we tried to tell you on multiple occasions. We tried to tell you. And now, here's Project 2025. So I'm happy to be here. I will say, it's so crazy because, as folks may remember, Kevin Roberts, who is head of the Heritage Foundation, he was doing a lot of print interviews, going on a little Fox News during the election. And this was around the same time that the Trump campaign had not really denied Project 2025, but they weren't trying to pay attention to it. And folks were putting it off as like, oh, this is just another policy document. So I saw Kevin Roberts' interview in the Associated Press, and I remember on one of our show team calls, we were still during the weekend, I said, we should ask Kevin Roberts if he wants to come on.

• 1:05:20Speaker 17

  Everybody's talking about Project 2025, he's surely willing to talk about it, we should invite him. And lo and behold, we invited him and he said yes. We did a wide-ranging interview with him and the biggest takeaway I had from it was one of the first things he said when he sat down. He said that, you know, Project 2025 is not about Donald Trump. It's about instilling Trumpism into every facet and level of the federal government. And he literally said to me, he said, you know, if President Biden were to take up Project 2025, we'd be happy with that. But we don't think this is his brand of policy.

• 1:05:56Kate Shaw?

  It's not his vibe.

• 1:05:58Speaker 17

  Correct. And he went through all of these things that Project 2025 lays out in terms of the firings, in terms of the policy pieces around abortion and healthcare, everything. We were not stunned, but I think people who were watching it were stunned because it's one thing to read it on a page, but it's another thing to see someone sitting there defending the words that they wrote and the ideology behind it and saying, well, yeah, and also we want to go a little further. So I do think way back when, people should have took it seriously, what we were saying. But now, we are seeing it play out in real time. And just like during, you know, just like during Reconstruction where the Supreme

• 1:06:42Speaker 17

  Court played a key role in rolling back all of that progress that was going to be made and underscoring the policy prescriptions that helped dismantle Reconstruction. That is exactly what this Supreme Court, in my opinion, is doing as it relates to the great, you know, gains that have been made over the last, I would argue, like 50 years. Project 2025 is the blueprint.

• 1:07:04Kate Shaw?

  Absolutely. And in many ways, the kind of redemption Supreme Court that was reacting to some of the gains of Reconstruction took a number of years. It's kind of amazing how fast this court is dismantling. Now, it's not just the court since the Trump administration began for a second time. You know, we're talking about going back to things like, you know, Shelby County in 2013, even Citizens United in 2010. So it was a decade, two-decade-long project, but certainly the kind of warp speed in the last few months has been really striking. And I think partly it's because Project 2025 Had laid it all out and implementation was really all that had to happen. Okay, so here is the game plan for this segment. We're going to remind you all of some of the promises and plans in Project 2025, and then try to show you the way this court has been a key player in making Project 2025

• 1:07:49Kate Shaw?

  a part of the unfortunate reality we all find ourselves in. So let's start with one of the opening promises of Project 2025, a key fixation of it, if you will, and that is pornography. Simone, can you remind us, what did Project 2025 have to say about pornography?

• 1:08:07Speaker 17

  Well, you know, if we can just go to our dear friend Kevin Roberts, you know, who is the president of the Heritage Foundation, one of the architects of Project 2025. And in Project 2025, and Kevin Roberts, a promise to America, this is what he says, we're going to quote it, talking about pornography. "It has no claim to First Amendment protection. Pornography should be outlawed. The people who produce and distribute it should be imprisoned. Educators and public librarians who purvey it should be classed as registered sex offenders, and telecommunications and technology firms that facilitated spread should be shuttered." That's what they said.

• 1:08:44Leah Litman?

  Okay, so how did the Supreme Court help these porn-obsessed weirdos out at Project 2025? So as we explained at the time of their decision, in Free Speech Coalition versus Paxton, the Supreme Court ratcheted down the level of scrutiny that is applicable to restrictions on porn. So the court held that laws that are designed to prevent minors from accessing porn, their age verification limits that require users to submit documentation, those laws don't trigger strict scrutiny, even when they burden adults' access to the material that they are constitutionally entitled to access. Why? Because porn, according to the Supreme Court, isn't real free speech. That's entitled to real First Amendment protection.

• 1:09:25Kate Shaw?

  So that is a perfect segue to this game we wanted to play, because again, we do-

• 1:09:30Leah Litman?

  Game.

• 1:09:31Kate Shaw?

  In scare quotes.

• 1:09:32Leah Litman?

  We try to make learning fun.

• 1:09:35Kate Shaw?

  And laugh so we don't cry, right? This is part of our sort of, you know, coping mechanism. But basically, we want to ask, who said it? Project 2025, the actual document, or a SCOTUS justice? So we're going to pose some quotes, and Simone, we're going to have you guess. You ready?

• 1:09:53Speaker 17

  I'm ready. Let's do it.

• 1:09:54Kate Shaw?

  Okay. So, and these are going to hearken back to the pornography case, Free Speech Coalition versus Paxton, Leah mentioned a couple of minutes ago, and also just Project 2025's position on pornography. Okay, quote, "With the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content, both benign and obscene, at almost any time and place with an ease that would have been unimaginable." Project 2025 or a SCOTUS justice?

• 1:10:19Speaker 17

  Project 2025.

• 1:10:21Kate Shaw?

  Good guess.

• 1:10:22Speaker 17

  Yes.

• 1:10:23Kate Shaw?

  Wrong, though.

• 1:10:24Speaker 17

  What?

• 1:10:25Kate Shaw?

  Could have been. This was Thomas's majority opinion in the Paxton case. Easy to mistake for the actual document, Project 2025's.

• 1:10:35Speaker 17

  Very problematic.

• 1:10:36Kate Shaw?

  For leadership, yep.

• 1:10:38Leah Litman?

  Okay, quote, "Children suffer pornography invading their school libraries," end quote. Project 2025 or Supreme Court justice?

• 1:10:47Speaker 17

  Project 2025.

• 1:10:48Leah Litman?

  Ding ding ding ding, that one is indeed Project 2025 Daddy Kevin Roberts.

• 1:10:54Kate Shaw?

  All right, one last.

• 1:10:55Speaker 17

  But also, is that true? Is that true? I mean, I don't know the last time I went to a library and found a pornography section for the children.

• 1:11:05Leah Litman?

  You know, I did some book events at libraries, and that didn't come up.

• 1:11:10Kate Shaw?

  No.

• 1:11:11Leah Litman?

  So, yeah.

• 1:11:13Kate Shaw?

  Turns out, they think that things, that books that depict anything that breaks. We'll get to the Mahmoud case, but for sure, with LGBTQ characters or themes, like, that is pornography in their mind. And yeah, like, those books are, at least for now, available in some libraries, and they find that, I think, offensive. Okay, one more. Quote, "Kids can get online porn through gaming systems, tablets, phones, and computers." Project 2025 or SCOTUS?

• 1:11:43Speaker 17

  I think they, either one of them could have said it. I think that was a Supreme Court justice.

• 1:11:46Kate Shaw?

  That's right. So that's Barrett in the oral argument in Free Speech Coalition versus Paxton.

• 1:11:51Leah Litman?

  That was impressive, Simone. Two out of three, when they're basically all interchangeable statements.

• 1:11:58Kate Shaw?

  And one kind of point just about the real world implications of some of these Supreme Court decisions implementing the policy vision of Project 2025. After the Paxton case, the Fifth Circuit and then the Supreme Court allowed a Mississippi law requiring age verification for minors for social media to go into effect. This was a direct result of the Paxton case. And I mean, there's, I think, a real and important policy debate to be had about kids and social media, not denying that at all, but allowing this law to go into effect, even though the Supreme Court itself said, at least as it's framed this law, it at least triggers some heightened First Amendment scrutiny and maybe violates the First Amendment. But the court has basically said, no problem, put it into effect, which has meant that some social media sites and news sources have had to shut down their online operations

• 1:12:41Kate Shaw?

  in Mississippi, denying people access to certain news sources altogether because of this requirement. So the implications extend way beyond pornography and social media, which is what we were warning about when the Paxton decision came down.

• 1:12:54Speaker 17

  And it's intentional. And you know what? Using pornography as the scapegoat, if you will, or the Trojan horse, the vehicle through which to get this policy into place, there are people who maybe even self avowed, you know, liberals or progressives that say, well, you know what? This isn't such a bad thing, not understanding that it is not, as someone once told me, it's not the just the action, it's the thought behind the action. And the thought behind the action is to get some more stuff up in there to undergird their authoritarian takeover.

• 1:13:23Leah Litman?

  Yes. Okay. So in addition to being obsessed with porn, Project 2025 was also obsessed with trans people. You know, interesting that the people shielding associates of pedophile Jeffrey Epstein would be obsessed with porn and people's genitalia, but I digress. Simone, can you remind us, like, what are some of the things that Project 2025 said about, like, their plans for the trans community?

• 1:13:47Speaker 17

  Well, first of all, Project 2025 literally recommended banning trans people from the military. You can look at page 103 for folks that haven't read through the document, and it said that they wanted to restore standards of lethality and excellence, interest criteria for military service, and specific occupational career fields should be based on the needs of those positions. Exceptions for individuals who are already predisposed to acquire medical treatment, for example, HIV positive or suffering from gender dysphoria, should be removed. And those with gender dysphoria should be expelled from military service. They are using gender dysphoria as a placeholder for the word trans, which is problematic.

• 1:14:29Speaker 17

  And then on page 104, they literally write that they wanted to allow, um, reverse policies that allowed transgender individuals to serve in the military. They wanted to restrict gender-affirming care, um, of treatments for people who are under 19, which again, another little Trojan horse, because it's not like people, they, they want you to believe five-year-olds are out here having sex changes. It's so crazy. Um, and they recommended exercising gender, ex- ex- exercising, getting rid of, pushing out gender ideology from any of the curriculum within the military. They were very clear.

• 1:15:05Kate Shaw?

  Yeah. So all of that sounds familiar, in part because the Supreme Court has had something to say about all of this. Couple of examples. First, in United States versus Schilling, a case where on the shadow dockets, SCOTUS allowed the Trump administration to begin implementing its ban on transgender service members with no explanation and in the face of a very careful district court opinion finding that the policy, the absolute ban policy likely violated the Constitution. That, you know, another example of SCOTUS seeming to march to the tune of the same drummer as the Project 2025 authors was Cremetti versus United States, in which SCOTUS allowed the state of Tennessee to enforce a ban on gender-affirming care for trans minors. And finally, Mahmoud versus Taylor, a case I mentioned a couple of minutes ago, and

• 1:15:48Kate Shaw?

  we will return to, involved the court basically finding that parents had a First Amendment right to receive notice and an opportunity to opt their children out of instruction that involved storybooks for kids that might contain discussions of gender identity or contain LGBTQ, and here specifically, trans characters. So, we are going to-

• 1:16:11Speaker 17

  I know we got another game, but can I just say-

• 1:16:13Kate Shaw?

  Yes.

• 1:16:14Speaker 17

  That gender-affirming care, people hear that and they automatically think-

• 1:16:19Speaker 17

  Something, like I said, five-year-olds getting sex changes. But gender-affirming care includes therapy, right? It includes, it includes the mental health resources that people need. That is, that is the majority, frankly, of what we're talking about.

• 1:16:34Leah Litman?

  Right. Like, so imagine, right, if you are one of the well-adjusted people that goes to therapy. And tomorrow, the federal government said, nope, sorry, you can no longer get any therapy. Like, let me tell you, right, like, the state of my, like, being and function would plummet. Uh, like, that is, that is a no-go. Um, but, anyway. So, Simone, you did preview that we were going to play our game once again. So, we are going to do, uh, the game to illustrate the convergence, you know, between Project 2025 and the Supreme Court. So, I'm going to read a quote, and Simone, you are going to guess. Project 2025 or Supreme Court justice? So, without further ado, quote, "The number of children identifying as transgender has surged,

• 1:17:17Leah Litman?

  and medical professionals have increasingly expressed doubts over the quality of evidence supporting the use of puberty blockers, cross-sex hormones, and surgery to treat them." End quote.

• 1:17:27Speaker 17

  Was that, was that a Supreme Court justice? Was that Thomas?

• 1:17:31Leah Litman?

  Yes. You not only got-

• 1:17:33Speaker 17

  It sounds like something he would say.

• 1:17:34Leah Litman?

  Exactly. That was Justice Thomas's concurrence in Schrammety, in which he railed against the, like, self-proclaimed experts while anointing himself an expert on health care for kids.

• 1:17:48Kate Shaw?

  All right, here's another. Quote, "Minor children, especially girls, are attempting to make life-altering decisions using puberty blockers and other hormone treatments, and even surgeries to remove or alter vital body parts."

• 1:18:00Speaker 17

  Project 2025.

• 1:18:01Kate Shaw?

  Okay, that one was Project 2025. Yeah, they, I don't think the justices actually went quite there, but they are so close in some of the Schrammety writings in particular. And maybe I just tipped my hand about the next one, but let me ask.

• 1:18:16Kate Shaw?

  Who said, quote, "The treatments at issue are subject to a rapidly evolving debate that demonstrates a lack of medical consensus over their risks and benefits"?

• 1:18:25Speaker 17

  That was the Supreme Court.

• 1:18:26Kate Shaw?

  That was also Thomas in Schrammety.

• 1:18:28Leah Litman?

  Also Thomas. Yeah. Okay, quote, "There is no evidence that gender-affirmative treatments reduce suicide." End quote.

• 1:18:37Speaker 17

  Project 2025?

• 1:18:39Leah Litman?

  Sam Alito, so basically the same thing during the oral argument in Scrimetti. Yeah.

• 1:18:45Speaker 17

  Ah, Lord.

• 1:18:46Kate Shaw?

  And, you know, they're in some ways maybe just getting started because next term, they will have, the Supreme Court justices will have the opportunity to do another solid for Project 2025 when they decide whether Title IX or the Constitution's equal protection clause prohibits schools from banning trans athletes from participating in schools, or maybe allows schools to ban trans athletes, or maybe the Constitution and federal law requires schools to ban trans athletes from competing. All of these things, I think, are on the table.

• 1:19:22Speaker 17

  Just like, just, just like there are not five-year-olds out here getting sex changes, there is not an epidemic, if you will, of, of, in, in, in basketball and soccer leagues and football leagues across the country where you've got trans athletes in these schools and the schools just don't know what to do about it. And there's a raging debate among the parents. That's not happening. It's like a very small percentage. And I think it's important to underscore because this goes to, back to the point of what I was saying about reconstruction and the dismantling of it. The Supreme Court during that time, along with, you know, some members of Congress and, you know, the fact that the economy wasn't

• 1:20:02Speaker 17

  doing really well, they, they made decisions that stole, that chipped away at the gains that were being made, that chipped away at the 14th, the 13th, 14th, and 15th amendments, the reconstruction amendments that gave way to the collapse of reconstruction. What the Supreme Court is doing, they don't got to hear this case?

• 1:20:20Leah Litman?

  No.

• 1:20:20Speaker 17

  They don't have to hear this case? It's crazy. This is intentional, though, because, again, they're trying to, Project 2025, institutionalize Trumpism. How do we do that? Change the laws.

• 1:20:31Kate Shaw?

  Yeah.

• 1:20:32Leah Litman?

  Yeah.

• 1:20:34Kate Shaw?

  So, all right. Now, we want to turn to a case now we've mentioned a couple of times, Mahmoud versus Taylor, but also some other matters for what they say about education in general, public education in particular, and just how they reveal the Supreme Court's alignment with Project 2025 on, again, both schools but also LGBTQ rights. So, just a quick reminder for our listeners, Mahmoud is the case that said parents have a right under the First Amendment to opt their children out of instruction involving LGBTQ storybooks. Why were these storybooks objectionable to some of said parents? Well, let's turn to Justice Alito's majority opinion and/or Project 2025, and those things may shed some light on what exactly these parents were arguing. Let me start with one.

• 1:21:19Kate Shaw?

  Quote, "Gender ideology is being taught in curricula in public schools in the country." Supreme Court or Project 2025?

• 1:21:27Speaker 17

  Project 2025.

• 1:21:31Kate Shaw?

  That one was Project 2025.

• 1:21:33Leah Litman?

  You are so good at this. I thought, really, I had assembled some difficult, some difficult questions, I have to say.

• 1:21:42Speaker 17

  Well, you know, because the document, the project, the document was designed for them to make their case. So, when we say it's a blueprint, literally a blueprint. So, you get that the language is something that could read like a statute or some suggested language for maybe an executive order, or all these different kinds of things from Project 2025.

• 1:22:03Leah Litman?

  Yeah.

• 1:22:04Speaker 17

  So, that's what it sounded like. It's crazy.

• 1:22:07Leah Litman?

  How about this one? Quote, "Many Americans believe that biological sex reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly." End quote.

• 1:22:19Speaker 17

  Hmm. It sounds like it got a little, a little Christian, white Christian nationalism wrapped up into it. Is this Project 2025 as well?

• 1:22:31Leah Litman?

  Good guess, it's Sam Alito. I feel like the Sam Alito Project 2025 divide turns out to be maybe the hardest, right, to separate, but that was in his majority opinion in Mahmoud versus Taylor, which is...

• 1:22:44Kate Shaw?

  Wow.

• 1:22:45Leah Litman?

  Yeah.

• 1:22:46Kate Shaw?

  Yay. But of course, he hides behind this, many Americans believe this, right? I'm not actually asserting that I am enshrining this into the law, but that biological sex reflects divine creation. But certainly, the opinion grants parents the right to implement that belief, even at the expense of manageable public education for all that contains inclusive themes for a pluralist student body and population. Can I just quote one that Leo pulled these together? And I just, you know, the Project 2025 is 900 some pages long, and we all read it last summer, but certainly don't recall all of it. But this line, "Children are being taught to deny the very creatureliness that adheres in being human and consists in accepting the givenness of our nature

• 1:23:31Kate Shaw?

  as men and women." The sort of creatureliness that adheres in being human, thinking about storybooks. And I was just like, my kid, my youngest is still pretty small, like Thomas the Tank, right? Like, I was just thinking that there's, children's books contain creatures who are in fact not human, and I guess that's a problem, too.

• 1:23:48Speaker 17

  Justice for Bluey, okay?

• 1:23:51Kate Shaw?

  Yes.

• 1:23:51Speaker 17

  Justice for Bluey. It's actually crazy, but I will note-

• 1:23:55Leah Litman?

  Justice for the Giving Tree?

• 1:23:57Speaker 17

  Justice for, is your mama llama? That was one of my favorites.

• 1:24:02Kate Shaw?

  Oh, those are-

• 1:24:03Speaker 17

  I loved, is your mama llama? Just, there is just enough there, there, for people to say, well, what is wrong with this? What is wrong with me having my child opt out of, you know, learning about anything that has to do with LGBTQ plus folks? Anything that has to do with a book where there's two moms or two dads? And if we allow it for this, well, now you're gonna let them opt out of the conversation about the Civil War? The schools gonna allow folks to opt out of the conversation about January 6? Or when in the history class? Like, what, where is the line? So again, another Trojan horse, people, Trojan horse.

• 1:24:43Leah Litman?

  So I think something else about Mahmoud versus Taylor that struck us as significant is how the court was conceiving of and maybe changing the role of public education, right, and the relationship between public education, students and parents. You know, Simone, you've gestured two analogies to the redemption court, you know, which we're going to do actually an episode segment on and talk about, you know, some of the parallels between the redemption court and this court. But here, right, I think the court's like steady efforts to undermine and chip away at public education, right, are really an exact parallel because of course, public education has been this major force, right, for socioeconomic mobility, right, and pluralism in the country. And so I just don't think

• 1:25:27Leah Litman?

  it's an accident that so many of the doctrinal developments and cases, right, are really putting public education in their crosshairs.

• 1:25:37Kate Shaw?

  Remember, the court, and this, I think, is easy to forget because so much has happened in this last Supreme Court term, but the court just narrowly dodged deciding the question of whether, you know, states that had charter schools had to permit religious charter schools, which would really mean adopting the argument of this would be religious charter school would mean maybe imperiling the charter schools and larger public education systems in most of the states in this country and the court only because Amy Coney Barrett recused in that case. And so the tie at the court left in place the lower court opinion ruling against the religious charter school. Have we sort of dodged that potentially enormous

• 1:26:19Kate Shaw?

  additional blow to public education just this term? But there are other cases in the pipeline presenting the same question, and we're likely to get another one in the same, I would say.

• 1:26:28Speaker 17

  And they're doing it for a reason.

• 1:26:30Kate Shaw?

  Yeah.

• 1:26:30Speaker 17

  This is a part of Project 2025, though. It is literally rooted in Christian nationalism. And Kevin Roberts, our good friend Kevin Roberts, Dr. Kevin Roberts, not a medical doctor, by the way, very important point, he came from, before he came to the Heritage Foundation, he ran one of these kind of schools, one of these institutions. So. I think people just might need to go back and watch the last couple of seasons of The Handmaid's Tale. Because it'll give you a very good idea of what's trying to go down.

• 1:26:59Kate Shaw?

  Yeah, the path they'd like to see us on, yeah.

• 1:27:01Leah Litman?

  Yeah, okay, but like thinking about, you know, their orientation towards schools, like, we wanted to, once again, play this little game, like, who said this about public education? And, you know, the role of public education, either the Supreme Court or Supreme Court Justice, or Project 2025. So, quote, "In our schools, the question of parental authority over children's education is a simple one: schools serve parents, not the other way around," end quote.

• 1:27:33Speaker 17

  Is it, is it the Supreme Court? Also, schools should serve the children, but that's another story. Is this the Supreme Court?

• 1:27:39Leah Litman?

  This is our friend, Kevin Roberts, Dr. Kevin Roberts, in Project 2025.

• 1:27:45Kate Shaw?

  Yeah. All right, I've got another one. Quote, "These matters impose upon children a set of values and beliefs that are hostile to their parents' religious beliefs."

• 1:27:57Speaker 17

  Oh, my goodness, this one is hard. This is the Supreme Court.

• 1:28:01Kate Shaw?

  This is. Do you want to guess who?

• 1:28:04Speaker 17

  Thomas.

• 1:28:05Kate Shaw?

  Good guess, Alito.

• 1:28:07Speaker 17

  Alito.

• 1:28:07Kate Shaw?

  Yeah, yeah, it had to be one of the two of them.

• 1:28:10Leah Litman?

  Exactly, exactly, always one of the, yeah, whatever to call them.

• 1:28:17Leah Litman?

  Maybe, you know, while we're on the topic of education, you know, Simone, Project 2025 had some designs or plans for the Department of Education. Can you remind our listeners kind of what they had to say there?

• 1:28:34Speaker 17

  Uh, well, first of all, they wanted to get rid of it.

• 1:28:38Speaker 17

  Chief among their goals was to dismantle it and totally X it out. It's no surprise that, you know, the Department of Education came about through Jimmy Carter, and all these years later, they want to Get rid of it. They wanted to talk about, they had all these recommendations about just how employees or contractors who work at schools should address their students. And so that, you know, they, they literally put in a recommendation that they couldn't address a student with any other name than the one that was listed on their birth certificate, unless they had the written permission of the student, of the student's parents or their guardian. They, they wanted to pass a federal bill of rights as it relates to the, the, the Department

• 1:29:23Speaker 17

  of Education, where there was a parental rights and made parental rights like a top tier right. And basically this kind of legislation, it would, it's just a little crazy, but they was, they said that it would give a fair hearing in court when the federal government forces, enforces any policy against parents in a way that allegedly undermines their rights. Again, using language that sounds very, very benign. However, it is very, very diabolical. But they don't even care about the education because they wanted the whole department eliminated in the first place.

• 1:29:57Kate Shaw?

  That's right. There were like, there were some possible, you know, kind of uses to which they wanted to put the Department of Education.

• 1:30:02Leah Litman?

  If we have to have the department, here's what it should do.

• 1:30:06Kate Shaw?

  Imaginative, diabolical kind of uses, but first order preference, just eliminate the whole thing. And guess what SCOTUS gave them a boost in their efforts to do? Basically eliminate the entire department. They sort of, they being Trump and the Secretary McMahon, they sort of said, well, we're not eliminating the department. They, on public and social media and elsewhere, did basically make clear that's what they were trying to do in an executive order and a series of directives, suggested that they were more just radically shrinking the department and eliminating a number of components of the department, which made it basically impossible for the department to carry out its statutory obligations. And after a challenge, To that effort was successful in the lower courts.

• 1:30:48Kate Shaw?

  Lo and behold, SCOTUS, of course, got into the mix and allowed the administration to go ahead with its mass firings and essentially dismantling of components of the department. So here, I just want to read from Justice Sotomayor's dissent from the shadow docket order that allowed that dismantling to go forward. She said, quote, "Secretary Linda McMahon gutted the department's workforce, firing over 50% of its staff overnight. In her own words, that mass termination served as the, quote, 'first step on the road to a total shutdown of the department.'" Rather than maintain the status quo, however, this court, the Supreme Court, now intervenes, lifting the injunction from the lower court, permitting the government to proceed with dismantling the department.

• 1:31:29Speaker 17

  Can I just ask a question? You know, as somebody that just used to do the talking points for the lawyers, was not an actual lawyer. How can the Supreme Court justify this? Because on one hand, they did the same thing as it relates to the other firings within the government. They basically said, oh, well, they can let people go. How they let people go matters. And so, right, they have to stay let go, but these people who were let go can, in fact, sue, and that'll have to work its way through. But for now, you just don't get a job. It just felt like they were talking out of two sides of their, both sides of the coin here. But maybe that's the point.

• 1:32:06Leah Litman?

  Yeah, well, I mean, like, well, I think that is the point. I mean, sometimes the Supreme Court explains why they're letting the administration do something, and other times, they don't. So in dismantling the Department of Education, the court did not say, one way or another, why they were allowing this executive order to remain in effect. You know, in some of the other cases involving, you know, firings of federal officials, they said, well, like, the administration said that what they were doing was legal, so nothing to see here. But I just think it kind of depends, and it's really case by case.

• 1:32:39Kate Shaw?

  But, yeah, here, though, specifically with respect to this, you know, case against McMahon. How can they justify it? Like, literally, they didn't even try because they can't.

• 1:32:48Speaker 17

  Right.

• 1:32:48Kate Shaw?

  Because they, this is just, they did it on the shadow docket and didn't explain. So, so De Meyer said a lot in her dissent, but the justices who allowed this stuff to go into effect didn't even have the courtesy to try to concoct a tortured explanation as to why.

• 1:33:02Speaker 17

  It's almost like they don't care. It's almost like they don't respect us.

• 1:33:06Kate Shaw?

  Or like, they're not doing law. Like, that is also, I think, a viable theory.

• 1:33:10Leah Litman?

  Just maybe two quick additional notes about the overlap. One is on Planned Parenthood defunding, you know, Project 2025, obviously kind of encouraged states to defund Planned Parenthood, indicating that the Department of Health and Human Services should, you know, issue guidance reemphasizing that states are free to defund Planned Parenthood in their state Medicaid plans.

• 1:33:33Kate Shaw?

  And just to remind our listeners, in Planned Parenthood versus Medina, another case from last term, SCOTUS issued some guidance that emphasized that states are free to defund Planned Parenthood, booted out of Medicaid, and face no consequence because no one's going to be able to successfully challenge those moves. Project 2025 is there to encourage the president and the administration to take these actions, to remind states they won't face any consequences from the federal government, the executive branch either. So you have the two hands working in tandem to really undermine the ability of Planned Parenthood to provide necessary healthcare services to millions of American women.

• 1:34:09Speaker 17

  Congress also weighed in on this, and they did the bidding.

• 1:34:12Leah Litman?

  Yep. Teamwork is the dream work.

• 1:34:15Speaker 17

  Crazy.

• 1:34:16Kate Shaw?

  Yep.

• 1:34:17Speaker 17

  The nightmare, the nightmare.

• 1:34:19Leah Litman?

  Right, yes. The bad dream work. And because this is all a YOLO project, there is more, because so much of this is only possible by having an unbound, unfettered executive. Project 2025 also had something to say about putting the president above the law. That's right, they went all in on the unitary executive theory and encouraged the next Republican administration. To ask the Supreme Court to overrule Humphrey's executor and give the president, right, the unlimited authority to just fire people in the executive branch in violation of federal law. And what did the Supreme Court say in Trump versus Wilcox and Trump versus Boyle? They ghosted Humphrey's executor and effectively overruled it on the shadow docket and said, yep, the president can fire people in violation of federal law, except

• 1:35:02Leah Litman?

  when it comes to the Fed. But we'll see how that one turns out. So just to kind of wrap this all up, Project 2025 tracker website says that after less than eight months, Project 2025 is 47% complete.

• 1:35:17Speaker 17

  Forty-seven percent is crazy. To be very clear, 47% is crazy. As we are having this conversation, it has only been about seven months. And in seven months, they have accomplished nearly half of the agenda that they wrote out for us for all to see. That's crazy.

• 1:35:35Leah Litman?

  They have a few months left in 2025. I mean, how much more are they going to get done between the administration, the Supreme Court? It's just wild. Simone, we really appreciate your time. We wanted to give you the last word on anything related to Project 2025, the Supreme Court, or the connections between them.

• 1:35:54Speaker 17

  Well, I just, I just think it is really important that, because Project 2025 was a blueprint, a blueprint is a plan, a blueprint is a vision, and the vision was so clearly laid out for everyone to see, including the Supreme Court justices. And it is not lost on me, like, the justices read, the justices watch the news, the justices are highly aware of what is happening in this country. And so if we don't think that, like, the justices didn't scan through Project 2025, we'd be crazy. So as these cases have come before and will continue to come before this particular court, it is, it is important to tease out the parallels. It is important to call, you know, the thing, the thing, to look at the

• 1:36:38Speaker 17

  words and see where they overlap and they align. And we can only conclude that this is in fact intentional. And history, as a mentor once told me, is unbroken continuity. And just like they did during reconstruction, to use the full brunt and force of the government and the changing times and how people felt about the economy to erode progress, significant progress that made this country a multi, for the first time, a multiracial democracy. That is what is happening right now. And the Supreme Court is not just aiding or kind of helping. This conservative majority is absolutely complicit.

• 1:37:17Kate Shaw?

  Yeah. And 53% of Project 2025's goals remain to be achieved. It is really chilling and alarming, and people need to be aware of the connections. So Simone Sanders Townsend, thank you so much for joining us today.

• 1:37:32Speaker 17

  Happy to be here.

• 1:37:34Kate Shaw?

  Once again, listeners, you can catch Simone on The Weeknight, which airs weeknights at 7:00 PM Eastern on MSNBC. We got to get you back on the show with Melissa next time.

• 1:37:42Speaker 17

  Yes, yes. Thank you, guys, for having me.

• 1:37:44Leah Litman?

  This is the first time, but not the last time.

• 1:37:45Kate Shaw?

  Indeed. And before we go, let's quickly do our favorite things.

• 1:37:49Leah Litman?

  So I wanted to list the Lawfare piece you mentioned, Kate by Anna Bower, the judicial learning curve at Lawfare. I just think it's a really important example of how some amount of resistance is honestly just documenting what is happening. And really great example of this. Another, Michael Dorf, what should a lower federal court judge do when the Supreme Court plays Calvinball? You know, as lower federal courts are struggling and probably under pressure from the Supreme Court, just to say Trump wins. You know, I think, you know, I applaud district judges who still tried to do their job, which is the law. And I think Michael Dorf makes a very powerful case that that's what they should be doing. I'd also highlight a footnote in a terrible decision by the 11th Circuit, which held

• 1:38:32Leah Litman?

  it doesn't violate federal civil rights law to deny health insurance coverage for gender-affirming medical care for trans people. But Judge Abudu, one of Judge Biden's appointees to the 11th Circuit, wrote a dissent, and it included this footnote. Quote, "Justice Barrett, in her concurrence in Skermetti, proclaimed that transgender individuals should not be considered a part of a suspect class because such status is not marked by some obvious immutable or distinguishing characteristic." Interestingly, Justice Barrett's arguments raise the question of whether our case law has properly addressed questions around whiteness as an immutable characteristic. Our nation's history shows that not everyone considered white today was always viewed that way. And she kind of goes on to elaborate this. I loved it. Judge Avudhu, just call her the constitutional Karen and chef.

• 1:39:16Kate Shaw?

  It was like, Judge's Democratic appointees don't usually write footnotes that spicy the way Republican appointees do. And it was, made me wonder whether Judge Burrow in the District of Massachusetts, really spicy footnote nine that we talked about last week, like, maybe emboldening other federal judges to get real spicy in their footnotes. I hope so. Okay, my quick favorite things, we already mentioned Steve Vladeck's piece on Kavanaugh's concurrence, excellent read. If you haven't seen, please watch mayoral candidate, likely future mayors are on Mumdani's "Stop Sending Me Money" video because his contributions are maxed out under our city mayoral matching scheme. So he needs hours but not dollars anymore. And he just made the most terming video telling people that, and I loved it. So watch that if you haven't.

• 1:39:59Kate Shaw?

  And finally, I am reading a beautiful short story collection right now. I usually am more of a novel girly than a short story fan. Like, I like them sometimes, but I absolutely love this collection. It's called "The History of Sound," which is the name of one of the stories, but they're all so far, so beautiful. That's all I got today.

• 1:40:17Leah Litman?

  Melissa asked us to share, she unfortunately wasn't able to join this episode, but asked us to share her favorite headline, which was, quote, "Trump's Treasury Secretary Threatens to Punch Housing Official in the Face," end quote. And that was in the Washington Post.

• 1:40:35Kate Shaw?

  And it was at a members-only club in Georgetown. And this was, the housing official in question was Bill Pulte, so there's a tie-in. He's the individual who has unearthed this alleged mortgage fraud involving Lisa Cook.

• 1:40:49Melissa Murray?

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

• 1:41:48Speaker 11

  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. 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. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmieri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

• 1:42:29Speaker 18

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