SCOTUS's Porn Problem

Leah, Melissa and Kate cover some breaking news, including Biden’s last-minute declaration that the Equal Rights Amendment is the law of the land. Then, it’s a rollicking ride through Free Speech Coalition v. Paxton, one of the more entertaining oral arguments of late. Come for the hosts’ sharp legal analysis, stay for Justice Alito’s questions about whether Pornhub features longform journalism. 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.

• 0:01Speaker 00

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

• 0:12Speaker 01

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

• 0:44Speaker 02

  So one of the parties here is the owner of Pornhub, right?

• 0:48Speaker 03

  Yes.

• 0:49Speaker 02

  And what percentage of the material on that is not obscene as to children?

• 0:54Speaker 03

  Well, Your Honor, if we're talking about the youngest minors, I would agree that most of it is, and that is how we read the law.

• 1:00Speaker 02

  Is it like the old Playboy magazine? You have essays there by the modern day equivalent of Gore Vidal and William F. Buckley Jr.?

• 1:08Speaker 03

  Not in that sense.

• 1:10Speaker 04

  Wow. He was really specific.

• 1:15Leah Litman?

  So, sorry, listeners, we should have given you a content warning to let you know that it seems that friend of the pod, Samuel Alito, thinks people visit Pornhub to read the articles. In any event, we thought the clip would be a perfect way to usher in the second Trump term. So hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Litman.

• 1:38Speaker 04

  I'm Kay Shaw. And I'm Melissa Murray. And here's what we have in store for you today. We'll start off with some breaking news from the outgoing Biden administration, and then we'll bring you up to speed on the special counsel report, or at least where it stands as of Friday, which is when we're recording. We're then going to briefly talk about how some of what we've already seen from the incoming Trump administration is the product of our good friends at the United States Supreme Court. And then we're going to recap last week's arguments, focusing mostly on the porn one, because, whoo, that was quite a ride. No pun intended. And we will then wrap up with some quick additional court culture that will cover the two opinions of the court recently issued, as well as some cases that the court has

• 2:21Speaker 04

  added to its docket. So onward.

• 2:25Leah Litman?

  In the aftermath of the November 2024 election, Joe Biden almost seemed to be quiet quitting the presidency. We didn't hear a lot from him. But then in the last month, Biden has been really turning up the gas to safeguard his legacy. Much has been made of the flurry of pardons and commutations that Biden has issued, you know, the most extensive use of the clemency power in American history. But on Friday, Biden shifted gears to another aspect of his legacy, safeguarding women's rights and equality. The outgoing president issued a statement in which he stated his view that the Equal Rights Amendment to the Constitution is the law of the land, and that when Virginia ratified the ERA in January 2020, the ERA, which would guarantee men and women equal rights under the law, became the 28th amendment to the Constitution.

• 3:10Speaker 04

  So I'm going to say good energy, but this feels a little too late. Listeners, as you know, the ERA was first proposed in the 1970s and was on target to be ratified by the appropriate number of state legislatures until self-professed St. Louis housewife Phyllis Schlafly launched her very successful Stop ERA campaign. The ratification energy stalled at the state level, a handful of states even rescinded their ratifications, and the deadline for the ratification of the ERA actually passed. Fast forward then to 2016, when Donald Trump's unexpected victory over Hillary Clinton prompted new interest in the ERA. There was a flurry of activity around ratification, and this was

• 3:54Speaker 04

  exacerbated by the concerns around safeguarding abortion access that has, again, crested with the court overruling Roe versus Wade in 2022. So the question now is, what does this statement from the Biden administration really do vis a vis the ERA, which is apparently kind of parked on the sidelines? And maybe this is Biden's way of taking this car out for a ride, but I'm not sure that this car is going to go very far.

• 4:22Kate Shaw?

  Yeah, so what does it do? I don't think we know, really. I mean, there's something, one interesting thing about the way Article 5 sets up procedures for amending the Constitution is it really conspicuously doesn't involve the president, right? It's the two houses of Congress, it's ratification in the states. Presidents have sometimes taken a lead role in advocating for ratification of or passage in Congress of constitutional amendments, but, you know, he cannot by fiat just announce that something is in the Constitution. But that's not really what he is purporting to do. He's purporting to acknowledge or recognize that it has already been ratified as the Constitution contemplates, and we should just start talking about it as the 28th amendment. And, you know, I actually think it's a valuable thing for him to be using the bully pulpit to do on his way out the door. I mean, the 20-

• 5:05Speaker 04

  The very last day?

• 5:06Kate Shaw?

  Well, look, he's in his YOLO phase, obviously, and so he's doing a lot. Who knows what the weekend holds, we're recording on Friday. But if it effectively was ratified in 2020, it does raise questions about whether his administration should have said something about that when Dobbs was being litigated and decided in 2022. So that is one of the many open questions that this announcement leaves, and one of which is what the national archivist, who formally certifies amendments to the Constitution, is going to do. And it seems as though the answer is nothing. She's actually said she's not going to certify that the ERA has been ratified, and I highly doubt that whatever archivist Trump installs to replace her is going to take a different position.

• 5:49Kate Shaw?

  But I do think that galvanizing new rounds of public debate about the Constitution and sex equality, and also maybe teeing up litigation that the Supreme Court will ultimately decide. I mean, even as I speak this sentence, like, is there any way that anything is resolved productively in the Supreme Court? Not really. But in some ways, like, an answer that allows activists to start over, if that's what is required, might be valuable because we have been in this liminal space now for years.

• 6:17Speaker 04

  Here's my thing, though, Kate. Like, it is the Friday before the new administration comes in. I mean- We've had a long time since November 5th to do things like this. Like, why now? Like, I mean, as you say, this could have been really useful in 2022. I mean, I guess I'm just sort of A plus for effort. I get it, but it feels largely symbolic and a little bit like weak sauce right now because it's just going to get lost in all of the pomp and circumstance of whatever happens on Monday, whatever follows after the inauguration. I just don't think this is going to sustain a lot of energy. And that's really unfortunate because you're right, it should.

• 6:55Leah Litman?

  I mean, on some level, better late than never. And a part of me wonders, did he delay doing that and other things because he was, for example, trying to get a last batch of judges confirmed by razor thin margins in the Senate? You know, I don't totally know. I agree, it would have been better earlier. And I also think it could be productive in part for the reasons Kate is giving, you know, to the extent it convinces or helps convince the public that the ERA is part of the Constitution, that is an important part of the fight, even if the Supreme Court ultimately says it's not. And I think there is a long history of various parts of the amendment process, procedural aspects of it, kind of not being ignored, but the amendments take force,

• 7:37Leah Litman?

  you know, if people across the aisle talk about them and treat them as they are part of the Constitution. Obviously, I harbor no illusions that that is going to happen anytime soon here. But, right, I do think this is a step.

• 7:51Speaker 04

  This is basically like us refusing to acknowledge Doge as an actual department.

• 7:55Leah Litman?

  Yeah.

• 7:56Speaker 04

  Yeah.

• 7:57Leah Litman?

  But like, that's still meaningful.

• 7:58Speaker 04

  I'm fully on board. Like, yeah, yeah, it's fine. Yeah, I'm just, yeah. Call me on Monday, though, when you're looking for your equal rights. Call me.

• 8:07Kate Shaw?

  We have them over the weekend and then not on Monday and not there.

• 8:09Leah Litman?

  No, actually, we don't have them, it turns out.

• 8:12Kate Shaw?

  Still not, still not.

• 8:14Speaker 04

  This weekend's going to be like Rumspringa for us.

• 8:20Speaker 04

  Do all the things, vote, do like have jobs, everything. And it's all going to come crashing down on Monday.

• 8:25Kate Shaw?

  At noon. All right, but we've got a lot to cover, so let's press on. The next thing we wanted to cover was the special counsel report. During our last regular episode, America's next top SCOTUS justice slash Florida District Court Judge slash self-appointed 11th Circuit Judge slash self-appointed DC District Court Judge, you probably know who I'm talking about now, America's top prosecutor, Eileen Cannon, had blocked, at least temporarily, the release of special counsel Jack Smith's reports on the federal election interference case and also the obstruction and misappropriation of classified materials case, aka the US Secrets in Mar-a-Lago bathrooms case.

• 9:01Leah Litman?

  But in her benevolence, as the consummate lawyer and professional that she is, Judge Cannon allowed the special counsel to release the report on the election interference case. We thought we'd go through some of the highlights or lowlights, as the case may be, from the report. One is the report's conclusion, quote, "But for Mr. Trump's election and imminent return to the presidency, the office assessed that the admissible evidence was sufficient to obtain and sustain a conviction at trial," end quote. I can imagine, like, John Roberts just laughing to himself while doing the usher, "Watch this move," like, he was never going to let that happen.

• 9:38Speaker 04

  Well, speaking of Donald Trump, P. Otis responded on Tuesday with a post on Truth Social, claiming that he was, quote unquote, "totally innocent." He then proceeded to call Jack Smith, quote, "A lame-brained prosecutor who was unable to get his case tried before the election," end quote. He then added, for emphasis, "The voters have spoken."

• 10:01Kate Shaw?

  He's losing it on the nickname front. Lame-brained prosecutor is the best he could come up with? I found that disappointing.

• 10:06Speaker 04

  He really needs those women who are running the New Jersey Twitter feed to step in here. They could really jazz this up. In any event, we don't have time to go through the entire report, but we did want to point out one thing that the report highlighted about the special counsel's investigation, which is the office's dealings with Twitter slash X. The report details that A search warrant was issued to Twitter and a district court issued a nondisclosure order that prevented Twitter from informing Trump about the warrant. Twitter, however, refused to comply, complaining that the nondisclosure order, quote, "impinged on its First Amendment interests," end quote. Twitter was later fined $250,000 for failing to comply with the order.

• 10:50Kate Shaw?

  So, other than that, the report itself does not break much new ground, although I was struck by the strength of its assertion that, basically, one, there was no world in which they could not have charged Trump. His violations of law were, in their estimation, so egregious. And, two, that a jury would have convicted the hell out of him. Like, those are really unqualified statements in the report. But I also found Smith's short cover memo, which mentions, actually, both cases, both the documents and the January 6th case, a really good read that people should read, even if they don't want to read the full report. It is just unsparing in its description of Trump's conduct. It doesn't pull any punches because Trump will be the head of the executive branch, you know, hours from when you hear this episode. And it is just totally uncowed.

• 11:35Kate Shaw?

  Jack Smith is, like, public enemy number one to Donald Trump, and he fixes his name and this extremely forceful language to a report that just says, like, "Yeah, there were a lot of crimes here. We charged them. We should have. We would do it again in any parallel universe." And it is just enraging that this document is the result of the office's hard work and investigation. But it also, you know, is really insistent on the principle that law matters and the rule of law matters. And I liked the possible trolling quotation of Post Watergate Attorney General Ed Levy. And I'll just read one quote from it. Quote, "In a society that too easily accepts the notion that everything can be manipulated, it is important to make clear that the administration of federal justice seeks to be impartial and fair."

• 12:18Kate Shaw?

  And people might find that just, like, totally depressing, like, note, or delusional. That's, I think, a fair read of this cover note. I found it actually stirring and...

• 12:28Kate Shaw?

  Somewhat comforting going into this next era, honestly.

• 12:31Speaker 04

  So this is what I got from the cover memo. We often talk on this show about how the court is the Sheree Whitfield of Housewives, like who gonna check me boo. This Jack Smith memo was the Nene leaks of the Real Housewives.

• 12:47Kate Shaw?

  You'll translate that for me.

• 12:48Speaker 04

  I said what I said. Like you have a white refrigerator. Fuck you. I said what I said.

• 12:53Leah Litman?

  Yeah. Kate, you brought up the Levy quote. A quote that has been with me is actually something one of my colleagues wrote, Don Herzog, when he said, no doubt having a rule of law isn't enough for a society to qualify as a good one, but those inclined to denigrate it should contemplate societies without it. End quote.

• 13:17Speaker 04

  Separately, on Wednesday night, outgoing President Joe Biden delivered his farewell address to the nation in which he warned of a rising class of oligarchs and the looming dangers of an unchecked oligarchy on democratic institutions, to which we say, coincidence?

• 13:36Leah Litman?

  You noticed. Great.

• 13:38Speaker 04

  Basically. Yeah, correct.

• 13:40Kate Shaw?

  It was an unexpected turn 10 minutes in or whatever to the address.

• 13:44Speaker 04

  It did. It took a dark, dark turn.

• 13:46Kate Shaw?

  But, you know.

• 13:46Speaker 04

  It took a dark turn.

• 13:47Kate Shaw?

  Again, not sure this, you know, three days out is the best time to be beginning to raise alarms, but, but I'm happy that he said it.

• 13:54Speaker 04

  I fear that this is the kind of address and the content of this address will only become resonant and meaningful over time. And I say fear this because I think what we're going to see is going to be like, we're going to then come back to this and be like, yeah, Joe Biden was exactly right. In the same way, we now talk about Eisenhower's farewell address because he identified the military industrial complex. Like, I think in five years, what after what comes after this, we're going to be talking about this. Like, yeah, that was the moment where he tried to tell us.

• 14:24Kate Shaw?

  If we're still podcasting, we'll see.

• 14:28Speaker 04

  What are podcasts?

• 14:30Kate Shaw?

  So, as we've now mentioned a couple of times, this episode is coming out on inauguration day. And this is still primarily a Supreme Court podcast, and we will stay focused on Article III rather than Article II. But we also did want to highlight the ways in which Article III has shaped what is happening with Article II. Part of what we had flagged as concerning about the next Trump administration in our immediate post-election recap episode was the sheer amount of grift and corruption there would likely be. The new administration has not even taken office yet, but the grift has begun. There have been multiple million-dollar donations to the president's inaugural fund by tech companies, who somehow didn't feel similarly compelled to donate to Biden's inaugural fund. Curious.

• 15:11Speaker 04

  And then, Amazon, whose founder and CEO, Jeff Bezos, is reported to be attending the inauguration from a prime, see what I did there?

• 15:20Leah Litman?

  I did.

• 15:20Speaker 04

  Seat on the viewing platform. He's purchased the rights to make a Melania Trump documentary for the bargain basement price of $40 million. Now, listeners, this is obviously not a bribe. This is obviously a pure business transaction that is based on the obvious market value of the story of one of the most compelling first ladies in the history of the United States. I think only the second first lady to be foreign-born. Point if you know who the first one was. Anyone? Louisa Adams. JQA, the first Nepo baby's wife and first lady.

• 16:01Speaker 04

  Anyway, all to say, this is obviously something that viewers have been angling for, and it makes perfect business sense. And this is not at all a coincidence, even though the timing does seem a little sus.

• 16:16Leah Litman?

  So, we wanted to briefly explain the links between this grift and others and the Supreme Court. The court has been on a tear shredding federal anti-corruption laws, which Kate has written about in her article, "Partisanship Creep", if you want a longer treatment. But just to take some examples, two terms ago, in Percoco versus United States, the court shut down a public corruption property. Prosecution of a private individual who was formerly in government and about to go back into government. The court reasoned that the courts below and the federal government had too freely said that a private individual could violate anti-corruption laws. They are those guaranteeing honest services. And the porousness of the boundary between the private and the public capacities of the Trumps and their businesses is at the heart of much of the anticipated grift.

• 17:00Speaker 04

  There was also last term Snyder versus United States where the Republican justices said that it did not violate laws against kickbacks to tip a state or local official after the fact if there wasn't an explicit quid pro quo agreement in place. And again, the distinction between a tip and a quid pro quo was pretty fine. We're slicing the bologna pretty thin there, as Elena Kagan might say. But all to say that these decisions taken together all facilitate a kind of open corruption and seems to have created a climate in which there's likely to be even more grift and graft going on as we head into Trump 2.0.

• 17:43Speaker 04

  And it's not going to be grift and graft because it's all perfectly legitimate now.

• 17:46Leah Litman?

  Right.

• 17:46Speaker 04

  Because the court made it so.

• 17:47Leah Litman?

  It's just the way politics works.

• 17:48Speaker 04

  Yeah.

• 17:48Kate Shaw?

  Yeah. And to be clear, we're talking in general terms, not about specific transactions that would even under a correct interpretation of federal anti-corruption laws be criminal. But the idea is that the court has really created this climate in which it is very unlikely that any, or at least many, of the existing, you know, non-gutted federal anti-corruption laws will be enforced. So that is going to facilitate an environment in which grift and corruption are prevalent in Washington. And when that happens, make sure to think of and to thank Chief Justice John Roberts.

• 18:26Leah Litman?

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• 20:30Speaker 04

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• 21:08Speaker 04

  Now on to the argument recaps. In our coverage of Project 2025, as well as in some recent judicial confirmation hearings, we highlighted just how obsessed certain segments of the Republican Party are with pornography. Project 2025 proposed banning pornography and adopting Clarence Thomas's view, at least his current view, that porn is not protected by the First Amendment. Josh Hawley insisted on using, basically all have a speaking time, at Justice Katanji Brown Jackson's confirmation hearings to talk about pornography, which is also a big focus of his recent book, Manhood, which we reviewed in the Michigan Law Review.

• 21:51Speaker 04

  And the Republican Supreme Court justices, courtesy of the great state of Texas, recently got an opportunity to express their concerns about pornography during the argument in Free Speech Coalition versus Paxton. And weirdly, several of them sounded an awful lot like Project 2025 slash Josh Hawley.

• 22:09Kate Shaw?

  Let me just say that this was the most entertaining Supreme Court argument in quite some time.

• 22:13Speaker 04

  Oh, for sure.

• 22:13Kate Shaw?

  It definitely was. I mean, I think probably objectively, it was just hilarious. But also, they have not taken a lot of really interesting cases this fall, and so it really stood out. And it went on for a long time, but some of these long arguments, you know, sort of your attention can wane. This one really kept my attention.

• 22:31Speaker 04

  It's the articles, Kate.

• 22:35Kate Shaw?

  Gore Vidal, can't stop reading him. Anyway, here's what the case is about. So at issue is the constitutionality of a Texas statute that imposes certain obligations on commercial websites when at least a third of what they publish is sexual material that is harmful to minors. The statute requires covered websites to verify that an individual who is attempting to access the materials is 18 years of age or older. The Act permits various forms of verification, including digital identification, government-issued identification, and other commercially reasonable methods, though the precise methods that are permissible is actually kind of unclear. And the question is whether the Texas verification requirement is subject to strict scrutiny, which is not only the name of our podcast, but also usually the standard of review that is applicable to content-based restrictions applicable to adults, which this law is.

• 23:19Kate Shaw?

  But naturally, the Fifth Circuit ignored that well-settled principle and said, no, we're going to use rational basis review because porn.

• 23:27Speaker 04

  So the Supreme Court has allowed states to restrict obscene material.

• 23:30Leah Litman?

  Material as to adults and non-obscene material as to minors. But it has closely scrutinized and subjected to district scrutiny laws that burden adults' access to non-obscene materials, even when the laws are designed to protect minors. And just to be clear, the categories of sexually explicit and indecent and even pornographic are not necessarily synonymous with obscene. Obscene is a narrow set of materials that can be regulated, that lack constitutional protection. But again, porn is not synonymous with obscenity. So several Supreme Court justices seemed interested in maybe jettisoning those precedents entirely, maybe because stare decisis is for suckers, maybe it's a subtle dig at this podcast, but really it did seem to be because porn.

• 24:13Leah Litman?

  Several justices, the chief, Alito, Barrett, Kavanaugh, went on and on about how porn has gotten worse, it's become more available because of technology.

• 24:20Kate Shaw?

  Not like lower quality worse. They were not quite going there.

• 24:25Leah Litman?

  You could read it that way. More people, you know, look at it and are addicted to it and all of the harms that may flow from the consumption of pornography. And several of their questions proceeded along the lines of, well, sure, our cases say strict scrutiny applies to content-based restrictions, including restrictions on porn, but maybe we should just ignore all of those cases because of changes in technology.

• 24:47Speaker 04

  I think that view really came across in Justice Barrett's questioning of Schaefer, who was the lawyer arguing on behalf of the Free Speech Coalition. Again, it's worth sort of just highlighting where some of the justices are coming from. Justice Barrett is one of the few mothers on the court. The other is obviously Justice Katanji Brown Jackson. But what seemed to come across in her question, and she asked a lot of questions about the applicability of strict scrutiny, and it seemed to suggest that as the mother of teenagers, she's pretty consumed, maybe even preoccupied with the challenge that many parents face of trying to regulate her children's consumption of online content.

• 25:31Speaker 04

  And that this is especially challenging, given the availability of pornography online. And so here's a clip of her exchange with the petitioner's lawyer.

• 25:41Leah Litman?

  Well, I mean, let's see. In Ashcroft, too, the court, you know, expressed anxiety about the fact that technology moves so fast, that the five years between the district court findings in that case and the case being at the Supreme Court, you know, that technology may have. Moved beyond the record at that point. It's been 20 years since Ashcroft. The iPhone was introduced in 2007 and Ashcroft was decided in 2004. I mean, kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices, I can say from personal experience, is difficult to keep up with.

• 26:22Leah Litman?

  And I think that the explosion of addiction to online porn has shown that content filtering isn't working.

• 26:29Speaker 04

  I think the precedents are very clear here, but I also think that this kind of common sense approach to the regulation of pornography with regard to the First Amendment is going to be really appealing to some members of the court and maybe even with many members of the public. David French had an op ed in the New York Times this week that talked about like, you know, what's up? I'm agreeing with Ken Paxton. This is weird. I think the real question here, and I wish that the lawyer for the petitioners had made more of this, isn't about what these precedents necessarily mean in the context of pornography. But if you loosen up strict scrutiny here because it is pornography and because you are concerned about online access reminders, what then does that mean for First Amendment

• 27:12Speaker 04

  jurisprudence in other contexts where the speech might not necessarily be objectionable to the public, but could still be objectionable to someone like Ken Paxton? So, I mean, the question here to me isn't like, how do you regulate pornography and whether strict scrutiny should apply? The question is, if you relax strict scrutiny here because it is pornography, what then will you be able to regulate going forward irrespective of the First Amendment? And I'm not sure that came out as sharply as it could have.

• 27:40Kate Shaw?

  Well, so I actually think Justice Kagan pretty pointedly framed that issue, as we'll get to later on. But, you know, back to this idea of the court's cases pretty clearly say strict scrutiny applies when you are restricting pornographic material as to adults. Justice Sotomayor was not impressed with her colleague's suggestion that the court should just abandon its cases because porn slash technological changes, as you can hear here.

• 28:07Speaker 04

  Justice Gorsuch is, let's treat every medium under the scrutiny that applies to the people affected, correct?

• 28:16Speaker 03

  Yes, Justice Sotomayor.

• 28:18Speaker 04

  So that's strict scrutiny.

• 28:19Speaker 03

  That is strict scrutiny.

• 28:20Speaker 04

  For us to apply anything else would be overturning at least five precedents.

• 28:26Speaker 03

  That's my count as well.

• 28:28Speaker 04

  There are a host of cases. I'm not going to rattle off all five. I'll just note two. You know, Sable, for example, involved a federal law that prohibited dial-up porn telephone services containing constitutionally protected material for adults, but that were inappropriate for minors. And strict scrutiny applied, even though the government said it was trying to protect minors. You know, more recently, there was Ashcroft, where a federal law prohibited online transmission of content that's obscene for minors, absent age verification. The court applied strict scrutiny. And again, those are just two of the examples.

• 29:00Kate Shaw?

  Yeah. And if I can just say something to go back to the Justice Barrett question for a minute. They're just like a real question, I thought, that was called by the case, not just what, Melissa, you were saying, which I totally agree with, that this case is about much more than just porn. It's about the First Amendment, like, much more broadly. But also, are they doing law here or no? Because a lot of the questions were like, eh, it seems like maybe this is fine because it's really hard, otherwise, to use filtering or to use blocking software. So, I mean, that's a fine conversation for the Texas Legislature or the US Congress to be having, you know, with a constitutional sort of backdrop. But the backdrop part was what I wasn't... It kept falling out of the conversation as they were talking about, like, how to deal with this problem of porn, which is just not something that judges are supposed to be doing.

• 29:44Kate Shaw?

  And just to be fair to them, if you're in strict scrutiny land, it is actually reasonable to ask about, you know, what the government interest is and then what the different ways government might use or adopt to pursue that interest. So it's not like it's never reasonable for them to ask these questions, but the register in which they were asking them was really the register of pure policy and not law, as far as I can tell.

• 30:03Speaker 04

  Can I say, like, I think if you read this argument alongside their recent decision in the TikTok case, I think you get a better sense of what they understand their role to be in this scenario. So if you recall, when we did that emergency... Episode on TikTok, we highlighted the Frankfurter quote that the court identified in and used in the TikTok case, like this whole idea, like, we have to sort of think about not embarrassing the future. We have to think about how to update certain rules in light of changes in technology. I don't think that they think this question is one for the Texas legislature, or one that should be hashed out in the political process. I think they understand themselves to be in a situation where technologies change, they have a set of existing rules, and it's

• 30:47Speaker 04

  their duty to figure out whether the rules should stay as they are and be just applied as they would be to this new technology, or if they should be modified somewhat. And, you know, the whole discussion that you just identified, Kate, about, you know, should there be content regulation? There are all of these different ways that the government might achieve its interests without unduly burdening speech. They were talking about this, and Justice Barrett kept going on, like, content regulation is just really hard. It doesn't work. We have an IT department here at the Supreme Court. That doesn't work. I think they understand themselves to be living this problem right now, and they have a role that is perhaps complementary to the legislature, but they get to say how the existing rules should be applied, given changing circumstances. And I think that's just like, that's just how

• 31:32Speaker 04

  they're thinking about themselves.

• 31:33Kate Shaw?

  And a dose of pragmatism is, I think, honestly, generally a good thing. But like, if this court could be trusted to exercise a degree of humility, it would be one thing. But because it is not, I am just very nervous about them legislating from the bench to like, you know, recycle an old phrase, based on their idiosyncratic experiences and sort of dressing it up as enduring legal principle. But, um, anyway, back to the cases that Leah was just taking through, there was one justice, Sam Alito, who wanted to fixate on not those cases that Justice Sotomayor mentioned, but another case called Ginsburg. And he offered some idiosyncratic theories about what that case held. So Ginsburg upheld the conviction for selling what the opinion actually called, quote, "a girly magazine," that's in the opinion, although it's in quotes in the opinion, to a minor. The case said that when states restrict

• 32:16Kate Shaw?

  minors' access to indecent materials that aren't obscene for adults, the laws are subject to rational basis review and not subject to strict scrutiny. But that's really just about restricting sales to kids. And Sam said, "Ha!" But the law also affected adults because the shopkeeper who was challenging his conviction was an adult. And then the briefs in the case talked about burdens on adults. So, Sam says, "Ergo, we can apply rational basis to this Texas law."

• 32:42Speaker 04

  The problem, of course, is that as Justice Sotomayor and every other justice who apparently is literate and reads on a regular basis pointed out, in the Ginsburg opinion, unlike the briefs that were filed in the case, the opinion only resolves the question of what standard of review is applicable when a statute is challenged on the ground that it restricts minors' access to pornography. So in other words, Ginsburg, the opinion, never specifically addressed what should happen when the law burdens adults. And Sam Alito was basically in rare form. That was just sort of a warm-up for him. He was in rare form during this argument, as the opening to this episode suggested. So let's replay this clip and this exchange between Alito and Mr. Schaefer, who represented the coalition.

• 33:28Speaker 02

  So one of the parties here is, is the owner of Pornhub, right?

• 33:32Speaker 03

  Yes.

• 33:33Speaker 02

  And what percentage of the material on that is not obscene as to children?

• 33:38Speaker 03

  Well, Your Honor, if we're talking about the youngest minors, I would agree that most of it is. And that is how we read the law.

• 33:44Speaker 02

  Is it like the old Playboy magazine? You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley Jr.?

• 33:53Speaker 03

  Not in that sense.

• 33:54Speaker 04

  This is yet another great example of what it means for a workplace to have masculine energy, I'm pretty sure. I also frankly loved the lawyer's response, "Not in that sense." Like, what do you say to that question? I thought that was perfection. I don't know. Do you all have others you want to add to that clip? Because there are more related clips that I want to add here.

• 34:20Kate Shaw?

  Yes. Okay, there were two that I thought we needed to throw in. One was, at a certain point, he seemed to be seeking more information on other porn sites. Like, he knew Pornhub, but he wanted to know what the other ones were, so he could, like, have those names down.

• 34:35Speaker 02

  All right, let's go down to, what's the second most popular porn site?

• 34:40Speaker 03

  I, Your Honor, I don't, I don't have the

• 34:41Speaker 02

  You don't know you represent these people.

• 34:45Speaker 04

  A part of me wondered, is he Hoping to get a recommendation for flag-related porn.

• 34:50Kate Shaw?

  Hmm. I mean, I'm sure it's out there. People are into everything.

• 34:53Speaker 04

  He had the same kind of energy he had in 303 Creative, where he was just like all Black Santa, Ashley Madison. Like, you're just like, what are you, what do you do on the weekends? Like, what are your hobbies? Right. Remember, in the 303 Creative case, which was about a wedding website designer, he brought up Ashley Madison. And I think this entire You forgot that case.

• 35:17Kate Shaw?

  I remember that. I just remembered that it was

• 35:19Speaker 04

  It's just on my brain.

• 35:19Kate Shaw?

  I didn't remember. It was in the 303.

• 35:22Speaker 04

  It is raising some red flags.

• 35:24Kate Shaw?

  No, Black Santa, I remember, obviously.

• 35:25Speaker 04

  Well, yes, Black Santa. I mean, that was, just to refresh our listeners, him throwing out this absolutely outlandish, offensive hypothetical about a Black Santa being forced to take photographs with kids in KKK costumes. I mean, that is, as Melissa notes, the energy he brought to this argument. And should we offer another clip in this register? There's one more. Why not? Greatest hits.

• 35:50Speaker 02

  Just to clarify with respect to point one, so if a particular website has some hardcore pornography that is obscene as to minors, and then it has, you know, videos of somebody reading Lady Chatterley's Lover or something like that,

• 36:15Speaker 02

  does, can the latter be segregated?

• 36:19Speaker 04

  At this point, I want to reiterate the apology from up top. You know, we did warn you, this episode has a lot of Sam Alito and porn, a grouping of words you never want to hear.

• 36:29Kate Shaw?

  In terms of what he's fishing for in some of these questions, not the sort of flag content, but I was wondering whether this was like him looking for a recommendation for some dramatic readings by Roger Jean Page, who, for more recent listeners, was our intern in early seasons of the show.

• 36:43Speaker 04

  Or so we claim.

• 36:45Kate Shaw?

  Not actually.

• 36:46Speaker 04

  So, we did want to cover some of the other justices' interventions in this case. Some serious and interesting, some not. I'll start with another one of Brett Kavanaugh's contributions. You can guess what category that falls into. So Brett Kavanaugh wanted everyone to know that

• 37:02Leah Litman?

  Europe uses age verification systems for indecent material, so therefore, obviously, it's constitutional. Foreign law, obviously, very appealing source of law to him. Also, not sure he knows this, but Europe has a massively better system of data privacy protection, so those laws are less burdensome, but no matter.

• 37:22Speaker 04

  It was like in the Dobbs oral argument where the Chief Justice noted that in Europe and other systems, the timing for terminating your pregnancy is much earlier than in the US, and Julie Rickelman had to remind him. And they also have socialized healthcare, so this isn't like super burdensome for a lot of different reasons.

• 37:41Kate Shaw?

  Yeah, so surprising that they would just like fixate on one thing and yank it totally out of context. I think that's the only thing that matters.

• 37:49Leah Litman?

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• 39:14Speaker 00

  Right now, the midterms are the biggest story in American politics, but however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual Crooked It's going to be the Pod Save America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.

• 40:01Kate Shaw?

  Okay, so let's turn to some of the other justices. Justice Kagan had some really useful interventions, which seemed to very pointedly frame the calculus and the considerations in the case, both harking back to things we were just talking about. One was really about age verification systems and whether they're better and more effective, and also whether filtering technology is better. And still another was about kind of how easy or difficult it is to bypass or evade filtering technology. And then another one, which really seemed to capture the issues in the case, asked Deputy Solicitor General Brian Fletcher, who was arguing in support of the group that was challenging the law, how to think about the risks of what the court might say, including in other domains.

• 40:37Speaker 04

  So on the one hand, Justice Kagan pointed out that the court could say here that strict scrutiny applies, but because many people think that the state must and should have ways of restricting access to minors, courts might be applying a more watered down or tepid version of strict scrutiny. And that might in turn affect how the strict scrutiny standard is applied in other contexts where it should be more robust. And you know, this is sort of what I was getting at. And I wish that the lawyer, Schaefer, for the coalition had made this point, but she really kind of stepped in and lawyered some of his stuff for him.

• 41:13Kate Shaw?

  She did. And it seemed to like register with her colleagues. Like she did so very effectively.

• 41:18Speaker 04

  You know, she did point out as well that if the court said intermediate scrutiny applied, which is a less rigorous form of scrutiny than strict scrutiny, then the court might be opening the gates to a lower level of scrutiny in other content-based restrictions other than restrictions on porn for minors, and that could have real repercussions for the development of First Amendment jurisprudence. And so she basically asked, which one is worse here? And that actually might be the question that the court decides to resolve in this case.

• 41:49Kate Shaw?

  What didn't seem to be on the table naturally is what the Fifth Circuit did, which is to apply rational basis review, the lowest level of strict scrutiny.

• 41:59Speaker 04

  No one seemed to be talking about rational basis.

• 42:01Kate Shaw?

  Or the lowest level of scrutiny. You know, listeners, nothing the Fifth Circuit says or does is right on the law is a good rule of thumb to generally have. You know, a listener asked, why does it matter what standard of review applies? It matters because it affects the degree to which courts examine the justifications for the law, whether the law advances those aims and whether the law has less restrictive, that is, you know, less burdensome mechanisms to do so.

• 42:28Speaker 04

  Or even if the aims are worthy.

• 42:29Kate Shaw?

  Right. How important the justifications are. It just, it makes it more difficult to uphold the law if you apply a more rigorous form of scrutiny. So all of this, that is, the options on the table versus what the Fifth Circuit did led to Justice Jackson highlighting a straightforward way to resolve the case that I thought was kind of amusing. It's because it seems to me that you've asked us to apply strict scrutiny in a

• 42:51Speaker 04

  circumstance in which it would have been easy, as the government suggests, to just say, wrong standard Fifth Circuit and send it back. There was also an excruciating moment in the Texas S G's argument that came about from Justice Jackson's questioning. So we're not going to play that clip here because it's very long. But Justice Jackson simply asked the Texas S G about what the court's decision in Pаккем versus North Carolina meant for this case. And Pаккем is a First Amendment case about social media and technology where the court invalidated a state law that made it a felony for a registered sex offender to Access a social networking site that permitted minor children to be on the site.

• 43:33Speaker 04

  So this case would seem to have a lot of things to say about children and technology and social media and the internet and the First Amendment. And the Texas S D responded that he hadn't read Packingham. And I have to say, this was an easy mistake to make because the case was not cited in the briefs for this case. But it was on point, but this is kind of an understandable mistake to make. And to be fair to Justice Jackson, she was very gracious about it and explained it and then allowed him to respond. But did you not cringe for him?

• 44:07Kate Shaw?

  It was very painful. I have to say, I respected the decision to just say, like, you know, I did not read that before today. I thought I'd read everything as opposed to like trying to bullshit your way through the exchange. Like, oh, yeah, I don't, I'm not sure it really speaks to this. You know, he didn't try. He was just forthright and I at least appreciated that. But yes, I definitely did cringe. All right, moving on, the court also heard argument in an important sentencing case, Hewitt versus United States. At issue in Hewitt is the proper interpretation of the First Step Act. Hewitt concerns a practice known as stacking. So a federal law, section 924(c) prohibits using or carrying a firearm in connection with certain crimes. Before the First Step Act, prosecutors used to be able to stack 924(c) convictions in pretty outlandish ways.

• 44:48Kate Shaw?

  So let's say you were holding a gun while you sold three bags of drugs within a 20-minute period, one and then the other and then the other. The prosecutors might say those were three separate 924(c) crimes. And the law used to say that judges had to stack those sentences, such that if you had one 924(c) conviction, you'd get five years. And then if you had a second, you'd get 20 years. On top of that, a third, it's an additional 20 years. So this resulted in just savagely long sentences.

• 45:15Speaker 04

  And the First Step Act curbed that practice and it applied the new, more reasonable rules, not only to offenses committed after the act was passed, but also to, quote, "any offense committed before the date of enactment, if a sentence for the offense has not been imposed as of such a date," end quote. The question here is what it means if a sentence has not yet been imposed. Does it apply only to a defendant who was originally sentenced after the First Step Act? Or does it include a defendant who was originally sentenced before the First Step Act, but then their sentence was vacated such that they had to be resentenced to a new term of imprisonment after the First Step Act's enactment?

• 45:53Leah Litman?

  So that issue had divided the lower courts. As a court of appeals judge, Amy Barrett had said the act did not apply to resentencings, whereas Judge Beavis on the Third Circuit, who was a former full-time criminal law and criminal procedure professor, and actually is still teaching at Penn, where he's Kate's colleague, had said that it did. I obviously think he's right. And so does the federal government, who agrees that the law applies to resentencings. So the Supreme Court appointed an amicus to argue it does not. And of course, the court went with their usual type, a white male, former SCOTUS clerk.

• 46:23Kate Shaw?

  Yeah, they do have a type here. Hewitt comes down to whether you think a sentence imposed refers to a historical event or an operative sentence. The federal government and the defendant emphasize that the law is written in the present perfect tense, which they said connotes an ongoing condition, i.e. an operative sentence.

• 46:39Leah Litman?

  And this led Sam Alito to make this remark.

• 46:42Speaker 02

  Well, it's always fun to talk about grammar and, and usage.

• 46:47Leah Litman?

  Not as much fun as porn, I guess. What a textualist, that guy.

• 46:54Speaker 04

  The breakdown between the justices seemed to be that Justice Barrett, Kavanaugh, Alito, and maybe, possibly, probably, the Chief Justice were with the court-appointed amicus here. And justices Sotomayor, Gorsuch, and Jackson were all with the defendant. It's unclear where Justice Thomas was on this. He maybe wanted to pursue a third theory about whether a sentence was vacated before or after the act. And, you know, I guess we'll see where that leads. And that means the real question is, where is Justice Kagan on all of this?

• 47:27Leah Litman?

  She seemed to be kind of on the fence. She did bring up what she described as a somewhat unique amicus brief filed by Senators Durbin, Grassley, Booker, and Lee, who were the sponsors of the act, and, as she observed, not guys who link arms very often. And their brief pretty emphatically said they understood the text and purpose and background rule to be that the act would apply to resentencings. There were also other pieces of evidence.

• 47:50Speaker 04

  Evidence, some of which she invoked, that favored the defendant and federal government's position. One was pressed most effectively by America's public defender, Justice Katanji Brown Jackson. She explained, "The normal rule is laws don't apply to people who committed an offense before the law was passed but were sentenced after, but Congress had changed that rule here." And in modifying the usual rules, Congress expressed that it wants the law to apply to sentencings which include resentencings. And she pointed out, "Applying the law to resentencings wouldn't actually disrupt any finality interest because those defendants have to be resentenced anyway." The other key point, which the federal government seemed to distance itself from at some point, strangely, is the idea, a principle of sentencing law, that a sentence that was imposed but has been vacated is not a sentence at all. It is void.

• 48:34Speaker 04

  So we'll see what these guys are going to do, as RuPaul says, "Don't fuck it up." They probably will. The court also heard a federal criminal case, Thompson versus United States, about whether 18 U.S.C. Section 1014, which prohibits making a false statement for the purpose of influencing certain financial institutions and agencies, prohibits making a misleading statement. At least, mm, that's what the court thought the case was about when it granted certiorari, because it seems the court, once again, failed to realize that a case didn't actually present the question that the justices were trying to decide.

• 49:10Kate Shaw?

  So here are the facts of the case. Patrick Thompson sought to refinance mortgages on his home. He borrowed 110,000 from Washington Federal. He later borrowed another 20,000 two years later, and then 89,000 three years later. Washington Federal subsequently failed and was taken over by the FDIC, the Federal Deposit Insurance Corporation. And in a conversation with the loan servicer, after he received notice of what he owed, Thompson expressed confusion about the amounts. Looking at the balance, which was for over 200,000, he said, "I borrowed 100,000. And, I mean, I borrowed the money. I owe the money, but I borrowed 100 thou, 110. I think it was 110,000. I want to quickly resolve all this and, you know, what I owe."

• 49:51Kate Shaw?

  He had a similar conversation with FDIC contractors, in which Thompson talked again about the $110,000 loan.

• 49:58Speaker 04

  So Thompson was charged with false statements to both FDIC and Planet Home Lending on the theory that talking about the $110,000 loan implied that that was the extent of it. And the justices seemed to think that he made a false, not a misleading, statement when he did so because his statement conveyed, signaled, or meant that he owed only 110,000, not the full 200,000 plus. Even justices Jackson and Sotomayor, who are often the most open to arguments by criminal defendants, raised that possibility. And there were debates in the argument about what exactly is the difference between false and misleading, or what it might mean for a statement to be false in context, or did the court below say people could be convicted for misleading statements? But at the end of the day, it seemed that most justices thought the defendant made

• 50:40Speaker 04

  a false statement, and the government's lawyer, Carolyn Flynn, go blue, seemed to make headway in convincing the justices that the jury was instructed that they should convict if they found the statement false. The court also heard argument in Watzig versus Halliburton Energy Services. And this was a case about whether a voluntary dismissal without prejudice under Federal Rule of Civil Procedure 41 is a final judgment order or proceedings under Federal Rule of Civil Procedure 60B, such that a court can relieve a party or its legal representative from said final judgment order or proceedings. Last but not least was a case where friend of the pod, Sam Alito, also really showed out, and that is an important anti-discrimination case, Stanley versus City of Sanford, Florida.

• 51:24Speaker 04

  This case involves a firefighter, Karen Stanley, who was still working when her employer, the city, changed its benefit plan from one that provided health benefit subsidies to disability retirees until age 65, to a plan that terminated subsidies two years after retirement. While she was on the job, Stanley developed Parkinson's and decided to retire. And two years after she retired, the city discontinued her health insurance.

• 51:48Kate Shaw?

  So Stanley sued, arguing that the new policy and the policy change discriminate against her on the basis of disability. The United States agrees and is supporting her. The case is a little strange in that it seems the geniuses on the court, once again, didn't quite realize they were taking a case that didn't necessarily present the question that they were interested in answering. They thought they were taking the case to answer whether a former employee can sue under the ADA if an employer alters post-employment benefits in a discriminatory way after the employee retires. Here, however, the employer altered the benefits package while Stanley was still employed. That matters because the ADA prohibits employers from discriminating against a qualified individual, who is someone who can perform the essential functions of employment that

• 52:33Kate Shaw?

  such individual holds or desires.

• 52:35Speaker 04

  At the time of the allegedly discriminatory policy change, Stanley was a qualified individual. She was an employee at the time of the alleged discrimination, though she didn't feel the effects until after. Deepak Gupta, who was representing Stanley, did a great job hammering this. But the harder question would be, what happens if an employer changes post-employment benefits on a discriminatory basis for someone who is already a retiree?

• 52:58Kate Shaw?

  So part of the argument here was devoted to, well, should we just resolve the case on narrower grounds? As Justice Kagan pointed out, it, quote, "seems a little bit odd to decide the bigger, broader question, when as to this particular person, it's academic." The justices also noodled over whether the narrower ground was technically preserved in the courts below. It probably was, but that was a topic of discussion.

• 53:20Speaker 04

  We wanted to highlight one particularly cringe-worthy, rage-inducing moment from our friend, Trolito. We'll play the clip, and then we'll explain why it is really something.

• 53:32Speaker 02

  I think that all of what you said makes sense. There was a period during her employment when she had a claim for disability discrimination. The period between the onset of her disability and her retirement, at least toward the end of that period. She was aggrieved. I think it was predictable that she might face this situation after she retired. And so there she was aggrieved. And I think there was a sufficient injury, a sufficient threat of injury, in fact, to give her Article III standing. But that doesn't

• 54:15Speaker 02

  get you home because she didn't file on that claim within the prescribed time. So what you need is the Lilly Ledbetter Act to save you. And the outcome would depend on how you read the Lilly Ledbetter Act. It could be read as sort of an extension of the statute of limitations, which would allow her to pursue that claim at any point in the future when she is not getting the benefits to which she thinks she's entitled. That's one way to read it. But another way to read it, which does have support in the statutory language, is that the Act does not extend to the statute of limitations. It says that an unlawful

• 54:57Speaker 02

  employment practice occurs when an individual is affected by application of a discriminatory compensation decision or other practice.

• 55:07Speaker 04

  So, record scratch. What is going on here? The name Lilly Ledbetter should sound familiar. She was the plaintiff in a major anti-discrimination case that was about whether she could sue because her present day salary was substantially lower than her male cohorts due to discriminatory practices from decades ago, which had continued to infect her salary. Guess who wrote the opinion saying she could not sue for said discrimination?

• 55:32Kate Shaw?

  I know.

• 55:33Speaker 04

  Sam Alito. I know you know. That was for our listeners. Now, guess who disagreed with Sam Alito about whether people like Lilly Ledbetter could sue? Congress, who passed the Lilly Ledbetter Act. And guess who's now trying to undermine the Lilly Ledbetter Act by giving it a cramped, crabbed interpretation such that it doesn't benefit victims of discrimination? Sam Alito. So, last week, we played a Kagan throwback clip. And there is another Kagan throwback that seems really on point.

• 56:08Kate Shaw?

  For this one. So this clip is from Jarkasi versus SEC.

• 56:12Speaker 04

  Nobody has had the, you know, chutzpah.

• 56:18Speaker 04

  To quote my people.

• 56:20Kate Shaw?

  That's real chutzpah. Sam Alito has chutzpah. He really does. No vergonha and chutzpah. But plenty of chutzpah. Put it on a flag. Yep.

• 56:32Speaker 04

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• 58:26Speaker 00

  Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is going to have to do some serious

• 58:33Speaker 04

  Soul searching. Join us, Washington DC, November 5th through 7th at the second annual Crooked Con. It's going to be the positive America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community and fighting for the future, now's the time to grab your tickets to Crooked Con 2026. Head to crookedcon.com to get your tickets now.

• 59:13Kate Shaw?

  All right, so let's move on to the opinions. We got two unanimous opinions we're going to briefly mention. The first was in EMD Sales versus Carrera, and the court concluded that a preponderance of the evidence standard applies when employers are seeking an exemption from the Fair Labor Standards Act. Justice Kavanaugh wrote that opinion and his friend Lisa Blatt, who testified in favor of his confirmation prevailed. So nice for her. The second opinion was in Royal Canin versus Westschlegger. There, the court held that when a plaintiff, after removing a case to federal court, amends their complaint to delete the federal claim that enabled the removal, the federal court loses supplemental jurisdiction over state claims and the case has to be remanded. Justice Kagan wrote that opinion.

• 59:51Speaker 04

  And now for some quick additional court culture. So as we were recording this episode, the Fifth Circuit issued its much anticipated DACA Deferred Action for Childhood Arrivals decision. Unfortunately, the decision is largely as we predicted. A majority of the Fifth Circuit concluded that at least portions of the DACA program, which protects from deportation, people who are brought to the United States as children and allows them to seek authorization to work, are illegal. So it concluded that the policy can forbear from enforcing immigration law as to DACA recipients. That is announced that the administration will not prioritize their removal. But it concluded that the benefits portions of the program, that is, the authorization to work, eligibility for social security,

• 1:00:35Speaker 04

  that those portions are illegal. Now, the court did limit its ruling to Texas, the lead plaintiff in the case. Not entirely clear what that means in this. Context. And it also put the decision on hold. That is DACA recipients won't immediately lose their work authorization, but it does tee that issue up and honestly, potentially the entire validity of DACA for the Supreme Court, which is terrifying because the last time DACA made its way to the Supreme Court, that was when the Trump 1.0 administration attempted to end the program by a 5-4 decision with Chief Justice Roberts, joining the then four Democratic appointees. The court invalidated that rescission, but the dissenters in that

• 1:01:17Speaker 04

  case, justices Thomas, Alito, Kavanaugh, and Gorsuch, pretty strongly signaled their view that DACA is illegal. And now that Justice Barrett has replaced Justice Ginsburg, there's a real possibility the Supreme Court could be on the verge of ending the DACA program. All right, some more uplifting news also from Fifth Circuit adjacent land. Judge Matthew Kasmaric, also known as America's Next Top Research Scientist, is apparently really jealous that Eileen Cannon, America's Next Top SCOTUS Judge, is getting all of the attention. And so he took that personally because no one puts Matthew Kasmaric in a corner. I wonder if he knows that Dirty Dancing is entirely catalyzed by the need for an

• 1:01:59Speaker 04

  illegal abortion. Probably not. Anyway, so Judge Kasmaric went ahead and issued a redonculous ruling in which he allowed Idaho, Kansas, and Missouri to continue to press the lawsuit challenging Mifepristone, one of the drugs used in the medication abortion protocol. That keeps the suit alive because remember, the Supreme Court said only that the private plaintiffs, the doctors and dentists who didn't want to prescribe or use Mifepristone, didn't have standing. They didn't say on the merits that the challenges to medication abortion and the FDA's regulation of medication abortion were baseless. So Kasmaric's ruling keeps this case Alive after the plaintiffs dismissed their case.

• 1:02:38Kate Shaw?

  And importantly, it puts the defense of medication abortion in the hands of the Trump administration. At best, this means that John Sauer, who was the Solicitor General designate, will be writing the briefs to defend it. At worst, it means the administration could go ahead and agree and team up with the states to press the position that abortion medication was wrongfully approved or should have additional restrictions placed on it. Now, that wouldn't mean the case would end there. The drug manufacturers who had intervened earlier in the last round of litigation could still defend against the lawsuit. But the point is that by prolonging the case, Kaczmarek and the Supreme Court have created the possibility of jeopardizing medication

• 1:03:19Kate Shaw?

  abortion access after the election during the Trump administration and actually very, very early in the Trump administration. Kaczmarek also allowed the suit to continue in his court, even though none of the new plaintiffs are the state of Texas. I actually don't understand why Texas isn't in on the action, but it is other anti-abortion states, not Texas, that were the subject of this order. And I mean, Kaczmarek, like Cannon, contains multitudes. And, you know, I worry he's just getting started. Wait, Leah, were you going to say, would you know why Texas is not in the suit?

• 1:03:50Speaker 04

  I don't know why Texas is not. I was just going to say that Ken Paxton is experimenting with other vicious anti-abortion litigation, as we will touch on in a second. So, you know, limited number of cases in which he can be on the lead on, probably.

• 1:04:05Kate Shaw?

  Yeah. And if you can have other states somehow, with no real business being in Texas, convince Kaczmarek to let you proceed, then you may as well.

• 1:04:12Speaker 04

  No harm, no foul.

• 1:04:12Kate Shaw?

  Put your attentions elsewhere. Yeah, that's probably that.

• 1:04:14Speaker 04

  So, other pieces of news, we wanted to know, we got some new grants. The Supreme Court decided that it wasn't set to do enough damage this term, so they added a few other doozies, slapping October term 2024 and saying, we can fit a few more bad boys in here. So, let's go through some of the cases the court added. First up is an Affordable Care Act case, Braidwood. Remember the Affordable Care Act? Remember how it narrowly survived in the first Trump administration? Well, guess what? It's back. And This time, health insurance coverage for preventative services could be taken away. The case is a challenge to the structure of the Preventative Services Task Force. This is the entity responsible for designating what preventative services health insurers must cover under the ACA.

• 1:04:58Speaker 04

  And the case has been brought by an employer who objects to having to cover PrEP, which is the pre-exposure prophylaxis drugs, which minimize the risk of contracting HIV. The employer also objects to covering contraception, another preventative service that is covered under the ACA. If the employer is successful here, this would disable the mechanisms by which insurers are told what preventative services must be covered. And again, that has real repercussions for a range of medication services, including not just PrEP and contraception, but other kinds of preventative services that many Americans need. So, yikes.

• 1:05:37Kate Shaw?

  Yep. They did deny a cross petition raising a non-delegation doctrine question. So I guess, you know, small mercies. But they did take up a case involving a challenge to a state tax exemption, which is a religious charity arguing that it is constitutionally entitled to a state tax exemption because we are a Christian nation. That's not technically what they argue, but kind of is. That's a reference to an old Supreme Court case, the Church of the Holy Trinity. One more case they took up, a case about who gets to sue the EPA, because everyone is clamoring to do so now. And one more, a case about whether doctors and patients can challenge a state's decision to defund Planned Parenthood by kicking Planned Parenthood out of the Medicaid program. This case will essentially decide whether states can kick Planned Parenthood out of

• 1:06:20Kate Shaw?

  the Medicaid program without repercussions, because the other possible enforcement mechanism to challenge the decision to do so would be the federal government withdrawing Medicaid funds. And we all know the Trump administration isn't going to be out there safeguarding women's health care. So this challenge is the only way that states are going to be prevented from essentially kicking Planned Parenthood out and making it impossible for it to do its work in states where it's desperately needed.

• 1:06:45Speaker 04

  Excellent. And on Friday, the court agreed to take up a parental rights case, Mahmud versus Taylor. This case is about whether it violates parents' religious rights when schools instruct their children on gender and sexuality in ways that contravenians the parents' religious beliefs. So it's going to be something for the Supreme Court to uphold that parental rights claim at the same time that it probably will uphold bans on gender-affirming care for minors, where it is admittedly not directly addressing a parental rights claim, but still. Now, we've mentioned Ken Paxton a few times, but I wanted to call back a development that occurred a little earlier this year that we haven't had time to get to. Texas Attorney General Ken Paxton has been doing the most recently, not just with this

• 1:07:29Speaker 04

  pornography case that we recently discussed here, but also with regard to abortion. So he's the same guy who personally threatened hospitals with liability if they provided a medically necessary abortion to Kate Cox. This time, he is again pressing this anti-abortion stance by initiating a lawsuit against a New York doctor who, Ken Paxton alleges, helped a Texas woman obtain an abortion via medication abortion. The case is seen as a test case for how much anti-abortion states can extend their laws beyond their own borders and into blue states, and it's also a test to see exactly what blue state shield laws can do. And a side note here is that this abortion came to light because the father of the fetus

• 1:08:13Speaker 04

  reported it to the authorities. So ladies, always choose a bear. In fact, Carolyn Kitchener at The Washington Post just released a story about how anti-abortion groups are pushing for men to basically report on their girlfriends and wives and partners. So this is part of a concerted strategy.

• 1:08:38Speaker 04

  We also wanted to briefly note, I know this episode is long, but a major figure in the Supreme Court world, Supreme Court Barr, Tom Goldstein, who was the founder of SCOTUSblog, was recently indicted on multiple counts of tax fraud. The indictment alleges he used money from his firm to pay off personal and gambling debts, and also women that he was engaged in personal relationships with, and also that he didn't report income from gambling. Again, a major figure in the Supreme Court world, I think a pretty shocking indictment that we at least wanted to acknowledge.

• 1:09:12Kate Shaw?

  A grab bag of a few other things we wanted to mention before we wrapped. As they were headed out the door, Senate Democrats released a report titled "An Investigation of the Ethics Challenge at the Supreme Court." You know, the title could have been tweaked, I think, and improved dramatically if it had read "The Ethics Challenge That Is the Supreme Court," or "The Ethics Challenge of the Supreme Court," but it's close.

• 1:09:29Speaker 04

  Good edit. Good edit.

• 1:09:30Kate Shaw?

  Yeah, they didn't ask. So, the report documents the vast largesse bestowed on Clarence Thomas, noting that, quote, "The number value and extravagance of the gifts accepted by Justice Thomas have no comparison in modern American history. This includes 20 rides on Harlan Crow's private jet, seven times Thomas or Thomas's family stayed at a particular Crow resort, Camp Topbridge." So, not much of this is known, but it's still useful to have it in one place.

• 1:09:55Speaker 04

  The report also concludes that friend of the pod, Samuel Alito, created the appearance of impropriety when he failed to recuse in some cases. It also places some blame on Chief Justice John Roberts, noting that Roberts, quote, "Refused to appear before the Senate Committee and, rather than investigate the conduct consuming the Court, produced a non-binding statement on ethics principles and practices that the justices purported to follow," end quote. All true, I guess, but fear not, America. If you really care about judicial ethics and penalizing judges for doing bad things, you should take solace in the fact that some federal judges are Are in fact being disciplined for criticizing Justice Sam Alito.

• 1:10:40Speaker 04

  An investigation concluded that a district court judge engaged in misconduct when he published an essay in the New York Times arguing that the display of flags associated with the Stop the Steal movement at House Alito breached judicial ethics rules. Again, the problem here wasn't the flag, the problem was writing about the flags. That was the impropriety. So hmm, just, just so you're clear. How about some good court culture, like good news, which we actually have some. So it seems that some folks are catching on to the Supreme Court. A Gallup poll from the end of last year found that public confidence in the American legal system has plunged over the last four years, putting the United States in the company

• 1:11:23Speaker 04

  of countries like Venezuela, Syria, and Myanmar. And between 2020 and 2024, confidence in the judicial system dropped by a staggering 24 percentage points to 35%. Wow. I am still taking this as a send strict scrutiny to more friends challenge, but we did want to recognize John Roberts and company for some well deserved recognition they received, namely a Golden Duke Award. John Roberts and the conservative justices won the Golden Duke Award for Best Scandal General Interest, where they beat out Donald Trump, Senator Bob Menendez, and the billionaire owners of The Washington Post and LA Times. Congratulations, sirs. We know you worked for it.

• 1:12:07Kate Shaw?

  And finally, we covered on our year end episode, KBJ's star turn on Broadway. We wanted to treat you now to some highlights from her appearance in the musical And Juliet, which the show has now posted to Instagram. Welcome to the first day of rehearsal. Thank you.

• 1:12:24Leah Litman?

  I'm so excited to be here. This has been a dream of mine. I got the eye of the tiger, a fighter, dancing through the fire, 'cause I am a champion, and you're gonna hear me roar. Show me the meaning of being lonely. Is this the feeling I need to walk with? Tell me why.

• 1:13:03Kate Shaw?

  Sorry, did you all date Romeo? Yeah. Oh, we used to do more than date. He used to come to my balcony all the time. I did it. I made it to Broadway.

• 1:13:17Kate Shaw?

  We hope that brought a smile to your face.

• 1:13:20Speaker 04

  And now for a little housekeeping before we go. Crooked's friends at Vote Save America Action and Crooked Ideas have set up a disaster relief fund to benefit those impacted by the horrific wildfires in Los Angeles. And it's super easy for you to make one donation that's then split among incredible charities doing important work for our neighbors and first responders in Los Angeles. Among those charities are the Latino Community Foundation, the Los Angeles Regional Food Bank, the Los Angeles Fire Department Foundation, United Way of Greater Los Angeles, the California Community Foundation Wildfire Relief Fund and Inclusive Action. Thanks to you, we've raised nearly $154,000 for these great groups so far. And you can continue to make this a broader effort by learning more and making a tax

• 1:14:03Speaker 04

  deductible donation to this effort at votesaveamerica.com/relie. While California is racing to contain wildfires as weather conditions improve, MAGA leaders are blaming diversity, equity, and inclusion for the crisis instead of focusing on real solutions. And this isn't new. Many companies are also rolling back DEI programs as the new Trump administration approaches. That's why this week on Assembly Required, Stacey Abrams and NYU Law Professor Kenji Yoshino tackle the myths, legal arguments, and share why DEI is not the problem, it's a solution. Listen to this episode now on the Assembly Required feed.

• 1:14:43Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Lea Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. Thanks to our digital team, Phoebe Bradford and Joe Motosky. Our production staff- is proudly unionized with the Writers Guild of America East. Subscribe to District Scrutiny on YouTube to catch full episodes. Find us at youtube.com/districtscrutinypodcast. If you haven't already, be sure to subscribe to District 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.

• 1:15:33Speaker 04

  Right now, the midterms are the biggest story in American politics. But however they go, the Democratic Party is going to have to do some serious soul searching. Join us, Washington DC, November 5th through 7th, at the Second Annual CrookedCon. It's going to be the Podstate of America hosts and some of the smartest people in politics. We're going to try to answer some big questions. Stuff like, if we won, how did we win? If we lost, how could we possibly have lost? And with 2028 around the corner, where do we go from here? If you believe in democracy, community, and fighting for the future, now's the time to grab your tickets to CrookedCon 2026. Head to crookedcon.com to get your tickets now.

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