The Atextual & Illegal Attack on Birthright Citizenship

Melissa, Leah, and Kate are joined by Professor Kate Masur of Northwestern to talk about just how illegal and off-the-wall Trump’s executive order on birthright citizenship is. Then, the hosts cover the multitude of other horrors coming out of the executive branch, preview February’s SCOTUS cases, touch base with the wackos at the Fifth Circuit, and ask the all-important question: are the mens okay? 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.

• 0:01Melissa Murray?

  Strict Scrutiny is brought to you by the ACLU. The Supreme Court case, United States versus Skermetti, could shape the future of transgender people's freedom and bodily autonomy for all of us. Tennessee wants to take away transgender people's autonomy over their own bodies. They think the ruling that overturned Roe versus Wade allows them to do it. This would not only violate the promise we all deserve of equal protection under law, it hurts everyone's freedom to control their bodies and their lives. This case offers a critical opportunity to judicially check President Trump's sweeping efforts to control people's bodies, families, and lives. The government has no right to deny a transgender person the health care that they need, just as they have no right to tell someone if, when, or how they start a family.

• 0:46Melissa Murray?

  The ACLU is calling on the court to uphold constitutional guarantees for everyone, including trans people. Learn more at aclu.org/autonomy. That's aclu.org/autonomy.

• 0:59Speaker 01

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

• 1:12Speaker 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."

• 1:42Melissa 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. I'm Kate Shaw. I'm Leah Litman. And I'm Melissa Murray. And guess who decided to go back to the office? That's, that's right. The Supreme Court has heeded the administration's return to work, and they are back on their hustle, hearing cases again. Unfortunately, however, the White House did not take this occasion to stop workings, which is incredibly rude, if you ask me. So we still have to cover all of the chaos that is emanating from the Mojo Dojo Casa White House.

• 2:22Melissa Murray?

  In addition to covering the dudes, maybe even closet Doge bros at one First Street. So we've got our work cut out for us, but we're on it.

• 2:31Leah Litman?

  And here's the plan for today. We're going to start with the news as it relates to the Mojo Dojo Casa White House and the Mojo Dojo Doge bros. That includes some recent disturbing efforts to move the administration's unhinged wildly illegal executive order stripping birthright citizenship from off the wall to on the wall. We'll then preview cases that the court is going to hear this upcoming sitting, and we'll end with a court culture segment that will feature the original shit posters of the federal government, the Fifth Circuit. We'll also get into some other matters that lead us, once again, to ask, are the men's OK? Appellate advocacy edition. So stay tuned for that.

• 3:05Melissa Murray?

  First up, birthright citizenship. Listeners, as you may recall, the Constitution says in no uncertain terms that people born in the United States and subject to the jurisdiction thereof are citizens. Full stop. Because textualism. Well, some male law professors decided to ask the question, but what if the plain meaning of the words doesn't actually mean what it obviously means? Or at least, what if we said it didn't mean what it obviously means? Then Trump's birthright citizenship executive order might actually be constitutional after all.

• 3:39Leah Litman?

  In a move that should now be familiar to our listeners, some male law professors cloaked this effort to rehabilitate Trump's illegal order in what else? Originalism. The gift that keeps on giving Republicans the power to do whatever they want to do. What a coincidence. And these male law professors insisted that if you disagree with them, that is, if you can read and take reading seriously, well, you just don't understand originalism or history. Well, we respectfully, scratch that. We just dissent.

• 4:08Kate Shaw?

  Not respectfully. And to help us with our not respectful dissenting, and also to bring some real historical chops to the discussion of the 14th Amendment and birthright citizenship, we are delighted to be joined by an actual historian, indeed, an award-winning historian, who has written a book about the run up to the Civil War that was a finalist for the Pulitzer Prize. She was previously a guest on the show where she talked about that book, which is titled Until Justice Be Done. And as we hinted at earlier, some members of the legal academy seem to be having some trouble both reading the text of the 14th Amendment and understanding what the history shows. So we decided that a return visit from Kate Masur would be the perfect antidote. Welcome back to the show, Professor of History with a courtesy appointment in reading, Kate Masur. It's good to be here. Thank you for having me.

• 4:52Leah Litman?

  So the reason why we're talking about the birthright citizenship executive order is because the New York Times made the choice to platform an op ed by two originalist law professors, Alon Werman from Minnesota and Randy Barnett from Georgetown, who argued that maybe the president has a point on birthright citizenship and maybe what he's doing isn't wildly illegal after all. To support this wildly atextual position that is contradicted by governing case law and just about every other source of constitutional authority, the author said the following. Lincoln's Attorney General wrote in 1862 that, quote, "The Constitution uses the word citizen only to express the political quality of the individual in his relations to the nation, to declare that he is a member of the body politic and bound to it by the reciprocal obligation of allegiance on the one side and protection on the other."

• 5:35Leah Litman?

  Then they added, "The Lincoln administration and Congress held this allegiance-for-protection view, under which individuals agree to be bound by the laws, in exchange for the government's protection." And, as they go on to explain, "While non-citizens can swear allegiance and make some social compact under which they get rights, that might not be true for the children of those who lack legal status in the United States, because people who violated the laws of this country, for example, by coming here unlawfully, did not actually pledge obedience to those laws." So QED, the Birthright Citizenship Executive Order, or at least the parts of it dealing with the children of those individuals who are

• 6:16Leah Litman?

  not lawfully present in the United States, might just be fine and totally copacetic.

• 6:21Kate Shaw?

  Okay, so Kate, thank you for bearing with that very long wind up. Where to start? Why is this argument so wrong?

• 6:28Speaker 05

  It's hard to know where to start, and so I'll just sort of plunge in somewhere and then we can...

• 6:33Leah Litman?

  That's what they did, just plunged in somewhere.

• 6:36Speaker 05

  Yeah. You know, one thing that's noticeable about this op ed is it actually says very little about... American history and it advances a theory of allegiance for protection. The central sort of contour or fact of being a citizen is that you pledge allegiance to this country in exchange for protection by this country. And they go all the way back to, you know, early modern England and other places to sort of talk about that. But what they really don't actually talk about, besides what you just mentioned, which I'll get to in a second, Lincoln's Attorney General, they don't talk about the discussions of the passage of the 14th Amendment in 1866.

• 7:19Speaker 05

  They don't have anything to say about what people at the time of the 14th Amendment thought they were doing with this part of the 14th Amendment. And that's kind of weird, in my opinion, because I thought that what the project of originalism was about was talking about what was going on at the time that the, a particular part of the Constitution was passed.

• 7:40Kate Shaw?

  No, but not this part.

• 7:41Speaker 05

  Yeah. And also not these originalists, because one thing I've learned is that originalists will always say, well, no, that's not the kind of originalism we do. We do a different kind of originalism. So let's first just say for the record that birthright citizenship in this country did not begin with the 14th Amendment. There's a common law tradition of birthright citizenship that is part of the original Constitution in the line that the President of the United States must be a natural born citizen. And so that's where the original Constitution sort of alludes to the idea that being born in this country can constitutes being a citizen of the country. But more to the point than the original written Constitution was the common law tradition

• 8:26Speaker 05

  reiterated over and over again during the pre-Civil War period in which judges at the state court level, occasionally at the federal court level, would repeatedly say, our tradition is a tradition that if you are born in this country, you are a citizen of this country. And once you are born here and a citizen, then yes, you do owe allegiance and in exchange you get protection. And so it's really what the 14th Amendment does, and I think it's really important to bring this out, is that the 14th Amendment puts into writing something that people had believed was part of the Constitution of the United States from the beginning. The part that gets interesting in the antebellum period really is the status of free African Americans.

• 9:10Speaker 05

  So what ends up happening is across the period before the Civil War, there begins to be, some people want to create a carve out, which is, well, everyone who's born here is entitled to citizenship, except for free black people.

• 9:24Leah Litman?

  Something that you just said was super illuminating to me, which is, birthright citizenship actually existed before the 14th Amendment. And what the 14th Amendment was trying to do is say, stop coming up with all of these super weird, strange theories to try to deny people birthright citizenship. Stop using ideas about allegiance, civic worth, virtue for exclusionary purposes, which is basically precisely what the Supreme Court did in Dred Scott, and that the 14th Amendment said, no, no, no, no, like, knock it off. And yet, that seems to be the error that is being repeated again.

• 9:55Speaker 05

  Yeah, no, I mean, so the authors of that op ed quoted a line from Attorney General Bates of the Lincoln Administration in 1862, from his opinion, you know, the administration asked him to write an opinion about whether free African Americans were citizens, and they quote a line about allegiance and protection. But Bates then goes on to say, look, our principle from the founding has been birthright citizenship for everyone. I don't think that it was ever correct to even say that free African Americans were not citizens. It has always been our tradition, and there shouldn't be carve outs for free black people.

• 10:34Speaker 05

  And then, as we might talk about, when Congress, the Republican-dominated Congress, discusses how to frame out both the Civil Rights Act of 1866 and the 14th Amendment, people bring up this question of carve outs again. Well, are you saying that the children of Chinese immigrants are going to be citizens because of this? And what do the Republicans say? They say, yes, we really mean it. So like, we're not carving out exceptions here, except for like, a couple of tiny ones, which we can get into if you want.

• 11:03Kate Shaw?

  Well, you want to just mention those, maybe to dispose of them quickly? So, kids of diplomats, right, are sort of the paradigmatic example. People who are physically present in the United States but remain subject to and are here in order to represent another sovereign. And so that is one carve out that has been understood.

• 11:18Speaker 05

  Another one is children of an occupying army. So that goes back, again, to English common law. If, you know, there's an occupying army and... The members of that army give birth to a child, they are not, they do not have birthright citizenship. Again, they're not subject to the jurisdiction of this country. They're subject to the jurisdiction of the country that they're occupying on behalf of. And they're representing that sovereign and trying to like extend that other sovereign's rule, right? So, yeah. And then the final one, which is specifically in the US context, is that Native Americans who are exercising sovereignty of their own are not birthright citizens. And that, at

• 11:59Speaker 05

  the time, is a recognition that they are citizens essentially of their own nations.

• 12:05Melissa Murray?

  So there are a lot of blind spots in this argument, a major one being history, like the entire history of the 14th Amendment, maybe even the original Constitution and the antebellum period. But there is just another blind spot that I wanted to call your attention to. So the Trump executive order essentially denies birthright citizenship to the children born in the United States to undocumented parents, as well as to the children born in the United States of parents who are foreign nationals but who are in the United States lawfully and temporarily, i.e. children born in the US to foreign nationals who might be here on a student visa. So, you know, we can call this the Kamala Harris slash Usha Vance clause, if you want to. But the male law professors who wrote this op-ed

• 12:50Melissa Murray?

  never really addressed the implications of that provision of the executive order for their broader argument about this whole question of protection and allegiance. They note that the EO's exclusion of children born to mothers who are lawful but temporary residents is a, quote, "more complicated question, not addressed here in the op-ed." But is it actually that complicated, Kate? If their argument is that eligibility for birthright citizenship turns on whether your parents are in this country lawfully, then the provision of the executive order that would exclude those children born to those on temporary visas has to be invalid, too? Or am I missing something?

• 13:29Speaker 05

  If I understand the question, I think it gives them too much credit. I mean, it gets into the weeds a little bit because, you know...

• 13:35Melissa Murray?

  I definitely don't want to do that.

• 13:39Speaker 05

  The one thing that's noteworthy about the article is that it actually doesn't at all take up the question of children born in this country. So it's all about kind of Parents. Adults and this kind of consensual relationship of you offer allegiance, you get protection in return. There's actually nothing in the article about the question, which is a real question throughout history, which is why, you know, the British common law tradition developed in this way of, okay, so how, you know, what are, what's the status of children? Obviously infants, newborns, they cannot consent to anything. And the question is, what is their status? And this is even in that Bates opinion.

• 14:20Speaker 05

  He literally says citizenship does not and never descends through blood. It descends through land, through where you are born in our tradition. And so these people in the 1860s who supported these measures, they did not believe that the status of the parents was relevant to the citizenship status of the children. So like, it shouldn't matter if you're here on a student visa, or if you're here and you're an undocumented person, it shouldn't matter. If the parents haven't pledged some form of allegiance to this country, none of that should matter because what this is all about is the question of people who are born here. So that's what I, and if you really read the article, like, it does not address that question.

• 15:05Kate Shaw?

  And so maybe to turn to another, I think, fundamental flaw or hole in the argument, is the op ed's total failure to address Congress, right? So we're talking about history, we're talking about the 14th amendment, but it's also the fact that in addition to the early civil rights statutes that you alluded to, Kate, Congress enacted a citizenship statute in 1940 that tracks the language of the 14th amendment citizenship clause. The op ed does not mention that, doesn't mention that, you know, there was a reenactment and recodification in 1952, and that the Congress under those statutes has long treated US-born children as citizens, even if their parents entered unlawfully. It's done things like issue passports for those children. And so it just seems to me that the complete failure to address how Congress has understood

• 15:50Kate Shaw?

  the status of individuals born under these circumstances is just an enormous glaring hole.

• 15:56Leah Litman?

  Maybe we can do a quick lightning round rundown of some other key points just to debunk this and make sure it stays off the wall.

• 16:03Melissa Murray?

  Just to kill it with fire, just to kill it with fire, Leah?

• 16:04Leah Litman?

  Well, yeah. Well, because, again, we don't want to draw attention to this and suggest there is a debate over it. On the other hand, like, we do want to make sure people understand just how outlandish this is. This theory, if you can even call it that, like, would defeat the purposes of the 14th Amendment, just on several levels. Like, under their theory, children of enslaved persons would not be considered citizens because people who were enslaved were brought to the country against their will. They did not come in amity or consent to its laws.

• 16:33Kate Shaw?

  The op-ed, like, glancingly references Dred Scott, obviously, the 1857 Supreme Court opinion that denies the very possibility of citizenship for those who are enslaved or descended from individuals who were enslaved. And so, they write, "At the time of its adoption, the publicly known purpose of the 14th Amendment was to extend the benefits of the social compact, including specifically the privileges and immunities of citizenship, to African Americans newly freed after the Civil War." That is a really narrow articulation of the goals of the 14th Amendment. And to Melissa's point, like, it actually doesn't address children, so that sounds pretty close to an explicit acknowledgement that the 14th Amendment actually does not grant citizenship to the children and descendants of enslaved persons, which is a stunning claim.

• 17:14Leah Litman?

  It also seems to import, like, logic predicated on the divine right of kings, you know? Maybe not surprising, but does suggest, like, what unites various batshit legal theories, underline much of what we've seen in recent weeks, like, truly originalist hotboxing at its finest.

• 17:32Kate Shaw?

  And let me just also say, because we haven't mentioned this, we don't think the Supreme Court is the only source of authority on what the Constitution means, but it's, I think, important that it too has spoken with a pretty clear, uniform voice about what this provision of the 14th Amendment means in the 1898 decision in Wong Kim Ark. And then, in a decision, Plyler versus Doe, which is, like, dismissed as, you know, containing dicta about this in the op-ed we're talking about, also seems clear to embrace this expansive vision of what the first sentence of the 14th Amendment means and sort of the obvious conclusion that it requires birthright citizenship. So that, I think, is also important to have in the mix.

• 18:08Speaker 05

  I think, I mean, if I could add one, one thing, it's also that I think in the, and this maybe just goes to thinking about this historically, that sometimes in people's efforts, whether in good faith or not, to emphasize that the Fourteenth Amendment and the other Reconstruction Amendments were passed with addressing the history of slavery and emancipation in mind, which is true, that there's sort of an implication that thinking about immigrants came later, and that, oh, then they had to figure out later what were the implications of this for immigration. But that's not, in fact, the case. And that when we, again, we can look at debates about the Civil Rights Act and the Fourteenth Amendment to see that they very much were talking about immigrants, including the immigrants who

• 18:51Speaker 05

  were the most anathema to many Americans at the time, right? Not European immigrants, but Chinese immigrants. And they are explicitly saying, yes, the children of Chinese immigrants, people who are already not permitted to naturalize at that time, the parents because of the 1790 Naturalization Act, which said only white people can naturalize, yes, they too are citizens. And if you read the op-ed, you would never know that, A, there was a debate about the Fourteenth Amendment period, because, in Congress, right? Or B, that questions of immigration were even considered. And so, you know, to, to really think about this historically, and to, if you're really genuinely interested in answering the question of what did the Fourteenth Amendment mean around the time that it was adopted, you really

• 19:36Speaker 05

  need to look at sources from that time period, and, and not sort of say that the, that the real thing we need to do is, you know, go back to early modern England.

• 19:45Kate Shaw?

  Unless you're going to get sort of better, even if pretty sketchy, support for the claim that their view of where third citizenship is in fact the right one.

• 19:53Speaker 05

  I would also add-

• 19:53Kate Shaw?

  It just feels so instrumental.

• 19:55Speaker 05

  They're, yeah, I mean, they're completely cherry picking from Bates's, Attorney General Bates's opinion itself, which was in 1862. And I would urge everyone to read it. It's readily available on the web. And you will see where the quote they take is from in the opinion, where he is talking about, where Bates is basically saying, oh, people say this and that about citizenship, and what are the rights of citizenship. He's like, I think it all comes down to- You give allegiance and you get protection. Then, a few paragraphs later, he's like, all right, so our tradition is birthright citizenship. We have no other tradition. He's like, the reason that I am a citizen of this country is because I was born here. And then he goes on to talk about where the tradition of birthright citizenship comes from. He goes on to talk about the injustice of denying to free African Americans birthright citizenship.

• 20:38Speaker 05

  And so, you know, it's like, the source itself, if you read the entire thing, tells you that birthright citizenship is this tradition, that it doesn't have carve-outs besides the very traditional ones. And, you know, it's very conventional, very predictable, as you guys well know, that like, this is what they do, right? They cherry pick quotes and build an argument that, when writing context, may have like no relationship to what the people who wrote these documents were actually trying to say.

• 21:06Leah Litman?

  So, maybe just to sum up, it seems that someone who is literate with a passing familiarity with American history and who can identify all of the sources of constitutional authority, be it texts, precedents, structure, congressional practice, executive practice, would recognize that birthright citizenship is indeed a thing. Kate, we cannot thank you enough for coming on to help listeners underscore and understand just how wildly illegal this order is to keep this argument off the wall. So, thank you very much.

• 21:35Speaker 05

  Thanks for having me.

• 21:37Leah Litman?

  And, listeners, this is a great opportunity to re-recommend Kate Mazur's books, Until Justice Be Done: America's First Civil Rights Movement from Revolution to Reconstruction, as well as her latest, Freedom Was In Sight: A Graphic History of Reconstruction in Washington, DC.

• 21:53Melissa Murray?

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• 23:23Melissa Murray?

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• 23:42Kate Shaw?

  Okay, so shifting to our next segment, more news, AKA, things are still bad and maybe getting worse. When we were last with you at Fordham Law School, where we had an amazing time podcasting the 2025 Levine Lecture, Main Justice/DOGE 2.0 was in the process of trying to find somebody, literally any warm body, to do their bidding and move to dismiss the criminal charges against New York City Mayor Eric Adams. Listeners may recall that the DOJ's letter indicated that DOJ was dismissing the charges in part to facilitate Adams' cooperation with federal immigration enforcement, AKA a little quid pro quo non-prosecution.

• 24:21Melissa Murray?

  DOJ received a few more hell no's in that search for a warm body. They should be used to it. It's their whole dating history in a nutshell. As Samantha Jones once said of Richard Nixon on Sex and the City, "Nobody wanted to fuck him, so he fucked everybody." Well, so when we recorded at Fordham, Acting U.S. Attorney for the Southern District of New York, Danielle Sessun, had resigned rather than comply with DOJ's directives. Two career officials at DOJ also refused to go gently. And AUSA, Hagan Scotten, joined their ranks with a scathing and pointed letter. We would read all of this letter, but these guys are breaking more than the DOJ, so we don't have time. But I commend the letter to you in full. I will note only this

• 25:03Melissa Murray?

  particular sentence, quote, "If no lawyer with an earshot of the president is willing to give him that advice," the advice, of course, being that our laws and traditions do not allow using the prosecutorial power to influence other citizens, much less of elected officials in this way, quote, "then I expect you will eventually find someone who is enough of a fool or enough of a coward to file your motion. But it was never going to be me," end quote. Basically, Hagan Scotten said, "I am not the one or the two. Continue on, sir."

• 25:36Leah Litman?

  It was like a reverse Burger keeping on Sex and the City, like, "It's not me, it's you, Dagbag." I just, I really appreciated the energy. But inquiring minds might want to know, did DOJ find someone else to do it? Well, in the DOJ, as on Tinder, no, not really. So the Dagbag himself, Emile Bové, appeared on DOJ's filing of the motion to dismiss the other line prosecutors at the Southern District who had been involved in the case with Drew. Two other lawyers' names did appear in the case and on the motion. To say that Bové had made some determinations and ordered them to seek dismissal is a pretty weird document. And getting other lawyers to even do that seems like it was

• 26:19Leah Litman?

  a fight. So Harry Litman said on Blue Sky that he heard reports that DOJ signaled to its Public Integrity Section that one of them had to sign on, or they might all be fired. The New York Times reporting and Reuters also seem consistent with that. That is the truly Stalinist moves of this administration.

• 26:36Kate Shaw?

  I also liked the online discourse pointing out that these people can't even do, like, Prisoners Dilemma, right? Which is that if you separate people to try to get somebody to agree to do it, maybe they, you know, sort of work at odds. But if you put them together, it's going to be harder to turn them against each other. So in terms of the kind of most recent developments, there ultimately did emerge somebody willing to at least sign the documents. But at the status hearing that Judge Dale Ho in the Southern District of New York held on Wednesday, Bové was at the table, which was very unusual for a dag, a dag bag, or just a regular dag. Also present at the table was Chad Mizell, who is the chief of staff to Attorney General Pamela Jo Bondi.

• 27:19Kate Shaw?

  Mizell actually argued the motion, which was very unusual. And because all roads lead back to Article 3 and frequently to Clarence Thomas, we should note that Chad Mizell is the husband of Judge Catherine Mizell, a Trump appointee, former Thomas clerk, whose name may sound familiar because she is the district court judge who invalidated the mask mandate on federal transportation hubs back in April of 2021, when all of a sudden, everybody just started coughing on each other on airplanes. Some people ripped their masks off in midair and had Catherine Mizell to thank for that.

• 27:52Leah Litman?

  Freedom isn't free, Kate.

• 27:54Kate Shaw?

  Indeed.

• 27:54Leah Litman?

  They just want us to die on planes in many different ways.

• 27:57Kate Shaw?

  That's true. That's true. And we had no idea just how many different ways there were to do that.

• 28:02Melissa Murray?

  She walked so RFK could run, ladies. All right. So we should talk a little bit about mandates. So the Trump administration issued an executive order threatening to withdraw federal funding from schools that have vaccine mandates. The EO directs the Secretary of Education and the Secretary of HHS to begin implementing it and withholding these funds from any school that has a COVID vax mandate. And just want to say here that this likely violates the spending clause and possibly the First Amendment by conditioning schools' participation in a federal spending program that is unrelated to COVID-19 on the schools expressing a particular view about COVID and the vaccine.

• 28:43Melissa Murray?

  Plus, the executive branch doesn't just get to add conditions to funds that Congress has appropriated. So it's problematic on a number of different fronts and likely will be challenged on those particular fronts.

• 28:58Kate Shaw?

  And piling on, the administration has also threatened to withdraw federal funds from schools that have race-conscious scholarships, cultural centers, and graduation ceremonies. This would seem to call into question some affinity group programming, like the Black Law Students Association, the Latina Law Students Association, various other law school and other higher ed affinity groups, and also interfere with cultural spaces for underrepresented students. The Education Department's Dear Colleague letter, which is what set forth this threat, states the Education Department's view that any actions to, quote, "increase racial diversity amount to race discrimination." So that tees up the question: Do efforts to ensure the presence of racial minorities on campus, or maybe just the actual presence, not even the efforts, the presence of racial

• 29:42Kate Shaw?

  minorities on campus, now amount to racial discrimination? And just to be clear, this is an insane overreading of the Students for Fair Admissions case. Even just taking the law piece of this, not even the underlying diabolical goals, but to suggest that, as the letter says, quote, "Although SFFA addressed admissions decisions, the Supreme Court's holding applies more broadly," that's not obviously true. And schools, I think, do not just have to capitulate to this wild overreading, but that is obviously what the administration is trying to have them do.

• 30:14Melissa Murray?

  I wonder if the point of this Dear Colleague letter is simply to make higher education so inhospitable to minorities that we will just give up on school entirely and go back to picking cotton or watching their children for free. Is that the point? Separate question: If during the Super Bowl halftime show we had heated those Twitter calls for more white people in the Kendrick Lamar lineup, would that also be racial discrimination? Or just fairness?

• 30:40Leah Litman?

  Quarry minds want to know.

• 30:41Melissa Murray?

  I would like to know.

• 30:43Leah Litman?

  So it seems like these executive orders bring together two themes we've highlighted, worth underscoring again. One is the administration's efforts to roll back the civil rights movement, not about ending DEI unless DEI means desegregation, a integration. That is what they want to end.

• 31:00Melissa Murray?

  They can't speak French, Leah. They can't speak French.

• 31:04Leah Litman?

  Fair, fair. Um, desegregation, e-integration, right? They think it looks like an ampersand sign.

• 31:12Melissa Murray?

  There you go.

• 31:13Leah Litman?

  The other theme is about the administration's efforts to attack major civic institutions in society like universities, which I said at Fordham was a callback to the Tenneyo Plan of creating a federalist society for everything and crushing the perceived liberal dominance in media and education, among other places.

• 31:30Melissa Murray?

  Speaking of things that Leah may have unwittingly manifested, she earlier warned us that we were just a few news cycles away from some Doge bros losing sensitive information at the club while on a ketamine bender. Well, that may actually have happened. To be clear, instead of leaving a club on a ketamine bender, the Doge bros apparently just left the sensitive information on the internet. So, the Huffington Post reports that Doge posted classified information on the new Doge website. According to the reporting, the website's online database provides details on the National Reconnaissance Office, which is a federal agency that designs, builds, and maintains US intelligence satellites. What could go wrong?

• 32:14Melissa Murray?

  The NRO's budgets and headcounts are classified information.

• 32:17Kate Shaw?

  But we can't even focus on that because there is just so much else to cover. So, what else have the Doge bros slash Doge bags been doing to the federal government? As we've talked about, they are firing a ton of federal workers. They are continuing to do that. On its own, that is wildly destructive. It is creating the potential, which I think we will see realized quickly, for environmental, health, safety, welfare disasters, maybe even a full-blown recession. And the new federal government, you know, human resources officials we hear cannot even be bothered to use Mail Merge to include the names of the workers they are firing in the emails or the documents firing them.

• 32:56Kate Shaw?

  These Doge bros also apparently may have unwittingly fired some people whose jobs were to ensure the safety of the nation's nuclear stockpile. After firing those people, Doge decided maybe having people safeguard nuclear weapons and nuclear energy was a good thing after all. It's possible they just accidentally fired those people, didn't even realize who they were or what they did, when they did. When they did, because, I hasten to say, the press called everyone's attention to it. Just so, so important that investigative journalists are doing this work. They sort of went oopsies and tried to reach out to rehire these fired workers, only of course, they hadn't bothered to get contact information before firing them. So they were struggling to get in touch with them.

• 33:40Kate Shaw?

  And the same thing appears to have happened with them accidentally firing and then seeking to unfire some of the team at the Department of Agriculture, working on bird flu response. Excellent news. All around, things are going great.

• 33:53Leah Litman?

  I'd love it if they would try to rehire some of those air traffic controllers. I'll just put that on my wish list.

• 33:59Melissa Murray?

  I'm just going to go back to only the best people, the absolute best people. And that's not the only thing the Doge bros may have unintentionally wrecked. Apparently, the Occupational Safety and Health Administration, OSHA, ordered the destruction of 18 publications on workplace safety as part of the administration's efforts to terminate any activities associated with diversity, equity, inclusion, and accessibility. The wonderful Substack, Public Information, obtained copies of these documents and reported that, quote, "Almost all of them are not associated with DEIA topics, but appear to have been targeted because they include a DEIA-related keyword used in a completely different context," end quote.

• 34:42Melissa Murray?

  So one manual that was destroyed, for example, was OSHA Best Practices for Protecting EMS Responders During Treatment and Transport of Victims of Hazardous Substances Released. On page 94 of that manual, there is a reference to, quote, "the diversity of state-specific certification training and regulatory requirements," as well as another reference to, quote, "diverse conditions under which EMS responders could work," end quote. That's all it was, just some references to these terms, diversity and diverse. Has nothing to do with diversity, or inclusion, or equity, or anything else. Guys, don't get so trigger happy. It's not that hard. Just keep reading. Just work at it.

• 35:19Leah Litman?

  Helpful clarification, maybe that will guide them moving forward.

• 35:22Melissa Murray?

  dubious.

• 35:23Leah Litman?

  So we should also, we should also take stock of other agencies or institutions of government that may have fallen in Kate's terms or framing from our Fordham Law Show. So one potential victim is the Internal Revenue Service. So the DOGE team sought and maybe obtained, it's hard to know or confirm these days, access to the IRS system with taxpayers' records, which has private financial data tied to Americans, like tax returns, social security numbers, addresses, and banking details. Also, maybe the Social Security Administration. So the acting commissioner of the Social Security Administration, a Trump-appointed official, left the job after clashing with DOGE over DOGE's efforts to get access to social security records.

• 36:07Leah Litman?

  That, of course, is the administration that manages pension payments for more than 70 million American seniors, as well as a bunch of their personal data.

• 36:15Melissa Murray?

  And maybe the rest of the federal government is a problem as well. In a bizarre executive order entitled "Ensuring Lawful Governance and Implementing the President's Department of Government Efficiency Deregulatory Initiative," the president directed that "agency heads shall," quote, "in coordination with their DOGE team leads and director of the Office of Management and Budget, initiate a process to review all regulations," end quote.

• 36:41Kate Shaw?

  I mean, big balls taking the place of the entirety of OIR is really just, you know, that's, that's the world we're living in right now, and I want out, guys. But don't worry, it is not just about giving all of the power to big balls and making the world safe for deregulation. Let's talk a little bit about what Elon Musk has been up to, because he is not content to be made co-president of the federal government and to exercise not only all of, at least half of, but really maybe all of, the executive power, and also the legislative, and maybe soon the judicial power. Elon Musk has now cast his gaze beyond the federal government and to some states, and specifically the state of Wisconsin. So as we have talked about, there is a huge

• 37:22Kate Shaw?

  race underway for an open seat on the Wisconsin Supreme Court that will determine whether that court remains a 4-3 progressive or liberal majority, or flips back to a 4-3 conservative court. An entity called Building America's Future, which is an Elon Musk-backed group, has just bought $1.5 million worth of airtime on Wisconsin's five markets to support the conservative candidate for that open seat, Brad Schimmel, who is running against Judge Susan Crawford. This race is huge for a number of reasons. You may remember that the Wisconsin Supreme Court in 2020 was the only court to really entertain one of Donald Trump's lawsuits seeking to overturn the results of the presidential election.

• 38:02Kate Shaw?

  The court, by a single vote, refused to throw out votes in Milwaukee and essentially hand Wisconsin's electoral votes to Donald Trump. So those are the stakes. Control of the court will also affect abortion access in the state. It'll affect whether the state legislature can reinstate gerrymandered maps, which the progressive majority had invalidated under the state constitution as to state legislative maps. It could also affect political power at the federal level. If conservatives flip the court back, they're definitely going to keep the state's gerrymandered maps for Congress. That basically gives Republicans two seats in the House of Representatives for free, no matter how many voters in Wisconsin want something different. By contrast, a decision that struck down those maps might make the seats more competitive,

• 38:44Kate Shaw?

  ensuring that the Wisconsin congressional delegation reflects how Wisconsinites actually vote. Anyway, so those are the stakes. Susan Crawford really would be a justice in the tradition of Jill Karofsky, Becky Dallit, Janet Protasiewicz, and would retain that liberal majority on the court. Musk is backing Schimmel, who I think would fundamentally change that institution. And I think it's really scary that he is beginning to get his tentacles into places, not just in the federal government, but in the states as well. It seems really important to push back against that.

• 39:18Melissa Murray?

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• 40:52Melissa Murray?

  Switching gears, many of the administration's policies are also being challenged in the lower federal courts, and that includes the administration's attempt to ban transgender individuals from serving in the military. The hearing on that order did not seem to go well for the government. The case is being heard before Judge Anna Reyes, a Biden appointee to the District of the District of Columbia, and Oh, boy. Judge Reyes gathered the administration's whipping boy slash lawyer. At multiple points, Judge Reyes attempted to get the DOJ to make a few concessions, not necessarily about the validity of the entire executive order, but for example, she asked the lawyer representing the administration, quote, "Can we agree that

• 41:35Melissa Murray?

  the greatest fighting force is not going to be impacted in any way by less than 1% of the soldiers using a different pronoun?" end quote, to which the DOJ lawyer slash whipping boy had this to say, quote, "I can't agree with that here," end quote.

• 41:49Leah Litman?

  In another remarkable exchange, Judge Reyes asked whether calling an entire category of people dishonest, dishonorable, undisciplined, and modest and lacking integrity, all of whom have signed up to fight for their country, expresses animus. Here, too, the Department of Justice lawyer resisted when asked, "How is that anything other than showing animus?" The lawyer said, "I don't have an answer for you." Judge Reyes then, and this is the real chef's kiss moment, announced to the lawyer who had gone to UVA Law that the judge had a new policy that prohibited UVA graduates from arguing in her courtroom because they're all liars and lack integrity and can't possibly meet the high rigors of being a government lawyer. She then asked the government lawyer to sit down on that basis, called him back up, and said, "What was that, animus?" "Dang, girl, he is already dead."

• 42:33Leah Litman?

  So we should say, we don't yet have her decision in that case, but she did say that the EEO screams animus, which probably provides some indication of how things are going to go.

• 42:42Kate Shaw?

  The consequences of the administration's other anti-trans executive orders are already playing out. The EEOC has sought to dismiss six cases that it brought on behalf of workers alleging gender identity discrimination because Trump's executive order has directed them to essentially erase the legal existence of trans people, pretend that trans people don't exist. A number of these claims alleged really serious misconduct on the part of employers involving things like, you know, misgendering, but also pervasive sexual harassment, both verbal and physical. A lot of these allegations would be illegal or just straight-up sexual harassment, even without a theory that discrimination on the basis of gender identity amounts to discrimination on the basis of sex. And yet, the administration has essentially, you know, directed that all of these be dismissed.

• 43:26Leah Litman?

  And I think we should link this to what the Supreme Court is doing and about to decide, you know, in the cases on the bans on gender-affirming care, because as a Supreme Court... Plays footsie with the idea that maybe it's not unconstitutional discrimination or animus to target trans people, like that's probably going to embolden the administration.

• 43:43Melissa Murray?

  All right. To be clear, the lower courts are not enjoining everything. And again, we predicted that there were going to be some things that got through. And in the last episode, Kate mentioned an Appointments Clause challenge that had been brought by a private plaintiff. That case argued that because Elon Musk was exercising so much governmental power, the Constitution required him to be appointed in one of the ways that was spelled out in the Appointments Clause, which requires an act of Congress. A group of states filed a similar challenge, and Judge Tanya Chutkin denied the state's request for a temporary restraining order that would stop Musk from doing whatever it is he is doing. And the reason why, according to Judge Chutkin, is because in order to prevail on a motion

• 44:26Melissa Murray?

  for a temporary restraining order, the complainant has to show that they will be irreparably harmed by the defendant's actions. But as Judge Chutkin noted in her order denying the request, it wasn't clear here that the states could make that showing of irreparable harm, because no one really knows what Elon Musk is going to do next and what the impact of his actions will be. But just to be clear, she did not let Doge and Elon off the hook, and she read both of them for absolute filth.

• 44:55Kate Shaw?

  So let's just read a brief excerpt from what Chutkin wrote, quote, "Even defendants can see there is no apparent source of legal authority granting Doge the power to take some of the actions challenged here. Accepting plaintiffs' allegations as true, defendants' actions are thus precisely the executive abuses that the Appointments Clause seeks to prevent. Planets legitimately call into question what appears to be the unchecked authority of an unelected individual and an entity that was not created by Congress and over which it has no oversight."

• 45:21Melissa Murray?

  So some of these policies, you know, cases matters may be getting to the Supreme Court soon. One is actually already there, but in a somewhat unique posture. So its resolution might not provide us the best window into how this court is going to respond generally to the administration's lawlessness. So the federal government has an emergency application that is seeking relief from a temporary restraining order that had temporarily blocked Trump from firing the head of the Office of Special Counsel, an independent agency charged with protecting federal employees and in particular whistleblowers. So historically, that agency head has been considered independent from the sitting president. In a two to one decision, the D.C. Circuit dismissed the appeal on the ground that it was an appeal from a temporary restraining

• 46:04Melissa Murray?

  order restoring the head of the office to his post. And typically, TROs are not appealable. And for that reason, the court dismissed the government's request for a stay of the TRO. But Judge Katsas, who was on the panel and is a Trump appointee, had an ominous dissent that he filed. And again, it's ominous because it seems like it may very well be an arbiter of things to come. Judge Katsas wrote, quote, "The president is immune from injunctions directing the performance of his official duties, and Article II of the Constitution grants him the power to remove agency heads," end quote.

• 46:40Leah Litman?

  Yeah, so seems to be giving not only the president criminal immunity, but also immunity from civil lawsuits that seek to block the president from doing illegal things. Whoo boy.

• 46:50Melissa Murray?

  That seems not like a president, but a king, maybe even a dictator.

• 46:54Leah Litman?

  Hmm, maybe.

• 46:55Kate Shaw?

  Chutkin says no, but unfortunately, she's not the final word on these things.

• 46:59Melissa Murray?

  By a seven to two vote, the court denied the government's application, explaining that the justices don't generally have jurisdiction over appeals from TROs and that the case was proceeding along. Importantly, that says nothing about the merits. That is nothing about what the justices will do when the removal question actually gets to them. Justices Gorsuch and Alito dissented.

• 47:20Kate Shaw?

  The TRO, by its terms, expires on February 26th. Then the district court said they're working to quickly issue a more definitive final ruling that can proceed through the appellate process. So we will see. But on other issues, the president and the administration seem not content to wait. So they issued an executive order purporting to basically end the independence of independent agencies. Let me just read one excerpt from it. So the EO says, quote, "It shall be the policy of the executive branch to ensure presidential supervision and control of the entire executive branch. Moreover, all executive departments and agencies, including so-called independent agencies, shall submit for review all proposed and final significant regulatory actions to the Office of Information and Regulatory Affairs within the executive office of the president before publication in the Federal Register."

• 48:04Kate Shaw?

  So that has not historically been the case. OIRA, which is an entity that we have alluded to before, that exists inside the executive branch and has done this centralized review of regulations proposed and then ultimately issued by various agencies, has not historically reviewed the work of independent agencies. So this is a very significant change to bring them under the purview of OIRA.

• 48:23Leah Litman?

  And we should say the executive order which reported to end independent agencies did carve out a partial exception for the Federal Reserve Board. Which means like they don't really have a legal theory. Once again, it is just as Justice Kagan had said in a CFPB argument from last term, as you can hear here.

• 48:40Speaker 06

  Because you state a test and then a, a, a, a, an agency that clearly fails under that test, you say, oh, no, I don't mean that.

• 48:49Speaker 07

  No, because for the Fed, remember, the first and second national banks were organized as private banks. To this day, the presidents of the private regional reserve banks sit on the Federal Open Markets Committee. And it's also why I think that if this court were ever to take the step of overturning Humphrey's executor, it likely wouldn't impact the forecause removal restrictions on the board itself. And I think it does reflect that historical tradition in the Fed of it not really exercising governmental power.

• 49:16Speaker 06

  Yeah, it's just too important and whatever. I mean, the FDIC, the OCS.

• 49:20Leah Litman?

  Okay, so the executive order also added that the president and the attorney general, subject to the president's supervision and control, shall provide authoritative interpretations of law for the executive branch.

• 49:31Melissa Murray?

  Yeah, there had been some misinformation circulating about the scope of the order. And some people basically suggested that the gist of the order was that the president, by declaring that he alone could interpret the law, was announcing or signaling his intent to defy court orders. That's not what this order does. I mean, it really is about limiting the review of regulations and limiting the power of independent agencies to review their regulations. That being said, again, as Kate said, what the order does is really quite significant. And it seems to continue to assert an impoundment authority. It says, quote, "Adjustments to apportionments may prohibit independent regulatory agencies from expending appropriations so long as consistent with the law," end quote. So. That seems to be-

• 50:15Leah Litman?

  Pause here. Like, my guys, making adjustments to congressional spending appropriations to independent agencies is not consistent with the law. These two things cannot both be true. Congress also could do some of what the executive order purports to do, like modifying the structure of these agencies, but it has not, because they don't have the votes to do so. But that doesn't mean the president can just bypass Congress like this, not how this works. I can almost hear the echoes of Neil Gorsuch saying what he said in one of his first dissents. It's called legislation.

• 50:49Melissa Murray?

  The president also made a related statement that we should highlight. So in one of his truths on Truth Social, he noted that, quote, "He who saves his country does not violate any law."

• 51:02Leah Litman?

  And since this is an episode where we are apparently saying things that shouldn't have to be said, but we're going to say them anyways, a president who believes they are a messiah, unbound by the law, and who intends to act as if they are a messiah unbounded by law, is fundamentally unfit for office. Like, that is part of why we are saying this is a constitutional crisis, and just like relying on courts to clean up the edges does not and will not cut it. Although I am eagerly looking forward to seeing which law professor will write a defense of this truth post in the pages of The Times. Stepping back more seriously, I kind of see this as follows. Like, the Supreme Court said, we are just

• 51:46Leah Litman?

  looking back to July, that maybe the presidents are above the law, and here you have a president saying, yes, indeed, I am. You know, it made me recall the ending to Justice Sotomayor's epic dissent from the immunity case, where she wrote, quote, "Even if these nightmare scenarios never play out, the damage has been done. The relationship between the president and the people he serves has shifted irrevocably. In every use of official power, the president is now a king above the law," end quote. So I know, like, a lot of the news and a lot of this podcast is now focusing on, right, like, Article II, right, and all the chaos and disorder it is unleashing, like, on our constitutional system. I just think it is impossible to understand what is happening in a way that is divorced from the Supreme Court, right? The court enabled this particular presidency as well

• 52:31Leah Litman?

  as like laying the foundations for a lot of the specific lawlessness from this administration. So I'm just going to once again use this as an occasion to plug my forthcoming book called Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. You can preorder it now. Again, if you want to understand how the court built the foundations for the Mojo Dojo Casa White House.

• 52:57Kate Shaw?

  The person to blame is John Roberts.

• 52:58Leah Litman?

  Yes.

• 52:59Kate Shaw?

  The entry to understand it all is Leah's book.

• 53:03Melissa Murray?

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• 54:30Melissa Murray?

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• 55:19Melissa Murray?

  So, next up are previews. What is the Supreme Court going to wreck before the administration gets to? Or what is the court going to enable the administration to do next?

• 55:28Kate Shaw?

  Who to bet on here?

• 55:29Melissa Murray?

  Right.

• 55:29Kate Shaw?

  Just so many awesome things happening all around us.

• 55:32Melissa Murray?

  Drag Race did it better. Ladies, start your engines. So, the first case we wanted to talk about is one where the justices are going to noodle over the following question: Is the real sexual orientation discrimination discrimination against straight people?

• 55:50Kate Shaw?

  That is actually only a tiny bit of a caricature. So, here is what the case, Ames versus Ohio Department of Youth Services, is about. Marlene Ames worked for the Ohio Department of Youth Services for more than 20 years, beginning as an executive secretary, later becoming administrator for the Prison Rape Elimination Act. Her supervisor was a gay woman, whose own supervisors were straight, and this will become important later on. So those are the players.

• 56:12Melissa Murray?

  Here are the facts. Ames applied for a new position, bureau chief, and she interviewed with her supervisors supervisors, who, again, were straight. The department didn't choose Ames. They said she lacked vision and leadership skills. And the department left that position open for a while before hiring someone else just a few months later. And the person that the department hired to take this position was, wait for it, a gay woman. Later, the supervisors supervisors, again, they were straight, told Ames that she would no longer be the PRIA, Prison Rape Elimination Act Administrator, and offered to return her to her role as an executive secretary. And this, of course, was a demotion that carried with it a pay cut.

• 56:57Melissa Murray?

  The supervisors, straight supervisors, later selected a new administrator for the Prison Rape Elimination Act, and this person was a gay man who had worked as a social worker in the department for a while. And then you'll never guess what happened next.

• 57:11Leah Litman?

  The heteros, they got pretty upseteros. So Ames claimed that these decisions were the result of a scheme to kick her out because of her sexual orientation, because she is straight. The department, by contrast, says it demoted her because they weren't sure she could effectively lead the department's revamped approach to addressing sexual violence.

• 57:31Kate Shaw?

  So Ames sued alleging that she was discriminated against because she was straight and because she was a woman. The court rejected her claim that she was discriminated against because she's heterosexual because they said she didn't show, quote, "background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority." It also ruled for the employer on her sex discrimination claim because she had failed to establish that the employer's reasons were pretextual.

• 57:53Melissa Murray?

  Now, the question before the Supreme Court is just about her sexual orientation discrimination claim. It is whether, when someone is alleging that they are being discriminated against for being in a majority group, here, being straight, and a group where there is precisely no history of discrimination against them, does the complainant have to provide some evidence, some reason to think that their case is the very atypical, unusual, aberrational case where someone is being discriminated against because they are straight? Courts ask for that evidence because they recognize that sexual orientation discrimination against heterosexuals is...

• 58:31Leah Litman?

  Pretty unusual. Except in the mind of Sam Alito. This, too, is a key theme of the second chapter of my book. Anyway, so this particular case aims, has to be understood against the backdrop of the Trump campaign and now the Trump administration's demolition of DEIA programs and other efforts to resegregate the workforce. So drumming up these kinds of reverse discrimination claims is one of the ways conservative groups and now the Trump administration deter institutions, employers, from trying to achieve diversity, to break down barriers and address longstanding biases, network effects, and the compounded impact of discrimination. Look no further than the fact that the petitioner in this case is supported by America First

• 59:12Leah Litman?

  Legal Foundation, Stephen Miller's organization, and other ideological allies. This case will help the administration's anti-DEI, anti-desegregation and integration push, right? It's just like another iron in the fire and another carrot or stick in that fight.

• 59:30Melissa Murray?

  Can I make another connection? I know that this has nothing to do with same-sex marriage, but one of the claims in cases like Masterpiece Cake Shop and 303 Creative versus Alennis is this idea that the recognition of a right to marry a person of the same sex results in an opportunity for individuals who hold contrary views, traditional views about heterosexual marriage, are going to be discriminated against themselves. And so this all kind of comes together. So even if you are totally on board-

• 59:59Leah Litman?

  Non-discrimination, the real discrimination.

• 1:00:02Melissa Murray?

  Exactly. I mean, so again, this is all of a piece and the fates of the anti-DEIA crowd and the anti-same-sex marriage crowd are very clearly linked. In any event, we wanted to note two important amicus briefs that we understand to be, I guess, efforts to limit the fallout that this case could cause, given the nature of this court and the people who are likely to write on these questions. So one is a brief by anti-discrimination scholars Katie Iyer, Sandra Sporino, and Deborah Wittes, and it is a brief in support of neither party. And it basically says, listen, sure, if someone is actually discriminated against because they're straight, that is sexual orientation discrimination. Okay.

• 1:00:47Melissa Murray?

  And, they add, courts shouldn't be adding requirements to the statutes that aren't already there. But at the end of the day, they explain, when courts are deciding whether to grant summary judgment, basically judgment before trial after some evidence has been gathered to an employer, the question is whether a reasonable jury could conclude that there was sexual orientation discrimination here. And at least I read the implication to be that that's not going to be true in many cases like this one. And indeed, on Ames's sex discrimination claim, the court entered judgment for her employer because it concluded that the employer's reasons for not hiring her and for putting other people in those positions were not pretextual.

• 1:01:26Kate Shaw?

  So the other one we wanted to mention is a brief filed by the federal government/solicitor general, but before the change in the guard. So the real solicitor general slash our solicitor general slash the person we actually honored on President's Day this week, Elizabeth Prelogar. And so she filed that before she left the office. And the brief kind of takes a similar tack to the anti-discrimination scholars' brief that Melissa was just talking about. It urges the court to send the case back to the Court of Appeals and to tell the lower court not to apply a stringent or heightened rule requiring plaintiffs to show particular background circumstances in order to make out discrimination against a majority claim. But it notes the federal government has long suggested that there's got to be some evidence, right, some reason to think that there was discrimination against this person because she was straight. You can call that background circumstances.

• 1:02:11Kate Shaw?

  They say it's not, you know, but it's not a heightened standard. It's just asking you to show the plausibility of your allegations and also some reason to believe that a reasonable jury could rule for you on that theory.

• 1:02:23Melissa Murray?

  So again, I kind of take these briefs to be an effort to blunt the effect of a ruling for petitioner, trying to get an opinion that says, sure, hypothetically, if someone is discriminated against because they're straight, they have a legal claim. But if all you've got is, I'm straight, I have a gay supervisor and they promoted a gay person instead of me, while explaining I'm not suited for the job, that probably isn't going to cut it. So preserving court's ability to reject these claims and not send them all to trial. But one risk of a case like this is that it can actually spook employers from hiring or promoting members of a minority group because it makes it easier for individuals from a majority group to allege discrimination. And In this environment, it just has to be said, we already know that there are institutions

• 1:03:06Melissa Murray?

  who are being scared away from DEIA, and this is just further grist for that particular mill. So again, whatever the court decides, there's already going to be some fallout here.

• 1:03:20Leah Litman?

  So the court is hearing a few additional cases this week. We're just going to briefly note Gutierrez versus Sayens. So I'll explain the facts of this case, which kind of get into the issue. It is a suit by someone who was sentenced to death in Texas, and they are seeking access to post-conviction DNA testing that they say would prove they aren't eligible for the death penalty. But Texas takes a position that under their post-conviction DNA testing law, you can't get DNA testing that proves you're not eligible for the death penalty. You can only get it to show your innocence of the crime. And so the petitioner here is arguing that violates due process. And the Fifth Circuit, in its infinite wisdom,

• 1:04:02Leah Litman?

  said the petitioner didn't have standing to raise that claim because there was some possibility that if a court issued a declaratory judgment saying this Texas statute would be unconstitutional if, right, it didn't give access to post-conviction DNA testing to show you're ineligible for the death penalty, that maybe Texas wouldn't comply with it. So the petitioner's injury wouldn't be redressable by a favorable decision. Not a great time to suggest defendants might not comply with court rulings and therefore courts shouldn't rule on the merits of the claim. But the Fifth Circuit's reasoning is just all kinds of strange. It rests on kind of an overly aggressive misreading of a Texas Court of

• 1:04:45Leah Litman?

  Criminal Appeals decision that suggested even if he could get access to this DNA testing, the error would be harmless, or, you know, he would still get the death penalty. But that's not the same as like a favorable judicial decision eliminating the basis on which Texas is refusing him access to this evidence. So it's an important case, even though the issue is framed kind of wonkily. But we're definitely going to be watching it to see whether the Supreme Court, you know, flirts with the idea that maybe defendants can

• 1:05:20Leah Litman?

  You know, suggests they won't comply with court orders and that could lead courts not to hear their claims.

• 1:05:29Melissa Murray?

  The court is also going to hear two additional cases and we'll briefly note them. The first is Asteras versus United States, which is about what sentencing factors courts can consider when revoking supervised release. And the second is Per too versus Richards, which is about whether litigants are entitled to a jury trial on matters that relate both to the merits of their claim and to whether they satisfied the prison litigation reform act's gauntlets of procedural limitations on filing suit. So that's what we're going to hear at the court. We will cover those oral arguments in more detail in the next episode, but now on to some court culture. And guess what, folks? Like the Trump administration, which keeps coming back no matter what you do, the Fifth Circuit keeps coming back. That's right.

• 1:06:13Melissa Murray?

  The Fifth Circuit is still very much alive. We have spent a lot of time on this podcast covering the shit posters in Article Two since January 20th, but we had to come out of retirement because the OG shit posters of the federal government, the Fifth Circuit are back on their hustle. So yes, the Fifth Circuit recently struck down a ban on 18 year olds purchasing firearms on the view that the challenge law violated the Second Amendment. The challenge law prohibited federal firearms licensees from selling handguns to individuals who were between the ages of 18 to 20 years old. And in invalidating the statute, the Fifth Circuit predictably relied heavily on the

• 1:06:53Melissa Murray?

  fact that the 1792 militia act required 18 to 20 year olds to serve in the militia. QED, guns are okay.

• 1:07:01Leah Litman?

  Better than relying on the statute of Northampton. That's all I'll say.

• 1:07:04Melissa Murray?

  An improvement.

• 1:07:05Kate Shaw?

  Is it though?

• 1:07:07Melissa Murray?

  We don't have to drink with the militia act. We did have to drink for the statute of Northampton.

• 1:07:12Kate Shaw?

  That's true. Good, good, good callback. So, but the court, of course, takes history extremely seriously. So it acknowledged that 22 jurisdictions, including 19 states, the District of Columbia and two municipalities. Passed laws between 1856 and 1897 that limited the Second Amendment rights of 18 to 20 year olds in some way. It says that two of those laws are not relevant, but does seem to concede that the others, like 20, 20 such laws are relevant. So you would think on their own method, this might matter, might establish there's a tradition of regulating firearms in this particular way. But who's going to get a little history, more recent than the statute of Northampton, get in the way of a good time?

• 1:07:53Leah Litman?

  Basically, the Fifth Circuit said, guns for Doge bros, for big balls. If they're old enough to run the federal government into the ground, they're definitely old enough to buy firearms. Am I right?

• 1:08:03Kate Shaw?

  Maybe not to get into a strip club to leave the flash drive there, though.

• 1:08:06Leah Litman?

  Right. Yeah. We'll have to leave it at a Chuck E. Cheese.

• 1:08:10Melissa Murray?

  It was a website. There was no ketamine involved. To be really clear about what happened.

• 1:08:16Leah Litman?

  So we try to be extra fair to the Fifth Circuit. So we did want to note a moment of en banc sanity in that court. The court voted 16 to 1 against one Judge Jim Ho, who is auditioning for a Supreme Court seat so hard he might break the stage or the federal courts. So the court noted that in the en banc poll, which is a poll about whether the full court, that is every judge on the Fifth Circuit should hear a case, rather than or after than a panel of three judges has done so. In that en banc poll, quote, "One judge voted in favor of rehearing, Judge Ho, and 16 judges voted against," end quote. Womp, womp.

• 1:08:52Melissa Murray?

  And some of the Fifth Circuit judges had some choice words for the other Judge Ho. And as we've said on this podcast before, even a stop clock is right twice a day. So Stanford stormtrooper Stuart Kyle Duncan had this to say, quote, "Even though the losing side chose not to seek en banc rehearing, one judge called for an en banc poll. The poll failed 16 to 1. That should surprise no one because there was no plausible reason to rehear this case." End quote.

• 1:09:24Kate Shaw?

  When you've lost Judge Duncan.

• 1:09:27Kate Shaw?

  So the case involved a challenge to federal protections for trans individuals. The plaintiffs suggested that if they did not provide care for trans people, they might lose out on funding. A panel concluded that the physicians lacked standing because the United States readily affirmed, judicially admitted, and confirmed at oral argument that the guidance exposed the plaintiffs to no credible threat of investigation or losing federal funds based on their described medical practices. Also, since the case was filed, Trump issued an executive order that forced war using federal civil rights laws to protect transgender individuals when it declared that the executive branch would only recognize, quote, "two sexes, male and female."

• 1:10:02Leah Litman?

  Not to be deterred, Judge Ho was like, but this case provides me a vehicle to do some trans bashing, which would help me in my quest to be America's next top Supreme Court Justice. Didn't actually say that, but that is the subtext. And because we are still living in the worst of times, the Fifth Circuit was not the only court getting busy as of late. Out there in the Tenth Circuit, a Trump-appointed judge wrote that it is a, quote, "novel and complex," end quote, "question whether Donald Trump can be elected to a third term."

• 1:10:33Melissa Murray?

  Oof. Just so we are very, very clear, this is actually not a novel and complex question at all. Indeed, I dare say it would not be a novel and complex question for these goons if the president seeking a third term was one Barack Hussein Obama because reasons. All of this is-

• 1:10:52Leah Litman?

  And yet, I am convinced that a law professor or two might be willing to write an op-ed suggesting maybe Donald Trump does have a case for running for a third term.

• 1:11:02Melissa Murray?

  And if said men's law professors would actually write that op-ed, I would simply come back on this podcast to reiterate that all of this is simply an effort to normalize an absolutely bullshit claim for a third Trump term. Anyway. The case involved one of the many challenges to Trump's appearing on the ballot. But that already happened. He did actually appear on the ballot. So the case obviously became moot. The question now is whether the issue, whether Trump could appear on the ballot, was one that was capable of repetition, yet evading review, such that the court could invoke one of the exceptions to the mootness doctrine and hear it anyway. The majority

• 1:11:44Melissa Murray?

  says, quote, "His claim concerns the presidential candidacy of President Trump and no one else. The 22nd Amendment, however, mandates that President Trump cannot be elected to another term after the current one," end quote. But, again, said Trump appointee says, "Hold my beer. Not so sure about that." And all I have to say on this point is, as they say in the great state of Texas, apparently, you got to dance with the one who brung you. And here it seems Donald Trump brung her.

• 1:12:14Leah Litman?

  And yet, as the great Beyonce said, "This ain't no Texas, ain't no hold'em." Lay your cards down, down, down, down. Down, down. Okay, so it is not just the judges who have gone wild or are behaving badly. We wanted to highlight some clips from recent arguments that a few listeners brought to our attention. We always appreciate these kinds of tips. We can't actually listen to every single argument in every single court in the country. So the first clip comes from a case in the federal circuit. The court has specialized jurisdiction over a variety of intellectual property matters. And in this case, several judges wanted to express their concern to an advocate about the rhetoric in the advocate's brief. And the advocate

• 1:12:57Leah Litman?

  was pretty unwilling to concede any kind of error whatsoever.

• 1:13:02Melissa Murray?

  Was it a man?

• 1:13:03Kate Shaw?

  So who?

• 1:13:05Melissa Murray?

  I think it was. I'm pretty sure it was.

• 1:13:09Kate Shaw?

  Right. So this infallible advocate was, of course, a man. It was, in fact, Paul Clement, a former Bush Solicitor General.

• 1:13:14Leah Litman?

  I know him.

• 1:13:14Kate Shaw?

  The one who insists, and Melissa has never forgiven him for this, that NYU does not have a campus. He is a regular Supreme Court advocate. He is extremely well-regarded. And this refusal to concede any error led to the following two pretty remarkable exchanges. Here is the first, which happened pretty much right out of the gate as the argument started.

• 1:13:34Speaker 08

  Mr. Clement, before you start, can I just note, you are a very experienced practitioner. The rhetoric in the blue brief was a little bit much for me. I'm a little disappointed in the tone of this brief.

• 1:13:49Speaker 09

  Well, I'm sorry you had that reaction, Your Honor, but frankly, my client's pretty disappointed by the way they've been treated throughout this.

• 1:13:55Speaker 08

  Yes, but you're a very experienced appellate advocate, and you know we are not a jury, and we don't appreciate that kind of rhetoric. Your strength is in your arguments, not that kind of tone and substance. So I would hope that you have appeared before us many times, and you are an excellent advocate. I would hope you would not sign onto a brief like this ever again.

• 1:14:15Speaker 09

  Well, I'm not sure I can make that promise, Your Honor, because with all due respect, I think what happened in this case was not appropriate. I think, given what happened to my client before this court in the first Cisco against Centripetal case, at a minimum, when they asked for recusal for the APJs that had a greater interest, at least potentially three times as much, I think they at least deserved respectful consideration. And I don't think they got that. But we can disagree about the rhetoric in the brief. But I don't think we can disagree that there was a double standard applied here that is highly problematic.

• 1:14:54Speaker 10

  I will let you get on with your argument, but I can't leave my colleague hanging out there. The rhetoric in the brief was something about which we all unanimously agreed in advance. Judge Hughes just agreed to be the one to make mention of it. It's not meant to derail your argument, and it's not going to take away from the strength of your argument. It's just the tone. But please proceed.

• 1:15:13Speaker 09

  I will, and I will try to proceed in measured tones. But I have to say, as somebody who has seen a lot of government proceedings, I do think the way these proceedings went and the way that my client was treated was highly inappropriate.

• 1:15:29Melissa Murray?

  And here's the second clip, which is from the end of the argument. Again, unwilling to concede any ground here.

• 1:15:36Speaker 10

  Why would she say this has no impact on existing or past cases? Why would she say that? Why would she have that? If she actually, if you're telling me that in her executive order, whatever it's called, director's order, that she decided, yeah, this is wrong, this is wrong, what's wrong in light of this case? Why wouldn't she have done something about this case?

• 1:15:56Speaker 09

  So with respect, I think that you didn't do something about this case because my client was singled out for unfavorable treatment, which explains why we're making this claim. I think it explains and frankly justifies the rhetoric in the brief, but we obviously disagree about that. But I think my client has been singled out and treated horribly unfairly in this case and makes it a class of one case. And I'm supposed to be a zealous advocate for my clients, and if the rules of this court don't allow that, I think that's frankly a problem.

• 1:16:28Speaker 11

  But counsel, I think you can be a zealous advocate without using extended rhetoric. I don't think that those two things have to rise and fall together, right, in the meets?

• 1:16:38Speaker 09

  Well, you'll have to tell me what rhetoric really offended you, because I think this brief was an excellent brief and consistent with the briefs that I filed in every regional circuit in the Supreme Court of the United States.

• 1:16:48Speaker 10

  I don't know, I've seen quite a few of your briefs, I've never seen one written like this, so there you have it. But anyway...

• 1:16:53Speaker 09

  Well, not every case does my client get treated this shabbily by the federal government.

• 1:16:57Speaker 10

  I don't think that this is being for too long. Do you have anything further? Thank you, counsel. This case is taken under submission.

• 1:17:02Leah Litman?

  As the Supreme Court said, we're fallible because we're final, except not. And also, you're not final. But anyways, whoa. So, again, this is not the only, I don't know, entry into the are the men's okay appellate advocacy edition. So there was also a moment in a Sixth Circuit antitrust case, Academy of Allergy Asthma versus AmeriGroup Tennessee.

• 1:17:27Speaker 10

  And this was a different advocate, right?

• 1:17:30Leah Litman?

  Alas.

• 1:17:31Speaker 10

  Still a man? Still a Paul?

• 1:17:34Leah Litman?

  Still the man, Paul Clement. So here too, Paul Clement's rhetoric got a little heated, and one of the judges on the panel intervened to kind of ask gently, like, are you insulting me? So we'll play that here.

• 1:17:50Speaker 12

  The way I'm thinking about the case in the for what it's worth category is I'm with you on the five factors. Like, if that's the way we think about it, I think you win. If it's an Illinois brick problem, I think it's really hard. That's how I see it.

• 1:18:03Speaker 09

  But it is not an Illinois brick problem at all. This is, with all due respect, this is the simplest antitrust standing case ever. It's a joint boycott...

• 1:18:12Speaker 12

  Judge, yeah.

• 1:18:13Speaker 09

  No, I'm... (laughter) I mean, obviously, you'll, you know, you'll issue an opinion, you'll tell me differently. But there is just, when you are, when you are the target of a joint boycott.

• 1:18:25Speaker 07

  I'm just asking you to focus on the things that I think are what's hard.

• 1:18:29Leah Litman?

  And on Friday, after we recorded, Judge Ho, the good one, decided to tie all of these episode threads together. More seriously, he appointed, dun dun dun dun, Paul Clement to argue against the Department of Justice's motion to dismiss the Adams case. I'm personally looking forward to the overhated rhetoric Clement is inevitably going to throw DOJ's way. Once again, we are compelled to ask, are the men's okay? It seems like we have come back to the beginning of the episode.

• 1:18:58Melissa Murray?

  I mean, they should be okay. They're getting everything they want. Like, we're gonna have to, like, show, like, three forms of ID to vote now, and all of them have to match our, can't get married and change your name, like, ladies.

• 1:19:10Leah Litman?

  Just pause there.

• 1:19:13Melissa Murray?

  I mean, that's never gonna pass the Senate. But still, the fact that it passed the House was, like, fucking crazy, anyway.

• 1:19:18Leah Litman?

  Well, even if it doesn't pass Congress, apparently, the president can just do it, right? Since he possesses not only the executive power, but also the legislative.

• 1:19:25Melissa Murray?

  And it would be good for protecting the women to not allow them to vote, like, to expose them to the harshness of the ballot box.

• 1:19:33Leah Litman?

  Yeah.

• 1:19:33Melissa Murray?

  See, we're just giving them ideas.

• 1:19:34Kate Shaw?

  We're like 90 days out from that, guys.

• 1:19:37Leah Litman?

  Stop manifesting this, Melissa.

• 1:19:39Melissa Murray?

  You all manifested some real dark shit earlier, so, huh.

• 1:19:42Leah Litman?

  Well, that's a warning to you.

• 1:19:45Melissa Murray?

  Okay. Before we close, a little light housekeeping, as it were.

• 1:19:50Kate Shaw?

  As Black History Month comes to a close, Vote Save America is continuing its commitment to progress by supporting Black-led organizations and candidates of color through our Anxiety Relief Program. One candidate is Kimberly Pope Adams, who is running for a Virginia State House seat this year, a critical opportunity to expand the Democrats' slim one-vote majority in that House. Your recurring donation in any amount helps build progressive power for 2025 and beyond. You can make an impact at votem America dot com slash donate. Paid for by Vote Save America, votem America dot com, not authorized by any candidate or candidate's committee.

• 1:20:26Melissa 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 Heathcode 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.

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