Will the Courts Let Trump End Birthright Citizenship?

May is supposed to be the calm before June’s opinion storm in SCOTUS-land, but not in Trump’s America. Melissa, Kate, and Leah kick off the show with the latest news, including Stephen Miller’s habeas suspension fantasies and the president’s blatant disregard of the emoluments clause when it comes to free jumbo jets. Then, the hosts are joined by professor Elora Mukherjee of Columbia Law School to break down last week’s oral arguments in the Court’s blockbuster birthright citizenship case. Hosts’ favorite things: Kate: Second Life: Having a Child in the Digital Ag https://bookshop.org/p/books/second-life-having-a-child-in-the-digital-age/22134304?ean=9780385549745&next=t&gad_source=1&gad_campaignid=16243514117&gbraid=0AAAAACfld41oGkw59PpIEF0slIJ5sciW-&gclid=Cj0KCQjwxJvBBhDuARIsAGUgNfic1Bdml7YgEcJ4bO5saKYHU8ridyNsfbUuAOx6Zw8JnJAqvsMQlF4aAhZAEALw_wcBe, Amanda Hess; Harvard Paid $27 for a Copy of Magna Carta. Surprise! It’s an Original https://www.nytimes.com/2025/05/15/world/europe/harvard-magna-carta-original.html, Stephen Castle (NYT) Leah: My Friends https://bookshop.org/p/books/my-friends-fredrik-backman/21705668?ean=9781982112820&utm_source=google&utm_medium=cpc&utm_campaign=22224636854&utm_term=&utm_content=732867847907&utm_source=google&utm_medium=paid_search&utm_campaign=bookshop_dsa_sands&utm_term=&utm_content=176349376953&utm_page=%7Blpurlpath%7D&gclid=Cj0KCQjwxJvBBhDuARIsAGUgNfhUXvVFZ9DhmkqsywngwnheW3ZHM2vRfNTZm2yUB9lFMEI_Sn7hsM8aAo4KEALw_wcB&gad_source=1&gad_campaignid=22224636854&gbraid=0AAAAACfld40Zqaf5dyfvlze5Ev7fKDz32, Fredrik Backman; Senator Sheldon Whitehouse on All Rise News https://www.allrisenews.com/p/sheldon-whitehouse-interview; Melissa: Weight Watchers Got One Thing Very Right https://www.nytimes.com/2025/05/15/opinion/weight-watchers-bankrupt-dieting.html, Jennifer Rubin (NYT); This Is Big: How the Founder of Weight Watchers Changed the World -- And Me https://bookshop.org/p/books/this-is-big-how-the-founder-of-weight-watchers-changed-the-world-and-me-marisa-meltzer/14179824?ean=9780316413985&next=t&affiliate=368, Marisa Meltzer; Forever https://www.netflix.com/title/81418639 (Netflix) 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.

• 0:01Leah Litman?

  Strict scrutiny is brought to you by Americans United for separation of church and state. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right. Religious public schools at the Supreme Court in a case we've discussed on the podcast. If you're listening to us, you're seeing the writing on the wall. We can, we must, fight back.

• 0:46Leah Litman?

  Join Americans United for separation of church and state and their growing movement, because church-state separation protects us all. Learn more and get involved at au.org/crooked.

• 0:58Speaker 01

  Let's just assume you're dead wrong.

• 1:03Speaker 01

  Let's just assume. Let's just assume you're dead wrong.

• 1:09Speaker 01

  You're dead wrong.

• 1:13Speaker 01

  Dead wrong.

• 1:15Melissa Murray?

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

• 1:23Kate Shaw?

  And I'm Kate Shaw. Now, May is normally a relatively quiet month on the Supreme Court beat. The terms, arguments are done, and the justices haven't started cranking out the big decisions yet. But of course, nothing is quiet in this timeline. The court scheduled an unusual May argument over the administration's executive order purporting to end birthright citizenship. And of course, the Trump administration is continuing, I would say even ratcheting up, its assault on the Constitution. Suffice to say, we have another jam-packed show for you.

• 1:51Melissa Murray?

  So here's how it'll go. We will first start with breaking news, including some of the aforementioned constitutional assaults. We will then break down the birthright citizenship argument with a very special guest, Columbia Law School's Alora Mukherjee. And we will then end with some court culture, including a very disturbing voting rights decision out of the Eighth Circuit. Fifth Circuit, watch out, the Eighth Circuit is coming for you.

• 2:16Leah Litman?

  Hold my beer. But first up is breaking news, and this week was a doozy. I think we really struggled with whether to start this segment with Stephen Miller casually floating suspending the writ of habeas corpus, the Qatari jumbo jet slash Trojan horse, and the emoluments clause, Secretary Barr carcass committing to revisiting the safety of the drug Mifepristone, or the under the radar but hugely important attempted Trump takeover of the Library of Congress and copyright office. Each of them could occupy us for a good portion of the show, so we're just going to have to bring you the highlights. And because I'm me, we're going to start with Stephen Miller on habeas suspension.

• 2:56Melissa Murray?

  Okay, Stephen Miller, he of the many controversial nicknames, but zero law degrees, thinks that maybe the President of the United States can, and that the President of the United States, or at least this President of the United States, definitely should suspend the writ of habeas corpus.

• 3:13Kate Shaw?

  In a move our friend Steve Lattick described as, quote, "factually and legally nuts," a phrase that could also describe Stephen Miller, said Stephen Miller sauntered before the cameras last week and just casually announced that the administration was considering suspending the writ of habeas corpus. Here is what he had to say.

• 3:33Speaker 04

  Well, the Constitution is clear, and that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So I would say that's an option we're actively looking at.

• 3:45Leah Litman?

  I like the idea of him vamping for the cameras on the suspension of habeas. That was...

• 3:52Kate Shaw?

  That's basically what happened.

• 3:53Leah Litman?

  Yeah. So even for an administration that plays fast and loose with the Constitution... This is just a whole new level of nutso. So the Constitution frames the language Miller was paraphrasing in the negative as a restriction, making clear that the writ is presumptively available and that it may only be suspended, quote, "when in cases of rebellion or invasion, the public safety may require it," end quote. It's clear there is no rebellion or invasion. It's also clear the public safety doesn't require it, given that Stephen Miller is basically saying because courts are ruling against us as we attempt to deport people on the basis of op-eds, we'd like not to have habeas at all. So on top of that, it's also broadly

• 4:37Leah Litman?

  understood that it is Congress, not the president, that can suspend if those requirements are satisfied.

• 4:43Melissa Murray?

  Can I stop you there? I have a question. What is a Congress and where can I get one?

• 4:48Leah Litman?

  Um, you know, I'm in DC right now. I'll go looking for you.

• 4:53Melissa Murray?

  Is there one there?

• 4:53Leah Litman?

  I'll go looking for you.

• 4:55Melissa Murray?

  Go to Walgreens and see if you find a Congress for me. And if I could get it on Amazon, maybe Jeff Bezos has a Congress for me.

• 5:02Leah Litman?

  Or DoorDash, Uber Eats. I don't know. I'll do some clicking later.

• 5:06Melissa Murray?

  Okay.

• 5:06Leah Litman?

  Um, so, you know, it is broadly understood, as I was saying, that it's Congress, not the president. You know, this alleged entity, Congress, that's more of an abstract entity that can suspend if those requirements-

• 5:19Melissa Murray?

  A concept.

• 5:20Leah Litman?

  Right, an abstract concept. The counter example that's often referenced is Lincoln's suspension of the writ at the outset of the Civil War, but there, Congress wasn't in session. And it's an outlier situation that is easily distinguishable from the present moment in at least 1,000 different ways. So had I been in front of the cameras when Stephen Miller was vamping about the suspension, I would have said, "Assume you're dead wrong, guy."

• 5:46Kate Shaw?

  That'll make more sense later in the episode.

• 5:50Melissa Murray?

  I think we ought to make that an EDM dance track.

• 5:54Leah Litman?

  Oh, yeah.

• 5:54Melissa Murray?

  Assume you're dead wrong.

• 5:55Kate Shaw?

  Remember, we got a beautiful-

• 5:58Melissa Murray?

  I know.

• 5:59Kate Shaw?

  -beat to FERC, to Justice Kavanaugh saying, "FERC."

• 6:03Leah Litman?

  Yeah, okay. So we should have explained that for our new listeners. There was this moment where Justice Kavanaugh was just listing agencies during an argument and

• 6:11Kate Shaw?

  He entered a fugue state and started naming agencies. It was amazing.

• 6:15Leah Litman?

  He just, in his Kavanaugh-esque weird voice said-

• 6:19Melissa Murray?

  His penchant for bullet point knows no bounds.

• 6:24Leah Litman?

  FERC, which is the Federal Energy Regulatory Commission. And so we invited our listeners to make a remix of this, and one of them did so. And it's one of our favorite jams. No joke.

• 6:35Melissa Murray?

  FERC bitch.

• 6:36Leah Litman?

  Exactly.

• 6:37Kate Shaw?

  Anyway, so maybe assume you're dead wrong. If anyone wants to pick up the mantle and assume you're dead wrong, we would welcome.

• 6:45Melissa Murray?

  If it's great, maybe we'll play it at a live show. I don't know. Anything could happen.

• 6:50Kate Shaw?

  So, the writ of habeas corpus, for people not super steeped in it, is a critical component of our understanding of the rule of law. The Supreme Court has described the writ as "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action." Now, I do want to sound something of a cautionary note by saying that this valorization of the writ, the great writ, actually might overlook some aspects of the writ's more complicated history. This is a complicated and also racialized history that I mostly know about because Leah wrote a great Law Review article about it called "The Myth of the Great Writ" in volume 100 of the Texas Law Review a few years ago. So if you want to know more, and kind of a more complicated story about the great writ, pick that up. But regardless of how the writ has

• 7:32Kate Shaw?

  been used or misused on occasion in the past, no one has ever suggested what Miller is suggesting now, which is that the writ is available purely at the discretion of the president. Someone get this guy a copy of the Magna Carta pronto.

• 7:45Leah Litman?

  To be clear, let's track the Overton window to be on the cutting edge of the conservative/maga legal movement. It's no longer enough to want to roll back the civil rights movement, or the New Deal, or I don't know, the founding, or even to go back to the 1600s. Now MAGA means pre-Magna Carta.

• 8:03Melissa Murray?

  MAGA Carta.

• 8:04Leah Litman?

  Yeah.

• 8:05Melissa Murray?

  Yes. Okay. All right. Let's leave Stephen Miller. No nicknames for all of you sensitive souls in the back with Teutonic inclinations. Let's talk about gifts, or griffs, as it were. Kate, I meant to ask you, did you get any terrific presents for Mother's Day?

• 8:26Kate Shaw?

  No jets, Melissa, no jets.

• 8:27Leah Litman?

  Stevie made me a picture with her paw prints on it as flowers. I loved it.

• 8:34Melissa Murray?

  Cole? Yeah, okay, I'm just looking at Cole meaningfully. Yeah, Cole gave me nothing either.

• 8:40Kate Shaw?

  I got, I got a bouquet of flowers. I got some homemade art. It was low key, but it was lovely.

• 8:44Melissa Murray?

  But no jets. Am I right? No jets. That's right, because a jet is not a gift, people. So let's get into this. Are jets gifts or are they griffs? I think you know where we come down on this. As the New York Times has reported, the president, Donald Trump, thinks that Air Force One is pretty mid. And by mid, I mean, it is not a state of the art luxury jet. And he hates it so much that in his first term, he actually negotiated a new contract with Boeing to replace Air Force One with something more modern and luxurious, something befitting a bigly president. But as many of you know, Boeing has had some manufacturing and production issues.

• 9:29Melissa Murray?

  And so it is behind on the contract, which means that in this second administration, President Trump still has to use the mid Air Force One, which, as we've said, is nice, but not necessarily luxurious. Enter Qatar. Qatar is the Middle Eastern country that has offered the president a brand new luxury jet for use as Air Force One, effective immediately. Hmm. A free luxury jet from a random country. Where have I heard this before? I remember the Iliad, where a random country offered the citizens of Troy a free wooden horse, and they took it into their city walls happily as a sacrificial gift,

• 10:15Melissa Murray?

  and then chaos ensued. Again, this is literally where Cassandra comes in, and here we are.

• 10:21Leah Litman?

  What could go wrong? Do you think Clarence Thomas saw this news, looked at Harlan Crowe and was like, "You gotta up your game, my guy. I need my own PJ." Tired emotional support billionaires, wired emotional support Emirates. Oh, he's gotta up the ante. Keep upping your game, fellas. Can't stop, won't stop. So even setting aside the obvious national security issues with taking a whole ass jet from another country, the Constitution's language on this is pretty clear. Here's what the Foreign Emoluments Clause of the Constitution, one of the two separate provisions forbidding government officials from accepting emoluments, has to say, quote, "No title of nobility shall be granted by the United States, and no person holding any office of profit or

• 11:05Leah Litman?

  trust under them shall, without the consent of the Congress," side note, what's that? "Except of any present emolument, office, or title of any kind, whatever, from any king, prince, or foreign state," end quote. But what's a little clear constitutional language between friends, especially royals and aspiring royals, as we all know and established at our live show at Fordham, constitutions are for cucks or commoners? Commoners.

• 11:36Kate Shaw?

  So here is the truly, I think, delicious kicker for this whole story, which is something that Forbes broke late last week. So this lavish jet is just like a scandalous story standing alone, but it somehow gets better, which is that it actually turns out that this jet is something the Qataris have been trying to unload for some time. They tried to sell it in 2020 and haven't been able to find a buyer. So it's not actually state of the art. One aviation expert told Forbes, quote, "Qatar, like many modern states, is shifting toward leaner, more versatile aircraft, which offer better economics and more discreet presence for official travel." Giving the plane, I'm continuing to quote the article,

• 12:18Kate Shaw?

  "Giving the plane to Trump would be a, quote, 'creative disposal strategy' that marks, quote, 'a farewell to a bygone model of geopolitical theater in the skies.'" One more, quote, "Giving it away could save Qatar's rulers a big chunk of change on maintenance and storage costs. Making Trump happy would be an added bonus." It is literally like the leftovers of the Qatari government.

• 12:41Leah Litman?

  It's regifting. It is regifting. It's like... I love it. Like, what is the US presidency for but to unload unwanted jets?

• 12:50Melissa Murray?

  A white elephant sale, literally.

• 12:52Leah Litman?

  Yeah.

• 12:53Kate Shaw?

  It's just, it's so trash. It's so trash. I love it so much. Um, yeah.

• 12:59Leah Litman?

  Given that this jet is maybe going to become the new, I don't know, Air Force One, we wanted to think about some names to workshop to refer to it. Something one of our friend of the pod subscribers wrote into the Discord is Marie Antoinette Jet? I don't know. I kind of like that.

• 13:20Melissa Murray?

  Antoinette Jet?

• 13:20Leah Litman?

  Yeah.

• 13:21Melissa Murray?

  I like that one. Marie Antoinette Jet.

• 13:22Leah Litman?

  Another one, Qatar Lumentz, right? Like a monuments, little, I don't know.

• 13:28Melissa Murray?

  You gotta work harder on that.

• 13:29Leah Litman?

  Okay, the pronunciation, I don't think it was great or perfect. Hand me down Force One, another possibility.

• 13:36Melissa Murray?

  How about Fair Force One?

• 13:38Leah Litman?

  We're still working on it.

• 13:40Kate Shaw?

  Fair Force One.

• 13:40Melissa Murray?

  So much time for this. So much. We've got plenty of time to get into this.

• 13:45Kate Shaw?

  I do think that the public outcry has been more forceful than I necessarily would have expected in this timeline where it feels like they're just smashing through so many norms, people can get inured to it. And I think the fact that it turns out it's kind of like a dumping operation as opposed to like a buttering up operation, might that news might...

• 14:01Leah Litman?

  It can be both.

• 14:01Kate Shaw?

  Why not both, I suppose? Anyway, I'm not willing to concede this is a done deal, but it probably is, and so we will have opportunities to workshop this.

• 14:08Melissa Murray?

  I mean, like, didn't Mike Johnson basically say that Congress has no role to play here?

• 14:13Leah Litman?

  Yeah.

• 14:14Kate Shaw?

  Well, I don't think Congress is going to stop it, but I'm not willing to rule out the possibility that the public pushback won't. In any event.

• 14:20Melissa Murray?

  Well, I have a jet I could sell you.

• 14:23Kate Shaw?

  Or just hand me off as a friend. No strings at head.

• 14:27Melissa Murray?

  No strings.

• 14:28Kate Shaw?

  Next piece of news we wanted to highlight is some developments regarding RFK Jr. and the Department of Health and Human Services and Mifepristone. So we've had a couple of developments regarding specifically Mifepristone, one of the drugs in common use for terminating early pregnancies. So listeners, you may recall that on our last episode, we noted that although the administration had moved to dismiss a challenge to Mifepristone brought by a group of red states, we were not actually breathing easy because we were worried that the administration was choosing to hold its fire in court only, or at least in part, so that it could focus on ending access to Mifepristone via the FDA rather than in the courts. And one of the reasons that we were increasingly nervous about this was

• 15:10Kate Shaw?

  because a conservative organization, the Ethics and Public Policy Center, issued a scare quotes "report" last week purporting to raise safety concerns about medication abortion.

• 15:21Melissa Murray?

  Well, honey, since this is just the early days of what the West Village girlies are calling hot Cassandra summer, that report has now jumped the species barrier from the world of think tanks to the aforementioned Congress, which has magically reconvened in order to discuss said report, as well as in the executive branch. Specifically, during a hearing last week at which Secretary Whale Juice testified, our least favorite senator and most reviled author, Josh Hawley of Missouri, brought up this scare quotes "study."

• 15:58Speaker 05

  You and I have talked before, when you've been before this committee, and you and I have talked in person a number of times about Mifepristone. I just want to follow up with you because since the last time you were before the committee and the last time you and I spoke, there's been a major study by the Ethics and Public Policy Center of 865,727 prescribed cases of Mifepristone abortions, chemical abortions, between 2017 and 2023. Have you seen this study? Are you familiar with this? Yes, I am. You previously testified at the committee that you would do a top to bottom review of Mifepristone. Mifepristone is subject to ARIMS currently. You have said you'll do a top to bottom review. Do you continue to stand by that? And don't you think that this new data shows that the need to do a review is in fact very pressing?

• 16:42Speaker 06

  I think the new data, first of all, it validates the CAS study, which is previously probably the most comprehensive data that we've seen on it. And it is alarming. And clearly, it indicates that, at very least, the label should be changed.

• 17:03Speaker 05

  You say that it probably indicates the label needs to be changed. Do you think it's also important as part of your review to consider whether it's necessary now to put back in place the longstanding safety protocols that always accompanied methoprostone until the last administration? In-person dispensing, doctor visits, screening for ectopic pregnancies?

• 17:22Speaker 06

  I know that Marty McCary will make a recommendation. I feel that the policy changes will ultimately go through the White House, through President Trump.

• 17:34Speaker 05

  But you'll make a recommendation based on the data?

• 17:37Speaker 06

  Yes.

• 17:38Speaker 05

  Good.

• 17:39Melissa Murray?

  To remind you of what we said last week about this "study," this is not a "study" that anyone should be relying on for policy change. It is not peer-reviewed. It is not published in a medical journal. There are lots of things that we could critique about its methodology, but why should we do the work? The folks who are touting it are already dismantling its methodology. Christina Francis, who is the head of the American Association of Pro-Life OB-GYNs, warned her colleagues not to misrepresent the paper, acknowledging that the "report" was "not a study in the traditional sense" and "not conclusive proof of anything." That seems damning.

• 18:21Leah Litman?

  But that's not enough to stop manhood's great defender from pressing Kennedy to say the study is alarming, that it may require not just a label change, but perhaps a total change in safety protocols. Note that Josh Hawley's wife, Erin Hawley, who barely merited a mention in manhood because reasons, was one of the lawyers who argued Hippocratic Alliance or Alliance for Hippocratic Medicine versus FDA before the court. That was, of course, the challenge to medication abortion. He also says that although he, Kennedy, will make a recommendation about abortion pill restrictions, the decision, quote, "will ultimately go through the White House through President Trump," end quote.

• 19:04Leah Litman?

  This is encouraging that apparently Donald Trump is making decisions rather than just outsourcing them to any other individual who might have some responsibility. So we're going in on the unitary executive theory again. And yet I don't think that's what Congress provided for in the Food, Drug and Cosmetics Act. But obviously, these guys think that Article 2 allows them to do whatever the fuck they want, all of this and more. So this is a very scary signal about where the administration may be going with medication abortion.

• 19:34Kate Shaw?

  And in case they really do try to implement this change, to either change or even eliminate the availability of Mifepristone, I want to flag something that I've heard from some folks in medicine that they think is important to elevate, which is that definitely these attacks on Mifepristone are outrageous. As we've just been discussing, this pseudo-report doesn't remotely suggest that Mifepristone is unsafe. It's super safe and it's super effective. But that might not stop them from trying to eliminate its availability. So it's important to remember that Mifepristone is one of two drugs used to terminate early pregnancy. The normal regimen right now is Mifepristone and misoprostal. And miso, as people refer to the second drug, is effective at terminating early pregnancies even without Mifepristone.

• 20:17Kate Shaw?

  And whatever happens with Mifepristone should not affect that.

• 20:21Leah Litman?

  And one of the reasons why whatever happens with Mifepristone will likely not impact the availability of misoprostal is because misoprostal is indicated for other kinds of conditions. For examples, it's used to treat ulcers. But I want to just sort of sound a word of caution.

• 20:36Melissa Murray?

  The fact that misoprostal might still be available even if the accessibility of mifepristone is more curtailed should not mean that we don't fight for full access to mifepristone because one of the things that is, I think, you know, a deterrent to the prescription of misoprostal alone is that it can cause serious reactions like cramping, which may deter some people from using it as a method for terminating early pregnancy. So the ideal protocol would be to use both drugs, and I think a number of physicians worry that if people think misoprostal is available, they won't fight for mifepristone, and then there will be a world in which some people are deterred from just the misoprostal alone protocol because of these side effects.

• 21:17Leah Litman?

  It's all about upping women's pain and suffering. That is the through line. So, yeah, as we talked about in our last episode, on May 9th, Trump fired the head of the Library of Congress, Dr. Carla Hayden. Dr. Hayden was the first woman and first black head librarian, and of course, that was just intolerable to the Trump administration. As J.D. Vance had previously indicated, it's just really hard to, you know, have to go to work and work alongside, you know, women and people of color. They just bring down the vibes really hard.

• 21:49Kate Shaw?

  So, the unceremonious termination of the amazing Dr. Hayden happened a week ago Friday. Then, over the course of that next weekend, I don't know about you guys, but I started getting messages from friends in both kind of library world and a little bit in Congress, basically indicating that this was a kind of five-alarm fire, and also that Doge was reportedly on its way to the Library of Congress, planning to fire everyone and lock the building down.

• 22:14Melissa Murray?

  But they don't know where libraries are, so that...

• 22:17Kate Shaw?

  Or what books are, so that's... so they're still trying.

• 22:20Melissa Murray?

  What is this room?

• 22:21Kate Shaw?

  The lockdown hasn't yet materialized. It's actually kind of true, and maybe that is why. But in any event, so the Library of Congress has always been understood to be a nonpartisan institution, right? Like, until now, libraries, information, literacy have not been understood as partisan, even when other parts of the federal government, the EPA, for example, have been. Library of Congress never was. It is also the case that, as librarians... Librarians will tell you the Library of Congress is just a critical custodian of the nation's memory and history. So I know from Penn Library's terrific head Amanda Brunyan, who I asked some questions about the Library of Congress, that it holds the sole copy of numerous significant pieces of the cultural and scholarly record. So here's a non exhaustive

• 23:06Kate Shaw?

  list. The Library of Congress has the original rough draft of the Declaration of Independence. It has Jefferson's draft of the Virginia Constitution, Madison's copy of the proposed Bill of Rights, the first draft of the Emancipation Proclamation, the first draft of the Gettysburg Address. The list goes on and on, especially with those last two, you truly shudder to think what Stephen Miller would do with them if he got his hands on them. The Library of Congress also provides substantial support to Congress, again, you know, when they are around doing things. And it has components that include the Congressional Research Service and the Copyright Office, in addition to all the kind of stewardship of the nation's scholarly and cultural history.

• 23:44Melissa Murray?

  All right. So the weekend after Dr. Hayden was fired, the White House announced that it was also firing the head of the Copyright Office, the Register of Copyrights, which is part of the Library of Congress. The Copyright Office has been around since 1897, so we have a history and tradition of it. It's in many ways a legislative office that serves some executive functions. And it may not be a coincidence that the firing of the head of the Copyright Office happened right on the heels of, wait for it, a major report on artificial intelligence that the Copyright Office issued. And while the report was pretty nuanced, it came down broadly

• 24:23Melissa Murray?

  on the side of the rights of copyright holders, AKA, humans. And thus, big AI wasn't too thrilled with it. Pause it. Is that the catalyst for the White House's removal of the head of the Copyright Office, Shira Perlmutter? Is that what prompted this? Hmm.

• 24:42Leah Litman?

  Yes, because AI are the only friends that Stephen Miller and JD Vance could possibly make. So they would be very lonely without it. So if that wasn't super sus, last Monday, the White House announced that the president was naming Todd Blanch, the Deputy Attorney General, as the acting librarian, because every MAGA yes man needs to hold at least two positions, be it Ed Martin, Russell Vought, Marco Rubio. I think it speaks to how hard it is to get people to do this awful work. But to be clear, this would place a key MAGA loyalist in charge of not only the collections, but also pretty sensitive information and activities having to do with Congress, like the Congressional Research Service or the HR records of congressional members.

• 25:24Leah Litman?

  But it sounds from reporting as though staff members initially and maybe still have refused access to two department officials Blanch chose for the key roles. And as of this recording, so far, the Library of Congress may be winning this standoff?

• 25:39Kate Shaw?

  It's hard to know for sure, but that does seem like maybe that's what's happening on the ground. So if that's right, then one key takeaway is do not fuck with librarians.

• 25:50Melissa Murray?

  I just can imagine the librarians holding up books in front of Doge and they're like, "Stop, stop." Like they're like literally silver crosses or like sheaves of garlic.

• 26:00Kate Shaw?

  Yes, oh my God, it's amazing.

• 26:01Melissa Murray?

  They're like literally being repelled by knowledge.

• 26:04Leah Litman?

  This is why these bulls are banning books and coming after libraries. They know they can't handle them.

• 26:10Kate Shaw?

  Yeah.

• 26:11Melissa Murray?

  You can't handle the truth.

• 26:13Kate Shaw?

  It also is a case that in any normal timeline, a functioning Congress would, even if it couldn't be stir itself to protect independent agencies and, you know, the statutes that it passed, it would care about parts of the Library of Congress. So as we said, this is kind of a unique and sui generis kind of an entity. Whether these entities are properly conceived of as legislative or executive, they definitely do a ton of work for Congress. They have a ton of non-public information that you would think that Congress would not want big balls getting his hands on.

• 26:46Melissa Murray?

  Or anything else.

• 26:48Kate Shaw?

  Or anything else. So if anyone at the Library of Congress or the Copyright Office is willing to talk to us, we would love to know more about what is going on inside there. And if not, you know, may God be with you.

• 26:58Melissa Murray?

  Seriously.

• 26:59Leah Litman?

  Let's shift to the third branch, the least dangerous branch. Insert laugh track here. We got one opinion from the court this week in a case called Barnes versus Felix, in which a unanimous court rejected the Fifth Circuit's moment of threat rule in Fourth Amendment cases. Under the Fifth Circuit's rule, which applied in cases involving Fourth Amendment challenges to the use of deadly force, courts could look just to the moment at which an officer perceived a threat. In this instance, the moment that led the officer to shoot and kill the petitioner, rather than considering all relevant circumstances. In this case, that moment of threat rule led the lower court to conclude that the case against the officer had to be dismissed

• 27:41Leah Litman?

  because in the moment of the use of force, or the two seconds before it, it was reasonable for the officer, who was standing on the door sill of a moving car, to discharge his weapon into the car.

• 27:53Kate Shaw?

  But in its unanimous opinion, the court suggested that it also matters how the officer came to be standing on that door sill, shooting down into the car. And it remanded the case back to the lower court for it to conduct the Fourth Amendment reasonableness analysis without applying this mistaken moment of threat rule.

• 28:10Leah Litman?

  Justice Kagan wrote the majority opinion, a tight nine-pager. Because we are, as ever, in the worst of timelines, there was, as ever, a cav currents in which Justices Alito, Thomas, and Barrett joined. In that cav currents, Justice Kavanaugh weighed in to remind America that, one, he is a nice guy despite what you may have heard, and, two, that as a nice guy, he's concerned about the dangers that traffic stops pose to police officers, and he definitely backs the blue. Mercifully, there were no bullet points in this opinion, though there was a list, because of course there was.

• 28:47Leah Litman?

  Strict scrutiny is brought to you by bookshop.org. You know we love to read the justices and books. That's why we've incorporated our favorite things we've read or seen as a final segment in our shows. There are so many wonderful books I could recommend. So I'm just going to go through some of my recent favorites and some of the ones I'm most looking forward to. There's the Rexford and Sloan Regency Mystery Series. That's my go-to book whenever I'm traveling. They're so engrossing, I almost forget I'm on a plane. Almost. There's also Little Bosses Everywhere by Bridget Reed. It's on multi-level marketing and was a fascinating read.

• 29:24Leah Litman?

  These are the ones I cannot wait for. One is "These Summer Storms" by Sarah McLean. Full disclosure, I already read an advance copy, but I can't wait to get my real hard copy. It's that good. And second, "How to Lose Your Mother: A Daughter's Memoir" by Molly Jong Fast. So whether you're searching for an incisive history that helps you make sense of this moment, a novel that sweeps you away, or the perfect gift for a loved one, bookshop.org has you covered. And when you purchase from bookshop.org, you're supporting more than 2,000 local, independent bookstores across the country, ensuring they'll continue to foster culture, curiosity, and a love of reading for generations to come. As someone who grew up basically hanging out at my local independent bookstore, Wild Rumpus, not only did they have books, they had cats.

• 30:08Leah Litman?

  I love supporting local independent bookstores. And, big news, bookshop.org has launched an ebook app, so you can now support local independent bookstores even when you read digitally. Use code STRICT24 to get 10% off your next order at bookshop.org. That's code STRICT24 at bookshop.org.

• 30:29Speaker 07

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

• 31:05Melissa Murray?

  We are now going to shift gears to discuss the oral argument that was heard last Thursday in Trump versus Casa, which is actually three consolidated cases all about the president's executive order purporting to end birthright citizenship. But although that was the substance of the underlying EO, this oral argument seemed to be more immediately about a narrower question. Specifically, that question was whether the judiciary has the power to stop the administration from implementing this executive order through the use of what is known as the nationwide injunction. So in order to get a full briefing on what happened here, we have brought in

• 31:44Melissa Murray?

  an absolutely fantastic guest. We are delighted to be joined by Alora Mercurje, a professor at Columbia Law School and the director of Columbia's Immigrants Rights Clinic. She also serves on the board of the Asylum Seeker Advocacy Project, which is one of the plaintiff organizations that challenged the birthright citizenship EO. Alora, welcome to Strict Scrutiny.

• 32:06Speaker 08

  Thank you so much for having me, Melissa. It's great to see you and Kate and Leah.

• 32:10Kate Shaw?

  Well, Alora, we're so happy to have you with us. And maybe let's start by asking you to remind our listeners of what exactly the executive order at issue in this case purports to do.

• 32:18Speaker 08

  On January 20th, President Trump signed an executive order that purports to end birthright citizenship in the United States. It would make the babies born to those who are not US citizens and those who are not lawful permanent residents not citizens of the United States. It purports through the stroke of the president's signature to overturn the principles underlying the 14th Amendment of the US Constitution and render potentially many, many thousands of babies stateless.

• 32:53Melissa Murray?

  That's what this executive order purports to do. And the challengers in this case included immigrants' rights organizations like CASA and Asylum Seekers Advocacy Project, as well as a number of states. Alora, can you go through the key merits arguments that you and the other litigants were making in this case?

• 33:12Speaker 08

  The people who are challenging the executive order and the states and organizations challenging the executive order say that the executive order is blatantly unconstitutional, that it is flatly at odds with the 14th Amendment, which enshrined birthright citizenship into the Constitution. The executive order is also at odds with more than a century of Supreme Court precedent, going back to Wong Kim Ark from before the 1900s, when it was held that a person born on US soil is a US citizen, regardless of the

• 33:48Speaker 08

  Citizenship status of their parents. That principle of birthright citizenship has been reaffirmed in multiple Supreme Court cases. It has also been codified through legislation by Congress twice, both in 1940 and then again in 1952. In addition to the Constitution itself, as well as the case law and the legislation on this point, there's also decades and decades of executive branch practice, all of which relies on the basic, simple, clear idea that all people born on U.S. soil are U.S. citizens.

• 34:27Leah Litman?

  It's almost like there's a history and tradition of recognizing birthright citizenship.

• 34:32Speaker 08

  Absolutely. Absolutely. This idea of birthright citizenship has never been challenged until now in any serious way.

• 34:42Leah Litman?

  So it seemed clear from the arguments that a good portion of the court agrees with you all on the merits. Throughout the argument, Justice Kagan made clear just how right you are. So let's take a listen to some Elena Kagan greatest hits.

• 34:58Speaker 01

  Let's just assume you're dead wrong. The assumption that I want you to make is that on the merits, which of course you did not take to this court, on the merits, you are wrong, that the EO is unlawful. You're ignoring the import of my question. I'm suggesting that in a case in which the government is losing constantly, there's nobody else who's going to appeal, they're winning, it's up to you to decide whether to take this case to us. If I were in your shoes, there is no way I'd approach the Supreme Court with this case. So you just keep on losing in the lower courts, and what's supposed to happen to prevent that? Yeah, and then, and then they win, and again.

• 35:41Speaker 01

  I mean, you need somebody to lose, but nobody's going to lose in this case.

• 35:46Melissa Murray?

  So Alora, the question of whether or not the executive order is constitutional, and it seems very evident that it is not constitutional, just based on what you've said about this history and tradition and Justice Kagan riffing. There's no question about the substance here. Instead, though, the court seemed to be trained on an entirely different question. So can you give us a sense of what exactly the administration asked the court to decide here?

• 36:11Speaker 08

  Absolutely. So all the lower courts have uniformly ruled that the executive order is blatantly unconstitutional. So that is not the question that the executive branch brought to the Supreme Court, the constitutionality of the executive order. Instead, the executive branch is asking the Supreme Court to rule on the issue of nationwide injunctions. Can one district court judge issue an order that applies to people across the country that would stop the implementation of this executive order in particular and executive actions more generally?

• 36:51Kate Shaw?

  I want to play just a quick clip from Justice Sotomayor, which seemed to me like her trying to like speak MAGA Constitution to like a broader population and say like, if it's not the case that a court can stop super unconstitutional stuff, you might be troubled by what follows in a different presidency. And so let's play that clip here.

• 37:12Speaker 09

  So when a new president orders that because there's so much gun violence going on in the country, and he comes in and he says, I have the right to take away the guns from everyone,

• 37:27Speaker 09

  then people, and he sends out the military to seize everyone's guns. We and the courts have to sit back and wait

• 37:38Speaker 09

  until every named plaintiff gets, or every plaintiff whose gun is taken, comes into court.

• 37:46Melissa Murray?

  She wasn't the only one trying to translate this question into MAGA. Kelsey Corcoran, who argued on behalf of the individual litigants, also noted that there might be cases where the Chamber of Commerce wants a nationwide injunction. Or the NRA. The NRA. She's like, I too am fluent in MAGA. But those were just among the highlights and big moments here. I want to highlight a couple of others, though. As we just discussed, the administration petitioned and the court set the case for this expedited briefing and oral argument outside of its regular calendar because it wanted to address this question regarding the permissibility of nationwide injunctions.

• 38:25Melissa Murray?

  The Solicitor General, John Sauer, who our listeners will recall, was also previously the president's personal lawyer, who argued the immunity case before the court, decided to begin and to end his argument by insisting that despite the Constitution's plain meaning, despite this clear history, and despite the substantial Supreme Court precedent, all confirming that the Constitution explicitly confers birthright citizenship, the president is nonetheless authorized to lawfully issue this executive order. So those were his beats, and he stayed on them remarkably consistently throughout this argument.

• 39:02Kate Shaw?

  As I think about how weak the substantive merits arguments are and how obviously the justices seemed to see that, it kind of boggles my mind that he began by even having the gall to say that the order reflects the original meaning of the 14th Amendment. But he opened his mouth and said that, and he ended with it. And it seemed pretty clear that there was like one person he wanted to hear him make that argument, and that was the president. Because otherwise, there's no reason to say the things that are, I think, only going to alienate the justices. And indeed, throughout the substance of the argument, for those with the attention span to actually listen to the whole thing, of course, the focus was on this claim about the scope of relief, about this argument that lower courts are out of control,

• 39:46Kate Shaw?

  that there are too many nationwide injunctions, that they impede the executive from implementing its will, and basically that the court needed to put a stop to it by ruling that the injunctions in this case, which, as Alora said, have unanimously emanated from courts that concluded that these challenged executive orders were very likely patently unconstitutional, exceeded the bounds of judicial authority.

• 40:08Melissa Murray?

  So Alora, can I ask a question really quick? Do you think he was arguing to an audience of one and just like actually talking past all of you as challengers that this was really about John Sauer arguing Donald Trump to Donald Trump?

• 40:21Speaker 08

  Maybe, it very well could be. It was interesting to listen to the arguments because none of the justices even questioned or tried to defend the constitutionality of the underlying executive order. None of the conservative justices even made any effort to do that because the order is so blatantly unconstitutional. It was also interesting to hear some of the conservative justices raise real questions about how this executive order might be implemented on the ground if a nationwide injunction is not permitted. One of the more interesting exchanges, I thought, was between Justice Kavanaugh and Sauer, when Kavanaugh was asking, how will this be implemented throughout the country?

• 41:05Speaker 08

  And the response from the executive branch was, well, at the hospital, people will need to check the citizenship status or immigration status of the parents who are delivering babies. So it's worth noting that this executive order, if implemented anywhere, would burden not just those who are immigrants, but also those who are US citizens, because every person delivering a baby will need to show what their immigration status is.

• 41:35Leah Litman?

  And that also led to this stunning moment where it seemed like even the federal government didn't really know how this order would be implemented or carried out in the event they were allowed to do so. So let's just play that clip here.

• 41:50Speaker 10

  For all the newborns? Is that how that's gonna work?

• 41:53Speaker 11

  Again, we don't know, because the agencies were never given the opportunity to formulate the guidance.

• 41:59Leah Litman?

  It's like they're going to play trial and error with babies' citizenship. You know, they have a concept of a plan, not an actual plan.

• 42:07Kate Shaw?

  And just to kind of underscore what Alora said, I think it's so important, and this came out in the argument, but just to be really explicit about it, this affects everyone you know who might have a baby if this order goes into effect, because the administration, I wouldn't put it past them to try to set up some scheme in which only people they think might not be citizens are subject to some kind of verification. But I don't know how that could even be workable, even if they would try.

• 42:32Leah Litman?

  Well, I do, I do.

• 42:33Kate Shaw?

  Anyone who, wait, so tell me.

• 42:35Leah Litman?

  Racial profiling, like, hey, brown lady, are you having a baby? I know you're in the throes of labor, but do you have a birth certificate? Do you have a real ID?

• 42:43Kate Shaw?

  Racial linguistic profiling, sure, they could try, but I think it'd be very difficult. And I do think that At least one likely outcome is every single person, you are in labor and the stuff you have to bring to the hospital is not just like your comfy clothes and straws to drink out of and the other stuff you bring to the hospital, but your birth certificate? Like, give me a break. But that is the world that implementing this executive order would bring about basically immediately.

• 43:09Leah Litman?

  So I want to get into more what implementing the order even partially might look like in the event the Supreme Court doesn't just full on deny the application because that's part of what I am watching for and makes me so concerned about this. But let's set the stage for what the court might do on this nationwide injunction question. So going into the argument, there was a lot of reason to be super nervous that the court was going to use this case as an opportunity to deal a death blow to nationwide injunctions. For one thing, anytime the court has taken cases from the shadow or emergency docket and put them on the regular docket, they have always ruled for the applicant. Also, a number of

• 43:53Leah Litman?

  justices on the Supreme Court have been highly critical of nationwide injunctions in some cases. You know, we have also been critical of them, noting that their prospect fuels opportunistic litigation and strategic filing practices. We all know that a lot of the litigation over Biden administration policies was filed in single judge divisions like Amarillo, Texas, where America's top research scientist slash economist slash doer of all things, Matthew Kaczmarek sits.

• 44:22Melissa Murray?

  We've also noted that much of the criticism of nationwide injunctions really paints with a very broad brush. And one of the things I think is worth emphasizing here and was emphasized at the oral argument is that you can draw really important distinctions between the cases that are filed in Judge Matthew Kaczmarek's district and the cases on which he has ruled. And the cases that are at issue here and the underlying issue is the citizenship status and the rights of millions of children born in this country who have an expectation of birthright citizenship that would effectively be rescinded under this clearly unlawful executive

• 45:02Melissa Murray?

  order. Yet, despite those very salient distinctions, there is still something that I think is cross-ideologically unifying and for that reason appealing about criticizing nationwide injunctions. And I think that's why this case is so scary. There's a way in which the administration can lose on the merits here and win, not just in this case, but in a range of future cases by getting nationwide injunctions off the table entirely.

• 45:29Kate Shaw?

  Well, at least in theory, that was possible. And I do think that we all came out of this argument feeling a little bit different about the likelihood. I guess I would say that I thought the argument, though I was very nervous going in for the reasons that Leah just mentioned, I thought the argument created at least the possibility that, and maybe a good possibility, that a majority of justices understand that even if there are very real problems in some cases with the abuse of the nationwide injunction, this is not the case to use to rein in the practice.

• 45:57Melissa Murray?

  I think that's right. But it did seem like a lot of the court was casting about for some kind of limiting principle that would allow them to restrict the use of the nationwide injunction more generally, even if it left them with the prospect of the nationwide injunction as a form of extraordinary relief in cases like this one. And the challengers seemed to be suggesting that you could draw the line at cases implicated in constitutional rights like this one. But I think the trouble with drawing the line in that way is that it's going to be very unlikely that the court provides clear guidance about what those distinctions would be and where those lines could be drawn. And we would be left with, I think, this administration

• 46:40Melissa Murray?

  pushing on what falls in and outside of the nationwide injunction eligibility bucket. And so there are going to be new fights over what rights are significant enough to warrant a nationwide injunction. And so I guess, Alora, one of the questions that I had coming out of this is, I understand the rationale for helping the court find a middle ground here since it seems to be attractive to them. Do you worry, though, that in Drawing these distinctions between cases that going forward, it may be harder to challenge other EOs or other administration policies.

• 47:13Speaker 08

  Yes, that's certainly a possibility that I'm concerned about. But I think this case is very clear. The executive order is blatantly unconstitutional. Multiple justices and all of the litigants before the court at some point conceded that it might be worth doing briefing on the merits or granting cert before judgment in this case. And that seems like the appropriate way forward. This is not the case in which to consider whether a nationwide injunction is appropriate or not. If a nationwide injunction is not permitted in this case, it leaves the question of in what case could it ever be permitted, given how blatantly unconstitutional the executive

• 47:57Speaker 08

  action is here. And so I hope that in the coming days, we will see an order from the court requiring supplemental briefing on the merits question because that is the issue that the court should be dealing with here.

• 48:10Leah Litman?

  Yeah, so I guess I might sound like the turd in the punch bowl here because I want to explain what I heard during the argument. And I was admittedly listening as I was flying into DC and DCA in particular. So I might have just been completely out of my mind, although I think Steve Vladek kind of had the same read as well as Michael Popak and Alex Aronson at Legal AF. So I don't think I'm totally out there. But so I didn't hear five votes for no nationwide injunctions at all. So that was good. I also didn't hear five votes for let's just straight up deny the administration's request to stay the lower court rulings because obviously these nationwide injunctions are

• 48:54Leah Litman?

  perfectly permissible and the district courts were right to order them. So that leaves me with a few different possibilities. One is they partially grant the applications or they grant them and then they send the cases back down to the lower courts to make some additional determinations or findings. Like they tell them, you first have to order class certification before granting this kind of relief. Or you have to consider these additional factors like the strength of the underlying merits or. You know, other kinds of irreparable harm that we wouldn't ordinarily require, but are specifically required for nationwide injunctions.

• 49:35Leah Litman?

  So I can see the Supreme Court eventually saying some kind of nationwide relief is appropriate here, but I don't know that I came out from that argument thinking they are just going to straight up deny the stay application, or at least all of the stay applications. And I worry that that is going to create a period of considerable uncertainty and chaos that I was hoping we could explain. So Laura, could you tell us if the stay applications are just not denied, full stop? And if the Supreme Court doesn't take the route you suggest and order supplemental briefing

• 50:15Leah Litman?

  to consider the merits and instead sends the cases back down to the lower courts to make some set of additional findings before restraining the order so the order goes into effect for some time, maybe in some places? What does that even look like in the administration's view?

• 50:35Speaker 08

  It would be absolutely devastating for families across the country, all families, not just immigrant families. If the executive order is not stayed nationwide and is allowed to go into effect in only some of the states, perhaps dozens of states, then all expecting parents would need to somehow prove their citizenship status when they are delivering. It would pose enormous burdens on hospitals who don't have the legal and technical ability to assess whether or not immigration paperwork gives someone status or not. And if it does give a person status, what kind of status? Is it lawful permanent resident status? Is it US citizenship?

• 51:17Speaker 08

  And then it would also create enormous devastating consequences for babies born during this period of time. If a baby is born in a state where the executive order is enjoined and then crosses state lines to a place like Texas where the executive order is in effect, would the state of Texas recognize that baby's citizenship? What if that baby and their family are arrested and detained and put into removal proceedings? Would that baby have an opportunity to challenge that potential rapid removal from the United States? If so, how? So not only would babies, literally babies, we're talking about newborns here,

• 52:00Speaker 08

  be expected to somehow defend themselves in federal court, enforce their right to US citizenship, and stop their own removals in the face of an executive branch that we have seen in hundreds and hundreds of cases since January 20th, is intent on removing people from the United States as quickly as possible, it would be just a devastating mess, and it would also invite so much more federal litigation on this question. And this came up in the oral argument on Thursday, too. The executive branch was asked, so if a court of appeals, the Second Circuit, issues an opinion finding that the executive order

• 52:43Speaker 08

  is unconstitutional, will the executive branch respect that? And there was no clear answer from the executive branch on that point, which would lead to what Justice Jackson described as a "catch me if you can" regime that is wholly inconsistent with the rule of law.

• 53:02Kate Shaw?

  And we want to get deeper into that question, but first, just on the administrability and kind of chaos point, I want to play a clip from the New Jersey Solicitor General, Jeremy Faganbaum, who was representing the states. So there was Faganbaum for the states, and then Kelsey Corcoran, who Melissa already mentioned, arguing for some of the individuals and organizations. So Faganbaum is essentially, he's explaining why New Jersey should get complete relief in the form of a nationwide injunction, but just kind of illustrating from the state's perspective that the chaos that anything less than nationwide relief would necessarily lead to.

• 53:35Speaker 12

  And that comes to the United States' alternative, Justice Sotomayor, which is they say, okay, maybe their citizenship turns on when they enter New Jersey, maybe for some purposes, maybe for all purposes, depending on which sentence you're looking at in the emergency application. And there are three problems either way. The first is it will undermine the administration of our benefits program. So individuals will move in. When they were born, they were treated as non-citizens. They didn't get social security numbers because they wouldn't have been eligible for the enumeration at birth program in their states. And they're going to arrive and they're going to seek benefits that we administer. But federal law requires that they have social security numbers for the administration of those benefits. This is 7 USC 2025 for SNAP.

• 54:17Speaker 12

  This is 42 USC 1320B7 for TANA, for Medicaid, and so on. So they're going to need to have social security numbers. They're going to arrive without them, even though they were, under this court's precedence, citizens who should have been in the enumeration at birth program, who should have had social security numbers. And it's going to be a burden on us, either in delaying the benefits, training county social service workers, in having to administer benefits without the SSNs on a provisional basis. So that's the administration of the benefits. Let me give an example on participation, which we have responsibility for as well. These are babies who were told that they, their families were told, that the babies are undocumented, they aren't citizens, they're not eligible for these federal programs when they were born. They come into our states, they think they're now ineligible.

• 54:59Speaker 12

  They don't realize their child is a citizen entitled to these federal benefits.

• 55:03Leah Litman?

  So I want to expand on some of the problems with these middle-of-the-road solutions that wouldn't have the court just completely deny the applications, but also wouldn't have them, say, nationwide injunctions are never permissible. So in the event they, again, don't just deny the applications and therefore disturb the temporary restraining orders and preliminary injunctions, absent further findings, there is going to be a question of how long will it take to get this case back up to the United States Supreme Court to resolve the merits? Because any period in which the order goes into effect, as we've made clear, could be real chaotic cruelty.

• 55:46Leah Litman?

  Like, it risks the administration deporting more United States citizen babies. But the Chief Justice had the gall to tell us, "Don't worry."

• 55:56Speaker 13

  Three years, four years. We've been able to move much more expeditiously. I think we did the TikTok case in a month.

• 56:06Melissa Murray?

  I literally just stared in Trump versus United States. Like, sir, are you seriously opening your mouth to say this? Like, what? You can move expeditiously when you want to? Thank you for confirming it.

• 56:21Kate Shaw?

  As Tatiana would say, choices. Completely. I don't even know that reference, but I think, I think I understand it. And I actually, as infuriating as I found that comment, I actually love that he told us as clearly as he did, we go fast when we want to and when we don't go fast.

• 56:38Melissa Murray?

  We've been knew that. We've been knew that.

• 56:41Kate Shaw?

  But he hasn't said it with his mouth. Now he has.

• 56:43Melissa Murray?

  But didn't Donald Trump also say it with his mouth?

• 56:46Kate Shaw?

  Thank you. Yes. I just want to say thank you. I won't forget. I won't forget.

• 56:49Melissa Murray?

  I won't forget.

• 56:50Kate Shaw?

  But Roberts looked like he wanted to melt into the floor and here he just like stood up and said it. So I feel like we learned something. Say it with your whole chest, John.

• 56:58Melissa Murray?

  It's true. At the State of the Union, John Roberts was a little bit like, what happens at Fight Club stays in Fight Club.

• 57:04Kate Shaw?

  No, now we're all, we're all, we're all red in.

• 57:07Melissa Murray?

  The first rule of Fight Club is you don't say what happens there.

• 57:09Kate Shaw?

  This is all Fight Club now, guys.

• 57:11Melissa Murray?

  It's all Fight Club.

• 57:16Leah Litman?

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• 59:16Speaker 14

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3rd, at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:00:01Leah Litman?

  So, okay, I wanted to expand on the problems of if this case doesn't get to the Supreme Court quickly, and instead you have it percolating, which is apparently so great, in the lower courts. What would that look like on the ground? So there's a possibility some court somewhere would deny class certification and therefore be deciding individual cases brought by individual plaintiffs about whether the order is unlawful and they are citizens. And that could matter a lot because the government's apparent position, which, Alora, you were gesturing at before...

• 1:00:37Melissa Murray?

  Is that when it comes to district court orders and Court of Appeals decisions, the government doesn't have to apply those decisions to people other than the plaintiffs, to people not before the court. So this would mean that if a court says, "This US citizen baby who challenged the order is a citizen because the order is illegal," the government's view is they can still apply that illegal order and deny citizenship to other babies, even in that same district or circuit. We've made this point before, but the whole idea of limiting the option for aggregate claims means that individuals will have to bring these claims whether it's in habeas or, in this case, like in individual jurisdictions.

• 1:01:19Melissa Murray?

  And this is all happening at a time when the administration has really reduced the availability of legal resources by going after law firms that had, in the past, provided pro bono assistance to litigants like the ones who might challenge this kind of thing. And public interest outfits are really strapped at this point. So, you know, Alora, one of the things I worried about here is that they're requiring almost individualized claims to be brought at a time where you're just not going to have enough lawyers to meet that need.

• 1:01:48Speaker 08

  Right. They're requiring individualized claims to be brought for an incredibly vulnerable population, for a population that may not have access to a ton of resources, may not have the ability to hire a lawyer, may not speak English, may not understand all of these legal concepts that we're currently debating and discussing right now. And expecting these families to go to court to enforce citizenship is an incredibly difficult burden for them, especially when many of the families will be told at the hospital, correctly or incorrectly, that their child is not a US citizen and doesn't qualify for

• 1:02:30Speaker 08

  certain benefits and privileges that are associated with citizenship.

• 1:02:34Kate Shaw?

  And on the issue of the administration standing in front of the court now and saying, "All this stuff should be routed through the class action device." But then what will they say if, in fact, they prevail? And there is an effort to actually do class certification. They certainly did not disclaim a future position that class certification is improper in most or all of these cases. And I feel like they came actually pretty close at a couple of points, they being the federal government and Sauer arguing for the federal government, to basically saying, yeah, like, we're going to fight you, you know, at the next juncture if we have the chance. So let's play a clip of Sauer talking to Justice Kagan.

• 1:03:11Speaker 01

  Well, you might dispute it. And, you know, I mean, I think the question is, is there a class that's just all children of people who have entered illegally? You know, is that an appropriate class? Can the same thing be done under Rule 23? Or are you going to tell me that, no, Rule 23 has lots of requirements and you'll never be able to certify a class like that?

• 1:03:41Speaker 11

  Rule 23 provides the equitable tools, subject to rigorous criteria, appropriately rigorous criteria, to obtain that kind of class-wide.

• 1:03:51Speaker 01

  That suggests to me you're going to be standing up here in the next case, saying that Rule 23 is inept for this circumstance with this number of people, maybe with some questions that are individual, who knows? So let's put Rule 23 aside, because I got to tell you, that does not fill me with great confidence.

• 1:04:09Leah Litman?

  There were some moments during this argument where Sauer's shortcomings as an advocate became extremely clear, to such a point where I wondered, is it possible he just argued his way to a loss? So there was this exchange with Justice Kagan, and then another one that generated incredulous reactions that we wanted to highlight. So here is the one with Justice Kagan.

• 1:04:36Speaker 11

  I can't say as to this individual case. Generally, our practice is to respect circuit precedent within the circuit, but there are exceptions to that.

• 1:04:43Speaker 01

  Yes, that is generally your practice. And I'm asking whether it would be your practice in this case.

• 1:04:50Speaker 11

  I can't answer it because it would depend on what the lower court decision said. So there are circumstances, as I was suggesting.

• 1:04:55Kate Shaw?

  I actually do want to play the full Barrett clip here because she returns to that exchange, sort of like we've now noted several times, when there's an advocate she is disposed to want to help and she feels they have given an unhelpful answer, she offers them a lifeline.

• 1:05:09Melissa Murray?

  Help me, help you.

• 1:05:11Kate Shaw?

  Exactly. I don't think he took the lifeline as she was hoping he would.

• 1:05:16Speaker 15

  Did I understand you correctly to tell Justice Kagan that the government wanted to reserve its right to maybe not follow a second circuit precedent, say, in New York because you might disagree with the opinion?

• 1:05:28Speaker 11

  Our general practice is to respect those precedents, but there are circumstances when it is not a categorical practice, and that is not just a new policy.

• 1:05:38Speaker 15

  This administration's practice or the longstanding practice of the federal government? And I'm not talking about in the Fourth Circuit, are you going to respect a Second Circuit? I'm talking about within the Second Circuit. And can you say, is that this administration's practice or a longstanding one?

• 1:05:51Speaker 11

  As I understand it, longstanding policy of the Department of Justice, yes, that we generally, as it was phrased to me, generally respect circuit precedent, but not necessarily in every case, and certain examples, some examples might be a situation where we're litigating to try and get that circuit precedent overruled and so forth.

• 1:06:06Speaker 15

  Well, okay, so I'm not, I'm not talking about a situation in which, you know, the Second Circuit has a case from 1955 and you think it's time for it to be challenged. That's not what I'm talking about. I'm talking about in this kind of situation. I'm talking about this week, the Second Circuit holds that the executive order is unconstitutional, and then what do you do the next day or the next week?

• 1:06:26Speaker 11

  Generally, we follow them.

• 1:06:27Speaker 15

  So you're still saying generally?

• 1:06:29Speaker 11

  Yes.

• 1:06:29Melissa Murray?

  I mean, so much merit going on here. I just like this, and the thing is- This is what happens when you appoint toadies to positions. Well, I mean, but even if he is a toady, and even if that was literally the world's worst answer, there were at least two people who were like, yeah, I'm buying what you're selling. And I think you know who those two people were. In any event, Justice Kagan did pin down John Sauer on whether the administration would obey not just judgments, but also opinions of the Supreme Court, and that was a very revealing exchange as well.

• 1:07:03Speaker 01

  So finally, once it gets to us after four years, you're going to respect that?

• 1:07:08Speaker 11

  Yes, and in addition, we may well respect circuit-wide precedent. The Second Circuit, it just is.

• 1:07:12Melissa Murray?

  Well, that is very reassuring, sir. Very, very reassuring. The idea that courts can't do things that incidentally benefit or apply to nonparties is, to put it mildly, listeners, absolutely unhinged. And Justice Jackson had this great response for that claim.

• 1:07:30Speaker 16

  The plaintiff is the only person who can go to court after you violate this order and enforce it. Other people are incidental beneficiaries of a court ordering you to follow the law. I mean, that's like everyone in the world. When the court says, "Follow the law," anybody who would have been hurt by your not following the law benefits. Okay. I don't understand why that would limit the court in its ability to tell you, "Don't do this unlawful conduct."

• 1:08:00Kate Shaw?

  Yeah, she almost here seems to be saying, like, let's just reframe this. Actually, the thing we should be focused on is if a court tells a defendant, "Stop doing the unlawful thing," the defendant is the important player here. Everybody else benefits from the stopping of the unlawful thing. But all of this, like, very technical fixation on the plaintiff beneficiaries is maybe the wrong way to look at it. At least, I thought that's what she was driving at here. There's also an important theme that came out, which is that, so, fine, the administration has conceded. It has deigned to say, "Yes, we will listen to you, Supreme Court, if you tell us to stop doing the unlawful thing." But there's a possibility the administration will just keep losing below and will never take the case to the Supreme Court. And so the Supreme Court, in those circumstances, would never have the chance to answer the

• 1:08:44Kate Shaw?

  question that the administration has said it will listen to. So both Justice Kagan and Justice Jackson drew that out in these exchanges.

• 1:08:51Speaker 01

  You're going to have, like, individual by individual by individual, and all of those individuals are going to win. And the ones who can't afford to go to court, they're the ones who are going to lose.

• 1:09:03Speaker 11

  The tools that are provided to address hypotheticals like this, again, I

• 1:09:08Speaker 01

  This is not a hypothetical. This is happening out there, right? Every court has ruled against you.

• 1:09:12Speaker 11

  We've only had snap judgments on the merits. You know, obviously, we're fully briefing the merits in the Courts of Appeals, and our arguments are compelling, more fundamentally, in response to the question.

• 1:09:22Speaker 01

  I'm suggesting to you, like, the real brunt of my question is, in a case like this, the government has no incentive to bring this case to the Supreme Court, because it's not really losing anything. It's losing a lot of individual cases, which still allow it to enforce its CEO against the vast majority of people to whom it applies.

• 1:09:41Speaker 16

  I understand. Let me just, let me just turn your attention to one other thing, because the real concern, I think, is that your argument seems to turn our justice system, in my view at least, into a "catch me if you can" kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights.

• 1:10:04Melissa Murray?

  So, to my mind, this is the real problem. If the court chooses to narrow the scope of the nationwide injunction to some smaller class of cases, because effectively doing so allows the administration to win by losing, by simply exploiting this procedural loophole. If the nationwide injunction isn't available as a remedy in most cases, all the administration has to do is do something truly outlandish, like, put out some crazy executive order. Someone challenges it, the administration loses, and then they just sit on it and never appeal it to a higher court. It never gets to the Supreme Court. And then the administration just gets to continue enforcing this stupid, outlandish, unlawful policy in other jurisdictions, and new challenges get raised in these new jurisdictions,

• 1:10:49Melissa Murray?

  and the administration just sits on those when they lose, and it just goes on indefinitely with the administration continuing to lose and continuing not to appeal. And effectively winning.

• 1:11:01Leah Litman?

  Can I just go on a brief side rant here, which is, so I expressed these views that I didn't see the court straight up denying the application requests and instead creating some uncertainty about what exactly has to be done, when lower courts can award this, and injecting the possibility of class actions into this. And I tried to raise the alarm online about how problematic that would be. And then everybody screamed at me because they kept pointing to headlines like in the New York Times and whatnot that indicated justices were skeptical of the Trump administration's positions, or justices are torn. And it's like, guys, I'm not saying the court is going to blow up all nationwide injunctions in

• 1:11:42Leah Litman?

  every case, but if they do something here, short of deciding the merits, straight up denying the applications, that's a real problem. And it will enable the kind of fuck shit that Melissa just described in other cases as well, given how lawless this administration is, and the fact that they don't think they have to actually abide by other decisions. And so I'm going to blame the media for this. That's my new position anyways.

• 1:12:11Melissa Murray?

  I think those, when you get that kind of feedback on social media, the only possible response is bless your heart.

• 1:12:18Leah Litman?

  Thank you.

• 1:12:19Melissa Murray?

  Just say that.

• 1:12:19Leah Litman?

  Thank you.

• 1:12:20Melissa Murray?

  And then like, continue. Like, it's just not even worth engaging.

• 1:12:22Leah Litman?

  Okay. So, speaking of people I'd like to blame, I, or people who wanted to blame others, I did want to talk about one of my favorite moments during the oral argument, which was Sam Alito's insistence that the real problem here isn't him, and it isn't Donald Trump, it's everybody else.

• 1:12:42Speaker 17

  But you know, sometimes they're wrong. And all Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right and I can do whatever I want. Now, on a multi-member appellate court, that is restrained by one's colleagues. But- Trial judge, the trial judge sitting in the trial judge's courtroom is the monarch of that, of that realm. And there are situations in which trial judges, the, the president does something, it could be President Trump, it could be President Biden, it could be President Obama, the, the trial judge says, this is unlawful and I'm gonna, I'm gonna

• 1:13:26Speaker 17

  order, I'm gonna enjoin it. And I'm so, I'm convinced I'm right, so I'm not gonna stay the injunction. And then, an application is submitted to the Court of Appeals to stay the injunction. The Court of Appeals gives it the back of the hand. And then the case comes immediately to us in the context of an emergency application. And some of us have said, well, we don't think we should do anything in those situations unless the, unless it is indisputably clear that the, the court below was wrong. So what do you say to that practical problem?

• 1:14:02Melissa Murray?

  I'm just gonna say, this started out really great. Really remarkably self-aware, might even have been a self-owned. And he literally says, quote, "All Article III judges are vulnerable to an occupational disease, which is the disease of thinking that I am right, and I can do whatever I want." And I was like, yes, sir, you get it. You get it. You're getting it. And then inevitably, Fox grandpa kicked in and it all took a turn. But so close. Yeah, so close.

• 1:14:31Leah Litman?

  So, the, his characterizations of lower court judges as being particularly wild because they don't have the benefit of deciding cases with colleagues was so remarkably not self-aware. It's like, sir, can you point me to a single example where you, Samuel Alito, have ever been restrained because you judge together with colleagues? Because I'm struggling to come up with one.

• 1:14:59Kate Shaw?

  Also, none of it made any sense. Also, these district court orders then go up to multi-member appellate courts.

• 1:15:05Leah Litman?

  But he said they only give them the back of the hand, which by the way, real fucking ironic for the guy who's about to potentially let the administration implement this order without deciding its lawfulness, who might not be interested in supplemental briefing, just the gall.

• 1:15:21Kate Shaw?

  Totally.

• 1:15:22Melissa Murray?

  I'll also note there are two justices who also served as district court judges and they are justices Sotomayor and Jackson and they seemed to be aware of what district court judges do, how they work, and also the differences between multi-member courts and their colleagues. Anyway, Alora, did you happen to be on Truth Social yesterday?

• 1:15:47Kate Shaw?

  Okay, we know the answer to that question.

• 1:15:49Melissa Murray?

  No.

• 1:15:49Kate Shaw?

  I don't make assumptions, but I doubt it.

• 1:15:52Melissa Murray?

  I don't want to make assumptions. I don't want to make assumptions. Well, yesterday on Truth Social, the President of the United States truthed about the Supreme Court the day after the argument. And this is what he had to say, quote, "The Supreme Court is being played by the radical left losers who have no support. The public hates them and their only hope is the intimidation of the court itself. We can't let that happen to our country." And that was the end.

• 1:16:17Leah Litman?

  Melissa, I love how your inner thespian comes out with these dramatic readings, can I just say?

• 1:16:23Melissa Murray?

  Thank you. Keep truthing. Keep truthing, sir. Truth through it. Alora, I just, I thought this was a remarkably galling two from a man who continues to intimidate courts and an administration that continues to intimidate the courts, but he does sound a little worried, no?

• 1:16:42Speaker 08

  I'm not sure. It's hard to know what the President is thinking and trying to convey at any given moment. What I will say, it's ironic to hear him suggesting that the radical left is terrorizing the country when in fact, the executive branch has inflicted such deep fear and terror in immigrant communities across the country since the election and particularly since January 20th with not just the birthright citizenship executive order, but so many policies that are designed to harm and devastate immigrant communities.

• 1:17:21Kate Shaw?

  I think that the President was maybe reading the same headlines that Leah was really. Worked up over but responded quite differently. Although I don't know, maybe you guys, maybe, maybe that's a point of convergence here.

• 1:17:32Leah Litman?

  I was not truthing Kate, don't you dare.

• 1:17:34Kate Shaw?

  No, you weren't truthing through it, but you were annoyed by the headlines because they kind of missed it. And he was annoyed by the headlines that did suggest that his executive order might be potentially on the rocks. Although, you know, it's definitely right. I want to have some humility about this argument because I do think that we, you know, I think it went better than I was scared it would. And I think that Barrett-

• 1:17:54Leah Litman?

  That's so interesting. It went worse than I thought it was going to. It's so wild.

• 1:17:59Kate Shaw?

  But largely because Barrett-

• 1:18:00Melissa Murray?

  You all never fail me with your, I predicted this. Lee would think it was the worst and Kate would be like, better than expected.

• 1:18:08Kate Shaw?

  Well, partly, but here's what I want to say. I want to sort of inject a grain of salt into this because a part of the reason I thought it was decent was because Barrett seemed pretty reasonable and so did Gorsuch. And at least as to Barrett, we have been misled before by the tenor of her questions and oral arguments. I mean, that was especially true in Trump versus the United States where we really thought, okay, she is, she understands how dangerous it would be to immunize all of this. And, you know, she writes this completely mealy mouthed concurrence. Well, the concurrence is fine standing alone, but then she joins in full the majority opinion and-

• 1:18:41Leah Litman?

  Hear me out though.

• 1:18:42Kate Shaw?

  She could do the same here. Yeah.

• 1:18:43Melissa Murray?

  Hear me out. She's the mother of children who are naturalized citizens.

• 1:18:47Leah Litman?

  Yep.

• 1:18:48Melissa Murray?

  Maybe that is meaningful here.

• 1:18:49Leah Litman?

  Yeah.

• 1:18:50Kate Shaw?

  Yeah.

• 1:18:50Speaker 08

  And not just that, but she's also a mother. So she understands what it takes to give birth and how many things you need to line up and get in place at the hospital and what it's like in a delivery room.

• 1:19:03Kate Shaw?

  Yeah.

• 1:19:04Leah Litman?

  Yeah. And I don't mean to say like, oh, I know with all certainty what the court is going to do. It's just, I really did not hear from those two and a half hours, an obvious five votes that were obviously just going to say deny, deny, deny. And a world in which this order partially goes into effect is so devastating that I think people need to be primed to understand what a Supreme Court decision would mean and could facilitate if it isn't just a straight up win for the respondents.

• 1:19:37Speaker 08

  So can I chime in on that point? So the executive branch has conceded that if- The order is allowed to go into effect anywhere in the country. There would be 30 days. During those 30 days, multiple things would be happening. Pregnant people would be moving, those who have the resources would be moving to states where they can deliver US citizen children. And immigrants' rights groups would be working furiously on developing the class action lawsuits that would be needed to challenge the executive order in the places where it would be going into effect.

• 1:20:12Leah Litman?

  But the court would be requiring all of that, like all of this additional stuff that is just so pointless when they could just fix it, stop it, prevent it right now.

• 1:20:21Melissa Murray?

  So that's the, to me, the most shocking part of this oral argument was that I didn't hear nine people say, like, obviously, we should just grant cert before judgment and decide this absolutely insane question that isn't really a question because we decided it like back in the 1890s and it's over. And that, to me, is the scariest part. And I think if the media doesn't present it in that way, like, if this isn't a full-throated endorsement of the 14th Amendment conferring birthright citizenship, then it is a loss. And the media can't and should not spin it as well. They saved birthright citizenship by not even touching the question. They didn't give the administration everything they wanted. Yeah, that part.

• 1:21:03Melissa Murray?

  You know, everything they wanted was absolutely unconstitutional. Like, what they wanted was to, you know, take the Constitution and use it to, as rolling papers, basically, and just light it up and smoke it or something. And, you know, that didn't happen, so that was good, I guess.

• 1:21:20Leah Litman?

  Final thoughts, Alora?

• 1:21:23Melissa Murray?

  You seem shell-shocked, Alora. Like, welcome to Strict Scrutiny.

• 1:21:28Speaker 08

  No, I'm so happy to be here. Thank you so much for having me and covering this critical issue for millions of families across the country. And I guess we will see what happens next.

• 1:21:40Kate Shaw?

  Alora Mukherjee, thank you so much for taking the time to join us. It was really great to have you.

• 1:21:44Speaker 08

  Thank you for having me.

• 1:21:48Leah Litman?

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• 1:23:44Speaker 14

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're going to have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all going to help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 1:24:29Kate Shaw?

  Okay. And in this final segment, we'll quickly cover a little bit of court culture. So first, we got another important installment in hot Cassandra summer. It's not even summer yet, and we're already filling our burn book. So here, the Eighth Circuit reached what friend of the pod, Rick Hassan, called the, quote, "remarkably wrong conclusion that private plaintiffs cannot use Section 1983 to enforce Section 2 of the Voting Rights Act." Melissa, I believe you called this.

• 1:24:54Melissa Murray?

  I believe I did. The background here is that an important provision of the Voting Rights Act of 1965 is Section 2, which prohibits, quote, "the denial or abridgement of the right of any citizen of the United States to vote on account of race or color," end quote. This provision has been especially important since 2013, when the court in Shelby County versus Holder gutted the VRA's preclearance regime, which required states with a serious history of racial discrimination in voting to first preclear any changes to their voting practices or policies with a three-judge panel or the Department of Justice before those changes could go into effect. The Chief Justice, who wrote for the 5 to 4 majority in Shelby County, was very quick

• 1:25:36Melissa Murray?

  to note that although they were dismantling preclearance, preclearance wasn't the only way that was available to address the problem of suppressive voter laws and practices. Section 2, the Chief Justice reassured us, remained a viable path for dealing with suppressive voting laws.

• 1:25:52Leah Litman?

  And according to some people, that is a problem. In particular, Justices Thomas and Gorsuch suggested in Bernavish versus DNC and Allen versus Milligan, two recent voting rights cases, that the Voting Rights Act may not even contain a private right of action. That is, it may not even allow private individuals to sue to enforce the law. That would lead the laws enforcement to the Federal Justice Department. And right now, we know what that means.

• 1:26:19Melissa Murray?

  Well, it's not just right now. I mean, just to note how fringe this idea is, when the VRA was being debated in Congress in the 1960s, it was discussed, this entire idea that enforcement priorities could shift from administration to administration, meaning that some administrations, COFF, Republican administrations, might be less strenuous in their enforcement of the VRA. And for that reason, Congress seemed to think that there would be other avenues for enforcing voting rights, like the preclearance regime, for example, but also certainly the prospect of private parties perhaps bringing enforcement claims to protect their rights, i.e. a private right of action. And indeed, the court, in multiple voting rights cases, has essentially credited the

• 1:27:02Melissa Murray?

  prospect of an implied private enforcement, private right of action method in the VRA.

• 1:27:08Leah Litman?

  And also, Congress has basically ratified and acquiesced it, right? Because like, after those cases, Congress re-acts and amends it, right? And doesn't eliminate a private right of action. It's just, it's truly bonkers.

• 1:27:21Kate Shaw?

  Congress is reauthorizing, the court is deciding cases, everyone is doing it against the backdrop of private enforcement. And lo and behold, the Eighth Circuit enters the chat to basically say, hold on, everyone has gotten it wrong. So I should say, though, it's not the Eighth Circuit doing it out of the blue, right? As Leah previously mentioned, the fringe theory that the VRA only provides for public enforcement is one that Gorsuch floated in his concurring opinion in Bernovich and that Thomas floated in a footnote in his dissenting opinion in Allen versus Milligan, became law in the Eighth Circuit.

• 1:27:52Melissa Murray?

  In its bid to be the nation's worst circuit court, the Eighth Circuit reached the truly absurd conclusion that despite decades of practice and hundreds of lawsuits brought by private plaintiffs seeking to enforce their rights under the VRA, despite Congress reauthorizing and expanding Section 2 in view of this decades-long history and practice of private enforcement. Everyone somehow overlooked the fact that there is no explicit private right of action to enforce Section 2, and so therefore that private right of action does not exist.

• 1:28:25Leah Litman?

  You know it's necessary to enforce the Voting Rights Act? Not enforcing the Voting Rights Act, you know it.

• 1:28:30Melissa Murray?

  That part.

• 1:28:31Leah Litman?

  Deep cut. So, in the wake of that decision, plaintiffs in the A Circuit sought to enforce the rights guaranteed by the Voting Rights Act by relying on 42 U.S.C. Section 1983, the general civil rights law, and that provides a cause of action to any person who is deprived of rights secured not only by the Constitution but also by the laws of the United States, i.e. federal statutes. And the A Circuit, in an opinion whose reasoning is so tortured, I honestly don't think I can even explain it, held relying on cases I'm not even sure are relevant that despite the fact that the very first sentence of Section 2 references "right of any citizen," which both sounds like language creating rights, sounds like

• 1:29:16Leah Litman?

  language involving private individuals, sounds like language in other statutes like Title VI and Title IX. Somehow, the VRA's focus on the unlawful discriminator, not just the individual whose rights are guaranteed, means private plaintiffs can't sue using Section 1983 either. It makes no sense, and it means that as a practical matter, plaintiffs can't sue to enforce the VRA in the A Circuit at all. It's up to Trump DOJ, and I think we know how that will go. Although I think some of the South African refugees, that is, quote, refugees, the administration just admitted, are being resettled in South Dakota, which is in the A Circuit, so maybe they will be moved to enforce the Voting Rights Act there after all.

• 1:30:00Melissa Murray?

  Are they being resettled in South Dakota so that when the next census rolls around, there will be more people and South Dakota can have more representation in Congress? Or am I just making up new conspiracy theories?

• 1:30:10Leah Litman?

  Don't put it past them.

• 1:30:11Kate Shaw?

  I wouldn't. I mean, it's the numbers are small, but maybe this is just the first installment.

• 1:30:15Melissa Murray?

  I mean, like, the numbers were already small in South Dakota.

• 1:30:17Kate Shaw?

  In South Dakota, it's a fair point.

• 1:30:19Melissa Murray?

  Just a couple of other quick hits before we leave. We got a very disturbing opinion from a district court in Pennsylvania in one of the cases challenging the Trump administration's invocation of the Alien Enemies Act. This one was brought by a Venezuelan national known by the initials ASR. In this case, Trump appointee Stephanie Haines held that the president was likely to prevail in his arguments that he could rely on the Alien Enemies Act to expel ASR. But importantly, Judge Haines also found that the administration was not giving sufficient notice to satisfy the requirements of due process in the Supreme Court's guidance. So she held that the government must give people like ASR at least 21 days to contest their designations and expulsions.

• 1:31:04Melissa Murray?

  This, at least, was important, but the merits determination that the president properly invoke the Alien Enemies Act conflicts with multiple other better reasoned rulings of district courts around the country, finding that the president did not lawfully invoke that 1798 wartime statute. So disappointing that she came to a different conclusion.

• 1:31:26Kate Shaw?

  Although I had the thought that after the argument in the birthright citizenship case, at least some conflicting authority on the AEA means the Supreme Court is likely to take up the merits question. Like, it could be that the administration keeps losing on the AEA but never takes it up, just as we were discussing in the context of birthright citizenship. Okay, so one quick update on North Carolina, and wanted to connect North Carolina to national politics. So almost seven months after winning her election, Justice Allison Riggs was finally sworn in to continue her service as a justice on the North Carolina Supreme Court. I would hope that the decisive repudiation of Jefferson Griffin's outrageous efforts to change the election rules after the fact will prove something of a cautionary tale

• 1:32:11Kate Shaw?

  for future unsuccessful candidates who are even thinking about mounting similar challenges. But I very much worry that, one, shame doesn't operate like it once did, and, two, I think that national leadership is, if anything, encouraging this kind of thing. So, election denialism is alive and well in the federal government at the highest levels, including as recently as this past week, when President Trump had this to say in Qatar in a room full of United States troops.

• 1:32:39Speaker 18

  We won three elections, okay? And some people want us to do a fourth. I don't know, we'll have to think about that.

• 1:32:51Kate Shaw?

  I mean, at some point, we do need, as a podcast, to spend some time talking about the 22nd Amendment, which limits presidents to two terms.

• 1:32:59Leah Litman?

  Maybe summer.

• 1:32:59Kate Shaw?

  But I have to say, not today, Satan.

• 1:33:02Leah Litman?

  Yeah. Speaking of Satan, one other note about some truthing on Truth Social. So Donald Trump was really having some normal ones. And on Friday of last week, he posted the following on Truth Social. Has anyone noticed that since I said, quote, "I hate Taylor Swift," end quote, "she's no longer," quote, all caps, "hot"? Yeah.

• 1:33:24Kate Shaw?

  I had missed that. Do we have any idea what prompted it?

• 1:33:27Leah Litman?

  No. I think just simmering inner rage and obviously talking shit for the hell of it, et cetera, et cetera. Like, we know who karma favors.

• 1:33:40Melissa Murray?

  Well, he also talked some shit about Bruce Springsteen, which-

• 1:33:43Leah Litman?

  The boss.

• 1:33:43Melissa Murray?

  Well, I thought it was weird. I mean, I know Bruce Springsteen has very progressive politics, but I also thought he was sort of the kind of singer that MAGA types really like.

• 1:33:55Kate Shaw?

  No, he's woke now.

• 1:33:56Leah Litman?

  Not anymore.

• 1:33:56Kate Shaw?

  Only Kid Rock, Melissa. Only Kid Rock.

• 1:33:59Leah Litman?

  Oh.

• 1:34:00Kate Shaw?

  He's been onstage with too many Democratic politicians. I think they've decided that he's crossed.

• 1:34:04Melissa Murray?

  Have they told New Jersey? Have they told down the shore? Because they love him there.

• 1:34:10Kate Shaw?

  They sure do, and correctly.

• 1:34:12Melissa Murray?

  They love him. They love Virgonia flags. Like, not all people down the shore.

• 1:34:17Kate Shaw?

  They contain multitudes.

• 1:34:18Melissa Murray?

  They do. That's true. All right, y'all. It's a Friday afternoon that we're taping, which means that, obviously, in the middle of taping this episode, the Supreme Court issued another opinion. So this is an opinion in the case known as AARP versus Trump. This is one of the cases involving immigration and, in this case specifically, the question of Venezuelan migrants and the rushed effort to expel those migrants to El Salvador. The court holds here that the Trump administration violated the due process rights of those Venezuelan migrants when it sought to expel them to El Salvador. The court had blocked that expulsion in the middle

• 1:35:03Melissa Murray?

  of the night. The court did not decide whether the administration can remove migrants under the Alien Enemies Act. So the substantive question of whether the Alien Enemies Act is applicable in these circumstances is not one the court reached in this opinion. But it did hold that the administration's efforts to remove those migrants violate the migrants' due process rights, and it instructs the lower courts to go back and decide exactly what sort of deportation procedures would be compliant with the Constitution. The court also continues to block the deportations of migrants under the Alien Enemies Act

• 1:35:45Melissa Murray?

  as a class. I think that's really important here. The injunction that the court imposes here applies to all similarly situated detainees. I am flagging this because it suggests, and this is something we've raised on the podcast, that there is a majority on the court that is inclined to allow the migrants to litigate their claims in the aggregate as a kind of habeas class action. We have noted on this podcast before that it may be an open question whether habeas petitions and claims can be processed or adjudicated individually, or whether they can be aggregated in the manner of a class action. Obviously,

• 1:36:23Melissa Murray?

  the latter would be more efficient and would allow the migrants to address these questions through one single litigation vehicle as opposed to having to individually find lawyers and bring individual habeas claims. Here, the court is allowing, through this injunction, the migrants to bring their actions in the aggregate. The court points out here, and I think this is especially important, that because the Trump administration claims that it cannot retrieve migrants once they have been expelled to El Salvador and that Salvadoran mega-prison, that they need especially robust due process

• 1:37:04Melissa Murray?

  protections in advance of their expulsion to El Salvador. So if you can't bring them back, you actually have to give them the right kind of process. And here's what the court said specifically, quote, "The government has represented elsewhere that it is unable to provide for the return of an individual deported in error to a prison in El Salvador." That is obviously Kilmar Abrego Garcia. In that situation, the court goes on to say the detainees' interests at stake are accordingly particularly weighty. Under these circumstances, notice roughly 24 hours before removal devoid of information about how to exercise due process rights to contest

• 1:37:42Melissa Murray?

  that removal surely does not pass muster. So I think that's also very, very important. After having made all of those points, the majority remands the case back to the Fifth Circuit to decide what the appropriate deportation procedures should be in a situation like this one. And the court again reiterates that it is not deciding today the question of the Alien Enemies Act, only this narrower question of whether due process has been violated. And yes, apparently it has. We should note here that there were two additional opinions in this case. Justice Kavanaugh filed a concurrence in which no one joined,

• 1:38:24Melissa Murray?

  in which he simply reiterated his support for the court's conclusion, but went further to note that he believes that the migrants' interests and those of the administrations are actually aligned insofar as they seek an expeditious prompt and final resolution. He notes, quote, "The circumstances call for a prompt and final resolution which likely can be provided only by this court at this juncture. I would prefer not to remand to the lower courts," as the majority did here, "and further put off this court's final resolution of the critical issues, rather, consistent with the executive branch's request for expedition and as the detainees themselves urge, I would grant certiorari, order prompt briefing,

• 1:39:06Melissa Murray?

  hold oral arguments soon thereafter, and then resolve the legal issues," end quote. There is a dissent here filed by Justice Alito, with whom Justice Thomas joins in that dissent. And it goes over a lot of things, specifically disagrees with the majority on just about everything. Of particular note here is Justice Alito with Justice Thomas expressing skepticism that class relief may be obtained in a habeas proceeding. As Justice Alito points out, quote, "We have never so held, and it is highly questionable whether it is permitted," end quote. So those are just some highlights. We, of course, will continue to drill down on this and dig into this case as more details become available. This is obviously a developing

• 1:39:51Melissa Murray?

  situation as this gets remanded back.

• 1:39:54Kate Shaw?

  All right, let's wrap things up with our favorite reads and watches, et cetera, in the last week. I just have a couple. One, I started a memoir by author Amanda Hess, who writes for The Times as a contributor. The title of the memoir is Second Life: Having a Child in the Digital Age. It's really good.

• 1:40:11Leah Litman?

  It's on my reading list.

• 1:40:12Kate Shaw?

  I just started, but yeah, yeah, I think it's, she's really talented. Two, I truly loved the New York Times piece about Harvard's discovery that it has an original copy of the Magna Carta.

• 1:40:22Leah Litman?

  Yes.

• 1:40:23Kate Shaw?

  It just somehow, like, it felt like all the timelines, like scholarly institutions, Stephen Miller, due process, like, it was all sort of colliding, and I loved it. And the last thing I read is also just kind of an errata I want to issue, like, an error that I made on a previous episode, which is, I got an email from Dr. Elizabeth Sartell, who is a member of the Theology Department at Lewis University, who wrote in to tell me that I kind of overstated the claim in the case Mahmoud versus Taylor about the picture books in the Maryland elementary schools. So I basically said representations of the Prophet Muhammad are prohibited, but she kind of gently reminded me, there's actually a diversity of jurisprudence and thought on this, that, yeah, it's often viewed as forbidden or disfavored to depict the Prophet Muhammad, but that it's actually allowed and even celebrated in some traditions. Anyway, good reminder, Islam is not a monolith,

• 1:41:07Kate Shaw?

  and sorry if I suggested otherwise.

• 1:41:09Leah Litman?

  So I have three this week. One is Frederick Bachmann's My Friends, new novel just came out. I've been doing some traveling, and so I always need really great fiction when I'm on planes, and this hit the spot. The second is kind of generally a new independent media outlet, All Rise News. They're on Substack, and they are trying to do coverage that focuses on law and civic engagement, which is obviously super important. They had a great interview with Senator Sheldon Whitehouse about the federal government's unwillingness to protect federal judges in this setting. So I'd encourage you all to check out All Rise News generally,

• 1:41:49Leah Litman?

  that interview in particular. And then third, and finally, so this last week was the week of my book's official release, and honestly, seeing pictures of people holding it or snickering about some of the Arrested Development references.

• 1:42:10Leah Litman?

  Were just very appreciated. I loved seeing them and reading them and it made this high-stress, high-anxiety week for someone who is already very high-stress and high-anxiety, much more manageable.

• 1:42:27Melissa Murray?

  Okay, so my faves of the week are, one, I got to attend the Schaumburg Center for Research on Black Culture, which is a branch of the New York Public Library in New York City in Harlem. It celebrated its centennial a couple of weeks ago and I got to attend and it was really remarkable. It is a wonderful center, great for researchers. If you're in New York City, please check out their terrific exhibits. If you're not in New York City, you can check out their online exhibits, which are also excellent, and consider supporting them. Libraries are under siege right now and so is the New York Public Library, which has many branches, and you can specifically donate to the ones of your choice. I will also note that one of my favorite reads this week was Jennifer Wiener's op-ed Weight Watchers

• 1:43:12Melissa Murray?

  Got One Thing Very Right, which was in the New York Times last week. It generally drags diet culture for filth, but it does note that one of the things that the Weight Watchers movement got right was the need for third spaces where people, and specifically women, can come together and make connections across ideology, across class. And, you know, she notes, this is one of the really interesting things that Weight Watchers got right. And I just thought it was an interesting way to think about the vestiges of diet culture. And also relates to a book I read last year and recommended, Marisa Meltzer's This is Big: How the Founder of Weight Watchers Changed the World and Me. And it's a biography of Jean Niedet, who founded the Weight Watchers empire. And then finally, I mentioned this

• 1:43:57Melissa Murray?

  last week, but I finished Forever, the Netflix series by Mara Brock-Akel, and it was absolutely amazing. If you have not watched it, you must watch it immediately. It's so, so good. And it's been renewed for season two, so it's fantastic.

• 1:44:13Kate Shaw?

  All right. Before we go, wanted to let you know the Crooked Store has a bunch of great new merch, including new designs for our classic friend of the pod, tea. This is a merch drop that's part of a big upgrade of the Crooked Store. The site got a makeover, so did the merch itself. We are talking about maybe doing some new merch of our own, so keep checking. And don't worry, this is a good makeover, not like the time that my seven-year-old caught her own bangs. It was bad. It was a really bad scene. But this makeover, not like that. Crooked merch is now made from higher-quality, more durable materials with updated, modern fits and more sustainable manufacturing practices. You can check out the new site and grab a new friend of the pod tea at the same old URL. So makeover, new site, same old URL, crooked.com/store.

• 1:44:58Leah Litman?

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

• 1:45:58Leah Litman?

  On election night, we will all be feeling a lot of feelings. Do not spend it alone. Spend it with me, Alex Wagner, for Crooked Media Presents Live Election Results. We're gonna have Jon Favreau, Jon Lovett, Tommy Vitor, Stacey Abrams, Dan Pfeiffer, Aaron Ryan, and many more special guests to be announced. And they're all gonna help us make sense of what's happening as the election results roll in. So here's what you need to do. Subscribe to Pod Save America on YouTube and tune in on Tuesday, November 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

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