Will SCOTUS Allow Conversion Therapy for Minors?

Leah, Melissa, and Kate are back in business, breaking down this term’s first week of arguments at SCOTUS, including a challenge to Colorado’s ban on conversion therapy for minors. Also covered: the indictment of New York’s Attorney General Letitia James, the continuing legal fights against Trump’s efforts to send the National Guard into Portland and Chicago, and Attorney General Pamela Jo Bondi’s pugnacious testimony before the Senate Judiciary Committee. Then, Kate and Leah speak with Yale Law Professor John Fabian Witt about his book The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America https://bookshop.org/p/books/the-radical-fund-how-a-band-of-visionaries-and-a-million-dollars-upended-america-john-fabian-witt/7035d63ad6991b72, which chronicles how philanthropist Charles Garland bankrolled progressive causes through his American Fund for Public Service. If you want to learn more about Buck v. Bell (the 1927 case Justice Alito referenced in the Chiles arguments), listen to our deep dive https://podcasts.apple.com/us/podcast/three-generations-of-imbeciles/id1469168641?i=1000486246847 from 2020Favorite things: Leah: Protest videos from Portland and Chicago; The Sentimental Garbage podcast on The Life of a Showgirl https://podcasts.apple.com/us/podcast/taylor-swift-life-of-a-showgirl/id1444729607?i=1000730383698 Kate: Writers & Lovers https://bookshop.org/p/books/writers-lovers-lily-king/c54f26ea3c4c7392?ean=9780802148544&next=t by Lily King, Creation Lake https://bookshop.org/p/books/creation-lake-a-novel-rachel-kushner/67139ee2e315ac6a?ean=9781982116538&next=t by Rachel Kushner; Red Clover Ranch https://redcloverranch.com/ in Wisconsin; wine and cider from Las Mujeres https://www.lasmujeres.farm/ Melissa: Vision & Justice https://visionandjustice.org/; Miss Toy Poodle https://www.instagram.com/misstoypoodle/ on Instagram Leah will be in conversation with UCLA Law Professor Rick Hasen at the Hammer Museum in Los Angeles on Tuesday, Oct 14, 2025 at 7:30 PM. Details here https://hammer.ucla.edu/programs-events/2025/leah-litman-supreme-court. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Melissa Murray?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedents, shattering some norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that is relentlessly pushing to impose a Christian nationalist agenda on our lives and our laws. 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 are pushing vouchers everywhere. They are arguing for religious public schools. Yes, you heard that right, religious public schools. And they're doing it at the Supreme Court, as we've covered on this podcast.

• 0:43Melissa Murray?

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

• 1:02Speaker 01

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

• 1:14Speaker 02

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

• 1:45Melissa Murray?

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

• 1:53Speaker 03

  I'm Lee.

• 1:53Melissa Murray?

  And I'm Melissa Murray, and the court is back in session, which means we are back in session. However, Article II is not slowing down. So before we get into Article III, we actually have a bunch of other legal developments that we have to talk about as well. So we're going to start with this one, and that is the indictment of New York's Attorney General Letitia James. And this is part of a pattern of actions from the administration that we think is inextricably tied to Article III. So we're going to discuss that. And after we discuss it, we will then recap the court's first week of arguments before turning back to legal news, including developments in the challenges to Trump's deployment of the

• 2:35Melissa Murray?

  National Guard to American cities and against Americans, as well as some developments with our girl Pamela Jo Bondi showing up and showing out in her appearance before the Senate. It was truly chef's kiss. 10 out of 10, no notes.

• 2:50Speaker 03

  Actually, a lot of notes. And I think those will become clear if you stay tuned.

• 2:57Melissa Murray?

  No good notes.

• 2:58Speaker 03

  How about that? No, no. So after all of that, we are going to bring you a great conversation that Leah and I recently had with Yale's John Fabian Witt about his fantastic new book, which is out tomorrow, The Radical Fund. The book, just to give you a brief snapshot, is about how a group of organizers and lawyers and writers and public intellectuals, among others, capitalized on actually a relatively small inheritance to largely remake American democracy. And that sounds kind of overstated, but it's honestly not. It is an amazing and genuinely inspiring story that is also set in a very dark time about 100 years ago, following a pandemic involving massive economic inequality, political violence. I mean, this all feels

• 3:39Speaker 03

  very familiar, and yet somehow, at the end of this story, is a vastly improved American democracy. So given how dark everything is, including the start of this Supreme Court term, we could all use a little inspiration. So stay tuned for that conversation. And the news of the last week has also just kind of made the general darkness and the start of the Supreme Court term kind of all the more alarming and urgent. So we're going to turn to the news of the week now.

• 4:06Leah Litman?

  So after firing federal prosecutors who refused to seek indictments against Donald Trump's preferred targets, and after installing his former personal lawyer, who's an insurance lawyer with no prosecutorial experience in the position, Trump's handpicked US attorney for the Eastern District of Virginia obtained an indictment against New York Attorney General Tish James. I don't know what's going on with Virginia grand juries. Like, are they gobbling Tylenol? I don't know.

• 4:35Speaker 03

  Because, right, and the reason I think Leah's saying this is because in both DC and Chicago, we have actually seen a really remarkable string of grand juries returning no bills, like refusing to-

• 4:44Leah Litman?

  And Los Angeles.

• 4:45Speaker 03

  -return indictments, right, LA as well, on these, like, literally trumped up charges that federal prosecutors are bringing before them. And yet, Virginia seems to be breaking differently. So-

• 4:55Leah Litman?

  Well, I think that's why they're going there, right, to be very clear. DC would not do this. The Eastern District of Virginia is a really, pretty big district that includes, like, parts of the state that include military bases. So I think they rightly assume that it's going to trend a little more conservative. And apparently, you know, you can indict a ham sandwich, and we have.

• 5:17Speaker 03

  Yeah. And New York's fine Attorney General, Tish James. So James, our listeners may recall, is responsible for New York's state civil litigation against the Trump Organization, among other things. And that seems to be pretty clearly why she is being targeted. So like in the lead up to the indictment of Jim Comey in the same district of Virginia, there have been reports that Trump tried to pressure prosecutors to indict James. And then when career prosecutors were unwilling to do so, Trump installed Lindsey Halligan, his personal lackey, who is an insurance lawyer with zero prosecutorial experience. And she swooped in and actually sought and then obtained the indictment. Halligan's is the only name that appears on the James indictment. It also, I mean, this is small, but also maybe so big, misstates James's address as Brooklyn, New Jersey, rather than

• 6:02Speaker 03

  Brooklyn, New York, which is basically like on par with the kind of error that is at the heart of this entire criminal indictment, but the very best people.

• 6:10Leah Litman?

  Well, everything is legal in New Jersey, and she probably knew that, so it's okay.

• 6:16Melissa Murray?

  So the indictment is based on allegations of mortgage fraud, AKA the mortgage fraud fraud that the administration is perpetrating. And these allegations are related to James signing a rider to a loan that she used to purchase a home that she stated would not be subject to rental agreement. So she wasn't planning to rent the property, but the rider does allow for short-term rentals. The indictment doesn't specify how long James allegedly rented out the property, but her tax disclosure suggests that it wasn't very long because that year she disclosed that she received between $1,000 to $5,000 in rent. And the following year, she disclosed that she'd received nothing in rent.

• 6:58Melissa Murray?

  So there's a lot of other exculpatory evidence that's available here, which is probably why no self-respecting career lawyer would bring this case. But here we are. Attorney General James, for her part, has issued a statement, and we're going to give you a quick excerpt right here.

• 7:15Speaker 05

  This is nothing more than a continuation of the president's desperate weaponization of our justice system. He is forcing federal law enforcement agencies to do his bidding, all because I did my job as the New York State Attorney General. These charges are baseless, and the president's own public statements make clear that his only goal is political retribution at any cost. The president's actions are a grave violation of our constitutional order and have drawn sharp criticism from members of both parties.

• 7:55Speaker 03

  So to be clear, this is utterly terrifying stuff. It is fundamentally incompatible with the rule of law to have the president and chief law enforcement officers targeting people because of who they are, because they are the president's critics and political opponents, rather than what they did. And honestly, like what they did here that clearly put James in the crosshairs is upholding the rule of law as attorney general. Federal criminal law is, to be clear, broad and sweeping. And if you look hard enough at anyone, you may be able to unearth a mistake on a loan document. And if you have prosecutors with zero ethics or principle seeking it, you may be able to get a grand jury to hand down an indictment, but none of that is how the rule of law is supposed to work.

• 8:38Leah Litman?

  And we should be able to recognize this even if the president hadn't accidentally publicly posted what was supposed to be a direct message to his attorney general demanding that she prosecute people that he listed as his political opponent.

• 8:52Melissa Murray?

  He should have used Signal. Oh, wait. My bad.

• 8:56Leah Litman?

  Or at least added me to the Signal chat if he was going to do so. So there's that. The fact that the administration is willing to use criminal law in this way is yet another reminder about the apostasy that is the Supreme Court's immunity decision. Roberts' majority opinion in that case went out of its way to declare that investigative and prosecutorial decision making is the special province of the executive and the Constitution vests the entirety of the executive power in the president and, quote, allegations that the requested investigations were shams or proposed for an improper purpose do not divest the president of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials, end quote.

• 9:40Leah Litman?

  That is a direct quote. Like, for all of the talk of Roberts being an institutionalist, his vision of presidential power has enabled the most anti-institutionalist president just to destroy our institutions.

• 9:54Melissa Murray?

  And all of those were direct quotes from Trump versus the United States. No editorializing necessary. Anyway, it may be the case that even if the Supreme Court had not stepped in with Trump versus the United States, that this president would still try to use federal criminal law and its enforcement power against his critics. But we just want to put a line under this and make clear that the court's decision in Trump versus the United States made it a lot easier for him to do so because now he knows he faces zero liability for doing so because all of the investigative and prosecutorial functions of the Department of Justice are basically all in him and they're all official presidential functions for which he is insulated. Anyway.

• 10:40Melissa Murray?

  With that, let's go on to some other bad decisions. It's bad decision season. It actually never ended. This is not like pumpkin spice season. It just goes and goes and goes. Bad decisions. So let's talk about some of the decisions that the court seems poised to issue.

• 10:55Speaker 03

  And these bad decisions will come with explanations. They might not be sound or convincing explanations, but unlike the shadow docket bad decisions, I guess they have that to recommend them. Anyway, so we are back in the season of argument recaps. The court heard a lot of cases last week after starting its October term. And that means we're not going to be able to go in depth on all of the recaps, but we will at least mention the cases that were argued and we will focus our conversation on Childs versus Salazar, which is the challenge to the Colorado law that restricts licensed professional therapist's ability to conduct conversion therapy on their patients.

• 11:28Leah Litman?

  Before the arguments even started, there was reporting that called to mind the lead up to the court's previous decision in 303 Creative versus Alennis. That was the case about the wedding website designer who didn't want to celebrate same-sex marriages. Specifically, some stories raised serious questions about whether the plaintiffs challenging a Colorado law had standing to do so, both in the lead up to 303 Creative and now this case, Childs, as well.

• 11:52Melissa Murray?

  Here's the gist of it. Colorado's law restricts licensed therapists' ability to offer conversion therapy, which the state defines to mean treatment that is provided in clinical settings that is aimed at altering an individual's behavior. So this would be therapy that involves telling someone who's gay that actually they're attracted to people of the opposite sex, or telling someone who is trans that actually they are cis.

• 12:15Leah Litman?

  But the plaintiff in Childs insists that she doesn't want to change someone's behavior or identity or orientation. At most, she wants to be able to talk about sexual orientation and gender identity, which she says might include counseling someone to cope with the sexual orientation or gender identity that is causing them stress. So it's not clear that what she wants to do is even prohibited under the statute. That would mean the law wouldn't and couldn't be enforced against her, which would mean she doesn't have standing to challenge the law.

• 12:43Speaker 03

  But all of that, of course, assumes that the law is real and the court honors and observes it. But really, why let jurisdiction get in the way of a good time if you are poised to ax some state law on an ostensible First Amendment theory? So the plaintiff's lawyers here, the Alliance Defending Freedom, who are the same team behind 303 Creative versus Alennis, which we were just talking about, says that Colorado's law hurts patients who come in wanting conversion therapy. Apparently, this is all based on anonymous Reddit posts.

• 13:13Melissa Murray?

  Much good evidence is based on anonymous Reddit posts.

• 13:16Speaker 03

  Most of it, I would even say. But none of those posters actually challenged this law, so that leaves ADF with a therapist, whose conduct probably isn't prohibited by the statute, who is challenging a statute that hasn't been enforced for six years, as Justice Odegaard pointed out in the oral argument. And basically, the plaintiff's standing argument amounts to claiming she is afraid the law will be enforced and that this fear is chilling her conduct. The lawyers also say, but we think the statute does prohibit the conduct she wants to engage in, even though the state insists that it does not.

• 13:50Leah Litman?

  TLDR: Standing is also now for suckers. Because the justices apparently feel free to adjudicate any case seeking to vindicate right-wing culture war grievances, the court barely engaged with these jurisdictional niceties, aside from Justices Gorsuch and Barrett kind of poo-pooing them.

• 14:05Melissa Murray?

  I have to say, I don't know how I'm going to teach standing anymore. I used to teach-

• 14:09Speaker 03

  I totally agree, yeah.

• 14:11Melissa Murray?

  ...an array of cases, including Poe versus Ullman, which was about a Connecticut contraception ban that wasn't enforced. And I don't even know what to say anymore. Thanks, guys.

• 14:22Leah Litman?

  Just give them Justice Jackson's dissent and diamond alternative energy.

• 14:26Melissa Murray?

  That will make it all clear, yes.

• 14:28Speaker 03

  Yeah, that is an epic dissent. And it does sort of call it like she sees it. Like, if they want to do the substantive constitutional change they want to do, they will just, or advantage the parties they want to advantage, they will find standing. If not, they won't. And we should say that Justice Odegaard definitely did underscore the lack of standing in this case, but it does not seem as though that's going to be an obstacle to the majority. So they're probably going to reach the merits of this question. And on the merits, it also seems pretty clear that there is going to be a majority and a supermajority and maybe even more than six votes to strike down the law. The justices are probably going to say the Colorado law regulates speech and is such is subject to strict scrutiny. At one point in the argument, it seemed like invalidating Colorado's restriction on licensed

• 15:12Speaker 03

  professional therapist treatment wasn't going to be enough for the right wing majority on the court. So Justice Barrett floated the prospect of immunizing the therapist plaintiff from medical malpractice suits, too. That is, the court could at least in theory say that not only can this law not be enforced against the practice of this extremely damaging and destructive therapy, but therapists maybe can't even be sued by patients for malpractice if they engage in conversion therapy. This had very strong echoes of Barrett's scremetti concurrence, where she said, even if the Tennessee law in that case did discriminate against trans people, and the court majority actually said it didn't, but even if it did, that would be OK, too.

• 15:56Speaker 03

  Interestingly, Charles's lawyer, at least as I read the responses, didn't seem to be biting on this, seemed to be saying, we're not really asking for that, for you to extend this protection to the context of malpractice suits. But maybe I'm wrong.

• 16:10Leah Litman?

  Let's at least pretend you're just adjudicating cases here for a second.

• 16:14Speaker 03

  Totally. Yeah. And that's how bad things have gotten.

• 16:17Leah Litman?

  Let me think this is a legitimate enterprise where I'm going to win.

• 16:18Speaker 03

  Completely.

• 16:19Melissa Murray?

  I actually did not relate it to her scremetti concurrence, where she gratuitously kind of offered a new theory of equal protection and how we identify suspect classes. I actually thought the whole line of discussion around malpractice suits and the immunization of therapists was very similar to Trump versus the United States. Like, you can do whatever.

• 16:39Leah Litman?

  Oh, interesting.

• 16:40Melissa Murray?

  Wild out if you want to, and it'll be fine. Like, say whatever you like. Free speech for everybody.

• 16:45Speaker 03

  But of course, she didn't want to go quite as far as the majority in Trump versus the United States. And here, she seemed to want to maybe go further.

• 16:51Melissa Murray?

  Christian therapists.

• 16:53Speaker 03

  Immunity for you. Remember, I think it's in Sotomayor's dissent, she's like, right, immune, immune, immune. So basically, that's what the court is doing now in all kinds of.

• 17:01Leah Litman?

  You get immunity.

• 17:02Melissa Murray?

  Exactly. The other thing that I will note, that I thought was very interesting about this oral argument, was how much abortion. jurisprudence is seeding all of this chaotic conservative grievance jurisprudence. So two cases came up, Nifla versus Becerra and then McCullin versus Coakley. I'm just going to talk about Nifla because it was the one that really occupied a lot of the airtime here and it framed much of the dispute. So Nifla was a case decided by the court in 2018 and it was a challenge to a series of California consumer protection laws that required crisis pregnancy centers to inform patients about the availability of abortion care in the state and about state support

• 17:43Melissa Murray?

  for abortion care and to inform the patients that these crisis pregnancy centers were in fact unlicensed and didn't offer certain services like abortion. And that part, I think warrants some elaboration. The crisis pregnancy centers would often present themselves to the public as facilities where you could get an abortion. And then, once a patient went in seeking an abortion, suddenly they would turn on all of these sort of tactics to try and convince the patient not to terminate the pregnancy and to continue it to term. So these laws were basically aimed at getting crisis pregnancy centers to be transparent about their anti-abortion purposes. And when the laws came before this court, the court's Republican appointees all fell

• 18:28Melissa Murray?

  in line and concluded that a state's efforts to require licensees to provide accurate information to consumers about the services they provide, wait for it, violates the First Amendment. I.e. the Republican appointees held that California could not require these professional businesses to inform consumers and customers of simple facts. This case is where the litigants in Charles versus Salazar begin because the jokes write themselves. And this is also the case that somewhat weakens some of Colorado's defenses in Charles because Nifla limits the state's ability to justify the Colorado law as a regulation of professional speech.

• 19:08Speaker 03

  In addition to NIFLA, there were also echoes of another case also involving both kind of abortion and speech, McCullin versus Coakley. So in that case, the Supreme Court said states can't impose a buffer zone around clinics because doing so violates the First Amendment rights of sidewalk counselors who are trying to have, this is actually the court's description, "quiet conversations with clinic patients to convince them not to terminate their pregnancies." And if you've seen protests outside of abortion clinics, I am sorry, they are not having quiet conversations.

• 19:38Melissa Murray?

  You usually don't have to get pardoned when you're having a quiet conversation after...

• 19:42Speaker 03

  Not usually required.

• 19:45Melissa Murray?

  Not usually.

• 19:45Leah Litman?

  Hmm. Anyways, remember how one Justice Antonin Scalia used to lecture us about how abortion was affecting and perverting other areas of law and how that was bad? Psych. Now, apparently, it's great to frame everything around the court's special jurisprudence created for abortion, and that's exactly what NIFLA was, because in NIFLA, the court said that First Amendment rules regarding mandatory disclosures couldn't just be straightforwardly applied to the California laws in that case because the laws concerned abortion, which the court described as anything but an uncontroversial topic. So the court's anti-abortion vibes warped First Amendment law, and now that warped First Amendment law is being transported smack dab into anti-LGBT jurisprudence.

• 20:30Melissa Murray?

  I love it when a plan comes together.

• 20:32Speaker 03

  Okay, so to go back to the child's argument, a lot of the discussion in the case centered on whether it mattered that the statute restricted medical treatment being offered by a licensed medical provider. So as Justice Jackson explained, if a state can tell a medical provider, "Hey, you can't give someone a pill to do this," why can you offer therapy that is designed to do the same thing? And several justices threw out examples of other restrictions that seem perfectly permissible. Justice Sotomayor said, "How about a law that tells dieticians, 'Don't encourage anorexic patients to engage in restrictive eating.'" Or Kagan had an example of a doctor telling you to lower your cholesterol by going out and eating dessert for every meal.

• 21:10Melissa Murray?

  So the ADF lawyer and the federal government wanted to say that it doesn't matter whether this was an in-treatment setting or not. So hold that thought for a moment. What matters here, according to the lawyer, is whether the law is regulating speech incidental to conduct or speech.

• 21:28Melissa Murray?

  But when Justice Jackson asked the lawyer for the federal government, "Hey, why isn't this regulation like the one in Skirretti, which we upheld? It also restricts some medical treatment that the state says is harmful on the basis of conflicting evidence." The federal government's lawyer said, "Well, Skirretti was a law that regulated on the basis of age and medical treatment."

• 21:51Leah Litman?

  Huh? Why, why is one regulating treatment and the other isn't? Why does saying one law regulates treatment insulate it from constitutional challenge, but that doesn't work for the other law? Very hmm. The idea that any regulation of speech, like divorced from context and divorced from the reason it's being regulated, trigger strict scrutiny or other kind of scrutiny is just insane. Like, would the justices say courts can't restrict hearsay testimony? Because that's just speech? Like, would they say you can't prohibit perjury? That's just talking? How about prohibiting verbal agreements in restraint of trade? How about allowing teachers or professors to penalize students who just shout "fuck you" in the class all class long? Why can the state even limit therapy and treatments to licensed therapists? Like, some rando on the internet just wants to talk in that speech, too?

• 22:35Leah Litman?

  Like, this theory is just nutso. And Sam Alito was very triggered in this argument by people pointing out that conversion therapy is inconsistent with professional standards of care. He went full-on woke Lito when people brought this up. He wanted to trot out all of the ways in which the medical profession might have been racist or ableist in the past, at one point referring to Oliver Wendell Holmes' infamous line, you know, "Three generations of imbeciles are enough."

• 23:02Melissa Murray?

  He didn't even get that right. He said idiots.

• 23:05Leah Litman?

  I know. He, he said idiots, but I, I

• 23:07Melissa Murray?

  The jokes write themselves.

• 23:08Leah Litman?

  Attempted to adjust it for him. Exactly. And he used, you know, all of this history to intimate that the court should ignore medical experts and professional standards of care today.

• 23:18Speaker 03

  I am obsessed with Alito's fixation on Buck versus Bell. That's the case in which Holmes makes his infamous "three generations of imbeciles" line. He's brought it up a number of times. He hates that decision. I think he has referred to it as one of the worst decisions the court has ever issued. But I want, I'm just like dying for someone to press him with the question of what exactly in the Constitution he thinks prevents states from enacting or enforcing compulsory sterilization laws like the one at issue in Buck versus Bell? Like, The Constitution doesn't expla-- you know, you might say, well, we have the liberty to decide not to be sterilized against our will by states, but he doesn't believe that there's any content to that liberty, except if history and tradition fills that constitutional term.

• 24:02Speaker 03

  And regrettably, we have a long history and tradition of compulsory sterilization laws. So on his own professed method, there is not really any basis for courts today to find that those kinds of laws violate the Constitution's liberty guarantees. So I just want someone to demand an explanation from him.

• 24:18Melissa Murray?

  Leah?

• 24:19Leah Litman?

  Well, it's liberty for breeders and birthing and nothing else. That's the explanation, I think.

• 24:25Speaker 03

  Only thing that squares.

• 24:26Melissa Murray?

  Well, I'm going to introduce another aspect of this. Listeners, it's time for our very special segment. We need to talk about Justice Clarence Thomas. There are no new ideas here because I am here to remind you that the invocation of Buck versus Bell is straight out of the Clarence Thomas playbook. I know that Alito loves it too, but I think he got it from Justice Thomas. So in the pre-Dobbs salad days, when women had rights, Justice Thomas used to trot out Buck versus Bell as evidence that earlier courts routinely used to sanction questionable practices that had since been discredited, like eugenic sterilization and abortion. And basically, this is Justice Alito heeding Justice Thomas.

• 25:09Leah Litman?

  Several justices wanted to say that Colorado's law amounted to viewpoint discrimination because the law would allow a therapist to help patients accept being gay, but not offer to change them into being straight. But again, I come back to that's not why they're allowing one, but not the other. One form of treatment is consistent with professional standards of care in medicine. The other is not. But throughout the argument, I thought you could kind of hear the disdain with which at least some of the Republican appointees talk about sexual orientation and gender identity. So here, for example, is one Samuel Alito.

• 25:44Speaker 06

  If you recall the example that I gave you, I'll give it to you again because I want to contrast it with another situation. So in the first situation, an adolescent male comes to a licensed therapist. And says he's attracted to other males, but he feels uneasy and guilty about those feelings. He wants to end or lessen them, and he asks for the therapist's help in doing so. The other situation is a similar adolescent male comes to a licensed therapist, says he's attracted to other males, feels uneasy and guilty about those feelings, and he wants the therapist's help so he will feel comfortable as a gay young man.

• 26:25Speaker 06

  It seems to me your statute dictates opposite results in those two situations based on the viewpoint expressed. One viewpoint is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction, if that's what he or she wants. And the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants. Looks like blatant viewpoint discrimination.

• 26:56Leah Litman?

  It's the, he says he's attracted to other males, and he feels guilty, and references to same-sex attraction rather than identity that are triggering this for me.

• 27:08Speaker 03

  Yeah, it didn't make my skin not crawl to hear him.

• 27:12Melissa Murray?

  I got some, I think Justice Kagan was very much persuaded by this is viewpoint discrimination.

• 27:20Speaker 03

  This was my, it could be more than six. I don't think Jackson or so to my order.

• 27:23Melissa Murray?

  No.

• 27:24Leah Litman?

  Yeah, I know, I think so. And I think like she was approaching the argument by trying to posit another kind of law that Colorado could enact that would do the same thing. So she was suggesting, for example, a prohibition on licensed medical practitioners doing things that diverge from the standard of care and saying, well, that like wouldn't be viewpoint discrimination. Now, I don't think any of her Republican colleagues or the lawyer for ADF or the federal government would be okay with that law either, but that seemed to be what she wanted to do and say.

• 28:02Melissa Murray?

  So I think there are two ways this case could go. One is sort of the court, just with a six to three or a seven to two majority, just invalidating the law too sweet and, you know, it's all over. Or alternatively, and this was sort of where Justice Sotomayor and Justice Jackson were, I think, trying to sort of salvage something from the shards of this oral argument, is focusing on the fact that the lower court didn't apply the appropriate standard of review. The lower court applied rational basis review. You know, the court here seems to be leaning toward the fact that this is a First Amendment violation, viewpoint discrimination that requires strict scrutiny, even though these are licensed professionals, don't let that bother you, but strict scrutiny anyway. And then the idea would be that they would have to send it back to the lower courts

• 28:46Melissa Murray?

  to do the strict scrutiny analysis. And Justice Jackson at one point said, you know, strict scrutiny isn't always fatal in fact. I think I heard that from one of you all. And I don't know that that's the way this is going to go. But, I mean, I think if the court is sort of reading the public, I think there are a lot of people who are just like, this feels very inconsistent with where you were in terms of skirmishing. Yeah.

• 29:08Speaker 03

  Yeah, I think Mahmoud points in the other direction, right? Points to them just actually both announcing and applying.

• 29:13Melissa Murray?

  That's exactly what they did in Mahmoud.

• 29:14Speaker 03

  Yeah, to strike down the law. But I think that's an astute observation. If they are reading the winds, which I don't see a lot of evidence that they are, but if they are, they could potentially notch a kind of victory in the court of public opinion by appearing to be somewhat restrained in what they do here and just send the case back to the lower court for application of strict scrutiny.

• 29:33Melissa Murray?

  Humble restrained court.

• 29:35Speaker 03

  Right? The headlines write themselves.

• 29:38Melissa Murray?

  Yes, the jokes too.

• 29:43Melissa Murray?

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• 30:27Melissa Murray?

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• 31:09Melissa Murray?

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• 31:39Speaker 07

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

• 32:15Speaker 03

  Let's move on. The court also heard oral argument in a case called Bost versus Illinois Department of Elections. This is a case about whether a Republican political official can challenge an Illinois law that counts ballots that are received after Election Day. The official says that this law injures him because it means he has to pay campaign staff for an additional two weeks.

• 32:34Melissa Murray?

  So stepping back, the rationale here is that the candidate has to spend extra money, and that sounds like a pocketbook injury, if you will. And the candidate's lawyer also tried to emphasize how great it would be to resolve questions about election rules well in advance of an election. Justice Kavanaugh picked up on this repeatedly like a dog with a bone. Justice Kagan, however, responded to this by noting that the court's existing rules seem to have worked just fine, which, true. But all of this might overlook the swath of completely nutty challenges to laws that allow voting and that expand the franchise that are waiting in the wings. And this seems to be just the first of many of those. And those challenges might get traction in the federal courts today in a way

• 33:19Melissa Murray?

  that they would not have before. They probably would even have gotten to courts before because they would have been struck down on pre-clearance, at least pre-2013. But now that these challenges are moving forward and the changing composition of the courts, I think it's very likely we'll see more of them and more of these kinds of rationales.

• 33:38Leah Litman?

  And it also just seems strange to say that candidates or officials have a legally cognizable interest in restricting the availability of voting or limiting votes that can be counted. Like, that just doesn't seem like the kind of injury or interest a law would recognize or protect. Like, can Donald Trump walk into court and seek an injunction against the due process clause because it costs money to try his critics? Like, that seems weird. And, no, seriously, like, this relates to a point Justice Kagan made in her foreign aid dissent. You know, the fact that the president didn't think some congressional appropriations were consistent with his view of American values, like, that was not a cognizable harm. That is a frustration he has to bear in a system of laws.

• 34:19Leah Litman?

  So too, right, this is a frustration in a system that is Democratic and that wants to count people's votes.

• 34:26Speaker 03

  A frustration that a president has to bear in a system of laws is in the, you know, traditional equitable factors on the shadow docket always grounds for presidential victory at this point. I feel like we just have to.

• 34:37Melissa Murray?

  Or a trade deficit is actually an emergency always.

• 34:40Speaker 03

  Yes, that too. Okay, but again, back to this election case. So the candidate plaintiff actually did not want standing to depend on whether a particular candidate or official was likely to win in the election at issue, or, you know, whether or how these, the late arriving ballots might make a difference. The focus was really on this like paying campaign staff for extra time issue. And that meant he actually didn't focus on how Republicans might be the ones injured by counting late arriving ballots. And this, because, you know, it's a week starting with a Monday, like also triggered Samuel Alito, who was very piqued that there wasn't a right wing grievance theory in the case. So you can honestly, like, really hear that here.

• 35:20Speaker 06

  You have several arguments, and I don't want to get into most of them right now. But on the issue of competitive injury, it's not clear to me why you couldn't have done a lot better than you did in your complaint. And alleged what I think a lot of people believe to be true, which is that loosening the rules for counting votes like this generally hurts Republican candidates, generally helps Democratic candidates. Why didn't you pursue that? Why didn't you try to do something with that?

• 35:54Leah Litman?

  But getting back to the idea of why the candidate has an interest here, it was a little jarring hearing justices talk about mail-in voting in terms of injuries related to counting more or less votes. Once again, I give you Samuel Alito.

• 36:09Speaker 06

  Well, we're talking about injury in fact. Isn't a smaller margin of victory an injury in fact?

• 36:17Speaker 03

  Isn't this like the sort of big he admitted?

• 36:19Melissa Murray?

  Yes.

• 36:19Speaker 03

  Energy that we talked about at the live show?

• 36:22Melissa Murray?

  Yes. Too much democracy is the injury.

• 36:26Speaker 03

  Yep.

• 36:26Leah Litman?

  Right.

• 36:26Speaker 03

  At least if you were a Republican candidate.

• 36:28Melissa Murray?

  Yes.

• 36:28Leah Litman?

  He admitted energy, like this part of the case called to mind in exchange from a previous decision, Bernovich versus DNC, a Voting Rights Act case from a few years ago, where a question from Justice Barrett elicited a response that she didn't really want to hear, namely, the Republican Party signaling, like, it had an interest in not having votes counted, which you can hear here. So, you know, the DNC had standing, and the district court said that it had standing to challenge the out-of-precinct policy because the policy placed a greater imperative on Democratic organizations to educate their voters and because the policy harmed its members who would have voted out of precinct. What's the interest of the Arizona RNC here in keeping, say, the out-of-precinct voter

• 37:13Leah Litman?

  ballot disqualification rules on the books?

• 37:16Speaker 05

  Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game. And every extra vote they get through unlawful interpretations of Section 2 hurts us. It's the difference between winning an election 50 to 49 and losing an election 51.

• 37:33Leah Litman?

  Okay, thank you. My time is up. So I'm not feeling great about this case. It is a standing matter in that context of Republican interest in expansively challenging laws and policies that allow people to vote, but we shall see.

• 37:44Speaker 03

  Yeah. So let's briefly mention the other cases that the court heard during the first week of the term. One was Villarreal versus Texas, which is a Sixth Amendment right to counsel case about whether a trial court can prohibit a defendant and his counsel from discussing the defendant's testimony during an overnight recess of a trial.

• 38:00Melissa Murray?

  Some of the justices, including justices Jackson and Kagan, focused on how the court's prior cases seem to allow trial courts to prohibit discussions about the content of a defendant's testimony, but don't allow them to restrict discussions that might relate to or rely on inferences about the defendant's testimony, such as whether to take a plea bargain or call another witness. And the defendant here was arguing for a rule that was rooted instead in time. That would say that- Courts can't restrict overnight discussions about testimony, but can restrict discussions during daytime recesses, perhaps unless the recess is a certain length. I didn't get the sense that a lot of the justices felt that the line that the defendant was trying to draw made a lot of sense.

• 38:43Melissa Murray?

  But I do want to play this one clip because I think it underscores how lawyering in the federal government is going these days. So here we go.

• 38:52Speaker 07

  Mr. Wartham, I appreciate the subtlety of Texas's position as compared to the Solicitor General's more absolute rule. And I just have a couple of questions about that distinction.

• 39:03Leah Litman?

  Dang, Gina, the state of Texas is taking more nuanced positions than the United States federal government? Ouch. I mean, in this particular case, like Texas is drawing a line between incidental and non- incidental discussions of testimony, saying that courts can tell lawyers and defendants they can't discuss the testimony as such, but of course can discuss matters related to the testimony as we described. Whereas the federal government is saying you can't even discuss downstream decisions such as whether to take a plea deal that are based on or linked to testimony. You can only have those discussions in the abstract.

• 39:34Melissa Murray?

  Another argument that was heard last week was in Burke versus Choi. So, hey there, civil procedure, fed courts hive, it's time to rise because this case is about the Erie doctrine. Ooh, that felt tingly. The Erie doctrine is about whether state or federal rules apply when litigants are raising state law claims in federal court. And the specific state rule here is a state rule that requires expert affidavits to be filed in medical malpractice cases.

• 40:02Speaker 03

  And the justices were very fixated on how states can address the problem of medical malpractice if the state rule didn't apply.

• 40:08Melissa Murray?

  You know what was malpractice here? The number of times the men's on this court interrupted or cut off Justice Jackson. Also malpractice, the way Justice Barrett didn't seem to come back to her earlier stance on immunizing everyone from malpractice soon.

• 40:25Speaker 03

  Both of those things were the actual malpractice.

• 40:28Melissa Murray?

  Yes, for sure. So in Erie cases, the justices ask whether there's a conflict between, you know, the state rule, the state affidavit.

• 40:36Leah Litman?

  ...requirement here in the federal rules of civil procedure. I think it came out that the justices felt like the vibes of the Delaware affidavit rule were just different than the vibes of the federal rules, since the federal rules create a regime of notice pleading where plaintiffs can file pretty bare bones complaints, whereas the Delaware rule requires more. Some of the justices, the ones with good reading skills, were able to identify more concrete conflicts. As Justice Jackson noted, the Delaware rule would change when a defendant's answer is due. As Justice Kagan noted, the fact that this is labeled as an affidavit shouldn't matter because if the state required you to include as an affidavit a pleading that went beyond notice pleading, that would be a conflict. I'm not clear who will prevail here, but we will be following.

• 41:18Melissa Murray?

  There was also a case called Barrett versus United States, and I was honestly very surprised to learn that this dispute was not brought by Justice Barrett against American book lovers for refusing to purchase Listening to the Law. Just kidding, don't get mad. Listening to the Law is a bestseller. I should note, however, though, that the following books have recently ranked ahead of Listening to the Law on the New York Times Bestsellers list. So, History Matters by David McCullough, We the People by Jill Lepore, Black AF History by Michael Harriet, Why Fascists Hate Teachers by Randy Weingarten, The Book of Sheen by

• 41:59Melissa Murray?

  Charlie Sheen, and at number one last week, Poems and Prayers by Matthew McConaughey. All right, all right, all right.

• 42:10Leah Litman?

  So Barrett versus United States actually concerns whether a defendant can receive sentences under two provisions of the Armed, Career or Criminal Act. This issue was previewed in the court's previous decision in Laura versus United States when the court interpreted the sentencing provisions governing two firearms charges. One of the two sections is 924(c), which prohibits using a firearm in connection with a crime of violence or serious drug offense, and 924-j, which penalizes using a firearm in the course of violating 924(c) while causing the death of another person.

• 42:41Speaker 03

  Okay, so in Laura, the court held that the provision in 924(c) that requires sentences imposed under the section to be imposed consecutively rather than concurrently doesn't apply to 924-j. The question here in Barrett is whether the federal government can impose punishments under both provisions, so both (c) and (j). The federal government in this case conceded that they can't, so the court appointed an amicus, Texas attorney John Bash, to defend the position that imposing two punishments would be permissible.

• 43:07Leah Litman?

  So there were several moments early on in the oral argument where it seemed like Justices Jackson and Sotomayor were attempting to teach Brett Kavanaugh how double jeopardy works and how it's different than concurrent sentencing. Like, it was honestly kind of painful. Like, the question in this case is related to double jeopardy because the presumption that Congress doesn't intend to impose two punishments for the same offense is probably rooted in part in the double jeopardy clause. And you apply double jeopardy decisions to ask if the two subsections are the same offense, but the question here is about the proper interpretation of the provisions in ACHA. Like, it's a statutory interpretation case. And it was a little hard for me to count to five in this case. Justices Jackson and Sotomayor were clearly with petitioner and the federal government. I thought Justice

• 43:50Leah Litman?

  Gorsuch probably was as well. It sounded like Justices Alito and Kavanaugh were with the court appointed amicus. If I had to guess, I would probably say ruling for petitioner and federal government that you can't impose punishments under both provisions.

• 44:03Melissa Murray?

  And finally, the court heard U.S. Postal Service versus Conan, which presents a question about the scope of the Federal Tort Claims Act, specifically the postal exception. Under the FTC, you can sue the federal government for actions of federal officers unless an exception applies. And here, there is an exception for cases related to the miscarriage or loss of mail. The question in this case is what that means and whether it covers what the plaintiff is suing over here, which includes intentionally not delivering the mail in a campaign of racial harassment that the plaintiff has alleged. Isha Anand from Stanford Supreme Court Clinic argued on behalf of the plaintiff respondent, and per usual, she did a terrific job.

• 44:46Leah Litman?

  Sam Alito wanted to ask about Christmas cards in this case.

• 44:52Melissa Murray?

  Black Santa Christmas list.

• 44:54Leah Litman?

  Exactly.

• 44:55Speaker 03

  Restraining himself.

• 44:56Melissa Murray?

  You know, that was on the tip of his tongue. What if Black Santa had a Christmas list?

• 45:04Speaker 03

  All right, so we are midway through the October sitting. During the sitting, there are a total of 29 argument slots. Eight of those, so we're talking single digits, are women. So probably too many in the eyes of some. But alas, we have a lot of legal news to cover.

• 45:19Melissa Murray?

  Too many women, not enough Johns, Peters.

• 45:25Speaker 03

  Yes, but what else we say? There was one, yeah, I guess there was a sitting last year with like more Richards than women, or was it Peter? Who can recall? In any event, in addition to everything that's happening at SCOTUS, Article II and the lower federal courts continue apace. They don't just hit pause because SCOTUS is back for a new term. And since our live show in Chicago, we have had some developments in the case out of Oregon about whether Trump can deploy the National Guard to Portland. So an hour before we took the stage for that wonderful live show at the A and M in Chicago, we got the district court's initial opinion restraining Trump's deployment of those troops to Oregon. The opinion concluded that Trump didn't have a factual basis for his claim that deploying the military in Portland was necessary to execute federal law.

• 46:07Speaker 03

  The judge, a Trump appointee, described the claims the administration was offering as untethered from facts.

• 46:14Melissa Murray?

  After the ruling and on a platform formerly known as Twitter, you know what? I'm never calling it X. Like, is Mama called him Twitter? I'mma call him Twitter. Stephen Miller accused the judge in the Oregon case, who again was appointed by Donald Trump, of engaging in what he called "legal insurrection." And he stuck by that claim, said it with his whole chest as he did the rounds on TV. Let's hear a clip. You called a legal ruling "legal insurrection." Are you recommending the president take action? Judge, if you wanted to disagree with that? No, it's simply a factually accurate statement. After Miller accused the judge of "legal insurrection," Secretary of War Pete Hegseth,

• 46:59Melissa Murray?

  a phrase that honestly is as least as weird as Supreme Court Justice Brett Kavanaugh.

• 47:04Speaker 03

  Can I say one thing? So it is so insane, but Secretary of Defense, you would abbreviate SecDef, which sounds kind of like tough. Sal is how you abbreviate Secretary of War.

• 47:14Melissa Murray?

  Exactly.

• 47:15Speaker 03

  Sal Pete Hegseth. Sal Pete Hegseth. I think there's actually like a tiny sliver of joy in that abbreviation. Sorry, Melissa.

• 47:20Melissa Murray?

  I'll take the joy where we can find it. Sal Pete Hegseth issued a memo that redeployed the Texas National Guard to Oregon. So now we're sending one state's military to invade another state against their will, which, I don't know, honestly is giving civil war vibes, but whatever. And it also seems to be a real inversion of Section 4 of Article 4 of the Constitution, which says, quote, "The United States shall protect each of the states against invasion and on application of the legislature or of the executive against domestic violence." Hmm.

• 47:57Leah Litman?

  Anyways, it turns out the misogyny, probably a hell of a gateway drug to fascism, because this week Politico reported that Trump's nominee to leave the office investigating Jack Smith is, again, reportedly, allegedly, recently been investigated for harassing a female subordinate, including by allegedly canceling the woman's reservation at a hotel and then telling her she would be staying with him. Now, the Trump nominee has, I guess, denied this and threatened to sue Politico, but that is the story.

• 48:30Speaker 03

  All right, so back to the other sort of key domain of the kind of misogyny/fascism crossover. The administration's decision to redeploy the Texas National Guard to Oregon is really emblematic of this administration's defiance of lower courts. This is what Leah and her co-author Dan Deacon call in a forthcoming article "legalistic noncompliance." Basically, the administration, again and again, loses in court, changes like one tiny little irrelevant fact about what it is doing, resumes doing the unlawful thing, and insists, no, no, no, we're doing something totally different, not defying the courts, basically forcing the lower federal courts and litigants to play whack-a-mole with the federal government.

• 49:10Leah Litman?

  Sounds like the travel ban.

• 49:13Melissa Murray?

  Honestly, right? I mean, there are no new ideas.

• 49:17Speaker 03

  Yeah. Here is Stephen Miller talking about compliance or really defiance of the Oregon order.

• 49:24Speaker 07

  Does the administration still plan to abide by that ruling?

• 49:30Speaker 07

  Well, the administration filed an appeal this morning with the Ninth Circuit. I would note the administration won an identical case in the Ninth Circuit just a few months ago with respect to the federalizing of the California National Guard. Under Title 10 of the U.S. Code, the president has plenary authority.

• 49:50Speaker 07

  Stephen?

• 49:54Speaker 07

  Stephen?

• 49:56Speaker 07

  Hey, Stephen, can you hear me?

• 49:59Melissa Murray?

  Let's just say the Oregon judge was not impressed with the government's runaround here. The judge convened an emergency hearing on Sunday night to determine if the redeployment violated its order. And the judge concluded that the redeployment was also illegal for the very same reasons the initial deployment was unlawful, namely that the president had no reason for thinking the National Guard was actually necessary. So it didn't matter if the National Guard was coming from Oregon or Texas, it was entirely superfluous.

• 50:29Leah Litman?

  The judge was really not happy with the government. You know, there was an exchange that went something like the court asking, you're an officer of the court, do you believe this is an appropriate way to deal with my order? And the lawyer says, well, I'm not a policymaker. And the court says, you're a lawyer. It's like when the judge has to remind you that you're a lawyer, things probably not going that well. The administration has already appealed this to the Ninth Circuit. So we'll see what happens there and then probably after that, Supreme Court as well.

• 51:00Speaker 03

  Yeah. And there is also ongoing litigation in Chicago slash Illinois. So essentially, as we were leaving Chicago, the president announced, as he had been threatening to do really for like months, that he would be federalizing the Illinois National Guard over Governor Pritzker's refusal and deploying it in the city. And this is happening against the backdrop of Trump. More recently, having threatened to have Governor Pritzker and the Chicago Mayor Brandon Johnson arrested, which you shouldn't write off because Jim Comey was arraigned last week, Tish James was just indicted, President Trump had threatened both of those things and very much has followed through on them. It is also happening against the backdrop of, as we talked about with Illinois Lieutenant

• 51:45Speaker 03

  Governor Juliana Stratton last week, the president's statements that he wants to deploy the military against, quote, "domestic enemies" and have them use American cities like Chicago as training grounds.

• 51:56Melissa Murray?

  So there was this absolutely bonkers "roundtable," in air quotes, that the administration hosted on Antifa. Yes. And Attorney General Pamela Jo Bondi spoke about what the administration wants to do with Antifa, which, again, the administration defines so broadly that it includes almost anyone who has said anything critical about the administration. So here's a clip.

• 52:23Leah Litman?

  Just like we did with cartels, we're going to take the same approach, President Trump, with Antifa. Destroy the entire organization from top to bottom. We're going to take them apart. To be clear, the administration has been summarily executing people, they suspect or just say are part of cartels. And, you know, Kate listed off the context in which all of these events are playing out. It is also happening against the backdrop of the administration reportedly considering formally invoking the Insurrection Act, a law that, if properly invoked, would allow Donald Trump to use the military to enforce federal law.

• 53:04Melissa Murray?

  I don't know. Maybe I'm being hyperbolic here, but I think if you're invoking the Insurrection Act, you're probably thinking about how this also intersects with elections and whether you need to have the military around on Election Day to keep order, which would be a pretty good way, I think, to keep people at home.

• 53:21Speaker 03

  Yeah, I think the old voter suppression lawsuits to prevent election officials from counting late arriving ballots, new voter suppression, military in the streets and around polling places.

• 53:29Melissa Murray?

  Tired, wired.

• 53:30Speaker 03

  Yeah, right. Exactly. And I mentioned this a minute ago, but want to say it again, the people in Chicago and their elected representatives are very much not just sitting back and taking this, they are pushing back in what are genuinely inspiring and brave ways. People are in the streets of Chicago peacefully demonstrating, signaling that this country is supposed to be a democracy where we have First Amendment rights to protest, to film ICE officers, to criticize the administration and its immigration enforcement tactics. And they are doing that even though all of this is peaceful, very constitutionally protected activity, knowing that this is an administration that has not honored those values and could well, and in some instances, has retaliated with violence, and they are doing it nevertheless.

• 54:12Melissa Murray?

  So these responses, I think, are really meaningful and we should highlight them because they are a sign that, one, people are not afraid. And that's important because as scary as this administration is and as tyrannical as the powers that the administration is claiming are, they're still weak because people are unafraid. They don't have public opinion on their side. It's important to demonstrate that, in part, to encourage others to speak out about their misgivings about what's happening. And it's also important, I think, because it's an exercise in popular constitutionalism, defining what this country is supposed to be. Are we actually a country where the president can deploy the military against critics? I think the fuck not.

• 54:56Melissa Murray?

  Or are we a place that allows protest and criticism of the powerful? That seems to be what we have been. And we could just go on and on about it, but I really want to big up these folks who are standing up because I think it's really important in this moment where people can just be sad and depressed about what's happening, but these are real glimmers of hope and we should treat them as such. And this is why they are absolutely bent on sending the military in to stop it.

• 55:24Leah Litman?

  Yeah. This is also happening in Portland and Oregon as well. You know, in Portland, demonstrators have taken to protesting in large animal costumes because the furries are going to help get us out from fascism. They might. They might. I know. I know. Like, the Portland frog was pepper sprayed, and now there is a Portland chicken and cows. You know, The Week has an absolutely incredible interview with one of the protesters, which is worth reading in full. I just want to highlight a few lines where the protester, the Portland chicken, says, quote, "What they rely on is fear. So by coming out in an absurdist manner," it says, "that we're actually not that afraid." It also dismantles their narrative a little bit when they try to describe the situation as war-torn, and Kristi Noem is up on the balcony staring over the Antifa Army. And

• 56:07Leah Litman?

  it's like eight journalists and five protesters, and one of them is in a chicken suit, right? Kind of undermines the narrative.

• 56:12Speaker 03

  Yes. So amen, more animal suits of all stripes. Governor Pritzker also got in on the absurdity. He made this appearance on Kimmel. We also got a very special report filed by J.B. Pritzker, the governor of Illinois.

• 56:26Speaker 06

  This is J.B. Pritzker, reporting from war-torn Chicago. As you can see, there's utter mayhem and chaos on the ground. It's quite disturbing. The Milwaukee Brewers have come in to attack our Chicago Cubs. We've seen people being forced to eat hot dogs with ketchup on them. And our deep-dish pizza, well, has gone shallow. So it's a challenge to survive here in the city of Chicago, but there's no hellscape that I'd rather be in.

• 56:56Leah Litman?

  Part of the fight in Oregon and Illinois is, as Lieutenant Governor Juliana Stratton talked about in our live show, is about taking the fight to the courts. And that includes a case challenging ISIS treatment of protesters and journalists, which has included firing pepper balls, assaulting protesters and journalists, arresting them, shooting journalists with less lethal items in the head and the groin, and pointing assault rifles at civilians who are merely exercising their rights. And a federal court issued a temporary restraining order, finding that ISIS conduct likely violated the First Amendment. The judge highlighted ISIS attacks against a reverend who was protesting at a detention facility through prayer.

• 57:39Melissa Murray?

  Right? And concluded that ICE was in violation of basically the whole First Amendment. Too sweet.

• 57:46Leah Litman?

  Just want to briefly side note, the clergyman, they pelted in the face, which was captured in photographs, is like straight out of season two of Fleabag, if you know what I mean. He's a hottie.

• 57:58Speaker 03

  I did know what you meant.

• 57:59Melissa Murray?

  Is it Ralph DeBriekisart kind of priest? That kind of priest?

• 58:04Speaker 03

  I couldn't get a good enough look to say for sure. I will say that he did have kind of like hipster jeans on, which made me think that he like, isn't a real enough man of faith for them to actually respect by not pepper spraying in the face, which is what they did to him. So, the judge in the Illinois case brought by a bunch of private plaintiffs, there's also a case brought by the Attorney General, required ICE to stop dispersing and threatening or using force against people they should reasonably know are journalists without probable cause of a crime. It also limits their ability to use riot control weapons on individuals who are not posing immediate threats. And it requires ICE, this is I think really important, to have visible identification.

• 58:46Leah Litman?

  And we should say that basically within 24, 48 hours of that order, it already looks like they might be violating this. There's a video now circulating of an arrest of a journalist in Chicago.

• 58:59Melissa Murray?

  Chicago and Illinois have also challenged Trump's deployment of the National Guard. So a district court declined to issue a temporary restraining order at the initial hearing, but that was in part because of the volume of evidence that had been introduced and because the court wanted to have the administration respond to that evidence. Then, at a subsequent hearing later last week, the judge did grant the TRO that the city and state had requested, finding that the deployment of the guard was in fact unlawful. And the judge said it came down to a credibility determination. So, this is a judge with, faced with voluminous evidence of the federal government's wrongdoing, was like, yep, looks like wrongdoing. Credibility determination.

• 59:42Leah Litman?

  At the hearing explaining the order, the judge said, quote, "I simply cannot credit the Trump administration's declarations to the extent they contradict state and local law enforcement. DHS's perception of events are simply unreliable."

• 59:54Speaker 03

  And the judge continued, quote, "Deportations are up, arrests are up, the courthouse remains open and always has. Federal laws are being executed. They're also being broken as they have been since the beginning of time." Just a refreshing breath of reason.

• 1:00:08Leah Litman?

  Yeah. And during the oral argument about whether to grant the restraining order, the judge suggested that the federal government's definition of rebellion would mean that literally all nonviolent protests could be considered evidence of rebellion and asked the department if that was their argument, to which the federal government said, "The president has determined there is a danger of rebellion and you must defer to that finding." Basically, yes. So seems like the DOJ could declare giant furries and inflatable animals like the Portland frog, which if you haven't watched the videos, you should, and the Portland chicken to be a rebellion.

• 1:00:40Melissa Murray?

  You will respect my authority.

• 1:00:44Leah Litman?

  Thanks, Cartman.

• 1:00:45Melissa Murray?

  You're welcome. One other piece of news out of the Windy City in Illinois. When we were there two weekends ago, there were initial reports of ICE agents shooting a woman. At the time, the story was developing and the facts were not clear, so we didn't cover it. But ICE initially said that the woman had boxed in ICE agents with her car. Well, according to the Chicago Sun-Times, again, hooray for local journalism, there are now reports that the body cam video actually de-punks this account and indicates that ICE lied. So based on this body cam video evidence, the woman didn't box ICE in or drive at them with her car, and instead, the video shows an officer saying, "Do something, bitch",

• 1:01:28Melissa Murray?

  before pulling over and shooting the woman five times.

• 1:01:32Leah Litman?

  Her lawyer says that the woman, who the federal government subsequently indicted, had seven holes in her. And a judge denied the government's request to detain her, along with one other individual the government has indicted. And the upshot here is ICE lies. And it is important for people to know that, especially as attempted prosecutions of people for allegedly assaulting ICE officers or obstructing ICE continue.

• 1:01:56Speaker 03

  So in case you are not aware, this upcoming weekend, on October 18th, there are no kings protests planned in a bunch of places. You can easily find yours in whatever city you live in or are going to be in. I'm planning to be there. We definitely encourage you to be aware, be safe. Republican leadership already seems to be trying to gin up possible confrontations with peaceful protesters. Here is how Speaker of the House Mike Johnson spoke about the no kings rally that is being planned for DC. We're so angry about it. I mean, I, you know, I'm a very patient guy, but I have had it with these people. They're playing games with real people's lives. The theory we have right now, they have a hate America rally that's scheduled for October 18th on the National Mall. It's all the pro Hamas wing and the, you know, the Antifa people, they're all coming

• 1:02:41Speaker 03

  out. As we have said, these kinds of protests are incredibly meaningful and important. It can be really empowering to realize there are a lot of people who, like all of us, recognize that we cannot continue to be on this path and be a country with democracy and the rule of law. And having the Speaker of the House tell Fox that peaceful demonstrations are gathering of organizations that the administration has described as violent terrorists is just another effort to escalate and another effort to thwart dissent.

• 1:03:18Melissa Murray?

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• 1:04:03Melissa Murray?

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• 1:04:43Melissa Murray?

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• 1:05:05Speaker 03

  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.

• 1:05:55Melissa Murray?

  I think we should end this on a more lighthearted note, which is to call attention to the absolutely fantastic week that this administration has had because it really is bringing in only the best people. And that week featured this moment from one of our faves, Secretary Build-A-Bear, who we're just going to provide to you right here without any context because it is best that way.

• 1:06:20Speaker 06

  Somebody showed me a TikTok video of a pregnant woman, eight months pregnant. She is an associate professor at the Columbia Medical School. And she is saying F Trump and gobbling Tylenol with her baby in her placenta. And the level of Trump derangement syndrome has now left political landscapes and it is now in the realm of pathology.

• 1:06:49Speaker 03

  Can I just say I finally saw one battle after another this past week and one of the characters, and I won't say who, had such RFK Junior energy, Leah, you've seen it. You know what I'm talking about?

• 1:06:59Melissa Murray?

  Yeah.

• 1:07:00Speaker 03

  Right? Did you feel it while you were watching it?

• 1:07:02Melissa Murray?

  Yeah.

• 1:07:02Speaker 03

  For sure. Melissa, you haven't seen it yet?

• 1:07:04Melissa Murray?

  I haven't seen it yet.

• 1:07:05Speaker 03

  You gotta see it.

• 1:07:05Melissa Murray?

  I just need to find three hours where I am not sleepy to go.

• 1:07:09Speaker 03

  Easier said than done.

• 1:07:11Melissa Murray?

  Okay, that's fair. This clip did make me think that maybe I should dress up as a giant Tylenol bottle at one of the protests.

• 1:07:18Speaker 03

  Hmm. Also takes some hours to actually construct out of cardboard, but maybe time well spent.

• 1:07:23Melissa Murray?

  Yeah, yeah. I mean, can we just talk about the words here? I mean, like, who's been gobbling Tylenol is the real question. Baby in her placenta. Like, this is a man who has a lot of children and comes from a large family, but yet does not seem to know where the child is lodged.

• 1:07:44Speaker 03

  I really hesitate to say anything that could be construed as defending RFK Junior, but there is definitely a possibility that he was saying in her baby and her placenta that she's getting all the Tylenol to both and he's defending the placenta as well as the in utero.

• 1:07:58Melissa Murray?

  Wow, I mean, the placenta is the new fetal personhood. Okay. Here we are, placental personhood. All right. As I also alluded, we were also treated to the appearance of one Pamela Jo Bondi before a Senate committee and I thought maybe we shouldn't do it, but no, since we heard Secretary Build-A-Bear, I'm just going to have to say something about it. So Attorney General Pamela Jo Bondi introduced us to a whole new approach of Senate testimony. And Kate, I want you to take some notes here. Basically, instead of trying to respond to questions or to correct what may have been mistaken premises or claims, or just to inform the Senate and the public that might be watching,

• 1:08:38Melissa Murray?

  what if you treated your Senate testimony as an opportunity to behave like a very bad insult comic? Roll that tape.

• 1:08:53Speaker 06

  obligated to follow applicable court orders, whether they agree with them or not, yes or no.

• 1:08:59Speaker 05

  First, Senator Padilla, you have gone on for over five minutes, and I wish that you loved your state of California as much as you hate President Trump. Would be in really good shape then. Information. If I can finish answering the question, I'm not going to yell over you. I'm not going to get in the gutter with you. But information, information that the Biden administration told them not to investigate Hunter Biden's involvement with Ukraine.

• 1:09:27Speaker 03

  Let me, let me, let me move to another, another topic, and I'm hoping that you will review the legislative.

• 1:09:34Speaker 05

  Who lied about being in the military just to be elected a senator.

• 1:09:37Speaker 03

  You were asked by my colleague from Vermont, whether you will support providing a video or audio tape, if it exists, of Mr. Holman taking 50,000 in bribe money from the FBI. Will you support a request by this committee to provide that tape or tapes to the committee? Yes or no?

• 1:09:55Speaker 05

  Senator Schiff, you can talk to Director Patel about that.

• 1:09:58Speaker 03

  Well, I'm talking to you about it. You're, you're the, you're the Attorney General. This will be your decision. Will you support?

• 1:10:05Speaker 05

  Don't have to tell me what is my decision, what is not my decision. I said you can talk to Director Patel.

• 1:10:10Speaker 03

  And you don't have to, and you don't have to try to, you don't have to.

• 1:10:12Speaker 05

  You think you've got a gotcha with Tom Holman, our borders czar?

• 1:10:14Speaker 03

  Excuse me, excuse me.

• 1:10:15Speaker 05

  Who's been out there.

• 1:10:16Speaker 03

  Excuse me.

• 1:10:17Speaker 05

  Fighting for our country since Donald Trump took office.

• 1:10:19Speaker 03

  I'm trying to ask you a question. Will you support that request?

• 1:10:21Speaker 05

  Will you apologize to Donald Trump for trying to impeach him? Caroline Levitt is one of the most trustworthy human beings I know.

• 1:10:29Speaker 03

  So was she, was she, was she right?

• 1:10:32Speaker 05

  If you worked for me, you would have been fired.

• 1:10:34Leah Litman?

  Okay, here's a summary of all of the questions she refused to answer from Senator Schiff.

• 1:10:40Speaker 03

  You were asked whether you consulted with career ethics lawyers, as you promised you would do during your nomination hearing, when you approved the president receiving a $400 million gift from the Qataris. You refused to answer that question. You were asked what, who, or what role you may have played, or who played the role in asking that Trump's name be flagged in any of the Epstein documents gathered by the FBI. You refused to answer that question. You were asked whether Holman kept the 50,000.

• 1:11:10Speaker 03

  $50,000 bribe money. You refuse to answer that question. You were asked whether Homan paid taxes on the $50,000 bribe money. You refuse to answer that question. You were asked, did career prosecutors find insufficient evidence to charge James Comey? You refuse to answer that question. You were asked, how are military strikes on these boats in the Caribbean legal? And you refuse to even answer that question. Do you have a law degree, Senator Schiff? Excuse me. You were asked, did you discuss indicting James Comey with the president? You refuse to answer that question. You were asked, did you approve the firing of antitrust lawyers who disagreed with the Hewlett Packard merger? You refuse to answer that question.

• 1:11:54Speaker 03

  You were asked whether you support a restoration fund for violent insurrections to attack the Capitol on January 6th? You refuse to answer that question. You were asked whether you were firing career professionals, career prosecutors, just because they worked on January 6th question, January 6th investigations? You refuse to answer that question. You were asked by my California colleague whether you believe government officials, like immigration officials, have to abide by court orders? You wouldn't even answer that question. This is supposed to be an oversight hearing. Oversight? Excuse me. You can attack me after my time is over. Oh, you've attacked all of us, including President Trump for your entire career. You can attack me later, and I know you've got plenty of canned attacks.

• 1:12:39Speaker 03

  We've heard them all day to day. Canned attacks on you? This is supposed to be... No one needs a canned attack on you. Excuse me, it's a regular order, Madam Chair. I'm trying to speak.

• 1:12:47Leah Litman?

  And when Senator Schiff said she brought canned attacks, he was right. The Daily Beast analyzed photos of Bondi, which included photos of her notes to herself, which said things like "going after DJT" and photographs of social media posts. And Bondi seemed to have an entire page devoted to one Senator Sheldon Whitehouse. Why, you ask? Well, listen to this exchange. Let me ask you something else. There's been public reporting that Jeffrey Epstein showed people photos of President Trump with half-naked young women. Do you know if the FBI found...

• 1:13:21Speaker 03

  Those photographs in their search of Jeffrey Epstein's safe or premises or otherwise. Have you seen any such thing? You know, Senator Whitehouse, you sit here and make salacious remarks once again, trying to slander President Trump left and right, when you're the one who was taking money from one of Epstein's closest confidants, I believe, I could be wrong, correct me, Reid Hoffman, who was with Jeffrey Epstein on multiple occasions. And the senator sitting right next to you tried to block the flight logs from being released. Yet you're grilling me on President Trump and some photograph with Epstein? Come on.

• 1:14:05Speaker 03

  The question is, did the FBI find those photographs that have been discussed publicly by a witness who claimed Jeffrey Epstein showed them to him? You don't know anything about that? Okay?

• 1:14:24Leah Litman?

  That is, as we say in the business, not a no.

• 1:14:30Melissa Murray?

  I just love that she was like the macro Attorney General, like, if they are mean to DJT, shift F3, here's my answer. If Sheldon Whitehouse asks me a question, shift F4, like, boy.

• 1:14:44Speaker 03

  Macro, choose your own adventure. Well, hopefully that brought you some kind of perverse joy to end this heavy episode. And with that, we are going to wrap our news segment of today's episode. But do stay tuned for our conversation with John Witt about his great new book about how a group of inspired and committed radicals helped move the country toward better labor policies, real democracy, and civil rights.

• 1:15:07Melissa Murray?

  Sounds like a fantasy novel. Anyway.

• 1:15:10Speaker 03

  But it's history, that's the thing.

• 1:15:12Melissa Murray?

  Also fantasy.

• 1:15:17Melissa Murray?

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• 1:16:40Melissa Murray?

  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.

• 1:17:27Leah Litman?

  Welcome back. We are your hosts for this segment. I'm Leah Litman.

• 1:17:30Speaker 03

  And I'm Kate Shaw, and we are delighted to be joined for this conversation by John Fabian Witt, the Duffy Class of 1960 Professor of Law at Yale Law School and a Professor of History at Yale. John joins us today to talk about his fascinating new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America. John, welcome to Strict Scrutiny. Thank you. It's so nice to be here. Well, we're delighted to have you to talk about this fascinating work of history. So it's a historical book, but I really cannot overstate how directly and urgently it seems at every turn to somehow be about the current moment. And I think what I mean by that will become clear, but maybe let's start with some background.

• 1:18:07Leah Litman?

  Yes. It's also relevant to the current moment, but also uplifting. And so that is a very unique combination. Again, this will become clear. Okay, so let's start with the basics. What is the fund that's referred to in your book's title?

• 1:18:22Speaker 03

  So in 1922, a slightly confused Harvard undergrad inherited a million dollars, and he decided he didn't want it, and he refused it, which caused a huge uproar, and newspaper reporters came from all over the country. And that resulted eventually in Roger Baldwin, who'd just founded the ACLU, and Upton Sinclair, the novelist, author of The Jungle, writer, national figure, persuading this young man, Charles Garland, to give it to them and to let them decide how to use it. And they created a kind of extraordinary foundation, the American Fund for Public Service, sometimes known as the American Fund, and sometimes known as the Garland Fund.

• 1:18:59Leah Litman?

  Or the Radical Fund. And so

• 1:19:00Speaker 03

  Or the Radical Fund.

• 1:19:01Leah Litman?

  Yeah. So in establishing this fund, you know, as you know, Garland worked closely with Roger Baldwin, who was Director of the ACLU and also a renowned champion of labor and civil rights. And together, the two men, you know, proposed to test new ideas for what they believed was the central question of the time. This is going to sound relevant. Quote, "How to build democracy for an immense racially divided country in the age of inequality, mass production, and mass communications," end quote. So, John, could you tell us what was so unusual about Garland and Baldwin's vision?

• 1:19:35Speaker 03

  Baldwin emerged as the kingpin. That was what some of his friends jokingly called him, the kingpin of this fund. And what he did was he put together a kind of dream team of people from an array of organizations who, in the ashes of the progressive era, were trying to figure out how to do mass democracy. It was the era of the Great Migration, which meant mass democracy had to be cross racial. It was the era of the emergence of new giant firms, General Motors, General Electric, that were, U.S. Steel, transforming the American economy. And it was a period of new mass communications. And so Walter Lippman and John Dewey are talking about, how do you do communications in a democracy? And it really looks like ripped from the pages of our time. If you substitute AI and

• 1:20:19Speaker 03

  digitization and virtual work for mass production, if you add in social media and AI for the communications problem, and you throw in immigration, heck, we even just came out of a pandemic. It's the same, I mean, they had a pandemic, we had a pandemic. It's kind of astonishing. Yeah, it's largely a century ago, and it all feels so current. So I'm going to ask you to follow up on one aspect of Leah's question, which was not just what was unusual about the capaciousness of their vision and the different fronts on which they understood they needed to work, but also just more technically, what was distinct about the way they set about spending this, initially just this million dollars, which is, what, 18 or something in today's dollars, 18 million? Compared to the just enormous foundations, both now

• 1:21:04Speaker 03

  and even of the time, things like the Rockefeller Foundation, this was obviously far smaller in scale. And they also just chose a distinct structure, right? They wanted to spend down rather than have, create this perpetual foundation the way their larger peers were doing. So can you talk a little bit about the significance of that choice compared to other models and paradigms at the time? Yeah, it starts as a million dollars, but it's the stock market of the 1920s. So they actually, they make another million, they double their million, which they find kind of funny. And there's lots of jokes about it because they can't quite believe that

• 1:21:39Speaker 06

  They're they're in this critical position with respect to capitalism, but capitalism's funding them. And so in the end, they give away $2 million, call that 36 or 40 today. It was 34 when I started, but inflation, you know, so now.

• 1:21:52Speaker 03

  The book took a few years to finish.

• 1:21:54Speaker 06

  Exactly. If you index it, you get to about 40. You know, if you if you recalculated it as a share of the American economy, you get to a much larger number, a couple hundred million dollars. And then now you can see the kind of impact it might have made. But I think more than the money, it was bringing certain people together around the table and occasioning conversations. I mean, the the bringing together the head, the first black head of the NAACP with the head of the ACLU with the labor intellectuals and organizers who are creating the Congress of Industrial Organizations. I mean, that's the that's the magic of this thing is putting those three movements, which are the three central social movements, underlying New Deal liberalism and the civil rights age that followed. And there was no place where those kinds of people

• 1:22:36Speaker 06

  had talked to one another and argued with one another and fought with one another before. And it changed the way they thought about things.

• 1:22:44Speaker 03

  So obviously, the individual personalities and relationships are an enormous part of the book. Maybe before we talk about any of those, can you just talk a little bit in moderate, I would say, detail or depth about some of the Fund's premier achievements? And, you know, you say, and maybe this has come through already, that there's this distinct kind of crossroads of not just the different kind of rights movements that are working together, but also this kind of unique intersection of radicalism and practicality that characterizes much of the work of the Fund. And you say that this Fund and the people who were stewarding it helped lay the foundations of some of the signal achievements of the 20th century. So can you identify two or three examples?

• 1:23:24Speaker 06

  Yeah, let's talk about two. And I think, you know, one interesting thing at the outset, I might not call them rights movements. They become rights movements after World War II, and which is a really interesting institutionalization of their successes. And that actually, I think, should maybe help us rethink what the rights.

• 1:23:39Speaker 03

  Revolution was after World War II. But let's talk about two examples. And the one, the core, the most important, is the invention of a new way of organizing working class Americans. The CIO brings together industrial organizations, trade unions where the old way, and unions organized around on an industrial scale, such that everybody working for a single firm is in the same bargaining unit, to use the language of the National Labor Relations Act, which comes out of much of their work. So organizing the labor movement for the modern world, for the modern mass production economy, that's a crucial thing. And it comes out of the intellectual work of folks in the 1920s like Sidney Hillman, who's on the founding, the founding member of the Garland Fund Board, and then his lieutenants,

• 1:24:24Speaker 03

  who staff the board for the next decade and a half. So industrial unionism is a conversation these people are in, helping to form. One of the things that mass production unions have to do is organize across race. That is to say, after, once the Great Migration is going, if you're organizing everybody at a company, you're not just organizing the bricklayers or the carpenters. Now you're dealing with people across race, across ethnicity, after the mass immigration of the early part of the 20th century. And so the second great accomplishment is putting together an architecture that attacked Jim Crow. And that's something that came out of a decade of conversations internal to the Fund, in which the black members of the Fund's world pushed over and over again for the white CIO, future CIO,

• 1:25:08Speaker 03

  a future Congress of Industrial Organization folks, to think about race and to bring race into their, into their story. And so in 1929, 1930, and this is really the thing for which they're known, it's how it came to my attention, this foundation, they launched the NAACP's litigation campaign. So industrial unions and the Brown Against Board of Education campaign come out of this. You can't tell the story without this outfit. And it's kind of astonishing.

• 1:25:29Leah Litman?

  So I'm so glad you just brought up the Fund being a key early supporter of the NAACP. You know, that included financing Thurgood Marshall's first salary and fueling the litigation that led to landmark victories like Brown. But although the Fund's association with Brown is rightly celebrated, you note that the Fund also Supported litigation in another case, Steele versus Louisville and Nashville Railroad. And that in some ways, like that case was more significant. So can you elaborate on that point, like what the Supreme Court did in Steele? And what it tells us about the fund?

• 1:26:03Speaker 06

  Yeah, Steele's a 1944 case, so a full decade before Brown against Board of Education. And you know, the insider legal historians have been telling the story of Steele for a while. Great work by Sophia Lee at the University of Pennsylvania, Ruzi Galiboff, former dean at Virginia, Ruel Schiller out at UC San Francisco. But what Steele says is that labor unions, which are at this moment are mostly white, and some of them by charter exclusively white. So the Jim Crow labor unions have an obligation of good faith representation for their black workers. That's the Steele case. A man named Bester Steele is a black railroad worker in the South. And he brings this case with Charles Hamilton Houston, who'd worked closely with the fund. And interestingly, the fund and the NAACP don't bring this case.

• 1:26:47Speaker 06

  It's too difficult, internal to the coalition with labor, to bring that case, to sue the labor unions. And so one of the things that this amazing Steele case brings out is the ways in which the coalition had fractures and had tensions inside it. It's hard to be in coalition with somebody and bring a lawsuit against them. And so the Steele case, the reason the Steele case is so important is that it focused on the economic side of civil rights. Civil rights quickly, as people like Professor Galiboff have identified, moved away from economic questions and property questions and wealth questions. And Steele is all about employment. And that's why I think it was really a crucial and now too forgotten case.

• 1:27:28Leah Litman?

  Why don't we know about it? Teach it.

• 1:27:30Speaker 06

  Yeah, well, it fractures the coalition. I mean, one thing that Steele did is it authorized lawsuits by any number of employees who felt poorly represented by their unions for decades to come. Unions hate Steele. I mean, they may be okay with the civil rights piece of Steele, but it authorized actions by people who were against unions in favor of right to work.

• 1:27:50Speaker 03

  Uh, it, it, um, it really made union control of the shop floor more difficult rather than, rather than easier. And that's because unions were Jim Crow outfits for decades, even, even a century. So. Okay. So I want to shift and ask a different question, which is that we are recording this segment just a couple of days after the assassination of conservative activist Charlie Kirk. And there have understandably been a lot of conversations in the last couple of days about whether we are entering or living in an era of political violence. And there's a lot of violence in the book. There is horrifying white supremacist violence. There is a lot of detail on a 1917 race massacre in East St. Louis. That is a very difficult part of the book to read.

• 1:28:34Speaker 03

  There's also violence by some of the more radical elements of the labor movement around the same time and into the 1920s. So can you talk about kind of the arc of the book when it comes to violence? Obviously, the two examples I gave are very different kinds of violence, but they're both violence. So, so, so what is, what is, what story about violence does the book tell? Well, you know, the 1900, the first decade of the 20th century, and then the 1910s are periods in which the left, certain segments of the left are just engaged in forms of political terrorism. I mean, there are any number of bombings and assassinations that come out of anarchist and labor union efforts. And it's the 1920s that sees the first concerted self-conscious movement effort

• 1:29:19Speaker 03

  to reject violence and to move to various forms of nonviolent protest. And the Fund is one of the sites for that conversation and that pivot. Elizabeth Gurley Flynn, who's a, a member of the Fund's board through much of the 1920s, is someone who'd been in the industrial workers of the world. She'd been a wobbly, she'd been an articulator of the, of the claim that violence is okay when necessary. And in the 20s, after the complete and utter failure of that catastrophic 1910s strategy, Flynn is persuaded and moves with others to a different kind of politics. The Brookwood Labor College is this amazing forgotten institution from Cottona, New York,

• 1:29:58Speaker 03

  which, uh, uh, it, it trains a whole generation of labor movement, uh, uh, organizers and activists and civil rights characters. It's a forerunner to the Highlander Folk School in Tennessee, which is Rose Parks, Martin Luther King Jr. And others. And the Brookwood Schools training is all about nonviolent politics. A.J. Mustey, pacifist Dutch Reformed minister, is the guy who runs it. And that's a, that's one of, one of the Garland Fund's major projects. So there's that transition and you can watch that arc. And I think we've just forgotten that story about the 1920s rejection of violence and the turn to, to, to nonviolent protests and nonviolent movements, both as a matter of principle and as a matter of strategy.

• 1:30:41Speaker 03

  Both ran together and that was one of the parts of the story I did not expect to encounter. But it really was like a lightning rod through the, through the material.

• 1:30:51Leah Litman?

  So staying on the parallels between the book and the present day, in the epilogue, you reflect on the truly remarkable scope of what the Fund accomplished during its lifetime. You write, quote, "For a generation, for nearly the entirety of the time between the two world wars, the Fund sustained experiments in industrial democracy for a racially divided nation. The Fund had financed publicity and propaganda and mass organizing. It had sponsored innovation in the affirmative use of the state by liberals and the labor left. It had helped transform the laws of labor and free speech for a modern democracy. It had remade the project of racial liberation. It had financed dozens of fights to make a better world," end quote. Yet you also warn that much of what the Fund's beneficiaries accomplished is under siege today. So what parallels do you see between the battles over democracy and rights

• 1:31:36Leah Litman?

  in the Fund's era and the crises we face in 2025?

• 1:31:40Speaker 03

  Well, it's really, it's what ended up driving the book. You know, the book took a long time to write and the thing that propelled me was just watching the parallels emerge. You know, I don't think that the Fund could have changed the world in all those ways on its own. It took a depression. It took the huge calamities of World War II to propel things along. But think calamities and catastrophes don't determine their own outcome. Like, we don't know whether a calamity is going to produce fascism and autocracy or some kind of better order. And it's the ideas and social movements that calamities find that direct history into the paths that, that it takes. The, the parallels for today are, are really astonishing. And the thing that I'd say is that economic transformation,

• 1:32:24Speaker 03

  the complete reordering of our economic landscape, it undoes social movements. It undoes social formations.

• 1:32:31Speaker 01

  The kinds of liberalism that mid 20th century America managed in part to achieve rested on a whole industrial structure. And what we're seeing today is the undoing of that industrial structure. The undoing of the labor unions that once were membership for millions and millions of American workers and just don't play the same role in the private sector anymore. So I'd say that the economic situation, it's not that we're going through the same transformation, it's that we're going through another transformation. James Walden Johnson, who was the fund board member on the NAACP, he had a New Haven Conference in the 1930s, said, you know, the world keeps changing. And so no matter what strategy you develop to make a better world, the world's going to change and you're going to need a new strategy.

• 1:33:16Speaker 01

  And I think one of the things we're seeing is that the strategies they put in place were pretty well suited, astonishingly well suited to the world they were in. And what we've got to figure out today is a way to organize and connect working people across race and across ethnicity, across nationality, for an economy that looks totally different and poses new challenges and for an information economy that looks different. That's the way their parallel systems and, and, you know, the search is on again now to figure out ways to do what they did a century ago.

• 1:33:45Leah Litman?

  So over on Blue Sky, you know, in the lead up to the book, you have been posting a kind of character from the book of the day. And it's a remarkable kind of sampling of the many different people, you know, that were related to and made use of the fund. So I was hoping maybe you could share with our listeners a favorite or lesser known one or two characters, just to give them a sense of some of the people that are discussed in the book.

• 1:34:12Speaker 03

  It is unbelievable how many luminaries of legal, political, communication, thought are jammed into this. I mean, the book's not short, but it is still like page for page, like an incredible density of extraordinary characters who all intersected in ways that like, most of us had no idea ever, you know, were kind of fellow travelers in the way that they were. So sorry to interrupt, but please choose a couple.

• 1:34:35Speaker 01

  It's great, Kate. It tells you something about the small world that was 1920s New York City. I mean, that is to say, I mean,

• 1:34:41Speaker 03

  Of course, Ronald Niebor is hanging out with John Dewey and Walter Lippman and Roger Baldwin. Like, it just makes, it just makes sense. And, and James Wildon Johnson and W. E. B. Du Bois are just a few blocks away, right? Exactly. Margaret Sanger, Frank Murphy, and when he's a trial judge in Detroit, I mean, that's a little earlier.

• 1:34:56Leah Litman?

  It's like six degrees or seven degrees of Kevin Bacon, but with literally all of the progressive figures, right? That era.

• 1:35:02Speaker 03

  Right, right. And Roger Baldwin is the Kevin Bacon. I mean, he's just, he's just such an active person. He, he has some number of phones on his desk at all times. I mean, he just, he just can't be contained by one telephone. It's kind of a, um, he's like, he would have been an early social media adopter. Oh, he would have been a real poster. Yeah. Exactly right. Exactly right. One of the reasons for, for the characters and, and to bring them out in, um, on Twitter and Blue Sky is, uh, you know, some of them are known characters. You know, we just ran through a couple that some listeners might know of, although a lot of Americans aren't going to know any of those people, right? But a lot of these characters aren't known at all. You know, John Brophy, the child laborer in the coal mines, who teaches himself and becomes a leader in the dissident side of the, the, uh, the coal mine workers' union,

• 1:35:47Speaker 03

  but plays a huge role in figuring out how to organize workers in the 1930s. And any number of, of people. And I wanted to write a book that had characters because human agency is, is helping to shape the story. It's not just a war and a, and an economic cataclysm. It's also people, but it's people in social movements who aren't necessarily the, the presidents who drive certain kinds of, uh, history. So I love the characters. Here are, here are two characters. Let's go back to Sidney Hillman. I mean, this guy, you know, Lithuanian, uh, Jewish immigrant, chased by the czar, uh, uh, into the United States. Starts in New York, ends up really in Chicago mostly. Starts off as an organizer in a textile strike in Chicago at Hartschfter and Marx in 1910.

• 1:36:30Speaker 03

  And by the 1930s, Franklin Roosevelt is going to be calling him the central figure in the New Deal. Big questions come up and Roosevelt says, go ask Sidney. So this is just an amazing, uh, arc for his, um, for his life. And he's on the, uh, on the founding board of the fund and helps to focus the fund on this centrist, pragmatic and yet energetic unionism that, that really is the center of the fund's work. I, I went into this thinking the center of the fund's work would be Brown against Board of Education. And the answer really is that it was industrial unionism. And that the civil rights piece comes in because you can't do unionism in the United States without organizing across race. So Sidney Hillman is a character

• 1:37:11Speaker 03

  and just an astonishing biography of Hillman by Steve Fraser back in the, I think, early 1990s, highly recommended. So Sidney Hillman, second character, I mean, James Weldon Johnson is maybe the person I came to love most in this, in this book. You're born in Reconstruction Jacksonville, Florida, at a time when Reconstruction has produced black control of Jacksonville. It's a black middle class running the city, the Republican government running the state of Florida, and his childhood and teenage years watches the Jim Crow curtain fall on the American South. He watches white takeover, so-called redemption of Florida. He watches

• 1:37:52Speaker 03

  the black middle class kicked out of Jacksonville, and he's nearly lynched in a race riot in 1900 in Jacksonville, which was one of a number of things that leads him to head for New York, where by 1920, he becomes the head of the NAACP, the first black head. These are just amazing human beings. And, and one of the excuses for the book is this fund brings them all together. I mean, it's not, their, their lives I follow in the book because I just, I just find them fascinating. And the reason it's so long is, is that, is that I'm following these characters who come together around this table. Will you actually talk a little bit about the process of researching and writing a book that has so many different characters and storylines? Yeah, it's, it was the hardest book that I've done because just to figure out a narrative

• 1:38:36Speaker 03

  structure for it, the story of the fund, its internal organization is something that I wanted to have in there. But honestly, we don't want to read about the internal corporate structure of the fund. There's some tax law in this book. I did some tax law to figure out how, it's an early adopter of special tax status. But what I really wanted to do is dive into the social movements that are the core of the fund's world. Really, it's a book about the world of the fund, a lost social world that we've forgotten about, and that I think holds lots of promise for thinking about how to make a future in the 21st century. And it meant going to archives all over the country. I mean, some of it's in New York because the fund was in New York and the New York Public Library Got these materials in nineteen forty one when the fund closed down. So all the funds papers are right in midtown.

• 1:39:20Speaker 03

  But the the movements are organized all over the country. And so I was in California. I spent a lot of time in Detroit. Where the amazing Walter Ruther Library has astonishing archives. There's stuff in Boston, since the Sacco and Van Zetti campaign is so central to this outfit. The National Archives, the Library of Congress, all over the place. And I was really lucky that right across the street from where I am right now. Is the Bynnekey Library where James Weldon Johnson's materials are. So I, you know, it just took Texas, the University of Texas somehow ended up with it. Probably the second best collection on on the Garland Fund, you know, a man named Morris Ernst, whom we haven't talked about, but.

• 1:39:58Speaker 03

  There's an interesting sub thread here about Jewish lawyers in this period and their contributions. And Morris Ernst is is one of those.

• 1:40:06Leah Litman?

  So are you hoping to inspire other Charles Garlands through this historical excavation and story?

• 1:40:14Speaker 03

  You know, I do, I reference that idea at the end of the book. And it's a different philanthropic landscape right now. You know, in nineteen twenty two, if you created a liberal left foundation. You could get all of the players to come to your table because there was no, there was nobody else in the game. I mean, today, the liberal left side of the philanthropic world is full of actors, energetic, lots of efforts. And it's really hard to get a conversation that brings everybody to the table. So, you know, I I am hopeful about the prospect of identifying. A twenty first century organizing principle and organizing institution, a CIO, an industrial union, a cross race for the twenty first century. I don't know that it's a union. I don't, I don't, I don't know what form it takes.

• 1:40:58Speaker 03

  And for sure, whatever form it takes, resources are going to be required to make it go. I mean, that's one of the lessons is you, you, you can't do. The work of organizing, you can't have people dedicate their. Lives to the project of trying to find new forms without the resources to let them to let them do it. But one of the many hopeful notes in the book is it actually doesn't require resources to the tune of like billions of dollars. Like you actually, you need resources, obviously, to start something like this. But, but that was why I thought I found it intriguing. Like there are, there are, it's not impossible to imagine something comparable in sort of scope. Of course, getting the kind of cast of hearts and minds together to actually do a version for the 21st century of what was done by the fund. Right. Is of course a tall order, but Right. The book has a real hopeful feel to it.

• 1:41:44Speaker 03

  Well, that's, that's why I wrote it. I mean, it's, um, you know, and I started it at a different time in our politics. It was 2013, 2012 when I started and, um, you know, the transformations in our own time have been astonishing to watch. And well, the book, the book has helped sustain me. I'm, I'm hopeful that it might help sustain some readers along the way. And, um, yeah, but the, the parallels are really kind of amazing. I think that's a good place to leave it. The book, once again, is by John Fabian Witt. The title is The Radical Fund: How A Band Of Visionaries And A Million Dollars Upended America. Again, it is both almost novelistic in the number of interconnected characters and storylines and profound in its meditation on our politics and organizing. And really does sort of leave you with a good deal of hope.

• 1:42:28Speaker 03

  So highly recommend it to our listeners. John, thank you so much for joining us. Thanks. It was a fabulous conversation. Glad to be here. As promised, that was an inspiring and topical conversation. And on a similarly high note, we're going to leave you with our favorite things.

• 1:42:42Leah Litman?

  So videos of the Portland frogs and Portland chicken protests, definitely recommend. Same with the videos of protests and demonstrations in Chicago. I also listened to an episode of the Sentimental Garbage Podcast on Taylor Swift's Life of a Showgirl. And honestly, it opened my eyes to the absolute right way of understanding the album. It's hilarious. It's smart.

• 1:43:07Speaker 03

  Will you give us like one, like a tiny little sliver of it? Or do you have to just listen?

• 1:43:11Leah Litman?

  You just have to listen because yeah, it's incredible. Um, so also LA, I'm going to be at the Hammer Museum tomorrow. So October 14th at 7:30 PM, I'll be discussing the Supreme Court and my recent book, Lawless. These things are basically synonyms at this point. Admission to the event is free, so come and join if you're in the area. Again, that's Tuesday, October 14th at 7:30.

• 1:43:35Speaker 03

  So I have already recommended Lily King's brand new novel, Heart the Lover, which I so loved and I really want you guys to read. I then read her kind of related novel, Writers and Lovers. The only thing of hers I'd ever read was Euphoria some years ago, which is incredible. And I think I'm just gonna become a Lily King completist. And by the next time we record, I'm gonna have read all her books, so they're all very short and you just tear through them. And I'm also now listening to Rachel Kushner's Creation Lake, which I never listened to and is great. And I want to shout out, around our live show in Chicago, I spent some time in Wisconsin, in the Driftless region, which is like west of Chicago and is a beautiful, kind of like hilly area, and spent part of the weekend at the Red Clover Ranch, which is an unbelievable little retreat destination,

• 1:44:17Speaker 03

  and drank a lot of amazing wine and cider from Los Mujeres Winery, which is near there. I've mentioned it on the pod before, but if you're lucky enough to live somewhere, you can get those beverages. And I can't in New York. Run, don't walk to do that.

• 1:44:30Leah Litman?

  Okay. My favorite things this week was that I got to attend this absolutely fantastic convening that our good friend of the pod, Sherilyn Eiffel, convened with Sarah Elizabeth Lewis of Harvard University at the Ford Foundation. It was called Vision and Justice Now. And it was absolutely remarkable, bringing together lawyers, activists, and artists who imagine in this period that Sherilyn calls the nadir, the tools that we will need to create and cultivate in order to perfect democracy when we are ascendant again. And it was basically just kind of putting aside seed corn in this dark time for better times to come. And it

• 1:45:15Leah Litman?

  was so inspiring and nurturing and just absolutely amazing. So many great people. The amazing Carla Hayden from the Library of Congress was there. Amazing artists like Mark Bradford and Carrie Mae Weems and Amy Sherrill. Ava DuVernay, the director, was there. It was just like absolutely star-studded and fantastic and just so completely inspiring. And there were a number of Strict Scrutiny listeners in the audience, including Faye Savage. Faye, great to hang out with you. And Jane Smith, who was there. And not gonna lie, I was a little fangirling with Jodie Foster, who I happened to actually sit next to. And it was like absolutely amazing. So totally, totally fun. Absolutely fantastic.

• 1:45:59Leah Litman?

  Great job, Sherilyn. You just, it was amazing. Totally gagged, 10 out of 10, no notes. The other thing I'm recommending is a little less highbrow. It is an Instagram account called Miss Toy Poodle, and it is about a beautiful man with lovely eyebrows who carries around his red toy poodle who looks a lot like Stevie, only he dresses her in amazing clothes. Not a criticism of you, Leah, just a noted fact. And he basically treats this dog like his daughter. And so he's like, you know, don't try and feed my daughter treats on the street. Like, she doesn't eat your street food. The whole thing is hilarious. Please check it out. Miss Toy Poodle, absolutely fantastic.

• 1:46:43Leah Litman?

  Not highbrow, but very funny and nourishing in its own way. All right, housekeeping. Guess what, Strick listeners? You have been hearing us talk about Cricket Con for weeks now, but here's the deal. It is sold out, and it sold out faster than ever expected. But by even more popular demand, it is getting an upgrade. Cricket Con is officially moving to a bigger location, and that means there are more tickets, more panels, and more guests. And the new venue is, drumroll, please, the Ronald Reagan Building and International Trade Center, where all the liberal squishes come from. I can't wait. Your favorite Crooked podcast hosts will be there, plus Governor Andy Beshear, Anderson Clayton, Ben Wikler of Wisconsin Dems,

• 1:47:26Leah Litman?

  Senator Ruben Gallego, Maurice Mitchell, Hassan Piker, and more. And we are adding a Vote Save America Action Hub, a space where our partner orgs can hang out and focus on activism, so you can leave with the tools that you need to fight for democracy. This event just keeps getting better and better. It's not like the administration in that way. So don't miss out on this last batch of tickets. And as a reminder, we, the Ladies of Strick Scrutiny, will be closing out Cricket Con with our live show. Basically, all those people I just mentioned are just warm-up acts for this. That's right. So get your Cricket Con tickets at cricketcon.com. The ticket will give you access to the full day of conversations, panels, and workshops. So get your tickets before

• 1:48:09Leah Litman?

  Sell out again at crookedcon.com. Also, in today's attention economy, the only thing worse than being hated is being boring. That's the world reality TV built in all its messy glory. And it's probably one of the best ways to escape after mainlining the news every day. It's becoming clear how reality TV hasn't just changed TV. It's changed culture, fame, everything, including politics. I escape to Bravo as my escapism. The Real Housewives of Salt Lake City is incredible. Like Lisa Barlow was born for television. I aspire to be like Meredith Marks. You know what? I will not accept this Atlanta erasure. Okay, I was getting there.

• 1:48:49Leah Litman?

  There's not a day that goes by when I am not repeating lines from either Heather Gay, NeNe Leaks, or Sheree Whitfield. Who gon' check me? Boo. Or fix your face. It's all there. Or she got a white refrigerator.

• 1:49:11Leah Litman?

  Hi, Kate.

• 1:49:15Leah Litman?

  Well, Kate, this is for you. In a very special Love It or Leave It series, Bravo America, John Lovett dives into the reality TV universe, interviewing icons of the genre to explore how these shows blur the line between authenticity and performance. Be cool. Again, Kate, that's for you. Don't be all like uncool. You can find this series every Tuesday on the Love It or Leave It feed and on YouTube.

• 1:49:39Speaker 03

  Oh, my God, I'm literally like the target demographic.

• 1:49:42Leah Litman?

  Yes. Just a tip, though. Just the tip.

• 1:49:48Leah Litman?

  Melissa still hasn't stopped saying that phrase.

• 1:49:49Speaker 03

  I love it.

• 1:49:50Leah Litman?

  Every chance I get.

• 1:49:54Speaker 03

  All right, I'm gonna listen. I know I will.

• 1:49:55Leah Litman?

  When you know, when you know better, you do better.

• 1:50:01Leah Litman?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Lea Littman, Melissa Murray, and Cade 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 Tagroth is our head of production, and thanks to our digital team, Ben Heathcote and Joe Matoski. 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/AtStrictScrutinyPodcast. 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.

• 1:51:01Melissa Murray?

  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.

• 1:51:40Melissa Murray?

  Boo! Spooky season has officially entered the group chat, and that means one thing. It's time to stock the fridge and summon your squad with Smirnoff Ice. Whether you're headed to a costume party...

• 1:51:51Speaker 07

  Hosting a scary movie marathon, or laying low with a backyard bonfire, Smee Smee always delivers. And honestly, being the friend who remembered to bring the drinks is elite behavior. So skip the tricks and get the party started with a treat that's cold, crisp, and perfectly mixed. And hey, if you're looking to switch things up, check out Smirnoff Ice Zero Sugar. Same flavors you love with zero sugar and 100 calories. Game changer. Smirnoff Ice. Too crisp to resist. Please enjoy responsibly. Must be 21 plus.

• 1:52:21Leah Litman?

  Your Saturday's packed, and overthinking skincare isn't on the agenda. Simple can still be effective, because going overboard with active ingredients can weaken the skin's moisture barrier. New Aqua4 Hydrating Daily Lotion is gentle enough for all skin types, including sensitive skin. It's lightweight and fast-absorbing on skin. Even though your Saturday's packed, your skin's moisture barrier is supported. Grab Aqua4 Hydrating Daily Lotion at your nearest retailer. There's Before, and then, there's Aqua4.