Boy Math, Boy Law, Man Problems

Leah, Melissa, and Kate dive into the raging legal battles over redistricting ahead of next year’s midterms, Interim U. S. Attorney Lindsey Halligan’s massive oopsies in her prosecution of James Comey, developments with L’Affaire Epstein, and other assorted legal quagmires and outrages from the Trump administration. Then, Kate chats with University of Minnesota Law Professor Jill Hasday about her book We the Men: How Forgetting Women's Struggles for Equality Perpetuates Inequality https://bookshop.org/p/books/we-the-men-how-forgetting-women-s-struggles-for-equality-perpetuates-inequality-jill-elaine-hasday/8e281cc33a14bb9a. Check out Leah’s review of Justice Amy Coney Barrett’s book, Listening to the Law, for the Los Angeles Review of Books here https://lareviewofbooks.org/article/is-justice-barrett-listening/. Favorite things: Kate: Lux https://rosalia.lnk.to/lux, Rosalía; The Unraveling of the Justice Department https://www.nytimes.com/interactive/2025/11/16/magazine/trump-justice-department-staff-attorneys.html, Emily Bazelon and Rachel Poser (NYT); Wild Dark Shore https://bookshop.org/p/books/wild-dark-shore-reese-s-book-club-pick-a-novel-charlotte-mcconaghy/45160eba5b1e0f1f?ean=9781250827951&next=t, Charlotte McConaghy; The Gods of New York: Egotists, Idealists, Opportunists, and the Birth of the Modern City: 1986-1990 https://bookshop.org/p/books/the-gods-of-new-york-egotists-idealists-opportunists-and-the-birth-of-the-modern-city-1986-1990-jonathan-mahler/92bc9ffc735c43d1?ean=9780525510635&next=t, Jonathan Mahler Leah: Mature https://www.youtube.com/watch?v=AOEklH8Eyw4&list=RDAOEklH8Eyw4&start_radio=1, Hilary Duff; The Pop-Tarts Bowl https://poptartsbowl.com/; Cupcakin’ Bake Shop https://cupcakinbakeshop.com/ in Berkeley Melissa: Judith Browne Dianis & Alexei Navalny win the inaugural Kettering Democracy Prize https://kettering.org/judith-browne-dianis-alexei-navalny-win-kettering-democracy-prize/; Meghan’s Moment https://www.harpersbazaar.com/culture/film-tv/a69289143/meghan-markle-cover-story-interview-2025/, Kaitlyn Greenidge (Harper's Bazaar); Meet the Veteran Who Chases ICE on a Scooter https://www.motherjones.com/politics/2025/11/baltimore-scooter-ice-patrol-buzz-grambo-us-navy-veteran/, Isabela Dias (Mother Jones) 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 the Southern Environmental Law Center. Right now, the Trump administration is trying to dismantle our bedrock environmental protections. But here's the truth: no one voted for dirty air and dirty water. The election wasn't a mandate to contaminate our water with forever chemicals, or to pollute our air with hazardous emissions, or to trade away our public lands to the highest bidders. That's why the Southern Environmental Law Center is fighting back to protect our bedrock environmental laws and regulations and safeguards in the courtroom and in the halls of government. With four decades of experience and more than 130 legal and policy experts, SELC is standing alongside their partners and the people across the South to protect the healthy environment we all depend on.

• 0:45Melissa Murray?

  Because clean air, clean water, and a healthy climate aren't political, they're fundamental. SELC is working hand in hand with communities to stop harmful policies, fight for clean air and water, defend climate progress, push for environmental justice, and protect wild places and wildlife for future generations. Learn how you can join their important work by visiting selc.org.

• 1:08Speaker 01

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

• 1:19Speaker 02

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

• 1:50Melissa 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 this first segment today. I'm Kate Shaw.

• 1:58Kate Shaw?

  And I'm

• 1:59Leah Litman?

  Leah it been?

• 2:00Melissa Murray?

  And I'm Melissa Murray. And per our last episode, or really just per usual these days, we are going to spend the first part of this episode talking about some legal news, including new developments in the redistricting fight. We'll also give you an update on reproductive rights and wrongs, as well as the latest on the Comey-James prosecutions, and of course, LaFere-Epstein.

• 2:22Leah Litman?

  And some worms. There will be worms.

• 2:25Melissa Murray?

  I just said we would cover developments in LaFere-Epstein. Like, you did not have to get...

• 2:31Leah Litman?

  There are actually many worms to cover. Among the, you know, worm coverage, the main winner, though, is going to be George Soros.

• 2:39Melissa Murray?

  Always.

• 2:40Leah Litman?

  If none of, if none of this makes sense to you, congratulations. You are less online than Fifth Circuit judges. And don't worry, we consume the content for you and are about to report back.

• 2:51Melissa Murray?

  You're welcome.

• 2:51Leah Litman?

  Once we get through all of that news, we will feature a conversation that Kate had with Professor Jill Hasday about Hasday's recently published book, We the Men.

• 3:00Kate Shaw?

  Actually, both parts of today's episode are kind of about We the Men, just very different.

• 3:04Leah Litman?

  100%. On point.

• 3:08Melissa Murray?

  It seems like the whole last year has been about We the Men. In any event, we will end the episode, per usual, with our favorite things.

• 3:16Kate Shaw?

  Okay, let's dive right in. First up, the news, and first item of news are developments out of DC. Last Thursday, Judge Jeb Bowsberg issued a ruling in a criminal case allowing federal prosecutors in DC to commence a prosecution based on an indictment issued by a local DC grand jury rather than a federal grand jury. Although the ruling applied specifically to that criminal case, it might have implications for other prosecutions in the District of Columbia, which, as we've discussed, stands in an unusual posture with respect to Congress and federal law.

• 3:47Melissa Murray?

  As Judge Bowsberg noted in the ruling, DC's unique law gestured toward an exception to the federal grand jury rule. And that exception would essentially allow indictments from both federal and local DC grand juries. Now, this is meaningful because it would allow federal prosecutors in DC to circumvent federal grand juries in favor of local grand juries whenever they may want to do so. And that might actually be a very concerning development, given that federal grand juries have proven more skeptical of this administration and its prosecutorial efforts in the District of Columbia.

• 4:24Leah Litman?

  Judge Boesberg conceded that such a possibility was, quote, troubling, but maintained that it was for Congress rather than the courts to change the laws that apply to prosecutions in the federal district. That's not all the Judge Boesberg news we have. As you likely know, months after Judge Boesberg's plan to begin contempt proceedings against the administration in the Alien Enemies Act case was appealed to the D.C. Circuit, the circuit returned the issue to Judge Boesberg, who held a hearing last Wednesday. At that hearing, Boesberg outlined the next steps for the contempt investigation, including seeking testimony from DOJ personnel such as Ariz Ruveni, the former DOJ lawyer who had worked on the matter and filed the whistleblower complaint detailing what went down at the DOJ during the deportation imbroglio.

• 5:08Melissa Murray?

  Sounds big.

• 5:09Leah Litman?

  Yeah. Boesberg also indicated he will call Drew Ensign, the DOJ official who relayed Boesberg's initial order to stop the flights to DOJ brass. When the government pushed back on reopening the contempt issue, Boesberg was not having it, as he retorted, quote, "I intend to proceed just like I did in April, seven months ago. This has been sitting for a long time, and justice requires me to move quickly."

• 5:32Melissa Murray?

  So this totally reminded me of a scene from, I think it was season four of The Crown, where Queen Elizabeth is meeting with Margaret Thatcher after Margaret Thatcher's basically slashed all social services in Britain. And the Queen says to Margaret Thatcher, "Well, you've moved very quickly, Prime Minister." And then Margaret Thatcher says to the Queen, like, completely looked her in the face and goes, "That is because I'm in a hurry." That's the whole Judge Boesberg energy.

• 5:56Kate Shaw?

  So he's Thatcher here.

• 5:58Melissa Murray?

  He's totally Thatcher here. "That is because I'm in a hurry."

• 6:02Kate Shaw?

  Well, and the D.C. Circuit made him wait a long ass time.

• 6:05Melissa Murray?

  Right.

• 6:05Kate Shaw?

  He's ready to go. And I think there, it's going to be hard for them to stop him at this point. So I think that this is probably actually moving forward.

• 6:13Melissa Murray?

  I think the testimony is going to be wild.

• 6:15Kate Shaw?

  Yeah.

• 6:16Melissa Murray?

  Like, calling those people in.

• 6:18Kate Shaw?

  Yeah, but that is not all out of DC. So elsewhere in the DC federal courthouse last week, in a 61-page ruling, Judge Gia Cobb temporarily blocked the Trump administration from maintaining more than 2,000 National Guardsmen in DC, concluding that the city was likely to succeed on its claim that the deployment was unlawful. As Judge Cobb noted, "The deployment, which has been in effect since August, likely exceeds the president's power over the local DC National Guard and impermissibly undermines DC's rights to self-governance." She also noted that these concerns regarding overreach and home rule were exacerbated by the fact that a significant portion of the troops are from other states and that the deployment kind of seems to be semi-permanent. Judge Cobb did pause her ruling for three weeks, allowing the administration time to

• 7:02Kate Shaw?

  either remove the troops from DC or, and/or, I suppose, appeal the decision.

• 7:08Melissa Murray?

  The next bit of news we wanted to cover with you is the latest in the mid-cycle redistricting flap. And let's just say, things have gotten a little messy. So for those of you who are not up to speed, we should let you know that Donald Trump realized that he might actually lose control of the House in the midterm elections in 2026 because, if you've noticed, the price of eggs has not gone down at all. And the tariffs have made everything about a zillion times more expensive. So it's bad news all around. And just as President Trump asked Georgia Secretary of State Brad Raffensperger to find him a few extra thousand votes in the 2020 presidential election, he turned to Texas Governor Greg Abbott to find him some new congressional seats for Republicans.

• 7:52Melissa Murray?

  And so Governor Abbott launched an unorthodox mid-cycle redistricting effort in the Lone Star State. Now, we say this is unorthodox because redistricting typically happens right after the decennial census. And Texas, per that practice, actually redistricted after the 2020 census and wasn't due to redistrict again until after the 2030 census. And since we're not in the future yet, that hadn't happened. And so if you're counting any of this, the new census is actually five years in the offing. And Governor Abbott basically said, "Know what? Let's do some boy math here. Let's just do some..."

• 8:27Kate Shaw?

  Redistricting right now.

• 8:29Leah Litman?

  And then the boymath really took off because after Texas decided to redistrict five new seats for the president, California Governor Gavin "With The Good Hair" Newsom decided that Democrats should experiment with this thing called having a backbone and fighting back. So he launched a ballot initiative that would allow California to do mid-cycle redistricting too and counteract the Texas Republican gains with some California Democratic gains. And California voters were all for it. In a special election where the only issue on the ballot was Proposition 50, the redistricting proposition, California voters overwhelmingly said, yeah, let's fucking go. And

• 9:06Kate Shaw?

  Boymath.

• 9:07Leah Litman?

  Yeah, exactly. That set off a redistricting arms race. Republicans in Missouri and North Carolina forged ahead with mid-cycle redistricting plans, and Virginia Democrats have taken steps toward passing new district lines there.

• 9:19Kate Shaw?

  And the president has pressured other red state legislatures to get on the stick and redistrict him a more favorable map. But actually, kind of an interesting development, some of those red state legislatures, maybe taking a page from California and showing a different kind of spine of their own, are not just rolling over. So as a New York Times reports, amid a lot of pressure from the president to redraw district maps, Indiana Republicans so far are actually saying no. The president has predictably responded by threatening these recalcitrant legislators with primary challenges. So we will see how that story develops.

• 9:58Leah Litman?

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• 10:37Melissa Murray?

  In five different clinical studies and guess what? The OS1 peptide is absolutely fantastic for targeting all of these aging concerns. OneSkin is known for its cult skincare favorites like OS1 Body, OS1 Face, and OS1 Eye, and I love them all. But OneSkin stands out for their science-first approach to skin aging, delivering hydration, barrier support, and powerful longevity benefits in every product. Did you hear that? They like science, unlike some people I know. OneSkin products are free from over 1,500 harsh or irritating ingredients. They're dermatologists-tested, and they've been awarded the National Eczema Association's Seal of Acceptance by the NEA, delivering powerful results without the side effects.

• 11:22Melissa Murray?

  And all of OneSkin's products are designed to layer seamlessly and replace the multiple steps in your routine, making skin health easier and smarter at any age. At the helm of this iconic skincare brand is their founding all-woman team of longevity scientists with PhDs in stem cell biology, skin regeneration, and tissue engineering. OneSkin also just launched their limited-edition holiday sets, and get excited. It includes the Nightly Rewind gift set. Nightly Rewind? What's that? Well, this is the perfect touch of luxury that you can add to your holiday gift list. It's the ultimate upgrade to any nightly ritual. Featuring their best-selling face moisturizer, their brand-new peptide lip mask, and a sculpting

• 12:03Melissa Murray?

  gua sha tool, each element is designed to work together as your body enters its natural nightly repair mode, helping to renew skin at the cellular level for a stronger, smoother, and more youthful complexion. For a limited time, you can try OneSkin for 15% off using code STRICK at on skin.co/strick. After you purchase, they'll ask you where you heard about them. Please support Strict Scrutiny and tell them that we sent you. You too, Sam.

• 12:30Speaker 05

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

• 13:07Melissa Murray?

  And of course, the courts have been really busy with these redistricting-related cases. So there are challenges to the GOP-led redistricting effort in Missouri and North Carolina that are currently pending, and California Republicans have filed suit challenging the validity of Proposition 50. That's the redistricting ballot initiative that recently passed. And just last Tuesday, a three-judge panel in Texas enjoined Texas's new congressional map. That is the map that Texas Governor Greg Abbott decided to boy math after the president asked him to find five new seats. And when the court actually issued their ruling, they didn't just issue a straight-up ruling, they spilt some tea, a lot of tea,

• 13:50Melissa Murray?

  and the tea was hot. As Judge Brown, a Trump appointee, explained, although the Texas redistricting push had been defended in litigation as a partisan effort, in fact, Texas legislators weren't keen to redistrict until they received a letter from the Department of Justice advising them that multiracial coalition districts in blue cities violated Section 2 of the VRA. Basically, this is like a Kavanaugh fever dream turned into a real-life legal argument. So recall that in his Cav currents in Allen versus Milligan, Coach K mused that the process of creating multiracial coalition opportunity districts, or single-block opportunity districts, that sought to optimize representation among minority voters, was

• 14:35Melissa Murray?

  okay under Section 2, but like affirmative action, there was an expiration date, and Coach K mused that maybe that expiration date is right now.

• 14:46Kate Shaw?

  So the Trump Justice Department took that logic and ran with it, writing a letter advising the Texas Legislature that times up on coalition districts and opportunity districts, and that the Legislature should redistrict for the purpose of dismantling those districts. And the Texas Legislature was, as they say, down to redistrict.

• 15:06Melissa Murray?

  DTR.

• 15:07Kate Shaw?

  Exactly, the new DTR.

• 15:09Melissa Murray?

  Yes. Well, there is only one DTR. The other one was DTF.

• 15:12Kate Shaw?

  Yeah, it was a different thing.

• 15:13Melissa Murray?

  Right, very different.

• 15:14Kate Shaw?

  Very, very different. Anyway, Judge Brown-

• 15:17Melissa Murray?

  Or is it- What?

• 15:20Leah Litman?

  I know.

• 15:21Melissa Murray?

  Just the deplia.

• 15:22Leah Litman?

  Well, I mean, this particular redistricting, just saying.

• 15:25Melissa Murray?

  Hmm. Anywho, Judge Brown, who wrote for the two judge majority, was so shady to the DOJ in this opinion. He waspily noted that even the Texas AG's office, who he called ostensibly the president's allies, thought the DOJ letter was, quote, "hamfisted and a mess." He also notes that the DOJ made significant factual errors as to the composition of the districts in question and to the legislature's rationale for redistricting back in 2021 after the 2020 census. According to the DOJ letter, the Texas legislature redistricted in order to create opportunity slash coalition districts for minority voters, which, as Kate just mentioned,

• 16:10Melissa Murray?

  the DOJ says is impermissible. However, as Judge Brown explains it, in separate litigation concerning the validity of the 2021 map, Texas legislators averred that they were actually doing a partisan gerrymander, not a racial gerrymander, when they drew the 2021 map. Oh, snap, sometimes it bees your own people.

• 16:32Leah Litman?

  I love this opinion so hard. It read, "Harmy Dillon, the author of this letter, for filth." The opinion made clear that DOJ dug its own grave here by being so loud about how the mid-cycle redistricting push was all about race and, more particularly, about erasing districts where minority voters could form majority political coalitions. I vaguely recall a wise man once saying, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race, you fuckheads." Indeed, Judge Brown recited that Chief Justice Roberts' banger in full as a block quote near the beginning of his opinion, albeit without the fuckheads part.

• 17:17Leah Litman?

  But the DOJ letter wildly misrepresents the relevant precedent as well. The Fifth Circuit had never said that these coalition districts were unconstitutional. It just said the Voting Rights Act didn't require them. Like, reading, it's real hard for these people.

• 17:33Kate Shaw?

  The thing that is so just wild and delicious about all of this is that if DOJ had just kept its mouth shut in Texas-

• 17:40Melissa Murray?

  Stay in your lane.

• 17:41Kate Shaw?

  Maintain-

• 17:42Melissa Murray?

  Stay in your lane.

• 17:43Kate Shaw?

  I mean, again-

• 17:44Leah Litman?

  As Stringer Bell said, "Do not take motherfucking notes on a racial gerrymander."

• 17:49Kate Shaw?

  And yet DOJ was not up to speed and did that. And we should stop and say, we're still in the context of this incredibly distorted landscape in which the Supreme Court has handed down this set of guidelines that make partisan gerrymanders, you know, at least non-justiciable, maybe affirmatively great. But again, given all of that, it is wild. I mean, this is probably obvious to our listeners, but that's just an intolerable and abhorrent state of affairs, and yet, that's where we are. And so if the Justice Department hadn't suggested that actually race-not-partisanship was the reason to redraw these lines, it seems pretty clear, actually crystal clear, that there

• 18:32Kate Shaw?

  would be no legal objection that a federal court would entertain to these lines. And yet, the Justice Department, essentially telling on themselves, brought this potential legal peril on Texas, raising the potential that California's redistricting efforts, which are quite clearly partisan, will stand while these Texas efforts fall because California's maps were, you know, I think, top to bottom redrawn for explicitly partisan reasons, and justice has really complicated the story about the reasons that Texas has drawn their lines.

• 19:04Melissa Murray?

  I mean, it's not just they complicated it. Like, this is an entire self-own. Ruscio literally says, "Just call everything a partisan gerrymander." And again, we've talked about this on the podcast so many times. Because race and partisanship are so closely aligned in many of these southern states, you can get away with racial gerrymandering by just saying you're doing partisan gerrymandering, unless you want to write a fucking letter talking about the racial gerrymandering you really want to do. Like, it's not hard. I mean, like, the boy math was really mathing here, in any event. Back to what might happen with regard to California. So California's Proposition 50 initially had some language saying that California would

• 19:46Melissa Murray?

  only redistrict in response to Texas's redistricting, but before the measure actually made it to the ballot, that language was withdrawn. So here's some more great boy math. If Texas's new map falls, California's new redistricting can still continue. So again, the self-owning is just like, wow, this is like a classical liberal property owner dream. Like you are owning everything. You've owned yourself fully and entirely. And I'm not sure that SCOTUS will let Gavin Newsom have a big win like that, but just on its face right now, massive, massive self-own. Where is this all going? This was a three-judge panel that heard this case about the Texas maps.

• 20:30Melissa Murray?

  And so the typical process now would be that there isn't an intermediate appellate court decision. It just goes directly to the Supreme Court. And lo and behold, Texas wasted no time running to the court with an emergency petition for none other than friend of the pod, Circuit Justice Samuel A. Alito. Which brings us to a dissent from Judge Jerry Smith, a longtime judge on the Fifth Circuit, who was the third judge in this three-judge panel. Suffice to say that- Quote, "judge." Let me just suffice to say that this was unlike any dissent that I have read in my entire life as a living, breathing person walking this earth. Seriously.

• 21:14Melissa Murray?

  Judge Smith was seriously on one. He took the majority to task for what he viewed as their malfeasance in slow-walking the majority opinion in order to avoid having to grapple explicitly with the terms of his dissent. He accused them of simply announcing the majority opinion before he had an opportunity to review it and fine-tune his dissent. And to be fair, I can see why that wrinkled. Like typically, there's an exchange of these drafts between chambers before everything is finalized. But again- There's a huge deadline looming because the Texas congressional candidates have to declare their candidacy before, I think it's December 8th. So time really is of the essence.

• 21:56Melissa Murray?

  And this was a very complicated case with a lot of record evidence. So it wasn't, I, I, I think, yes, a lot of time was spent on this, but I think it was because a lot of time had to be spent on it, even as that deadline loomed. So, you know, maybe there's no reason to assume bad faith, but I can still understand why you would be annoyed at not having the opportunity to present your dissent fully and have it entertained and reviewed and incorporated into the majority opinion. But.

• 22:23Leah Litman?

  But, and now we get to the rest of the dissent, which reads like a Fox News conspiracy fever dream. So I will quote directly as cannot make this shit up. Near the beginning of the opinion is this quote, "The main winners from Judge Brown's opinion are George Soros and Gavin Newsom," end quote.

• 22:47Melissa Murray?

  Didn't have that on my bingo card.

• 22:49Leah Litman?

  If you want to read this, Ctrl F Soros and just try to guess how many mentions there are. It's more than 10.

• 22:57Melissa Murray?

  And not just George, not just George.

• 22:59Leah Litman?

  Also, that's why I said, um, just Soros. Okay. So next quote, "Plaintiff's top expert, Matt Baretto, is a Soros operative. His CV confirms that he expects to receive $2.5 million in his Soros piggy bank."

• 23:14Melissa Murray?

  I want a Soros piggy bank.

• 23:15Leah Litman?

  Continue. Quote, "I suppose someone will say that in making these comments about the Soros connections, I'm expressing a political view, not the proper role of a federal judge," end quote. Some might, sir. Um, I, I did wonder, like, is this boy law? I mean, like, how wild is it that apparently the Reconstruction amendments are the fault of George Soros? Like, I honestly did not have.

• 23:39Melissa Murray?

  Got in a hot tub time machine, went back to 1868, was like, let's do this.

• 23:43Leah Litman?

  The conspiracy is Jews control the weather. Didn't realize it was also about time. Did not realize that in the year of our Lord 2025, I would read an opinion that said, "It's the Jews' fault." Um, and yet, and yet.

• 23:58Melissa Murray?

  I do wonder.

• 23:59Leah Litman?

  Also Gavin Newsom, not, not just Soros.

• 24:01Melissa Murray?

  Right, right.

• 24:01Leah Litman?

  Also Gavin Newsom.

• 24:02Melissa Murray?

  Yeah, yeah. That footnote that some will say, "I'm expressing a political view." Did you wonder whether a law clerk, like, sort of tried?

• 24:10Leah Litman?

  Lost their courage and came and said, "Boss, you might want to think about some of this." I mean,

• 24:15Kate Shaw?

  And that's what he did. He sort of dropped a footnote, maybe. I'm not sure. But can you imagine being in a chamber that that produces this? I mean, there is also, this is like the least noteworthy thing in the opinion, but there is a fawning nod to one Sam Alito, who Judge Smith references in a diatribe against activist judges. And it's pretty clear that this is a dissent that very much knows its audience.

• 24:37Melissa Murray?

  The other thing I will say about this, it's like, it does read a little bit like Kavanaugh beat poetry, because it's like, there are all these like little stops.

• 24:43Kate Shaw?

  Yeah, bullets and stops.

• 24:44Melissa Murray?

  Like, oh, all the like asterisks everywhere.

• 24:46Kate Shaw?

  Yes, yes.

• 24:47Melissa Murray?

  It's like, I dissent, asterisks, asterisks, asterisks.

• 24:49Kate Shaw?

  Yeah.

• 24:49Melissa Murray?

  And then there's another beat, I dissent. I mean, like, someone really needs to put this to ether and make it a judicial disbar.

• 24:56Leah Litman?

  Yes, yeah. So I have to say, you know, Jerry Smith, at 78 years young, is not really in the running for a future Supreme Court seat. So this is not an audition, which immediately made me wonder how his colleagues on the Fifth Circuit, who are running to be America's Next Top Scout of Justice, will top an opinion like this.

• 25:18Melissa Murray?

  So this is the Janice Dickinson moment, where he went full Janice Dickinson and showed these kids how it's done.

• 25:26Leah Litman?

  Yeah, because after Smith, you know, posted this, whatever we're calling it, you know, the best his Fifth Circuit colleague, Andy Oldham, could muster was like a passing shot at Blue Sky, referring to, quote, "a uniform law that apparently has fewer adopters than Blue Sky", end quote. And sir, that's just not gonna cut it. Like, you gotta step up your game.

• 25:52Melissa Murray?

  Kate, do you know who Janice Dickinson is?

• 25:54Kate Shaw?

  I just Googled her. She was on America's Next Top Model. Was she a judge?

• 25:59Melissa Murray?

  Was she a judge?

• 26:01Kate Shaw?

  And was a model before that, a businesswoman.

• 26:03Melissa Murray?

  She's the world's first supermodel, as she says.

• 26:06Leah Litman?

  Is that right?

• 26:07Melissa Murray?

  That's what she says.

• 26:08Leah Litman?

  That's what she says.

• 26:09Kate Shaw?

  Okay.

• 26:09Melissa Murray?

  Well, I know that. That means it's self-evidently correct. Just like George Soros and Gavin Newsom orchestrated all of this.

• 26:16Leah Litman?

  So, of course, after we recorded, Sam Alito had to go and be a messy bitch. He is from New Jersey, so he does love the drama. Okay, here's what happened. As we noted, Texas had already rushed off to the Supreme Court and specifically to Sam, the circuit justice for the Fifth Circuit, asking for a pause of this lower court ruling, which blocked Texas from using their extremely racially gerrymandered maps and limited them to using their old, also extremely gerrymandered, but partisan gerrymandered maps. So Justice Alito requested a response to Texas's stay application by Monday, end of the day. But then, and this is the messy part, the guy granted an administrative stay.

• 26:57Leah Litman?

  This was wholly unnecessary, and I will try to explain why. So administrative stay is by the court time to decide whether to grant a full stay, a stay pending appeal. And an administrative stay might be necessary, or it might really be impactful, you know, when it truly pauses a decision or order that affects the day-to-day status quo. So just to take an example, an administrative stay of a decision blocking the president from firing someone, that would change the day-to-day action because it affects whether the person the president tried to fire will be in their job until the Supreme Court decides the stay application. Similarly, the case about the roving ICE patrols, granting an administrative stay there,

• 27:41Leah Litman?

  that would allow ICE to conduct roving patrols up until the court decides whether to grant a stay. Again, like day-to-day on the ground, things are going to happen. Same with the SNAP case. Granting the administrative stay meant the government didn't have to distribute SNAP benefits over the days up until the court would have decided to grant a stay. Those aren't the circumstances here. The question here is whether Texas can conduct a set of elections under these maps. Until candidates have to file papers to run, you know, later in December, there's There aren't elections that are being conducted. So the administrative stay doesn't really do anything, you know, again, on the ground, day to day. Now, a stay, a stay will do something.

• 28:26Leah Litman?

  A stay will determine what maps Texas will use in the upcoming midterm elections. But the administrative stay, again, there aren't elections unfolding between now and December 8th. So an administrative stay just seems unnecessary. You know, unless the court planned to allow the administrative stay to remain into effect until after December, in which case it would just be a stay. But given the quick deadline that Justice Alito imposed on the briefing, that doesn't seem like it's in the works. So could this be the very first administrative stay issued just to be petty? As I said, Sam is a messy bee from New Jersey who loves the drama. And I will leave you with that thought as we return to our episode discussing what the Supreme Court might do on the actual stay pending appeal,

• 29:09Leah Litman?

  which will determine what maps Texas will use in the upcoming elections.

• 29:14Melissa Murray?

  Anyway, what is likely to happen in this case? I think some real tomfoolery, obviously. I think it's very likely that SCOTUS will stay this case in light of its pending deliberation in Louisiana versus Calle. Remember that case? And then perhaps there is another subsequent stay invoking Purcell. That is the case that addresses whether or not changes to voting district maps can happen with an election looming. The Texas congressional candidates have to file their paperwork again by December 8.

• 29:48Kate Shaw?

  I don't think they can hold it for Calle.

• 29:49Leah Litman?

  Can I put out a marker? So like, Calle is formally, right, a Voting Rights Act case, right? Like, there, the state, right, was forced to draw a district because of the Voting Rights Act, right? This is just like a straight up 14th, 15th Amendment racial discrimination claim. But like, the very idea that they could or might say that the districts in Louisiana drawn to comply with the Voting Rights Act were impermissibly motivated by race, but these Texas districts, right, where Harmit Dealan told them, changed the racial composition of these districts, were not? I mean, that would be... Like apostasy.

• 30:27Kate Shaw?

  No, but Leah, it's completely, it's completely different.

• 30:30Melissa Murray?

  This was Mark Elias's point, like they purposefully use conservative logic in crafting this argument, like they sort of flipped it on its head, which again, like a win here may signal a big loss in Kelly.

• 30:43Leah Litman?

  Yes. Well, we, we already got some signals that that was.

• 30:46Melissa Murray?

  Yeah.

• 30:47Kate Shaw?

  I'm, I'm just saying, you're suggesting they can't distinguish the two and it's obvious that drawing districts to enhance black voting power is problematic and diminish black or minority voting power is, you know, completely permissible under the 14th.

• 31:02Leah Litman?

  So that was the project of reconstruction, right?

• 31:04Kate Shaw?

  Exactly. So, so there's a principal distinction to be drawn between the two. I'm, I'm worried about Purcell, but I just, I actually think even, I, I think it would be very hard on their own practices to just like hang on to this. Now, Calais, they may decide you were fast.

• 31:17Leah Litman?

  But like, Purcell is so fucking nuts.

• 31:19Melissa Murray?

  I think, I think Calais is coming sooner than you think.

• 31:21Leah Litman?

  You can't invoke Purcell because this is a redistrict. There were already a set of compliant maps in place, right? Like the idea is just, anyways, sorry, I'm already going nuts.

• 31:32Kate Shaw?

  Yeah. Well, it was fun while we had it, that opinion, and we will see.

• 31:37Leah Litman?

  Opinions.

• 31:38Kate Shaw?

  What hash, yeah, both of them. That's definitely true, fun in different ways. See what hash SCOTUS makes of them. But we should move on to developments in the Comey retribution case. And this also connects to DOJ just absolutely bungling the whole litigation thing. And we are talking, of course, about the recent developments just in the past week involving the prosecution of former FBI director, James Comey. So in a remarkable 20-plus page ruling last week, magistrate judge William Fitzpatrick pretty much confirmed what we all strongly suspected, which was that interim United States Attorney for the Eastern District of Virginia, Lindsey Halligan, is not a prosecutor despite her job title. The magistrate judge said that when Halligan made her solo appearance before the grand

• 32:23Kate Shaw?

  jury in September to seek an indictment accusing Comey of lying to and obstructing Congress in 2020, she made at least two fundamental and highly prejudicial misstatements of law. The judge also pointed out that the. Grand jury materials he had ordered her to turn over appeared to be incomplete and likely did not reflect the full proceedings. I mean, this actually isn't even the craziest thing at all.

• 32:44Leah Litman?

  No, no.

• 32:46Kate Shaw?

  That we're going to warm up because this standing alone in normal times would be completely gobsmackingly insane. So let me just tell you about the two fundamental and prejudicial misstatements that were the topic of this opinion. It seems that Lindsey Halligan told the grand jury that Comey does not have a right to not testify at his trial. And, you know, an obvious response to that, Ms. Halligan, is that the Fifth Amendment does say no person shall be compelled in any criminal case to be a witness against himself. Understandably, you didn't have to work that deeply in your insurance practice with this principle, but it is a pretty foundational one.

• 33:18Leah Litman?

  The second highly prejudicial misstatement is even better. So Halligan also basically suggested that the grand jury didn't have to decide whether to indict Comey based on the evidence actually presented to them. It could instead indict him based on the government's assurance that the government had better evidence that might be revealed at trial. Basically, trust us, guy's guilty, and if you want to hear the evidence slash see Act 2, then you've got to indict. Like, girl, like, that's just so insane.

• 33:50Melissa Murray?

  And that's not it.

• 33:54Melissa Murray?

  This was all a warm up, like literally an amuse-bouche for the main Lindsey Halligan course. So on Wednesday, at a hearing before Judge Michael Makmanoff, who is the presiding judge in the case, Judge Makmanoff went after the prosecution, asking the government's lawyers about all of the apparent irregularities that occurred during the grand jury phase. And let's just say the government's responses were illuminating. Halligan admitted that she did not show the final indictment to the grand jury, which is to say the grand jury didn't actually know or sign off on the charges for which it was apparently indicting Comey. And that's not it.

• 34:36Melissa Murray?

  Apparently, they didn't know because the full grand jury didn't vote on the indictment before it was presented in open court. And I'm just gonna say, that seems bad, real bad.

• 34:47Leah Litman?

  Yeah, so if you're not a lawyer, it might be a little hard, you know, for this to immediately register how shocking it is, you know, a little context. So grand juries are not like trial juries. They are larger.

• 35:00Melissa Murray?

  Like 12 to 23.

• 35:02Leah Litman?

  And there's no judge and no defendant or defense counsel in the proceeding. Like, the prosecution has the room to themselves. And that kind of power is checked by explicit procedures, like having the whole grand jury review the charges before voting to approve an indictment. And the idea that a US attorney would only show the indictment to the four person is insane. But apparently, that is what happened here. And there's even more messiness because the full grand jury was shown a previous version. But there's also some ambiguity in the notations about whether the full grand jury even voted to indict on the other two remaining counts that the four person says they did.

• 35:45Melissa Murray?

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• 36:30Melissa Murray?

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• 37:15Melissa Murray?

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• 37:59Melissa Murray?

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• 38:35Speaker 06

  Corrupting our democracy works best when we forget that we, the people, are in charge. I'm Stacey Abrams, voting rights advocate and host of Assembly Required. In my podcast, I'm talking with some of the sharpest minds in politics and in civic activism to help us figure out how to fight authoritarianism and win. My podcast doesn't just diagnose problems. We give actionable steps to help you feel a little more connected and a lot more empowered to make change in your communities. So check out my podcast, Assembly Required. New episodes drop every Tuesday on YouTube or wherever you get your podcasts.

• 39:23Kate Shaw?

  And that is actually somehow not all. So at another point in this hearing, one of Ms. Halligan's subordinates, Tyler Lemmons, ended up in the hot seat. So Lemmons is an assistant United States attorney in North Carolina, but was brought in to work on this case when it seems like none of the line prosecutors in the Eastern District of Virginia would do so. So Lemmons, under questioning, acknowledged that there existed something called a declination memo. So a memo giving the reasons why the US Attorney's Office, prior to Halligan's arrival, was not going forward with the prosecution of Comey. But then Lemmons explained that someone in the Deputy Attorney General's office, so that's Todd Blanch's office, had instructed him not to discuss in open court the existence of this memo, whose existence he did acknowledge,

• 40:08Kate Shaw?

  because the very existence of the memo was privileged information.

• 40:12Melissa Murray?

  Again, boy math, boy law.

• 40:17Melissa Murray?

  At this point, Comey's lawyer, veteran SCOTUS advocate, Michael Dreeben, got up and basically said, "Your Honor, would you like to be the mayor of Clown Town? Because that's what this is." I'm kidding. Michael Dreeben-

• 40:29Kate Shaw?

  Michael Dreeben would never say that.

• 40:30Melissa Murray?

  He would never say that. But I think he was thinking it.

• 40:33Kate Shaw?

  He might have been thinking it. I don't even know if he thinks those things, but-

• 40:36Melissa Murray?

  Well, let's just say, at some point, he had to- like, this is a man who's argued before the Supreme Court so many times, and he must have been listening to this, like, what is this fuck?

• 40:44Kate Shaw?

  Where am I? I can't believe this is my life. I was at the United States Supreme Court making normal arguments for like 40 years, and now this is my job.

• 40:53Melissa Murray?

  Exactly. It's like one of those record scratch moments. Like, you might be wondering why I got here.

• 40:59Melissa Murray?

  Anyways, Dreeben got up and reiterated all of the irregularities that had occurred here and urged the court to simply dismiss this sham prosecution for the retribution-laced unconstitutional mess that it is and put everyone out of their misery. And-

• 41:18Leah Litman?

  Make it so.

• 41:19Kate Shaw?

  Yeah, so that should have been the last beat on this story last week. And yet, on Thursday, I think it was, DOJ decided to follow up this hearing with a short document that seemed to walk back DOJ's own, like Clemens and Halligan's own representations. And in this-

• 41:39Leah Litman?

  Like JK, Your Honor.

• 41:42Kate Shaw?

  They basically said, never mind everything we said. The grand jury actually did vote on the final indictment. Our bad, we got that slightly wrong. But having just said the opposite in court, I don't think this like four-page memo is going to clear things up. So I'm not sure what the next move here is, but I don't think it's-

• 42:01Leah Litman?

  This seems like another cellphone.

• 42:02Kate Shaw?

  It does.

• 42:03Leah Litman?

  Another cellphone.

• 42:04Kate Shaw?

  Sure does.

• 42:05Leah Litman?

  So as we said in the intro, like this is a truly we the men slash we the men's episode, and it wouldn't be a week in legal news without a new development in LaFerr Epstein. And once again, we-

• 42:16Kate Shaw?

  Timeout. I think that earlier discussion was really a we the Lindsey Halligan moment.

• 42:21Leah Litman?

  That's right. That's we the men's is Halligan arranger.

• 42:23Kate Shaw?

  It wasn't just the men's.

• 42:24Leah Litman?

  Yeah, like, let's not erase, like, women can do things. And harm me Dylan before, you know? So, yes. Anyways, so, you know, we are once again in a position of having to ask, what is it with this administration and accused sex traffickers? Running point for alleged sex offenders seems to be a thing because last week, new reporting emerged showing that the White House intervened to help a sex criminal. But no, not that one. This time, it's a team of alleged sex traffickers. But no, not those ones. This time, Andrew Tate and his brother, truly no sex traffickers left behind.

• 43:00Kate Shaw?

  So ProPublica broke the bombshell story that the White House intervened into a Department of Homeland Security investigation into the Tates, who had been accused of sex trafficking, sexual assault abroad, and are now back in the United States. So pursuant to a US investigation, DHS reportedly seized the Tates' electronic devices upon the brothers' arrival in the US. But then DHS promptly returned those devices after having-

• 43:27Leah Litman?

  Been instructed to do so by the Trump White House. And not just anyone in the Trump White House, specifically one Paul Ingrascia, Trump's failed nominee to head the Office of Special Counsel, whose nomination failed in part because he was accused of sexually harassing a female subordinate and maybe also being Nazi curious.

• 43:49Melissa Murray?

  All right, let that one wash over you. While you're thinking about it, let's go back to a more familiar sex pass. The release of the Epstein emails last week included thousands of pages and lots of analyses of the emails. And we talked about it last week on the episode, but all of the analysis and all of the email leaks continued even after our recording. So we wanted to highlight one particular series of exchanges that was identified after we recorded last week. And that exchange involved Larry Summers. In our last episode, we discussed the 2017 email in which Summers wrote to Epstein to complain that Me Too had gone too far. And maybe that was something of a tell.

• 44:31Leah Litman?

  Yeah, because then people focused on some exchanges that occurred during 2018 and 2019, i.e. the supposed height of the Me Too movement that had just gone too far in policing sexual misconduct and abuse of women. So then Summers emailed Epstein asking for Epstein's advice on sleeping with a woman several decades, Summers Jr., in Summers' field, economics, who he also described as a mentee. And the emails basically straight up lay out a sex-for-professional-connection scheme. So Summers claimed that his, quote, "best shot" was that the woman found him, quote, "invaluable and interesting," end quote. This is like he admitted, like this is one of the most senior scholars

• 45:14Leah Litman?

  hoping a junior scholar will have sex with him that he recognizes she's not interested in for romantic reasons or sexual attraction, but might do it because he's, quote, "invaluable to her career." So that's vile. And don't worry, it gets worse, because of course it does. So the woman about whom they're talking is Asian, and Summers and Epstein referred to her in conversation by a code name, which was Peril.

• 45:40Kate Shaw?

  Making their exchange.

• 45:41Melissa Murray?

  A twofer.

• 45:42Kate Shaw?

  Twofer. Misogyny and racism rolled up into one.

• 45:46Melissa Murray?

  Two great tastes.

• 45:47Kate Shaw?

  So these exchanges continued up until the day before Epstein was arrested in 2019.

• 45:55Melissa Murray?

  Which makes me want to ask once again, who ruined the workplace? Definitely the women, I think. We were the ones who made these unrealistic demands about not wanting to be pressured or feel pressured or see other women feel or be pressured into sexual relationships with predatory men who leverage their seniority, power and connections. Why can't we just lighten up and let the good times flow? Take a joke. Smile more. Anyway, some of the emails indicate that Jeffrey Epstein was corresponding about Ken Starr vouching for, wait for it, Brett Kavanaugh. So what? So apparently Epstein wrote to Bannon to Crowe that Starr was touting Kavanaugh's credentials

• 46:40Melissa Murray?

  to Ted Cruz and Tom Cotton, two Republican senators who would vote to confirm Coach Kavanaugh to the high court. And in an email Bannon noted that Starr thought Kavanaugh was brilliant, to which Epstein responded that Kavanaugh was, quote, "reliable."

• 46:56Kate Shaw?

  Wait, did Epstein just feel relatable for a moment? Was he like, "I wouldn't go that far. Not brilliant."

• 47:01Melissa Murray?

  I think it was kind of a zing.

• 47:03Kate Shaw?

  Let's just go with reliable.

• 47:04Melissa Murray?

  Yeah, he was like, "Maybe too much."

• 47:06Kate Shaw?

  So, and reliable for what, though? So Bannon and Epstein have this big back and forth about the likelihood that a newly constituted court with Gorsuch and Kavanaugh installed would be able to overrule Chevron versus NRDC, a case they also mentioned that Gorsuch's mother had been involved with, which was true. She had been Reagan's EPA administrator and was one of the parties named in the case when it was before the D.C. Circuit. So they made that prediction. Weirdly, that happened.

• 47:34Melissa Murray?

  Weird.

• 47:35Kate Shaw?

  Yeah, curious. Epstein was also coaching Bannon on how to discredit Christine Blasey Ford's testimony before the Senate Judiciary Committee. Epstein advised Bannon that Kavanaugh supporters should note that Ford was taking medications that could alter memory. Does raise a question, how would he know that exactly?

• 47:54Leah Litman?

  Hmm.

• 47:55Melissa Murray?

  Hmm.

• 47:55Leah Litman?

  Hmm.

• 47:57Melissa Murray?

  Anyway, this is probably burying the lead a little bit, but Congress voted to release the Epstein files. And there was only one nay vote in the House, which is enormous, given this president's hold on the Republican Party. And it went through the Senate without any alterations, which meant it then landed on POTUS's desk. And a Schoolhouse Rock imagines it. The president signed that bill into law. But listeners, if you are awaiting a big wave of transparency as these files drop, I'm just here to remind you that you are a sweet summer child. I'm pretty sure that we are not going to be getting all of the files in one fell swoop. There will probably be a series of back and forths

• 48:41Melissa Murray?

  on redactions, possibly privilege, not to mention the fact that the president has suggested that there will be open investigations into the Democrats, who have already been mentioned in the emails that have leaked already. And if there is an active investigation or prosecution, materials related to the individuals named in those investigations or prosecutions would not be able to be released. So this is all to say, please manage your expectations.

• 49:08Leah Litman?

  So as you have undoubtedly surmised by this point, really big week for creepy men. But baby, don't worry, it's not a worm. This might belong in the favorite thing segment, but fuck it, we're going to talk about it here. So for those of you who have been thus far blissfully unaware, Olivia Nuzzi, who was previously the Washington correspondent for New York Magazine before she was fired after admitting to an inappropriate sexting relationship with Secretary Bill de Beare, raw milk, whale juice, you have RFK Jr., which is bad enough. He was also the subject of a profile she authored. So trying not to be overly concerned about the journalistic ethics here.

• 49:50Leah Litman?

  Anyways, Nuzzi is back. She has decided to write a book about the whole saga. And the book, titled American Canto, came out last week. This is kind of like Josh Hawley's manhood, which is to say, we are going to talk about it, but not tell you to buy it. Instead, just read the Vanity Fair excerpt, but we will give you a taste. And we are going to quote from it directly, because we just cannot make this up.

• 50:12Melissa Murray?

  He desired, he desired desiring. He desired being desired. He desired desire.

• 50:20Leah Litman?

  I am so uncomfortable even hearing you read this. Oh, I know.

• 50:25Melissa Murray?

  Ma'am, this is a Wendy's.

• 50:29Melissa Murray?

  He desired.

• 50:31Kate Shaw?

  Oh, no, please, no, Melissa, no, not again.

• 50:33Melissa Murray?

  He desired being desired. He desired desired self.

• 50:40Melissa Murray?

  You need a shower? We all need a shower after.

• 50:42Leah Litman?

  Yes.

• 50:43Melissa Murray?

  Yeah. All right. Your turn, Leah.

• 50:46Leah Litman?

  Okay. The real masterpiece, I believe, is as follows. Quote, "I did not like to think about the worm in his brain that other people found so funny." Side note, it me. You got me.

• 51:02Leah Litman?

  Anyways, the excerpt continues, quote, "He made me laugh, but I winced when he joked about the worm. 'Baby, don't worry,' he said. 'It's not a worm.' A doctor he trusted concluded that this shadowy figure was likely not a parasite. It was too late to interfere with the meme, but at least I did not have to worry about the worm. That was not a worm in his brain." End quote.

• 51:24Kate Shaw?

  Likely not a parasite also doesn't mean not a worm. Like.

• 51:30Melissa Murray?

  There are a lot of worms here, is all I'm going to say. Anyway, that is not all. Mutzey's ex-fiance, Ryan Lizza, who himself is a former writer at The New Yorker, where he was accused of sexual misconduct, he put up a post on Substack that sought to contextualize things by detailing Olivia's daddy issues and her prior inappropriate relationships with older men. And he did so via the world's most tortured bamboo metaphor, just going to say.

• 52:01Leah Litman?

  We are not going to spoil the surprise of this post. We will just say the screams that were scrunped.

• 52:10Melissa Murray?

  Honestly, I will say this. I had forgotten about both of these men's who were detailed here. And I thought it was interesting, since I had forgotten about it and was not prepared to have one of these men's back in my consciousness, that he nonetheless decided that he was going to post through it. And I'll just say that his posts are absolute art.

• 52:34Leah Litman?

  I like, as this was unfolding, I was the person in that sicko's gif like wa- watching, right, from outside the window, like laughing, ha, ha, ha, ha, ha. That, that was, that was me.

• 52:50Kate Shaw?

  All I'll add is this is, I think I can say this without any spoilers. This is not at all the most important thing, but the, the kind of discovery narrative.

• 52:57Leah Litman?

  You gotta read it in a voice.

• 52:58Kate Shaw?

  No, it's not, I'm not even quoting from her, but the discovery narrative involves a letter that has this like, "I want a drink from your rain gutters at your house." But it's a love note that she apparently wrote, but then she had it in her suitcase when she returned from the business, from the reporting trip.

• 53:15Leah Litman?

  She was workshopping it.

• 53:17Kate Shaw?

  Yeah, maybe it was a dr- I mean, uh, yeah. So anyway, not the most important thing, but I had some questions about that choice.

• 53:23Leah Litman?

  Yeah. And like, this is not to excuse like, Nuzzi's behavior, including her like laundering the reputation of a man who, right, is just enabling and facilitating potentially catastrophic human consequences and undermining the availability of vaccines and whatnot. But like, one of the relationships that is detailed in this Liza post is exceptionally exploitative, right? It is a relationship that Nuzzi appears to have begun around like 17 with like a 50-something man who effectively like paid for her college and room and board. Like, it is grotesque, right? And just kind of like underscores the real problems our society has with exploiting women.

• 54:06Kate Shaw?

  So let's talk about some maybe different kinds of quid pro quos. At a recent televised gathering, the CEO of Rolex gifted Trump a gold clock. Another Swiss company, MKS, also gave him a gold bar. So Rolex is a Swiss company, so is MKS, and even though they were not official representatives maybe of the Swiss government, the week after these Swiss companies gifted POTUS this gold, Switzerland and the United States, purely coincidentally, I am sure, reached a deal that lowered US tariffs on imported Swiss goods from 39% to 15%.

• 54:46Leah Litman?

  Now, no one is entirely sure if it's illegal for the president to accept gold bars or gold clocks as bribes in exchange for lowering tariff rates, thanks in part to the Supreme Court.

• 54:58Melissa Murray?

  Leah, I think you know that this was not a bribe. It was merely a gratuity. Some might say it's just a tip.

• 55:06Leah Litman?

  You know, the analogy works here, too, because they insist this leveraging money for access and influence doesn't fuck our politics when we know it fucks our politics. Anyways, the Swiss economy minister rejected criticism of the deal and insisted, quote, "We haven't sold our soul to the devil."

• 55:24Kate Shaw?

  Well, that's comforting.

• 55:28Kate Shaw?

  And I do have to say, this might have been another thing that one of us manifested. And this time I am looking at you.

• 55:34Leah Litman?

  Me?

• 55:35Kate Shaw?

  So that's you. Let's, let's play this clip from our live show at CricketCon in DC.

• 55:41Leah Litman?

  Which item has Trump specifically announced he is not tariffing? One, Coca-Cola products or ingredients. Two, gold. Three, computer chips. Four, silver. Gold!

• 56:03Kate Shaw?

  First of all, I really like this voice you're doing, Leah.

• 56:05Leah Litman?

  Thank you.

• 56:06Kate Shaw?

  I'm going with Coca-Cola products.

• 56:08Leah Litman?

  Doesn't sound like me at all.

• 56:08Kate Shaw?

  He's a big Diet Coke drinker. I'm going with Coca-Cola products.

• 56:11Leah Litman?

  I'm going with gold. Melissa wins! Kate, start thinking of your compliments. The gold, Kate! Everything in Mar-a-Lago is covered in gold.

• 56:20Kate Shaw?

  But he does drink, I think, Diet Coke? Anyway, you're right. Gold was clearly, was right there.

• 56:26Melissa Murray?

  You called it.

• 56:28Leah Litman?

  I, I'm sorry. I, this was not a manifestation. This man has been on gold for some time. Like, I did not do this. Like, the Swiss were merely reading the room, literally reading the room.

• 56:39Melissa Murray?

  Probably the Oval Office.

• 56:41Leah Litman?

  That's, that's fair. So I can't think of a transition here, so I'm just gonna go back to, we have another update from Department of Injustice, or from an artist who was formerly at the Department of Injustice. And this is the additional reporting on the administration's bagman slash turned federal judge slash crypt keeper slash dark lord of the Third Circuit. Amile Hové, who it turns out...

• 57:08Melissa Murray?

  Who it turns out isn't just a bagman, but a body bag man. So as it happens, while Beauvais was at DOJ, he was a busy, busy man. Not only was he involved in plotting to defy court orders, encouraging administration officials to tell the courts, fuck you if they attempted to stop the expulsions to the Salvadoran torture prison and strong-arming DOJ and going on a rampage at the Southern District of New York US Attorney's Office to try to use the criminal charges against New York City Mayor Eric Adams as leverage to get the mayor to support the administration's immigration enforcement efforts. He was also, according to NPR, involved in the administration's murders and executions on the high seas. The lethal strikes the administration has been carrying out on people it labels narcotraffickers.

• 57:53Kate Shaw?

  So as NPR reported, quote, "at a Justice Department conference in February, then acting Deputy Attorney General Emile Beauvais told the department's top drug prosecutors that the Trump administration wasn't interested in interdicting suspected drug vessels at sea anymore. Instead, he said, the US should just sink the boats." Which, to be clear, is, you know, literally piracy and also murder.

• 58:15Melissa Murray?

  I don't mean to make light of this, but do you remember the SNL Weekend Update skit when Bowen Yang pretended to be the iceberg that sank the Titanic?

• 58:24Kate Shaw?

  I do.

• 58:25Melissa Murray?

  Because that is-

• 58:25Kate Shaw?

  Would connect it to the conversation.

• 58:28Melissa Murray?

  Yeah.

• 58:28Kate Shaw?

  They're boats, they're both boats.

• 58:30Melissa Murray?

  I also- Sink the boats. Just sink the boats. I just like, Emile Beauvais is literally the iceberg. He's like, forget the black robe. You don't need Judge's robe. You need like a white spangled outfit and a big thing on your head.

• 58:42Kate Shaw?

  Okay.

• 58:43Melissa Murray?

  That's how I will remember him.

• 58:45Kate Shaw?

  Lifetime Judge Beauvais.

• 58:46Melissa Murray?

  Yeah. Okay. Switching gears, let's talk about Vanilla Ice. Not the famed rapper of the 1990s, but the ICE enforcement sweeps that are happening all over the country. So the administration has decided to direct its ICE enforcement efforts to the Queen City, Charlotte, North Carolina. And the impact of those raids has already been significant. According to reports, on Monday, November 17th, Charlotte Mecklenburg Schools reported 15% of its students were absent from school. And area businesses have noted a downturn in business because so many people are staying home to avoid ICE. All of this sounds like a solid plan to jumpstart the economy and leave no child behind.

• 59:29Leah Litman?

  In other administration use, in Memphis, Tennessee, where there has been an ongoing effort to deploy the National Guard, a federal judge stepped in to block said federalization and deployment of the National Guard in that city.

• 59:44Kate Shaw?

  And in more federal district court action, although here involving DHS rather than the National Guard, Judge Sarah Ellis in Chicago, who we've now mentioned a couple of times on this show, released her opinion in the case involving challenges to DHS abuses in the city of Chicago. So the Seventh Circuit had actually already stayed an injunction that she issued, finding that injunction overbroad and scheduling arguments in the Seventh Circuit for December. But Ellis subsequently released her 233-plus-page banger explaining her decision. And it is just a pretty crystal clear statement that we definitively cannot trust anything that comes out of DHS's mouth, because we are not done with Lily Allen's West End girl. The opinion describes Greg Bavino, who is the senior Border Patrol official who is handling the efforts in Chicago,

• 1:00:28Kate Shaw?

  although I think he's actually now moved on to North Carolina, but has been a key, high-level coordinator of these aggressive enforcement efforts. And Ellis describes him as not credible, noting that his answers to the court's questions are, quote, "cute or outright lies." The opinion also provides numerous examples of the government's accounts of particular incidents involving clashes between DHS officials and civilians as being flatly contradicted by body camera footage. Also notes that DHS agents have used ChatGPT to generate incident reports. I mean, it is just like a wild indictment of essentially the candor and integrity of DHS as an entity. And, you know, that is who is terrorizing

• 1:01:12Kate Shaw?

  American cities across the country.

• 1:01:14Leah Litman?

  And relatedly, it's been reported that agencies within DHS, including ICE, CBP, plan to target for immigration enforcement Spanish-speaking churches across the country during the upcoming holiday season, between Thanksgiving and Christmas. Like, we have found the Christmas Adventurers Club. Greg Bavino is lockjaw. And we have a war on Christmas now. What would

• 1:01:39Melissa Murray?

  Jesus do indeed. Um, the prospect of ICE raiding churches during the festive season doesn't break your resolve. Don't worry, this might actually do the trick. Last week, in an Oval Office meeting with the Saudi Prince Mohammed bin Salman, also known as MBS, a reporter asked the president about the murder of journalist Jamal Khashoggi. Khashoggi, a Saudi dissident who often criticized the Saudi royal family and the Saudi government, was murdered in Istanbul in 2018, allegedly at the direction of MBS. And the president of the United States responded to that question about Khashoggi's murder in the following way.

• 1:02:16Speaker 07

  You're mentioning somebody that was extremely controversial. A lot of people didn't like that gentleman that you're talking about. Whether you like him or didn't like him, things happened, but he knew nothing about it. And we can leave it at that. You don't have to embarrass our guest by asking a question like that.

• 1:02:32Leah Litman?

  So by "things," the president means being tortured and dismembered with a bone saw, which, you know, his characterization, sympathetic characterization, checks out, given that this week the president did call for Democratic lawmakers to be executed. You know, and as far as being controversial, as we said, Khashoggi committed the cardinal sin of expressing views critical of MBS, Saudi royal family, Saudi Arabia government that MBS didn't like.

• 1:02:59Melissa Murray?

  Wasn't sure whether this was worth mentioning here for its connections to free speech or just general ongoing interest in misogyny, but I'm just going to say it. There was also an episode last week when a female journalist from The Guardian asked Donald Trump about LaFerr Epstein, and he told her to, quote unquote, "quiet, piggy."

• 1:03:19Kate Shaw?

  The bar is in hell, as you say often, and is correct. But can I go back for a second to what Leah just said about the Democratic lawmakers? So last Thursday, the president accused six Democratic members of Congress of, quote, "seditious behavior punishable by death." He did this on Truth Social. After the six released a video advising US service members that they have a right to refuse to obey unlawful commands. The Military Code of Justice provides that a member of the armed services can refuse to follow a, quote, "patently illegal order," such as one that directs the commission of a Or one that goes against the US Constitution, which service members swear to uphold when they join the military. So I would actually go even further and, you know, explain that service members don't only have a right, but actually have an obligation to refuse to follow an illegal order.

• 1:04:04Kate Shaw?

  That is the totally uncontroversial position that these members of Congress, former members of the military themselves, were communicating. And per usual, the president decided to truth through this. So he posted that the lawmakers should, quote, "be arrested and put on trial," and that "an example must be set." He also reposted a post from one of his followers urging that the lawmakers be hanged as, quote, "George Washington would." So just two things. One, Andrew Johnson was impeached for much less. I mean, he wasn't removed from office, but he, you know, his political career was essentially over. And two, this was a chilling set of events, I think would have been, on any week, but on the week that Trump, you know,

• 1:04:47Kate Shaw?

  lavished attention and praise on MBS in the Oval Office. It really made my blood run cold.

• 1:04:54Melissa Murray?

  That's it for the news. And speaking of men's, after this quick break, we will be back with Kate's conversation with Professor Jill Hasday about Hasday's new book, We the Men.

• 1:05:09Melissa Murray?

  Strict Scrutiny is brought to you by Earth Justice. Earth Justice is the most powerful legal force protecting the environment from Trump. Earth Justice sued the first Trump administration over 200 times and won 84% of the cases that went to a final decision. And they're now raising legal challenges to the current Trump administration at an even more breakneck pace. Earth Justice attorneys are the best of the best. Earth Justice shows just how powerful it is to have 200 elite attorneys all working together with a great legal strategy. Earth Justice's lawsuits are scaling up to match the scale of the threats with more attorneys, more cases, more public land fights, and more climate enforcement. Earth Justice is using its legal muscle to protect public lands and our climate. They represent clients free of charge.

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• 1:06:40Melissa Murray?

  We can't afford massive new fossil fuel infrastructure. The consequences affect all of us, and Earth Justice knows that. And these fights are about justice and democracy. When the law fails or is undermined, for example, when agencies are defunded or protections are unraveled, it's not just nature and the environment that suffers. Our communities suffer, especially frontline and tribal communities that Earth Justice represents. More importantly, we have a legacy to protect. The wild places that we love, the species that are hovering at the edge of extinction, our climate, everything that we do now, everything that Earth Justice is doing now, will define what our future generations inherit. So what's your role in all of this? Every voice, every petition, every donation makes a difference.

• 1:07:23Melissa Murray?

  Earth Justice lawsuits are entirely donor-funded, so they rely on all of us to support their work. So now you can join in their terrific work. Donate to Earth Justice to support their lawsuits and protect our planet. And every gift through December 31st will be matched to double your impact. Just head over to earthjustice.org/STRIP to make your contribution today, because the earth needs a great lawyer.

• 1:07:49Leah Litman?

  Hey, everyone. My name is Elijah Cohn, and I've been a producer here at Crooked Media for a decade. I love making our shows with the smart, creative people who work here and hearing from all of you who listen every week. But the thing that I'm proudest of is that video we made of Vivek Ramaswamy grunting while hitting baseballs. No, wait, sorry. The thing I'm proudest of is the work we do through Vote Save America. See, we don't want our shows to only leave you feeling anxious about the state of the world. We want to give you something you can actually do about it. Just this year, our listeners have raised millions of dollars and filled thousands of volunteer shifts to help candidates and causes in the 2026 midterms. And we have no plans to Slow down as we head into 2028. As far as I know, there's no other media company that does what Crooked does. We make entertaining, thoughtful content that brings people into

• 1:08:34Leah Litman?

  politics, and then we give them a direct way to get involved. And if you believe in that mission, one of the best ways to support us is by becoming a paid subscriber. Your subscription helps us keep making the shows you love and building a media company that doesn't just talk about politics, but helps people change them. And if the mission sounds great, but you feel like you need some sweet subscriber benefits to get you over the finish line, we've got you covered. Subscribers get ad-free shows, plus excellent exclusive podcasts, newsletters, and much, much more. So, thank you for listening and supporting what we do. Head to crooked.com/friends today to learn more and become a subscriber.

• 1:09:13Kate Shaw?

  I am your lone host for this segment, Kate Shaw, but it is not just me, because I am happy to be joined by University of Minnesota law professor Jill Haste to discuss her new book, We the Men: How Forgetting Women's Struggles for Equality Perpetuates Inequality. Jill, welcome to Strict Scrutiny.

• 1:09:28Leah Litman?

  Thanks so much for having me.

• 1:09:31Kate Shaw?

  Okay, I want to ask a couple of general questions about the book, and then also try to connect the book to the present moment, which is something I thought about constantly as I read it. It unearths many of the ways, and some are familiar and some are far less known, that women's struggles get written out of our collective history. So why write this book in the present moment? Was there a specific incident or pattern you observed that motivated this desire to do this deep dive, in particular, into the historical record?

• 1:09:57Leah Litman?

  I've been thinking about the seeds of this book since I went to law school. And I'd be sitting in these classes, and the professors, who were, with two exceptions, men, would tell stories about how the law has treated people over time. And it really struck me that these stories were actually about how the law has treated men. And either women didn't appear in these stories, or they were footnotes to be mentioned as an aside.

• 1:10:25Kate Shaw?

  Later. And it just occurred to me, women are about half the population. We're not a footnote or an aside. There's no story about the law that doesn't include women as much as men. So I always had this book kind of percolating in the background. And then what really pushed me to write it is the 250th anniversary of the United States is coming up in 2026. In every commemoration America has ever had, women have always had to claw their way in from the outside. And I thought, wouldn't it be nice to write this book before that commemoration takes place? You open the book with Alice Paul's 1922 predictions about women's future in politics and society. When the Washington Times asked Paul to predict how modern feminism

• 1:11:08Kate Shaw?

  would shape the course of history over the next 100 years, she offered this series of pretty optimistic forecasts, including that there would be a woman president of the United States in less than a century. And I have to say, that one hurt. She was so close to getting it exactly right, but just not quite there. So you note that, quote, "in some, she was hoping and working for a world where women participate equally in the control of government, of family, and of industry." So curious why you begin with that anecdote. And, you know, how do you think Paul's optimism contrasts with the realities that you document today? So I began with that quote, I guess, for at least two reasons. One, because

• 1:11:50Kate Shaw?

  the timing is so perfect. As you said, Alice Paul leads the more militant wing of the women's suffrage movement. She invents the idea of picketing in front of the White House, which now seems like old hat, but she literally invents it. And she gets the 19th Amendment, which prohibits sex-based denials of the vote in 1920. She's only 35 years old. And as you can imagine, she thinks she can do anything. Look what she managed to do against ferocious opposition, like women are literally being dragged in the street for picketing for the vote. And so at the end of 1922, they ask her, what's the world going to look like in 2023? And as you say, she imagines, in some ways, actually, a pretty modest agenda,

• 1:12:32Kate Shaw?

  that there'll be at least one woman president in 100 years, that half of Congress will be female, and

• 1:12:38Leah Litman?

  That women will have equal opportunities across social, economic, political dimensions. And it just struck me that this was a great way, in addition to the timing being perfect, this was just a great way of showing, it's not that women haven't made progress, but how far we have to go. Literally, none of her goals have been met. And in fact, as I talk about in the book, there was this 2019 poll where they asked people, would your neighbors be comfortable with a female president? The reason they asked that is because people don't like to admit their own biases, but when you ask about their neighbors, they'll be more forthcoming. Only a third of Americans said their neighbors would be comfortable with a female president.

• 1:13:17Kate Shaw?

  Yeah.

• 1:13:17Leah Litman?

  So I just think it's a good reminder that, yeah, there's been progress, but much less than you might hope.

• 1:13:23Kate Shaw?

  And I should say that for people for whom these stories about Alice Paul are not familiar, the wonderful Broadway musical, "Suffs," depicts both, by Shana Taub, depicts Paul and, you know, many of her fellow travelers in particular, picketing outside the White House, being arrested, facing brutality. It's closed on Broadway. I'm not sure what kind of afterlife it's going to have in other cities, but it really is a wonderful effort to do, I think, kind of theatrically and musically, a lot of what you are doing in the book, which is remedy some of the historical omissions and illusions that are so prevalent. So the book outlines, I think, what you call two ways of forgetting about women that predominate in America's stories about itself. So one is erasure, and the other is distortion. So can you just give a top-line explanation of how you use these concepts

• 1:14:07Kate Shaw?

  and how they sort of manifest in our collective memory?

• 1:14:10Leah Litman?

  The book, as you say, talks about two kinds of forgetting. One is just leaving women out of the story, and that's what I mean by erasure. Some examples are concrete. If you imagine walking down a public park to a government building and you see a statue, without knowing much about you, I suspect that most people in their minds envisioned a man maybe on horseback. If you think about the name above the government building, you're thinking of a man's name, and that's because that's how commemorations are, even if you look at commemorations in the last four years. And in some ways, I actually

• 1:14:44Kate Shaw?

  Actually, wasn't too surprised to find that. I kind of expected that. What I was surprised was how many times women are left out of the story, even when the story is about women. In the book, I call it spontaneous enlightenment stories. And if you've ever heard a textbook say, "Men gave women the vote," that's an example of a spontaneous enlightenment story. It's not true. First, all the 19th Amendment does is end sex-based vote denial. So plenty of women, especially women of color, still don't have the vote after 1920. But also, men don't give women anything. It's a multi-generational, literally bloody battle. So that's an example of leaving women out of the story, even when it's about women. So that's what I mean by erasure. And the other is distortion. And distortion is basically

• 1:15:28Kate Shaw?

  leaving out the work America still has to do. So anyone who lives in 21st century America, I suspect you've encountered someone who announces or assumes that bad old days, the sexist bad old days are behind us. What I was surprised to learn is just how early those stories start. Like, I literally have textbooks from before the 19th Amendment. So when women are denied the vote in most states of the United States, saying, "Men and women are equal under the law." And it's just, you know, it's stunning. And part of the point of the book is to show how these statements, they're not just kind of like rosy, they actually function to justify the status quo. There's nothing more to fight about. Women are ready to have enough.

• 1:16:10Kate Shaw?

  Yeah. Yeah, I'll say that you have a lot of these examples. And I was reminded by a lot of them of this passage in the civil rights cases, which con law students will be familiar with. So it's the 1875 case in which the Supreme Court really undermines the full force of the 14th Amendment and announces this state action requirement. But there's language in the opinion, you know, that basically a decade post-slavery, racial equality has already been achieved. And there's this language that basically says, you know, "A man has emerged from slavery and has shaken off the, you know, inseparable sort of concomitance of that state. So there has to be some stage when he takes the rank of a mere citizen and ceases to be the special favorite of the law." So that's language from the opinion. And it's like 10 years.

• 1:16:54Kate Shaw?

  Post actual enslavement, the court is saying, that's all behind us. Like, let's move on. And decades before there was even formal access to the ballot for women, at least for white women, right, you already have all of these men saying, sex equality has been achieved. Like, it's really pretty stunning. So I actually want to ask you to talk about one specific example of the erasure phenomenon that you talk about. This one I thought was really interesting. So you compare the Supreme Court's infamous decision in Lochner, which is from 1905, with its way less known, but also infamous decision in Mueller versus Oregon from 1908. And you show that these are sort of equally shoddily reasoned opinions. Mueller has arguably

• 1:17:37Kate Shaw?

  more persistent consequences, but has significantly less notoriety. So you write, quote, Mueller shared Lochner's penchant for constitutionalizing ideology with the justices using their constitutional decision making to impose their personal views about how the world should work. We kind of know that about Lochner and its sort of commitment to a laissez faire vision of kind of the role of government in the economy. But you have Mueller constitutionalizing this notion that women's primary roles and responsibilities are domestic. So can you talk about the different places of these two opinions in the constitutional canon? And then discuss why Mueller's neglect from contemporary discourse is so troubling. And I want to say one more thing, which is, students are familiar with the idea of kind of Lochnerism, but you coined this term Muellerism.

• 1:18:22Kate Shaw?

  So I guess I'd like to hear kind of what you're capturing with that term and how far away we are from incorporating it into our general legal vernacular. Thanks for that question. Okay, so just for anyone who hasn't gone to law school, one of the worst insults one lawyer or one judge can lob against the other is to say that they are guilty of Lochnerism. And that is after this 1905 case where the Supreme Court held that a 10-hour workday for male bakers was unconstitutional on the idea that the Constitution protected a freedom of contract conceived in their mind as basically the freedom to work yourself to death. And for instance, one of the highlights of my

• 1:19:06Kate Shaw?

  own academic career is I once was at a workshop, I gave someone what I thought was Constructive criticism, they accuse me of Lochnerism. I accuse them of Lochnerism right back. You know, this is like a very well-known term. And it kind of stands for the idea of judges constitutionalizing their own ideological abuse. So, three years after Lochner, there's another case that comes before the court, Muller v. Oregon. And the question in that case is, the court has already held it's an unconstitutional constraint on autonomy to have a limited workday for men. What about women? And the court goes in the opposite direction, in some ways in the opposite direction for women, and says, no, you can limit women's hours. But the ultimate approach is the same, which is the court is committed to the idea

• 1:19:50Kate Shaw?

  that women's primary responsibilities are in the home, and it's going to reason on that ideological basis. As you said, in some ways, Mueller has a much bigger impact than Lochner does. Lochner is overturned in 1937. In contrast, Mueller remains good law into the 1970s. There's a federal survey in 1969. A majority of states exclude women entirely from some jobs, limit women's hours, which ends up just keeping them in the pink-collar ghetto. And even after Mueller is overturned, in a footnote, the court continues to reason on the idea that women's ultimate responsibilities are domestic. For instance, Dobbs overturning Roe could be an example of Muellerism.

• 1:20:32Kate Shaw?

  But what's so striking to me is that Muellerism isn't a term, right? This is just me inventing it. No one talks about it. One way that constitutional law professors often write, and they often teach in their classes, is let's talk about what are the most important cases the Supreme Court has ever decided in constitutional law, and what are the most terrible? And one thing that's really striking, and actually another motivation for writing the book, is none of those cases on the worst or the greatest lists are about women. Women simply do not exist as a maker of important cases. And that's just remarkable to me. I don't think there's that many great cases about women, but a lot of the Supreme Court's worst decisions are about women. And certainly, that list could be

• 1:21:13Kate Shaw?

  Yeah, it's such an interesting point. So, you know, Mueller, I think, you know, is sort of a complicated story because I think that there is this rationale, which is that it's not as purely sort of kind of villainous, you know, an incident of the Supreme Court's intervention because it's almost like a wedge to break Lochnerism to sort of show there are justifications, even if those are incorrect ones that do, you know, permit legislatures to impose sort of limitations in the service of protecting workers and things like that. But you're right to say that, you know, cases like Bradwell versus Illinois, which has logic that is, you know, as ideologically driven, in particular in Justice Bradley's concurrence, that, you know, holds that states can deny women access to the bar, it's not

• 1:21:58Kate Shaw?

  really on people's like top five or 10 worst Supreme Court decisions lists. And it really should be. When I say most people's list, I'm, you know, talking primarily about male academics. But, uh, but I think you're right to sort of note those omissions. You know, also on the kind of erasure point, you mentioned sort of statues before. So the book spends quite a bit of time cataloging ways in which decisions around public memory and commemorative honors, right, things like monuments and courthouses and museums and stamps erase women. And you offer a lot of, I think, really persuasive data about just like how wildly absent women are from many of those spaces and honors. But I'm curious to actually hear you talk about how much this matters, right? So like, on the one hand, this sort of commemoration

• 1:22:43Kate Shaw?

  is largely symbolic. And there is a critique, which I think, you know, has some force in some contexts, which is that in recent years, many on the left have focused on efforts to remedy symbolic erasures. And that I think is true when we're talking about both sex and race. But to the neglect of a focus on more material conditions, right, of inequality and subordination. So I guess whether or not you think that critique is forceful, I actually think it is very telling that when the second Trump administration came into office, they focused immediately, and this was especially striking in the military, although it happened in other places too, on undoing efforts at improving representation

• 1:23:26Kate Shaw?

  and inclusion. So they definitely think it matters. So I'm just curious to get your reaction to all of that. Okay, so do I think our agenda should be only commemorations all the time? No, but that's a parody. Why are commemorations so hard fought? I think one myth we have is there's so few commemorations of women just because no one thought about it, it's inertia. That's just not true. There's so few commemorations of women because every time women try for commemorations, which they have been for over a century and a half, there's a lot of pushback. Commemorations are so hard fought because commemorating the past is really about understanding the present and imagining the future. And that's one thing Donald Trump and I agree on. He knows the importance of commemorations.

• 1:24:08Kate Shaw?

  For instance, in my book, one of the stories I tell is he opposed the Obama administration plan to put Harriet Tubman on the $20 bill immediately. At the time, in 2016, he was running for the Republican nomination. He immediately denounces it as political correctness. He says later to an age, he doesn't look like the kind of person who belongs there, which I think is both about what kind of person he thinks belongs on the $20 bill and also he probably doesn't find her physically attractive, just as being Donald Trump. I think it's very striking that how heavily the Trump administration has pushed commemorations. So there's a lot of examples. Again, one of the first things the Trump administration did is they set up their committee

• 1:24:49Kate Shaw?

  for the 2026 commemoration, the 250th anniversary of the United States. Donald Trump himself is chair. If you look at some of the things they've done, the military is a great example, how they're rewriting history. The National Park Service took Harriet Tubman off. There was a large picture of Harriet Tubman when explaining the Underground Railroad. She's probably the most famous conductor of the Underground Railroad, which is just the term used to describe the system of kind of safe houses and guides that helped people escaping from slavery get to the North and then maybe to Canada. They took her picture out and placed her kind of in like a montage picture and they also de-emphasized slavery, which is bizarre because exactly why are they underground

• 1:25:34Kate Shaw?

  if they're not escaping from slavery? But those, it's just an example of commemorating the past. Is about the future. Why are they so anxious to take out examples? Because they're trying to say the military should be more white and male. I mean, I don't think it's a secret.

• 1:25:53Kate Shaw?

  And I think that's why commemorations are so, that that's why they are so contested. And we've seen a lot of, I think that's very top of mind for people when we think about Confederate memorials. But it's actually also true for memorialization of women. That that's why they're fought about. So I guess another way I would say it is it's not commemorations all the time. But it's also, it's not either or. They're kind of, it's kind of the same thing. Yeah. Right. Fighting about commemorations or having commemorations is another opportunity to talk about how the present and future should be. So for instance, in the book, one of the commemorations I propose is an equal pay clock. So anyone who's ever been in New York, there's this national debt clock

• 1:26:35Kate Shaw?

  and you can see the numbers going up and it's very alarming. You know, it's, it's good commemoration. So I'd like maybe in Times Square, an equal pay clock. And of course, the numbers won't move. But like we can rotate between different groups of women, so it catches your eye. But imagine that pay gap between men and women has hardly switched in the last 20 years. It was about 75 cents 20 years ago, and now it's about 82 cents. And when you include race, the numbers are even starker, right? When you include like people are underpaid for being part-time, you know, so imagine going through all of those disparities, women as a whole, different subgroups of women, et cetera, all the time. I think that would be just extremely powerful.

• 1:27:19Kate Shaw?

  So we've been talking about different dimensions of erasure. Let's now shift to the second form of forgetting that you address, which is distortion. So you criticize a long history of what you call self-contradictory victory announcements. So these are these announcements, like we were just talking about, that sex equality has been achieved, full stop, often. And then a pairing of that announcement with often substantive efforts to roll back equality. As you have said, it is really striking how early and how often you see these kinds of proclamations. Often paired with substantive rollbacks happening. So can you say a little bit more about this? And maybe, you know, you were talking about this happening even before the adoption of the 19th amendment. Can you offer some specific examples? So that's exactly right.

• 1:28:03Kate Shaw?

  Self contradictory victory announcement is you're declaring victory. Women's equality has been achieved. At the exact moment, you're denying victory. That's why it's self contradictory. So I'll just do an example that springs to mind. In 1948, Gwendolyn Hoyt is convicted of second degree murder for killing her husband with a baseball bat. She's convicted by an all white male jury because Florida only puts white men on, only puts white people on the jury. And for women, women have to opt into the jury rolls, which most people of any sex don't want to opt in. And even if women do opt in, Florida will put like a max of 10 in any county's jury roll that has like 10,000 men. So basically it's all male juries, you know, maybe the occasional one has one woman.

• 1:28:48Kate Shaw?

  And she appeals to the Supreme Court and she says, I was denied a jury of my peers. Women would have been more sympathetic. Her husband was an adulterer. This is the era before cell phones. So his girlfriends are literally calling the house phone and asking for him. She has adult, she has epilepsy and she claims basically I had a, you know, mental break and the baseball bat was right there and I had this moment of temporary insanity. Women would have been more sympathetic. Men obviously don't like the idea of women beating their adulterous husbands with baseball bats. And the Supreme Court rejects her claim, saying, an example of Mueller's, and women's responsibilities are domestic. The state can prioritize women at the home. But at the same moment, it says that, it keeps women, it treats women as inessential jurors

• 1:29:33Kate Shaw?

  and denies female defendants' juries of the peers. It says, women have enlightened emancipation. Again, who's been enlightened? It's the male. Lawmakers, there's no sense that women push for this, but it's over. And I think Hoyt is a great example, there's a lot, but it's a great example of simultaneously declaring victory, there's been enlightened emancipation, women didn't have to fight for it, it was natural, men gave it to them in their wisdom. And why are we declaring that there's so much equality? Because we know, confident in this sex equality being achieved, we know we can deny you what you want. Right. So they preserve male jury systems. And one thing I show in the book is that this is just a strategy.

• 1:30:14Kate Shaw?

  As you mentioned earlier, I could do a similar chapter just about race, but I think I've really revealed in this book, this is just a strategy by which inequality is achieved. You declare victory as a way of kind of rationalizing, not actually extending equal rights. And I can now remember if it's Hoyt or one of the other cases you talk about in the same chapter, but there are also some mentions, I think, both in judicial opinions and the broader discourse, of not only sort of women having achieved equality, or American women having achieved equality, but American women alone amongst the women of the world having achieved equality. And so there's also, there's this kind of comparative claim that women in the United States have, you know, achieved something that women elsewhere have not, and therefore

• 1:30:58Kate Shaw?

  whatever specific demands are being made are unjustified, unnecessary, maybe unreasonable. And also there is this sort of undertone of this kind of, the reason that this equality has been achieved is this beneficent gift from men. Yes, and you see that in newspapers, you see that in judicial opinions, you see that in anti-feminist literature, like Phyllis Schlafly loves to say, "American women are more liberated." There's a lot of things you can say, one thing I'll say about that is it's objectively false. Women are not in America, that's not the earliest victory for women's suffrage, you know, New Zealand gets it generations earlier, but that's, that's part of their claim. And I think, as you said, it kind of enhances the idea

• 1:31:41Kate Shaw?

  That American men are particularly wise and beneficent, but also, American women particularly lack a grounds for complaining. There's even an undercard of like, if we gave what you're asking for, it would actually be too much. Right. You know, you already have equality, and if you get this, it would actually be too much. We'd be going too far. You mentioned Phyllis Schlafly, and you devote an entire chapter to demonstrating how anti-feminists have capitalized on America's misremembered past, as you say. So can you talk a little bit about parallels you see between early, even anti-suffrage sort of rhetoric, and then modern anti-feminist movements, either more modern, like sort of the anti-ERA

• 1:32:24Kate Shaw?

  movement headed by Phyllis Schlafly, or sort of even more contemporary kind of anti-feminism? Sort of how does that effort capitalize on claims about women having already achieved full equality? So I think Phyllis Schlafly, who led the anti-ERA movement in the 70s and 80s, really is a pivotal figure. She takes ideas that were in the anti-suffrage movement, and she really refines them in a way that I think the half-century of anti-feminists have just followed her playbook. Her two central arguments against the Equal Rights Amendment were, one, the Equal Rights Amendment was unnecessary because that America had already left discrimination against women behind. And, two, the ERA was menacing because it would take women out

• 1:33:09Kate Shaw?

  of the home and cause a variety of other horrors, like same-sex marriage. She had a lot of things. And that really is the anti-feminist playbook to date. I have many examples in the book of how anti-feminists opposing government support for childcare, or abortion rights, or affirmative action, or modern efforts to ratify the ERA, basically make those two claims. Whatever you're asking for is unnecessary, equality's been achieved, and it would be menacing. Because it would take women out of the home. And I think one of the reasons the strategy works so well is that Americans are primed to some, even if only subconsciously, accept that narrative of progress because we've literally

• 1:33:51Kate Shaw?

  read it in textbooks. I have a lot of examples of textbooks, you know, that's just something we hear. So she strives very openly for a position in the Ronald Reagan administration, and he doesn't give it to her. It's, you know, I can't have a whole, I'm not, it's hard to say definitively why, but I will say that almost everyone in the Reagan administration is a white man. But like, there's a way in which you can't quite admit that because their whole thing is there's no sex discrimination. Anyway. So Schlafly is a figure that people are probably at least somewhat familiar with. We talked about Alice Paul. I just want to ask, you obviously did deep historical research for the book, and you mentioned having uncovered stories that you actually never knew about despite spending decades kind of working in this field. And I have to say, I also felt

• 1:34:34Kate Shaw?

  like I learned a ton. So I'm curious if there is a story of like a particular woman or a legal fight that wasn't something that you had been familiar with previously and that has particularly stayed with you. Yeah, I have a favorite. So yeah, so one reason I think this book is actually really fun is there are so many remarkable women who I had never heard of despite doing more than two decades of work in this field and who are just, they're just very impressive. Like despite odds, they keep fighting. So let me tell the story of Anne Dabido. In 1945, Michigan passed what was known as an anti-barmaid law that banned women from serving as bartenders in larger cities unless the woman was the wife or daughter of the

• 1:35:19Kate Shaw?

  male bar owner. This law was pushed through by the All-Male Bartenders Union, which liked to call women barmaids to distinguish them from male bartenders. And in public, they often said that they were protecting women from the immorality of the bar, of bars. But that argument never quite made sense. Among other things, women could be cocktail waitresses, which is definitely more vulnerable to violence and harassment by customers. And in their private, internal union documents, which I looked at for the book, it's very clear that economics drives it, keeping women. ...out of bartending helps protect male jobs and keep the wages up. And they know, actually, a lot of employers would like to hire women because the women are kept out of the union and they can pay them less.

• 1:36:04Kate Shaw?

  Anyway, so they push it through. And four women want to challenge the law. Two of them are bartenders, two of them own a bar. And then one of the bar owners is actually the mother of one of the bartenders because one of the perversities of the law is that if you own a bar and you're a woman, you can't bartend and you can't even have your daughter bartend for you. Ann Davido is a pioneering attorney, feminist attorney in Detroit. She left school to support her brother through law school. And then, to his credit, when he becomes a lawyer, he supports her so she can go to law school. They've become a brother-sister law firm. I just, I just love it. The, you know, the odds are against her. At this point, the Supreme Court has upheld dozens of restrictions on female labor.

• 1:36:49Kate Shaw?

  It's never struck anyone down. But she persists and she gets to the Supreme Court in 1948 in a case called Gosford v. Cleary. In that era, the Supreme Court doesn't record oral arguments, so we don't know exactly what's said, but she gives an interview years later. And she reports that also in that era, you don't have an assigned time when your case begins, they give you a day and you just kind of sit there waiting. So she's waiting, there's the lunch break. After the lunch, the Solicitor General for the State of Michigan, who's defending the law, comes in with the justices, i.e., she thinks the fix is in. He's been to talk to them over lunch. Sure enough, they hardly have any questions for him.

• 1:37:30Kate Shaw?

  Then when she goes to give her argument, Felix Frankfurter, who's known as a great liberal, harasses her and heckles her from the bench while telling her that the days of chivalry aren't over. By the way, a great example of a self-contradictory victory announcement because he's saying, you know, "We're living in this great year and women are treated with respect," as he's harassing her. She loses. And he writes an extremely disrespectful opinion that's less than three pages long. He says, "This is a rare case where to state the question is to answer it." Women be excluded, of course they can. He includes another self contradictory victory announcement. He says, women basically have all the freedoms and all the vices of men. So we don't have to give them access to this job. Eventually she gets the last laugh, though.

• 1:38:14Kate Shaw?

  The Supreme Court overturns Gossett in 1976. But that's actually, she's not my favorite because eventually she wins. She's my favorite because she tries and she's willing to go forward. And I think that, you know, we're in a, we're not in a feminist moment in American history right now. And the question is how to keep going when you probably won't win this day or this week, but how to keep mobilizing over the long term. You do end the book with this call for hope and renewed engagement. So I'm curious where you see the most potential for change right now, even in light of that obviously sober and somewhat pessimistic framing with respect to the actual current moment we're living in. I'm actually extremely optimistic long term.

• 1:38:55Kate Shaw?

  I think in part because, well, okay, let me, let me back up. So I started the book before Roe was overturned. And in my initial introduction, I said something like, you know, women definitely have more rights and opportunities now than they had a half century ago, but there's still more work to do. And I initially thought the book was going to be along the lines of there's been progress, but it's too slow, too small. And Dobbs, the case overturning Roe, really focused my attention on regression and the threat of regression, and how many times women's rights have been rolled back. But what's very striking to me is how women pushed through.

• 1:39:37Kate Shaw?

  They kept fighting because that's really the only, the only alternative. I talk about a lot of arenas where we still need reform and to keep fighting, not only teaching, commemoration, political representation. There's a lot of legislative work to do. Maybe I think the most important is everyday life. One reason these stories have so much power is because people believe them or kind of accept them unconsciously. And I hope that reading the book or just listening to this conversation can help people kind of recognize it. So if you see someone or you read an article that is declaring victory while justifying an unequal president, I think it would be just, that's the first step.

• 1:40:22Kate Shaw?

  Like say, look what they're doing. It's declaring victory as a way of justifying what he's doing.

• 1:40:27Leah Litman?

  Every advanced woman have ever achieved has taken generations against ferocious, often violent opposition. That's just the reality of the situation. So I'm not minimizing the position we're in right now as a nation. I think we are in a perilous position, but I think we can survive.

• 1:40:48Kate Shaw?

  The book, once again, is We, the Men: How Forgetting Women's Struggles for Equality Perpetuates Inequality. It was out earlier this year, and it is available wherever you get your books. Jill Hasday, thank you so much for joining me today.

• 1:41:00Leah Litman?

  Thanks for having me. I appreciate it.

• 1:41:02Kate Shaw?

  Thanks again to Professor Jill Hasday for that conversation. Let us end, as always, with our favorite things.

• 1:41:07Leah Litman?

  So we wanted to give a shout out to Ali from James for the civil rights work that Ali has been doing as part of the University of Washington School of Law's Civil Rights Clinic under Professor Owens. We hear how hard you've been working and on such important work, so thank you.

• 1:41:22Kate Shaw?

  Couple of quick things. Rosalia, who's a Spanish singer-songwriter, has a new album, and people have known her for a long time. She's new to me, and she's amazing. So I'm discovering her back catalog as well as the new album. Emily Bazelon and Rachel Poser had, I think, must-read piece in The Times compiling first-person accounts of the destruction of the Department of Justice, some on the record, some anonymous accounts. I read the novel Wild Dark Shore on Leah's recommendation. I loved it. And I started the nonfiction book Gods of New York, kind of about New York in the 1980s. The rise of Donald Trump is part of it, although there hasn't been much Trump yet. But the book is really fantastic.

• 1:41:58Leah Litman?

  I have a few, Rex. One is Hilary Duff has a new single, Mature, and it is amazing. Second is Got the News.

• 1:42:07Melissa Murray?

  Wait, can we talk about it for one second?

• 1:42:08Leah Litman?

  Yeah.

• 1:42:09Melissa Murray?

  Who is it about? So some have speculated it's about Leo DiCaprio.

• 1:42:15Leah Litman?

  No.

• 1:42:15Melissa Murray?

  Because there's a discussion of the Basque. But I don't recall her dating him. I do recall her dating Joel Madden.

• 1:42:21Leah Litman?

  Well, also, she says, "like Leo with a Scorpio touch." So it's not about Leo.

• 1:42:26Kate Shaw?

  Oh, she's so good because I actually thought she was just sort of making like weird astrological references. I hadn't. Yeah, okay, that's good. That's good. I thought she was being very deep there. It's Joel Madden then.

• 1:42:37Leah Litman?

  I mean, that is definitely a possibility, but this, this song is amazing. It is a bop and is exceptionally topical, given all of the things we have been talking about. Okay, so second recommendation is, we received the news that at this year's Pop-Tarts Bowl, there will be six edible mascots, three on Team Sprinkles and three on Team Swirls. And we can only assume that at least one of them will have to die in the toaster. I love this.

• 1:43:04Kate Shaw?

  What the fuck is the Pop-Tarts Bowl?

• 1:43:06Leah Litman?

  Really? Oh, my gosh, Kate, you missed this. You, anyways, go Google Pop-Tart Bowl, the like, death of Pop-Tart. You'll love it. You'll, you, it's.

• 1:43:18Kate Shaw?

  Okay, I will.

• 1:43:19Leah Litman?

  Everything. Anyways, okay.

• 1:43:21Kate Shaw?

  Great.

• 1:43:21Leah Litman?

  Um, third, I was out in California this week, including at Melissa's old stomping grounds at Berkeley. And I wanted to give a shout out to some Stricktes, Strysty, Joanna and Erin. I even remembered, like Melissa does, to take down names and the cupcake and bake shop. One of them gave me cupcakes from, because they knew I liked magnolia. Loved that. Also to Sarah and Rachel, who I met Rachel on the plane back. I always forget to like, mention this in the moment, but if you hear your names, please email me. I would love to send you something small. Also on the California bit, I got to swim with my old swimming team at Stanford, so wanted to say hi to Tim and Kathleen and Joe.

• 1:44:02Leah Litman?

  And one more California item, which is, I have a review up of Justice Barris' book in the LA Review of Books, so you can check it out. We will include it in the show notes.

• 1:44:12Kate Shaw?

  This is sneaky because it, it's out by the time you're listening, but it's actually not out yet. So Melissa and I haven't read it yet, and I am dying to.

• 1:44:18Leah Litman?

  Well, I've read it.

• 1:44:18Kate Shaw?

  It's actually dropping Saturday. Did you read it?

• 1:44:20Leah Litman?

  Yeah, I offered to share a draft and Melissa said yes.

• 1:44:22Kate Shaw?

  Oh, I've missed the email.

• 1:44:24Leah Litman?

  Check your email, Kate.

• 1:44:26Kate Shaw?

  I will.

• 1:44:27Leah Litman?

  It's like pop culture, Kate. You gotta actually watch it.

• 1:44:30Kate Shaw?

  Read, read about Pop-Tarts and lead us, well, I'm psyched to read it.

• 1:44:34Melissa Murray?

  Okay, among my favorite things, last week I got to participate in the Kettering Foundation's inaugural Democracy Prizes. So the Kettering Foundation is a philanthropic organization that awards grants, and they've been focused a lot on democracy and democracy building institutions, hence the inaugural Democracy Prize, which was awarded to two laureates. It was awarded posthumously to Alexei Navalny, the Russian dissident who was killed allegedly at the direction of the Kremlin, as well as Judith Brown-Dianis of the Advancement Project, who is a tremendous civil rights lawyer who has done amazing

• 1:45:13Melissa Murray?

  work, including spearheading the effort on Florida's Amendment Four, which would restore voting rights to those who had been formerly convicted of felonies. So absolutely amazing to be a part of that evening and to introduce Judith Brown-Dianis, and just great work all around. The other thing I really enjoyed this week was the Duchess of Sussex's Harper's Bazaar cover and interview. And I'm just going to say, she was really going for a very light, no makeup makeup look, and not my personal choice, but I get what she's doing here. She's sort of like, this is who I am. This is me authentically and without all of the artifice. And I love that for her. And it's a very interesting profile. I thought she came off

• 1:45:55Melissa Murray?

  really well. And the clothes are actually amazing. She is doing some very high fashion things in any of that. My third favorite thing is the Mother Jones profile of veteran and ICE antagonist Buzz Grambo. He is an individual who lives in Baltimore. He basically follows ICE around the city on a scooter. He's upgraded his scooter motor so that he can chase them faster. And he just documents their abuses and warns city residents of their presence like Paul Revere. And it's just a really great reminder that we can all push back. Speaking of some great items and a high fashion profile in Harper's Bazaar, if you're thinking about a high fashion moment for yourself, well, that means it's time for you to get

• 1:46:38Melissa Murray?

  on over to the Crooked Store. This is the best time to shop because not only do you get to To avoid your MAGA family by getting online and shopping at the Crooked store, the deals are actually great. The vibes, as the kids say, are immaculate. You can grab holiday gifts for all of the libs and pod lovers in your life, and you can pick up something for yourself while the best sales of the year are on. You can get brand new stocking stuffers and a classic tee that you've had your eye on. Everything is on sale. This is the glow up you have been waiting for. So just head on over to crooked.com/ store to shop the sale, get your glow up, and get ready for everything 2026 has to offer.

• 1:47:21Leah Litman?

  In case my favorite things didn't make it clear, love California, which means we are

• 1:47:27Melissa Murray?

  Best Coast!

• 1:47:28Leah Litman?

  super excited to be headed to that best coast, West Coast. We are finally bringing the podcast off your headphones and onto a real stage. We are coming to San Francisco on March 6 at the Herbs Theater and to Los Angeles on March 7 at the Palace Theater. Gift a ticket for the holidays or bring a friend. You can snag those tickets at crooked.com/events.

• 1:47:51Melissa Murray?

  Berkeley Oakland folks, don't be mad that we're going to San Francisco. The Bay Area is broad and you are part of it. Get yourselves across that bridge to the Herbs Theater. We will see you there.

• 1:48:03Kate Shaw?

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

• 1:48:54Speaker 05

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

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