A Court of Drugs and Guns

Kate, Leah, and Melissa break down the oral arguments in United States v. Hemani, a Second Amendment case which challenges a law prohibiting “unlawful users” of controlled substances from possessing a firearm. Then, they cover two truly heinous shadow docket rulings–a case out of New York where SCOTUS’s conservatives seem to have found an impermissible racial gerrymander they believe in, and another on the outing of transgender children–before speaking with California Attorney General Rob Bonta about standing up to the Trump administration on issues like tariffs, federal law enforcement overreach, and antitrust. They also pour one out for Krispy Gnome’s (née Kristi Noem) generationally awful tenure at the Department of Homeland Security. This episode was recorded live at the Herbst Theatre in San Francisco. Favorite things: Kate: This judicial order in Urquilla-Ramos v. Trump https://storage.courtlistener.com/recap/gov.uscourts.wvsd.242928/gov.uscourts.wvsd.242928.28.0.pdf Leah: Upcoming https://bookshop.org/p/books/a-court-of-thorns-and-roses-6-sarah-j-maas/c20f2b47abde88ba?ean=9781639739134&next=t Sarah J. Maas books https://bookshop.org/p/books/a-court-of-thorns-and-roses-7-sarah-j-maas/df2c18f5e7503d72?ean=9798260200568&next=t; Melissa’s upcoming book (link below) Melissa: [REDACTED] Preorder Melissa’s book, The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy 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/9781668054628Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky 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.

• 0:00Speaker 00

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

• 0:31Speaker 01

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• 1:10Speaker 02

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• 1:51Speaker 03

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a chessman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm. Have a little taste.

• 2:22Speaker 04

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

• 2:35Speaker 05

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

• 3:05Melissa Murray?

  Hello, Bay Area.

• 3:12Melissa Murray?

  We are Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

• 3:21Leah Litman?

  I'm Kate Shaw. And I'm Leah Litman.

• 3:30Melissa Murray?

  West Coast, Best Coast, we are finally here.

• 3:37Melissa Murray?

  And I can't tell you how excited we are. We are so excited. I want you to know that I wanted to call this tour "The L.A. Face With An Oakland Booty Tour."

• 3:54Melissa Murray?

  I know, it's catchy. It's catchy. I was outvoted. Some people thought it would not be decorous. And I have just three words for those people: "Just the tip."

• 4:14Melissa Murray?

  I own that.

• 4:17Melissa Murray?

  Anyway, this is the Bad Decisions Tour, and you can't go wrong talking about the Supreme Court and calling something "the Bad Decisions Tour" because you know bad decision season will soon be upon us because this court truly cannot help themselves. And because they cannot help themselves, it means we have an absolutely fantastic live show in store for you tonight.

• 4:44Kate Shaw?

  Sometimes what's bad for the country is good for our podcast, and this is one of those times. So we are going to cover some recent oral arguments, including an epic SCOTUS debate in a case about drugs and guns on the original meaning, I shit you not, of the term "drunkard." Because that is what passes for constitutional law on this Supreme Court. And remarkably, this was not a case about Pete Hegseth.

• 5:14Melissa Murray?

  Alcohol and/or controlled substances may end up being a theme for this show because we also have to cover some recent shadow docket orders. But that's not all. In addition to covering oral arguments and the shadow docket, we are also going to have a little kiki with an AG.

• 5:37Melissa Murray?

  And no, I am not talking about one Pamela Jo Bondi.

• 5:44Melissa Murray?

  I mean a real AG, not a Real Housewife. That's right. California, your Attorney General, Rob Bonta, is in the house.

• 5:57Melissa Murray?

  And to close out, as always, we will do a little legal news and end with our favorite things. One of them is you.

• 6:04Kate Shaw?

  All right, so we're going to start with the big oral argument recap. So after a very long hiatus, the court heard oral arguments in three cases last week, but we're just going to focus on one of them. United States versus H'mani, a Second Amendment challenge to a law that prohibits, quote, "unlawful users of controlled substances from possessing firearms." Here, the government is suggesting that this unlawful user language covers someone who is a habitual user of marijuana, which is still, under federal law, even if not in many states, a controlled substance.

• 6:36Melissa Murray?

  Remember that in Nysirpa versus Bruin, the Supreme Court turned the Second Amendment into a vehicle for originalist hotboxing.

• 6:46Leah Litman?

  Bruin declared that firearm restrictions are constitutional only if the government can show that the restriction is consistent with the nation's tradition of firearm regulation, which, the court elaborated, requires the government to identify a historical analog to modern-day gun regulation. The court requires those seeking to promote gun safety to show that restrictions on modern firearms are the same as the kind of restrictions that our founding fathers would have used to restrict muskets. Right.

• 7:19Melissa Murray?

  The jokes write themselves. It's unhinged. It's absolutely unhinged. But the thing is, it's so unhinged that sometimes even the court agrees that it's unhinged, at least sometimes. So you'll recall that a couple of years ago in United States versus Rahimi, the court seemed to get cold feet about the Bruin historical analog test. So Rahimi was a challenge to a federal law that prohibited individuals who were subject to domestic violence restraining orders from possessing firearms. And, as it happened, our forefathers were not especially stringent about policing gender violence. So weird. Accordingly, there were not a ton of laws about disarming domestic abusers at the founding, and there weren't

• 8:03Melissa Murray?

  any at the time of the ratification of the Second Amendment, which meant that, under Bruin, the challenge law about disarming domestic abusers should have been invalidated. But, but the court got cold feet. So because Brett Kavanaugh is the father of daughters, and also the first justice to have a chambers composed entirely of women clerks, that is actually true, though irrelevant, like the father of daughters bit, he and some of his fellow Republican appointees got squeamish about putting firearms in the hands of individuals credibly accused of domestic violence, even if that's where their own logic should have led them.

• 8:43Leah Litman?

  So the court leaned further into the hotboxing aspect of the originalist hotboxing, and said, "We're just gonna do a vibe check on this gun control measure." And as it turned out, the vibes were immaculate. Rahimi suggested that the restriction on domestic abusers was basically like the founding-era surety laws that required certain people to post bonds before riding armed. Sure.

• 9:14Melissa Murray?

  Fast forward to the Hamani argument. So the justices and the advocates were trying to figure out if they were supposed to be applying the Bruin version of the Bruin test, which requires a pretty similar historical analog, a historical twin, if you will, or if they were supposed to be applying the Rahimi version of the Bruin test, which just requires some hand waving and vibe checking. Right? So which one?

• 9:39Leah Litman?

  Well, so the court ended up being more open to this Second Amendment challenge than I thought they might be, perhaps because they think another statute that prohibits possession by addicts will suffice to disarm people they think should be disarmed. And so this case gave the homosexuals on the Supreme Court the opportunity to really indulge in their homosexual fantasies and ensure themselves that they are so committed to the Second Amendment, they will invalidate firearm restrictions that are applicable even to people they don't like. Now, the two biggest narcs on the Supreme Court, the Chief Justice and Sam Alito, were

• 10:20Leah Litman?

  friendly to the government, but I didn't hear a clear majority to uphold this law.

• 10:26Kate Shaw?

  I thought, since we're just sort of starting with high-level impressions, this felt a lot to me like the 2005 case Gonzalez versus Raish, which maybe the law students in the crowd will remember. That's a case where the conservatives were very cross-pressured between various items on the kind of conservative jurisprudence wish list. So the case dates back to much earlier in the country's marijuana legalization journey. It was a California case in which the feds were trying to go after cancer patients who were allowed to grow marijuana for personal use under the state's compassionate use law. So the case kind of pitted the desire to limit federal power, specifically under the Commerce Clause, against the desire to take a maximally punitive position as to kind of all drugs, even medical marijuana.

• 11:08Kate Shaw?

  So the anti-drug sentiment carried the day with enough conservative justices back in 2005 that they upheld the federal law. Here, I think I agree with Leah that the Second Amendment enthusiasm may win out.

• 11:19Melissa Murray?

  I just want to say, someone who's never done any kind of drug, and I see... I'm dead serious. I've never done anything. The only ingestion I have done has been passively walking through Sproul Plaza in Berkeley.

• 11:37Melissa Murray?

  I've never done anything. I'm as straight-laced as they come. But I, as someone who's never done any of these things, was a little taken aback by the justices' apparently very deep knowledge of certain controlled substances. Just gonna say that some of the hypotheticals were incredibly specific.

• 12:01Melissa Murray?

  I also want to shout out Justice Jackson, who stays on her hustle.

• 12:12Melissa Murray?

  In every Second Amendment case, she continually points out how backwards and manipulable the Bruin test is. And in this particular oral argument, she repeatedly pointed out the inconsistency in the federal government's approach to this case, Hamani, and another Second Amendment case that was heard this term, Wolford. So Wolford involved a Hawaii law that prohibited concealed carry on private property unless the property owner specifically authorized it. And in Wolford, the federal government said that all of the historical laws prohibiting poaching and hunting on private property were just too different from the challenged Hawaii law to count as historical analogues under Bruin. Weird.

• 12:56Melissa Murray?

  But here in Hamani, the federal government is now arguing that laws prohibiting vagrancy, which, to my knowledge, has absolutely nothing to do with the possession of a gun, these are historical analogues to the law prohibiting firearm possession by those who unlawfully use controlled substances. So historical twin here, no historical twin there. Right. I've got it. That sounds exactly right.

• 13:21Leah Litman?

  This is why we call it "originalist hotboxing." The justices light up the Federalist Papers, the Statute of Northampton, and some Blackstone, and ask whether a gun control measure has good vibes or bad ones. An approach that is totally unmoored from anything approximating law, and yet they insist on.

• 13:45Melissa Murray?

  So my take on this case is that I actually, I don't agree that they're necessarily going to, this is going to be a win for the Second Amendment. I think there's a good chance that they will invalidate the statute, but I think they may do so on due process grounds, the view that the statute is unduly vague and doesn't give enough notice about what is actually prohibited and who is targeted. So, maybe, I don't know. Anyway, we should highlight some of the notable quotables from this argument. And I'm just going to say, from jump, "The new DEI," by which I mean dicks, ex-husbands, and imbeciles.

• 14:24Melissa Murray?

  It's a great line, you can clap. Yeah, you can clap. Someone tell Harmeet Dhillon.

• 14:33Melissa Murray?

  "The new DEI" had a moment, straight out of the gate. So, there was an exchange between the Deputy Solicitor General, who is arguing in favor of the law, and Justice Gorsuch. So, let's roll that tape.

• 14:45Speaker 09

  Habitual drunkard, the American Temperance Society back in the day, said, "Eight shots of whiskey a day." Only made you an occasional drunkard.

• 14:55Speaker 09

  We have to remember the founding era, if you want to invoke the founding era. To be a habitual drunkard, you had to do double that, okay? John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol, he only had three or four glasses of wine a night. Okay?

• 15:21Leah Litman?

  Now we know why the Georgetown Prep Squad really wants to be originalist.

• 15:28Leah Litman?

  But, basically, Neil Gorsuch wants to know, "What's the original meaning of hammered?"

• 15:37Leah Litman?

  Would James Madison have concluded that you were totally shitfaced when you threw back a few and included a journalist in your Signal group chat?

• 15:57Leah Litman?

  And Neil, if you're listening, I want to know, am I doing the originalism right? Maybe we shouldn't call it original as hotboxing, but original as beer pong, or SCOTUS thunderstruck.

• 16:13Kate Shaw?

  We're still workshopping those, but they really were luxuriating in the idea that the founders were frat bros. It was sort of like, since we do think they may be listening, maybe some of them heard Leah on a recent episode describe the current administration, which is a great line, which I will repeat, as government by the manosphere, of the manosphere, and for the manosphere. And the justices thought, yes, yes, this is the way.

• 16:47Melissa Murray?

  Basically, Animal House, but make it constitutional.

• 16:50Kate Shaw?

  Toga, toga.

• 16:53Melissa Murray?

  No, no gun.

• 16:54Kate Shaw?

  You can really hear Brett saying that, can't you?

• 16:56Melissa Murray?

  I know. I do not want to see any of them in a toga.

• 16:59Kate Shaw?

  Fair. To strike a serious note for one minute, though, like, part of the reason everyone drank so much in ye olde days was that we didn't have real water filtration or purification yet, and so alcohol was a lot safer to drink than water a lot of the time. And because this seems to be the reality that Secretary Build-A-Bear/Raw Milk is to bring in another cabinet secretary, is earnestly trying to cultivate, maybe it is time, or soon will be time, for all of us to hit the casks. Although, for the record, we haven't tonight. Just sugar, which is our drug of choice.

• 17:38Leah Litman?

  There was a real frat bro undercurrent to the argument, and the Georgetown Prep alums brought their usual C-game to the occasion. Take a listen to Neil's fellow Georgetown Prep alum, Brett Kavanaugh.

• 17:56Speaker 10

  In response to Justice Alito, I think you said that drugs are distinct from alcohol for Second Amendment purposes, although there's some similarities. Is that accurate?

• 18:09Leah Litman?

  Yes, and I would say that, yes, I can elaborate.

• 18:12Speaker 10

  Please elaborate.

• 18:13Leah Litman?

  Okay.

• 18:15Leah Litman?

  Yes, that is Brett "I Like Beer" Kavanaugh begging the federal government to make a case for why there's a difference between people using drugs and people using alcohol. It's almost like he's personally invested. Almost, almost.

• 18:38Speaker 11

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

• 19:18Speaker 03

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a chessman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm, have a little taste.

• 19:53Leah Litman?

  Things only devolved from there. In fact, it got so weird, we're going to play a little game where we invite you, our listeners and audience, to try to guess which justice brought up which drug during the argument.

• 20:14Leah Litman?

  We'll pose the question. You think of the answer. And then we'll tell you which justices actually had which drugs on their minds. Okay, first. Which justice invoked anabolic steroids? If you guessed Coach Kavanaugh, and I heard a few, sorry, you're wrong.

• 20:40Kate Shaw?

  That was a good guess.

• 20:42Leah Litman?

  It was a good guess. Justice for Brett Kavanaugh, okay? It was Clarence Thomas who brought up the roids.

• 20:54Melissa Murray?

  So, real talk. I thought this was so helpful for contextualizing his concurrence/rant in SFFA versus Harvard. I just thought he was an older black man mad that he couldn't get the younger black woman on the court to sign on to his program of completely dismantling affirmative action. But in fact, he may just have been raging.

• 21:19Kate Shaw?

  Why not both?

• 21:20Melissa Murray?

  Or both.

• 21:23Kate Shaw?

  All right. Next question. Which justice brought up Ambien?

• 21:28Leah Litman?

  Barrett. Okay, I heard, okay, I heard some in the audience say Barrett. Now, Justice Sotomayor was actually the first to bring up Ambien. But, but, it was Justice Barrett who really dug into it. In fact, in fact, she offered the following hypothetical.

• 21:55Speaker 12

  Justice Sotomayor asked you about someone who takes Ambien to sleep. So, let's, let's assume that someone takes their spouse's Ambien prescription. The spouse takes it too, lawfully with the prescription. But then, you know, you take it unlawfully because you break into your spouse's Ambien jar.

• 22:18Melissa Murray?

  Um, first question.

• 22:24Melissa Murray?

  Why is there a jar of Ambien in your house?

• 22:30Kate Shaw?

  It doesn't come in a jar, right?

• 22:31Melissa Murray?

  Uh, like, cookies come in a jar?

• 22:37Melissa Murray?

  Ambien does not come in a jar. So, girl, what is happening in your home?

• 22:45Leah Litman?

  She brought up Ambien four separate times after Justice Sotomayor did.

• 22:54Kate Shaw?

  She also referenced both Adderall and Ritalin repeatedly.

• 22:59Melissa Murray?

  Well, so, that was actually, again, very revealing to me. So, she offered a hypothetical that involved a college student who takes his roommate's Ritalin twice a week because he thinks it will help with exams. That is a quote. To which I say, ma'am, that is a very specific hypothetical.

• 23:21Leah Litman?

  The details are really, what, kind of give it away.

• 23:26Melissa Murray?

  You could have been very general about that.

• 23:28Leah Litman?

  You could, and yet, um, Amy was also the first justice to bring up Zanny or Xanax.

• 23:38Leah Litman?

  Okay, one other drug or drugs.

• 23:42Melissa Murray?

  Cocktail.

• 23:43Leah Litman?

  As the case may be. Which justice decided to invoke the prospect of a combination of meth, heroin, cocaine, and fentanyl?

• 24:02Leah Litman?

  Sam Alito is the answer!

• 24:08Kate Shaw?

  Why did everyone know that?

• 24:09Melissa Murray?

  Whoa, whoa, whoa, whoa, whoa. I'm low-key offended that Sam Alito got more applause than any of us.

• 24:15Leah Litman?

  Okay, they were clapping because they knew the answer. Because they listened to this podcast. And I just want to say that all of his opinions make much more sense now.

• 24:29Kate Shaw?

  Okay. Leah said that would be the last one, but I actually want to add one more, which is sort of a compound question. So who brought up ayahuasca? And then who seemed to protest a little too much in disclaiming any specific knowledge of that drug? Two-part question.

• 24:46Melissa Murray?

  Wait, wait, wait.

• 24:47Kate Shaw?

  They know.

• 24:48Melissa Murray?

  They know. They know. So Justice Kagan did bring up the ayahuasca first. And I actually think this is one of the most unintentionally hilarious moments of the argument. So Justice Kagan described ayahuasca as a, quote, "very, very, very intense hallucinogen."

• 25:15Leah Litman?

  Okay, I just want to say, if I worked with Sam Alito, Neil Gorsuch, and Brett Kavanaugh, I would also be interested in very, very, very intense hallucinogens.

• 25:27Kate Shaw?

  Sort of hear the longing in her voice. Very, very, very intense.

• 25:31Leah Litman?

  Like, "Am I hallucinating now? Please."

• 25:34Melissa Murray?

  If I worked with them, I would be living in Spurral Plaza. So Justice Kagan first brought up the ayahuasca, and she also, I think, went to great pains to explain that, quote, "I don't know a lot about this drug. I'm assuming you don't know a lot about this drug. So what I'm going to tell you about this drug, let's just assume it's the truth about this drug."

• 25:53Leah Litman?

  Oh, okay. You say so, Elena. That was pretty funny, but it was even more hilarious that after going all in on Ambien, Xanax, Ritalin, and Adderall, and Robitussin II, Justice Barrett was like, "Ayahuasca? I have never heard of the drug. Is that real? Girl, be real." If we are allowed to add one more drug to the list, I have to say Neil Gorsuch threw

• 26:34Leah Litman?

  out the word "gummy" with surprising familiarity.

• 26:39Kate Shaw?

  Fluency, right? Like, it just, yeah, it just tripped from his tongue.

• 26:42Leah Litman?

  And then he immediately hastened to add the word "bear."

• 26:48Leah Litman?

  As if to dispel any suggestion that he is familiar with dispensary lingo.

• 26:57Leah Litman?

  Now, it might not be doing Coke off the toilet,

• 27:04Leah Litman?

  but I did bring us some gummy bears to do on the podcast stage.

• 27:21Leah Litman?

  Like I said, I've never done this. These are real gummy bears.

• 27:26Kate Shaw?

  This is big for Melissa, just actual gummy bears.

• 27:28Leah Litman?

  These are real gummy bears.

• 27:30Kate Shaw?

  All right, because we are nothing if not fair and balanced, I do want to say, though, as to some of the drugs that we were just mentioning, the lawyer for the Solicitor General brought up the drug in the first instance, so they didn't necessarily just conjure out of thin air all of the hypos that we just walked through. Still, their fixation on certain drugs was curious.

• 27:49Leah Litman?

  Okay, you're being way too generous. Like, she opened the door, they ran through. The Solicitor General did not bring up a jar of Ambien.

• 28:00Leah Litman?

  Or ayahuasca. No one was talking about ayahuasca.

• 28:03Kate Shaw?

  Nope.

• 28:05Leah Litman?

  Anyways, okay, so the drug-fueled flavor of the H'mani argument seemed to bleed into some of the court's shadow docket shenanigans, by which we mean the court released two shadow docket orders that were clearly written under the influence.

• 28:25Leah Litman?

  You all know the shadow docket. This is your shadow docket on drugs.

• 28:29Kate Shaw?

  So the first possibly drug-influenced order came in a redistricting case out of New York where the US Supreme Court paused a state court ruling that had invalidated the sole Republican-held congressional seat in New York City, so in Staten Island, because, of course, and also part of Brooklyn. So the state court concluded that the district lines violated the state constitution because they diluted the voting power of Black and Hispanic voters. The court then ordered the state to redraw the district, which would have turned a safe Republican seat into a more competitive one.

• 29:00Melissa Murray?

  And of course, the Supreme Court would not let that happen because racial discrimination. All right. This court may actually have identified, finally, an illegal racial gerrymander. Remember, racial gerrymandering is when districts are drawn in ways that consolidate political power in ways that disadvantage minority groups. And what is the impermissible racial gerrymander that the court may have identified in this particular circumstance? It's the fact that the New York trial court decision ordering the state to draw a different set of maps that didn't dilute the voting power of minority voters. That's the racial discrimination that the court finds impermissible.

• 29:43Melissa Murray?

  Now, to be very clear, this court did not conclude that it was racial discrimination when the Trump Department of Injustice begged the state of Texas to redraw new districts mid-cycle and gerrymander away majority-minority districts where minorities voters could elect the voters of their choice. Instead, they chose to save their powder for this particular instance.

• 30:08Leah Litman?

  Yeah. Now, the court's order in the New York case is unexplained, hence our caveats about possible racial gerrymander and whatnot. We don't know why these goblins paused the state court ruling. But when you consider the redistricting cases from California, Texas, and New York together, the punchline seems to be that partisan gerrymanders are fine, but, but, once you start trying to remedy racial gerrymanders where minority groups are underrepresented, that is a bridge too far. There was one writing from one justice who voted for the stay, and it was from friend of the pod, Sam Alito.

• 30:55Kate Shaw?

  He was definitely hopped up on something in this concurrence. So he declared that it is, quote, "unadorned racial discrimination to create a new congressional district for the express purpose of ensuring that, quote, 'minority voters,' which was in scare quotes, are able to elect the candidate of their choice." Ah, yes, we cannot have minority voters getting to cast meaningful votes to elect candidates who will represent their interests.

• 31:18Melissa Murray?

  Now, if that logic sounds ominous to you, then you know Sam Alito, and you've probably been listening to this podcast. So, effectively, Sam Alito is suggesting that any race-conscious redistricting, including efforts to remedy the opportunity to lock minority voters out of power, that's the real racial discrimination that we have to address. And if you follow—yes, hiss, because it's terrible. If you follow that logic, then that will likely doom whatever shards remain of the Voting Rights Act, which is still up for grabs in a pending case before this court, Louisiana versus Calais.

• 32:01Melissa Murray?

  And at this point, I can just imagine Clarence Thomas sitting in his land yacht in a Walmart parking lot, reading Justice Alito's statement, and chortling to himself, "Yes, Padawan, I have taught you well." Justice Sotomayor's dissent for the three Democratic appointees wrote, quote, "The court's 101-word, unexplained order can be summarized in just seven: rules for thee, but not for me." Yeah. As Justice Sotomayor noted, in other cases, the Supreme Court has paused federal court

• 32:45Melissa Murray?

  orders that had invalidated voting restrictions on the ground that federal courts should not interfere with election rules too close to an election. That's the so-called Purcell Principle.

• 32:58Leah Litman?

  That's exactly what the court did. They did exactly what they tell federal courts that they shouldn't do, which is to change election rules when the election is looming or very close. So, from what I can get from this, the true meaning of the Purcell principle is that it's always too close to an election to do something that would result in a multiracial democracy or wins for the Democratic Party, but it's never too close to an election to do something that would benefit the Republican Party. Am I getting this right?

• 33:26Kate Shaw?

  I think, yeah.

• 33:27Leah Litman?

  Am I doing the gerrymandering right?

• 33:28Kate Shaw?

  Yeah.

• 33:29Leah Litman?

  Great, okay.

• 33:30Kate Shaw?

  Yeah, and that is the kind of emerging, I think, lesson from the court's cases in this area. And as bad as previous cases have been, in some ways, the New York case is actually a new low. And that's because the court did not have authority to intervene in this case at all. So by law, the Supreme Court only has jurisdiction, right? The power to hear cases from a state court, which this case arose from, once the state's highest court that could have ruled on the issue has done so, and that did not happen here, which means the court didn't have authority to issue this order, and yet they did it anyway. In the concurrence that Justice Alito wrote that we were just talking about, I think he arguably really misrepresents the background, suggesting that New York's highest court

• 34:14Kate Shaw?

  had refused to intervene even though they hadn't been asked to rule after the intermediate appellate court ruled here. But he basically, I think in a somewhat misleading way, described the procedural background and then said the court's intervention here was just fine because it's just like other cases, including one in which the court intervened to protect Nazis' right to march in Skokie, Illinois, like that's the best case that he could find. But whatever you make of that decision, the state courts in that case had denied relief. That wasn't what happened here.

• 34:46Leah Litman?

  Yeah. So I have a controversial take I would like to offer, and it's this: is Sam Alito the real Pete Hegseth of the Supreme Court? People might think it's Brett Kavanaugh. I'm not sure, because Sam's opinion here honestly had echoes of Pete Hegseth standing in front of the lectern, firing off, "There are no rules of engagement. We are not going to abide by those woke rules," and basically admitting to war crimes in front of the entire world. Like, it just coded Sam Alito to me. I don't know.

• 35:25Melissa Murray?

  Princeton.

• 35:25Leah Litman?

  Yeah.

• 35:26Melissa Murray?

  Yeah. All right. We haven't even scratched the surface of the shadow docket. The shadow docket is the gift that keeps on giving. It takes a lot more than a little hypocrisy from this court to really kick off that decision season. So, the court's Republican justices decided that get things started this year by making substantive due process great again. And they did that in a case called Mirabelli versus Bonta. Yes, that Bonta. So, this is a shadow docket decision arising from a case here in California. And let me give you just a quick refresher. Substantive due process refers to the idea that the Constitution protects rights that

• 36:10Melissa Murray?

  aren't specifically and explicitly listed in the Constitution's text. So, these include unenumerated rights like the right to an abortion. Remember that one?

• 36:19Leah Litman?

  It was a good one.

• 36:21Melissa Murray?

  It was a good one. Also, the right to contraception. Don't get attached. Anyway, in Dobbs, the court overruled Roe versus Wade, ending the constitutional right to choose an abortion and making clear that going forward, any unenumerated right that would be understood to be entitled to constitutional protection had to be one that was quote-unquote "deeply rooted in the history and tradition of this country."

• 36:47Leah Litman?

  And this past week, the guys in the Dobbs majority decided that one right that is deeply rooted in our history and tradition is parents' right to be notified if their child identifies as transgender at school. Effectively to have the school out their children as trans. And they did so in a gratuitously nasty opinion. So, these ghouls could have avoided using pronouns. Instead, they chose to use "she" and "daughter" over the child's objection.

• 37:25Kate Shaw?

  And in addition to the court's hypocrisy on substantive due process, which Melissa was just talking about, Justice Kagan, who, pending a lengthy dissent, called out the court's hypocrisy on the issue of parental rights between this case and the Scremety case. So recall that in last year's decision in Scremety, the court upheld Tennessee's ban on gender-affirming care for minors. There, although it was asked to do so, the court opted not even to weigh in on whether the Constitution protects parents' right to ensure that their child can obtain gender-affirming care without undue interference from the state. So refuse to even consider the parental rights question in Scremety, and here, on the shadow

• 38:07Kate Shaw?

  docket, decided to sashay in and declare that the Constitution does afford parents the right to have their child outed to them as transgender.

• 38:15Melissa Murray?

  The other thing that makes this really egregious is that this is obviously a major question of substantive importance, and they decided to issue this decision on the shadow docket rather than taking the opportunity to resolve it on the merits docket. And there are plenty of opportunities to do so on the merits docket. There are a number of petitions that are pending before the court that would have raised this issue. They could have waited for the Ninth Circuit to finish its consideration of this question, but they were so impatient that they couldn't do any of these things. And they disagreed with every single court of appeals that has so far considered this matter.

• 38:55Leah Litman?

  Yeah. So if the punchline of the Purcell principle is that it's always too close to an election to do anything that benefits multiracial democracy, but never too close to an election to do things that benefit the Republican Party, this is now the punchline of substantive due process. Substantive due process is bad when abortion, but good when anti-trans. Parental rights are unnecessary when the right is to support your trans kid, but they're in an emergency requiring immediate action when the asserted parental right is to out your trans kid. As Justice Sotomayor said in the New York case, "Rules for thee, but not for me."

• 39:39Leah Litman?

  And that, that is our update on One First Street. Still sucks! [applause]

• 39:49Speaker 11

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

• 40:30Speaker 03

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a Chesmond. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm, have a little taste.

• 41:04Leah Litman?

  For a change of pace and breath of fresh air, we'd like to talk to a lawyer who believes in the rule of law generally, not just selectively. Which is why we are delighted to bring onto the stage our very special guest for this show, your Attorney General, California Rob Bonta.

• 41:36Speaker 13

  Good evening, everyone.

• 41:37Leah Litman?

  Welcome to the show.

• 41:40Speaker 13

  Honored to be here.

• 41:42Kate Shaw?

  We're thrilled to have you, and we do want to cover a lot of things. I thought we would jump right in by asking you to tell us. So, we're recording on Friday, and yesterday, you filed a lawsuit against the Trump administration.

• 41:55Speaker 13

  Yes.

• 41:57Kate Shaw?

  It sounds like the people of the city know that. But for the listeners who don't, can you tell us about that lawsuit?

• 42:04Speaker 13

  Absolutely, and let me first say this was our 60th lawsuit that we've brought in less than 60 weeks. We're bringing more than one lawsuit a week. We're winning repeatedly. We're winning 80% of the time. We're securing restraining orders and final judgments, and sometimes when we sue, Trump just backs down and says, "I give up." We've protected $200 billion of funding that California is owed. It's our funding that Congress appropriated, that branch with the power of the purse. We're protecting constitutional rights, like voting rights and birthright citizenship. And this was our second case challenging Trump's unlawful tariffs. We had just won a prior case, our AG Coalition, striking down his unlawful tariffs under

• 42:44Speaker 13

  the International EIPA, International Emergency Economic Powers Act. And he is dead-set on his commitment to unaffordability and to raising prices. He is working overtime, he is stretching and reaching, even doing unlawful things to make, to create tariffs that raise prices for him.

• 43:04Kate Shaw?

  This president doing a lawful thing?

• 43:05Speaker 13

  Yes. I mean, it's shocking. He promised he was going to lower costs on day one, and look, he's been raising.

• 43:09Kate Shaw?

  It stinks because he chickens out on everything else, and he refuses to chicken out on attacking affordability or tariffs.

• 43:16Speaker 13

  He's fully committed. He's all in. He's going to finish the job. The job's not done yet. And so, he brought in other lawsuits on the day the Supreme Court issued their decision under Section 122 of the Trade Act of 1974. And he has no basis to bring these tariffs. This statute has never been invoked before. In 52 years of existence, never. And it's based on an archaic system, based on a balance of payments deficit analysis, and at a time when we had fixed exchange rates instead of the floating exchange rates. So, but the bottom line is, he's acted unlawfully again. He has no basis for this lawsuit. Congress has the power to tax. Tariffs are taxes. Trump can't issue these tariffs.

• 43:59Speaker 13

  So, we went to court again to strike them down and fight for affordability for Americans.

• 44:09Kate Shaw?

  And we should say, so obviously he lost big in the Ieepa case in the Supreme Court. And, you know, one additional piece of legal news we haven't had a chance to cover is that the Court of International Trade, right after the Supreme Court ruled, issued a pretty sweeping ruling last week on the issue of refunds, basically finding that refunds are owed and the court's decision last year in the CASA case about universal injunctions actually doesn't apply in the Court of International Trade. So, according to that court, everybody, not just the particular plaintiffs who came to that court, is entitled to their refunds. And so I think that is probably because the Trump administration is already saying it can't possibly comply. That is likely headed back to SCOTUS. And I wouldn't be surprised

• 44:51Kate Shaw?

  if this Trade Act, Section 122 case, is on a fast track as well. But, you know, so far, he's striking out. And I think there's every reason to believe that he's going to keep striking out.

• 45:00Speaker 13

  I think he's going to continue to lose here. And look, he needs to give all the American businesses and American people who are hurt by his unlawful tariffs, who he victimized, give them refunds with interest. And do it immediately. And stop waiting, stop dragging your feet. Give them the money that they're owed. You took it from them. And I do want to point out that this was in front of the US Supreme Court. This was his centerpiece economic policy. There was a belief among some that we might win at the lower courts. We might even win at the intermediate appellate court. But if you get to the US Supreme Court, he's got three appointees there. They're going to rubber stamp him. And they didn't on this...

• 45:32Kate Shaw?

  But there was also the 401Ks of the justices.

• 45:35Speaker 13

  I'm not going to get to the reasoning and the rationale. But I like the outcome. It's a good outcome. It's a right outcome. We also won on National Guard in California, Prop 50. We won on that, all in front of the US Supreme Court. And my staff will get nervous as I say this because they never want me to predict what the court will do. But I think that we're going to get a positive ruling on Lisa Cook and the Federal Reserve Board. I think we're going to get a positive ruling on birthright citizenship. So, we'll see how that goes. But we can and we do win in front of the US Supreme Court sometimes.

• 46:12Leah Litman?

  So you've already kind of begun to talk about how you, as a state, you know, are stepping up to the plate when the federal government is not only declining to protect people, but actively harming them. And we've talked about on the show the possibility of state prosecutions of federal immigration officers. Recently, it was reported that Mary Moriarty's office in Minnesota is investigating Colonel Lockjaw, I mean Greg Bavino, after news that a whistleblower alleged that FBI forensic experts were ordered to stand down from processing the scene where Renee Good was killed because Cash Patel didn't want Good referenced as a victim. And I know, you know, your office has been doing a lot of this work.

• 46:52Leah Litman?

  So could you tell us about some of what your office is doing to address federal law enforcement overreach and what states can do more generally on that front?

• 47:01Speaker 13

  Absolutely. You know, we've been standing up for accountability of federal officers to make sure that they don't act with impunity, make sure that they know, even though J.D. Vance says otherwise, wrongly, that they don't have absolute immunity. They don't? I mean, that's a fact.

• 47:15Leah Litman?

  He went to Yale, so...

• 47:17Speaker 13

  Ouch, ouch.

• 47:18Leah Litman?

  Yeah, I said that to your face, Melissa. You said it to his face, too.

• 47:22Speaker 13

  I know, I said it to my face, too.

• 47:23Leah Litman?

  We're both yearly.

• 47:24Speaker 13

  We don't, we don't claim him. We don't claim him.

• 47:26Leah Litman?

  Fair.

• 47:28Speaker 13

  So, we've been making it clear that there is accountability and that we're reasserting the rights that we have and affirming the rights that we have as states, as law enforcement officers, as prosecutors, to tackle crime that occurs in our states, even if a federal officer is the one committing it. We actually also joined, as an amicus, the Minnesota lawsuit challenging the militarized occupation of their state based on equal sovereignty and state sovereignty grounds. And the governor and I issued a bulletin to all of our law enforcement, community members here in California, saying that if a federal officer commits a state crime on

• 48:07Speaker 13

  California soil, and there is a victim here in California, California law enforcement and prosecutors have the right to investigate, to prosecute, to secure a crime scene, to gather evidence, to do what we do, investigate and prosecute crime. And the fact that we have to say that... is unfortunate, but we had to say that. And we even opened up a portal inviting members of the public to share with us information if they think a crime has been committed by a federal officer. OAG.ca.gov dot report misconduct if you want to share anything that you may know or someone you know knows. So, and then, and then we also believe that civil liability pathways are important, just like Section 1983 for local and state officers.

• 48:51Speaker 13

  What bivins was supposed to be or used to be before it was weakened, there needs to be a civil pathway and California is stepping up to put a law into place this year on that, in that regard.

• 49:00Melissa Murray?

  I love it, cheering for bivins and state bivins. This is my kind of crowd. You mentioned affordability briefly. One of the things that's contributing to the inaffordability that's plaguing so many Americans is the federal government's refusal to enforce laws that would protect consumers, including antitrust laws and laws that prohibit corporate consolidation. We've talked a lot about this on the podcast. For example, last week, Leah alluded to the consolidation of the Manosphere Media in the hands of Larry Ellison and one of his large adult sons. Yeah. He's a very tall man.

• 49:44Melissa Murray?

  It was like purely descriptive. This is the Paramount Warner Brothers merger. But you also have some pending litigation against Live Nation and Ticketmaster. So I know there's a lot going on in the state and we know you have pending cases. So if you could sort of speak generally, why is it so important for the state to address these questions of oligarchism and corporate consolidation when for most people, they seem like really big picture issues? How do they sort of get to everyone's bottom line and how are they really kitchen table issues?

• 50:15Speaker 13

  Yeah, no, thank you. And when you talk about things like, you know, antitrust law and monopolies, it can, sometimes people don't know how that affects them, but it goes to exactly what you said. It goes to affordability. Corporate consolidation has proven, you know, objectively, historically, that it raises costs. So we have a role as a, as a state to independently investigate. and bring lawsuits when we believe that antitrust law is broken, when there's anti-competitive conduct. The federal government has long and traditionally been engaged in that role, the FTC, the US DOJ, what they will do going forward, you know, TBD and some already determined that, you know, I think they've really withdrawn from that role. And so into that gap and into that void, we must step to continue to protect

• 51:00Speaker 13

  consumers. And when there's corporate consolidation, you see prices going up, you see wages for workers going down, you see lower quality, less choice, less competition. And that is what we look at in these lawsuits. And so we're looking at that, it's public that we are with respect to Paramount Warner Brothers. We have, we're in court right now in the Southern District of New York on the Live Nation Ticket Master case. We're looking at other corporate consolidation possibilities and their impact on consumers. But this is about affordability. And so it's not just Trump's tariffs that are raising costs. It's also his lack of enforcement of antitrust law, allowing for corporate consolidation that raises prices for Americans. And that's wrong. Someone needs to do it. And California

• 51:45Speaker 13

  and the states are stepping into that void.

• 51:53Kate Shaw?

  Can I, can I ask you to talk kind of generally about sort of coordination and collaboration? So you've now referenced a few times, working with other states and other state AGs, whether it's National Guard, birthright citizenship, some of this anti corporate consolidation work. So can you just talk a little bit about those collaborations and sort of how, you know, as I tell my kids, teamwork makes the dream work. But like, how does that work? And then can you also tell us like, how, my, my understanding is that this, some coordination has been happening even back, you know, in, as far back as 2024. So like, when did you start deciding you were going to work together? And what does that look like?

• 52:29Speaker 13

  Absolutely. And that there are now 24 Democratic Attorneys General across the country. There were 23 when we started. We had a pickup in Virginia last year. And

• 52:39Speaker 13

  And we are all sort of independent sovereign officers in our state, representing sovereign states, and we've banded together because we think that we can be more impactful and deliver more to those who need it as a whole than we can as a sum of our parts. And we do it voluntarily, there's no leader, we're all equals, we've come together. And we started preparing and thinking about what might come before the election, knowing that we couldn't guarantee it wouldn't be Trump and that we owed our constituents preparedness and readiness and a plan, a plan of action if he took over. So we planned, we charted, we looked at all the campaign promises, we read Project 2025, you know, he put in writing what he was gonna do if he took office.

• 53:23Speaker 13

  And so that, horrible as the contents of Project 2025 are, it gave us an ability to prepare and respond and plan. And so we have like briefs and actions that are prepped and ready, we just have to dot the i's, cross the t's, press print and file it, if it happens. And we believe if he says he will do it, we take him at his word. We can't take the chance that he might not, we have to be ready. So I'm grateful that the 24 AGs have been working and preparing to get there. And, you know, one example, we were the first state in the nation where the National Guard was deployed and federalized.

• 54:05Speaker 13

  And we went to court, we got restraining orders that were successful in preventing the deployment, also preventing violations of the Posse Comitatus Act. And then Trump announced a plan to do this in DC, and do it in Portland, and do it in Chicago. And so our ability to share information, you know, we basically handed over our briefs and our best thinking and our strategy and gave it to our colleagues and they used it as it could be helpful when they were fighting the same battle. And then the California National Guard was deployed from California to Oregon, you know, the day after the judge there had struck down the deployment of the Oregon National Guard. And so I was on the phone with Oregon AG Rayfield and we were talking, I was at my

• 54:49Speaker 13

  My mom's birthday brunch. And when she turned 88 and, you know, I stepped away to talk to AG Rayfield. But we really value, and I so value, my colleagues who are in this fight together, who are helping each other, who are sharing information, who are bringing passion and commitment and talent and knowledge to the table. And we believe that we're really accomplishing some important things for the people of this country.

• 55:20Leah Litman?

  So we also wanted to ask some more kind of personal questions. We've talked a lot about- Really personal questions. Not that personal. We've talked a lot about on the show how Brett Kavanaugh is really into being a father of daughters. So can you talk a little bit about what it's like being a dad or father in these times?

• 55:45Speaker 13

  Yeah, you know, I love and I'm so honored and privileged to be the Attorney General of the state, a state that's given me so much. It's a title I'll always cherish, but far from being the most important title that I have. Most important titles I'll ever have will be husband to my wife Mia and father to my three kids, Andres and Reyna and Iliana. And often, as a public elected official, I have thought deeply about a decision I'm about to make, wondered if I'm doing the right thing, and I've often gone back to, can you explain what you did to your kids? And they'll understand it and believe dad did the right thing, and they'd be proud. So I think about a lot of what I do through that lens.

• 56:29Speaker 13

  And I worry about them, and so I look at a lot of my official work through the lens of a dad. I look at the safety work that we do when we're trying to make online platforms and social media and AI safe for children. I think about them when we're doing our affordability work and making sure that there's more housing production in the state of California so that more people can pursue and realize the dream of homeownership. Some YMBS in the house?

• 56:57Speaker 13

  And I think about their rights and freedoms. And I think about a... I just want them to have a world that's fair and just and good. And if I can help create that, then that really drives me. I think about their rights and freedoms and I think about my oldest daughter, Raina, when I think about that. She's a professional soccer player and a filmmaker. She met her wife playing professional soccer in Brazil. They got married intentionally and deliberately before the inauguration of Donald Trump. Because they weren't sure they could after the inauguration of Donald Trump. And they eventually want to come to America. Her wife's Brazilian. I want to make sure there's a fair immigration policy and process. And they want to have a family someday.

• 57:42Speaker 13

  So I don't want their choices of who to love, where to live, if, when, and how to have a family to be taken away from them. And so that gives me motivation. It gives me passion. It gives me more energy when we're in these fights.

• 58:07Kate Shaw?

  Can I just say really candidly? Like, it is so grim in Washington DC right now. And an elected official who sounds like that is just such an incredible breath of fresh air. So thank you for reminding us that public, official, public servants should sound like this.

• 58:28Kate Shaw?

  So, okay, maybe this is, you know, some of the last couple of answers you gave sort of stepped into this, but I'm going to maybe just ask explicitly. Things are grim, as I just referenced, at the federal level. I don't think we can downplay just how bad, how much damage that is going to be very hard to undo. How much damage has already been done at the federal level in just the year and change of this administration. But, you know, we try all the time to find things to put our energy into and places to sort of seize on to, to find hope. And it sounds like there are lots of things that do that for you. But can you just talk a little bit for people who are finding it difficult right now? Like, that practice?

• 59:10Kate Shaw?

  Like, how you find sort of hope and places to put the rage that, and the kind of energy that a lot of us have right now?

• 59:19Speaker 13

  Yeah, for sure. You know, I am hardwired hopeful. I'm just hopeful, and I'm a glass half-full guy. And why? So many things give me hope right now. My team at the California DOJ gives me hope, and they are here in the House, by the way. Those particularly loud cheers, I think, are from them. And they're some of the most committed, passionate, talented attorneys that I know. They do this for the work. They don't want the recognition. I want to recognize them. I want to thank them. I'm honored to be able to lead this office. I'm grateful that you're here. And shameless plug, we're hiring in our office. So if you want to be like them and join our team, we have our job postings online.

• 1:00:03Speaker 13

  My Democratic attorneys general give me hope. The fight that they show, the commitment, you know, like in Minnesota, A.G. Ellison, in the middle of the toughest fight, standing strong, holding his ground, speaking truth. That gives me hope. Law firms that fight and don't cave give me hope. My prior law firm, Keckert & Van Ness, was one of the ones who fought. So shout out to Keckert & Van Ness. Judges who do their job and follow the law, follow the facts, and while fending off, you know, criticisms that they're activist judges and they're so-called judges and calls for

• 1:00:46Speaker 13

  their impeachment, but just do it and let the chips fall where they may. That gives me hope. All the elections since Trump was elected give me hope. The midterms, upcoming midterms, give me hope. The Trump polling in the tank gives me hope. He's earned it. He deserves it. It's appropriate reflection of where he should be. The blue wave that's coming gives me hope. Say more about that. I mean, I got my crystal ball out today on Supreme Court rulings, on what's going to happen. But, you know, folks with good values and who care about the people are going to be taken over. And the folks are, they are not happy with where we are. And that shows up empirically in all the polls, and I think that's what's going to happen

• 1:01:31Speaker 13

  in the upcoming elections. So that's my hard-wired hopeful part. But finally, I'll just say this. You, us, we, the people, give me hope. When we show up, when we are engaged, when we know we have power, when we are not hopeless because we know we're not helpless, because we can do something about this moment and make tomorrow more fair than today, when we stay engaged, when we stay enraged about the abuses of power, and when we know that people power is the most potent power that there is in a democracy. The bosses of Donald Trump are not his billionaire buddies, they are not greedy corporations, they are you and me and us and we. And there are many chapters yet to be written in the story of the state and the story of

• 1:02:14Speaker 13

  this country, and we are gonna write them. We will choose what happens next. We will choose what happens tomorrow. And so, that gives me hope. And when people show up in crowds, when they show courage, when they show up for no kings rallies, and hands-off rallies, to demand something from their government and to refuse to accept the unacceptable, that all gives me hope. So, I know that we're gonna get through this. To me, it's inevitable. The one thing that is required is that we fight, is that we stay engaged.

• 1:02:57Speaker 13

  But if we do, I know we're gonna be, we'll have a tomorrow that's more fair, more just, where the rule of law is intact, where we have separation of powers and rights and freedoms and checks and balances and all the things that our country is founded on, because we fought for them. And every leader and every person is called to step up. Sometimes the moment picks you, you don't pick the moment, and it is what you do in response. So, a room full of dedicated, committed folks, ready to fight, knowing that we can have a better tomorrow, that gives me hope, and I'm grateful to be here with all of you.

• 1:03:46Melissa Murray?

  That just warmed my cold, jaded heart. I think I'm going to, I'm gonna go apply for a job at the California Georgia Tech.

• 1:03:55Kate Shaw?

  We're ready. No, no, no, sorry. General can't have her.

• 1:03:58Melissa Murray?

  Audience, please give it up to Rob Bonta, your AG.

• 1:04:07Speaker 11

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

• 1:04:47Speaker 03

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple, buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm. Have a little taste.

• 1:05:18Speaker 11

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

• 1:05:58Speaker 03

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano, made with premium chocolate between two delicate biscuits. A Sausalito, baked with rich milk chocolate chunks and macadamia nuts. Or the simple buttery goodness of a chessman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie. Or two. Pepperidge Farm. Have a little taste.

• 1:06:33Melissa Murray?

  Dare I say, I feel hopeful?

• 1:06:36Leah Litman?

  He is making the police power great again.

• 1:06:40Melissa Murray?

  That part where he said, when he did things, he was like, you know, how could I explain this to my children?

• 1:06:44Leah Litman?

  Yes.

• 1:06:45Melissa Murray?

  Does DJT think about that? How would I explain this to John Jr.?

• 1:06:48Kate Shaw?

  It's just like, it is just, it feels like government service at the federal level has been so debased.

• 1:06:53Melissa Murray?

  I know.

• 1:06:54Kate Shaw?

  That...

• 1:06:55Leah Litman?

  To be reminded about what it is.

• 1:06:57Kate Shaw?

  That's what it should look like. Yeah.

• 1:06:58Leah Litman?

  Yes.

• 1:06:59Melissa Murray?

  I feel like Kate. Wow.

• 1:07:03Kate Shaw?

  That's not bad, Melissa. It's okay.

• 1:07:05Melissa Murray?

  It just feels so weird. It just feels so weird.

• 1:07:08Leah Litman?

  Let's bring you back.

• 1:07:09Melissa Murray?

  Okay.

• 1:07:10Leah Litman?

  And let's touch on some legal news.

• 1:07:13Melissa Murray?

  Oh, good. This will be bracing and sobering. Excellent. Okay.

• 1:07:16Leah Litman?

  Okay.

• 1:07:17Melissa Murray?

  All right, folks. We have talked a lot on this podcast about the executive orders targeting the law firms. And as the Attorney General noted, rather than settling with the administration, a few intrepid firms decided to challenge the orders. And the courts invalidated those orders in every single case in which they were challenged.

• 1:07:43Kate Shaw?

  You know, as the Attorney General reminded us, you can't win if you don't fight. So those that fought actually all won.

• 1:07:50Melissa Murray?

  Hmm, anyway, well, friends, early last week, The Wall Street Journal reported that the Trump administration decided that it wasn't going to appeal those lower court rulings. The government even filed motions to dismiss the appeals.

• 1:08:06Leah Litman?

  And then, wait for it, JK, The New York Times reported that DOJ said "BAXYS," and they filed a motion to withdraw, the motion to voluntarily dismiss their appeals. The law firms unsurprisingly objected to DOJ's about-face.

• 1:08:27Kate Shaw?

  So, we actually don't know, and maybe we'll just talk through now, like, what do we think happened? Like, one possibility is the president just changed his mind after seeing kind of favorable coverage by places like The New York Times praising the law firms that had challenged the orders targeting them. Another possibility is that the Solicitor General, who has to approve decisions about whether to appeal, initially made the decision to stand down and then, and informed the court of that decision, and then the Attorney General or the White House Counsel overruled him? Like, those are possible. Regardless of the reason, this is all completely humiliating for the Department of Justice. Like, they should be humiliated.

• 1:09:12Leah Litman?

  Add it to the list.

• 1:09:14Melissa Murray?

  Yeah.

• 1:09:15Leah Litman?

  This is just the tip, as they say.

• 1:09:18Kate Shaw?

  But, you know, honestly, kind of just another average workday at the Department of Justice of sort of debasing and humiliating yourself. But actually, a little bit worse than your average day. This was bad.

• 1:09:30Leah Litman?

  Yeah, agreed.

• 1:09:31Melissa Murray?

  Speaking of another humiliating workday at a different federal agency, we are delighted to announce we have a new nickname. The new nickname is Kristy No More!

• 1:09:53Melissa Murray?

  Yes, beloved, Krispy Gnome is out at DHS. After Trump after Trump ol' yellered her.

• 1:10:10Melissa Murray?

  So easy.

• 1:10:14Melissa Murray?

  What can I say, folks? Karma is a bish poo.

• 1:10:20Melissa Murray?

  Anyway, the president announced on Truth Social, where else, that Gnome will become a quote-unquote "special envoy to the shield of the Americas."

• 1:10:34Melissa Murray?

  And I was very surprised to learn that this is definitely a real thing and not part of the Marvel Universe.

• 1:10:43Melissa Murray?

  Of course, to be very clear, the shield of the Americas, predictably, is very villain-forward. This is the regime's plan to occupy the entire Western Hemisphere and summarily execute people. So, very, very normal. Yeah, you can be alarmed by it, it is alarming. But, again, this is a story of failing up. And the best part of this failing-up story was that when the Truth Social post announcing her ouster hit the interwebs, Kristi Noemore was speaking at a press conference.

• 1:11:24Melissa Murray?

  And it was semi-unclear if she even knew at the time she was speaking that she had been fired. Awkward. But, maybe this is exactly what a puppy murderer deserves.

• 1:11:43Leah Litman?

  Justice for Cricket. Justice for Cricket. Cricket is like, "Tell Christie, I want you to know, I want her to know, it was me." Always you, Cricket. Yeah.

• 1:11:57Kate Shaw?

  Just to talk about that presser for a minute, at the press conference, Christie No More, misquoted, quoted but actually misquoted Orwell.

• 1:12:06Leah Litman?

  Because reading.

• 1:12:07Kate Shaw?

  We have to give her credit. I mean, "Ending a tenure at DHS that was marked by vicious lies and carnage by misrepresenting Orwell is incredible, top-tier, legendary, you have to hand it to her."

• 1:12:26Leah Litman?

  Yeah. It gets better. Oh, yeah. Because Trump announced that he intends to nominate Senator Mark Wayne Mullen of Oklahoma to replace, no. Yep. No less evil, probably dumber, which is saying something. This is, after all, someone, that is Christie No More, who was dignitized by Corey Lewandowski.

• 1:12:57Leah Litman?

  Glad you appreciated that one. Anyways, we thought we would take this opportunity to introduce you to the new nominee for Secretary of Homeland Security.

• 1:13:09Speaker 14

  Sir, this is a time, this is a place. You want to run your mouth, we can be two consenting adults, we can finish it here. Okay, that's fine, perfect. You want to do it now? I'd love to do it right now. Well, stand your butt up then. You stand your butt up. Oh, hold it, oh, stop it. Is that your solution, every poll? No, no, sit down, sit down. You're a United States Senator. Acting.

• 1:13:29Leah Litman?

  Let them fight, let them fight.

• 1:13:37Melissa Murray?

  This is a time, this is a place.

• 1:13:42Melissa Murray?

  I mean, of course, this is a man who has no space between his first and middle names. Like, of course, of course. I will say, it is a little on the nose to pick an MMA fighter to be your Secretary of Homeland Security.

• 1:13:59Kate Shaw?

  He actually was, right?

• 1:14:00Melissa Murray?

  Yeah, well, I mean, the record is debated. Some say he's a, he has a five to zero undefeated record, some say he's a three to zero undefeated record. I want to know where the other two places, like, just two are missing. Like, where? What happened?

• 1:14:14Kate Shaw?

  But he definitely fought, yeah. And he won some, he won some matches. Yeah, so that clip, for folks who haven't seen it before, is the witness testifying, his Teamsters president, Sean O'Brien, and then, of course, Senator Bernie Sanders at the end, shutting it down.

• 1:14:26Melissa Murray?

  And you want to know what happened to Jimmy Hoffa?

• 1:14:31Kate Shaw?

  I mean, that guy was not backing down. But I also, this was not, I don't think, I mean, the, you know, MMA matches suggest as much as well, that this was not necessarily like a one-off. So, last week, Mullen had this to say about a time that Senator Rand Paul was assaulted by a neighbor of his. People might remember this from a few years back. So, Secretary-designate Mullen said, quote, "I understand completely why his neighbor did what he did. I told him," him being Paul, "I told him that to his face." Okay, bad enough, but guess who the Chair of the Senate Homeland Security Committee is? It's Rand Paul.

• 1:15:10Kate Shaw?

  But, I mean, obviously, it's funny, but also, this is like incredibly dark and disturbing because between that and Senator Tim Sheehy evidently breaking a Marine veteran protester's arm last week, it does feel very Field of Blood, right? The wonderful Joanne Freeman book about, you know, actual physical, a moment in which, like, the shedding of blood was commonplace in the United States Congress. It feels like we are inching back toward that very dark place rather, rather quickly.

• 1:15:40Melissa Murray?

  All right, let's go back to Kristi Noemore.

• 1:15:44Melissa Murray?

  That was a great history lesson. Thank you. All right. In more tales of Kristi Noemore, I just want to note that in what I am sure is a total coincidence, community peen, Chloery Lewandowski, is also reportedly out at DHS.

• 1:16:08Melissa Murray?

  According to a statement, the two of them are going to quote, "spend more time with their families."

• 1:16:18Melissa Murray?

  Wink, wink. Monogamy for thee, but not for me.

• 1:16:24Leah Litman?

  I'm just gonna call him Corey Lewandowski, future assistant to the special envoy for the Shield of the Americas. In order to commemorate the departure of these two legends from DHS, we wanted to play this from now soon to be former Secretary No More's recent appearance before Congress.

• 1:16:51Speaker 15

  So Secretary No, at any time during your tenure as Director of Department of Homeland Security, have you had sexual relations with Corey Lewandowski?

• 1:17:03Speaker 16

  Mr. Chairman, I am shocked that we're going down and peddling tabloid garbage in this committee today.

• 1:17:10Speaker 15

  Reclaiming my—

• 1:17:10Speaker 16

  And ma'am, one thing that I would tell you is that he is a special government employee who works for the White House. There are thousands of them in the federal government.

• 1:17:18Speaker 15

  So reclaiming my time, Secretary, you should be able to answer the question—

• 1:17:21Speaker 16

  And as an advisor to you, is that what we do at the Department of Homeland Security every single day—

• 1:17:24Speaker 15

  Clearly, and without any hesitation—

• 1:17:25Speaker 16

  Every single day is to protect this country.

• 1:17:27Speaker 15

  If someone is asking if you or any federal official is sleeping with their subordinate, that should be the easiest—

• 1:17:33Speaker 16

  I have—

• 1:17:34Speaker 15

  You should be wanting to answer that question.

• 1:17:43Kate Shaw?

  I love, I love that someone in the audience shares my like discomfort with that. We played it as we were like getting ready for the show tonight, and I was like hiding my face. I could not watch it. And I was like thinking, there is a reason I don't watch reality television. Like, I cannot handle that.

• 1:17:56Leah Litman?

  Because her husband was behind her!

• 1:17:58Kate Shaw?

  That's part of the reason.

• 1:18:00Speaker 16

  I, I just, in case you missed it, one thing she didn't say in response to that question—

• 1:18:07Leah Litman?

  Was no.

• 1:18:10Leah Litman?

  She did not deny the allegations and she was repeatedly asked. She is never beating these charges. Never. She was repeatedly asked to do so.

• 1:18:21Leah Litman?

  But more seriously, inject this into my veins. This is a reminder that accountability is possible, that the Trump regime is weaker than they pretend they are, and that good things can happen when people and Democratic leaders decide to hold alleged perfidious adulterers to account.

• 1:18:47Leah Litman?

  Yeah.

• 1:18:50Leah Litman?

  I feel hopeful. Yeah, and this seems about as good a time as any to get to our favorite things.

• 1:18:58Kate Shaw?

  All right, so we've got a couple to share with you. One is something I'm going to just read a couple of lines from. It's a judicial order, actually, in a habeas case from West Virginia late last month that we haven't had a chance to mention on the show. And I just wanted to read a couple of sentences from it because I think it kind of crystallizes this moment, maybe better than any judicial opinion that I've read so far. So here is what this district court judge wrote, quote, "Across the interior of the United States, agents of the federal government, masked, anonymous, armed with military weapons, operating from unmarked vehicles, acting without warrants of any kind, are seizing persons and imprisoning them without any semblance of due process. The systematic character of this practice and its deliberate elimination of every

• 1:19:39Kate Shaw?

  structural feature that distinguishes constitutional authority from raw force place it beyond the reach of ordinary legal description." So there's more, but I just think that so beautifully crystallizes why it is so hard, as we've said many times, to kind of talk accurately about what's happening right now and not sound like a crazy person because the assault is so profound and unremitting on the very idea of law and the constitutional order that, yeah, you sound unhinged if you just calmly describe it. And I think that this judge did a beautiful job of not sounding unhinged, calmly describing the flagrant violations of specific constitutional violations and the idea of a constitution without sounding unhinged.

• 1:20:22Kate Shaw?

  So I really salute that judge and I wanted to share it with you.

• 1:20:30Kate Shaw?

  And then briefly, a handful of listeners that I've met recently. I was at Harvard Law School a couple of weeks ago, and I wanted to say hello to Jenna, Fee, Lucia, Taylor, Hannah, Jennifer, and the rest of the wonderful group I talked to at the Harvard Law Review. Thanks so much for listening.

• 1:20:46Leah Litman?

  So, on my favorite things is the recent announcement of the continuation of the Moss verse. So Sarah Moss announced new books in the Court of Thorns and Roses series, and I am so excited, so excited. Not as excited as I am about another forthcoming book. We are about two months away from the release of Melissa Murray's book. The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader.

• 1:21:29Leah Litman?

  I also have some personal shout-outs. Wanted to shout out some guests in the audience. So A.G. Banta mentioned that there are lawyers here from California DOJ. Wanted to give a special shout-out to California DOJ's reproductive justice unit. And to at least one aspiring lawyer in the audience, Maya. I know this shout-out isn't as exciting as getting one from Justice Sotomayor, but this one's for you, and you can thank your dad, Jonathan, for the heads-up.

• 1:22:19Melissa Murray?

  So I am also very excited that the book is coming out in two months. Excited. Me and my co-author, James Madison, are just really, really excited. No one is more surprised than James Madison that I'm his co-author. Never saw it coming, truly.

• 1:22:36Melissa Murray?

  This week, I was on the road a lot. I was in Iowa at the beginning of the week, and I hung out with some really fantastic Striktes at Drake Law School. Melissa Anu and Andrea, thank you so much for the warm welcome to Iowa. It's fantastic. But I would be remiss if I didn't say that my absolute favorite thing this week is that my travels have taken me right here to one of my absolute favorite places, the Bay Area.

• 1:23:09Melissa Murray?

  And this amazing Bay Area weather, because it sucks in New York right now. Absolutely sucks. There are some other real highlights of this trip that I want to highlight. First, this morning, one of my favorite things was when Kate reported that she saw her first penis pump in the Tenderloin.

• 1:23:35Kate Shaw?

  It was like 11 o'clock in the morning.

• 1:23:36Melissa Murray?

  It's always at 11 o'clock in the morning, Kate. Never change, San Francisco.

• 1:23:44Melissa Murray?

  Seriously, folks, it's so great to be home in the Bay. I was in Oakland this morning. Love you, Oakland.

• 1:23:56Melissa Murray?

  I want to shout out my Berkeley Law, former colleagues, always colleagues who are in the audience tonight, and my homies from our dance floor in Albany, California, who are here tonight as well.

• 1:24:11Melissa Murray?

  We're Strix Scrutiny, and we love you, West Coast!

• 1:24:17Kate Shaw?

  Strix Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Raul. Michael Goldsmith is our producer. Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production. Thanks to our video team, Ben Heathcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strix Scrutiny in your favorite podcast app and on YouTube, at Strix Scrutiny Podcast, 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.

• 1:24:58Speaker 11

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

• 1:25:38Speaker 03

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