SCOTUS Squabbles Go Public

Melissa, Kate, and Leah break down an absolute boatload of beefs: Trump vs. Pope Leo, Sonia Sotomayor vs. Coach Brett Kavanaugh, Clarence Thomas vs. progressives, and Ketanji Brown Jackson vs. the shadow docket, before covering some of the week’s other legal news, including the Harvard Crimson’s reporting https://www.thecrimson.com/article/2026/4/14/federal-clerkships-earlier-timeline/ on conservative judges’ ideological litmus tests for clerkships. Then, they break down the Court’s opinion in Chevron v. Plaquemines Parish, Louisiana, before previewing some upcoming oral arguments at One First Street, including the “crimmigration” case, Blanche v. Lau. Favorite things: Leah: RFK Jr. and the raccoon penis https://www.theguardian.com/us-news/2026/apr/16/rfk-jr-road-kill-raccoon-new-book; Her talk with Steve Vladeck in DC on her upcoming paper, The Passive Vices https://papers.ssrn.com/sol3/papers.cfm?abstract_id=6302722, on Monday, April 20 at 12:45pm - RSVP here https://docs.google.com/forms/d/e/1FAIpQLSd898pap9piwwc62ADI6T313GBSibsfIbEJgilRIo9LKQrwxQ/viewform. Melissa: Lady Tremaine https://bookshop.org/p/books/lady-tremaine-rachel-hochhauser/22515233?ean=9781250396341&next=t, Rachel Hochhauser; Lily Allen’s West End Girl tour https://lilyallenmusic.com/tour/; Rumours https://www.youtube.com/watch?v=-uFU79MGj00&list=RD-uFU79MGj00&start_radio=1, Fleetwood Mac Kate: What I Want https://www.youtube.com/watch?v=ysQl74R_Tog, MUNA; Playground https://bookshop.org/p/books/playground-a-novel-richard-powers/0a48da6e4729f111?ean=9781324123736&next=t, Richard Powers; Labor Dept. Investigates Texts Among Secretary’s Family and Staff https://www.nytimes.com/2026/04/15/us/politics/labor-secretary-text-messages.html, Rebecca Davis O’Brien (NYT) Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 6/20/26 – New York City Learn more:http://crooked.com/eventsPreorder 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&Preorder a signed paperback of Leah’s book, Lawless, here https://literatibookstore.com/book/signedlawless. Follow 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

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• 0:32Speaker 01

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• 1:02Speaker 02

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

• 1:15Speaker 03

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

• 1:45Leah Litman?

  Hi, everyone. It's Leah. After we recorded our regular episode, The New York Times, specifically Jodi Kantor and Adam Liptak, released a bombshell story about the origins of the Shadow Docket. And they obtained the original documents behind what was, in important respects, the birth of the modern Shadow Docket. And that's the Supreme Court's 2016 decision to stay the Clean Power Plan with no explanation before the plan went into effect and before lower courts had issued opinions about its legality. We obviously needed to discuss this and with the expert on the shadow docket, who's conveniently enough invoked in the New York Times piece, and that's obviously Steve Vladeck, professor of law Georgetown Law School and author of the New York Times bestseller, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic.

• 2:29Leah Litman?

  He's also the author of the one first Substack. Okay, thanks so much for joining us on late, like literally like 15 minutes notice, Steve.

• 2:37Speaker 05

  Happy to be here. Wish we were under better circumstances.

• 2:40Leah Litman?

  As ever. So for people who might not remember what exactly the story is about, back in 2016, generally speaking, Supreme Court wasn't really in the business of firing off unreasoned orders, staying a bunch of lower court opinions or administrative policies. But they did so and really began this unprecedented practice in important ways when, as I said, in 2016, they stay the Clean Power Plan with no explanation. And there's so much to talk about from this New York Times story, but I guess I'll just ask you, what's one big thing that stuck out to you? And we can go from there.

• 3:12Speaker 05

  John Roberts.

• 3:14Leah Litman?

  Oh, yeah. Want to say a bit more there?

• 3:17Speaker 05

  Sure. So, you know, I don't think that that either you or I or most of the folks who listen to Strict Scrutiny were ever especially smitten with the balls and strikes canard that, you know, then nominee John Roberts trotted out in 2005. But if this isn't the last nail in whatever coffin was left for the idea that John Roberts is some impartial institutionally minded, you know, deeply principled jurist who believes in judicial restraint. You know, I just want to hold his two memos up and say, uh, no. Right? He's, I mean, even though, like, even though Justice Kennedy is clearly the dispositive vote in this case, none of this happens without John Roberts.

• 4:00Leah Litman?

  And the story describes how he initiated it. Right? He is the one that puts the stay application to the conference, writes a memo saying, I think we should do this. And when people push back, he is the one that continues to press for it. And his memos, you mentioned the two memos, they read like they were written by industry. You know, a key point of his is that this is, quote, "the most expensive regulation ever imposed on the power sector," as if that is the emergency warranting intervention.

• 4:27Speaker 05

  So I mean, I mean, there are so many things to say. I'll just say, and I say some of it in my newsletter this morning.

• 4:35Speaker 05

  To me, the three things, Leah, that really stand out about the memos themselves, as opposed to just their existence, right? Is, one, he is completely wrong about the stay standard.

• 4:46Leah Litman?

  Yes.

• 4:46Speaker 05

  Right? So, so he invokes older cases that were about stays of lower court mandates.

• 4:53Leah Litman?

  Yep.

• 4:53Speaker 05

  Right? In a context in which what the, what industry was asking him to do was reach across the separation of powers.

• 5:01Leah Litman?

  Yes.

• 5:01Speaker 05

  And basically almost enjoined, right, in executive branch policy.

• 5:05Leah Litman?

  Right.

• 5:05Speaker 05

  Everyone agrees that there are no examples before this case of the Supreme Court doing that.

• 5:11Leah Litman?

  Yep.

• 5:12Speaker 05

  And so you would think, and indeed Justice Kagan says as much, and the Solicitor General in their opposition made a huge deal out of this, right? There's no acknowledgement in his memo that this is new. He cites the standard for a much more traditional stay, as if that were the correct standard. And then there's, so that's one. So one is he sort of, he gets off on the wrong foot by not even taking the, the actual request seriously. Um, two, I mean, Leah, your point about industry, I would sort of slightly reconfigure as a point about irreparable harm.

• 5:40Leah Litman?

  Oh, yes.

• 5:41Speaker 05

  Which is.

• 5:41Leah Litman?

  Definitely want to talk about irreparable harm.

• 5:44Speaker 05

  So this is the guy who, you know, is responsible for the court's modern obsession with the idea that anytime the government actions are blocked, the government is irreparably harmed.

• 5:55Leah Litman?

  Yeah, just, just want to underscore this, right? They have been virtually explicit in shadow docket orders from the Trump administration that there's almost a per se presumption of irreparable harm for the government, whenever the government's policies are irreparably enjoined or paused and.

• 6:12Speaker 05

  And Leah, and Leah, what opinion do they cite for that proposition?

• 6:16Leah Litman?

  What opinion do they cite for those? Oh, gosh.

• 6:18Speaker 05

  They cite an in-chambers opinion, but from 2014 by a little guy named John Roberts.

• 6:22Leah Litman?

  Yeah.

• 6:23Speaker 05

  Right? And so, you know, this sort of. Even if you buy the argument that the industry actually faced irreparable harm and oh, by the way, the court also doesn't think economic costs are ever irreparable harm.

• 6:35Leah Litman?

  Yes.

• 6:35Speaker 05

  Right. But even if you bought the conspiracy theory, I want to come, that's my third point, about the irreparable harm. This is the guy who also says the government's irreparably harmed. So where is the balancing of the equities that the court is supposed to be undertaking here? Right. What about the harm to the administration? What about the harm to the, oh, I don't know, environment?

• 6:53Leah Litman?

  Right. No one talks about harm to the environment. Nobody.

• 6:57Speaker 05

  So I want, so I want to get back to why I think the opposition memos are so soft. I suspect you and I have the exact same escalation, which is Anthony Kennedy.

• 7:05Leah Litman?

  Exactly. Justice Kennedy is still on the court.

• 7:07Speaker 05

  Right. But, and then the third point is, like, the factual, and this is more in Roberts's second memo than in his first, but like, the factual basis for their belief that if they didn't intervene in February 2016, they'd be stuck, right? Is a BBC news story, right? And one other, like, random factual statement that wasn't in the record. How do we know they weren't in the record? There was no record.

• 7:33Leah Litman?

  Exactly. Yeah. So I, I want to talk about those citations because this is also just a huge part of the story to me, but just one more, be it on irreparable harm, which is, it's not only that, in my view, the chief has inverted this irreparable harm, it's that he has been so completely unconcerned with all of these claims to irreparable harm, that people whose lives have been totally disrupted by things the Trump administration has been doing, he, he doesn't care. And neither does.

• 8:01Speaker 05

  Or, or, or in the funding, or in the funding context, right?

• 8:03Leah Litman?

  Right.

• 8:03Speaker 05

  Programs that have to shut down.

• 8:05Leah Litman?

  Yes.

• 8:06Speaker 05

  Because without funding, they can't continue to operate. That is the exact kind of baked in economic cost that was putatively the basis for why they intervened back in 2016. So, the, right, the, the point is not just that he's being inconsistent, the point is that he's being ruthlessly hypocritical.

• 8:23Leah Litman?

  Yes, exactly. So let's talk about the citation because part of the story and what seems to be driving the chief justice and maybe some other justices as well is that the chief seems really angry at President Obama and the Obama administration and their EPA because what had happened is the Supreme Court had earlier invalidated the Obama administration's rule regarding mercury admissions. And after they do so, the EPA basically says, look, the majority of power plants are already in compliance or on their way to compliance. So this isn't going to be a huge deal. And the chief justice basically takes offense to this and says, look,

• 9:05Leah Litman?

  this is going to mean our rulings aren't necessarily going to keep these policies from going into effect, reaping their benefits and imposing the costs. And so the chief repeatedly gestures to this.

• 9:17Speaker 05

  Because, let's just be clear, because some people voluntarily chose to comply with the regulation.

• 9:23Leah Litman?

  Exactly. Yes.

• 9:25Speaker 05

  Right.

• 9:26Leah Litman?

  Right. They voluntarily chose to comply with this regulation, arguably suggesting the regulation might not have been so awful after all. And indeed, that was partially the story of the Clean Power Plan because for all of the chief justices' bellyaching about how horrible and catastrophic this policy was going to be, it ends up industry meets the targets. And so their prediction game, not so great. But the memos, as you were noting, cite the BBC interview talking about how the EPA said they were baking in the Clean Power Plan to the system. And he invokes the quote comments of the EPA administrator. And there's so much to say about this. I mean, obviously, this indicates they care deeply about what is said about them. They are monitoring this. They also seem to care deeply about the consequences of their opinions

• 10:11Leah Litman?

  and not just like the reasoning or the judgment. And also, where was this energy in SB eight? When you talk about, you know, an opinion having no effect, right? If you come back later, right? And all of a sudden decide it. And also, this is another thing that I could not get out of my head. The hypocrisy of the chief justice fixating on these statements when two years later, he says, you can't take anything the president says and use It against him in the travel ban case.

• 10:35Speaker 05

  Hawaii seems a little inconsistent, right?

• 10:37Leah Litman?

  It's just wild. It's wild.

• 10:39Speaker 05

  I will, I will give the chief a, a sort of an eighth of a pass for SBA because he was on the right side in SBA. So, you know, we don't have, we, we could talk about some of the terminology a bit too. We don't have um, memos from Scalia, Thomas, or Ginsburg, right? We have memos from six of the justices. I guess Alito's memo is to me entirely unsurprising.

• 10:59Leah Litman?

  Oh, of course.

• 11:01Speaker 05

  Right?

• 11:01Leah Litman?

  He invokes the court's legitimacy.

• 11:03Speaker 05

  That's right. The court's legitimacy is undermined. Yeah, okay. We're back to like in Mirabelli where he says, we can't possibly indulge the, the someone who might be elected in a district we later stripped down. Never mind that I'm responsible for doing that in Alabama. But I, I guess I'm, I'm a little struck also by Justice Kennedy, right? Because it seems to me that the chief had to be the mover here. This is a case that came out of the DC Circuit. He was the circuit justice, right? He would have always written the first memo. What's striking to me is that clearly everyone was fighting over Kennedy's vote, right? Which is why, you know, Breyer's memo is very civil. Right? Breyer proposes a compromise.

• 11:46Leah Litman?

  Exactly. Yes. He offers the compromise, basically saying, well, the states can ask the EPA for an extension. And if the EPA doesn't give it to them, then they can come to us. Like that was his proposal. Yep.

• 11:56Speaker 05

  And Kagan adds, we can tell the DC Circuit to hustle. Which is funny, like Roberts pooh-poohs that in his response, but it's funny because now they do that all the time.

• 12:05Leah Litman?

  Exactly.

• 12:06Speaker 05

  Right? Um, and so what, what's striking to me though is that the result is that there's nothing in the memo about the stakes. Um, and what I mean by that is the stakes for the court. And I think some of that's because, you know, Breyer and Kagan and Sotomayor were all pulling their punches a bit because they thought they still had a shot at Kennedy's vote. But so there's almost like no acknowledgement. I mean, partly because the chief's memo doesn't acknowledge how novel this is.

• 12:33Leah Litman?

  Right.

• 12:34Speaker 05

  Right? None of the discussion inside the court is, is this something we should be doing in general?

• 12:39Leah Litman?

  Yep. Yeah. And clearly, I mean, with the benefit of hindsight, they think they did awesome. Because they've only continued to do it since. And that is also part of what is so startling to me is you look back at their memos. They were wrong about the predictions. They were wrong about so many aspects of this and they just keep doing it.

• 12:59Speaker 05

  And I think also, I mean, so, so this is maybe a question for you, right? Because I guess it's a question that is more about what's inside Justice Kennedy's head.

• 13:07Leah Litman?

  Yeah.

• 13:07Speaker 05

  Um, which is maybe he, because his memo I find to be the most frustrating of all of them. Because he's like, I'm persuaded by the Roberts memos, um, without any analysis of them.

• 13:18Leah Litman?

  What aspects of them? Right.

• 13:20Speaker 05

  So, but I wonder, I mean, I wonder if part of this is Kennedy believes that he'd be the gatekeeper. And that, you know, things fall apart not because of the move they make in 2016, but because when the volume ticks up, Kennedy's no longer the gatekeeper. Now it's the chief in Kavanaugh.

• 13:36Leah Litman?

  Yeah, so that is definitely a possibility. On the other hand, I, and I don't take you to be giving Justice Kennedy a pass. Um, but by the time he steps down, the Supreme Court has already used the shadow docket to give the Trump administration a lot of what it wants on the travel ban. So he has seen, right, like what this might become. And he has seen that the Trump administration is going to be making these extravagant requests. And he decides to give them a seat on the Supreme Court. And so maybe he thought that, right? Maybe this was one of like, uh, I will save the country delusions, but obviously does not play out that way.

• 14:12Speaker 05

  And then just the last obvious thing that jumps out at me is, um, no one suggests that any of the substantive exchange should be memorialized, right?

• 14:21Leah Litman?

  Oh, I know.

• 14:21Speaker 05

  Because I, I don't know, right? I'm not sure if folks know.

• 14:24Leah Litman?

  He's trying to persuade colleagues.

• 14:26Speaker 05

  Right. Um, but so the actual order we get, right, has no analysis from the majority and it has no dissent. I mean, right, the, the Dems all know that they're dissenting, but they don't say why.

• 14:35Leah Litman?

  Yes.

• 14:36Speaker 05

  Um, and there's no discussion internally about whether that's a good thing or not. I mean, right, so the court basically opens a Pandora's box because the chief was pissed off at the Obama administration.

• 14:47Leah Litman?

  Yep.

• 14:47Speaker 05

  Um, in a context in which it's completely hypocritical about why, right? And doesn't tell us anything that would give us any insight.

• 14:54Leah Litman?

  Right, and, right, exactly. And I think we've already been implicit about this, but the fixation on the equities and the fairness of all of this is also really hard to miss because it was such a reflection of results oriented judging and the inevitability of these guys' views about fairness and equity informing what they are doing here and, yeah.

• 15:21Speaker 05

  So this is why I find the timing of this story really fascinating.

• 15:24Leah Litman?

  Mm hmm.

• 15:24Speaker 05

  Because, um, you know, as, as you know, as I think you guys probably talked about in the rest of the episode. Um, it's been an interesting week.

• 15:31Leah Litman?

  Oh, yeah.

• 15:32Speaker 05

  Conversations about the Supreme Court's, uh, lack of politicization or very politicization between Justice Jackson's speech last Monday at Yale, Justice Thomas's speech Wednesday at Texas, right? And the, the, um, Justice Kavanaugh is a principled centrist leading us to a bright future book tour. Um, it really does seem to me like this story pours a whole lot of cold water on everything except Justice Jackson's speech.

• 15:59Leah Litman?

  Yes, completely.

• 16:00Speaker 05

  Which is completely consistent with what's in the Clean Power Plan memos. That, that the court stopped taking equity seriously.

• 16:07Leah Litman?

  Yep.

• 16:08Speaker 05

  That in the process, it stopped caring about how its behavior affects anyone other than who the court views as its constituency. And that that's the central problem with the emergency docket.

• 16:17Leah Litman?

  Yeah, since you mentioned the Justice Kavanaugh as an institutionalist and willing to save the country book tour, did want to explain for our listeners who might not understand it. Um, you know, on this podcast, we constantly struggle between wanting to talk about things and not giving them airtime or platform. This is an example where this already has a platform. So one of the co-hosts of Advisory Opinions, who's now the publisher of SCOTUS blog, Sarah Isger, Sarah Isger Flores, um, former spokesperson for the Trump DOJ during child separation, has a new book, Last Branch Standing, in which she argues the Supreme Court is awesome. Um, and they're doing amazing, sweeties. And actually.

• 16:56Speaker 05

  Especially Justice Kavanaugh.

• 16:57Leah Litman?

  Especially Justice Kavanaugh, and they have this grand plan to save the country from executive power. And that's actually what they're doing all along. And indeed, the day before this Cantor-Liptak story runs, she has an interview with Ross Douthat and the New York Times explicating the thesis of that book. Again, Supreme Court doing amazing, Justice Kavanaugh is going to save us, and they're reining in executive power. And I just don't know if you can have like a better reveal about.

• 17:27Leah Litman?

  Why exactly that is so misguided and also underscoring how it is obviously an effort to legitimize and give cover to what the court is doing than this one-two punch? But that that was the reference.

• 17:40Speaker 05

  No, and it's, I mean, it's whitewashing the court.

• 17:42Leah Litman?

  Yes.

• 17:42Speaker 05

  Because part of what I find, and I, you know, I have not written anything about the book. I wrote a piece in my newsletter back after the tariffs case. Because Sarah Isker wrote a piece in The Atlantic after the tariffs case, which said, "The real program of the Roberts Court is reining in presidential power."

• 17:59Leah Litman?

  Oh, my God.

• 17:59Speaker 05

  And, you know, it's not just that, like, Leah and I both roll our eyes at that claim. It's that the actual analytical foundation for that claim

• 18:07Leah Litman?

  Yes.

• 18:08Speaker 05

  is based on a remarkably superficial series of easily debunked

• 18:14Leah Litman?

  Yeah.

• 18:14Speaker 05

  and or incomplete assessments of the work of the court. I mean, she writes a piece about the the the Trump administration being reined in by the court that ignores just about all of the Trump administration's wins on the emergency docket last term. I don't know how you can do that. And so it seems to me that part of the problem here is that you can believe that the court is getting things right in these cases. I don't.

• 18:39Leah Litman?

  Right.

• 18:39Speaker 05

  Um, but the notion that this is somehow reflecting some deep body of coherent principles that reflect judicial decision making at its finest, I think is rather blown up

• 18:48Leah Litman?

  Yes.

• 18:49Speaker 05

  by what we learned on Saturday.

• 18:51Leah Litman?

  Yes, completely. Um, and, you know, if you ever find yourself perusing legal commentary that treats the range of reasonable views as somewhere between "The shadow docket is pretty good" to "The shadow docket and Justice Kavanaugh are amazing", you might want to ask yourself, "What exactly is this commentary slash publisher slash expert exactly trying to sell me on?" Um, that that will be my final note.

• 19:14Speaker 05

  Yeah, I mean, I'm not sure how to top that. I'm just going to say one more thing.

• 19:17Leah Litman?

  Yes.

• 19:18Speaker 05

  Um, which is, um, as Leah, I think you know about as well as any other human being on the planet, um, this has been my project for the better part of a decade.

• 19:27Leah Litman?

  Yes.

• 19:27Speaker 05

  And, you know, I think it's worth stressing that whatever, you know, there's going to be efforts on the right to sort of say what the court did in the Clean Power Plan cases was totally legitimate. Um, right, the same folks who thought that the Obama administration, I mean, back to the Isker thing, that Obama was just as bad as Trump, because he said, "I have a, I have a pen and I don't remember what the other thing he had was." But, um, right, um, You can think that the results in these cases are correct. You can think that the court was correctly pissed off at the Obama administration. We are increasingly past the point

• 20:02Leah Litman?

  Yes.

• 20:02Speaker 05

  where you can defend the court against charges of hypocrisy, inconsistency, and lack of principle.

• 20:08Leah Litman?

  Yes.

• 20:08Speaker 05

  And so, you know, if your only principle is that I like the result, it very well may be possible, friends, that you don't have any principles.

• 20:16Leah Litman?

  Yeah. Great note to end on. Again, this New York Times piece, incredible reporting. What a public service. Thank you to Jody and Adam for getting this out there and getting this done. Thank you so much, Steve, for hopping on on short notice and for all of your work on The Shadow Docket. You know, if you have read Steve's book, The Shadow Docket, this would not have been surprising. And so, again,

• 20:38Speaker 05

  Thanks, Mom.

• 20:42Leah Litman?

  Please check that out and also Steve's Substack, One First, you know, to stay up to speed on all of this. And thanks again, Steve.

• 20:49Speaker 05

  Thanks, Leah.

• 20:50Leah Litman?

  And now for our regular episode.

• 21:04Leah Litman?

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

• 21:12Kate Shaw?

  And I'm Kate Shaw. And we have a great show in store for you today. We're going to begin by discussing some news. Are you there, God? Because there is a lot of it, in particular involving Pope Leo. We will then walk through the single SCOTUS opinion that we got last week, and we will also preview the first week of the April sitting. And as always, we will close with some of our favorite things. All right, first up, some news legal-ish.

• 21:34Leah Litman?

  First up is the president and the Pope. You would think that a week after getting flak for posting on social media an image depicting himself as Jesus Christ, healing the sick. Excuse me, Leah. Scratch that. As a physician, healing the sick, dressed as Jesus. As you do as a physician. Right. That the president would ease up on the Messiah imagery. You would be wrong.

• 22:00Melissa Murray?

  This week, the president posted another image of himself, this time being embraced by Jesus. What would Jesus do, indeed? Anyway, I can tell you what Jesus probably wouldn't do. Jesus probably would not pick a fight with the first American pope. But as should be evident, but nonetheless bears repeating, Donald Trump is not Jesus.

• 22:26Kate Shaw?

  Amazing that this needs to be said, Melissa. But.

• 22:29Leah Litman?

  Do we need a fact check?

• 22:32Leah Litman?

  Is he Jesus?

• 22:33Kate Shaw?

  Will we get sued for saying he's not?

• 22:37Kate Shaw?

  But yeah, you know, it has been a pretty amazing development in this otherwise cursed timeline that Pope Leo XIV, the first American pope, has emerged the way he has as this singular voice of moral clarity. He's increasingly spoken out against the administration's hardline immigration tactics and has now begun to criticize, in no uncertain terms, the administration's catastrophic wars, emphasizing the need for multilateralism, championing decency and the rule of law. Last month, when DEI Defense Secretary Pete Hegseth called on Americans to pray for victory in Iran, quote, "in the name of Jesus Christ," AKA Donald Trump, apparently, the Pope, in his Palm Sunday message, said in what definitely seemed like a response, "God, quote, 'does

• 23:21Kate Shaw?

  not listen to the prayers of those who wage war.'"

• 23:24Melissa Murray?

  Oh, snap. And of course, the President of the United States took all of this personally. Just a few weeks after Easter, the holiest day in Christendom, he decided to drag the Supreme Pontiff, Pope Leo XIV, for filth. Let's roll the tape.

• 23:41Speaker 08

  Why did he attack Pope Leo on Truth Social?

• 23:45Speaker 09

  I don't think he's doing a very good job. He likes crime, I guess. We don't like a pope that's going to say that it's okay to have a nuclear weapon.

• 23:54Leah Litman?

  The week on crime is just, I'm obsessed with that line. Whenever anyone says shit to me, I just say, "You're weak on crime." Or the Dow. The Dow. Exactly.

• 24:07Kate Shaw?

  He's like, you know, have you seen the crime in Vatican City?

• 24:10Leah Litman?

  Yeah.

• 24:10Kate Shaw?

  Think about it, think about it.

• 24:12Melissa Murray?

  In any event, the vicar of Christ is doubling down on DGAF. Responding to the president's comments and posts, the pontiff responded, quote, "I'm not a politician and I do not want to enter into a debate with him." Shorter Pope Leo, fuck that guy.

• 24:31Leah Litman?

  More like, who's she? I don't know her.

• 24:34Melissa Murray?

  I don't know her.

• 24:35Leah Litman?

  I don't know him.

• 24:36Kate Shaw?

  That seems more, more, more papal, honestly, than F that guy.

• 24:39Melissa Murray?

  More papal, yeah, it's true. That is.

• 24:42Leah Litman?

  Mileage may vary.

• 24:45Melissa Murray?

  I, I do think Pope Leo was just like, no.

• 24:48Leah Litman?

  Yeah.

• 24:48Melissa Murray?

  Like, no, no, don't need to, will not, I do not engage. In any event, Pope Leo also made clear that he would not be cowed by the president, saying, quote, "I continue to speak strongly against war, seeking to promote peace, dialogue and multilateralism among states to find solutions to problems. Too many people are suffering today. Too many innocent lives have been lost and I believe someone must stand up and say there is a better way."

• 25:17Kate Shaw?

  Just amen.

• 25:18Melissa Murray?

  What would Jesus do?

• 25:20Kate Shaw?

  From Chicago.

• 25:20Melissa Murray?

  He might do that.

• 25:21Kate Shaw?

  Yeah, that does seem like it. But don't worry, not one to miss the chance to suck up to the guy upstairs. And here that's Trump, not God, in this man's universe, despite his avowed piety. The Vice President of the United States also weighed in to say, quote, "In the same way that it's important for the Vice President of the United States to be careful when I talk about matters of public policy, I think it's very, very important for the Pope." I can't even get through this. For the Pope to be careful when he talks about matters of theology, Mr. Vance said.

• 25:53Melissa Murray?

  Sir.

• 25:55Leah Litman?

  What do we call this? Is it God-splaining? Is it Vance-splaining?

• 26:02Kate Shaw?

  To the Vatican.

• 26:03Leah Litman?

  It's something else.

• 26:05Melissa Murray?

  I, I do think this is an improvement because it does seem like J.D. Vance is advocating for a species of separation of person-state. So that's a plus. Let's all look for the silver linings, right?

• 26:16Kate Shaw?

  I'm trying to remember the name of his forthcoming book. And I feel like, is it communion?

• 26:22Melissa Murray?

  Is it manhood?

• 26:24Kate Shaw?

  Close.

• 26:25Leah Litman?

  Close.

• 26:26Kate Shaw?

  You'd be forgiven for making that mistake. But in fact, it is something like Finding My Way Back to Faith. And as I think about this upcoming book release, I just wonder whether we should revive something that we've done previously, which is have Lovett on the pod to play Vance maybe in a faux book episode. Anyway, just floating it, let's think on it.

• 26:44Leah Litman?

  I think the vice president would love that.

• 26:45Kate Shaw?

  I do, too.

• 26:46Leah Litman?

  I'm sure he would. And I'm really hoping that the vice president manages to do with his book what he did with Viktor Orban, ADF in Germany, the invitation to the Pope. Right, and Pope Francis. And that he does with his book, you know, in that he helps another book coming out that week, which would be, of course, the paperback version of Lawless.

• 27:13Kate Shaw?

  Uh oh.

• 27:13Leah Litman?

  An updated chapter on the unitary executive and everything else. So, yeah, anyways.

• 27:19Kate Shaw?

  Get Vance on that now.

• 27:21Leah Litman?

  Yes, exactly, exactly. Have him campaign against my book.

• 27:25Kate Shaw?

  Yes.

• 27:26Leah Litman?

  Ask for better publicity. But.

• 27:29Kate Shaw?

  Women are reading and writing.

• 27:32Leah Litman?

  I know. But speaking of being careful in talking about matters of theology, DEI Secretary of Endless War slash Secretary of War Crimes, Allegedly Crimes, Pete Kegseth, Kegs Breath. That's not it either.

• 27:50Kate Shaw?

  Who was it? Was that Katie Fang?

• 27:52Leah Litman?

  Katie did Kegs Breath, which Katie Fang, love her. I love that. Anyways, DEI Secretary of something, Pete Kegseth quoted a Bible verse that was actually some lines from Quentin Tarantino's 1995 film Pulp Fiction that loosely drew on the Bible, but of course, was not actually in the Bible, because actual reading is apparently too hard. What's your two favorite Bible verses? Wrong answers only.

• 28:21Leah Litman?

  Mine is Dwayne re-bag with the handles tied. That's Dwayne's butt plug luben side.

• 28:27Kate Shaw?

  Would I tell you, the crowd in New York City lost its mind at that line above all other lines. I am not exaggerating. We'll get to it.

• 28:34Leah Litman?

  My other favorite line is, I'm coming to the cottage.

• 28:38Melissa Murray?

  Okay, what's yours, Kate?

• 28:40Kate Shaw?

  He who picks a fight with Pope Leo shall have, shall not have the last word.

• 28:49Melissa Murray?

  Okay, mine is Tik Tok, you don't stop. Tik Tok, you don't stop. Come inside. That's for you, Adam Music. Sorry, inside, inside joke. All right. All right, on to some other news. Speaking of squabbling up, we are about to hit the final stretch of October term 2025, which means the girls and the ghouls are fighting.

• 29:17Kate Shaw?

  All right, first up, we got a girl, we got a ghoul. In the first ring.

• 29:23Melissa Murray?

  Girl versus ghoul.

• 29:25Kate Shaw?

  So I think it's now two weeks ago, at an event at the University of Kansas Law School, Justice Oto-Meier said, when asked a question about the Noem versus Vasquez Perdomo case, quote, "I had a colleague in that case who wrote, you know, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. There are some people who can't understand our experiences, even when you tell them. There was no ellipsis in there. That wasn't all a continuous statement, but all of that was in Justice Oto-Meier's remarks."

• 29:55Melissa Murray?

  So obviously, she was talking about son of privilege Brett Kavanaugh, inventor of the Kavanaugh stop, wherein ICE agents are permitted to racially profile people regardless of their citizenship or legal status in this country and detain them. But the detentions must be brief and do not have any real impact on their lives, jobs, or rights. Wait, no, that's not right.

• 30:23Kate Shaw?

  Yeah.

• 30:23Melissa Murray?

  Right?

• 30:24Kate Shaw?

  Has someone told Brett Kavanaugh that?

• 30:25Leah Litman?

  Well, so someone told Brett Kavanaugh something and it's unclear exactly what happened. Maybe buet quid. Quite a little, a whittle. Then, last week, Justice Sotomayor walked back some of her comments. So, the Supreme Court's Public Information Office released the following statement, quote, "At a recent appearance at the University of Kansas School of Law, I," that is Justice Sotomayor, "referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague," end quote. Why do you think she apologized slash should she have?

• 31:06Kate Shaw?

  You know, we've talked about this before and this has obviously been written before. She is somebody who works very hard to maintain good relations with her colleagues. It seems like it matters to her a lot. I mean, she's like got good relations with everyone. She really does seem to care a great deal about, you know, sort of knowing and maintaining like genuinely warm friendships with everyone in the building on the court. And I think he actually like was offended and she felt badly. I'm not sure why she felt she needed to do it publicly. Sweet. I'm so sorry. Yeah, I don't know. But obviously, Melissa, you are much more of a knower of the mind of Sonia Sotomayor. What do you think?

• 31:41Melissa Murray?

  I think that is probably right. I mean, I think she does prioritize collegiality. I mean, she was friends with all of her colleagues on the Second Circuit, even when, you know, there were broad ideological disagreements, although not quite as broad as these. But I guess I bristle a little with the idea that these comments were inappropriate, because I actually would have said they were incomplete, right? I mean, actually, she could have given him a much harder read. I mean, so basically, she was just saying, and again, it was harsh criticism, like, you know, this is someone who doesn't know what it's like to need a job, need to show up at your job every day, where a detention stop could actually be fatal to your employment prospects.

• 32:25Melissa Murray?

  Like, if you just did not show up at work because you had been detained by ICE, whether wrongfully or not. You were gonna lose your job. Like, he, his parents are professionals. They have the freedom to be like, you know what, I'm taking a personal day. Like, ICE detained me, although that would actually never happen. I think that was the gist of her comment. Maybe it's harsh, but I think it's real. I actually thought she could have gone even further because the real critique of Brett Kavanaugh here is not necessarily that he is the son of professionals who, you know, may not know what it's like to have to show up every day at a nine to five. The criticism of Brett Kavanaugh and these Kavanaugh stops is like, you are a white guy who does not know what it's like to be a person of color living in this country at a time when the government is racially profiling people and it doesn't matter.

• 33:08Leah Litman?

  And who just ignored the facts.

• 33:09Melissa Murray?

  Yeah, yeah. Like, I mean, that's the real criticism.

• 33:11Leah Litman?

  Yeah.

• 33:12Melissa Murray?

  And I think she was actually quite restrained in not being like, yo, do you know what it's like? I mean, like, this is basically what black people say about Stop and Frisk. Like, it doesn't matter who you are, it doesn't matter what degrees you have, like, how much money's in your bank account. This can hit you at any time. And it is devastating, maybe in a very real practical sense, to your employment, but also to your dignity. And, and he just does not get that. And I think she could have gone in and she could have gone in really hard on him and she spared him. And so, props to her for some restraint, I think.

• 33:43Leah Litman?

  Yeah. So in addition to the possibility that it just matters to her to maintain these relationships with her colleagues, a part of me wondered, which is kind of the flip side of what, you know, I jokingly suggested last week, which was, what did Brett Kavanaugh do this time to provoke these comments? Whether those relationships and maintaining them, she thinks, and whether they in fact do accomplish some substantive purposes, maintaining relationships in order to preserve the possibility of a coalition to avoid the next cliff jumping into fascism. And I don't know to what extent she thinks that. I don't know to what extent

• 34:24Leah Litman?

  that is true. We do know these people have very thin skins. And so it's not outside the realm of possibility. And this is part of what makes their jobs so difficult. And it is hard to assess from the outside exactly what is happening and to know in some alternative universe. Whether some other course of action might be better, that like, that's my own personal view, as I've said before, but you know, I don't know exactly the calculus she is making.

• 34:54Melissa Murray?

  Well, I mean, I, so I do think that, you know, there is that recently filed case in the Second Circuit that's being brought by individuals who would be subject to these stops, challenging the prospect of these stops. And so there is an opportunity, I think, for Justice Kavanaugh to, on the record, on the merits docket, actually recant what he did in his concurrence in Noem versus Vasquez Perdomo. And maybe her initial comments are meant to sort of spur that on to like, actually clear some room for him to sort of like, you know, listen, I didn't think this out fully, like, here's why, whatever. And, you know, I do think she was just like, okay, she probably got some heat from people about this. And, you

• 35:35Melissa Murray?

  know, clearing the air, but she said it, right? And I don't, right, she said it. She may regret having said it, but she said it. It's true. And it's not even the worst thing she could have said.

• 35:47Leah Litman?

  Yeah.

• 35:48Melissa Murray?

  If you were wondering, listeners, whether the Supreme Court of the United States falls prey to patriarchal double standards when it comes to critical speech amongst colleagues, well, that is obviously an open question. We will simply note, we're making no statements here, but we'll just note that on the same day that Justice Sotomayor's apology was released, Justice Thomas made the following remarks at a speech delivered at the University of Texas at Austin.

• 36:17Kate Shaw?

  Wait, can I just quickly interrupt to note that at these remarks, Justice Thomas mentioned at the outset that he was joined by, and like, wanted everyone to know that he was joined by Harlan Crowe, which is a name that people may not have heard for a while, but that is the.

• 36:32Melissa Murray?

  Oh, we remember him.

• 36:33Kate Shaw?

  You guys do, and I hope our listeners do. But this was.

• 36:37Melissa Murray?

  Private jet Harlan?

• 36:38Kate Shaw?

  Billionaire benefactor.

• 36:39Melissa Murray?

  Yeah.

• 36:40Kate Shaw?

  Close, personal.

• 36:41Leah Litman?

  Life-size.

• 36:42Kate Shaw?

  Friend.

• 36:42Leah Litman?

  Hankardt Harlan.

• 36:43Kate Shaw?

  Not unconstitutional, as we remind all for them to be friends. But in any event, I just thought it was the trolliest move for Thomas to just say, like, Harlan, I'm so happy to have you here, at the outset of his remarks, because he wants everyone to know he is not worried about the scrutiny.

• 37:00Melissa Murray?

  Not sorry.

• 37:00Kate Shaw?

  That he's faced. He's not sorry.

• 37:02Melissa Murray?

  Said what I said.

• 37:03Kate Shaw?

  Yeah. And then he.

• 37:04Melissa Murray?

  I took what I took.

• 37:05Kate Shaw?

  Went on to say a lot of other, I think, pretty jaw-dropping things, just in terms of the substance of his talk.

• 37:12Melissa Murray?

  Let's roll it.

• 37:13Speaker 10

  Since the day I arrived in Washington, there was never a shortage of people espousing noble purposes, saying all the right things. All around me, there have been people full of promises, claiming a commitment to some righteous cause, to traditional morality, to national defense, to free enterprise, to religious piety, or to the original meaning of the Constitution. They recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences, and their country.

• 37:57Speaker 10

  Progressivism seeks to replace the basic premises of the Declaration of Independence, and hence, our form of government. It holds that our rights and our dignities come not from God, but from government. It requires of the people a subservience and weakness incompatible with a Constitution premised on the transcendent origin of our rights. You will not be surprised to learn that the progressives had a great deal of contempt for us, the American people.

• 38:34Melissa Murray?

  Well, well, well.

• 38:35Kate Shaw?

  Yeah, I mean, so...

• 38:36Melissa Murray?

  It's us. It's me. Hi. We're the problem.

• 38:39Kate Shaw?

  But I don't think he's going to apologize to us, ladies. So, I mean, to kind of the double standard point, Justice Sotomayor apologizes for criticizing one of her colleagues, you know, in pretty measured terms. On the same day, Justice Thomas launches this diatribe about progressivism, a diatribe in which he labels those who dissent from the conservative values espoused by the signers of the Declaration of Independence, many of whom unapologetically owned human beings, the greatest threat to the country. I also have to say, the unhinged theocracy in this speech was also... None of... You know, our rights don't come from the Constitution or from government. They come from God. The number of indications of God was pretty stunning.

• 39:23Kate Shaw?

  And then, of course, there was this sort of attack on kind of progressivism and progressives. But of course, that's not what was intemperate or over the top in the kind of category of public statements by Supreme Court justices in the month of April. So, no need to apologize to, you know, half the country for that. Got it.

• 39:41Leah Litman?

  Got it.

• 39:41Kate Shaw?

  Yeah, okay, but that is not

• 39:43Leah Litman?

  Clock it.

• 39:43Kate Shaw?

  All in terms of the justices riding circuit because they have been busy. Also, last week, Justice Jackson decided to enter the fray, delivering some pretty pointed remarks about the shadow docket as part of a lecture that she gave at Yale Law School. So let's play a clip from that speech.

• 40:00Speaker 08

  It is one thing for the Supreme Court to entertain a stay application early in a case's life cycle and publish its back of the envelope first blush impressions of the merits of the legal issue. It is quite another for the court to then insist that those scratch paper musings be applied by other courts in other cases stymieing the full deliberative process. I adamantly reject any effort to normalize a process whereby the Supreme Court actively superintends matters that are pending in the lower courts. There is no such thing as an interim docket.

• 40:44Speaker 08

  I disagree with some of my colleagues who have made public statements suggesting that, you know, the court really has its hands tied or that this is a function of a lot more of these cases being filed or applications being filed.

• 41:02Leah Litman?

  It seems that unlike those people who are actual DEI hires, Justice Jackson knows how to read and she knows how to read for filth. Like, the "scratch paper musings" line just injected into my veins.

• 41:17Melissa Murray?

  My favorite part is when she said, "There's no such thing as an interim docket."

• 41:22Leah Litman?

  I know, I love that.

• 41:22Melissa Murray?

  Stop trying to make the interim docket happen.

• 41:24Leah Litman?

  I refuse to legitimize this.

• 41:25Melissa Murray?

  It's not going to happen, Gretchen.

• 41:28Kate Shaw?

  Wait, no, here's the question. Is Brett going to come into her office next week and demand an apology for disparaging interim docket, which is, of course, something he coined or is, I guess, is trying to make happen?

• 41:37Melissa Murray?

  He's, I don't know if he coined it because originalism. I think maybe Justice Alito, was he the one who called it the interim?

• 41:44Leah Litman?

  I don't remember.

• 41:44Melissa Murray?

  He called it the emergency docket.

• 41:46Kate Shaw?

  I think Brett is the one who's been at least pushing interim.

• 41:48Leah Litman?

  He's definitely been pushing it, yeah.

• 41:49Melissa Murray?

  Yeah.

• 41:59Melissa Murray?

  Okay, folks, we got a new twist in the ongoing saga regarding Judge Jeb Boesberg's efforts to hold this administration in contempt for refusing to heed his April 2025 order to return to the United States planes carrying Venezuelan migrants to El Salvador. As we've talked about on the pod, about a year ago, Judge Boesberg issued a ruling finding that probable cause existed to hold the administration in contempt for its refusal to return the planes of Venezuelan migrants to American airspace. The ruling was appealed to the D.C. Circuit. There was a lot of back and forth. And last Tuesday, we got the latest iteration in it when the D.C. Circuit issued its fourth order halting

• 42:40Melissa Murray?

  Boesberg's contempt inquiry. And Trump appointee and reputed SCOTUS shortlister Judge Naomi Rao, I think no one has told her that the ladies spot has been filled. Judge Rao wrote for the two to one panel, and she characterized Boesberg's ruling as, quote unquote, improper, unnecessary, and a clear abuse of discretion. She further maintained that the Trump administration had a, quote, "clear and indisputable right to termination of this judicial investigation because Judge Boesberg's initial order requiring the planes to return was, quote, "insufficiently clear and specific to sustain a charge of criminal contempt." According to Judge Rao,

• 43:23Melissa Murray?

  Boesberg's initial ruling only prohibited the removal of the migrants and, quote, "said nothing about transferring custody of them." She then reasoned that because the planes were already in the air when Boesberg issued his ruling, the removal had already occurred, thus the DOJ's decision to hand over the migrants to Salvadoran mega-prison could not support a contempt investigation.

• 43:47Melissa Murray?

  Well.

• 43:47Kate Shaw?

  Yeah. So this latest order.

• 43:49Melissa Murray?

  That's how you campaign, right there. That's how you do it.

• 43:53Kate Shaw?

  I think it's probably not going to work, but it does seem to be what is.

• 43:55Leah Litman?

  No, Judge Rao should have added Judge Boesberg is weak on crime. That would be how you campaign. The Dow, the Dow.

• 44:04Kate Shaw?

  Yes. Although it didn't work out that well for the last person to try that line. So maybe she's right to avoid it.

• 44:09Melissa Murray?

  The truth, yeah. Ladies, ladies talking about the Dow never works.

• 44:12Kate Shaw?

  Nope. So this order goes on to direct Boesberg to terminate his criminal contempt proceedings. And this latest order was issued by a three judge panel featuring not just Rao, but her fellow Trump appointee, Justin Walker, and then also Judge Michelle Childs, who pointedly did not join Judge Rao's order. The attorneys for the wrongfully removed migrants have indicated that they will seek en banc review of the panel's decision before the full D.C. Circuit. And the administration may well face some tough sledding with the full court in that six of the court's 11 judges are already on record saying that Boesberg properly exercised his contempt authority and that an earlier panel was wrong to cut off the district court's investigative process.

• 44:52Kate Shaw?

  That was a very complex opinion, but that really was how the numbers kind of shook out. So I definitely don't think this three judge panel is the last word on the Boesberg contempt proceedings.

• 45:04Leah Litman?

  Pamela Jo Bondi may be out of the administration, but she is not out of our hearts, our minds, or others' hearts and minds, because it seems like in a last ditch effort to prevent herself from being Pamela Jo Firebomb-deed, Director of National Intelligence, not a joke, but kind of a joke, Tulsi Gabbard referred two government officials who effectively served as whistleblowers in connection with Donald Trump's first impeachment inquiry to the Department of Justice for criminal investigation. One of the officials reported an urgent concern about Trump's request for Ukrainian President Vladimir Zelensky to investigate then former Vice President Joe Biden. The whistleblower wrote, quote, "I have received information from multiple U.S. government officials

• 45:47Leah Litman?

  that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 United States election," end quote. Listeners, you may recall that the President characterized his phone call with Zelensky as, quote, "perfect." Gabbard, who alleged that, quote, "deep state actors" had instigated the impeachment, also referred to the Department of Justice, a government official who was the former intelligence community watchdog who had investigated the whistleblower complaint, and that is former intelligence community inspector general Michael Atkinson.

• 46:20Melissa Murray?

  I have to say, it is really rich to talk about the deep state when you're basically in the sheep state, just blindly following what this president wants you to do, but whatever. Anyway, I just wanted to note that the Ladies of Hysteria, another Crooked Media podcast, have a series called This Fucking Guy, and one of the most recent episodes is a deep dive into Tulsi Gabbard. And all I can say is, the tea is hot. It has cults, it has backstabbing, it has all the things.

• 46:54Kate Shaw?

  Chris Butler is a very interesting character who is at the center of all of it.

• 47:02Melissa Murray?

  Like, a lot of things going on, a lot of switching back and forth between parties. Actually, a lot of shade to the DNC for not seeing this.

• 47:13Kate Shaw?

  And multigenerational switching.

• 47:14Melissa Murray?

  Yeah, a lot of stuff. Yeah, there's a lot going on, a lot going on.

• 47:18Kate Shaw?

  Check that out if you have not. Another piece of news we wanted to just mention might be of interest to our listeners, and that is some reporting that we got last week, actually from the Harvard Crimson, the student paper at Harvard, which ran a very interesting story about the changing dynamics of the law school clerkship market. So clerkships, many listeners know, but in case you don't, are these one or two-year jobs that frequently go to recent law school graduates. Those clerks work closely with a judge in the judge's chambers. Historically, students are frequently hired for these clerkships at the end of their second year or the start of their third year of law school. And this process wherein judges wait until that point is the result of a very long and kind of starting, stopping,

• 48:00Kate Shaw?

  agonizing effort to instill some restraint in the clerkship hiring process, you know, which has taken different forms over the years.

• 48:08Leah Litman?

  Some people don't seem to be super into that whole restraint thing.

• 48:13Melissa Murray?

  Except for abortion. They care about restraint of judges when it's about the fundamental.

• 48:17Leah Litman?

  And restraints on women, but anyways.

• 48:20Melissa Murray?

  Other restraints, no.

• 48:22Leah Litman?

  Yeah. So according to the Crimson, a two-tier clerkship hiring process has emerged with conservative Republican-appointed judges preferring to enlist for future clerkships ideologically-aligned first-year students. So students who literally just got into law school, who might not even have a full year's worth of grades, are being hired largely because the Republican-appointed judges are prioritizing ideology in the clerkship hiring. Please also recall that many of these folks are among the anti-D E I pro meritocracy crowd. And the best part of all of this is that at least some of the judges may not actually be doing the ideological sniff test themselves.

• 49:03Leah Litman?

  Instead, the Crimson reports that they enlist ideologically-aligned third-year law students to vet candidates on their behalf. So a conservative three-L vibe check is basically a smell test for at least some federal clerkships, but D E I.

• 49:20Melissa Murray?

  I mean, I'm not even surprised by this. So a few years ago, we interviewed California Supreme Court Justice Goodwin Liu and one of his co-authors, Professor Mary Hoops, about their recent study of federal judges' hiring practices in the clerkship hiring process. And they noted that they did not have a sufficiently large sample size to draw broad conclusions. But they did note that their initial sample of some of the conservative judges showed that these judges were much more likely to prioritize ideological fit in hiring and were much more likely to dive deeper into the class in terms of grades in order to be able to hire ideologically-aligned clerks.

• 50:04Melissa Murray?

  And now it seems that the deep dive may actually just be wholly unnecessary. You don't even have to look at grades because some of these students, if they're one Ls, may just have a few years or a few months of grades. And if they go to Yale, they don't have grades at all because no one gets grades in the first semester. So it's basically this three-L vibe check, like, you know, do we like you? Do you show up at our events? Do we get that conservative vibe from you? I have to say, it sounds incredibly convenient and efficient. Basically, it's no grades, just vibes.

• 50:38Kate Shaw?

  Convenient and efficient if you don't, if you're not really that worried about, you know, doing law in your chambers.

• 50:44Melissa Murray?

  Exactly.

• 50:44Kate Shaw?

  Um, sure, like just a purely ideological hiring process makes.

• 50:49Melissa Murray?

  But merit, right?

• 50:50Kate Shaw?

  But merit.

• 50:51Melissa Murray?

  The merit part.

• 50:51Kate Shaw?

  Yeah.

• 50:52Melissa Murray?

  That's the good part.

• 50:52Kate Shaw?

  This is interesting reporting and good on them for doing it. I mean, I definitely, I don't know about you two, but noted that shift of like some of these conservative judges and only conservative judges, as far as I could tell, like getting way ahead of the kind of previous hiring calendar. But it seems like it is just even more widespread than I'd realized. Okay, some other news to note. We got last week a verdict in the Live Nation/Ticketmaster antitrust case. Listeners may recall that the administration, the federal government, tried to torpedo the litigation by announcing a settlement midway through the trial. But unfortunately for them, and fortunately for consumers, the DOJ settlement did not actually succeed in killing the case entirely because, as actually is becoming a trend,

• 51:35Kate Shaw?

  some states, including California, right, remember we had the Attorney General Rob Bonta on our show, talking about this lawsuit, among other things, and also New York, continued to litigate the case against Live Nation/Ticketmaster even without the administration's participation. I mean, this is what we call federalism, ladies and gentlemen.

• 51:54Melissa Murray?

  Yeah, federalism for the win.

• 51:56Kate Shaw?

  Yeah.

• 51:56Melissa Murray?

  Literally, because the states that continued to press litigation actually won. They won a jury verdict, holding Ticketmaster and its parent company liable for operating as an illegal monopoly that suppressed competition and inflated prices to the detriment of consumers.

• 52:13Kate Shaw?

  And we have to give a shout out to a bunch of stricties who are on the Live Nation/Ticketmaster trial team. They pulled off a win again, even after DOJ pulled out and settled. And I also wanted to quickly highlight that Gail Slater, who was the DOJ antitrust chief, who left the federal government around the time of the Fed's settlement, took to X to congratulate the states on their victory, saying, quote, "You made antitrust history today. You fought the good fight. You finished the race. You kept the faith." And I just really love that energy.

• 52:43Melissa Murray?

  It's almost like she didn't leave voluntarily.

• 52:46Kate Shaw?

  Almost. Pure speculation.

• 52:48Melissa Murray?

  Pure speculation on our part.

• 52:50Leah Litman?

  But I do love, I do love a petty queen.

• 52:52Kate Shaw?

  Yes.

• 52:52Leah Litman?

  On Twitter. Indeed. In other frontiers of federalism, the Hennepin County Attorney has charged an Immigration Customs and Enforcement Agent with assault for pointing a gun at people on a Minnesota highway. So Hennepin County Attorney Mary Moriarty said she believes this is likely the first state criminal case brought against a federal immigration officer for actions arising out of the Trump administration's crackdown on immigration enforcement and surges in California, Illinois, Minnesota, and elsewhere. She added, quote, "There is no such thing as absolute immunity for federal agents who violate the law in the state of Minnesota," end quote. I do wonder if JD will attempt to lossblame constitutional law to an actual attorney

• 53:37Leah Litman?

  and tell her that practicing attorneys need to be careful when they talk about the law? Just waiting for that statement. Signs point to yes.

• 53:43Kate Shaw?

  Yes. Yeah. So this particular indictment charges the officer with two counts of second degree assault. The charges are based on allegations from a 911 call in which a couple reported that a driver in an unmarked SUV that turned out to be an ICE vehicle pulled up, rolled down his window, and pointed a gun at them, and they were understandably terrified. The ICE agent maintains that the vehicle may have cut him off, and of course, the ICE agent assumed that this was some sort of obstruction. According to the ICE officer, he identified himself as an ICE officer, but the couple just couldn't hear from inside their vehicle.

• 54:16Leah Litman?

  Wanted to give a shout out to friend of the pod, Steve Lattick, professor at Georgetown Law School, also author of The One First Street Substack, who's written a lot about supremacy clause immunity and how these state criminal prosecutions might work, both on a Substack and in The New York Times and other outlets. Steve catches a lot of strays, just as a very prominent public intellectual from both the left and the right in just what I think are deeply unfair ways that reflect how good and successful of a public voice on the law he is. So if you, you know, like me, benefit from Steve's work, maybe think about sending him a note to that effect or giving him a shout out. I think people sometimes

• 55:00Leah Litman?

  See all of the benefits or upsides of being a public presence when the downsides sometimes seem less apparent. And this last week was just one of those occasions for me, you know, for Steve in particular.

• 55:16Kate Shaw?

  Can I? Yeah. I assume this will be taken in the right spirit, but as I, yes, I totally co-sign everything you just said. And it's like, when it's somebody else, you can sort of say like, yes, obviously you know you that bitch when you cause all this conversation. Like, that is a sign of how central to the discourse he is if people are attacking him. But it sucks to be the object of that. And so I think it's really good technology.

• 55:37Leah Litman?

  Completely. Justice for Commander Vladeck. Exactly. All right. Speaking of catching strays for being a public intellectual, we got an opinion in.

• 55:46Melissa Murray?

  Chevron versus Plakeman's Parish.

• 55:49Leah Litman?

  Yes, listeners, that was Chief Justice John G. Roberts stepping in here on strict scrutiny to pronounce the name of this case, which, as you have noted in our voicemails and emails, has befuddled us all term.

• 56:01Kate Shaw?

  And Melissa took that personally.

• 56:03Leah Litman?

  So if you listeners are from the Pelican State and you object to this pronunciation of.

• 56:11Melissa Murray?

  Plakeman's Parish.

• 56:13Leah Litman?

  Please direct your emails and voicemails to Chief Justice John G. Roberts of the United States Supreme Court. Thank you for your attention to this message. Anyway, the case is about federal officer removal. I'm sorry.

• 56:30Kate Shaw?

  I really needed to do that.

• 56:32Leah Litman?

  We love a petty queen.

• 56:33Kate Shaw?

  I'm a petty queen.

• 56:36Leah Litman?

  Yeah. And, you know, the federal, federal officer removal statute could end up being significant in cases like the one we just talked about, the newly filed case in Minnesota that involved criminal charges against federal officers, because the federal officer removal statute allows federal officers or people acting under federal officers to remove from state court to federal court lawsuits against them, at least when the suits are for or relating to any act under color of such office. Now, this particular case is a lawsuit against certain oil and gas companies filed under federal law. The lawsuit alleges the companies lacked permits for some of their crude oil production, which is also alleged to have been initiated illegally. Chevron removed the case to federal court, arguing that the

• 57:18Leah Litman?

  suit concerned its contractual duty to refine crude oil for the federal government during World War II.

• 57:25Kate Shaw?

  Hmm. So, the Supreme Court in this case said that at this stage of the litigation, the oil company had plausibly alleged a close enough relationship between its crude oil production and the performance of its federal refining duties that removal to federal court was proper. The court made clear that the federal officer removal statute is broad and allows removal where there is a connection between a private entity and a federal officer, so long as the connection isn't attenuated or tenuous. The opinion is effectively unanimous. Justice Jackson filed a concurring opinion, just concurring in the judgment, emphasizing both legislative history and the court's obligation to seek to discern congressional intent, with citations to John Marshall making that point, and also former Second Circuit Chief Judge Bob Katzman's work, among other things.

• 58:09Kate Shaw?

  The only person who didn't agree, or maybe did, we don't know, was Justice Alito, who didn't participate in the case at all. We don't know why, I don't think. I mean, maybe, presumably, stock ownership, right? He is one of the only justices who owns individual stocks.

• 58:25Leah Litman?

  But the Dow, Kate. That's why he didn't participate. But the Dow.

• 58:29Kate Shaw?

  That's right. Maybe he could just append that as the explanation. Because some of them have started telling us, when there is a recusal, why. Very conspicuously not Sam Alito.

• 58:40Melissa Murray?

  He has not to tell you anything, bitches.

• 58:42Kate Shaw?

  He sure doesn't.

• 58:43Melissa Murray?

  Right. All right. On to April preview. So, this is the last full month of oral arguments before the court. We have a two-week sitting coming up. We are going to preview the cases from the first week of the April sitting. All right. First up.

• 59:01Leah Litman?

  So, I don't know how to pronounce this one. I'll just cop to it. And that is Shreepetch, maybe, versus Securities and Exchange Commission. I do know that this is a case about the SEC's enforcement authority, and specifically whether the SEC can require a defendant to disgorged, that is, to give up profits or benefits, without the plaintiff having to show that investors were harmed financially. Federal law provides that the SEC may seek and any federal court may order disgorgement of profits or benefits in a civil SEC enforcement action or proceeding. In the 2020 decision, Lou versus SEC, the Supreme Court held that the SEC may seek equitable

• 59:41Leah Litman?

  disgorgement in civil enforcement actions if an award does not exceed a wrongdoer's net profits and is awarded for victims. Now, some circuits, including the Second Circuit, have interpreted the statutory language through the lens of the Supreme Court's discussion of victims. And as a result, have required the SEC to show that the investor suffered a pecuniary loss and is therefore a victim before the SEC seeks disgorgement as a remedy. Other circuits, including the Ninth Circuit, have concluded that all that is required is an actionable interference with the investor's legal interests, not necessarily a showing of a pecuniary loss.

• 1:00:20Melissa Murray?

  So the petitioner here contends that to secure a disgorgement order against him, the SEC must prove that investors have suffered actual financial loss, not merely a misrepresentation or a manipulation. If the court determines that the SEC must prove pecuniary loss to a judge in order to impose disgorgement, that will surely limit the SEC's flexibility in enforcement actions. And notably, there is an amicus brief in this case that highlights a similar case that is currently pending in the Ninth Circuit, SEC versus Berry. In Berry, the SEC's theory of pecuniary harm is based on this idea of the loss of the time value of money.

• 1:01:01Melissa Murray?

  So basically, the argument on which disgorgement is predicated is that investors suffer a loss because their money is not being used productively as an investment. It's not about an actual pecuniary loss, like dollar amounts. The novelty of the SEC's theory could heighten for the court, the skepticism they may have about expanding the scope of disgorgement as a remedy. And if the court is skeptical, it might further limit the agency's enforcement ability. So recall, this is coming on the heels of SEC versus Jarkacy, which made it a lot harder for the SEC to bring enforcement actions within the agency in administrative tribunals.

• 1:01:42Kate Shaw?

  Next up is TM versus University of Maryland Medical Systems Corp.

• 1:01:48Kate Shaw?

  Federal courts hive rise. It is time to get

• 1:01:50Leah Litman?

  Risen, risen.

• 1:01:51Kate Shaw?

  information because it is Rooker Feldman time.

• 1:01:54Leah Litman?

  Oh, yeah.

• 1:01:59Kate Shaw?

  Talk about cause all this conversation.

• 1:02:00Leah Litman?

  Exactly.

• 1:02:01Melissa Murray?

  Rooker Feldman does. Rooker, I don't even know her.

• 1:02:07Leah Litman?

  Who knows?

• 1:02:08Kate Shaw?

  Oh, so good. Okay, so Rooker Feldman, if you're not already intrigued, is a doctrine that prevents litigants, I know you are, obviously.

• 1:02:16Leah Litman?

  You want to know?

• 1:02:17Kate Shaw?

  Prevents litigants, listen up, drawn ear, who lose in state courts from going to federal court to challenge injuries caused by state court judgments. So the specific question here is whether that doctrine can be triggered by a state court decision that remains subject to further review in state court. Facts of the case are as follows. The petitioner here, TM, has a gluten sensitivity condition that can trigger psychosis. She was involuntarily committed to the Baltimore Washington Medical Center, where she claims that staff ignored her advanced medical directive and sought to forcibly medicate her in ways contrary to that directive. After multiple state filings, she entered a consent order for her release. Under conditions like monitored medication, she appealed that consent order in state court, where the action has been stayed.

• 1:03:00Kate Shaw?

  And she also sued in federal court alleging duress and constitutional violations and seeking an injunction.

• 1:03:06Leah Litman?

  I have a love-hate relationship with this case. So I love intricate federal courts doctrines.

• 1:03:11Kate Shaw?

  Oh, we know.

• 1:03:12Leah Litman?

  This is my absolute, right, okay. Favorite class to teach, on one hand. On the other, this is going to be a case where I think the Supreme Court is going to say Rooker Feldman applies, which is greatly going to undermine the lesson I attempt to import to fed court students, which is the answer is never Rooker Feldman. Indeed, the Supreme Court, in earlier opinions, has said, "Rooker Feldman basically applies only if your name is Rooker or Feldman." Literally, that's a line in a Supreme Court opinion. Because people unearth this doctrine and they think, oh, that's what's happening in this case. But it's never happening, except maybe here it is. Anyways, the federal court dismissed the suit under Rooker Feldman.

• 1:03:54Leah Litman?

  On the view, she was seeking federal review of a state court order she said injured her. The Fourth Circuit affirmed. On appeal, the petitioner gestures to that earlier case that suggested Rooker Feldman really ain't no thing, ExxonMobil Corp. versus Saudi Basic Industries. To argue that the Rooker Feldman doctrine is confined to cases where the losing party in state court filed suit in federal court after the state proceedings ended. She further argues that the Fourth Circuit's decision below expands what was supposed to be a narrow exception to federal jurisdiction and the error of confirmed likely to disadvantage pro se litigants. I'm sure a majority of justices on this court will care deeply about that. That was a joke. For its part, the University of Maryland Medical System counters

• 1:04:37Leah Litman?

  that the ruling below is correct and the petitioner was seeking appellate review in federal district court of a state court decision, exactly the circumstances where Rooker Feldman would apply.

• 1:04:47Melissa Murray?

  Also on the docket for the first week in April is Federal Communications Commissions versus AT&T. And this is a case that has been consolidated with Verizon Communications versus Federal Communications Commission, and it will be heard on April 21st. This case might be understood as a follow-on to SEC versus Jarkacy. So that was the...

• 1:05:06Leah Litman?

  Definitely.

• 1:05:07Melissa Murray?

  Definitely. Jarkacy was the 2024 case holding that when the SEC seeks civil penalties, i.e. money damages or other legal remedies against a defendant, the case has to be brought in federal district court rather than in an agency tribunal in order to comply with the Seventh Amendment's requirement of a civil jury trial for all suits at common law. In this case, the court has to determine whether Jarkacy's logic extends to the fines the Federal Communications Commission levies for violations of federal communications law. The case stems from two consolidated appeals involving two telecommunications giants, AT&T and Verizon. In two agency proceedings, the FCC determined that AT&T

• 1:05:50Melissa Murray?

  and Verizon had violated a provision of the Telecommunications Act of 1996 that requires telecom carriers to protect confidential consumer data, here, information about customers' locations. The agency informed AT&T and Verizon of the violations and issued an order advising the companies of the resulting penalties, 57 million for AT&T and 46.9 million for Verizon. Both companies had an opportunity to respond in writing to both the determination of a legal violation and the order to pay the penalty. However, on appeal, the companies argue that these procedures don't comport with the Seventh Amendment's requirement of a jury trial in a matter involving civil penalties.

• 1:06:33Melissa Murray?

  AT&T appealed its case to the Fifth Circuit. Wonder what happened there with regard to the agency?

• 1:06:39Leah Litman?

  What a mystery.

• 1:06:40Melissa Murray?

  In any event, they argued at the Fifth Circuit, among other things, that imposing the fine in an in-house FCC proceeding violated the Seventh Amendment's right to a jury trial. And, shockingly, the Fifth Circuit agreed, throwing out the fine. Writing for the majority, Judge and friend of Stanford Law School, Stuart Kyle Duncan, characterized the process as, quote unquote, "completely in-house with the agency acting as prosecutor, jury, and judge."

• 1:07:08Kate Shaw?

  But, twist, or really just circuit split, Verizon's appeal was heard.

• 1:07:14Melissa Murray?

  Twist!

• 1:07:15Kate Shaw?

  Turns out we get a lot of these courts. The Fifth went one way, the Second Circuit upheld the fine against Verizon. Writing for that court, Judge Allison Nathan said that nothing about the commission's proceedings transgressed the Seventh Amendment's jury trial guarantee. So, at oral argument, we predict that the justices will focus on the FCC's argument that an in-house proceeding that leads to the forfeiture order is not a lawsuit, much less a lawsuit seeking money damages for purposes of the Seventh Amendment. The SG, who is arguing on behalf of the FCC, maintains that there is no money at stake and therefore no obligation to have a jury trial because the FCC actually can't require a carrier to pay a single dime. The only obligation to pay would come if the DOJ brings a lawsuit to enforce the forfeiture

• 1:07:58Kate Shaw?

  order and wins, and the carrier then does have a right to a jury trial. And that's something that Sauer emphasized in the brief and that I imagine will feature prominently in the oral argument. The telecom companies disagree. They say that just because there is this, like, after-the-fact possibility of a jury trial, that is not enough to satisfy the Seventh Amendment. They say that the Supreme Court has never approved this, basically, penalty now but have a trial later approach the Seventh Amendment. They want a jury trial before the FCC issues a forfeiture order, full stop.

• 1:08:31Leah Litman?

  So AT&T and Verizon, they focus more on the forfeiture orders, which they say are basically the agency's determinations that there has been a violation and that they're not, you know, just like an initial preliminary, some might say interim, you know, tentative suggestions. And, you know, they also kind of suggest that carriers treat the forfeiture orders as final in that they're not usually waiting around to see if the DOJ will attempt to enforce them. And the FCC argues that a ruling in favor of AT&T and Verizon, quote, "would seriously disrupt the commission's administration

• 1:09:11Leah Litman?

  of federal communications laws, forfeitures," it says, quote, "are among the FCC's most important enforcement tools. Without them, quote, 'many vital rules, such as those protecting privacy, combating robocalls, and regulating broadcasting would go effectively unenforced,' end quote. And Neil Gorsuch says, "Don't threaten me with a good time." More seriously, when Jarkasi came out, I had an article in the Texas Law Review, "The New Substantive Due Process," that basically described how the court was refashioning the Seventh Amendment, together with removal law based on this free-floating idea of liberty that kind of resembled the old individual rights line of substantive due process cases.

• 1:09:52Leah Litman?

  And this case seems like another kind of opportunity to take that and run with it. I do hope that this case will at least generate another iconic oral argument clip. In Jarkasi, that was the Justice Kagan telling the advocate, "No one has ever had the chutzpah to make this argument before."

• 1:10:11Melissa Murray?

  And he then put it on his website, like, "Justice Kagan says, 'No one has ever done this.'"

• 1:10:17Leah Litman?

  Yep.

• 1:10:18Melissa Murray?

  I loved that for him. All right. On April 22, the court will hear oral argument in Blanche versus Lau. This case used to be captioned Bondi versus Lau. Listeners, I just read that as Bondi versus Lau, and I have to say, a little Freudian.

• 1:10:36Leah Litman?

  Yes, indeed.

• 1:10:38Melissa Murray?

  Um, anyway, it used to be called Bondi versus Lau, but because Pamela Jo Bondi's legal career took a trip over the Rainbow Bridge, it is now captioned Blanche versus Lau. But don't get too used to this, Todd. By the time we get an opinion here, the case will likely be captioned Schmidt versus Lau, or Zeldin versus Lau, or Franzia versus Lau. Anything could happen. Um, it's all out there. Anyway, this is a immigration case, and specifically, the question presented is whether to deport a lawful permanent resident, i.e. a green card holder, who has committed a crime of moral turpitude or a drug offense, but was subsequently allowed to enter the United States, whether the government must

• 1:11:20Melissa Murray?

  prove that it had clear and convincing evidence of the offense when the green card holder last re-entered the United States. Lawful permanent residents in the United States are exactly what that term suggests. They are non-citizens who have been granted lawful status to stay here in the United States permanently, so long as they observe relevant domestic laws. And once they have been granted that green card status, LPRs are permitted to travel in and out of the United States. And a lawful permanent resident who is returning to the United States after a trip abroad is generally not regarded as seeking an admission into the United States because they have the green card, they have the permanent status, they have already been admitted to the United States in a permanent way.

• 1:12:04Kate Shaw?

  So here, Muk Choi Lau is a lawful permanent resident who has been living in the United States for almost 20 years. In 2012, he took a short trip out of the country and then returned to New Jersey. Under the relevant immigration statute, he says he was not seeking admission when he returned. He had already been admitted to the United States. The problem is that prior to his trip, he had been charged with trademark counterfeiting, to which he later pled guilty and received a two-year probation sentence. On that basis, when Lau returned to New Jersey, an immigration officer allowed him to re-enter, but said he was being, quote, "paroled," which is a discretionary decision to let immigrants into the country, rather than just being admitted without any strings because he was the subject of pending but not yet proven criminal charges. When he later pled guilty, the government sought

• 1:12:47Kate Shaw?

  his removal as inadmissible because he had been paroled in, rather than the government pursuing the deportation procedures that are totally different and that would normally apply to a lawful permanent resident. So Lau contends that a lawful permanent resident returning to the United States after a trip abroad is not seeking admission, and the immigration officer therefore should not have paroled him into the country but admitted him, as with any other lawful permanent resident. The government, on the other hand, contends that the pending criminal charges were enough to render him inadmissible when he returned. The LPR statute states that an LPR who has committed a criminal offense cannot claim the general not seeking admission rule, and both sides agree that a clear and convincing evidentiary standard applies to the parole determination.

• 1:13:30Leah Litman?

  So Lau lost before an immigration judge and before the Board of Immigration Appeals, but on appeal, the Second Circuit ruled that because all the immigration officer at the airport knew when he marked Lau as paroled was that some criminal charges were pending, the officer should have applied the not seeking admission rule. This means that at oral argument, the justices will likely be focusing on whether at the time Lau returned to the United States from his trip abroad, the immigration officer had enough evidence to not admit him. The solicitor general argues that the government met the statutory standard both at the airport in 2012 and now, such that Lau may be removed.

• 1:14:06Speaker 00

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• 1:14:41Speaker 01

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• 1:15:17Leah Litman?

  Okay. Tradition that we haven't always adhered to, but I'm just going to invoke here. And that is the clip without context. So I wanted to play for you a recent moment during an oral argument that happened last week. Here you go.

• 1:15:32Speaker 11

  I don't know what's radical left about being anti-Nazi. Do you?

• 1:15:38Speaker 12

  Your Honor, this is not about anti-Nazi.

• 1:15:41Speaker 11

  About being anti-Nazi, right?

• 1:15:43Speaker 12

  Your Honor, this is not about whether anyone is anti-Nazi.

• 1:15:46Speaker 11

  Nothing radical left about being anti-Nazi.

• 1:15:47Speaker 12

  Judge Mallett, this is not about being anti-Nazi.

• 1:15:50Speaker 11

  That's what you say.

• 1:15:51Leah Litman?

  This arose in the Media Matters case challenging the retaliatory investigation of Media Matters, alleged retaliatory investigation, after Media Matters called out the Nazi ads on Twitter. You will notice that the lawyer for the FTC didn't exactly answer the question of whether there was anything radical about being anti-Nazi.

• 1:16:13Melissa Murray?

  Is that a T-shirt? There's nothing radical about being anti-Nazi?

• 1:16:17Leah Litman?

  Yeah. It could be. It's a little long, but I think it would be good. Okay. Favorite things. You know, we are in the market for a new summer drink. Some people in the Crooked Friends of the Pod Discord have suggested there is a dictator-smasher drink that includes Ukrainian vodka, sweet vermouth, and a little bit of orange bitters for an anti-Putin, anti-Arbonne, anti-Trump, you know, cocktail. I like that. But a member of the Trump administration actually floated another possibility that we wanted to give him credit for here.

• 1:16:58Speaker 13

  The Straits of Vermouth have not been completely reopened?

• 1:17:03Leah Litman?

  Yes. The Strait of Vermouth. Interesting little Freudian slip there, but whatever.

• 1:17:10Melissa Murray?

  At least it wasn't the Strait of heroin off a toilet seat.

• 1:17:13Leah Litman?

  Or, or raccoon penis. Because...

• 1:17:17Melissa Murray?

  It wasn't heroin. You can't do heroin on a toilet seat. It's cocaine.

• 1:17:20Leah Litman?

  Cocaine.

• 1:17:20Melissa Murray?

  Again, I'm like showing my ignorance.

• 1:17:22Leah Litman?

  Yeah. But another one of my favorite things was going to be a story described in the book RFK Junior: The Fall and Rise, which is by journalist Isabel Vincent, who relies on a series of alleged Kennedy diaries. And she maintains that RFK Junior once removed a dead raccoon's penis to, quote, "study later" while his wife and kids waited in the car. So according to the book, Kennedy wrote in a 2001 entry, quote, "I was standing in front of my parked car on I-684, cutting the penis out of a road-killed raccoon, thinking about how weird some of my family members have turned out to be," end quote. By "some of my family members," he meant himself.

• 1:18:09Leah Litman?

  I wasn't totally sure. For those of you listening who might be affiliated with Georgetown, the day this episode is released, on Monday, I'm doing an event at Georgetown Law School with friend of the pod, Professor Steve Vladeck, about my forthcoming article in the Georgetown Law Journal, The Past of Vices. So excited about that. Come see it. Also wanted to give a shout out to the student editors, whose great comments definitely have improved the piece. I hope my updated revised version will post on SSRN shortly. Also, one last favorite-ish thing, and that is, so I joined a casebook for constitutional law a few years

• 1:18:49Leah Litman?

  ago, and we are about to start revisions for a new updated edition. So if you use what was the Stone-Siedman-at-all constitutional law casebook, I would love to hear from you whether, one, you teach the Second Amendment in your con law class, and if so, how you use it. Like, does it illustrate interpretive theory, or are you doing it as a substantive area of law? And also whether and to what extent you teach the First Amendment in that intro to con law class. All of that would be super helpful. So feel free to email me. Yes, interpretive method, and no. Okay, super helpful. Thank you. But I don't use your book, so. But, girl! Sorry.

• 1:19:31Leah Litman?

  Maybe the new revision will entice you.

• 1:19:32Melissa Murray?

  Maybe the new revision will entice me. Hmm. We'll see. All right. Um, my favorite things include the book Lady Tremaine by Rachel Hochhauser. And if you've listened to my book recommendations in the past, you know, I love a book where they take a well-known story, but tell it from someone else's perspective, like Longbourn was told from the perspective of the servants in Pride and Prejudice. So Lady Tremaine is the Cinderella story told from the perspective of the evil stepmother who twists is not that bad. And I kind of love that. So I'm enjoying it a lot. I also had the pleasure this week of going to a concert with my dear friend Kate Shaw and some other friends. We went and saw West End Girl and we really

• 1:20:16Melissa Murray?

  wanted you to be there, Leah. We had our fans with your head on it, like with us. So you were there in spirit. But I have to say, like Kate is going to say more about it, but the show really slapped. Although I have to say, if I were Lily Allen, I don't know that I would love spending a whole half a year going on tour, reliving the breakup of my marriage. And I think that may have been why her demeanor was a little kind of like, she was fucking over it. I think she was over him and the songs. But she gave a great show. It was a great show. But it wasn't a Beyonce show. Like, there was no

• 1:20:51Leah Litman?

  I'm going, actually, when you listen to this episode, I will have gone the night before. And I got my nails done for the show. I don't know if you can see.

• 1:21:00Melissa Murray?

  Okay.

• 1:21:01Leah Litman?

  I can see. So this one is like a little tennis ball. Oh, there's a tennis ball. And then the other hand is like silver and accent nail with a tennis ball. Yeah. I wanted a Dwayne Reid bag, but I just didn't think the details would really come through. That's hard.

• 1:21:14Melissa Murray?

  It's gonna be hard. That's okay. I also saw another concert last week. I went to Symphony Spaces' big annual gala event. And it turned out to be, in honor of Symphony Spaces' 50th anniversary, they decided to have Broadway singers.

• 1:21:32Melissa Murray?

  Sing the entire Rumors by Fleetwood Mac album. And it's one of my favorite albums. I fucking love it. It's such a good album. Like, there's so many great hits on it. Fleetwood Mac was absolutely fantastic. And there was all of this great trivia in the middle. Like, so at one point, they noted that Rumors has gone platinum like 26 times or something crazy. Like, it's sold more copies than both Revolver and Abbey Road, two huge Beatles albums. And this was the best, best bit of trivia. While Rumors was being written and recorded, there were five breakups in Fleetwood Mac. But Fleetwood Mac only has five people.

• 1:22:14Melissa Murray?

  Think about it. The math.

• 1:22:15Kate Shaw?

  Isn't it four? It's five?

• 1:22:17Melissa Murray?

  No, I think there are five.

• 1:22:18Kate Shaw?

  Oh, are they?

• 1:22:19Melissa Murray?

  There's Lindsay, Christine, Stevie, Nick, and then Christine's husband.

• 1:22:25Kate Shaw?

  Oh, there are.

• 1:22:26Melissa Murray?

  John, John, I think. I don't know what his name is.

• 1:22:28Kate Shaw?

  Oh.

• 1:22:30Melissa Murray?

  Yeah.

• 1:22:30Kate Shaw?

  I thought they were just two and two.

• 1:22:31Melissa Murray?

  One more thing. I just want to say, I went to USC out in Los Angeles for a workshop. I did the paper that Kate and Leah and I have that's going to be forthcoming in the Northwestern Law Review. Got great comments from the USC faculty. Thank you so much to all of the faculty members who showed up for that. And I got to meet some Striktes in the wild, Claire and Bernadette, who introduced themselves. So, thanks so much for supporting the pod. And then finally, my last favorite thing ever, and I know this actually happened two weeks ago, but I wasn't on last week's episode, but I wanted to just, I didn't know if you guys mentioned it, but I was so buoyed by the sight of Victor Glover astronaut moisturizing in space. And as a black mom, I'm like, yes, sir, exactly.

• 1:23:16Melissa Murray?

  Because there was once this time when I was at a law professor conference, and Ellie Mustal, friend of the pod, shouted my name across the, like, the auditorium or wherever we were. And he was like, Melissa Murray. And I'm like, what, what? And he comes over to me, he's like, do you have lotion in your bag? And I was like, of course I do. And he's like, I knew you would. You're a black mom. And he was right. Like, we moisturize. Like, I'm always carrying lotion in case my kids need to be moisturized.

• 1:23:42Kate Shaw?

  And Victor brought his own to space.

• 1:23:43Melissa Murray?

  He brought his, he was like, nothing's gonna stop me from moisturizing. And I'm like, I feel you, Victor. I get it. I get it. Now, does

• 1:23:50Leah Litman?

  An additional favorite thing, no, he doesn't. An additional Artemis 2 thing is the video of the astronaut Christina reuniting with her dog.

• 1:23:58Melissa Murray?

  Oh.

• 1:23:59Leah Litman?

  So adorable.

• 1:24:00Kate Shaw?

  All Artemis 2 content was just like, the best thing.

• 1:24:03Melissa Murray?

  Loved it.

• 1:24:03Kate Shaw?

  Really like since January of last year. I think it's like, it has sparked the most joy. That crew is totally incredible. And also a reminder that government actually can do pretty incredible things. It's like the

• 1:24:14Melissa Murray?

  Especially when they use, especially when they use DEI.

• 1:24:17Kate Shaw?

  Especially when they do. Because like, you know what, like, yeah, there's a lot of people who can be astronauts. And like,

• 1:24:21Melissa Murray?

  Yeah.

• 1:24:22Kate Shaw?

  It's, yeah, this like diverse crew, like, fucking delivered. Um, wait, I don't want to cut you off then. Well, sorry, we good?

• 1:24:30Melissa Murray?

  I'm done. Now I'm done. Now I'm done. I just wanted to talk about lotion.

• 1:24:33Kate Shaw?

  Totally. And Victor Glover and the rest of that crew. Okay, so I want to plus one the West End Girl experience with Melissa. The fans were amazing. I agree that Lily Allen seemed, I didn't know if she was like, just a little tired, or like, a little, just over it. I couldn't quite tell. But it was like, it was,

• 1:24:50Melissa Murray?

  Or both.

• 1:24:51Kate Shaw?

  It was an understated performance, but the songs were great. And, and the fans were amazing. And

• 1:24:56Melissa Murray?

  They were not understated.

• 1:24:58Kate Shaw?

  The call and response, they, at the end of the West End Girl, like this first song on the album, when she's doing this like one-sided phone conversation, there was like, a lot of gap filling by energetic members of the audience that I love.

• 1:25:09Melissa Murray?

  He doesn't deserve you. Stranger Things sucks.

• 1:25:12Kate Shaw?

  Yes. Both of those things were uttered in Radio City Music Hall.

• 1:25:16Melissa Murray?

  Well, I will be ready.

• 1:25:17Kate Shaw?

  It was great. Okay, a couple other things. The song What I Want, which Leah, you recommended on the emergency episode that you did with Shannon Minter, by Muna, is that who the band, who the artist is? Oh, my God, that song is so good. And so is the entire catalog of Muna, which I did not know. And thank you for bringing that into my ear holes. The novel Playground by Richard Powers, I read and Melody and I have had a back and forth about it. And I feel like I can't really say anything about it. Because like, it's almost impossible to talk about it without doing some spoiling. But it was fascinating and people should read it. Japan. I was just there for my kid's spring break and was, had the most amazing time and absolutely loved it. Had never been to Japan, had never been to East Asia at

• 1:25:57Kate Shaw?

  all. Like, I just really want to go back ASAP. And because I missed two episodes, did you guys talk about the Times? I think I've listened to every minute, but then maybe I missed something that reporting, completely bananas reporting on the investigations into sexual misconduct at the Labor Department?

• 1:26:13Leah Litman?

  No.

• 1:26:13Kate Shaw?

  Okay. This is maybe weird favorite things, but I will say that I definitely read it more wrapped than any other investigative reporting since the Times broke some of the aspects of the Kristi Noem, Corey Lewandowski scandal. I mean, this is just like a new set of completely bonkers allegations of misconduct, including sexual misconduct at the Labor Department. Like, so we already knew that there had been a number of departures from the Labor Department, including of the secretary's director of advance and a member of her security detail with whom she was accused of having an affair, but new revelations suggest that there has been inappropriate text messages sent by the secretary's both

• 1:26:56Kate Shaw?

  husband and father, including to the same young female staff member. So this is just an allegation of multi-generational sexual harassment of a sort that I was personally not familiar with. And I just like, there is no bottom, I think is the takeaway. So people should definitely read that truly jaw-dropping story from the Times if they haven't. That's a rough note to end on. Also, all Artemis two content.

• 1:27:24Leah Litman?

  Let's try to add some actual potential favorite things.

• 1:27:29Kate Shaw?

  Okay.

• 1:27:30Leah Litman?

  Slash exciting content.

• 1:27:32Kate Shaw?

  Do you have any ideas?

• 1:27:34Leah Litman?

  I mean, I do. So as we have mentioned before, June is Bad Decision season. And so we are launching a copium, which is, of course, going on the road as part of the Bad Decision tour. So we will be live at the Historic Grammar See Theater on Saturday, June 20th in New York City as part of the Bad Decision. Tour and the tickets are on sale now. Grab them while you can at crooked.com/events. For those of you who don't know, I bring special custom shirts to our live shows as part of the VIP meet and greets. We always love meeting stricties. That time is just

• 1:28:15Leah Litman?

  sure to be a wild time at the court. So

• 1:28:20Melissa Murray?

  And you can also get books signed. You can order your copy of the US Constitution, a comprehensive and annotated guide for the modern reader. If you're not modern, don't buy it. Not for you.

• 1:28:34Leah Litman?

  If, if you know not modern people, maybe get the book for them.

• 1:28:38Melissa Murray?

  Anyway, like if you're, if you're aspiring to modernity.

• 1:28:41Leah Litman?

  Exactly.

• 1:28:42Melissa Murray?

  That works.

• 1:28:42Leah Litman?

  This is the book for you.

• 1:28:44Melissa Murray?

  That's actually also the

• 1:28:45Leah Litman?

  Yes, that's actually also the week that the paperback version of my book will be out. So you can get it freshly signed. And yeah, so be sure to get those tickets and come to the show.

• 1:29:03Melissa Murray?

  Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rauel. Michael Goldsmith is our producer. Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrian Hill. Matt DeGroot is our head of production and we are really grateful for our digital team, Johanna Case, Kenny Moffett, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode. And if you really want to help other people find the show, please rate and review us. It really helps.

• 1:29:58Speaker 14

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