December Preview: SCOTUS Doubles Down on Its BS

Kate, Leah, and Melissa kick off the show by speaking with New Jersey Attorney General Matthew Platkin about First Choice Women’s Resource Centers v. Platkin, whose wonky exterior masks an under-the-radar abortion case. Then they preview the rest of December’s oral arguments, which include cases about the future of the administrative state as we know it, campaign finance, and judicial review of asylum cases. Finally, some legal news, including the dismissal of the James Comey and Letitia James indictments. Favorite Things: Leah: A Battle with My Blood https://www.newyorker.com/culture/the-weekend-essay/a-battle-with-my-blood, Tatiana Schlossberg (The New Yorker) Kate: Death by Lightning https://www.netflix.com/title/81438325 (Netflix) Melissa: Studio Museum in Harlem https://www.studiomuseum.org/; Good Things: Recipes and Rituals to Share with People You Love: A Cookbook https://bookshop.org/p/books/good-things-recipes-and-rituals-to-share-with-people-you-love-a-cookbook-samin-nosrat/f8c21009cd9acbe9?ean=9781984857781&next=t, Samin Nosrat Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more:http://crooked.com/events Buy Leah's book,Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:01Leah Litman?

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• 0:45Leah Litman?

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• 1:30Leah Litman?

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• 2:16Speaker 01

  Mr. Chief Justice, please support.

• 2:20Speaker 01

  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.

• 2:28Speaker 02

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

• 2:58Kate Shaw?

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

• 3:05Leah Litman?

  I'm Leah Litman.

• 3:06Melissa Murray?

  And I'm Melissa Murray. And today, we are going to preview the cases that the court will hear during its December sitting. Then, we will briefly chat about some legal news. But first, we have to do some caveats. You will be hearing this episode after Thanksgiving weekend. And because the team at Strict Scrutiny, we are self-abnegating surely, but we are not that self-abnegating. So, we wanted to have a little bit of a holiday break. And so, we recorded this episode about a week ago, last Tuesday, before Thanksgiving.

• 3:37Leah Litman?

  So, who knows what sort of chaotic, messy news we'll have broken between when we are recording and when this is airing. But unless it's some very particular SCOTUS news, we are really trying to take a holiday so there won't be updates. But you will still get our coverage of all of the hijinks the court is about to do. And to that end, let's get started with previews.

• 3:57Kate Shaw?

  Okay, the first case we are going to preview is one that has actually flown a little bit beneath the radar. It is an abortion case. And yeah, you might not have even realized the court is hearing an abortion case this term, but it is. And that case is First Choice Women's Resource Centers versus Platten. And with us to discuss this case is New Jersey Attorney General Matthew Platkin, AKA "The Platten" in First Choice Women's Resource Centers versus Platten. So, welcome to the show, Matt. It is great to have you with us.

• 4:23Speaker 05

  Thanks so much for having me.

• 4:25Kate Shaw?

  So we wanted to have you on the show to discuss the case, which, as we mentioned, really hasn't been covered as one of the banner cases of this term. And I described it in the opening as an abortion case, but really it's more of a First Amendment slash federal courts case. And I think it's an open question whether the court will apply usual First Amendment or federal courts rules, or whether the court is going to do a little abortion distortion in these areas of law. So maybe before we get to kind of parsing all of that, can you tell us, the case grew out of an investigation into the petitioners, First Choice Women's Resource Centers. What was that investigation about?

• 5:00Speaker 05

  Sure. So the investigation that's at issue here is actually incredibly routine thing that we do pretty much every day with businesses in our state and that states and federal government do every day across the country. So we sent a routine subpoena in 2023 to First Choice about some concerns about statements on a couple of their websites regarding services that they were providing and potentially misleading statements to people seeking medical care, as well as scope of practice issues, all things, again, that we do pretty regularly.

• 5:32Melissa Murray?

  Well, can I interrupt? Does this mean that First Choice is a crisis pregnancy center or similar?

• 5:39Speaker 05

  Yes. And so all we did is we sent them an administrative subpoena, which you have to go to court to enforce. And we do this, again, to businesses across the spectrum, car dealerships, pharmaceutical companies, you name it. As far as we can tell, in 150 years, no court, federal court at least, has ever bought the theory that First Choice is putting forth. So on the one hand, it's not an abortion case. It's about ripeness in Article III, which I know your audience loves, but most Americans really don't tune into. But I think it's obvious that the court wouldn't be hearing this case if they didn't feel some need to take up an abortion case in this context.

• 6:18Leah Litman?

  So let's talk more about, you know, what the issues are or aren't in the case. So you mentioned you issued this routine subpoena. That's a non-self-executing subpoena. You know, there actually aren't penalties for failing to comply with it. You know, not penalties until like a court actually orders its enforcement. And you also suggested this was just like a routine matter of law enforcement. But I think what you fail to realize, Matt, is we are actually living in a post-legal society, at least when it comes to right-wing legal circles. So, I mean, you say the question of the case is about, you know, when you can go to federal court to argue that your constitutional rights are being chilled or infringed upon when you get this kind of subpoena. And the Crisis Pregnancy Center, the petitioner, presents the case as about whether, quote,

• 7:00Leah Litman?

  "the subject of a state investigatory demand who has established a reasonably objective chill of its First Amendment rights," end quote, can file a case in federal court even though those rights might be adjudicated in state court. But you maintain that that's not really what this case is about. So could you elaborate a little on like why that framing kind of misses what's at stake here?

• 7:23Speaker 05

  Yeah, look, I think you're right. You know, conservatives love the rule of law for me, but not for thee dynamic. We're dealing with that across the board. And, and we agree. I, I think every, if you read the briefing in this case, everybody agrees that when there's an objective fear of chilling First Amendment speech, they can go to federal court. We, we, nobody's disputed that. The facts here don't establish that there's an objectively valid fear of a First Amendment chill. And this case is a particularly bad vehicle for it because, as you noted, the trial court in New Jersey State Court never enforced the subpoena. In fact, we narrowed the subpoena, we've engaged in meet and confers, we have no enforcement order from a state court that would trigger the kinds of harms you typically need to go to federal court.

• 8:07Speaker 05

  They just rushed to federal court. And like I said, because of the subject of what they do, they're being treated very differently than the millions of businesses who receive administrative orders. I think by one count, Google receives 50,000 administrative orders every year. So if you want to shut down the federal courts, a good way to do it would be to say every administrative subpoena received by any entity in America can immediately establish Article 3 standing. So this has like pretty significant impacts, depending on how broad the court were to go here.

• 8:38Leah Litman?

  I guess Google should just be a crisis pregnancy center and that would kind of solve its standing problem, right?

• 8:43Speaker 05

  We have enough issues with Google. Let's not give them any ideas.

• 8:48Melissa Murray?

  So as you say, General Plackton, this is a pretty anodyne case. Even though it involves a crisis pregnancy center, there's nothing untoward here. This is just about an administrative subpoena and the circumstances under which one can go to federal court. And one clue that this case might not just be about a wonky question of federal court's jurisdiction is that there are some very noticeable councils of record here who signed on to help first women's here. So the Alliance Defending Freedom, remember Kristin Wagner, listeners, she is the one who argued 303 Creatives. She is on the briefs in this case, as well as Erin Hawley as a council of record. She is one of the individuals who has been associated with the Mifepristone challenges.

• 9:32Melissa Murray?

  She is also apparently maybe in the running to be a federal judge. She also happens to be the partner of someone who does a lot of running through federal buildings on occasion. And we also note that John J. Burch is also on the brief. So these are some pretty heavy hitters for what is really a very anodyne question of whether or not you can go to federal court after receiving an administrative subpoena. So what gives here, General Plackton?

• 9:58Speaker 05

  Well, I think they would argue that, and have argued, that there's somehow going to be a fear or threat of violence or harassment against donors to first choice. The facts just don't support that. First of all, we have explicitly carved out the main vehicle that most people donate to first choice, where they are transparent about it being a right to life organization. It's two particular websites that we have some concerns about, again, that all we asked were some basic and routine questions that we do every single day. And on top of that, there's state law that prohibits us from disclosing this information if we were to obtain information about donors. So they've clearly tried to grab this case as a vehicle to make it something much bigger than it is.

• 10:41Speaker 05

  And unfortunately, this court has seemed willing to buy into that. But again, this is just routine stuff that we do to protect consumers. If we were talking about like a medispa that sells some kind of medical treatment that is based on bogus science and marketed to their consumers as safe, which is something we look at all the time, we would not be in the Supreme Court. I don't think there's any debate about that.

• 11:04Melissa Murray?

  Yeah. And can you just say, in terms of what you're asking, these were just sort of requests for clarification about the nature of the services provided and the representations made on their websites? That's essentially all you were looking for?

• 11:15Speaker 05

  Yeah, there's basically three laws at issue and there are laws that every state has. There's our consumer protection law, you can't mislead consumers about the safety of a good or service that you're selling. There's the charities laws, which says you can't deceive people into giving contributions to something fraudulently. And there's the essentially laws that govern scope of medical practice or other forms of professional standards to make sure that people aren't providing services that are unsafe or that they're not trained or licensed to provide. These are, again, core things. We license 850,000 people in our state. We do this every single day. I've never seen one, nor has this country ever seen one of these non-self-executing subpoenas result in a Supreme Court hearing.

• 11:57Melissa Murray?

  Wow. Give it time. Just early days yet, don't worry.

• 12:02Kate Shaw?

  So, in terms of the kind of potential general impact of this case, can you just talk a little bit about how it would affect states' ordinary investigative powers and their ability to protect consumers, public health, public welfare, if SCOTUS finds a way to rule for the petitioners here?

• 12:20Speaker 05

  Well, it could dramatically upend our ability to protect our consumers. And by the way, not just states, also the federal government. The federal government here, interestingly, is saying like, this should apply to the states, but not us, because nobody issues more administrative subpoenas than the federal government itself. And so, you know, we issue these document requests, which essentially are asking for voluntary cooperation on the front end. If somebody doesn't comply, then we go to court, we get an order, then if they don't comply, we seek contempt and sanctions. That's when the penalties exist. I thought to get into federal court, you had to have a very clear and imminent injury, not something speculative. That was like what I learned, to the extent I learned anything in Cipro. That was pretty, you guys are, your students are learning something, I'm proof.

• 13:02Speaker 05

  But, you know, this would completely upend that. And the volume, potentially, of the amount of subpoenas we're talking about, again, is extraordinary. So, they could try to write something narrow, I suppose, but I don't know how you have a rule that applies to crisis pregnancy centers, but not to every other form of business. And that's what's really concerning, that they are absolutely getting treated. Differently here on what you said is a fairly anodyne case, except for the subject matter that we're talking about. I don't think we'd be talking about this case. Yeah.

• 13:33Leah Litman?

  It's also just wild to me that they're effectively giving their favorite businesses a right to preenforcement review when they couldn't be bothered to even lift a finger when the state of Texas shut down abortion access by denying preenforcement review in Whole Women's Health versus Jackson.

• 13:48Melissa Murray?

  That's the abortion distortion.

• 13:50Leah Litman?

  Yes, right.

• 13:51Melissa Murray?

  That is the abortion distortion.

• 13:53Speaker 05

  And don't forget, they can fight this in state court, too. Which they are doing, and we have narrowed it. No one is disputing that, and no one's disputing that there could be certain facts that would give them the ability to go to federal court in other circumstances. We're just saying, not here. There's nothing they pointed to.

• 14:08Leah Litman?

  That sounds like federalism, though. I'm not sure this court is on board with that in all cases.

• 14:12Speaker 05

  It's true. It's a very tricky topic these days. But, look, they don't have a single declarant who's donation would be chilled based on the supposedly big, bad subpoena we sent. Not one. So I'm not really sure what we're talking about here, other than that the Supreme Court has decided that this is a case worthy of their time. Yeah.

• 14:32Leah Litman?

  Yeah.

• 14:32Melissa Murray?

  Can we pivot for a second from this anodyne matter of state governance to something a little more consequential? New Jersey has been a really integral part of many of the challenges that have been raised against the Trump administration and its actions, many of which have really pushed the legal envelope, including the birthright citizenship EO, which you were a very prominent member of the challenge to. What is the role of the states in this moment where the federal government seems to be doing a lot, and not all of it seems to be by the book?

• 15:05Speaker 05

  So I actually think there's a remarkable consistency between the questions you've been asking me, because the truth is, our role is the same. Our job is to protect our residents from harm, and when somebody breaks the law and hurts people in my state, I am constitutionally obligated to step in to protect them. That is my job. I think that is the job of every state attorney general in the country. With respect to the federal government, it's just been the federal government that has been breaking the law and harming people here. So, I mean, some really clear examples, right? Many that you've covered on your case. You mentioned birthright. They tried to send 12,000 machine guns in violation of state law into our states. We sued them on that. We won. Funding case after funding case. Just the last few weeks, the SNAP cases, weaponizing hunger.

• 15:47Speaker 05

  It's not so shocking to me, frankly, that we've had to step in and that we've been successful. What is shocking to me, and maybe it shouldn't be, is that there's 27 states that have chosen not to when the federal government was breaking the law and starving, literally starving millions of people in their state. New Jersey SNAP, for instance, was 850,000 or so people. I'm in Newark. There are more kids on SNAP in New Jersey than the population of our state's largest city where I am right now. So, I do think, whether it's a crisis pregnancy center, or a car dealership, or an opioid manufacturer, or the federal government, when you're breaking the law and hurting people here, that is our obligation to step in and protect against. And so, I do think there's a systematic consistency.

• 16:28Speaker 05

  Certainly, we've been busy, and I'm proud of that work, and I'm proud that we've kept it up and protecting our residents from harm from this administration.

• 16:36Leah Litman?

  Well, maybe we should leave it there. Thank you so much, General Platten, for joining and for the fight you are bringing on all fronts to uphold the rule of law.

• 16:45Speaker 05

  Thank you so much for having me.

• 16:53Leah Litman?

  Strict Scrutiny is brought to you by Planned Parenthood. The courts matter. The law matters. But so do the people behind the cases, the patients, families, and communities Planned Parenthood serves every day. This year, attacks on reproductive freedom have been relentless. President Trump and Congress have defunded Planned Parenthood, a move that harms the health and lives of 1.1 million patients across the country. Planned Parenthood is in court to keep this disastrous law from taking away care from millions of people, but they urgently need your help. You can rush your gift by visiting PlannedParenthood.org/defend. No matter the size, your donation makes a real difference, helping Planned Parenthood meet this moment and protect access to care when it matters most. Don't wait.

• 17:37Leah Litman?

  Donate today at PlannedParenthood.org/defend. www-plannedparenthood.org/defend.

• 17:45Speaker 06

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

• 18:20Leah Litman?

  Let's turn now to the other cases on the court's docket for December. And there are some big ones. And the basic theme of these big cases is basically the Supreme Court doubling down on its bullshit. So we're going to focus on three other cases that we think exemplify this theme. I'm pretty sure First Choice Women's Resource Centers also reflects this theme and that it's kind of about whether the court will continue to use its hostility to abortion to warp different areas of the law, as they used to accuse the court of doing, by the way, for protecting abortion rights, pot, kettle, et cetera. But the next case that fits this bill is Trump versus Slaughter, where the court seems poised to say, "Look how well the unitary executive theory has aged over the last 12 months.

• 19:03Leah Litman?

  Let's go all in on that, baby, YOLO." As I said, it's really doubling down on their shit sitting.

• 19:11Melissa Murray?

  So Trump versus Slaughter, of course, is the case where the Supreme Court seems poised to decide whether to formally admit that they have overruled or maybe are in the process of overruling Humphreys Executor. Humphreys is the near-century-old decision that upheld a law limiting the president's authority to remove the heads of bipartisan, expert, independent commissions. In that case, it was the Federal Trade Commission. In this case, President Trump is purporting to remove, and the court on the shadow docket allowed him to remove, a commissioner of the FTC. So the symmetry could not be more perfect. That commissioner, Rebecca Slaughter, of course, sued, and now this case is back before the court on the merits docket. And when we say

• 19:55Leah Litman?

  That this question is about whether the court will formally admit that they are overruling Humphreys, or whether they'll just continue to narrow it or ghost it. We have to do some explaining.

• 20:05Kate Shaw?

  All right, and I'll try to keep it succinct, but a little background. As Melissa said, Humphreys executor is a nearly century old case. It's from 1935. It is a foundational precedent. So it's out there. But then, more recently, in a series of cases before the beginning of the second Trump administration, SCOTUS had made Humphreys into an increasingly narrow exception to a general rule under which the president gets to basically fire anyone he wants, rather than, as Humphreys was originally understood, as a rule that affirmatively empowers Congress to create and empower agencies with some degree of independence from the president, including protection against being fired at will by the president. Okay, so just a few years after Roberts and Alito were confirmed to the court in the

• 20:48Kate Shaw?

  case Free Enterprise Fund versus Public Company Accounting Oversight Board, the court invalidated a double layer of for cause removal protections on members of this Public Company Accounting Oversight Board. Basically, these were members who could be only removed for some good reason by members of the Securities and Exchange Commission, and those commissioners themselves could also only be removed for cause or for some good reason, i.e. not at will, or so the court assumed by the president. So SEC commissioners protected against firing at will, and members of this oversight board also protected against being fired at will. The court said that was too much insulation from presidential control.

• 21:29Leah Litman?

  Then, the court got really creative and warped Humphreys executor into almost nothingness when it adopted a senseless arbitrary limitation on Humphreys. The idea that Congress could only insulate the heads of multi-member commissions from presidential removal, not the people who are the singular head of an agency. Why? Well, in Free Enterprise Fund, the logic was basically two is more than one, but in this case, Seela Law versus the FBB, the logic was that one is more than five or seven. As we said last week, boy math.

• 22:08Kate Shaw?

  I've never really put the insanity of those cases together in that beautiful equation, Leah, but yes, that was.

• 22:15Melissa Murray?

  I tried. You know, I started out college as a math major.

• 22:19Kate Shaw?

  Wow, well, it shows. It really just showed in that theorem you just offered us.

• 22:25Melissa Murray?

  Proof, if you will.

• 22:28Kate Shaw?

  So, all right, so the narrowing of Humphreys has clearly been driven by the rise of the unitary executive theory, the UET, as it's sometimes known in shorthand. And I'm just letting you, listeners, into a little bit of our, I don't know, show tradecraft, which is we sometimes refer in lube your moments to the UET as the UTI of presidential power. Wait, sorry, Melissa, you saved me from sharing this.

• 22:52Melissa Murray?

  I literally cannot see UET written and not think UTI. And when you do it like that, it kind of does make sense. It's a little irritating, it bothers you a lot, and it makes you really uncomfortable.

• 23:03Kate Shaw?

  So we've been referring to it this way, just among ourselves for quite some time, and just as a special Thanksgiving treat, dear listener, now you have to think about it too, but don't think about it too hard. Anyway, the unitary executive theory is the idea, really peddled by the Reagan administration, at least in its inception, but the idea is that the Constitution vets all executive power in the president, and therefore, the president must have complete control over everyone in the executive branch who exercises executive authority. And most things agencies do are at least in part executive. So the president, under this theory, gets to control everyone, and the ability to fire at will is central to that control. This idea has operated to displace congressional statutes that purport to limit the president's authority over some people or offices within the administrative state.

• 23:48Kate Shaw?

  And if all that sounds kind of complicated, I think it can be distilled to its essence, which is, this is a theory that allows the president to basically act above the law.

• 23:56Melissa Murray?

  And this court, obviously, thinks that's super awesome. At least when the president is a Republican. The unitary executive theory gets ghosted during Democratic administrations, but it's back in full flow.

• 24:07Leah Litman?

  Well, no, no, it is reconceptualized as

• 24:10Melissa Murray?

  Thank you.

• 24:11Leah Litman?

  All executive power is united in Republican presidents. So it is unitary across Republican administrations, right? Democratic administrations don't get any of it.

• 24:22Melissa Murray?

  Thank you for that helpful clarification. Not only are you a math major, but you are also a philosopher, if you will, a political theorist, all of the things.

• 24:32Kate Shaw?

  She contains multitudes.

• 24:33Melissa Murray?

  I dabble. Anyway, so does the court. So you're in great company. Over the last year, the court has really decided to go all in on the unitary executive theory. And in doing so, it has decided to gut slash and ghost Humphrey's executor. So the court allowed the president to fire commissioners of the National Labor Relations Board and the Merit Service Protection Board in violation of laws that insulated those commissioners from presidential removal. That was their decision in Trump versus Wilcox, which did not even mention Humphrey's executor. That was the ghosting. They stayed a lower court order that had prevented the president from removing the commissioners in violation of federal law.

• 25:13Leah Litman?

  And this, that is the ghosting, also happened in the case where the court fashioned the bespoke exception for the Federal Reserve Board. So the court pronounced that the president has to be able to fire everybody in the executive branch and agencies who exercise significant executive power, except for governors of the Federal Reserve Board, because, quote, "The Federal Reserve is a uniquely structured quasi-private entity that follows in the distinct historical tradition of the first and second banks of the United States," end quote, AKA word salad.

• 25:42Melissa Murray?

  Of course, none of that word salad stopped the president from trying to fire a Federal Reserve governor, one Lisa Cook. The president and Bill Pulte basically got a cauldron up and decided to cook up some mortgage fraud allegations or whatnot. But that case brought by Lisa Cook isn't going to be heard until next January. So put a pin in that one.

• 26:04Kate Shaw?

  A pin in it, but it certainly lurks over, I think, all the proceedings in this case. So Wilcox was one of the cases where Justice Kagan let some of her internal screaming spill onto the pages of the US reports. And for that, in this holiday season, we are thankful. So let's just read a couple of quotes from Kagan's dissent. Quote, "The current president believes that Humphrey's should be either overruled or confined, and he has chosen to act on that belief, really to take the law into his own hands? This court effectively blesses those deeds."

• 26:37Melissa Murray?

  She went on to say, quote, "The majority's order allows the president to overrule Humphreys by fiat." Big, if true, probably true. She also noted, quote, "Today's order favors the president over our precedent." Definitely true. The court then continued its cannibalization of Humphreys when it later stayed a lower court decision that blocked the president from removing commissioners of the Consumer Product Safety Commission in violation of federal law. In that case, the court put out some more word salad to explain why they thought lower courts had to follow their dictates. And here's a big quote, "The application is squarely controlled by Trump versus Wilcox, even though, quote, 'Our interim orders are

• 27:20Melissa Murray?

  not conclusive as to the merits, they inform how a court should exercise its equitable discretion.'" Fellas, what now?

• 27:29Leah Litman?

  It's like, what do you say? So much word salad, like, controlling but not conclusive, like, it's law-ish.

• 27:37Melissa Murray?

  An interim order, which is not conclusive, but you better follow it.

• 27:41Leah Litman?

  Exactly, but is controlling. You know, Justice Kagan penned another epic dissent in this Consumer Product Safety Commission case, calling the majority opinion and its reasoning turtles all the way down. It just struck me that the shadow docket orders in these unitary executive theories are like if Kavanaugh listicles were just squished together into sentences, like, they're just words.

• 28:02Melissa Murray?

  Magnetic poetry.

• 28:03Leah Litman?

  Right, exactly, exactly.

• 28:05Melissa Murray?

  On the fridge.

• 28:05Kate Shaw?

  Yes, I actually have to say, this is making me wonder. So, I think we have mostly assumed that Roberts is the author of these unsigned orders, but maybe it's actually Kavanaugh. As I think about it, I wonder. Now, I can't imagine the chief giving Kavanaugh that power, but maybe he's like, redlined them and sort of gone over the chief's orders and like, made them sing the way he thinks they do.

• 28:23Leah Litman?

  Or the chief puts them up as refrigerator magnets and he lets Brett play with them a little and rearrange some of the words. He likes to put the pretty colors together.

• 28:35Kate Shaw?

  Have you started eating pumpkin pie already, Leah? I feel like we have this, we have, there's like, there's a sugar high energy.

• 28:40Melissa Murray?

  The energy is chaotic.

• 28:41Kate Shaw?

  I like it.

• 28:44Melissa Murray?

  I do like that we are talking about word salads as we prepare to think about side dishes. These are the side dishes for their entree of absolutely gutting Humphrey's executor.

• 28:54Kate Shaw?

  It's true.

• 28:55Melissa Murray?

  Turkeys, turkeys all the way down.

• 28:56Kate Shaw?

  Well, then wouldn't these be like amuse-bouches or appetizers? I'm not sure. Anyway.

• 29:01Melissa Murray?

  Maybe they're hors d'oeuvres, like, like, like a cheese straw.

• 29:04Kate Shaw?

  Okay, that's good, too.

• 29:06Melissa Murray?

  Light airy, not a lot to it.

• 29:09Kate Shaw?

  No, not a lot at all. So the court in these shadow docket orders, right? Like moves and gestures and, you know, sort of beat poetries, but hasn't actually taken the big swing at Humphrey's executor. And then the president, obviously reading the room, decided to just do the thing and fire an actual commissioner of the FTC, basically forcing the question on the court, right? It had only kind of danced around this question of the future of Humphrey's executor, although it has obviously sent strong signals. But here the court has to decide whether to actually and formally overrule Humphrey's executor. So ladies, what do we think? Is the court going to just do it?

• 29:47Melissa Murray?

  This question doesn't have to be asked. This question has been asked and answered.

• 29:50Kate Shaw?

  Yeah.

• 29:50Melissa Murray?

  Like Humphrey's executor, we hardly knew ye.

• 29:53Kate Shaw?

  Yeah.

• 29:53Melissa Murray?

  Justice Kagan told us the writing was on the wall in Wilcox. So she said, quote, "The impatience to get on with things, to now hand the president the most unitary," meaning also the most subservient administration since Herbert Hoover and maybe ever. Just note that for the history majors, her invocation of Herbert Hoover is a fucking plus.

• 30:15Kate Shaw?

  Yeah.

• 30:15Melissa Murray?

  Like Herbert Hoover is like the worst president ever. Like Hooverville's, the Great Depression. I mean, she's, she's putting it out there. You know where this is going.

• 30:24Kate Shaw?

  Well, and it's also Hoover actually put Humphrey on the FTC and Roosevelt was like, I don't want this guy. I don't want to be saddled with this kind of reactionary nut, which Humphrey kind of was, but the court was like, no, you're stuck with him.

• 30:35Melissa Murray?

  No one was saying it was wrong to try and get rid of Humphrey. It was just wrong.

• 30:39Kate Shaw?

  Right, right.

• 30:40Leah Litman?

  Right.

• 30:41Kate Shaw?

  Yeah, and they said that unanimously.

• 30:42Leah Litman?

  The sentiment was right.

• 30:43Kate Shaw?

  Right.

• 30:43Leah Litman?

  The methods were wrong.

• 30:45Kate Shaw?

  Well, and also, like, I'm sorry, FDR just figured it out. He was not so thwarted in his ability to do the presidenting by the presence. I mean, Humphrey died during the litigation, so he wasn't actually saddled with him for all that long.

• 30:55Leah Litman?

  That was how it happened.

• 30:56Kate Shaw?

  Right.

• 30:57Leah Litman?

  But he would have.

• 30:58Melissa Murray?

  What are you saying about FDR, Kate?

• 31:01Kate Shaw?

  He was a stroke. He was in his 70s. I'm saying, I'm insinuating nothing about FDR. But it is, yeah, I mean, she is obviously invoking history here. And it just, the idea that every president has been intolerably constrained by these multi-member boards in their ability to do the executing of the laws is laughable. And yet, I think that's what they are going to conclude.

• 31:23Leah Litman?

  Well, really, when you look at the 12, last 12 months, Kate, the problem is Trump has just been so constrained.

• 31:29Kate Shaw?

  So constrained, yeah.

• 31:30Leah Litman?

  Right? Like, he, he needs to be unchained.

• 31:33Melissa Murray?

  So, an unfettered, free-range president is clearly exactly what we needed this holiday season. But I just want to remind everyone who did not listen to our Disaster Piece Theater series, we told you that in Project 2025, the Republicans called on the next Republican DOJ to overrule Humphrey's executor, to actively seek the overruling of Humphrey's executor. So, it was written, we told you that this was coming. And so, I don't think we need to debate whether Humphrey's executor is on the chopping block. It obviously is, it's just a question of when.

• 32:08Leah Litman?

  I mean, another question is, how many bad puns are we going to have to endure? Like Humphrey's executor executed, or court slaughters precedent, et cetera.

• 32:18Melissa Murray?

  I love those.

• 32:19Leah Litman?

  Okay.

• 32:20Melissa Murray?

  Puns are the lowest form of humor, but I'm with them.

• 32:21Leah Litman?

  Well, no, look, I'm, I'm not above a pun, right? Humphrey's executor hardly even know her, right? Like, a lot. But, you know, there is, I, I don't know, I just feel like we're gonna have to endure too much there. And yet, somehow, all of this, the bad puns, the obliteration of a nearly centuries-old precedent that has undergirded the modern administrative state and its pockets of independence, of expertise, isn't even the biggest threat or story in this case because the court chose to add a second question. Presented on its own, since obviously it didn't think just overruling Humphrey's executor was interesting enough, they added a second question, and that second question is, quote, "whether a federal court may prevent a person's removal from public office, either through relief at equity or at law."

• 33:05Kate Shaw?

  Okay, this is a huge question because its implications could extend far beyond the removal of heads of independent agencies, beyond the removal of governors on the Federal Reserve Board, and maybe extending to any case involving any wrongful termination of a federal official. Think about the cases challenging mass firings at the Consumer Financial Protection Bureau, Department of Education, USAID, probationary federal employees. Obviously, the list is very long. Now, if history and tradition matter to this court, as they have said.

• 33:35Leah Litman?

  I like how that provoked Melissa's laughter immediately.

• 33:39Kate Shaw?

  Bring the sweet summer child on. Yeah, I mean, look, the answer, though, is clear. I think it is important to remind of that. Courts have been ordering reinstatement of wrongfully terminated employees, including in the executive branch for a very, very long time. Founding era treatises are replete with affirmations that this is something courts have the power to do. And yet, obviously, we would be hopelessly naive to assume that that fully answers the question. And if the court somehow, having injected this question into the proceeding, somehow finds that federal courts lack this power, so for the first time announcing this essentially plenary removal power on the part of the president, and an inability of federal courts to provide any remedies even of unlawful removals,

• 34:21Kate Shaw?

  that would essentially give the president the power to violate many, many federal laws that govern these offices in the executive branch, allow the president to install lackeys and hacks, I mean, even more than he already has, and prevent federal courts from doing anything about it apart from maybe allowing damages or back pay to terminated employees, but that would be it, and obviously, small comfort when you're trying to run a government.

• 34:44Leah Litman?

  So, two thoughts about that. One, that sounds weirdly like a species of immunity, so that seems normal for this court. Two,

• 34:56Melissa Murray?

  The court has been doing that already, sort of crippling or hobbling the enforcement apparatus of federal courts to actually provide remedies and do law, except for itself. Right? And so I think that's just a constant theme. Like, we can do stuff, you guys can't do anything, and the president can do whatever he wants. I mean, like, they're two sort of emperors in this line of thinking, and one of them is the president, and one of them is the Supreme Court. Anyway, all to say, this is the sitting where the court doubles down on its BS. So let's go to another case. Again, I think this is another exemplar of this theme. The case is called National Republican Senatorial Committee versus the

• 35:39Melissa Murray?

  Federal Election Commission, and it is a challenge to one of the last remaining shards of federal campaign finance law. So guess what will happen? The question that the court is poised to ask is, isn't it awesome to allow the super rich to have more power to influence elections and government? Can we do more of that? And the answer will undoubtedly be, of course you can.

• 36:03Leah Litman?

  Yeah, because these guys looked at the 2024 presidential election and the first year of the second Trump administration and thought-

• 36:10Melissa Murray?

  And the inauguration, where all the rich guys showed up.

• 36:12Leah Litman?

  Including the inauguration, including, you know, the crypto meme dinners, including, write the pardons for cash, and thought buying access and influence-

• 36:22Melissa Murray?

  The Amazon mini-series on Melania.

• 36:24Leah Litman?

  That's not corruption. That's just awesome.

• 36:29Melissa Murray?

  Not even a tip, just awesome.

• 36:34Melissa Murray?

  That's just government, folks. And again, I have to say, the jokes just write themselves because we are in November 2025, which is the three-year anniversary of the New York Times investigative piece by Jodi Kantor and Joe Becker detailing the way that conservative operatives literally bought a whole ass building across the street from the court so that their parachiks could have totally casual, not at all planned run-ins with the justices from time to time. And the piece also noted that the same parachiks decided to infiltrate the Supreme Court Historical Society so that they might have even more casual meet-cutes with the justices. So when you're speaking of access and influence, how much is too much, really?

• 37:18Leah Litman?

  The limit does not exist.

• 37:22Leah Litman?

  Look at that. Limit does not exist. And, you know, that that meet cute backdrop is helpful context for this case and really the entirety of the Supreme Court's campaign finance and political corruption jurisprudence. But we should probably back up a little to explain the particular provision at issue here and how it relates to the court's previous campaign finance decisions. So the provision at issue in this case is what's known as an anti-coordination limitation. Basically, it restricts the ability of entities, here specifically political parties, to spend money in coordination with a political candidate. Basically, the provision prevents parties from, you know, checking with a candidate before they spend their own money to make sure that it's not going to duplicate something the candidate might also be doing.

• 38:04Kate Shaw?

  So unlimited coordination would allow parties and candidates to essentially pool resources for expenditures, that is, right, the money they spend generating their own political ads and other kinds of things that candidates spend money on. And that would be a big problem because it would effectively allow individuals and entities to circumvent the contribution limits that do exist, kind of amazingly are still intact when it comes to actual campaigns. So these limits restrict the amount of money that someone can give directly to a candidate and to a party, right? There's the limits are much higher for parties candidate, individual candidate limits are $3,300 right now. They go up every other year. Um, to a party, it's over $40,000. And that means, right, that you can give a lot more money to a party.

• 38:47Kate Shaw?

  And if that money is going to go directly to a candidate, well, you see.

• 38:51Leah Litman?

  Boom, goes the dynamite.

• 38:54Leah Litman?

  Let's give a little more context. The contribution limits effectively protect against quid pro quo corruption. So the idea here is that if you limit the amount that a single individual can give to a candidate, that prevents corruption. They're not basically flushing this candidate with cash in exchange for whatever the donor wants. So right now, the coordination limits prevent people from doing end runs around those individual contribution limits. They don't allow individuals to give money to a party that could then be given to a candidate by allowing the candidate to provide input and direction as to how that money is spent. But if there is no contribution limit, the concern is that you're effectively allowing individuals to give many, many,

• 39:37Leah Litman?

  many times over the individual contribution limit to a candidate. And that actually would facilitate corruption. So it's all kind of a backdoor.

• 39:46Kate Shaw?

  So that would increase the potential for corruption. But parties do still have limits, just like campaigns do still have limits. You would allow a degree of circumvention, but not complete disregard of limits. And that, I think, brings us to what is the kind of potential actual breadth of the blast radius of this decision. So after several Supreme Court decisions, including Citizens United versus FEC and McCutcheon versus FEC, those are both, you know, US Supreme Court opinions and then one DC Circuit decision, there are no limits on the amount of money that individuals can give to political action committees engaged in independent expenditures. That is, to make PACs like OWN Ads and messaging.

• 40:26Kate Shaw?

  But after this case, what if courts say you can't place coordination limits on candidates and parties, but you also can't place coordination limits between candidates and independent expenditure committees? That would allow individuals to pump unlimited amounts of money, not tens of thousands of dollars, but who knows, tens of millions of dollars into committees that could then functionally go to individual candidates.

• 40:54Leah Litman?

  Once again, sounds awesome, but you know, like, the court seriously seems to be looking around at the last election, looking at the last year of the administration, which has seen companies shelling out donations to the inauguration in order to get access, people purchasing meme coins and seats at a crypto dinner in order to get access, countries and foreign leaders investing in the Trump family crypto business while landing favorable trade agreements or foreign policy concessions. And the court seems to think no real problem here with allowing the rich to purchase access and influence. That's what the First Amendment requires.

• 41:28Melissa Murray?

  Tis the season to buy a candidate.

• 41:30Leah Litman?

  Yeah.

• 41:31Melissa Murray?

  You can just put it in your stocking. It's the gift everybody wants. Anyway, there is a possibility that the court does not decide to go YOLO on this last remaining campaign finance regulation. Ramon Martinez of Latham & Watkins has been appointed, a court-appointed amicus in this case, and Tate has written all about the circumstances under which an individual might be appointed by the court to represent a particular position. But Martinez is arguing that there are serious jurisdictional issues that were not considered by the lower courts or raised by the party at the certiorari stage. And specifically, he notes that there's actually no live controversy here and no prospect of this regulation being enforced because the president and the executive branch, and

• 42:15Melissa Murray?

  don't forget, the president is the executive branch, agree with the petitioners that the challenge provision is actually unconstitutional. This might also be because at least one of the petitioners is in the executive branch right now, but don't let that bother you. Just let it wash over you, just a detail. Martinez also notes that neither of the petitioners here, this is what I was getting at, Vice President J.D. Vance and Steve Chabot, a former GOP congressman from Ohio, neither is an active candidate for federal office right now. Accordingly, he argues that judicial restraint warrants dismissing this case as moot or alternatively digging it as having been improvidently granted. Now, I'm just going to say, this is so tantalizing for this court.

• 43:00Melissa Murray?

  I'm not sure if they will take this off-ramp, and I'm not actually sure I even buy all of these arguments. I truly believe that we are one forgotten wedding ring, or maybe one pair of Erica Kirk leather pants, away from J.D. Vance announcing his presidential bid for 2028. But I do agree with you, Kate, that this would be a very compelling off-ramp that the court could take and that would allow it to look very judicious.

• 43:25Leah Litman?

  CNN did report that Turning Point USA CEO Erica Kirk said her organization's efforts to support a potential J.D. Vance presidential campaign in 2028 are, quote, "in the works." So we shall see.

• 43:39Melissa Murray?

  Running my fingers through my hair, thinking about that one.

• 43:42Kate Shaw?

  But back to the case of for a minute, though, I do think Roman Martinez is a very good lawyer, and I also do think this a little bit. I think it sort of relates back to our conversation with Attorney General Platten, which is there's just like no threat of enforcement. The executive branch has said like categorically, we think this is an unconstitutional provision. We're not going to enforce it. There's no actual or imminent threat of enforcement like Article three requires. And so it would be, I think, kind of preposterous for the court to reach out and decide this case anyway. And so maybe they could win some points by just like holding their fire till, I don't know, there's some actual like there's a Democratic administration trying to enforce this campaign.

• 44:21Leah Litman?

  Right. Well, but there's still not going to be enforcement. But in any event, I think there's a decent chance they decide not that they would ever uphold this regulation if forced to decide on its constitutionality, but I think they may decide we don't need to do this today. And so we'll buy Martinez's argument.

• 44:36Melissa Murray?

  All I'm saying is of the arguments I think are actually reasonable here, the fact that the president and the executive branch have no interest in enforcing it, that seems right. The idea that JD Vance is not contemplating a presidential run seems

• 44:49Kate Shaw?

  Yeah.

• 44:50Melissa Murray?

  Slightly less probable.

• 44:52Leah Litman?

  Yes.

• 44:52Melissa Murray?

  Yes.

• 44:53Leah Litman?

  So the fourth case rounding out this thematic assortment of cases in the December sitting is Urias Oriano versus Pamela Jo Bondi. So here, the court seems poised to say, isn't it super great allowing the president to hypercharge immigration enforcement and violate the civil rights and protections for non-citizens through a politicized executive branch that he has plenary control over?

• 45:15Kate Shaw?

  Yeah. Yeah. And in a word, the court will probably say yes, but let's talk a little bit more about what's actually at issue in the case. So the precise question.

• 45:21Melissa Murray?

  Because they bought so much goodwill getting rid of the

• 45:24Leah Litman?

  Exactly. Just missing that case on standing ground.

• 45:27Kate Shaw?

  We can really yolo in this one. That's right. So the case is about an individual applicant's eligibility for asylum under the federal immigration laws. So under federal law, to obtain asylum, a non-citizen has to establish a well-founded fear of persecution. The question here is about how federal courts review a Board of Immigration Appeals determination that a set of undisputed facts does not rise to the level of persecution. So federal law structures judicial review. So the way the federal courts actually review the output of the immigration system differently for questions of law versus questions of fact. So the law requires judicial deference on questions of fact, but the statute doesn't require deference on questions of law.

• 46:07Melissa Murray?

  Which means that the question here is how the court is going to treat a determination that a set of undisputed facts doesn't rise to the level of illegal persecution. Would that be a legal determination that the federal court gets to review, exercising its own independent judgment? Or is it a factual determination which would require the courts to give significant deference to the Board of Immigration Appeals, an administrative tribunal? Hmm.

• 46:35Kate Shaw?

  In some ways, this case will test the boundaries of the court's decision in Loper Bright. That's the decision overruling Chevron, the case Chevron, that is, that had said that federal courts have to give deference to agencies' reasonable interpretations of federal law. Loper Bright said, no, no, that's wrong. It is the province and duty of the judiciary to say what the law is. That's Marbury, but Loper Bright relies on it. But even as Loper Bright said courts have to determine the best interpretation of the law, Loper Bright also seemed to recognize, although the scope of that principle is unclear, the court recognized that Congress can delegate certain policymaking decisions and certain kinds of discretion to agencies. So this decision may provide some insight into when, whether, and in what kinds of cases the court might say those are instances where Congress

• 47:20Kate Shaw?

  has permissibly vested more authority and discretion in administrative agencies versus courts.

• 47:33Leah Litman?

  Strict scrutiny is supported by the Southern Environmental Law Center. Right now, the Trump administration is trying to dismantle our bedrock environmental protections. But here's the truth. No one voted for dirty air and water. The election was not a mandate to contaminate our water with forever chemicals, pollute our air with hazardous emissions, or trade away our public lands to the highest bidders. That's why the Southern Environmental Law Center is fighting back to protect our bedrock environmental laws and safeguards in the courtroom and the halls of government. With four decades of experience and more than 130 legal and policy experts, SELC is standing alongside their partners and the people across the South to protect the healthy environment we all depend on. Because clean air, clean water, and a healthy

• 48:18Leah Litman?

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

• 48:40Speaker 07

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

• 49:26Melissa Murray?

  Let's now run through some of the other cases that the court is going to hear during the December sitting. So first up is Hamm versus Smith. This is a very significant death penalty case about so-called Atkins challenges. Atkins versus Virginia is a 2002 decision that prevents states from imposing a capital sentence on someone with severe intellectual disabilities, although it does allow the states to define and determine who has an intellectual disability. So, under Alabama law, someone making an Atkins claim that they have an intellectual disability has to establish, among other things, that they have an IQ of 70 or less. The question in Hamm is how should courts consider the cumulative effect of multiple IQ scores in assessing an Atkins claim?

• 50:10Melissa Murray?

  The defendant in Hamm, who prevailed below, scored in the mid to low 70s on multiple tests. And the district court and the Court of Appeals said, based on the standard margin of error, those scores might mean the defendant would qualify as mildly disabled. And so, the court will decide, in the scope of those kinds of Atkins challenges, whether that standard is permissible.

• 50:32Leah Litman?

  So the court is also going to hear Olivier versus Brandon, a case about a significant federal courts doctrine called prize or heck that establishes the set of rules about when you can challenge state and local criminal processes under section 1983, the general civil rights statute, rather than habeas law or post-conviction law. And that question matters because there are just way fewer restrictions on litigating challenges under section 1983 than there are in habeas proceedings. In habeas, there's deference to legal determinations, limousine evidentiary hearings and more. So the petitioner here was arrested and fined for violating an ordinance targeting protests outside a public amphitheater. He argues this violates his religious freedom because he is a Christian who feels called to share the gospel. And he wants an injunction against the enforcement

• 51:17Leah Litman?

  of the state law in the future. And the question here is whether his prior conviction under the law prevents him from bringing this suit as a 1983 action because it's a challenge to a criminal process that should instead go to habeas. There's just no way this matter belongs in habeas proceedings. Like, he could never have filed for federal habeas relief. There was a dispute, however, in heck, you know, one of the cases that's at the foundation of prize or heck between justices Scalia and Souter about what heck means. And Justice Souter had wanted it to be an inquiry about how to reconcile the statutes, this general civil rights statute and the habeas statutes, whereas Justice Scalia had wanted something more formalist that just looked at analogies to common law claims that would have said anything that necessarily calls into question a conviction

• 52:02Leah Litman?

  has to be brought in habeas unless or until there's been a favorable termination. So the court might say more about what kind of inquiry courts should conduct in figuring out whether cases can be litigated under the general civil rights statute.

• 52:15Kate Shaw?

  So a federal court's heavy sitting, to be sure. Two last cases we will briefly mention. One, FS Credit Corp. versus Saba Capital Master Fund, a case involving a question whether the Investment Company Act creates a private right of action. And finally, Cox Communications versus Sony, which is about the standard for establishing liability based on contributory copyright infringement, and also the standard for establishing willfulness under copyright law, which makes defendants eligible for additional penalties. So sorry for the cursory treatment. Copyright stands. We will try to do this one justice later.

• 52:46Melissa Murray?

  Copy that. Finally, a smattering of muse to close things down. We have an update from Clown Town, otherwise known as the Eastern District of Virginia. A federal judge has dismissed the indictments of Jim Comey and Letitia James on the ground that the prosecutor who obtained those indictments, and I just want to say, I say prosecutor with air quotes, one Lindsey Halligan was unlawfully appointed and therefore was not eligible to secure said indictments. I'm just going to say, you know, things are not going to go well for the prosecution when the court opens its decision with the following line. Quote, "On September 25th, 2025, Lindsey Halligan, a former White House aide

• 53:30Melissa Murray?

  with no prior prosecutorial experience, appeared before a grand jury in the Eastern District of Virginia." That's all they wrote, folks. No, I'm just kidding. The opinions then go on to replicate in full the Truth Social post that the president posted that was directed to Attorney General Pamela Jo Bondi, asking her to, actually telling her to indict Jim Comey and Letitia James and to appoint Lindsey Halligan to get the job done.

• 53:57Kate Shaw?

  Yeah. So that was, you know, it was, I think, atmospherics, but on the kind of substantive legal analysis, I think the opinion was very tight. So it concluded that the appointment violated a statute that governs interim appointments. So that statute contemplates that an attorney general can make an interim appointment lasting 120 days. Here, the attorney general did that by appointing Eric Seabird, the guy who refused to be the mayor of Clown Town and seek indictments of Comey and James. And what the court concluded was that is a kind of use it or lose it power. The attorney general gets to appoint a person for up to 120 days. And when that 120 days expires, only courts in that jurisdiction can make or extend that appointment. So they can extend the Seabird appointment, which is what happened here,

• 54:41Kate Shaw?

  or they can make a different appointment. But there's not some freestanding power of the attorney general to make.

• 54:47Leah Litman?

  Successive appointments of different people under this statute.

• 54:51Melissa Murray?

  The opinion was by Judge Cameron McGowan Curry. She is a member of the Court of the District of South Carolina. And that is because all of the judges in the Eastern District of Virginia, which had extended Seabert as the US Attorney after his 120 days expired, were conflicted out because they by rights are the ones who get to appoint the new interim US Attorney there. In any event, Judge Cameron McGowan Curry definitely knew her audience. And it was not the citizens of Clown Town. Throughout this opinion, there are citations to Justice Scalia's book on statutory interpretation with Brian Garner. There is also a citation to an OLC memo by, wait for it, one Samuel A. Alito. There are cites to several Justice Thomas's concurrence.

• 55:36Melissa Murray?

  Apparently, we do need to talk about Justice Thomas, as well as cites to none other than Judge Eileen Cannon and more. This is how you do it, folks. We are all Judge Jerry Smith now. So I think we would only be Judge Jerry Smith if there were some digs at George Soros. Like, this opinion, like, is-

• 55:58Leah Litman?

  And Gavin Newsom.

• 55:59Melissa Murray?

  Right, like, is actually well cited and well reasoned and sounds in the register of law.

• 56:06Leah Litman?

  And-

• 56:06Melissa Murray?

  No, but that opinion by Judge Smith did know where this was going.

• 56:11Leah Litman?

  That's fair.

• 56:11Melissa Murray?

  Knew the audience.

• 56:12Leah Litman?

  And did cite to Alito repeatedly.

• 56:15Melissa Murray?

  Yes, they share that.

• 56:16Leah Litman?

  Okay.

• 56:16Melissa Murray?

  Yes.

• 56:17Leah Litman?

  Yes.

• 56:18Melissa Murray?

  Read the room. They were reading the room.

• 56:20Leah Litman?

  But on the legal opinion, which is Judge Curry's opinion, the court had to address the argument that Attorney General Pamela Jo Bondi had ratified the indictments via a squirrely document that Bondi posted on Halloween. Like, boo? In which, you know, in this document, Bondi just declared she was exercising her authority to also appoint Halligan as a special attorney as of September 22nd, and thereby ratifying her employment as an attorney of the DOJ going forward. Basically, I am a river. You are my canyon. I mean to flow through you. I had really wanted to-

• 57:00Melissa Murray?

  Desire, desire.

• 57:01Leah Litman?

  I had really wanted to use that line-

• 57:03Melissa Murray?

  Desire indictment is what I desire.

• 57:05Leah Litman?

  With John Lovett, but I saved it for you all. Just to have you know. Anyways, thank you, Leah. You're welcome. In rejecting this theory, the district judge noted that the government cited no authority allowing the attorney general to, quote, "reach back in time and rewrite the terms of a past appointment." The judge also paused over the implications of the government's theory, which the judge described as extraordinary. It would mean the government could, quote, "send any private citizen, off the street, attorney or not, into the grand jury room to secure an indictment so long as the attorney general gives her approval after the fact." That cannot be the law. That was such a massive drag of Lindsey Heligan. Very elegantly done, but a drag nonetheless. You're basically some private citizen off the street, barely an attorney. Not even a lawyer.

• 57:50Leah Litman?

  Not, maybe not even a lawyer. Attorney or not. Yeah, that was a little gratuitous. Yeah. Right. I just say, like, the fact that Bondi never appointed Heligan as a special attorney from the outset, it's like, these people had no plan B. Like, they are incapable of planning and dotting their i's and crossing their t's. And, yes... Don't manifest them getting better at that. Like, that's the only thing literally saving us. They can't read. They're incapable of learning. Right? I just want to point that out.

• 58:21Kate Shaw?

  From your lips, I hope that's right. Okay, so, last thing to say about this opinion. It was a dismissal without prejudice. Usually, if an indictment is dismissed without prejudice, that means it could be refiled so long as the statute of limitations hasn't expired. But the statute of limitations has expired here. That's part of the reason they were so rushed in trying to get this done, because they were facing the expiration of the statute of limitations in the Comey case. That's actually not true in the James case, but definitely in the Comey case. So, there is a question whether they can refile that turns on the meaning of a federal law that gives the government six months to refile if an indictment is dismissed for any reason. But that statute doesn't apply if the invalid indictment was annulity. And I think there were pretty strong signals in this district court opinion that the judge

• 59:05Kate Shaw?

  believes that this indictment is annulity, and so this six-month entitlement just is inoperable. But I am sure there will be some debate about that question.

• 59:20Leah Litman?

  Strict Scrutiny is brought to you by Earth Justice. Coming right off Thanksgiving weekend, we should all be figuring out ways to continue to express our thanks for things like Planet Earth. And one perfect way to show your appreciation for Planet Earth is by supporting Earth Justice. Earth Justice is suing the Trump administration to fight their attacks on the environment. They have 200 of the best environmental attorneys in the country. Some of my favorite lawyers are at Earth Justice. You've probably heard them on the show before. Earth Justice has incredible environmental litigators, and they're defending our climate, our public lands, and the rule of law. In every case, they represent their clients free of charge, so they rely on your donations to fund their lawsuits. And Earth Justice needs your support to scale up and meet the threat of the Trump administration.

• 1:00:05Leah Litman?

  We invite listeners of Strict Scrutiny to help Earth Justice take on the fights ahead. All gifts are tax deductible, and donations made through December 31st will be matched up to $25,000. So do something good before a new year begins. Donate to Earth Justice to support their lawsuits and protect our planet. Every gift through December 31st will be matched to double your impact. EarthJustice.org/strict.

• 1:00:31Speaker 07

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

• 1:01:18Leah Litman?

  We should also highlight some of the other implications of this opinion. Specifically, this means that the US attorney in this jurisdiction, the eastern district of Virginia, can only be appointed by the district court judges in that district, which probably means that because they're judges, because they can read and know the law, they're unlikely to appoint someone who would be willing to be the mayor of Clown Town, who would even try to get these indictments going again. So with regard to what might happen, again, this may be a safeguard here. So let's just call this a bench slap, if you will.

• 1:01:53Melissa Murray?

  Yeah, it's at least a safeguard on the interim appointments. You know, of course, the president could, of course.

• 1:01:57Leah Litman?

  Try to like actually nominate someone and have them confirmed by the Senate. But yeah, this is the only way for an interim appointment to happen.

• 1:02:04Melissa Murray?

  Well, I mean, we could also say that could have happened in the first instance.

• 1:02:07Leah Litman?

  Oh, yeah.

• 1:02:08Melissa Murray?

  Have the Senate, why, instead of like doing this like weird crap-tastic process to get Lindsey Halligan appointed as a fake US attorney, just go put her before the Senate? Or are you worried about how she would fare before the Senate?

• 1:02:24Leah Litman?

  Uh, yeah, I would love to hear her answer questions about the law and hear her take on things like the Fifth Amendment. Um, just.

• 1:02:32Melissa Murray?

  Purely discretionary.

• 1:02:33Leah Litman?

  Exactly, very curious. Um, we did want to cover some more developments in the executive branch. So The Washington Post reported that Joseph Schwartz, who was convicted of tax fraud, among other things, received a pardon after Schwartz paid some lobbyists nearly $1 million, specifically $960,000, to help him secure a pardon. Who were the lobbyists?

• 1:02:54Melissa Murray?

  Just a tip.

• 1:02:55Leah Litman?

  Yeah, just a tip. Who were the lobbyists? Right-wing provocateurs, Jack Berkman and Jacob Wohl, who themselves had been convicted of state crimes related to their telecom scheme of generating calls to depress minority voter turnout. I seem to like vaguely recall a hypothetical floated in the immunity opinion about taking a bribe in exchange for a pardon. But I'm sure that can't be what's happening here because we were told that was all just fear mongering. So this is on the up and up.

• 1:03:24Melissa Murray?

  There are no new ideas.

• 1:03:25Leah Litman?

  No new ideas. It did make me wonder, is this a new idea? Is he charging the turkey for a pardon?

• 1:03:32Melissa Murray?

  Well, Turkey does get to hang out in a really nice hotel in D.C. for a while. So maybe that's the tip.

• 1:03:37Kate Shaw?

  Right.

• 1:03:38Melissa Murray?

  The gratuity.

• 1:03:39Kate Shaw?

  But Turkey gets it all. What does Trump get?

• 1:03:42Melissa Murray?

  Well, I mean, the Turkey could be in Seacott. The Turkey is lucky.

• 1:03:45Kate Shaw?

  That's true. The Turkey, yeah.

• 1:03:46Melissa Murray?

  Yeah.

• 1:03:47Kate Shaw?

  Still don't know what Trump gets for it. Just the glory, I guess. So, OK, let's just wrap with a few other quick things. The administration has filed a lawsuit against Governor Gavin Newsom, challenging a California law he recently signed that prohibits law enforcement officers from wearing masks in that state. That is a practice that has obviously become common this year amidst the president's immigration crackdown. The suit filed by the federal government claims that this mask ban and the companion measure requiring federal agents to wear identification are unconstitutional because states do not have the power to regulate federal agencies.

• 1:04:19Melissa Murray?

  Right. We also wanted to acknowledge, and I just want to say, this is some really gut-wrenching news. We wanted to acknowledge ProPublica's continuing work to study and document the cases where women have passed away because they were not able to access abortion in states that have draconian abortion bans. The latest story that ProPublica reported was about Tiara Walker, a 37-year-old mother who was turned away after experiencing soaring blood pressure, diabetes, unexplained seizures, and being confined to a hospital cot. She was told that there was no emergency and everything was fine.

• 1:04:53Leah Litman?

  And her son, who was 14-year-old, later discovered her lifeless body. You know, she had passed away from preeclampsia complications at 20 weeks pregnant. And when her son called 911, you know, the dispatcher have to coach him through CPR. ProPublica reports, you know, he is shouting "I need you" to his mom, who had passed away. And like, these are the consequences of these abortion bans. They do not allow doctors to actually counsel patients with high-risk pregnancies and complications to receive the kind of care that they need. Okay, so on, you know, a lighter note to end on,

• 1:05:37Leah Litman?

  we also wanted to acknowledge the retirement last month of Justice Lindsay Miller Lerman from the Nebraska Supreme Court. Justice Miller Lerman was the first woman on that court.

• 1:05:47Melissa Murray?

  And in an interview with the Nebraska Examiner, the justice said, quote, "I think you could say intellectually, I was disciplined. I didn't have poor humor. That is something we need in all of our justices." And reportedly, at the courtroom retirement ceremony, she said, quote, "I took an oath, and I think I kept my promise." She's also shared some helpful words for others. "I feel I've made a contribution. I'm not sure more years is necessarily going to enhance that." So for those of you just holding on to power, sitting in your seat, think about it. You can do other things. You can make room for other people. And Justice Miller Lerman noted that she will continue to be, quote unquote, "useful,"

• 1:06:30Melissa Murray?

  even if she is not serving on the Nebraska Supreme Court. So let's hear it for leaving on a high note.

• 1:06:37Kate Shaw?

  Yeah, and we have no doubt that she will continue to be useful. Justice Miller Lerman, call us if you want to talk podcasting. Honestly, we are big fans of Justice Miller Lerman's. She is one of Leah's icons in between the pop culture references and the opinion, straight-talking approach, and also her career as a swimmer, which if you don't know, Leah is a huge swimmer as well. Anyway, the Nebraska Examiner has a delightful profile of Justice Miller Lerman with some really touching vignettes that we would recommend as we transition to our Favorite Things segment.

• 1:07:06Melissa Murray?

  So I had to put this in Favorite Things, even though like it's not a happy read, but like it was a moving, powerful read, and that is Tatiana Schlossberg's piece, "A Battle With My Blood" in The New Yorker.

• 1:07:17Kate Shaw?

  Definitely recommend that. I also started watching, although I'm only like halfway into the first episode, but the Death by Lightning series on Netflix about the assassination of President Garfield. You know, the kind of end kind of of or the beginning of the end of sort of pure spoil system in federal employment and the birth of the civil service, which like, I know Netflix, hire me, I can do all your marketing, like a mini series about the birth of the civil service, like riveting stuff, but actually a star-studded cast and like so, so good. So I'm excited to watch the rest of that over the holiday.

• 1:07:47Melissa Murray?

  I will co-sign both of those. I loved the Schlossberg piece in The New Yorker, and I love the sort of double entendre of the title, both that she's suffering from leukemia, which is a blood cancer, and she is literally facing the fallout of her family members disastrous appointment to be head of Health and Human Services. I will also say, Kate, I finished Death by Lightning. And the whole time I was watching it, I was just thinking, you know, who would love this? Kate Shaw. Like, the Pendleton Act is all up in there. And that girl would be, she would like, let me drink it like a river. She would be there.

• 1:08:26Kate Shaw?

  Let it flow through me. I'm excited.

• 1:08:28Melissa Murray?

  Let it flow through her. I knew you would love it. I will say that Michael Shannon is extraordinary, as is Matthew McFadden, who is also just absolutely fantastic. There, it's just really, the acting is terrific. It's a great glimpse of Gilded Age, Washington, New York, and Ohio. If you're in New York and you're looking for things to do over the holidays, the Studio Museum in Harlem has reopened with its brand new building, and it is absolutely gorgeous. The art is amazing, and it's a completely stunning building, a real amazing addition to the streetscape in Harlem. And I'd also like to share on this entree into the holiday season, my favorite cookbook for just right

• 1:09:12Melissa Murray?

  now, Good Things: Recipes and Rituals to Share with People You Love by Samin Nosrat, which is absolutely fantastic. Last week, I was in Newark, New Jersey, shout out to the Brick City, where I ran into a number of New Jersey striktes. I just want to say thanks so much to all of you in the Brick City for that warm welcome to the Garden State.

• 1:09:35Leah Litman?

  Finally, before we go, some housekeeping. So if you think it's amusing to hear me while I'm high on pumpkin pie, wait until you see me on a sugar high at these live shows. We have so much fun and West Coast, we are coming to you. So Strict Scrutiny is finally bringing the podcast off your headphones and onto a real stage on the West Coast. We are coming to San Francisco on March 6th at the Herbst Theater and Los Angeles on March 7th at the Palace Theater. So get a ticket, gift a ticket, bring a friend. You can snag your tickets at crooked.com/events. And again, I bring presents.

• 1:10:13Kate Shaw?

  And speaking of presents, if you have had your eye on any Crooked merch, now is the time to get it for a great deal. Big news is that onesies are now in. So there are Strict Scrutiny, and I respectfully dissent onesies for like the babies and toddlers in your life. I have been excited about getting these.

• 1:10:32Leah Litman?

  And maybe Brett Kavanaugh.

• 1:10:33Kate Shaw?

  And possibly they don't come in grown up men's sizes, but maybe we should talk to the merch people about expanding the sizing. But I believe right now they are pretty small. But they're super cute, so that is a great gift idea. And there are many other gift items on sale, from the new Friend of the Pod hoodies to stocking stuffers. And the whole Crooked site is actually 25% off now, but the sale ends today. So go to thecrooked.com/dork to get some of your holiday shopping done early.

• 1:11:01Leah Litman?

  And finally, with the holiday season, we just wanted to extend a special thanks to Bill Pollak for stepping in to produce this episode and to Katie Long for stepping in to associate produce and monitor us in our recording session, where we definitely need an adult in the room.

• 1:11:18Kate Shaw?

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

• 1:12:15Speaker 07

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

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• 1:13:42Speaker 08

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