Supreme Court Declares Racism Over

The 5th Circuit gave us a doozy late on Friday night by tightening access to the abortion drug mifepristone—Leah and Melissa break it down. Then, the full crew dives deeper into the Court’s catastrophic Voting Rights Act decision in Louisiana v. Callais (for their initial reaction, check out last week’s emergency episode https://crooked.com/podcast/breaking-scotus-deals-another-blow-to-multiracial-democracy/). Next, they recap the troubling oral arguments in Mullin v. Doe, the case about Temporary Protected Status, in which Trump’s Solicitor General tried to argue that the President’s extremely racist statements about migrants from certain countries weren’t, in fact, racist at all. Also covered: Trump’s ballroom, arguments in an important Fourth Amendment case, and how some savvy federal judges are turning the administration’s favorite legal concept—the unitary executive theory—against it. Favorite things: Kate: The Loneliness of Sonia and Sunny https://bookshop.org/p/books/the-loneliness-of-sonia-and-sunny-a-novel-kiran-desai/93c3b6b087428748?ean=9780307700155&next=t, Kiran Desai; Transcription https://bookshop.org/p/books/transcription-a-novel-ben-lerner/e2ab1e6af4c8d0b2?ean=9780374618599&next=t, Ben Lerner Leah: Ariana Grande’s new album announcement https://www.instagram.com/p/DXrfO_NgngI/?utm_source=ig_web_copy_link&igsh=NTc4MTIwNjQ2YQ==; Noah Kahan on tour https://noahkahan.com/pages/tour; SCOTUS Drops The Other Shoe on the Voting Rights Act https://sherrilyn.substack.com/p/scotus-drops-the-other-shoe-on-the?r=1sqa3e&utm_medium=ios&triedRedirect=true, Sherrilyn Ifill (Sherrilyn’s Newsletter); The Slaying of the Voting Rights Act by the Coward Samuel Alito https://slate.com/news-and-politics/2026/04/supreme-court-analysis-coward-samuel-alito-callais.html?gift_token=2pziQ1GYS2aiGtPor0-CmA, Rick Hasen (Slate); The Supreme Court is Corrupt. This is What We Can Do About It https://www.youtube.com/watch?v=SRzS61buXkQ, Jamelle Bouie Melissa: Yesteryear https://bookshop.org/p/books/yesteryear-a-novel-caro-claire-burke/3633cf5fc7b2b2b1?ean=9780593804216&next=t, Caro Claire Burke; Voters Can Be Disenfranchised Now https://www.theatlantic.com/ideas/2026/04/vra-supreme-court-callais-decision/686997/, Adam Serwer (The Atlantic); Legal Defense Fund https://engage.naacpldf.org/dBCvDTd9IEiXX_jPkmkT_w2?_ga=2.180045799.218798126.1777665890-1984364831.1777665890&_gl=1*1vjdivy*_gcl_au*MzI5MzI2Mjc5LjE3Nzc2NjU4OTA.*_ga*MTk4NDM2NDgzMS4xNzc3NjY1ODkw*_ga_82NP0S7FKZ*czE3Nzc2NjU4ODkkbzEkZzAkdDE3Nzc2NjU4ODkkajYwJGwwJGgw Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2026! 6/20/26 – New York City Learn more:http://crooked.com/eventsOrder 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.

• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You're not alone if it feels like Groundhog Day every morning when you read the news, or even listen to what we're talking about here on Strict Scrutiny. And while it's overwhelming, seeing the trajectory our country is on, we all show up every day trying to find ways to make it better, to educate our neighbors, and to fight for democracy. Our friends at Americans United have been doing the same thing, day in and day out, for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti-Christian bias task force, which, spoiler alert, is anything but unbiased. Americans United has been tracking every mention of Christian nationalist rhetoric from this administration, and partnering with many allied organizations to sue and protect our

• 0:43Leah Litman?

  constitutional right of church-state separation, the right that protects all of our abilities to be who we are and live as we choose, so long as we don't harm others. It's easy to get apathetic, as we're all seeing and hearing these attacks on our freedoms every single day, and watching a religion be weaponized for a power grab. Now isn't the time to give up, though. Now's the time to fight back against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. Learn more by visiting au.org/crooked, because church-state separation protects us all.

• 1:16Speaker 01

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

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• 2:48Speaker 03

  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.

• 3:00Speaker 04

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

• 3:31Melissa Murray?

  Struck Street, listeners, after we finished recording late on a Friday evening, the Fifth Circuit decided it was time for slapping some additional restrictions on Mifepristone, one of the two drugs used in the current medication abortion protocol. Because what gives separation of powers more than lower court's second guessing expert agency determinations? Why not? Why not?

• 3:55Leah Litman?

  That's separation of powers to me. So in a breezy 18-page opinion released after 5:00 PM Eastern, which is how you know they were trying to sneak one past the country, not going to work on us, Stanford stormtrooper Kyle Duncan wrote for, that's Stuart Kyle Duncan, my apologies, wrote for a unanimous panel of judges, two of whom, including himself, were Trump appointees, that the Food and Drug Administration was wrong to allow telehealth, telemedicine prescriptions of Mifepristone, one of the two drugs used, again, in the current protocol for medication abortion.

• 4:25Melissa Murray?

  Every time you say Stuart Kyle Duncan, I think of Dunkin' Donuts.

• 4:30Leah Litman?

  Every time I say Stuart Kyle Duncan, my uterus shudders. But this latest decision reinstates the in-person pickup requirement for Mifepristone, which forces women to go in person to a doctor or licensed nurse practitioner in order to get Mifepristone, which of course makes medication abortion way more difficult to access for people in states with abortion bans, because now they have to travel out of state, just as they would if they obtained a procedural abortion.

• 4:58Melissa Murray?

  The Fifth Circuit purported to issue this ruling such that it has nationwide applicability. That is to say, the court issued what is called a vacator, or a stay of the entire telemedicine determination. This is a procedural maneuver that blocks the FDA's decision on a nationwide basis. That procedural machination makes it as if the FDA's telemedicine decision didn't even exist.

• 5:23Leah Litman?

  So this decision will have devastating consequences for women, especially women in states with abortion bans. In 2023, 65% of abortions were medication abortions. Medication abortion accounted for the majority of abortions that were provided in most of the states without total abortion bans in 2023. And again, if you can't obtain Mifepristone via telemedicine, you have to do so in person. And many women just are not going to be in a position to undertake the out-of-state travel if they live in a state with an abortion ban, whether that's because they lack transportation, time off, resources, support, or any other number of reasons.

• 5:59Melissa Murray?

  And to be very clear, medication abortion is many times more safe than actual childbirth. The risk of maternal death associated with childbirth is approximately 14 times higher than the risk associated with medication abortion. And that number goes up even higher for women of color and Black women in particular. But there's no racism. Remember that from this week. There's no racism. Medication abortion is basically about as safe as Tylenol. But now the Fifth Circuit has made it a lot harder for individuals who want to control their reproductive capacity to have access to it.

• 6:32Leah Litman?

  The Fifth Circuit's decision is stunning for a number of reasons. It is a judicial order to impose restrictions that the FDA The Food and Drug Administration deemed unwarranted. The decision also uses the Trump administration's abandonment of reproductive rights, the Trump FDA's baseless suggestions that it just wasn't totally sure that telemedicine was safe for medication abortion, as a reason to issue this nationwide stay. And the decision leans into something we have talked about before called fetal personhood, the idea that fetuses are people entitled to rights. That theory would mean that abortion has to be banned nationwide by order of the courts because if fetuses are people, then abortions would deny the fetuses their constitutional rights.

• 7:15Melissa Murray?

  We'll obviously have more to say about this late Friday night ruling in our next episode, but for now, we just want to emphasize a couple of points. First, we want to emphasize how there are so many aspects of this particular decision that make all of this look a lot like collusive litigation, as if the Trump administration took certain actions and made certain statements in order to lay a pathway for this judicial decision imposing nationwide restrictions on Mifepristone. So that's one point. We're not saying that there's actual collaboration going on here between the Fifth Circuit and the Trump administration, but we are certainly saying that the Trump administration made it infinitely easier for the Fifth Circuit to have a glide path into this decision.

• 7:58Melissa Murray?

  And basically, they gave them a rationale, like supplied a rationale for this court to do this.

• 8:05Leah Litman?

  And that's pretty useful to the administration because it means they got the abortion restrictions that they may have wanted without having to announce that they were imposing them on their own initiative, rather than having the courts do it. So the second point we will emphasize is how there are aspects of the decision that are just IV-dripping fetal personhood into their veins. Like, these guys are leaning wholeheartedly, saying it with their whole chests, that under the law, fetuses are people, in ways that alter the court's legal analysis.

• 8:31Melissa Murray?

  And again, if fetuses are people under federal law, and in particular, under the Constitution, then the Constitution itself imposes an abortion ban, or so federal courts might be obliged to announce. So there's that aspect of it as well. Let's tick through some of the collusive aspects, or what we think Look like collusive aspects of this litigation. The parts where the Trump administration basically facilitated the court doing this. Maybe not in fact, but certainly they laid a pathway for the court to do this. In justifying their decision, the Fifth Circuit relies on the fact that, quote, "In September 2025, the FDA began a comprehensive review of Mifepristone, including the 2023 REMS."

• 9:14Melissa Murray?

  And the court notes that, quote, "When announcing the review, the FDA conceded the, quote, 'lack of adequate consideration underlying the prior REMS approvals.'" In other words, the Trump administration in that 2025 announcement was posturing and making statements about the 2023 REMS that actually would then make it easier for the limitations on abortion that the Fifth Circuit is imposing now. It's absolutely bonkers that the government made that kind of concession on the eve of this litigation, but here we are.

• 9:47Leah Litman?

  And it's somehow even worse than that because the Fifth Circuit also notes that, quote, "FDA's response," that is, their response to the court, "does not address the merits." I.e. whether the FDA's removal of Mifepristone's in-person dispensing requirement was arbitrary and capricious. I.e. the FDA effectively conceded that the district court was right to say that the challengers were likely to succeed on the merits in challenging the ability to get Mifepristone via telemedicine. Now, the district court had nonetheless denied a stay because it concluded that the balance of the equities and public interest counseled against judicially imposed nationwide restrictions on Mifepristone.

• 10:26Melissa Murray?

  The court also relied on the FDA in explaining why the, quote unquote, "public interest weighed in favor of imposing these new restrictions." So the court notes that, quote, "The FDA itself now concedes the regulations were marred by procedural deficits and a lack of adequate consideration."

• 10:44Leah Litman?

  So on the second point, we wanted to emphasize, and that's fetal personhood. It's all over this opinion. So explaining why the public interest favors this stay, the court writes, quote, "Dankos," that's the manufacturers, "potential financial losses pale beside Louisiana's sovereign interests in its laws protecting the unborn." And explaining why Louisiana would be irreparably harmed without this stay. The court writes that the FDA's policy, quote, undermines its, that's Louisiana's, laws protecting unborn life and, quote, once lost, that sovereign prerogative of protecting unborn life cannot be regained by legal remedy.

• 11:21Melissa Murray?

  It's almost like these judges read the Jodi Kantor, Adam Liptak article from last week and was like, you know what? When the government brings something and requests to stay, they're always irreparably harmed if they don't get it. And they were like, you know what? That might apply to Louisiana, too.

• 11:36Leah Litman?

  Right.

• 11:36Melissa Murray?

  I think that's, yeah.

• 11:37Leah Litman?

  Not the federal government, but Louisiana, right? Like, just, just, just think about it.

• 11:41Melissa Murray?

  Yeah. Think about it, think about it. All of this is incredibly, very fetal personhood forward. It's kind of terrifying in many ways that the next frontier in abortion restrictions is really going to be about courts ordering states and the federal government to ban abortion, either on this theory of fetal personhood entirely, or some combination of fetal personhood in tandem with, like, weird questions about the safety of these particular medications. The other thing I want to note about all of this is, this is so much of a departure from what the court was saying in Dobbs when they just said they were going to settle this abortion question once and for all.

• 12:23Melissa Murray?

  And I'm just staring in Rachel Rubashay, David Cohen, and Greer Donnelly, who wrote that brilliant paper, The New Abortion Battlegrounds, and said, like, this is not settled. This is doing to be, there's going to be new stuff. And they predicted all of these fights over abortion pills and telemedicine. So, you know, there's that. You might also be wondering, listeners, this nationwide ban on Mifepristone, that sounds a little bit like a nationwide injunction. I thought the Supreme Court put a halt to the practice of lower federal courts issuing nationwide injunctions in Trump versus Casa.

• 13:00Melissa Murray?

  Well, that's a very fair question, but the court issued a stay here under five USC Section 705, which is a federal statute governing judicial review of agency actions. And so the Fifth Circuit says that CASA was different because it was about federal courts equitable authority under the Judiciary Act of 1789. And in their defense, in CASA, the Supreme Court dropped a footnote saying the no nationwide injunction rule didn't necessarily apply to decisions vacating an administrative agency's rule under the APA. I love when their little loopholes that are intended to make you feel better about things they're closing off actually work the opposite way to really fuck you.

• 13:39Leah Litman?

  As ever, as ever.

• 13:41Melissa Murray?

  Love that.

• 13:41Leah Litman?

  So a few other quick reactions to this opinion, which came out an hour before we recorded this. One is, in some ways, the math wasn't mathing, or at least not in the way the Fifth Circuit suggested it did. So the Fifth Circuit wrote that, quote, "The record shows that the policy that is telemedicine now facilitates nearly 1,000 illegal abortions in Louisiana per month." Now, the Fifth Circuit treats that as an injury, but that kind of captures just how consequential this ruling might be affecting potentially 1,000 Louisiana women per month. And that's just in Louisiana. Additionally, consider that statistic, the 1,000 women per month, against part of the court's standing analysis, where the court suggested Louisiana was injured because it paid Medicaid costs for two women who needed

• 14:25Leah Litman?

  emergency care caused by Mifepristone complications. Let's see. Two women needed emergency care, 1,000 abortions per month since 2023. You think that shows a significant risk of injury? I'm not so sure. Also, we have no idea if those injuries were even caused by the telemedicine aspect of Mifepristone, or whether they would have been prevented by an in-person pickup.

• 14:51Melissa Murray?

  Don't let that kind of logic stop you, though.

• 14:53Leah Litman?

  Exactly. What is standing to get in the way of a good time? There was also just something super grating about the court talking about Louisiana's sovereign injury and not being able to enforce its abortion ban like it's sovereign injury and not being able to control and subjugate women. In other parts of the opinion, including on exhaustion, that is, whether the plaintiffs had raised this argument to the agency, the court relied on its previous decision in Alliance for Hippocratic Medicine, where it notes, "True, those decisions were reversed on standing, but their reasoning on exhaustion was persuasive," end quote. "Not to say we told you so, but this was part of the danger when the Supreme Court punted on medication abortion in the Alliance for Hippocratic Medicine decision." Remember, in that case, the court said that the anti-abortion doctors and dentists did

• 15:38Leah Litman?

  not have standing to challenge the relaxation of restrictions on Mifepristone or the overall availability of Mifepristone, but it left on the table all these crazy merits rulings that the lower court and the Fifth Circuit had issued, and they were just waiting to be brought back with a vengeance after the 2024 election, and Republican-controlled states stepped into the breach.

• 16:00Melissa Murray?

  They're kind of like trigger laws, like trigger precedents that just like lay there and waiting. There are no new ideas. They just keep farming them to different contexts. Good on them.

• 16:09Leah Litman?

  We should note that just because this nationwide ban on Mifepristone has been issued, that doesn't mean that medication abortion is entirely off the table. As we have noted on this podcast before, the second drug in the two-drug medication abortion protocol, misoprostal, is also available. Obviously, Mifepristone is the preferred method. The two-drug protocol together is the preferred method, but misoprostal by itself would also suffice, although there are different responses and reactions to that that doctors have noted. But this is a devastating decision, even if there are available alternatives, and it makes very clear that the war on abortion, the war on women's reproductive rights continues

• 16:50Leah Litman?

  apace. This hasn't been settled. Dobbs has not ended this. In fact, I think it's only accelerated it in a lot of ways, and this very-

• 17:01Melissa Murray?

  Very safe method of reproductive care, which is used not only for those seeking to terminate pregnancies, but those who need it for miscarriage management. And literally, one in three women suffers a miscarriage and loses a pregnancy and requires this kind of medical care. All of that is on the table right now with this new nationwide ban imposed by America's worst circuit court.

• 17:26Leah Litman?

  Now, there's a chance that the Supreme Court will stay, the Fifth Circuit's stay. I mean, we are all, after all, getting ready for the midterms. Probably not super convenient to have abortion put back into the spotlight.

• 17:38Melissa Murray?

  But I don't know. When you don't have all those black people voting, you might as well YOLO.

• 17:43Leah Litman?

  Yeah, no, we shall see. We shall see.

• 17:47Melissa Murray?

  I think Clarence is like, let's go for it. Let's let it ride.

• 17:50Leah Litman?

  He's always like, let's go for it.

• 17:52Melissa Murray?

  Let's let it ride.

• 17:53Leah Litman?

  Indeed. Thanks for listening as always. And now back to our regularly recorded episode.

• 18:03Leah Litman?

  This episode is sponsored by BetterHelp. May is Mental Health Awareness Month, a reminder that whatever you're going through, you don't have to go through it alone. Perfect timing since we are awaiting the end of the Supreme Court releasing opinions in argued cases, which means we're gearing up for bad decision season. Life is a journey. Following the Supreme Court is a journey. Some days feel good and others feel overwhelming. Those would be SCOTUS days. Whatever's keeping you up at night, cough, Sam Alito's replacement, it's easy to feel like you have to figure it all out on your own. But the truth is, no one has all of the answers and no journey should be alone. Having someone with you to listen, to understand, and to support you can make all the difference. What are the things keeping me up at night these days? Honestly, where to start?

• 18:47Leah Litman?

  I'm becoming an associate dean in July. I have a bunch of writing projects. I don't want to let go. Oh, there's also this thing called the midterms, which is on my mind. And BetterHelp can help. BetterHelp offers quality therapists. BetterHelp therapists work according to a strict code of conduct and they're fully licensed in the United States. BetterHelp also provides a therapist match commitment. BetterHelp does the initial matching work for you, so you Can focus on your therapy goals. A short questionnaire helps identify your needs and preferences. And their more than 12 years of experience and industry leading match fulfillment rate means they typically get it right the first time. If you aren't happy with your match, you can switch to a different therapist at any time from their tailored recommendations. And their client reviews underscore that it's working.

• 19:31Leah Litman?

  With over 30,000 therapists, BetterHelp is the world's largest online therapy platform, having served over 6 million people globally. And it works with an average rating of 4.9 out of 5 for a live session, based on over 1.7 million client reviews. You don't have to be on this journey alone. Find support and have someone with you in therapy. Sign up and get 10% off at betterhelp.com/strict. That's better H E L P dot com slash strict. Strict scrutiny is brought to you by Mint Mobile. I don't know about you, but I like keeping my money where I can see it. That way I know crypto bros aren't stealing it. Unfortunately, traditional big wireless carriers also seem to like keeping my money as well. And that's where Mint Mobile is there to help.

• 20:15Leah Litman?

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• 20:58Leah Litman?

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• 21:24Leah 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 Melissa Murray.

• 21:33Kate Shaw?

  I'm Kate Shaw.

• 21:33Leah Litman?

  And I'm Leah Littman. It's a very special day, really very special week because happy early book release to Melissa Murray. Her book is officially out tomorrow. If you are watching this on YouTube, you can see Melissa displaying her book, me proudly wearing the merch that I made, Kate also displaying the custom merch.

• 21:53Kate Shaw?

  And it's a constitutional AF merch if you are not seeing it with your eyes. It's really nice.

• 21:58Leah Litman?

  So the perfect time, the perfect time to get your copy of The Constitution, a comprehensive and annotated guide for the modern reader. Not for the unmodern reader. Some people don't need it. You can show your least favorite Supreme Court Justice how to read.

• 22:14Kate Shaw?

  And don't worry, we have a very special episode for you next week that focuses more on Melissa's new book. But in the meantime, what a perfect occasion to help democratize the Constitution and empower more people to make constitutional claims as part of an effort to correct the constitutional claims being made by the people in power. And part of what Melissa's book, again, out tomorrow, gets into is the real and rich and radical history and vision behind the Reconstruction Amendments that Sam Alito basically wrote out of the Constitution in the Voting Rights Act opinion last week.

• 22:46Leah Litman?

  Additional great timing, last week, six justices, no points for guessing which six, the Republican appointees, the ones in the majority in the immunity decision, attended the state dinner for King Charles, making no secret of their insatiable thirst for kings. Melissa's book, by contrast, has more no kings energy, which these guys really need.

• 23:07Kate Shaw?

  Yeah. I do want to just like, just drop an asterisk, though, which is to remind our listeners, especially those who like book for television and radio, that Melissa should be everyone's go-to expert on all things royal because she knows literally everything about them. And I think that is just one of the many reasons she understands and can so eloquently explicate why we should not be ruled by them.

• 23:26Leah Litman?

  Nicole Wallace knows now.

• 23:28Melissa Murray?

  Thank you for that very generous introduction. I will just say, I love that this book is coming out on May 5th, Cinco de Mayo, so you can just pour some salt on it, lick it and do body shots, whatever you want. Anyway, let's get to... Hello. I missed you guys last week. I'm back.

• 23:44Leah Litman?

  Likewise, girl.

• 23:44Kate Shaw?

  Well, we can throw it into the blender and make margaritas. That's another, that's another way you could possibly use this book.

• 23:49Melissa Murray?

  A lot of ways, you can inject it, do whatever you want.

• 23:51Leah Litman?

  Inject it in any form.

• 23:53Melissa Murray?

  But use your pre-alcohol first. Okay, let's get down to business. In this episode, listeners, we are going to recap last week's oral arguments with a focus on the challenge to the administration's cancellation of temporary protected status for Haiti and Syria. We'll also touch on some legal news, including what we learned about ballrooms and national security. I did not know about this apparent relationship, so, you know, news to me, but obviously, I'm here to learn, whatever. It's huge, just gonna put that out there. We are also going to discuss how some intrepid federal judges are turning the unitary executive theory against the administration that is apparently obsessed with it. And I just want to say, master's tools, y'all. You'll

• 24:37Melissa Murray?

  love to see it. It's great. Obviously, the thing we really do need to talk about is the fact that last week, the court issued the huge Voting Rights Act opinion in Louisiana versus Kelly. Leah and Kate, you did an amazing, excellent emergency episode on the case, Louisiana versus Kelly, with special guest in front of the pod, Mark Elias. Listeners, if you have not downloaded that yet, what are you doing with your life? If you don't say, "I'm fighting for a multiracial democracy," that is the wrong answer. Get it together, download this. It is absolutely excellent.

• 25:12Kate Shaw?

  If you're still burying your head under your pillow, I think that that's okay, actually, but it's time to come out and...

• 25:17Melissa Murray?

  Don't despair, prepare.

• 25:18Leah Litman?

  Democracy hive, rise.

• 25:20Kate Shaw?

  Yes, this is the time.

• 25:22Melissa Murray?

  Obviously, there's still a lot more to say about the Calais decision. So listeners, if you'll indulge us, we are going to say a little bit more about why this opinion is so catastrophic. We will also note how the decision in Calais literally set the stage for the court's bonkers argument in the TPS cases, which were heard on literally the same day that the court announced the Calais decision. And that is not all, listeners. We are also going to go over the court's opinion on administrative subpoenas in First Choice Women's Resource Centers, Inc. versus Davenport. You may remember that it used to be called First Choice Women's Resource Centers versus Plotkin. Same bullshit, though. Don't worry. And same court. So there we are.

• 26:06Leah Litman?

  But first, I have some more thoughts on Calais. I think Kate has more thoughts on Calais. And Melissa, since you couldn't join us for the emergency episode, we wanted to make sure you had a chance to share yours as well. I want to talk more about the decision in some ways feel like we should always be talking about it, just because it is so significant and so warping our democracy at light speed in real time. And the decision that effectively nullified the Voting Rights Act and its redistricting protections that ensure political opportunities for minority voters is, as we attempted to convey, really bad for democracy. Also, multiracial democracy. Also, voters of color. But it's bad for democracy. And I think people need to realize that because it allows white elected officials to protect

• 26:50Leah Litman?

  themselves from electoral competition that is anti-democratic, effectively turning the House of Representatives into the Senate, where states just send one-party delegations to the House, replicating Senate malapportement. And in my fury on the emergency episode, I am worried a few points didn't come through clearly enough. And since this is our podcast, I am allowing myself to make them more clear. This might be a recurring segment, honestly, for like, the next two years. So brace yourselves. One is just the extent to which this decision will, in Justice Kagan's words, quote, "lay the groundwork for the largest reduction in minority representation since the era following Reconstruction." That is because the political opportunity, majority-minority districts that stand to lose their protection aren't many of the Districts that elect black and brown political officials.

• 27:35Leah Litman?

  The decision is a way of resegregating our institutions and politics. Although, you know, the percentage of black voters, you know, increased markedly after the initial passage of the Voting Rights Act. It wasn't until the 1982 amendments that Sam Alito read out of the Voting Rights Act that the percentage of black and brown representatives really increased. And the second is the extent to which this decision parallels the aftermath of Reconstruction, which led to the election of black political officials, to state and federal offices. But the demise of Reconstruction, which the Supreme Court aided and abetted, meant the number of black officials in Congress was never above single digits and was most frequently somewhere between zero to two,

• 28:16Leah Litman?

  including in states like Mississippi where the black population was 35%. Never sent a black representative to Congress during that period. And it was the Voting Rights Act that changed that.

• 28:28Melissa Murray?

  Can I take a beat on that? I know you're talking mostly about the House of Representatives. I think it's even as stark, more stark when you think about the Senate. Immediately after Reconstruction, there were two black senators serving in the upper chamber of Congress. So the first was Hiram Revels, who was chosen by Mississippi lawmakers to serve the remainder of a Senate term. This was the term that had gone on while Mississippi had seceded from the Union. And so by the time they decided to let Hiram Revels be the Senator, there's like a year left on this term. So they're like, yeah, why don't you take that year and be a Senator from Mississippi? And so Hiram Revels went to the Senate and served from 1870 to 71. Faced fierce opposition to his seat.

• 29:13Melissa Murray?

  They challenged his citizenship status, averting to Dred Scott. I mean, make it make sense. He took the oath of office to serve in the Senate 22 days after the ratification of the 15th Amendment. And abolitionist Wendell Phillips said that Revels was, quote, "the 15th Amendment in flesh and blood." I mean, literally, this is what this amendment was made to do. The second Senator was also from Mississippi. This was Blanche K. Bruce, who represented- The Magnolia State in the Senate and was the first African American to serve a full term in the US Senate. He served from 1875 to 1881. Notably, Reconstruction ended

• 29:53Melissa Murray?

  in 1877 with the Hayes-Tilden Compromise. And obviously, he leaves the Senate in 1881. And there isn't another black senator in Congress until 1967, two years after the Voting Rights Act. And again, even with the VRA, in that period, from 1965 to today, there've only been 12 black senators in the Senate. I mean, so this is progress, but it's slow, it's incremental, and the Supreme Court basically put the kibosh on that limited progress.

• 30:22Kate Shaw?

  Right. Unless there's massive change, what the Supreme Court has said in motion is a period of retrenchment that is going to parallel the post-Reconstruction period of retrenchment. And it feels like that's by design.

• 30:32Leah Litman?

  Yeah, resegregation. You know, Jim Crow, or as I just sputtered out with Melissa on MS Now, Jim Crow-ito.

• 30:40Melissa Murray?

  Sam Crow, if you're a fans of Anarchy fan.

• 30:42Leah Litman?

  Yeah, exactly. Either any, any works. And still, I just don't know if those numbers adequately convey how consequential and awful this decision is. And it's been frustrating for me, feeling like the world and the country is just like not sufficiently outraged. The New York Times has an excellent series of articles on this with graphics, if you're more of a visual person, that I'd encourage everyone to check out, illustrating, again, the significance of the Voting Rights Act to making Congress representative. And of course, in the wake of the decision, as they knew would happen, states are already clamoring to erase political opportunity districts and political representation.

• 31:20Melissa Murray?

  Totally. The Florida Legislature approved a new congressional map intended to maximize Republican advantage in the state as part of this broader national redistricting battle. Louisiana's Republican Governor Jeff Landry issued an executive order that delays House primaries, though not Senate primaries, until July 15th or until such time as determined by the Legislature. The elections in Louisiana had originally been scheduled for May 16th with a June 27th runoff date. So, you know, that is happening. I think your favorite Senator, Kate, Marsha Blackburn of Tennessee, made some statement-

• 31:58Leah Litman?

  She wants to get in on this.

• 31:59Melissa Murray?

  She sure did. She was like, you know, like, this is, this decision is going to help Tennessee stay red. I mean, was that the point? I think it might be. Saying the quiet part out loud, Marsha. Marsha, Marsha, Marsha.

• 32:11Kate Shaw?

  There's a movement and possibility in Alabama as well. So I think we honestly don't know what the full fallout is going to be. And it could be-

• 32:18Leah Litman?

  The speed with which they are doing this just-

• 32:20Kate Shaw?

  Just like Shelby County. It's just like-

• 32:22Leah Litman?

  It's just like Shelby County, but it also, Justice Alito just declared racism is over. Right? And of course, they knew this was going to happen. It's such a cowardly, craven decision. And again, this is happening.

• 32:35Kate Shaw?

  And just to remind folks, right? Like in 2013, when the first time the Supreme Court declared racism over in Shelby County, literally later the day the opinion was issued, states started moving to implement restrictive voting laws. They would have had to get pre-cleared under the pre-Shelby regime, but carte blanche to kind of move forward with after Shelby County. We are seeing that replay right now. And I also think, you know, it is a mistake to think just about what the impact on the 2026 map will be. Like, obviously, you know, Leah Mlosi, you're talking about kind of Democratic impact more broadly. It may be that a handful of states decide that because the 2026 map is already going to be really tough for Republicans, redistricting might actually backfire if they're going to make more districts that are more competitive. So I don't actually know at the end of the day how many new legislative districts they're going to be in 2026.

• 33:19Kate Shaw?

  But I do think between '26 and '28, there's no question that they are going to draw out, to the maximum extent possible, Black and Latino representation in Congress and access to meaningful Democratic participation. And it just might take a few cycles for that to fully play out. But again, absent some major course correction, that is the path that we are on. Let me just maybe mention a couple of other things about the opinion, if that's OK, because the kind of emergency episode was like, you know, in the heat of speed reading and hyperventilating and then podcasting. And like, I at least did not read the opinion as carefully as I subsequently have. So I just like, wanted to flag a couple of things. One is something that others have mentioned, but we haven't on this show, which is that Sam makes this insane claim, like, "Black voters now participate in elections at similar rates as the rest of the electorate." OK, that's not the insane part of the claim. This is.

• 34:04Kate Shaw?

  "Turning out at higher rates than white voters in two of the five most recent presidential elections nationwide." OK, so he says that. Obviously, if you listen and sort of think about it for 30 seconds, the two elections in which Black turnout exceeded white turnout were the two elections in which Barack Obama, the first Black president, was at the top of- The ticket and those two elections also occurred before the court's decision in Shelby County. So to suggest that that is this kind of silver bullet evidence that racism is done and racism in voting is definitely done is so unhinged. I kind of can't believe that his law clerks and colleagues let him get away with keeping that statement without explication in his opinion.

• 34:43Melissa Murray?

  You know, this is standard for this court because in Shelby County versus Holder, the chief justice did the same fucking thing and was like, you know, like there have been massive numbers of black people voting. I'm like, yeah, because there's like a black dude on the ticket and everyone got super excited. Like there are no new ideas. So no new clerks, no new ideas.

• 35:03Kate Shaw?

  No, this is a lot of recycled logic from Shelby County, but it's Sam and so it's somehow infinitely worse because everything he does is and sneakier. Like Shelby County at least had the decency to, you know, not justify itself in conventional legal reasoning, but say, we are invalidating part of the Voting Rights Act. Sam is much sneakier. So he says, we're not, but of course.

• 35:21Melissa Murray?

  I'm not going to give you that. Like I thought Shelby County was sneaky as fuck too. Right? I mean, so yes, they're like, we're just invalidating the pre-covered formula, the pre-clarence formula.

• 35:30Kate Shaw?

  Yeah, the formula.

• 35:30Melissa Murray?

  Yeah, but like, I mean, like we know Congress isn't going to write a new formula. So we're basically fucked up section five anyway. So.

• 35:37Kate Shaw?

  You're right. They tried to be sneaky there too as well. Um, okay. That's fair.

• 35:40Leah Litman?

  What are you trying to say? In addition to being sneaky, he preserves it so it can be used against democratic gerrymanders. Right? So they can bring intentional discrimination claims against majority black districts. Right? That's why he doesn't kill it.

• 35:52Melissa Murray?

  Yeah. Yeah. This is like the due process. Like we're going to keep the due process and not kill it entirely. So when we get to fetal personhood, we can use the due process.

• 36:00Kate Shaw?

  Totally. Yeah. Which is a point we've obviously made about Dobbs.

• 36:03Melissa Murray?

  Like Clarence, keep it down. Keep it down. Yeah. Anyway, I don't even know what to add to this other than I told you so. Like, did I not say after Allen versus Milligan?

• 36:15Leah Litman?

  Oh, you did.

• 36:15Melissa Murray?

  That, yeah, I mean, I caught so many strays when I said that. Just like reminding you, like I caught so many strays and I said, Allen versus Milligan was not the last word that they were just like, they couldn't do it 10 years after Shelby County. So they'd wait a while. Here we are. These ghouls will stop at nothing to fully decimate the legislation that people literally were beaten and killed in order to enact. I mean, just absolutely. Insane. And I think the thing that is most stunning to me is the absolute cravenness of it. Not just the insistence that they are preserving Section 2 when we know that they are not, but that, you know, they are preserving it so it can be used in this way

• 36:56Melissa Murray?

  against minority voters, against Democratic voters going forward. And because they know they're going to catch a whole bunch of flak for killing the Voting Rights Act. I mean, this is like Casey where they said, you know, we're preserving the central tenets of Roe. And then they really just, they hollowed out Roe so that it was a nub of itself. Same kind of thing is going on here. Like, they're trying to preserve themselves. And they've done, I guess, a good job of it unless people stay on their necks and keep saying, you killed the Voting Rights Act. You just killed Section 2. And I think we have to say that. I'm stunned by the cravenness of the Chief Justice, who is in the majority in Allen versus Milligan, where he lauded the remaining shards of the Voting Rights Act that he dained

• 37:40Melissa Murray?

  to allow to exist after Shelby County. And now he's fully on board with the majority in this case. Like, you know, it was only a few years ago. Like, why the difference, sir? And also stunned by the cravenness of allowing Sam Alito to write this opinion.

• 37:56Leah Litman?

  Shout out to the colleague who told me Shelby County was justified because of Allen versus Milligan, and that it was only possible to write a decision like Allen versus Milligan in light of Shelby County. And I was like, what?

• 38:08Melissa Murray?

  Okay, just beat your head against a wall. Anyway, I'm also disgusted with Congress, including the Democrats, because for years, civil rights advocates, Black people have been saying that this was coming, that the Supreme Court was intent on dismantling voting rights, and that they would stop at nothing to do it. And nobody did anything, right? When I sat on MS Now and asked a member of the Congressional Black Caucus how the Congressional Black Caucus planned to respond to this particular lawsuit, the answer was to file litigation. I was like, I was on there with you, and I almost lost my rocker. It's like, litigation that will go up to this court to Sam Alito? Is that the plan? That can't be the plan. But that apparently is the plan. And

• 38:51Melissa Murray?

  You know, I just, I can't. Last night, this, we're recording on Friday, so Thursday night, I was at an event celebrating the centennial of the Schaumburg Center for Black Research in Harlem. And the Schaumburg Center is an arm of the New York Public Library, and it's devoted to the preservation of Black writing, art, research, and culture. And Senate Minority Leader Chuck Schumer was there, and he spoke, and it was literally all I could do not to stand up, turn my back, and walk out. He spent nine minutes lauding the contributions of Black people to this country and this culture, after he spent the last nine years letting this court chip away at a law that Congress enacted and reauthorized for years and years and years. And in addition to that insult, he pronounced the name of

• 39:36Melissa Murray?

  Edwige Dantecat, the award-winning Haitian-American novelist who was honored at the event. He pronounced it Edwich Dantecat. And I was just like, sir, read a book, read any books. And so I'm just mad at everyone.

• 39:49Kate Shaw?

  That's fair.

• 39:50Melissa Murray?

  Me too. I'm a bipartisan rager right now. Deservedly so. It was so clear that this was gonna happen. I literally wrote it into the version of my book that came out last year, right? And then updated it with more confidence for the paper of effort coming out in June. Like, it was obvious, right? They were gonna do this anyways. Okay. That went over? Should we move on to argument recaps?

• 40:10Kate Shaw?

  We should, but I do think that let's put a pin in the idea of like, just five ranting minutes about Calais at the beginning of every episode, at least for the next few weeks. I think that's

• 40:17Melissa Murray?

  Or at some point in an episode.

• 40:18Kate Shaw?

  It doesn't have to be the beginning. Okay, just a recurring segment.

• 40:21Melissa Murray?

  Do you remember when we were talking about, like, how would we revamp after Trump 2.0? Like, what would he do? And like, I suggested maybe a recurring segment called Douch of the Week, where we just talk about someone we hated. And you were like, that's kind of a downer. So instead, we decided to do Favorite Things. Maybe it's time for Douch of the Week. I like the direction. I just, I also like the focus on Calais. I just think Douchy decision of the century. Exactly. Like, that decision needs to become part of the lexicon, as we were suggesting. I mean, we got a Bad Decisions tour coming out. Let's just put it on the shirt. That's fair. That's fair. Update the shirt. Okay. Okay.

• 40:57Kate Shaw?

  All right. So stay tuned for the next installment of that, whatever it turns out to be.

• 41:04Kate Shaw?

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• 42:30Leah Litman?

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• 43:14Leah Litman?

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• 44:21Leah Litman?

  Now, we're going to shift to argument recaps. So the day the Supreme Court announced that racism is over so that the Voting Rights Act would no longer prohibit legislatures from discriminating against black voters, so long as black voters tend to vote together for Democrats, the court also got to noodle over whether the president's statements about excluding people from shithole countries, making horrific lies about how Haitian immigrants are eating cats and dogs, and general talk about the blood of the nation were racist. The Solicitor General says no.

• 44:48Kate Shaw?

  So yes, the court heard argument in Mullen versus Doe and Trump versus Pio. As a reminder, these are the challenges to the revocation of temporary protected status for Haitian and Syrian nationals. As we mentioned in the last episode, and as Leah just alluded to, the president and senior administration officials have maligned and vilified Haitian immigrants in particular, and apparently decided to cancel TPS for Syrian nationals, based on extensive analysis reflected in a single email, and oh, maybe Brett Kavanaugh's musings about sort of the geopolitics of the new regime in Syria. Seems like that is what drove the administration. So the question is, can they do that?

• 45:22Leah Litman?

  The government is arguing that it can. The argument proceeds as follows. First, that the revocations are unreviewable, meaning that the executive branch can do whatever it wants, and any congressional limitations on revocation and protections for TPS holders are absolutely unenforceable. Do you know what that's giving?

• 45:41Melissa Murray?

  Monarchy.

• 45:42Kate Shaw?

  Yeah.

• 45:43Melissa Murray?

  Yeah. Yes. The government is also arguing that the president definitely, totally had reasonable, rational, and unbelievably race-neutral reasons for ending these programs. So, nothing to see here, folks. Top lines on this argument, especially coming right after the announcement in Calais. This was rich. This was rich.

• 46:09Kate Shaw?

  Wednesday was a lot.

• 46:10Leah Litman?

  It was. In this case, the TPS cases, it's possible the Solicitor General may have overstepped just by advancing extremely broad theories about the bar of judicial review, which might provoke the court to preserve a narrow, albeit limited, and deferential category of claims that can be reviewed. The plaintiffs are arguing procedural claims and constitutional claims can be. Add to that, there were a few questions for the lawyer challenging the revocation of TPS for Haitian nationals. At the same time, I wasn't exactly sure who the five would come from. You know, at times, the chief and Barrett sounded skeptical, but they've done this before, only to go full throttle on what the federal government is selling.

• 46:46Kate Shaw?

  Yeah. So, I actually felt modestly optimistic about the chief and Barrett. I mean, they were both mixed, but out of the gate, the chief pounced on the government for like, overreading or seeking to extend, without copping to it, Trump versus Hawaii. And I did think Barrett was reasonably sympathetic, though uneven. I heard nothing in her questions that like, alluded to this, obviously explicitly, but I did wonder whether the fact that she has two adopted kids from Haiti might make her somewhat less likely to just dismiss the president's vile words about Haitians. But, you know, hard to know. The challengers were also-

• 47:19Melissa Murray?

  Is that the same president to whom she introduced her kids when she was nominated to the Supreme Court?

• 47:23Kate Shaw?

  Very same, yeah.

• 47:24Melissa Murray?

  Very same, okay.

• 47:26Kate Shaw?

  And, I mean, I think she probably hung out with at the state dinner last week. I don't know. But probably did. So, yeah, she hasn't shown that much interest in distancing herself from him, but hope springs eternal. There's also the fact that the challengers were like, I thought, very cautious and kind of measured in their asks. They were very insistent that executive branch gets tons of deference here. No one is asking the courts to decide whether to keep or terminate TPS. Just that there is some- Minimal process beyond the nonexistent process that was followed here that the law requires. But then there was this weird thing where at moments, the fact that the asks were like pretty small were for Barrett and Kavanaugh, maybe reasons to rule against the challengers? Like, if you're not asking for much, then like, why bother?

• 48:10Kate Shaw?

  Which I found maybe I might have put my head through a window.

• 48:13Melissa Murray?

  You're just asking to enforce the Constitution. Why should we bother?

• 48:15Kate Shaw?

  If they get to the same outcome. Anyway, no, completely. Anyway, I did sort of feel like heads, I win, tails you lose. But again, I felt like hopeful that there may be a narrow, but obviously meaningful loss for the administration here. Anyway, that's my top line.

• 48:28Melissa Murray?

  Yeah, they were basically like, go big or go home. Either.

• 48:31Kate Shaw?

  Right. Yeah, and we know you're going to, we're going to send you home if you go big. So like, again, that's heads we win.

• 48:36Melissa Murray?

  Go big and go home.

• 48:37Kate Shaw?

  Right.

• 48:38Melissa Murray?

  Yeah. So, obviously, one of the arguments that the challengers are making here is a procedural argument that, you know, yes, the executive branch can do this, they just have to follow these specific procedures. This is a species of the kind of argument they made in the DACA rescission cases that were heard back in Trump 1.0, I think it was around 2020, when this podcast was getting going for the first time. Those arguments were obviously availing in that context back in 2020. I just wonder if they're going to be as deferential to this administration as they have been more recently, or whether we're going to go back to that 1.0 where they're just like, listen, just do government right. Like, you've got shitty instincts, but just do it right. And who knows?

• 49:23Melissa Murray?

  Another ongoing theme that was sort of surfacing there was, you know, what the fuck is Congress for? What the fuck are courts for? Do you need Congress or courts when you are the unitary executive? I mean, they genuinely seem to be grappling with the fact of their own obsolescence, which was interesting. Another observation was that the race talk in this case was so off-putting, and especially so given that the argument occurred right after the court declared racism dead and buried in the announcement of the Kala opinion. So I very much appreciated both Justices Sotomayor and Jackson staying on the administration's neck about its arguably racist statements regarding immigrants and the countries from

• 50:08Melissa Murray?

  which they arrived to the United States. I mean, just a lot to go on here. And I know we should talk about this and play some tape, I think.

• 50:15Leah Litman?

  Yeah, so we wanted to share the exchanges between those two justices and the lawyer for the federal government, just because they were otherworldly. So let's play those clips.

• 50:26Speaker 07

  We have a president saying at one point that Haiti is a, quote, "filthy, dirty, and disgusting asshole country," I'm quoting him, "and where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark," where he declared illegal immigrants, which he associated with TPS as poisoning the blood of America.

• 50:54Speaker 02

  All the statements that they cite, as to the secretary and as to the president, obviously, there's an issue there about which one you're going to weigh more heavily, none of them, not a single one of them, mentions race or relates to race anyway. All those statements and contexts refer to problems like crime, poverty, welfare dependence, drugs, drug importation.

• 51:13Speaker 07

  What about poisoning the blood of Americans?

• 51:16Speaker 02

  If you could look at those statements and contexts, again, they're clearly talking about problems like-

• 51:21Speaker 07

  What about bad genes, "bad genes," quote unquote?

• 51:24Speaker 02

  Again.

• 51:24Speaker 07

  Also, not, not racially-

• 51:26Speaker 02

  They presented them wrenched from context. You can look at each one of those statements. They're talking about problems of crime, poverty, welfare dependency, again, problems that have been emphasized again and again by not just President Trump, not just the secretary, but many others who favor a tough immigration policy. And if the position of the district court's here-

• 51:43Speaker 07

  The position of the United States is that we have to have an actual racial epithet, that we don't, we aren't allowed to look at all the context.

• 51:52Leah Litman?

  Wow, that was quite a supercut. What a mashup. I mean, this is about welfare and poverty and...

• 52:00Kate Shaw?

  Yeah.

• 52:04Leah Litman?

  Just say "welfare queen." Right, like, do you think you're saying things that indicate you don't have racist views? The president doesn't have racist views? If he's saying people from those countries are more likely to commit crime and be poor? Like, I don't understand.

• 52:20Kate Shaw?

  Yeah. I mean, I think he had to take that position, and it was horrifying and almost- Two observations about that. One, we'll talk just briefly about a case involving the Alien Tort Statute and the Torture Victim Protection Act, but Jackson and Sotomayor and their kind of continued insistence on saying what the case is about, like even when their colleagues want to retreat to like abstract legalism, like their colleagues want to talk a little bit about the APA and, you know, kind of deference to the president and the executive, and they're like, here are the words he said with his mouth or on Truth Social, like, let's listen to them. And in the same way, in the case involving this Alien Tort Statute, there's all this sort of abstraction about third party and secondary liability. And Sotomayor at one point is like, we're talking about allegations

• 53:05Kate Shaw?

  that a government with the help of this US corporation designed a torture scheme and like tortured people. And you can just hear in the room, they hate when these, when Sotomayor and Jackson like remind them what these cases are about. And like, I love it so much. It's so important.

• 53:21Melissa Murray?

  I hate it when women of color bring up all of the quasi racist statements I make.

• 53:26Kate Shaw?

  Yeah, completely. Like, I wasn't in the room, but I am sure that they were all like, why do you keep saying this stuff? It's like, that's what the case is literally about.

• 53:34Leah Litman?

  Like, so rude. So rude.

• 53:36Kate Shaw?

  Exactly. Yeah, anyway, and you know,

• 53:37Melissa Murray?

  The way to stop discrimination on the basis of race is to stop talking about discrimination.

• 53:43Kate Shaw?

  In these hallowed halls, basically. Anyway, and yeah, I was just sort of especially calling that the federal government tried to defend all of this on the same day that Justice Alito announced that racism is over in Calais from the bench. And I don't think we've said this, but Kagan dissented from the bench and it was apparently pretty epic.

• 54:03Melissa Murray?

  Can we go back and take a few beats on the shamelessness or the lack of vergony of one Samuel Alito? There was this very extended disposition with the lawyer who is representing the Haitian nationals in which Justice Alito mused about whether he would view certain immigration policies as directed against white or non-white individuals. And he asked about, in addition to Syrians and Turks, whether Greeks and Italians might be considered white or non-white. And the lawyer basically said, sir, I don't know who needs to hear this, but there was a time when Italians were not considered white. And then Justice Alito responded with this.

• 54:45Melissa Murray?

  A really large, a really broad definition of who's white and who's

• 54:50Leah Litman?

  Is not white. As I said, I don't like dividing the people of the world into these groups. That is the man who says it's racist racial discrimination to comply with the Voting Rights Act and not racist to discriminate against black voters if you're discriminating against Democrats, saying he doesn't like dividing the people of the world into racial groups.

• 55:09Melissa Murray?

  It's so much easier to divide them by partisan affiliation, Leah. It's race neutral and, you know, much better that way.

• 55:17Leah Litman?

  Whatever. Just insane. Insane.

• 55:21Melissa Murray?

  The other one that I loved, John Sauer had some real bangers in this argument, I have to say, but this is the one I really loved. He said, with a straight face, this is the Solicitor General of the United States, John Sauer said with a straight face to Justice Brett Kavanaugh that the President of the United States revoked TPS for Haitian nationals in order to reverse the brain drain from Haiti. So Sauer said, quote, "There's this kind of talent drain out of Haiti." That, what? That's the Trump administration, folks. Like, the Trump administration is literally revoking TPS, a policy that was created to help the people in this earthquake-ravaged society

• 56:04Melissa Murray?

  come to the United States and live better lives. They are revoking it in order to help Haiti retain its natural pool of native talent. That's, that's foreign policy. That is presidential, folks.

• 56:18Kate Shaw?

  The, the sort of bad faith continues apace. So, in an argument of many notable exchanges, and I did think the kind of Justice Alito asking about Italians, and the attorney from the podium, I thought, did a very nice job, basically saying, "Yeah, 120 years ago, Southern Italians weren't considered white." And you would think that would give Sam Alito a little pause, and yet instead, he was just like, "I'm annoyed by this whole thing."

• 56:40Melissa Murray?

  That's the second time he's been called on the history of Italians in America and their relationship to birthright citizenship.

• 56:48Kate Shaw?

  Yep. And yet, it's not really penetrating, is it?

• 56:53Melissa Murray?

  But you know what, guys? It's time to talk about Clarence Thomas.

• 56:55Kate Shaw?

  OK, so right, so.

• 56:56Melissa Murray?

  Yes, he would go further. He would go further.

• 56:59Kate Shaw?

  So, you know, he always wants to go further than his colleagues. And with the lawyer representing the Haitian nationals, these plaintiffs are unsurprisingly challenging the revocation on the ground that it was motivated by racial animus, right? See, all the statements that we were just adverting to. And also, like, a desire to discriminate on the basis of race. And Clarence Thomas seemed to take issue with the idea that the federal government might be prohibited from discriminating on the basis of race, right? Like, just to say that again, not sure. Thomas isn't so sure that there's anything unconstitutional about government discriminating on the basis of race if it's the feds. Just sit with that.

• 57:35Melissa Murray?

  During the siriatum portion of the argument, Justice Thomas repeatedly asked the lawyer how the lawyer's equal protection race discrimination claim worked, or rather, whether it made any sense. And the gist of Thomas's question was essentially that the equal protection clause appears only in the 14th Amendment, which applies only against states. It doesn't apply against the federal government. There isn't an explicit guarantee of equal protection in any part of the Constitution that is applicable to the federal government. However, as I note in the U.S. Constitution, a comprehensive and annotated guide for the modern reader, on the very same day that the Supreme Court

• 58:20Melissa Murray?

  announced its decision in Brown versus Board of Education, it also announced a decision in Bowling versus Sharp, a companion case. And it struck down segregated schools in Washington, D.C., a federal territory. And it did so on the view that the Fifth Amendment, which applies to the federal government, contains an implicit guarantee of equal protection. And this is all discussed here. Weird that Justice Thomas doesn't know this. Or if he does know it, whether it is an invitation to other people to challenge or question the status of Bowling versus Sharp and this implicit guarantee of equal protection in the Fifth Amendment.

• 58:57Kate Shaw?

  You know what's so pesky precedent? Precedent is-

• 58:59Melissa Murray?

  And books and the Constitution.

• 59:01Leah Litman?

  As we keep saying, buy the book.

• 59:03Kate Shaw?

  Equality.

• 59:03Leah Litman?

  Who's this book? The US Constitution, a comprehensive and annotated guide for the modern reader.

• 59:08Melissa Murray?

  Send one to One First Street. I know a friend who could use one.

• 59:11Leah Litman?

  Send like six.

• 59:13Kate Shaw?

  Not like, but exactly six, it turns out. So at one point during the oral argument in the TBS cases, Justice Kagan's voice like kind of cracked. She sort of started to cough and she said, I'm sorry, I'm losing my voice. And it was like a couple, it was sort of an extended like kind of period where she's trying to talk and then just kind of keeps sort of losing it. So that might've been the result of her extended filleting of the Calais majority by reading portions or kind of summarizing her Calais dissent from the bench. I mean, I don't actually know if she read portions of or summarized her dissent from the bench since for reasons, and by that I mean like just reasons they haven't told us, they don't broadcast the audio of the opinion announcements despite now, you know, real time broadcasting the arguments themselves. It's insane.

• 59:58Kate Shaw?

  It's just a thing they they do because they can, which is not share that audio with us. Anyway, we know she read her dissent, but I am really eager to actually get that recording. And it's just insane that they make us wait. So there was another exchange I wanted to highlight. So one important precedent for the challengers is New York versus Commerce, the case involving the challenge to the addition of a citizenship question on the 2020 census. The lawyer for the challengers-

• 1:00:19Leah Litman?

  Here, by the way, the Trump administration said they needed the information to enforce the Voting Rights Act. Right? Which they just argued in favor of dismantling and nullifying. Just reminders, reminders all around.

• 1:00:32Kate Shaw?

  Oh, my God.

• 1:00:32Leah Litman?

  Receipts, receipts.

• 1:00:34Kate Shaw?

  Yeah, yeah, sort of infinite regress. So anyway, here is that exchange with the attorney for the challengers. I wouldn't change a word of Commerce, Your Honor. I wouldn't neither. Yes. Okay, so I just, I don't know what you guys made of this. Ilan is a wonderful lawyer. We've had him on the pod before and I thought he did a great job in this argument. I will just say that I personally would change lots of words in New York versus Commerce in that it's a kind of incoherent opinion that both says it's not arbitrary and capricious for the government to add this question, but then because- The reasons given were pretextual or contrived. The addition has to fall sort of separate from a traditional arbitrary and capricious kind of analysis.

• 1:01:16Kate Shaw?

  Anyway, it's a puzzling opinion I've spent a lot of time with, but I understand when you're arguing in front of them, you have to say that their opinions are perfect and you wouldn't change a word.

• 1:01:25Melissa Murray?

  You're perfect. You're beautiful. You're doing amazing, sweetie.

• 1:01:28Kate Shaw?

  I mean, look, but this goes back to what Melissa was saying at the outset, which is we really will find out whether these were just entire one-offs, both the census case, which the first Trump administration lost, and the DHS rescission, you know, the DACA rescission case, which the first Trump administration also lost. You know, either those cases like stand for a principle about how government has to do things, or they don't. And I think we're going to find out here.

• 1:01:48Melissa Murray?

  One final note. I think this is bubbling up in the lower federal courts for sure, but we definitely saw a glimmer of it here at the court in this argument. And that is judges here, Justice Sotomayor, using the unitary executive theory against the administration, which, as we know, is obsessed with the unitary executive theory when it suits them. So let's hear this tape.

• 1:02:12Speaker 07

  I'm not quite sure. Not so long ago, you came in and said that every executive officer has to be answerable to the president. So the president's statements have to be attributable to its executive officers, to the secretary. I don't see how you can take both positions. Either an executive follows the president's orders, or it doesn't.

• 1:02:39Kate Shaw?

  That was great. So we will briefly touch on the rest. Well, not that whole thing was great, just Sotomayor was great, not the argument. Although, as I said, I am optimistic, modestly. But once again, Sotomayor, great question.

• 1:02:56Leah Litman?

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• 1:04:03Melissa Murray?

  Long Play, our docu-series exploring the people and forces shaping the South, is back. Newsflash: The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South too. We're in the final stretch of the midterms and the political map has only gotten more competitive with new states and districts emerging as potential flips. So we thought it was time to get back out on the road and take a closer look at what's actually happening on the ground. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmieri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

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• 1:05:49Kate Shaw?

  So we will briefly touch on the rest of the SCOTUS arguments from last week at the end of the show. But we wanted first to touch on some more legal developments because there have been a lot of them.

• 1:05:58Melissa Murray?

  First, I know you guys did not have this on your bingo card for 2026, but it's time to talk about ballrooms and their implications for national security. I know you weren't expecting it, but ballrooms and national security are actually coextensive. And that is because on Saturday, April 26, there was a terrifying incident in which a gunman appeared at the White House Correspondents' Association dinner at the Washington Hilton, and shots were fired. Thankfully, it seems that no one other than the gunman was injured. This was a dinner where, for inexplicable reasons, given their disdain for the First Amendment, the president and members of his administration were invited.

• 1:06:37Melissa Murray?

  And so the fact of this gun violence episode obviously had real implications for the safety of those officials.

• 1:06:45Kate Shaw?

  Right. But the last thing Melissa said, that they were invited and not the hosts of this dinner, is actually important for sort of what comes next.

• 1:06:51Melissa Murray?

  Yes.

• 1:06:52Kate Shaw?

  Because in the aftermath of the shooting, the administration began making the truly absurd claim that the shooting supplied evidence for why the president needed this 90,000-square-foot ballroom, whose construction is underway at the White House, because national security demanded it. Right. So this is what they immediately jumped to. Here is Carolyn Levitt making this claim. The White House Ballroom Project is not just a fun project for President Trump, like you will read in the media. It is actually critical for our national security. Here is Lindsey Graham echoing it. If you don't think $400 million of taxpayer money is a good investment to create a secure facility at the White House where the President of the United States, the Vice President, the Cabinet, and people from the public can

• 1:07:36Kate Shaw?

  come and, you know, have a meal and gather without what happened Saturday, then I disagree. This is the number-one job of the federal government, is national security. The number-one job of national security, I think, would be to protect the commander-in-chief and to have infrastructure under the ballroom that is very national security-centric. So.

• 1:07:59Melissa Murray?

  And apparently, the president thought those comments just slapped because the Department of Justice filed a motion to this effect. You should read the entire nine pages. We will just provide you some excerpts. Quote, "The National Trust for Historic Preservation is a beautiful name, but even their name is fake." That's all caps. "Because when they add the words "in the United States" to the National Trust, it makes it sound like a government agency, which it is not. They are very bad for our country."

• 1:08:25Kate Shaw?

  Right. Read Melissa's book. The National Trust for Historic Preservation isn't even in the Constitution. So like, what even are they? Okay, wait, let me read another quote. "This did not deter them, the National Trust, because they suffer from 'T Trump, D Derangement, S Syndrome,' commonly referred to as TDS, as noted by Democrat Senator John Fetterman of Pennsylvania, and are represented, the challengers, that is, by the lawyer for Barack Hussein Obama, Gregory Craig, who I'll note is now at the law firm Foley and Lardner." One more quote. "In the long and storied history of the White House dating back to 1791, Congress has never dictated or tampered with the zoning permitting or architectural aspects of any 'P' project, especially one being given, all caps, 'free of charge as

• 1:09:08Kate Shaw?

  a gift to the country.'" This insane brief was signed by the acting Attorney General, Todd Blanch? It just feels like this performative objection. It's like, "I will literally do anything for you, sir."

• 1:09:20Melissa Murray?

  Performative is the exact word. This is your audition for America's Next.

• 1:09:24Kate Shaw?

  I have no shame. I will literally do anything for you. And honestly, having read that, I believe it. Sorry, wait, there's more. Wait, do you want to...

• 1:09:30Melissa Murray?

  Okay, I'm ready. This is my time to shine.

• 1:09:34Kate Shaw?

  Oh, actually, this is a good one.

• 1:09:35Melissa Murray?

  This is my audition. All right. "If any other president had the ability, foresight, or talents necessary to build this ballroom, which will be one of the greatest, safest, and most secure structures of its kind anywhere in the world, there would never have been a lawsuit. But because it is Donald J. Trump, a highly successful real estate developer who has abilities that others don't, especially those who assume the office of the president, this frivolous and meritless lawsuit was filed. Again, it's called, all caps, 'Trump Derangement Syndrome.' On top of everything else, this project is a gift to our country from President Trump and other donors. It is free of charge to the American taxpayer.

• 1:10:19Melissa Murray?

  Who could ever object to that? What do you have to say, bitches? Who can object to that?"

• 1:10:27Kate Shaw?

  Yeah.

• 1:10:27Leah Litman?

  This is a bonker.

• 1:10:30Kate Shaw?

  So it reads like a Truth Social post. It was actually posted verbatim by Trump on Truth Social as a post, which, I mean, why bother with the interim step of the filing at all? I don't even know.

• 1:10:43Leah Litman?

  I mean, the real derangement syndrome. Wow. Reflecting on this, one wonders, would Louis XVI and Marie Antoinette have died if they had had a ballroom? Folks are asking this question more and more.

• 1:10:57Melissa Murray?

  Let them eat disco balls, said Marie Antoinette.

• 1:11:01Leah Litman?

  Exactly. More fucking around and finding out dispatches we wanted to talk about. Were the other federal courts holding the unitary executive theory against the administration in what we're calling fuck around and find out unitary executive edition?

• 1:11:15Kate Shaw?

  Okay, so let's tick through a few pretty kind of interesting developments here. So one development came from the district judge in Florida, Judge Kathleen Williams, who was overseeing Donald Trump's case against the IRS. This case seeks $10 billion, with a B, dollars from the IRS and Treasury related to the disclosure of Trump's tax forms. And the judge questioned if she had jurisdiction over the case or whether it would have to be dismissed.

• 1:11:38Melissa Murray?

  And if you're a constitutional law professor, you kind of loved this opinion because it was like, jurisdiction 101. The judge wrote, quote, "A key characteristic of the case or controversy requirement is the existence of adverseness or a dispute between parties who face each other in an adversary proceeding. Typically, adverseness is found in a situation where one party is asserting its right and the other party is resisting. But," she continued, "in the instance case, although President Trump veers that he is bringing this lawsuit in his personal capacity, he is the sitting president and his named adversaries are entities whose decisions are subject to his direction." Oh, snap. And the court then cites some of the executive orders invoking the unitary executive theory.

• 1:12:22Melissa Murray?

  If it's so unitary, it can't be adverse, bitches.

• 1:12:27Melissa Murray?

  I don't make the rules.

• 1:12:30Kate Shaw?

  It was great. Short, like, very punchy. Yeah, it was great. And sort of another development kind of related came from a district judge in New York, Judge Furman, who is overseeing Maureen Comey's case challenging her removal from the US Attorney's Office. She's a longtime, very respected federal prosecutor. Her father is Jim Comey. Judge Furman found in Maureen Comey's case that he did have jurisdiction. This is a case challenging her firing, and he says that it did not have to be filed, as the federal government claimed, before the Merit Systems Protection Board, the agency overseeing the civil service that Trump has hobbled and asserted control over. The judge found that federal court, not the MSPB, had jurisdiction over the case because, get this, the president invoked his Article II power as the basis for firing her. Quote, "Comey's case does

• 1:13:14Kate Shaw?

  not fall within the purview of the Civil Service Reform Act's scheme because she was fired pursuant to Article II of the Constitution, not pursuant to the CSRA itself. Defendant's sole reliance on the Constitution rather than the removal provisions of the CSRA places Comey's case outside the universe of cases that Congress intended the MSPB to resolve."

• 1:13:34Melissa Murray?

  Sometimes you gotta read it.

• 1:13:37Leah Litman?

  Too legit to quit. You do read that for the articles. You read the Constitution for the articles.

• 1:13:41Melissa Murray?

  I did. I said that.

• 1:13:43Leah Litman?

  Yeah. But you live by the unitary executive, you die by the unitary executive. I'm not even sure if I am allowed to say "die" in the same sentence as "executive" or if I will be indicted.

• 1:13:53Kate Shaw?

  You're not writing it in seashells.

• 1:13:55Leah Litman?

  No seashells. No seashells. Okay, okay, great. Thanks. Good to know. Great tip. Also, the opinion by Judge Furman has a nice cite to Kate's partisanship creep article in there. Always read the footnotes in addition to the articles. So I don't want to characterize these judicial opinions as trolling. They're much more dignified, reasoned, and elegant than that, but I do love the energy.

• 1:14:15Kate Shaw?

  Okay. As promised, let's briefly do the other argument recaps. And let's start with Chattery versus United States, which is the Fourth Amendment geofence warrants case that we briefly previewed last week. So as we said, to the kind of Fourth Amendment stands, this is a really important Fourth Amendment case involving the constitutionality of this novel type of warrant called geofence warrants.

• 1:14:36Melissa Murray?

  Warrant lets law enforcement get the identities of cellphone users in particular areas or locations at particular times. They basically draw a kind of virtual fence around an area, and then they seek a warrant to require a tech company to search its data to ID users within the geofence at the time of the crime. But then, as is the case here, the government sometimes conducts additional information gathering about the people it identifies. So here, after identifying some individuals, the government then requested location data over a longer period of time.

• 1:15:08Leah Litman?

  So in this case, after there was a robbery of a federal credit union during which a robber apparently was talking on his cellphone, law enforcement asked Google for cellphone records of everyone in the vicinity within one hour of the robbery. And Google has this data because millions of people have a feature called "location history" turned on in Google Maps whether or not they realize it.

• 1:15:27Kate Shaw?

  So after Google returned an initial list of people within 150 meters for 30 minutes before and 30 minutes after the robbery, law enforcement sought and didn't get an additional warrant for this step, information about the movements of certain devices for a longer two-hour period, and Google complied with that request.

• 1:15:43Melissa Murray?

  Then, again, without seeking an additional warrant, law enforcement asked for subscriber information for three devices. One of those devices belonged to the petitioner. Based on the evidence derived from the geofence warrant, the petitioner was charged with armed robbery and firearms possession.

• 1:15:59Leah Litman?

  I think it might be helpful, and the court seems inclined to go in this direction, to think about this case as involving a few different steps or actions. One is the geofence, that is, seeking information just about who is in a given space at a given time. The second is the subsequent information collection, seeking the location movements for some number of people for a period of two hours. And the third is the request for subscriber information.

• 1:16:21Kate Shaw?

  Yeah, and it seemed like the court was not inclined to say there was a reasonable expectation of privacy at step one, sort of of the kind of the geofence warrant. So the company is asked, "Send us all the people in this area at the time, and maybe you, as one of the people who was in the area, don't actually have a constitutionally cognizable interest in not having that information that you were there around this time disclosed." So maybe the court is going to go or sort of kind of focus its attention on the second and third step of the process that we just walked through.

• 1:16:50Leah Litman?

  Which is interesting because requiring more particularity at different steps of the process would not necessarily be an insignificant change in Fourth Amendment doctrine, at least, you know, once you cross a certain threshold of probable cause reasonable suspicion, there's kind of no variation within there, maybe not an unwarranted change, but still a change.

• 1:17:08Melissa Murray?

  There was real discomfort, though, with the government's argument that there was consent or voluntary disclosure of the location information here. You know, the idea was that the people didn't turn off the location tracking information and therefore they had consented to this kind of treatment. As the justices noted, a lot of people find that useful to use, the location tracking, you know, like find your phone, whatever. The justices were also reluctant, it seemed, to rely on the terms of service, that is, where Google tells users that it complies with government requests for information. And the point was that even if they said that it mattered, that could potentially allow the government to get access to email and whatnot. And as we mentioned, it seemed like the justices were interested in the idea that at different steps of the process, the

• 1:17:52Melissa Murray?

  inquiry here might change for purposes of the Fourth Amendment. And Justice Jackson was really keyed in on this early on in the argument.

• 1:18:01Kate Shaw?

  Something that came up a bunch of times in the argument was this analogy that the petitioner had offered, that these warrants are like directions to go through everyone's storage locker. So you have like a big storage site and like tons of storage lockers. Could the police just ask the owner to search everybody's storage locker for like a gun? And Justice Kagan likened the steps in the geofence process to the idea that first the government looks at a bunch of glass front lockers to see if they have bags. So, right, imagine not an opaque, but like a see-through door to the locker. And then the government feels the outside of the bags and then they open the bag. And like, those are distinct steps in the process.

• 1:18:34Melissa Murray?

  Yeah. So the federal government, again, here, as in the TPS case, really did itself no favors in the argument. They poo-pooed several justices' concerns that geofence warrants might allow the government to surveil people at sensitive locations, such as churches or homes, which are supposed to be entitled to special protection under the Fourth Amendment. And this seemed to potentially peel off both the Chief Justice and Justice Barrett.

• 1:18:55Kate Shaw?

  It was interesting. So you had the kind of valence of the examples given. So you had churches, you had homes. Abortion clinics came up a couple of times as well. So different justices might have been differently moved by imagining the invasion of privacy that might occur at different kinds of locations. Kavanaugh seemed to be kind of on the other side with his like but crime logic, which is ever present. And you can sort of hear that in this clip.

• 1:19:16Speaker 03

  The local government amicus brief and the 31 states amicus brief, which has a huge spectrum of attorneys general on that amicus brief, which I think warrants note, talk about the practical consequences of not being able to solve murders. A lot of, you know, huge percentage of murders are never solved, for example, in violent crimes.

• 1:19:35Melissa Murray?

  You know, who also seemed to be on one? Justice Alito seemed to be very triggered that the court might rule for a criminal defendant. And so he was putting in work to find a way to avoid that unpalatable outcome. Take a listen.

• 1:19:50Speaker 03

  Well, we can affirm on any ground that would support the judgment and was raised below. And the good faith exception qualifies on all those points. So the fact that the court did not grant certiorari on the good faith exception does not preclude any of us from relying on that.

• 1:20:09Speaker 07

  I'm not sure I agree. We would, I mean, the court specifically declined certiorari on that question. So we didn't brief it. And we raised in our cert petition that we'd like the chance to argue that the questions are intertwined. And in view of a holding on the Fourth Amendment issue, we'd like to, you know, litigate the good faith issue. The court didn't grant certiorari. We didn't brief it. The government did have a section of the respondent's brief addressing the good faith exception, but adhering to the court's decision not to grant certiorari, we didn't respond in the reply brief, except to ask for a remand. So

• 1:20:35Speaker 03

  Well, that was your choice.

• 1:20:37Speaker 07

  The court did not grant certiorari. We were reluctant to brief a question on which the court specifically declined.

• 1:20:41Speaker 03

  Well, you're an experienced advocate. You understand that we can affirm on an issue that was raised below and would support the judgment.

• 1:20:50Leah Litman?

  This is not how Supreme Court practice works. Like, a party can't just decide, "We're gonna brief and argue this separate question you didn't actually grant cert on." It's just not how it works. Like, they would go nuts if someone did that. That's, they dismiss cases for that.

• 1:21:07Kate Shaw?

  Completely. I couldn't believe just how craven it was. It was like, "I want to find a way to get to the outcome that I want." And so I'm gonna say something I would never, in other circumstances, say, which is, "You should have ignored our decision to take but not take, like, certain parts of this case and just, like, briefed everything anyway." Um, yeah, so Adam Nocaske definitely won that exchange, I thought.

• 1:21:27Leah Litman?

  Yeah. Um, so the court heard several other arguments that we're not going to fully recap in the interest of time. This is just a crazy week. We're also not able to cover Pete Kegseth, Kegs Breath, whatever, his testimony. I did a short YouTube reaction video on the Comey indictment. Like, there was just so much going on this week. But at the court, the court heard Monsanto versus Dornell, which is about preemption of state tort suits for failure to warn claims about when and whether, under the Federal Insecticide, Fungicide, and Rodenticide Act...

• 1:21:56Kate Shaw?

  I'm sorry, FIFRA is my favorite federal statute.

• 1:21:59Leah Litman?

  It's a nice one. It's a nice one.

• 1:22:02Kate Shaw?

  Yes.

• 1:22:03Leah Litman?

  The oral argument in the case was hard to read. It could end up being an anti-administrative screed for the plaintiffs, or it could be a ruling for corporate defendants whose products allegedly cause cancer. Really difficult for this court to choose between those two options.

• 1:22:17Kate Shaw?

  This is a hard one to know where to root. It really was.

• 1:22:19Leah Litman?

  Cross pressure. Cross pressure. Um, as Kate alluded to, there was also Cisco versus Doe. There, the court appears inclined to limit the scope of liability under the Torture Victim Protection Act and Alien Tort Statute, because why allow torture victims the opportunity to allege US companies aided and abetted torture?

• 1:22:38Leah Litman?

  Why not? Um, the court also heard the first patent case. It's heard in a few years. Hikma Pharmaceuticals versus Ameren Pharma, where, just based on my read of the oral argument, it sounded like the court was going to reject one theory of liability for induced infringement against certain generic drug manufacturers whose products are approved for both patented and unpatented uses.

• 1:22:58Kate Shaw?

  All right. So finally, let's turn to opinions. We've obviously covered Calais, although we're going to return to it again and again. But we also got the court's opinion in First Choice Women's Resource Center versus Davenport, the case about whether the plaintiff, a crisis pregnancy center, had standing to challenge an administrative subpoena issued to them by the state of New Jersey, where the state sought information that would help the state determine whether the organization was in compliance with state consumer protection laws and included in that information that would have been produced pursuant to the subpoena was identifying information about donors.

• 1:23:30Melissa Murray?

  The court held that the organization had standing to challenge the administrative subpoena in federal court. The state had argued that there was no risk of injury because the subpoenas didn't generate any legal penalties unless and until the state convinced a state court to enforce them. The court, thankfully, did not second guess the state's reading of state law that those subpoenas are not self-executing. The court instead said the risk or prospect of enforcement was sufficient to cause injury. The opinion was written by Justice Gorsuch, and it was unanimous.

• 1:24:00Leah Litman?

  This result was not surprising, given how the oral argument went, although, as we talked about with the New Jersey Attorney General in our episode recapping the argument, the ruling does really open up the ability to challenge thousands and thousands of administrative subpoenas that are routinely issued by state and federal governments all the time, which has the potential to overwhelm federal courts and jam up legal enforcement. But as we suggested, this outcome might reflect a new reality of the intense politicization, weaponization of law enforcement in the Trump administration, where the justices may have been kind of forced to recognize the extent to which the government uses its investigative powers, including administrative subpoenas, for abusive ends, and therefore may have wanted to open up a path to challenging them earlier on in federal court. I mean, this last week,

• 1:24:45Leah Litman?

  we got the indictment of Jim Comey. We learned that maybe the investigation into Federal Reserve Chair Jerome Powell had ended, although Carolyn Levitt suggested maybe it hadn't. And there was, you know, has been reporting about how the Trump administration has issued administrative subpoenas to people who criticize the administration or question them.

• 1:25:01Kate Shaw?

  So it's been a lot, and I think the pace is probably going to continue. So let's leave you. Well, we'll get to favor things, but first, we've got two clips without context. We're going to play for you. Here is the first one from Chattery, the defense Fourth Amendment case.

• 1:25:15Speaker 07

  Counsel, I'm sorry, are you through? You're wrong. I want to go back to Justice Barrett's. If you're not through, Sam, I thought you were through. Go ahead.

• 1:25:27Speaker 07

  Let's go back to Justice Barrett's question.

• 1:25:31Leah Litman?

  If you're not through, Sam, this was, you know, in the lead up to Kelly.

• 1:25:36Kate Shaw?

  Please be through, Sam.

• 1:25:37Leah Litman?

  Please, please, just pipe down.

• 1:25:38Kate Shaw?

  I thought you were through, but that was probably just wishful thinking.

• 1:25:42Leah Litman?

  Yeah, and here's the second clip without context, this one from Cisco.

• 1:25:45Speaker 07

  Justice Barrett, if I could just pause for a moment, I've been notified that there will be a flyover of four planes at 11:22, and I just want to announce that so people aren't alarmed or told the noise might be, might be big. I don't know why they didn't check with me, but, Justice Barrett.

• 1:26:05Leah Litman?

  This caught my attention because we joked about them using the shadow docket to intercept missiles that would destroy an asteroid headed for Earth, and it sounded like the Chief Justice was maybe potentially opening that door or leaving it ajar. Okay, so favorite things?

• 1:26:19Melissa Murray?

  All right, let's do it. You start.

• 1:26:21Leah Litman?

  Okay, so Melissa's book, The U.S. Constitution: Comprehensive and Annotated Guide for the Modern Reader. Also, Ariana Grande announced a new album. I'm so excited, end of July, and I'm going to see the NoahCon concert. I got tickets, so those are good things. Also, two Voting Rights Act pieces on the opinion I wanted to flag here. Sherrilyn Eiffel's post on her Substack, SCOTUS Drops the Other Shoe on the Voting Rights Act was phenomenal, as was Rick Hossins', The Slaying of the Voting Rights Act by the Coward Samuel Alito at Slate. Yes, that's the actual title. And then a YouTube, over at Jamel Bowie's channel, Takes. This one was, I think, inspired by the Voting Rights Act decision, and this one is

• 1:27:05Leah Litman?

  entitled, The Supreme Court is Corrupt: This is What We Can Do About It, and it really walks through the options of Supreme Court reform.

• 1:27:10Kate Shaw?

  Oh, that's great, yeah. I want to second Melissa's book and also the merch. Again, I'm not wearing the t-shirt, but I got a great mug. At some point, I'll have the actual, physical book, and then I will flash it for you. I'm finally reading The Loneliness of Sonia and Sonny, which many, many people have read and loving it. Most people did, but I think I've heard somewhat mixed reviews, but so far, really love it. I mean, I recently read Ben Lerner's new novel, Transcription, which I'm thinking about a lot. I felt differently about it at different points as I was reading it, but highly recommend it, although I didn't always like it, and I'm really glad I read it. Yeah, that's all I got.

• 1:27:43Melissa Murray?

  All right. It was kind of a week. It was a big week and I just want to thank all of my mom friends who we came to. We had a big kid event this last weekend and we all came together and I just want to shout out those ladies. They are absolute bosses and we did that. So, thank you, ladies. I am reading "Yesterday" by Caro Claire Burke and it is so fucking satisfying to read this. So, the premise is about like one of these trad wife influencers who has like, you know, like a ballerina farm, I guess, and then suddenly finds themselves transported back in time to the actual frontier. And I just kind of love it. Like, you want to be an anti-vaxxer?

• 1:28:26Melissa Murray?

  Okay, have some measles. Try that. See how it works. So, I'm actually kind of enjoying it.

• 1:28:31Leah Litman?

  Speaking of fucking around and finding out.

• 1:28:35Melissa Murray?

  I love it. So, I'm really enjoying that book. I also really loved many of the thought pieces that came out the last two days around the decision in Calais. You mentioned Sherilyn Eiffel's fantastic Substack. I will also say, last week, the Studio Museum honored Sherilyn Eiffel and she just gave one of the most amazing and inspiring speeches, basically telling us like, this is not going to change in our lifetime, but that doesn't mean we don't do the work. Like, we do the work so that our children and grandchildren can sit in the shade of trees they did not plant. And, you know, I don't know who needs to hear that right now, but it's not the time to put your plow down. You gotta keep going. And I appreciated that. I also loved Adam

• 1:29:16Melissa Murray?

  Serwer's piece, "Voters Can Be Disenfranchised," because, yeah, we're gonna see that and I'm glad he's speaking truth to power. I also want to say, just in terms of my favorite things, I'm trying to think about what I can do in this moment as a black person, a black woman, watching these gains that my ancestors, people I love, fought for, watching them just be rolled back. One of the things that seemed clear to me is that People are not going down without a fight. There's redistricting that is happening in Louisiana and Florida and the NAACP Legal Defense Fund and our friend of the pod, Janine Nelson, are suing the fuck out of them. Yeah. And I love that. I love that they're taking the fight to them and they need our

• 1:30:00Melissa Murray?

  help. So, you know, someone asked me, like, what can we do? We can contribute to that. They need resources to be able to launch that litigation. That is something tangible you can do right now. So if you can support that work, that's amazing. That's, you know, don't despair. Help the people who are fighting. Prepare for the next leg of this fight.

• 1:30:19Kate Shaw?

  Amen.

• 1:30:21Leah Litman?

  One other just note about Calais. We're gonna sandwich this. If you Ctrl-L that decision for Purcell, you will not find a single mention, even though of course-

• 1:30:30Melissa Murray?

  Who dat?

• 1:30:31Leah Litman?

  Right.

• 1:30:31Melissa Murray?

  Who dat?

• 1:30:31Leah Litman?

  New phone. Who dis? Because that case says federal courts not supposed to change the rules too close to an election. They did so, causing states to literally suspend and cancel elections.

• 1:30:44Melissa Murray?

  Quite close to an election. Girl, there's gonna be a Neil Gorsuch decision a couple of years from now. It's like, everyone knows Purcell has been abandoned for lack of use.

• 1:30:52Leah Litman?

  Only when, again, certain people are invoking it.

• 1:30:55Melissa Murray?

  That's true. That's true.

• 1:30:56Kate Shaw?

  All right, on that note, spring is all about fresh darts, new t-shirts, and terrifying new reasons to call your representatives. The Crooked Stores Call Congress line has been a bestseller since it launched years ago, and now it's available in new spring colors like butter yellow and chocolate brown. Plus, all the pieces got a quality upgrade so your favorites can stay in rotation even longer. So can I just say quickly, I was in Japan for my kids' spring break a couple of weeks ago, and I have the, in navy blue, the Call Congress hat with like, the number on it, and it's a great hat. And my kids were like, what if people in Japan start calling Congress? And I was like, that's fine. They can. Anybody can call Congress. And actually, the number is just the number of the congressional switchboard. So it will direct your call to whatever representative you want to talk to, cajole, or yell at. So anyway-

• 1:31:41Melissa Murray?

  Chuck Schumer. It's Ed Weege.

• 1:31:45Kate Shaw?

  Right. That, you can call about that. You can call about new voting legislation and anything else your heart desires. Anyway, honestly, it's like, hard to do the first time and actually, a lot easier. And then kind of fun to do subsequently. So get the muscle memory of calling Congress.

• 1:31:59Leah Litman?

  I love to call and just be like, so what's your plan about Sam Alito? Like, what are you gonna do?

• 1:32:04Kate Shaw?

  I've never called with that with that with that query, but I think I should.

• 1:32:07Leah Litman?

  I do whenever I like have some rage, I like need to get you out.

• 1:32:11Kate Shaw?

  Yeah, no, I'll usually call if there's like something specific, but never just like a general Sam Alito rage call. That's interesting. Okay. Well, anyway, whatever motivates you to actually take the step, calling your representatives has never been more important. So you can make spreading the word easier if you throw on the hat, the T-shirt, the crew neck, like all of that. Again, I guess, and new colors is available at crooked.com/store. So go there, shop now, and you yourself make three calls this weekend.

• 1:32:35Melissa Murray?

  All right. Heads up, New York and the greater tri-state area because you know what? Your favorite lovely ladies dissing the court, they're coming your way. That's right. You can catch Strict Strutiny live at the historic Gramercy Theater on June 20th as part of the Bad Decisions Tour. And it's only May, which means there's gonna be a lot of bad decisions that we can talk about. Tickets are on sale right now. You can grab them at crooked.com/events. I will just say they are going fast. So if you want to hang out with us, you gotta do this, like get on it. It's going to be so hype. Like our, our live show in New York every year is always really dope.

• 1:33:14Leah Litman?

  Yes, it is.

• 1:33:15Kate Shaw?

  It's gonna be really fun. I'm excited.

• 1:33:17Melissa Murray?

  I mean, um, you know, we're not going to be in a stage set piece like Lily Allen, but it is going to be pretty badass.

• 1:33:24Kate Shaw?

  We don't know that for sure. We haven't even had, we haven't even had the design meetings yet.

• 1:33:27Leah Litman?

  Out, walking out on stage with a

• 1:33:31Kate Shaw?

  Dwayne Reed bag.

• 1:33:32Leah Litman?

  Long, well, no, maybe a Dwayne Reed bag. I was gonna say a long drape of receipts with Sam Alito opinions printed on them that I can just like shred.

• 1:33:40Kate Shaw?

  Wrap around yourself like a ribbon, the way she does.

• 1:33:42Leah Litman?

  No, I would shred it. I would shred it.

• 1:33:44Kate Shaw?

  I'd love that. Cool. Okay. So then we're working on the props, stagecraft, all of that TBD. But you want to find out? Get a ticket.

• 1:33:56Melissa Murray?

  Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, 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.

• 1:34:51Kate Shaw?

  Long Play, our docu-series exploring the people and forces shaping the South, is back. Newsflash: The South is the new political epicenter of the country. Democrats are way on their heels in this region, but Republicans are going through their own reckoning in the South, too. We're in the final stretch of the midterms, and the political map has only gotten more competitive with new states and districts emerging as potential flips. So we thought it was time to get back out on the road and take a closer look at what's actually happening on the ground. I'm Erin Haines, journalist and expert on all things Southern politics. And I'm Jennifer Palmieri, former White House Communications Director. Tune in on Mondays to Long Play Series on YouTube or wherever you get your podcasts.

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• 1:36:15Speaker 02

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