The DOJ is a Corrupt Clown Show

Leah and Melissa break down the administration’s latest lawsuits, from the DOJ’s fight over Alaska’s Senate candidacy, to its efforts to force California to turn over voter information, to Trump’s golf course fiasco. They also recap the latest developments at the Supreme Court, including a lower court ruling on New Hampshire’s election guidance for student IDs and the Court’s decision not to hear a significant copyright dispute out of the Fifth Circuit. Plus, they unpack the administration’s seemingly endless legal corruption, from Alina Habba to Vivek Ramaswamy’s disgusting Ohio campaign ads targeting his opponent, Amy Acton. Then, Kate talks with Rachel Shelden about her new book, The Political Supreme Court: A Forgotten History https://bookshop.org/p/books/the-political-supreme-court-a-forgotten-history-rachel-a-shelden/77527c89786ee3ce?ean=9781469697130. Favorite Things: Leah: Attachments by Rainbow Rowell https://bookshop.org/p/books/attachments-a-novel-rainbow-rowell/f2502615e58b7e6b?ean=9780452297548 | Queen of Lombard Street by Lisa Kleypas https://bookshop.org/p/books/queen-of-lombard-street-large-print-a-novel-lisa-kleypas/d4c327f482a59603?ean=9780063247635 |Talarico x The Chicks https://bsky.app/profile/teamtalaricohq.bsky.social/post/3my4tyaaoxy2d | You Can See Everything |Pablo Torre on Vivek https://www.youtube.com/watch?v=gCgCa51oLf4 | Lily Allen celebrating the one-year anniversary of West End Girl with a sex toy launch Melissa: Happy Anniversary Mr. Melissa Murry! | The Diplomat Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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

• 0:00Melissa Murray?

  Strict scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school season, and this year, 5 million children across Texas are going to be greeted by the 10 commandments in their classrooms. Texas politicians passed a law requiring the 10 commandments to be displayed in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court, and we need you to amplify their voices before the Supreme Court gets its hands on this case.

• 0:34Speaker 01

  They're going to go up, but we're going to fight to get them taken down.

• 0:39Melissa Murray?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. There's a human cost of Christian nationalist policies like these 10 commandment laws and the decisions that the Supreme Court hands down. You can visit au.org/10c to learn more about this case and how you can help join the fight to protect church-state separation.

• 1:11Speaker 02

  Crooked Con is coming up right after the election, and we have just added a bunch more great names to the lineup. We got Governor JB Pritzker coming, Senator Chris Murphy, and then over from the House side, Ilhan Omar, Robert Garcia, Sarah Jacobs, Jamie Raskin, Sarah McBride. We also have Carlos Eduardo Esquina, 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.

• 1:45Speaker 03

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• 2:13Speaker 04

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

• 2:26Speaker 05

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

• 2:56Melissa Murray?

  Hi, everyone. It's Leah here. So in this episode, you will hear Melissa and I talk about a lawsuit that the Department of Justice filed against the state of California that is trying to force the state not to count certain ballots, which DOJ alleges were cast by non-citizens. As we say in the episode, this lawsuit is ridiculous. But after we sat down to record, the Ninth Circuit Court of Appeals, that supposedly very liberal court, scheduled a late Sunday afternoon, seeming emergency Zoom hearing on it. This is, to put it mildly, more than a little terrifying. For one thing, the court shouldn't even be entertaining DOJ's claims to be in the Ninth Circuit, which is a court of appeals that hears, you know, appeals. There's nothing to appeal at this point. The trial court hasn't ruled. But the Ninth Circuit is indulging DOJ's attempt

• 3:40Melissa Murray?

  to circumvent the normal litigation process by scheduling this argument, so that by itself alarming. More importantly is that DOJ is making an argument that resembles an argument the Trump campaign attempted to press in 2020. Back then, the campaign insisted there were irregularities in votes that required thousands of votes to be thrown out, even the votes that were lawfully cast under the state rules. No court bought those arguments. These were also the arguments that Trump unsuccessfully attempted to press his DOJ to make, again, back in 2020. But back then, DOJ largely didn't bite. Things are very different now. Now, the Trump DOJ is advancing a version of the claim the Trump campaign did, in which it's urging courts to throw out ballots it alleges were unlawfully cast, even though it has yet to produce any real

• 4:25Melissa Murray?

  evidence to that effect. And now, a court seems to be taking these arguments at least somewhat seriously. The panel of judges in this case is two Trump-appointed judges. This seems like a sign about the real dangers that we attempted to talk about with respect to the Trump takeover of the federal courts. That may be coming home to roost now, as Trump-appointed judges and the Trump DOJ potentially cross this Rubicon of throwing out votes as an election is already underway. Safe to say, we're monitoring this case, and in the event there is a ruling that allows the Trump DOJ to do any of what is asking, we will share real-time rapid reactions. We're hoping that won't be necessary because of the many reasons this lawsuit should fail. Federal law that makes it a misdemeanor for non-citizens to vote doesn't give DOJ the

• 5:10Melissa Murray?

  authority to tell states what ballots it counts. A separate federal law bans voter purchases in the 90 days before an election. DOJ hasn't explained why it waited to force this issue until the election is underway. There's nothing to appeal. I could go on. So keep this in mind as you are listening to Melissa and I talk about this ridiculous lawsuit, and we will be monitoring it in the days ahead. Welcome back to Strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts for the first part of today's episode. I'm Melissa Murray. I'm Leah Litman. And one downside of this being only a weekly podcast is that we have nowhere near enough time to cover all of the ongoing legal matters involving this administration. But a between-sitting episode, which airs after a

• 5:55Melissa Murray?

  week in which the court does not hear oral arguments, gives us more time to do so. So lucky us. Today, we're going to spend our time on some recurring nightmares: election fuckery, FUs to the rule of law, and grifting. Or just another week in the second Trump administration. Woo! Okay. Phew. And after we chat about all of those legal goings on, we are going to bring you a great conversation that Kate had with author Rachel Shelden about her new book, The Political Supreme Court. And as always, we'll end with our favorite things. Here's a spoiler: none of them are election fuckery, grievance, or grifting. And that means we have to start there. So first up, election fuckery. People have rightfully been concerned about what

• 6:40Melissa Murray?

  this administration might try by way of election interference. And in the last week and change, some of their plans seem to have been revealed, with a focus on the West Coast. So as we sat down to record, the Trump administration decided to have a go at Alaska. They have sued Alaska over Dan J. Sullivan's Senate candidacy, arguing voter confusion could affect the race between Senator Dan S. Sullivan and Democrat Mary Peltola. As they say in the biz, this lawsuit is horseshit. First, nothing in the Constitution makes it illegal for people with the same name to appear on the ballot. I would know because I can read. Also, the executive branch doesn't have authority to regulate or override states' election

• 7:24Melissa Murray?

  decisions about whether a candidate is qualified. The Alaska Supreme Court already held that all the candidates were qualified and would appear on the ballot. But federalism. Seriously, this lawsuit is so embarrassing. It's the sort of thing that if an IFP, in form of a parous, pro se litigant filed, they would get a strike for, because it's so baseless. Like, it would go toward a court having to pre-approve any subsequent litigation they could file. And now, these suits are being filed by DOJ, the new vexatious litigant. Well, can I just throw something out there? Yeah. You know how we could avoid all of this, Alaska? Stop nominating Dan's. Start nominating a Danielle. Nope. New DEI, right?

• 8:08Melissa Murray?

  Dan's, ex-husbands, and imbeciles, Melissa. I'm saying, these cases happen a lot. I was actually talking with Michael Waldman of the Brennan Center about this litigation. And he's telling me, like, this is a pretty standard playbook, that, you know, sometimes parties will run someone with the same name to do this. And he talked about-- Not illegal. Again, it's not illegal to do it. But again, most of the time, it's been happening, usually because there are guys with the same names, and it's very easy to put them out there as candidates. But wait for it. If you tried a little gender diversity, this might be a little harder. It might be. DOJ's choice to file this baseless suit just days before an election seems to confirm what we have

• 8:53Melissa Murray?

  long known and been saying. This DOJ is a corrupt clown show. The suit--

• 8:58Speaker 06

  Seems designed to feed narratives to undermine election results if and when they are unfavorable to Republicans or to try and bolster subsequent efforts by the DOJ to intervene and interfere if the election results are close.

• 9:13Melissa Murray?

  Seems like a plan. In other news from the West Coast, best coast, California became the latest target of a DOJ lawsuit that seeks to force the state to turn over its voting rolls to the federal government and then make them rely on the Trump administration's unreliable voter information. In this case, the administration alleges that there are non-citizens who are supposedly voting in droves. DOJ, we should note, is currently 26-0 in lawsuits that it has tried to file to force the states to turn over voter information so that DOJ can find the evidence that it knows exists. Without actually possessing any of the evidence

• 9:54Melissa Murray?

  it is sure exists that non-citizens are voting. So lots of evidence saying that this is not a real problem. DOJ continues its quest to find it. And like Inspector Gadget, hasn't really succeeded. But keep hope alive, folks, with another lawsuit. So maybe the 27th time will be a charm. So DOJ is suing California and it alleges that DOJ has uncovered a few thousand ineligible voters who are registered to vote. And wait for it, DOJ has all of this information about these registered non-citizens on a very secure thumb drive. That's right.

• 10:34Melissa Murray?

  Because this is the new election security for this administration. Information security, all at your fingertips. Literally, you're just your thumbs. Never mind, that was, I guess, Trump 1.0.

• 10:48Speaker 06

  Yeah, that was the Information Security Administration.

• 10:50Melissa Murray?

  That was the, we've moved on.

• 10:52Speaker 06

  Correct, right. But there are any number of reasons to think this is all bunk. DOJ now says there are 20,000 some non-citizens who are registered, but last summer, right? As in, a few months ago, it was saying the number was almost 200,000.

• 11:07Melissa Murray?

  That's a pretty big delta.

• 11:08Speaker 06

  Yeah, like an order of magnitude. It's almost like they can't read or do math. Open the schools, please.

• 11:15Melissa Murray?

  Open the schools.

• 11:16Speaker 06

  You know, when another state, Nevada, investigated DOJ's allegations about non-citizens who are supposedly registered to vote, Nevada found precisely zero non-citizens who were actually registered to vote.

• 11:28Melissa Murray?

  DOJ is also subject to a court order in the District of Columbia that bars it from carrying out what is known as its list maintenance project, which sought to obtain Americans' confidential voter information and compare that against federal immigration data, all in an effort to cull state voter rolls. We'll return to this whole question of compliance or lack thereof with court orders in a second. But just to note that despite all of this losing, DOJ said, who cares? And continued to sue California anyway. It immediately moved for a court order seeking to prevent the Golden State from counting these 20,000 votes. DOJ then seems to have attempted to manufacture evidence in support of its uncorroborated claims

• 12:13Melissa Murray?

  by charging 28 non-citizens with having illegally registered to vote. The non-citizens who were charged were interviewed by the Los Angeles Times and they said they have zero recollection of registering to vote. One of the people who was arrested is recovering from cervical surgery, rotator cuff repair on a shoulder and a double knee replacement. Just pointing this out because seems like this might make it hard to get down there to register to vote.

• 12:41Speaker 06

  But DOJ insisted on conducting these arrests in a very public fashion, which makes it seem like these are show prosecutions. And it also initiated them at a moment when the cases are certainly not going to be resolved prior to the election. That is, we won't know by the time of the election whether these are cases of mistaken identity or accidental registration or something like that, which makes it seem like these cases were designed to stoke conspiracy theories because the underlying facts won't be resolved before the election. Instead, it seems like a spectacle to feed the conspiracy propaganda beast.

• 13:17Melissa Murray?

  And Attorney General Todd Blanch is refusing to rule out the prospect of DOJ subsequently suing to stop states from actually certifying the votes. So again, that would likely be based on one of these crazy conspiracy propaganda theories. So take a listen. Is there any scenario in which DOJ would weigh in on that certification process or trying to block states from certifying? I mean, is there any scenario? Yes, of course, there's scenarios that we could all come up with hypothetically. You know, some doomsday scenario, for example, right? So I don't think it's proper to, um, to make any kind of conclusory statements about what's going to happen in the future. Because I have no idea what's going to happen in the future.

• 13:59Melissa Murray?

  It is not DOJ's intention to, and it's never our intention, to improperly interfere with elections or the state confirmation process or certification process. But, you know, to say that there's no circumstances that we would ever do that, of course, I'm not going to say that. Of course, I'm not going to say that. I mean, you know, I would never want to interfere in a state certification processes because federalism. But, uh, you know, things happen and I guess.

• 14:24Speaker 06

  California and Alaska.

• 14:26Melissa Murray?

  I mean, so yeah, that is not a no from Attorney General Todd Blanch. On the question of voter registration prosecutions specifically, I think we can say thank you to our favorite institutionalist, Chief Justice of these United States, John G. Roberts and his band of merry men and one lady, who once told the president that sham investigations and baseless prosecutions were within the scope of his executive powers and not something that he could be prosecuted for. So wow, I learned it from watching you, Dad.

• 15:03Speaker 06

  Turned out so great. Really one for the ages, as the chief was aiming for. So a hearing in DOJ's case against California is scheduled for this upcoming week. DOJ, which is definitely represented by the best of the best these days because DEI, that DOJ is arguing that having the League of United Latin American Citizens and the NAACP, LDF intervene in the California case, quote, "creates additional unnecessary work for the court and for the attorneys because the civil rights lawyers are, quote, filing motions, calling and requesting meetings and briefing schedules," end quote.

• 15:40Melissa Murray?

  Those damn DEI lawyers trying to do those lawyering things. I mean, just the jokes write themselves. I don't even know what else to say about this. DOJ, of course, is trying to make all of this even more of a clown show because after the federal district court failed to act within hours on DOJ's request to expedite the TRO hearing, DOJ appealed the case to the Ninth Circuit, saying that the failure to act with sufficient alacrity was effectively a constructive denial.

• 16:17Melissa Murray?

  I don't know who needs to hear this, but that's not how appeals work.

• 16:21Speaker 06

  All of DOJ might need to hear this. Because, right, these chucklefucks are running an absolute parody of legal proceedings. The prosecutors and DOJ cannot even keep straight how they are referring to the people who are supposedly unlawfully voting and unlawfully registered. Like sometimes they're just suspected. Other times, it's likely. Other times, it's confirmed, right? Like it's unclear and it's all chaos. And DOJ also, love this one, elected to make the real galaxy brain move of telling the court that their DOJ's TRO motion in the California case, that was an emergency. But California's motion to dismiss, not so much. It's a Schrodinger's emergency case.

• 17:03Melissa Murray?

  That's a very deep cut and you have to read in order to understand it. So if you're a DOJ lawyer listening, crack open a book, figure it out. Schrodinger's cat, that's going to be the clue.

• 17:17Melissa Murray?

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• 18:01Melissa Murray?

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• 18:45Melissa Murray?

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• 19:28Melissa Murray?

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• 20:12Melissa Murray?

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• 20:45Melissa Murray?

  Not only can we blame the Supreme Court for these seemingly show prosecutions, we can also blame the court for even more damage to our democracy. So last week, on the shadow docket, I mean, excuse me, interim emergency docket, the Supreme Court blocked a lower court order that restricted New Hampshire's election guidance about the use of student IDs. Back in April, New Hampshire's Secretary of State ordered officials to avoid reviewing student IDs, even in conjunction with other documents, for voters who are having trouble establishing their identity when checking in at the polls or when they were requesting absentee ballots. A lower court blocked the guidance, probably because it would have made it harder

• 21:28Melissa Murray?

  for students who, get this, are more likely to vote for Democrats to vote. Well, guess what? New Hampshire Republicans took that personally, and they went to Daddy SCOTUS on the shadow docket to ask it to please, please, please intervene to stop these big, bad students from bullying us, I mean, voting. And SCOTUS said, hello, a state restricting voting? Did someone say this was a party? Because yes, please, I would like to play. And the court stepped right in, as expected, right on time. Wham-bulance was there, nine wah-wah. On the topic of the Supreme Court and democracy or not democracy, Justice Elena Kagan delivered some remarks at Catholic University Law School last week.

• 22:13Melissa Murray?

  Where she said, quote, "In all these areas, the court has blinded itself to the very deleterious effects of their rulings on how the political system works and has created a democracy that doesn't work as well as it should." In her remarks, she talked about how the court was undermining democracy through decisions on voting rights and partisan gerrymandering and dark money in elections. She added, quote, "I think the people of America look around this political system and think that all this money chasing all these political candidates is a nightmare, and they're right." Indeed, they are, because The Washington Post and Bloomberg have reported that PACS, political action committees that are backed by one Elon Musk, have now spent over $400 million in the upcoming midterms. Turns out, free speech, not so free.

• 22:56Melissa Murray?

  It's more in the ballpark of hundreds of millions of dollars. Can I take one small issue with Kagan's comments here? Sure. Like, I think she's right, she's generally right. I think, though, this idea that the court has blinded itself, they're not blind. Right, yes. This is, this is the desired outcome. Like, I mean, like, this is, yeah. This is someone who wants to believe the best in her colleagues, and I love her for it. Yeah, I mean, like, maybe blinded here means, like, willfully ignoring, right? They just choose not to care, but yes, right? But I mean, like, they know this is, this is having exactly the outcome. I mean, look, I would have phrased it as they give a middle finger to democracy, but, right? Wasn't me making the remarks. I mean, she's also being more politic.

• 23:38Melissa Murray?

  I mean, like, it would be truly incendiary if she were to actually say the quiet part out loud. So we'll say it for her. We see you, queen. Okay. All right. We all know that the new DEI DOJ is a little challenged when it comes to complying with court orders, and the last few weeks have been no exception. One case where this played out in true sports fashion, I can see you Brett Kavanaugh leaning in, I'm talking about sports. It concerns a golf course in East Potomac Park in the District of Columbia. Last spring, a complaint was filed alleging that, quote, "In keeping with President Trump's efforts to remake the public spaces of DC in his image, the Department of the Interior and the National Park Service

• 24:23Melissa Murray?

  decided to destroy the East Potomac Golf Course and to build in its place a championship-style golf course suitable for professional tournaments." For those not familiar, it costs about $42 to play a round of golf at East Potomac. Thousands of people play each year, and a lot of them aren't grifting billionaires with crypto schemes who are eager to fund your failed son's Bahamas, not a wedding weekend festivities, or deposit $2 billion in a slush fund, you know, for you to have access to. In fact, a lot of the would-be golfers at East Potomac are working and middle-class black people, the kind who used to work in the federal government. But now have a lot of time on their hands to golf. And these are the patrons of the golf course

• 25:05Melissa Murray?

  that Donald Trump has decided should not exist. The plaintiffs requested injunctions and restraining orders, and the executive branch lawyers argued that an injunction was inappropriate because there's, quote, "no final agency action here." This should remind you of what happened in the USPS case a couple of months ago. They said this, even though, back in June, the president announced that, quote, "It was determined that we will build one of the greatest golf courses anywhere in the world. Work on the new course, which will go quickly, will begin on September 1st." Sounds pretty final to me, but again, it was all in the passive voice. And again, it was determined by whom that this was going to happen.

• 25:50Melissa Murray?

  I just want to remind everyone of that time when mistakes were made. Does anyone remember that? I'm actually referring to something that George W. Bush said in 2004 when asked about the Abu Ghraib detainee torture scandal. He said it again in 2007, in conjunction with the US Attorney firings. But if your mind went back to Tuesday, November 5th, 2024, I don't blame you, because one might argue that mistakes were made there, too. Indeed. So the district court in the East Potomac case was initially hesitant to grant the plaintiff's relief, saying at one point, quote, "The only reason I'm not making an injunction order is because I don't want to put people through contempt proceedings. I want to trust that people are acting in good faith."

• 26:33Melissa Murray?

  So what did the executive branch do? The Friday before our holiday, Indigenous Peoples' Day, the executive branch announced that 12 hours later, it would begin clearing 529 trees from the course and proceeded to do so on a Saturday. Then they confirmed they planned to raise even more. The court immediately granted a temporary restraining order and scheduled a same-day hearing over Zoom. The hearing did not go well for the government. At one point, the judge said, quote, "I'm furious. If you're not a lawyer, this is bad, very, very fucking bad." The judge then added, quote, "I was hearing from everyone on plaintiff's side that this was going to happen. I said repeatedly, no, I trust the government. I trusted you all not to do precisely what you have done."

• 27:18Melissa Murray?

  Shorter, Judge, I was rooting for you. We were all rooting for you. And if you don't know what that means, you need to watch more television. I personally was not actually rooting for them, but sentiment appreciated. A government lawyer did protest to the judge that they, the government, had done their best, to which the judge responded, quote, "You did not do your best. You did your absolute worst." True. And somehow, somehow, things got even worse because the government filed a motion to disqualify the judge, citing her, quote, "histrionics." That motion was rejected. The government also moved to dismiss the case once again, saying there was no final agency action because any plans for this championship golf course were still merely conceptual and nascent. Inchoate, as one would say.

• 28:03Melissa Murray?

  At this point...

• 28:06Speaker 06

  Like women and their rights.

• 28:09Melissa Murray?

  Or women and their jobs, because this was the point at which the once and former White House Press Secretary Katie Zachariah entered the building. That same day, Katie posted a photo of herself and the president in the Oval Office with a blurred map, a map that people alleged showed East Potomac Park. Two days later, the president unveiled, on Truth Social, obviously, the plans for a championship golf course. That post, the Truth Social one, made its way into a same-day order from the judge. The order read, quote, "The court takes judicial notice of President Donald J. Trump's 10:09 a.m. Truth Social post," which states, quote, "I am pleased to announce that the Department

• 28:51Melissa Murray?

  of the Interior, in conjunction with famed golf course architect Tom Fazio, has developed a plan to build a world-class championship golf course on the site of the current East Potomac Golf Links located in Washington, D.C. Thank you for your attention to this matter, President Donald J. Trump." The court ordered the government to indicate whether it continued to take the position that there had been no final agency action and that, quote, "At most, the president has given preliminary thought to rebuilding East Potomac Golf Course." Shorter judge, sounds pretty fucking final to me.

• 29:23Speaker 06

  Exactly.

• 29:25Melissa Murray?

  At this point, the worst client in the world then decided to chime in with another post that read, quote, "The U.S. Department of Interior wants us to take a terrible and very unsafe golf course and make it into a great, safe, and prestigious golf course. They have an absolute right to do so. The experts at Interior are allowed to do this as a right. They do not need approval. Work is scheduled to begin immediately." The president then called this district court judge "a crazed lunatic."

• 29:56Speaker 06

  Very temporary and nascent. That's what immediate means, right? According to these illiterate fools at DOJ, I guess.

• 30:03Melissa Murray?

  I know. You kind of got to feel bad for them because like-

• 30:07Speaker 06

  Do you, though?

• 30:08Melissa Murray?

  They have to do this. Look at their client. Oh, my God.

• 30:11Speaker 06

  Do they have to do this?

• 30:12Melissa Murray?

  No, we don't. They don't actually have to do this. You're right. You're right.

• 30:16Speaker 06

  I mean, they might be unemployable at literally every other litigation shop, given some of the antics.

• 30:21Melissa Murray?

  We can only hope.

• 30:22Speaker 06

  But anyways, the hearing that followed that post went about as well as you could expect. The hearing ended with the judge talking about the death threats she has received, quote, "over a golf course," and she added, "I don't think that's what the founders intended."

• 30:35Melissa Murray?

  Can confirm.

• 30:36Speaker 06

  Yes. "Any district judges who are facing, you know, this sort of behavior from the administration, please don't take it personally because the administration decides to thumb its nose at many other judges as well."

• 30:49Melissa Murray?

  Recall the Trump administration's political advertisements. So these were the ads that were in support of the president and his second term and looked a lot like the president's campaign ads from 2024, and they were reportedly paid for with taxpayer funds, all of which sounds very unlawful. Well, a judge apparently thought so and issued a temporary restraining order blocking the ads, finding that the money given to agencies such as the Department of Homeland Securities and Customs and Border Patrol is not authorized to be spent on political ads. Imagine that.

• 31:24Speaker 06

  Obviously, the money was only authorized to be spent flying around Krispy Kreme on a sex jet where she would be dickmatized by Corey Lewandowski, allegedly, allegedly. In hindsight, Corey probably should have tried to dickmatize others because The New York Times reported that Lewandowski might be the subject of a DOJ inquiry. And with an emphasis on the hind part of hindsight, he might have had a shot with the president, who is really into men's bodies and appreciating the male form these days. Although Trump does seem to be more of an ass man than a dickmatized one, in some ways, I personally welcome the era of objectifying men's bodies, but that might just be me.

• 32:02Melissa Murray?

  What are you talking about?

• 32:03Speaker 06

  What do you mean? What do you mean am I talking about?

• 32:06Melissa Murray?

  Have you not been following the president's speeches?

• 32:10Speaker 06

  I missed this. Is there like a speech about-

• 32:12Melissa Murray?

  Okay. Wow. Okay, so on the campaign trail-

• 32:15Speaker 06

  I'm sorry.

• 32:16Melissa Murray?

  The president is thirsting over John Houstead's butt.

• 32:18Speaker 06

  Oh, okay. All right. I missed that. I totally missed that. I'm sorry.

• 32:24Melissa Murray?

  Like, there's been so much going on.

• 32:25Speaker 06

  That's not the only example. No, fair, fair.

• 32:27Melissa Murray?

  I mean, I kind of like try to weed out the worst of it, and John Houstead's butt is kind of it for me.

• 32:33Speaker 06

  Well, unfortunately, we're going to go lower-

• 32:36Melissa Murray?

  Keep going.

• 32:37Speaker 06

  -by the end of the episode. Yeah.

• 32:39Melissa Murray?

  Anyway.

• 32:40Speaker 06

  Glad I got to be the one to break that to you, girl.

• 32:42Melissa Murray?

  I mean, like genuinely, I mean, I was first startled by the use of dickmatized. Didn't see that coming. But this is also, thank you. Thank you for getting me up to speed. Back to this case. After a TRO was issued, the plaintiffs filed a letter drawing the judge's attention to the fact that the government continued to air ads in hundreds of television spots after the TRO was already in force. So again, kind of a giant FU to the court. Here at least, DOJ admitted that it did it, but it wasn't a giant FU, it was just an oopsie, and said, yes, the ads had in fact aired, but according to DOJ, it was all no

• 33:22Melissa Murray?

  harm, no foul, because the judge had emailed out the restraining order at 6:46 p.m. on Sunday, and government counsel did not forward it to their parties until 7:58 p.m. And all of the airing happened in that space between, and people didn't see the email until Monday, and stuff happened, and I mean, you can't expect people-

• 33:47Speaker 06

  Mistakes were made. Mistakes were made. Ads were aired.

• 33:50Melissa Murray?

  Ads were aired.

• 33:51Speaker 06

  Right. At least that was the government's line. But then last week, a plaintiff alerted the court that MAGA Inc. Super PAC paid to air a no-tax-on-tips commercial produced by White House staff whose salaries are paid with taxpayer money. So a different kind of federal funding for Trump political ads, or what seemed to be like Trump political ads that could test the judge's patience with the government testing the boundaries of the temporary restraining order.

• 34:15Melissa Murray?

  Sounds like a presumption of regularity to me.

• 34:18Speaker 06

  I mean, so much for a presumption of regularity. I feel like presumption against DOJ, like filing any cases or any briefs, right? They need to get kind of preclearance for that at this point.

• 34:28Melissa Murray?

  Presumption in favor of disbaring the DOJ.

• 34:30Speaker 06

  From some adults.

• 34:31Melissa Murray?

  Right. Yes.

• 34:35Melissa Murray?

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• 35:18Melissa Murray?

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• 36:02Melissa Murray?

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• 36:47Melissa Murray?

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• 37:30Melissa Murray?

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• 38:15Melissa Murray?

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• 38:51Melissa Murray?

  So now to some Supreme Court stuff and more stuff that is enabled by the Supreme Court. So last week, the court put white supremacy on its docket formally, deciding to review a case that challenges the constitutionality of a school district's race neutral, race blind admissions policy. The plaintiffs argue that that race neutral, race blind admission policy is actually racial discrimination. The plaintiffs say that the policy amounts to impermissible racial discrimination because it was designed to and does advantage students who are racial minorities. So it doesn't specifically use race, but it has the effect of advantaging racial minorities.

• 39:32Melissa Murray?

  So anytime a racial minority is ever advantaged in the United States, you should understand that to be impermissible racial discrimination. It's illegal. So the policy that is being challenged here affords a preference to students from school districts with higher poverty levels and gives a boost to students who qualify for need-based assistance with school meals, so free lunch assistance. And the plaintiffs note that the policy resulted in a more racially diverse class. You know how that could change? Preparations, bitches. That's how that could change. Anyway, now, it's obviously illegal to have a race neutral policy that focuses on socioeconomic disadvantage. It's obviously illegal because it will always have the result, apparently,

• 40:17Melissa Murray?

  of advantaging racial minorities, and that can never happen. So guess what, folks? Looks like class-based affirmative action is no longer going to be OK and will no longer be a legitimate alternative for affirmative action, or so it seems. Despite us being promised that that was the OK kind. But more generally, the theory in the case is the policy is illegal because it was designed to foster racial diversity and had the effect of, you know, actually fostering racial diversity, which is why, you know, I am calling it the case that puts white supremacy on the docket since-- Because the problem seems to be just thinking about diversity. When you even think about it, you're breaking the law. But also the existence of diversity, right?

• 40:59Melissa Murray?

  Since this theory seems to demand school admissions policies, you know, to preserve racial hierarchies and result in overwhelmingly white schools. So put a pin in this because Melissa and I are actually writing on the broader issue and theories in this case, so stay tuned for that. So enough of that race ipsa Lockwood. The thing speaks for itself. Black people are here. It's obviously a problem. Let's talk about some work that's been going on at the court, or rather, work that's not going to be happening at the court because the justices decided not to grant certiorari. So we talked in the last episode about some interesting cert grants that came through two weeks ago. We did not talk about the cases that the court declined to review.

• 41:43Melissa Murray?

  And there were some pretty interesting things that happened. So we want to talk about one specific non-grant from the last two weeks. The court denied certiorari in a case called BMG Rights Management versus Vetter. It's a pretty significant copyright dispute that comes out of the Fifth Circuit. It was also the rare case where we got a reason for the denial of certiorari. The court apparently lacked a quorum to hear the case because four justices recused themselves. Justices Sotomayor, Gorsuch, Barrett, and Jackson, all of whom have book contracts with publishing imprints owned by BMG's parent company, Bertelsmann. They did not note this in the cert denial order,

• 42:26Melissa Murray?

  but we have noted it by doing a little digging. There's a lot that one could say about all of this, but one interesting aspect is that perhaps if this is the reason why these justices decided to recuse in this particular case, it may reflect the insane consolidation that is happening in all facets of the media. Bertelsmann is a massive media enterprise, among other things. It owns Penguin Random House, the world's largest trade book publisher, which itself includes over 350 independent publishing imprints. Its vastness apparently means that it's going to be very hard to haul the conglomerate before the Supreme Court

• 43:09Melissa Murray?

  at a time when so many of the justices may actually have business dealings as authors with some of these imprints. On the topic of non-grants or non-issues, I wanted to keep tabs on our Overton Window Watch on all things SCOTUS reform. So let's play a clip we got. And I think instead, we should seriously look at expanding the court while the Democrats are in power. You know, it used to be that you'd have one justice for each circuit. We now have 13 circuits. We should have 13 justices. What did you make of this one? Well, one, I think maybe Hillary Clinton had herself a hot Supreme Court reform summer. Like, that seems possible. At least a hot Supreme Court reform September.

• 43:53Melissa Murray?

  I mean, I'm just going to say that this is proof positive that this stuff is getting more and more traction. People are fed up with this court. And I think everything should be on the table. Like, I had this big conversation at this New York Historical Society event where Andrew Weisman and I were in conversation with Bob Bauer. And, you know, there are questions about whether this was a good idea. And I was just of the view, like, listen, it was like universal pre-K in New York City. People started first with the idea of universal childcare. That was massive and ambitious. And but talking about it meant it was possible to get to universal pre-K, which was more modest, but still really substantial, but more palatable to a lot of people. And I think if you go big on court reform,

• 44:38Melissa Murray?

  you're actually going to get things that may matter to people, even if it's not the biggest things that you wind up wanting. And Supreme Court expansion, not the biggest thing. So, right? Like, yeah, absolutely. Okay. So another supposed non-issue came up when Senator Susan Collins offered some retrospective thoughts. I'm very disappointed in his vote to overturn Roe v. Wade. There was no way for me to anticipate that. It's so weird. It's so weird because I remember people, and a particular person, warning, warning that this, the overruling of Roe, would happen. So let's play back that tape.

• 45:20Melissa Murray?

  As you've heard from women like Alicia Baker and Liz Weintraub, confirming Judge Kavanaugh to the Supreme Court would threaten people's ability to make fundamental personal decisions, including deciding whether to have an abortion. Judge Kavanaugh's record in Gaza suggests that rather than respecting precedent, he will undermine or ignore it. And in so doing, he will provide the necessary fifth vote that would utterly eviscerate the right to abortion. And make no mistake about it, a vote for Judge Kavanaugh is a vote against Roe. It's so weird. That voice sounds familiar. That voice sounds so familiar. Why does it sound familiar? Who might that have been? That wise Cassandra. Chairman Grassley, ranking member Feinstein,

• 46:03Melissa Murray?

  thank you so much for the opportunity to appear at these hearings on the confirmation of Judge Brett Kavanaugh to the United States Supreme Court. My name is Melissa Murray, and I am a professor of law at New York University School of Law. Yes, that was our very own Melissa Murray telling the Senate that voting to confirm Kavanaugh was a vote to overrule Roe. So in some ways, this is like the origin story of this podcast, you know, the Cassandra thing, right? It kind of started when I started online friend stalking you, Melissa, because like, we had never met. And I was just like, huge fan, huge fan of your work. No, I didn't write your tenure letter before this. So I actually knew of you. No, because I didn't have tenure at that point. No, but didn't I have to write something for your mid-career?

• 46:47Melissa Murray?

  Because I remember writing a letter, like, going through your file, and I had to read your work. So I was a fan of you, but then you, like, emailed me out of the blue. Maybe it was like a Jotwell thing or something? Maybe. Oh, it was a Jotwell thing. You're right. You're right. That's what it was. And I really, and I, yes. So we were mutually-- We found each other. We found each other. But Susan Collins definitely helped us. So, ma'am, why do the Senate when you have a perfectly good career waiting for you as a matchmaker? Or in stand-up comedy? Because it's fucking hilarious that, right? You had no idea. Like, girl, it was in your fucking party's platform that they were going to be nominating justices to overrule Roe. I am so surprised and disappointed.

• 47:29Melissa Murray?

  I'm like, ma'am, he was literally put on the court to do this. That's what they said. I just, I can't listen to her anymore. Like, it just genuinely, I'm stunned that it is close in Maine. I'm just stunned. I mean, I don't know how you do this after this woman literally just played in our faces with this. I know. I know. God. Anyway, speaking of more annoying people.

• 47:58Melissa Murray?

  Speaking of more annoying people, in more news that is directly traceable to the United States Supreme Court, is grifting the new girl power? Are grifters the new girl bosses? Well, only if they're MAGA women. Because The New York Times broke a pretty incredible story about another lady MAGA side hustle. One, Alina Habba, former something or other in the District of New Jersey. I'm saying something or other because a federal court concluded that Habba was not lawfully appointed to be the US Attorney for the District of New Jersey and therefore never lawfully exercised the powers of the US Attorney. But leaving that to the side, there is more to discuss.

• 48:43Speaker 06

  So, The New York Times reports that Juan Julio Herrera Velutini, the billionaire banker, really wanted a pardon even after he had secured an unusually lenient plea deal in which he pled guilty to a misdemeanor campaign finance violation after facing felony bribery charges. So his lawyers tried the usual routes, having his daughter donate more than $3 million to a super PAC affiliated with Trump. Unfortunately, that didn't do the trick, at least this time.

• 49:09Melissa Murray?

  At least this time, yeah. So, the Velutinis decided to up their game. They hired Alina Habba, who at the time was an advisor to the Department of Justice. The Times reports that the arrangement gave Habba, quote, "10 million a year for four years with a guarantee of 50 million for Habba when she became general counsel of a company, Concord Partners, that was set up in the fall of 2025." The business of the Concord Partners remains unclear and the company has no public profile. I guess that's suspicious. And by sheer coincidence, weeks after Habba began her work at Concord Partners, the president

• 49:54Melissa Murray?

  gave Velutini a pardon. So weird. And at the time, Habba, while serving as general counsel of Concord Partners, a company that has no public profile and only began its existence in 2025, at the time she was general counsel of that enterprise, Habba was also a special government employee. So I guess she is like the J-Lo of the DOJ, like a multi-hyphenate singer, dancer, actress, general counsel, special employee, US attorney, who is to say?

• 50:28Speaker 06

  Lady MAGAs are real multi-hyphenates these days because, you know, as we sat down to record, we learned that the First Lady, Melania Trump, had secured a ceasefire between Russia and Ukraine, although it was localized to Olesky. That's what the White House reported.

• 50:47Melissa Murray?

  What can't they do? Fashion, movies?

• 50:50Speaker 06

  No, they can't do fashion. Also can't do good movies.

• 50:53Melissa Murray?

  Melania Trump is actually very, very fashionable. Like, I hate to say it. Like, she wore some, not the, you know, do I even care jacket, but like some of her other stuff is actually. I mean, and when she wore the Carmen Sandiego spy versus spy hat at the inauguration to literally stop her husband from coming through her southern border, I was like, genius.

• 51:14Speaker 06

  Yes.

• 51:15Melissa Murray?

  Which the whole country could do that.

• 51:17Speaker 06

  The other multi-hyphenate we were talking about, Alina Habba, she's denied that she was paid to secure a pardon or that her work for the company had anything to do with securing a pardon. There is some possibility that this story has come out as part of Habba's feud with another member of Trump world, Richard Grinnell. So, Habba has said Grinnell misallocated a donation Habba's husband made to the JFK Center for Performing Arts, and it seems like all of these people probably have dirt on one another. So, just wanted to put it out there. Alina, Richard, everyone else in MAGA world with an axe to grind or back to stab, our DMs are open.

• 51:53Melissa Murray?

  I love internecine warfare in the MAGA ranks.

• 51:57Speaker 06

  I know.

• 51:58Melissa Murray?

  It thrills me. While that corruption does not yet seem to have triggered Trump and/or the DOJ's ire, DOJ did find some corruption it was concerned about. And, shockingly, it involved another black woman having a job. DOJ indicted Virginia State Senator Louise Lucas, who is the president pro tempore of the Virginia Senate and one of the state's more powerful Democrats. She has also been a very high-profile critic of the Trump administration and a supporter of the state's responsive redistricting campaign. This is redistricting that sought to counter the extreme, unprecedented, mid-cycle redistricting that the president demanded red states engage in.

• 52:41Speaker 06

  So, the indictment in this case alleges that Lucas and her family illegally ran a recreational weed business before Virginia had legalized weed.

• 52:49Melissa Murray?

  Who's going to tell them that this is the plot of a Mary Louise Parker TV series from the mid 2000s?

• 52:58Speaker 06

  Can't read, can't do math, can't watch TV.

• 53:01Melissa Murray?

  Can't do anything.

• 53:02Speaker 06

  Nope. So, the day before this indictment was released, Assistant Attorney General for Civil Rights, Harmeet "You Are Hose" Dillon boasted that DOJ was, quote, "indictment-maxing." I know. Just, I think she might be the best poster in the administration. I'm going to put that out there.

• 53:22Melissa Murray?

  The indictment of Senator Lucas is reportedly the product of a corruption investigation. Actually, let me wind that back. The Trump administration continued with a corruption investigation. That is so weird because this week, we got another ProPublica story about another public corruption investigation that the second Trump administration actually killed. So, this is on the heels of the ProPublica story detailing how the second Trump administration effectively ended a corruption bribery investigation into Senator Susan Collins. She of, "I could not have known that Brett Kavanaugh would vote to overrule Roe even though Melissa Murray tried to tell me infamy."

• 54:02Melissa Murray?

  This was also on the heels of ProPublica's reporting on fail son John Jr.'s not-quite-a-wedding weekend festivities that apparently was funded by a Russian boxing oligarch. But leaving that to the side, anyway, ProPublica can't stop, won't stop, and its latest story is that Senator Lindsey Graham, rest in peace, and Jim Clyburn were also saved from bribery investigations. These investigations centered around allegations that a government contractor, Navitek, was engaged in a wide-ranging scheme to effectively purchase government contracts by offering donations to selected officials, including Lindsey Graham. The ProPublica story opened with an anecdote about a dinner attended by Graham and executives

• 54:43Melissa Murray?

  and lobbyists for Navitek at which Graham allegedly agreed to steer a $10 million government contract to Navitek in exchange for a $100,000 donation to Graham's reelection campaign.

• 54:55Speaker 06

  So, according to ProPublica, quote, "Navitek's CEO confessed to federal agents that his business model was basically bribing public officials in exchange for contracts."

• 55:05Melissa Murray?

  It works!

• 55:06Speaker 06

  Right. He said he had engaged in these transactions with Senator Graham, Jim Clyburn, Joe Wilson, both representatives in Congress. And this is also the same company that allegedly paid to play with Senator Susan Collins. But investigations into those allegations ended when Trump gutted the units in DOJ and FBI that investigate public corruption because this administration is the never-ending gift to grifters. Now, Clyburn and Wilson's offices have issued statements that are effectively denials. Clyburn's comms person said, "Whatever a donor may think or say, a donation would never cause the congressman to increase his support for the donor's request." Representative Wilson's office said he had always abided by federal election commission regulations.

• 55:46Melissa Murray?

  This all transitions nicely to our next segment, which is about how MAGA men are still covering themselves in glory. Can't be outshined by those lady MAGAs, whether it be Kimberly "Honey, please" Guilfoyle, Alina "I was something" of New Jersey Habba, or Harmeet "You are Hose" Dillon. And, we should also add in, Susan "I had no concerns about Brett Kavanaugh" Collins. Can't be outdone by those ladies. So, the fellas have taken their turn at the podium.

• 56:15Speaker 06

  So, yeah, let's take a quick run-through of the greatest hits of recent times. As always, we begin the original new DEI segment with Pete Kegs Breath. So, The Washington Post reports that Kegs Breath really wanted to play with President Dwight Eisenhower's famous globe that Eisenhower had used during World War II. Kegs Breath wanted to play with that globe. Alas, his dipshit DEI staffers dropped it while moving it and ripped a big hole in the side of the globe.

• 56:42Melissa Murray?

  Wow, writers. The metaphors just keep coming. I wish they were a little bit more subtle. I mean, like, Pete Hegseth staffers literally ripping the globe apart seems a little on the nose, right? A little on the nose.

• 56:56Speaker 06

  Yeah, a little heavy-handed, right?

• 56:57Melissa Murray?

  Little bit, little bit.

• 57:00Melissa Murray?

  With that in mind, I don't even know how to introduce the Vanity Fair piece about Jared Kushner, because it is legitimately insane. The piece is an excerpt from a forthcoming book by Matthew Cole that is titled, "Princes and Thieves: Jared Kushner and Mohammed bin Zayed's Secret Plot to Remake the Middle East." And listeners, in the excerpt from the book that appears in Vanity Fair, Cole reports that Saudi Arabia appears to have set up a multimillion dollar slush fund for the Kushner. Now, a word of caution, or several words of caution, are required here because the article and the excerpt doesn't detail the sourcing or site documents. So that is a major word of caution.

• 57:44Melissa Murray?

  And Kushner, for his part, has offered an on the record denial, and his lawyers are calling this piece defamatory. So keep all of that in mind. But wow, if this is true, this is actually really incendiary.

• 57:59Speaker 06

  Exactly, right? Like, a chance of this being true is wild. Because just to give you a highlight, this all supposedly came out when the GRU Russian intelligence hacked Jared's phone. And then Dutch intelligence recruited a GRU spy who gave them the information from the phone, which is that Kushner had access to two bank accounts in which MBS, Crown Prince of Saudi Arabia, and Emirati ruler Mohammed bin Zayed deposited money. These two sugar daddy foreign leaders allegedly put at least $2 billion into bank accounts on which Kushner was a signatory, meaning he could make transactions with the accounts. The excerpt indicates several senior Trump administration officials said Trump was unaware of Kushner having any presidential authorization to access a foreign government bank account.

• 58:43Speaker 06

  And then there's this eye popping statement from Kushner's counsel, who said, quote, "Kushner did not make any agreements or arrangements with leaders or officials in foreign countries that were not agreed to by the President of the United States." Is that a bus, right? Or a truck, I hear, that someone is being thrown under? Um, perhaps.

• 59:04Melissa Murray?

  Sounds like a Qatari jet. And listeners, that is not all. It wasn't just Emirati and Saudi leaders who may have been in on this alleged slush fund. Apparently, according to this report, which again, has not been sourced and verified. Apparently, according to this report, Israeli Prime Minister Benjamin Netanyahu learned of the money in one of the banks and encouraged Kushner to transfer it and deposit it in the Israeli central bank. So what could go wrong?

• 59:36Speaker 06

  That's just hanging out there. While it seems like it will be impossible to top that story, I think listeners, Vivek Ramaswamy was up to the task. But before we go to that psychotic misogyny, I wanted to play a clip of the Republican candidate for Senator of my state, Michigan, Mike Rogers, who was talking about a possible election tactic.

• 59:57Speaker 04

  And I've been telling them, you know what? Let's put police officers, retired or off duty police officers as our poll walkers in Detroit. Because, go ahead, try to intimidate them. Yeah, please, please. Yeah. What's that? We're trying to find them. I mean, they wouldn't be able to wear their uniforms. But they would, you know, you know, all you've got to do is open your jacket and you see the badge on the belt, right?

• 1:00:21Speaker 06

  Rogers reportedly said this in May, but when he was asked about these remarks more recently, he didn't disavow them and said he saw nothing wrong with it. You know, the tactics that Rogers is describing are, of course, reminiscent of a strategy that historically was used to scare, intimidate, and disenfranchise voters of color.

• 1:00:39Melissa Murray?

  Quick question about that clip. Did I hear him right when he was sort of talking about, like, good luck trying to intimidate the police officers? The retired police officers?

• 1:00:46Speaker 06

  That's what I think he was saying. Like, good luck trying to intimidate the police.

• 1:00:49Melissa Murray?

  Who's doing that? Who's going to vote? I'm like, I'm here to take it to the cops. Like, I don't want to see cops when I'm voting.

• 1:00:55Speaker 06

  Well, it's this insane conservative grievance complex that, again, is not rooted in reality, right? It's their myths and conspiracies about voter fraud. And he is all in on them, it seems like.

• 1:01:06Melissa Murray?

  I mean, this is the same man who dispatched his wife in very tall, high heeled shoes to campaign for him. And I'm like, sir, what are we doing? Ma'am, what are you doing? Put on some flats if we're really going to do this. What are we doing?

• 1:01:19Speaker 06

  I don't know.

• 1:01:19Melissa Murray?

  It just didn't make any sense. She was just like teetering around. I thought she was going to, like, genuinely break her ankle. But justice for Mrs. Mike Rogers. She's got to be married to this, anyway.

• 1:01:29Speaker 06

  Yeah. But finally, we arrive. We will end on the worst person in the world, at least this week. Although I think he really made a strong play for worst person ever, Vivek Ramaswamy. So the Republican candidate for governor of Ohio, former presidential candidate, and a guy who was too annoying to continue working at Doge.

• 1:01:48Melissa Murray?

  Yes. The guy who was too annoying for Elon Musk decided to go all in on the worst political ad ever. And this is in a world in which the federal government is using taxpayer money to make political ads for this president. The ad, which Vivek Ramaswamy apparently decided to pour $4 million into airing, features the estranged mother of Amy Acton. Amy Acton is, of course, Vivek Ramaswamy's rival for the position of governor of Ohio, which is apparently going to be a very close race. Enter this ad. To describe this ad, featuring Amy Acton's estranged mother,

• 1:02:29Melissa Murray?

  really does not come close to capturing what the fuck happened here. Because this is some real election fuckery. Acton is estranged from her mother. The reason for this estrangement is because her mother sided with her stepfather, the mother's husband, and fled the state with him after the stepfather was accused of and indicted for sexually abusing Amy when she was 12 years old. So her mother stayed married to this man after these accusations were made and he was charged. And she basically continued to marry him and live with him and to be estranged from her own daughter,

• 1:03:12Melissa Murray?

  who claimed, apparently, relatively credibly, that this man had harmed her in the most profound way while she was a child.

• 1:03:20Speaker 06

  Also, she had married this man after he had already been indicted for incest, abusing his own daughter. Now, as, you know, the description suggests, Amy and her mother are estranged. They have not spoken since the 1970s, when Amy testified before a grand jury about the abuse. Amy and her brother were removed from her mother's custody. And Amy's mother, who sided with, again, her husband, the accused and indicted pedophile, cut an ad for Vivek Ramaswamy, accusing Amy of lying about her childhood. There is no way to convey the utter grotesqueness of the ad or the choice to double down on it. So Amy Acton's brother issued a statement, which the Acton campaign distributed, that I feel like we need to read, and I will.

• 1:04:05Speaker 06

  It was, quote, "It's not surprising that Vivek Ramaswamy has stooped to such a despicable low as to attempt to turn the sexual abuse Amy endured at 12 years old from our birth mother's husband into a political talking point. After he was arrested and Amy and I were removed from their custody, our birth mother stayed married to Amy's rapist until he died. This desperate, disgusting attack reveals exactly who Vivek Ramaswamy is at his core. A pathetic excuse for a man who is willing to hurt anyone as long as it gets him what he wants."

• 1:04:34Melissa Murray?

  And JD Vance said, "Hold my beer." He, of course, refused to condemn the ad. And the President of the United States seems to have announced his affirmative support for it. So this is the party of Abraham Lincoln, people, piling on to a 12 year old rape victim come candidate for governor of Ohio.

• 1:04:56Speaker 06

  Just nauseating. So Erin Ryan and Jane Coaston discussed this horrific psychotic misogyny more in depth in the most recent episode of Hysteria, which you should absolutely check out.

• 1:05:08Melissa Murray?

  Okay, that is all for the news. That was a lot of news. I feel like I need to take a shower right now. Thank you, Republican Party. Like, the need to cleanse myself is directly related to your shenanigans. Stay tuned, listeners, for a conversation that will not make you want to take a shower. Actually, it might when you hear some of the things that are going on. But this is a conversation that Kate had with Rachel Sheldon about her new book, "The Political Supreme Court." Strict's here and he's brought to you by Cook Unity. Folks, I love delicious restaurant food, and I crave delicious restaurant food. But you know what I can't do? I can't do delicious restaurant food cooking.

• 1:05:52Melissa Murray?

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• 1:06:37Melissa Murray?

  It all comes fresh, delivered to my door. I pop it in the microwave or I warm it up in the oven. Works every single time. And it's so easy, genuinely easy, especially when you're coming home from a long day at the office. Fantastic. There are hundreds of dishes to choose from, and the menu is constantly being updated. There are over 10 different dietary preferences, everything from high protein, low sodium, GLP-1, pescatarian, gluten free, and more. And there are over 25 global cuisines, Mediterranean, Korean, Thai, Mexican, Italian, whatever you want, they have it. Taste what happens when real, award-winning chefs make fresh, small batch meals just for you. Go to cookunity.com/strict

• 1:07:22Melissa Murray?

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• 1:07:34Speaker 06

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

• 1:08:19Speaker 06

  For this conversation, I am delighted to be joined by Professor Rachel Shelden to discuss her forthcoming book, The Political Supreme Court: A Forgotten History. I am going to hold up a copy of it right here. It is available on October 27th, although I think you could actually order it right now. Rachel is an associate professor of history and the director of the George and Anne Richards Civil War Era Center at Penn State University and a leading historian of the United States Supreme Court. In her latest book, The Political Supreme Court, Rachel takes us back to the first century of the nation's history and tells the story of a Supreme Court that most of us, even those of us who spend a lot of time thinking about the Supreme Court, would consider almost unrecognizable. Today's justices are fond of telling us that they operate above the fray of partisan

• 1:09:01Speaker 06

  politics, but the story Rachel tells in her book is one of basically 100 years of a quite explicitly political institution, both by design and in practice. So the book kind of takes you on a rollicking tour through boarding houses and dinner parties and circuit courtrooms and newspaper columns and basically shows justices pretty intimately involved in the rough and tumble of politics and then explains how and why and when that changed. It is a fascinating history and I am super excited to discuss it. Rachel, after that very long wind-up, welcome to the pod. Thank you so much for having me. So obviously, I laid out the basic frame of the book. And as I said, the book's early pages contrast our image of the court today and especially

• 1:09:46Speaker 06

  what you describe as the court's sort of self-made reputation as this kind of independent clerical order separated from the people with the image of the court in the 19th century. That political history is the forgotten history at the heart of the book. But before I ask you to tell us about that forgotten history, can you just say a word about the conventional story that you set out to dismantle and at what point you decided you wanted to write this book to challenge or counter that narrative? So the, the basic narrative that I'm trying to counteract is the longstanding Chief Justice John Marshall created judicial supremacy with Marbury versus Madison and formally separated the court from politics. So many accounts of the court start in the 1790s with a very political court that is

• 1:10:30Speaker 06

  then changed by John Marshall. And this is just really not true. Lots of historians have already debunked this concept, but I wanted to show exactly how it worked, that the politics of the court actually were very open and clear and that Marshall was as political as anyone. And so it took about 100 years for this perception to change. And the Marshall myth was really a creation of the late 19th century. Okay. So as you say, right, that kind of centerpiece of the constructed narrative is that John Marshall and Marbury versus Madison, and you write that the lawyers and politicians who created and promoted the Marshall story and others erased the long history of constitutional

• 1:11:14Speaker 06

  contestation and conversation and authority that happened outside the Supreme Court and instead proclaimed a judicial power for the court that had never existed. So can you tell us a little bit more about the gap between the mythic Marshall that I guess he projected, but also that was constructed over time, and the real one who operated in thoroughly political ways? Yeah, I think we imagine Marshall to be this sort of grand constitutional thinker. And of course, he was a very smart guy and also very savvy on the court. But one of the reasons that he was smart and politically savvy is that he was able to engage in constitutional conversation outside the courtroom and to promote those

• 1:11:57Speaker 06

  constitutional views through newspapers, through social relationships, and especially through his relationships with the staff of the Supreme Court. Elias Caldwell, who was the clerk of the Supreme Court in the early 19th century, was an acolyte of his and ran the local newspaper. And as a result, you see sort of Marshall's views being carried through into the newspaper politics of the time. This is, this is like standard fare for justices of the 19th century. Will you say a little bit more about that? Like, so what were they doing in the pages of the local newspapers? They were making arguments both about the Jefferson administration and about the decisions in the Supreme Court. The Jefferson administration, you know, Marshall and Jefferson famously hated each

• 1:12:42Speaker 06

  other. Even though they were like distant cousins, right? Yes, they were related. But they, but they famously hated each other. I think in part, Jefferson was a little bit jealous of Marshall because he was an incredibly sociable and well-loved guy. His nickname was General Barbecue, which was sort of not lovingly bestowed, but it was because he was very involved in a barbecue club that really was like the center of political and social life in Richmond. And so when he is engaging in this kind of conversation, what he's doing is promoting his views through newspapers. So he famously wrote for newspapers in response to criticisms of his decisions, but also

• 1:13:23Speaker 06

  in promoting views of what was the Federalist Party in the early 19th century in opposition to the Jeffersonians. And when he's taking positions and defending positions, say, in the newspaper, and those are in some ways defending the Federalist kind of vision of a relatively powerful national government as compared to sort of a Jeffersonian, sort of smaller federal government and more, more power residing in states. So these are constitutional arguments and they're political arguments in some sense. Are they partisan arguments as we would understand them today? Well, it's a little bit tricky because partisanship was really different in the 19th century. It was more fluid, parties sort of rose and fell as the issues changed.

• 1:14:06Speaker 06

  I actually think Marshall was a reluctant Federalist in some ways. He, he liked some of the Federalist policies, but I think ultimately he would have preferred to see a change in parties, you know, end to the Federalist Party and a new party that had some of his own views. But definitely there were partisan arguments being made in relationship to Jefferson. So the Washington Federalist, which is the paper that Elias Caldwell edited, was a Federalist paper because every newspaper was associated with some kind of partisan organizing, whether that was on the state or local level or on the national level. Okay. So let's shift a little bit. So already this is sort of startling as a revelation that John Marshall's like penning up heads.

• 1:14:51Speaker 06

  But you talk about these other venues in which the justices really engaged with politics. So you talk, you know, we'll put the newspapers in the kind of outside the courtroom political activities column. You also talk about the practice of circuit riding, where the justices actually sit in places far from Washington DC as this expression of judicial representation. So I want to hear a little bit about that. And then also inside their courtroom, where they did not always command kind of ultimate authority over the United States Constitution, but participated, as you're starting to kind of allude to, in these debates about the nature and function of the government and the Constitution. So can you say a little bit about both of those venues in which this constitutional contestation is happening?

• 1:15:35Speaker 06

  So judicial representation is a thing that we don't really know anymore, but it was the idea that justices were representative of their regions, of their circuits. So each justice was matched with a circuit. You had the same number of justices as you had circuits. And as a result, you had this relationship, close political relationship with your circuit. There were the option in the, there was the option in the 19th century to take some cases to state court as opposed to federal court. And part of the idea was to breed this kind of, you know, comfort with going to the federal courts and to give those courts legitimacy. So this is all by design, that you have these justices that are balancing the nation's

• 1:16:20Speaker 06

  ideas when they come to Washington and also that they are creating a real support for the union and for the nation as a whole by providing this space in the federal courts. And circuit riding, which is the practice of going and sitting in these courts, was really, really unpleasant, but it was very important. And for 100 years, it existed. So, you know, circuit riding sometimes thought of as like this backwards practice, but in fact, it was like impossible to get rid of it because people thought it was so important. In terms of the courtroom in Washington, I think this is a thing that we don't always imagine to be the case because we associate constitutional issues so closely with the Supreme Court.

• 1:17:04Speaker 06

  But in the 19th century, there were many, many, many constitutional issues that did not make it to the Supreme Court. It was not that easy to get a case like that to the court. And those cases that did make it to the court, there were, there was often a response by Congress, by the president, by state legislatures and by like groups of people who may or may not have appreciated what the argument was. So if you think about the justices as not having that final authority, you can see how well their arguments represented a theory of constitutionalism that is not necessarily the same as authoritative. Our listeners will know that we have talked a lot. In the last month about Nico Buie and Daphne Renan's masterful new book,

• 1:17:49Speaker 06

  Supremacy. And there's, I think, a lot of resonance between that book and this one. That there are, you know, they tell a lot of historical stories focused largely on the pushback that happens around the Civil War and Reconstruction and then in the New Deal era. And this, I think, fills in with even more factual material, that core thesis, which is that the Supreme Court's word was not viewed as final, like, at all. And the debate only started sometimes with the Supreme Court weighing in. And as you say, often, the court wasn't involved at all in these constitutional debates. Okay, so another, I think, really fascinating bit of history that you excavate, and I had known bits of this, but certainly not the way you pull it together, was just how many

• 1:18:33Speaker 06

  justices of the Supreme Court in that first century of our history actively sought the presidency? This is wild. Will you talk about it a little bit? Yes. I mean, this was my favorite thing to research because I kept running into justices that were presidential candidates. I had only known of a few. Right? Like, that's, I think he crunched the numbers. It might be a majority. More than 30%. Yeah, more than 30% of justices in the first century were presidential candidates. And one thing to know about the presidency in the 19th century is that you did not actively campaign. You did not seek the presidency. You had to be brought to that station by the people. And so it was inappropriate to campaign. So some of

• 1:19:13Speaker 06

  that history has been harder to see, I think, because it's not in the kinds of spaces that you would normally look for presidential material. At the same time, these guys are writing all the time to try to promote themselves. So some of these justices would, you know, like, have newspaper friends publish pamphlets supporting them. They would publish weekly newspaper articles about their candidacy. They would spend all this time talking about their policies. And I think, actually, the presidential runs are a good way of thinking about where justices stood, because they often talked about their political positions

• 1:19:55Speaker 06

  from before they were on the court as continuing while they're on the court. So there's no sort of barrier there where you just leave all your political positions at the door and move on from there. You're taking them with you. And because all these folks come from political positions before they get on the court, there is an expectation that they are going to have political opinions. You know, it doesn't stop, really, at the turn of the 19th into the 20th century. There are, our friend Cliff Sloan came on to talk about a wonderful book he wrote about the many justices that FDR put on the court. But like, among them, a bunch of them vied to be FDR's running mate in 1944. Like, Douglas was, like, working super hard. He was kind of the runner-up. So that is a thing that endures a little bit beyond the period

• 1:20:37Speaker 06

  that you were focused on. But the prevalence really was wild, and I think maybe better than any other single fact, just illustrates how intimately connected these justices were to the worlds of politics. And again, not just constitutional politics or high politics, but like, actual partisan politics, thinking about, like, running for, and even if not in a contemporary sense, president. So in addition to unearthing this trend, you talk about a lot of really fascinating characters and stories, and I wish we could cover all of them. We definitely can't. So maybe I was going to ask you about one or two. So Thomas Todd of Kentucky, who was the first Western representative to join the court, like, tell us a little bit about him. I didn't know anything about him. Well, there's this amazing exchange between two law professors from, you know,

• 1:21:22Speaker 06

  about 45 years ago about who is the most insignificant justice, and Thomas Todd is, you know, like, the feature of those. Which is that. I somehow miss him. Yeah. But I think that this is very illustrative of the difference between the court in the 19th century and today. They evaluate him based on how many opinions he had on the Supreme Court. And that is just not the way that you should think about a justice's role. So Thomas Todd is the first Western justice, "Western" in quotation marks because he is from Kentucky. And so the West in this period is Kentucky and Ohio and Tennessee. And so in 1807, Congress passes the Judiciary Act of 1807 that creates the Seventh Circuit.

• 1:22:04Speaker 06

  And it's really important because Todd helps bring the West into the United States through the courts. He is a representative of this area. And the way that people talk about him constantly is that he is a representative of this area. And he remains very tied to local politics. He's really involved with the governor, with a governor's race, and then with the governor during the War of 1812 and beyond. But he's a fascinating character because he's so little known, but also, I think, quite important. Yeah. And again, important in ways that we need to shift our understanding of, because, right, it's not decisions, you know, in argued cases are not the entire coin

• 1:22:47Speaker 06

  of the realm when it comes to significance in your telling. So let me ask maybe about one other, and that is Justice John Archibald Campbell of Alabama, who was the only justice from a seceded state to resign from the US Supreme Court. And within 18 months of resigning during the Civil War, obviously, he becomes the Confederacy's Assistant Secretary of War, I believe. Can you tell us a little bit about him? Yeah, so Campbell had a really serious political career before he got on the court and was very tied to Alabama politics. He actually did not initially want Alabama to secede and was quite pushy about it and used his position on the court to try to argue against Alabama seceding. He hated Abraham Lincoln. He had nothing good to say about

• 1:23:32Speaker 06

  him. But he didn't think it was appropriate yet to secede in 1861. Ultimately, when Alabama does leave the Union, he joins them. And then, you know, there's no Confederate Supreme Court. So he doesn't go to a judicial position. He could have, I suppose, been on a lower court, but he instead joins the cabinet. And he's quite critical, actually, of Jefferson Davis during the war, but it doesn't mean that he's not engaging in these political activities. And then after the war, he becomes quite a famous lawyer, really one of the most evil men in American history, in the way that he brings cases to the Supreme Court

• 1:24:12Speaker 06

  to try to abend Reconstruction by using the Reconstruction Amendments. Yeah. So maybe let's stay there in the Civil War and then into the Reconstruction period. So Abraham Lincoln gets to fill five seats on the Supreme Court in four years. And you might expect that to fundamentally transform the federal judiciary, or at least the Supreme Court, and turn it into something that is, if not going to affirmatively facilitate the project of Reconstruction, not to stand directly athwart it. But that doesn't happen. So can you talk a little bit about how Lincoln's appointees end up, you know, long after Lincoln's assassination, thwarting some of the most important aspects of Reconstruction?

• 1:24:54Speaker 06

  Well, so I think one of the most important things to recognize about this is the fluid party system is what promotes this. So during the war, Lincoln becomes a member of the Union Party, which is also a forgotten party. We sort of think about the Republican Party carrying all the way through, but in fact, he's part of this Union Party movement. And all the people who joined the court during Lincoln's years are also part of this Union Party movement. The Union Party dies after the Civil War, probably because Abraham Lincoln dies, although there are efforts to keep it going. And as a result, these folks go into new parties, different parties, some parties that existed before, including the

• 1:25:33Speaker 06

  Democrats. And they do not have the same kind of approach to Reconstruction issues as they did the war. Lincoln nominates them because they're all pro-war. They want to be involved in the Union war effort. And that's the most important thing to him. Because parties are not permanent, he expects the issues to change. And so there's no reason to think about it as a partisan matter beyond the partisanship of the moment. Fascinating. Okay, so maybe let's shift now to the transformation that you pegged to the 1880s and 1890s, when the court that you're describing, this highly political, actively engaged in partisan politics of the day, really changes into something that

• 1:26:18Speaker 06

  looks more like the image, at least, of the court we have today. There are some changes that have both to do with the demise of the circuit riding practice, but also to larger dynamics in the 1880s and 1890s. Can you just talk a little bit about what changes? So there are a lot of big changes. One of them is the end of circuit riding, which is really important. So circuit riding had become more and more difficult over the course of the 19th century because the courts Docket had started to expand and the lower federal court docket had begun to expand substantially. So part of the reason for that is the Reconstruction Amendments open up all these important reasons why the federal courts should be getting involved in major constitutional problems.

• 1:27:03Speaker 06

  But the effect of that is that more and more important issues come to the federal courts and then to the Supreme Court. And they also use that authority to expand their power through corporate personhood and some of the other things that I'm sure you've all talked about on this show. So that's one really important thing. You also have the rise of a professionalized legal movement. And I do think Nico and Daphna talk about this a little bit in their book, too, because I think we have the same kind of moment in mind of when things begin to change. The legal movement that sort of says law is the heart of the Constitution and politics can no longer be what the Constitution is about.

• 1:27:42Speaker 06

  They are really responsible for changing this narrative of what the court was in 1803, when Marshall issued Marbury versus Madison versus what it actually was, how it actually operated in the first 100 years. So those folks really pushed for a change in the way that the justices relate to the people. And while they were writing circuit, they were very much engaged with the people. As long as they're there, they have to answer to the people who are quite angry with them on certain occasions. But after circuit writing ends, they're located in Washington. They're very much isolated in that way, and that looks a lot more like what we have today. Wow.

• 1:28:26Speaker 06

  Okay, so let's fast forward to the present. And your epilogue opens in May of 2022 with this huge fence being erected around the Supreme Court building after Dobbs leaks and sparks protests over the overturning of Roe. Chief Justice Roberts, obviously terribly offended this leak, calls it a singular and egregious breach of trust. And your reaction as a historian is that, um, actually, in the 19th century, the justices were totally used to leaks. Nothing about that Dobbs incident would have struck them as particularly singular or egregious. So talk about what leaks looked like back then. Yeah, almost everybody was on the court leak to somebody at some time.

• 1:29:10Speaker 06

  The justices were friends, were quite good friends with many congressmen. One great example of this is Joseph Story and Daniel Webster, who worked together all the time. Webster actually relied on Story to write some of the legislation that he put in Congress. But yeah, so Webster was aware. And Mrs. Wall's story is on the Supreme Court, to be clear. The Wall story is on the court, yes. Yeah, so Webster would be one person that would hear of what was going on with Story, for example. There were lawyers who tried cases in front of the court on a regular basis, who would catch wind of what went on in conference because somebody was unhappy with what was going on. There were many leaks around the Dred Scott decision. We sometimes, historians sometimes think about that decision as being unique,

• 1:29:55Speaker 06

  but it wasn't. Almost everybody on the court leaked during the Dred Scott moment. And this continued again in the Civil War and after. To quote John Roberts again, just a couple of months after that Dobbs leak and Roberts' response, he says that the Constitution needs, quote, "somebody to say what the law is." And also sort of cautions, threatens, I'm not quite sure what it is, but says that if the court didn't do it, quote, "I'm not sure who would take up the mantle." And the book is like, it feels like a corrective slash response to that, as again is the wonderful book by Nico and Daphna that we've already mentioned. So who did take up the mantle in the 19th century?

• 1:30:36Speaker 06

  And were we to respond to a correct understanding of the role of the court that reflects more this kind of complex interplay between courts and politics and democratic processes? Sort of what would that look like if we were to try to recover at least some aspects of it today? Well, one thing that we would have to be comfortable with is a little bit of constitutional uncertainty. I think people in the 19th century were not obsessed with the idea that we know the final answer to constitutional meaning at every moment, that it changed over time, and that people had different theories for how it might work. So that's one key part.

• 1:31:17Speaker 06

  A second key part is that the people at the time would have this constitutional conversation. So I think we've lost this as a society where we talk all the time about constitutionalism. That's what would have happened in the 19th century, and we don't do that in the same way today. I can't tell you many people will say to me, like, I don't, I don't know anything about the Constitution. I'm not a lawyer. But that would have been crazy to people in the 19th century who thought that the Constitution was their responsibility. So I, you know, I'm, I'm not going to suggest that we should just throw out judicial authority because the justices did participate in these conversations. And we are a very different society now from the 19th century. But I do think we could learn something from these folks

• 1:32:01Speaker 06

  in that the justices were far more responsive and responsible to the people in the 19th century. They faced their critics. They spent time with other politicians and average Americans. And we're a very different society today in that justices would be forced to talk to people that they, you know, don't look like and wouldn't, wouldn't necessarily agree with, which was not always the case in the 19th century. Right. I want to quote again from the latter bit of the book because I thought this was really resonated. It was very thought provoking, which is, so you write that today's justices, quote, "consistently insist they operate above, outside of, and beyond politics, in turn, operating above, outside of, and beyond the people." And so will you just say a little bit more about that?

• 1:32:44Speaker 06

  Like how this claim to be above politics actually turns into, or maybe is inextricably linked to in ways that I don't think anybody's articulated in quite the way you are, a claim to basically be above the people? And that these kind of claims to an idealized conception of an apolitical court inadvertently making common cause with a wildly judicial supremacist account? Yes, I think, you know, I think this is sort of the message that Chief Justice Roberts gives us on a regular basis, which is, you know, the people can't be trusted to make any decisions for themselves. This is really the purview of the court. And certainly, the epilogue tries to point to this, but there could have been, you know, maybe 100 quotations from Chief Justice Roberts to this effect.

• 1:33:27Speaker 06

  The idea that the justices have to be separated from the people to have legitimacy is just wrong. That is the opposite of the way things worked in the 19th century. And I think it doesn't mean that we can go back necessarily to that model, but it does mean there are other possibilities besides the idea that the court is in a building that nobody can access and nobody can talk to the justices. And the justices are insisting that they have to be separate from all people and politics in order to do the right thing in terms of our rights. This, this would have been totally crazy to people in the 19th century and the founders, who would have thought this is, this is totally outside what judges should be doing in a society where the people rule.

• 1:34:12Speaker 06

  I'm reminded of that wonderful Jody Kantor article from a few weeks ago about John Roberts, like, having some maybe uncomfortable social interactions with his neighbors in this, on this island off of Maine. And like, a lot of people were shocked that he might have to, you know, answer for some of his decisions on vacation. And what you're saying is they've always had to answer, like, the kind of present understanding is the anomaly, right? Like, what Roberts has to do on vacation, like, that's been the norm for our history. And, and I think that it's just so important to recover that. Like, maybe I'll ask one more question, which is, the idea that embracing a vision of the judicial role that does not stand so entirely outside of the worlds of politics and society and governance

• 1:34:55Speaker 06

  does not, if I read you accurately, necessarily mean that the justices are not independent when they decide cases. It's just that maybe we need to question or probe our conception of judicial independence. Can you say a little bit about how the vision that you offer might be consistent with some basic rule of law principles? Like, judges, you know, should decide the cases before them based in, at least large part, if not entirely, on the merits of the arguments and not based on other factors? This is a really good question, and I think it's important to understanding the 19th century, that the idea of independence was not that you were independent of politics. It was that you were independent of someone controlling your decisions.

• 1:35:38Speaker 06

  So being responsive to the people meant that you had to justify your opinions. You had to justify your decisions. But it didn't mean that you just reflected what the people said. The people were complicated in the 19th century. They didn't all say the same thing. It also meant a willingness to engage with the people and defend your decisions and talk about your decisions, a little bit more transparency compared with the way that we operate today. So being independent is really about having the ability to decide and the confidence that you, as a statesman or stateswoman, would have the

• 1:36:11Melissa Murray?

  Opportunity to say something that matters to society and matters to constitutional meaning. This is, this is not the same thing as like, I'm going to be a political independent or not have any political views, which, you know, it's like, really not a thing.

• 1:36:27Speaker 06

  Yeah. It's just an incredibly important and eye opening book. I want to end maybe just with another quote from near the end of the book, and that is, quote, "The Supreme Court's seclusion is not based in a long history and tradition." Nice free appropriation of some of their favorite phrases. "It is a modern creation. For a century justices had a relationship to politics and the people that looked very different from the mythic Marbury story during a time when the nation was at its most fragile and Americans were even more divided. The future can look different, too." Rachel, you have given us a lot to think about. Really encourage our listeners and viewers to pick up a copy of the political Supreme Court. Thank you so much for taking the time to talk to me today.

• 1:37:05Melissa Murray?

  Thank you.

• 1:37:06Speaker 06

  So thanks again to Rachel for joining. That conversation certainly put things in perspective. And now for our favorite things. So Melissa, because you recommended Rainbow Rowl, I read Attachments. I really liked it.

• 1:37:19Melissa Murray?

  Did you? I haven't read that one. Will I love it?

• 1:37:22Speaker 06

  I liked it. I don't know if you'll love it, but I recommend it. I also read Lisa Kleypas's new book, Queen of Lombard Street. Loved that. Also, the chicks bringing out James Talarico at their concert and the remarks that he made, I don't know why, but they, like, I teared up and I got all the feels from them because he says, "They are the best of Texas. Like, I am proud you are Texans." And it was just exactly like such a moment, given all they endured, right after, you know, expressing their opposition to Bush. So anyways, check it out if you haven't.

• 1:37:59Melissa Murray?

  That seems so long ago. And honestly, like, that was sort of the first glimmers of how misogynistic and crazy, like, this party was going to become.

• 1:38:08Speaker 06

  Yeah.

• 1:38:09Melissa Murray?

  That's like, I mean, do you remember that? So for those of you who are too young to remember, the Dixie Chicks basically criticized George W. Bush and his presidency, and people lost their ever loving minds. And, you know, said that they weren't real Texans and because they said he wasn't a real Texan and all, all kinds of shenanigans ensued. They issued a fantastic song, Not Ready to Make Nice, which was basically, fuck y'all, we'll say what we want to say. And like, totally stood 10 toes down on their dissent because dissent is patriotic. Imagine that. And, you know, and now we have this. I mean, it just seems quaint, given the level of fuckery we have now that, you know, this was actually a controversy. This wouldn't even like, break wind at this point.

• 1:38:54Speaker 06

  Yeah. But again, do check out James Talarico's remarks. Definitely worth it. Another favorite thing, Pablo Torre on Vivek Ramaswamy on Mr. K. Shaw's show, All In with Chris Hayes. Absolutely loved it. He just dished on what a douche Vivek was in college. So, you know, again, everyone makes mistakes, right? But when you are funding an ad about the woman who stayed married to her daughter's rapist, right? Like, you get all your dirty laundry aired and we all get to make fun of you, right? For all time. Like, that's just a part of the deal. Another, Lily Allen, celebrating the one year anniversary of West End Girl with a sex toy launch. Truly amazing. Icon level shit.

• 1:39:39Speaker 06

  I aspire to do something that iconic. It was just incredible. I don't, like, you get the email, right? And it's like, oh, check out like this, like, West End Girl collection, right? And you think it's going to be clothes or something? No, no, no, no. It's sex toys. It's just everything.

• 1:39:55Melissa Murray?

  And it comes to you in a Dwayne Reid bag with the handles tied.

• 1:39:58Speaker 06

  So one, one last favorite thing, and this is a spoiler for you can see everything. So if you haven't seen it and don't, or sorry, have you seen it, Melissa?

• 1:40:09Melissa Murray?

  I'm seeing it tonight.

• 1:40:11Speaker 06

  Okay. Earmuffs then. Earmuffs. Amanda Seyfried in the movie, like, I want to start that Oscar campaign so fucking incredible. And I can't wait to talk with you about it, Melissa.

• 1:40:22Melissa Murray?

  Oh, okay. All right. I heard you and like, it's fine. It's not, it wasn't a huge spoiler. I knew that she was in the Titanic. My students have already told me that I need to see this, so I am going to do that. I just want to say a couple of things. I'm so glad that you are enjoying the Rainbow Rowl. Again, I think her adult fiction is absolutely fantastic. I'm putting Attachments on my list. I'm almost done with The Correspondent. It's been a slow reading week for me because I've had a bunch of other stuff to do. But for those of you who recommended The Correspondent, chef's kiss. Love it. I'm going to say happy anniversary to my husband, The Hubs, who stays a husband, not a wus-bun, because he's great.

• 1:41:04Melissa Murray?

  And let's, let's be honest, I'm, I'm kind of a lot, a lot of main character.

• 1:41:08Speaker 06

  No, no.

• 1:41:09Melissa Murray?

  He tolerates me, but he loves me and I love him. So happy anniversary to him. I was at Fordham Law School yesterday because Justice Sotomayor made an appearance. I want to thank Dean of Fordham Law, my former classmate, Joe Landau, for inviting me and allowing me to participate and be part of their community. They were lovely. We love Fordham Law School. We did the Levine lecture there a couple of years ago, and they were just so fantastic. I want to just shout out a couple of the Striktes and the Wild that I met at Fordham. There were a number in the room. So shout out to Cecilia and Christina, who came up and said hi. And then there were two young women who came up and said, said hi and said they were fans of the show.

• 1:41:53Melissa Murray?

  One of them was wearing a very avant garde jacket that I was just fangirling. I was so distracted by how much I liked her jacket that I forgot to ask her name. So apologies to those two. I was stunned by your fashion forwardness and it was great to meet you all. I am actually loving this season of The Diplomat. And, I mean, I'm, I've been binging it. I, I've actually stopped going so fast with it because I want it to last because it's really good. Allison Janney is absolutely fantastic. Bradley Whitford is great. Keri Russell, fantastic. You know, I'm obsessed with Rufus Sewell and absolutely would. And that is all I have to say about that.

• 1:42:34Melissa Murray?

  But if you are watching it, it's such an interesting commentary on things that are happening now and just, what would you do if faced with unbridled executive power? What would you do?

• 1:42:48Speaker 06

  Well, speaking of what would you do, something you should do is Crooked Con. So Crooked Con is just over two weeks away. Join us in Washington DC, November 5th through 7th, as we reflect on the midterm results and look ahead to what's next in 2028. And now you have even more reasons to come. We've just added some big names to the Crooked Con lineup.

• 1:43:08Melissa Murray?

  Guess who's going to be there? It's not just me, Leah and Kate. It's also going to be our good friend, JB Pritzker, Senator Chris Murphy, who's going to be our good friend, Representative Ilhan Omar, who will have a lot to dish about. Plus, Representative Sarah Jacobs is going to be talking on our AI panel. And there are so many more. It's going to be absolutely fantastic. So get yourself a front row seat to the discussions that are going to shape our future and the future of the pro-democracy movement.

• 1:43:37Speaker 06

  So go to crookedcon.com to get your tickets if you haven't already. See you there.

• 1:43:51Melissa Murray?

  Struck Scrutiny is a Crooked Media production. Our show is produced by Melody Raul and Farah Safari. Music is by Eddie Cooper. Our team includes Alona Makovsky, Matt Degroot, Ben Heathcote, Adam Lippard, and Eric Schut. Our production staff is proudly unionized with the Writers Guild of America East.

• 1:44:16Speaker 06

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