The Trump Administration's SCOTUS Winning Streak

Leah and Kate dive into the week’s legal news, explaining how SCOTUS continues to carry water for the Trump administration. They also cover an epic slapdown of the Roberts Court out of Hawaii, Sam Alito’s Italian sojourn, and the DOJ’s refusal to investigate the wads of cash lining border czar Tom Homan’s pockets. Then all three hosts are joined by special guests Sherrilyn Ifill, founding director of the 14th Amendment Center for Law & Democracy at Howard University, and New York Times columnist Jamelle Bouie to discuss the Supreme Court in the years after the Civil War and Reconstruction and why that era, known as the Redemption Court, resonates with today’s legal landscape. Favorite Things: Leah: Trump’s Dream of Infinite Presidential Power https://www.nytimes.com/2025/09/24/opinion/lisa-cook-trump-presidential-power.html, Jamelle Bouie (NYT); Jimmy Kimmel’s comeback monologue https://www.youtube.com/watch?v=c1tjh_ZO_tY (ABC) Kate: Chris Hayes’ WITHpod episode with Bill McKibben https://www.youtube.com/watch?v=n9MmJkkv780 Jamelle: “How Comedy was Destroyed by By an Anti-Reality Doomsday Cult https://www.youtube.com/watch?v=ewvRS3NwIlQ,” Elephant Graveyard (YouTube) Sherrilyn: Charles Sumner: Conscience of a Nation https://bookshop.org/p/books/charles-sumner-conscience-of-a-nation-zaakir-tameez/06feaaf91dde87ff?ean=9781250362551&next=tby Zaakir Tameez; King of the North: Martin Luther King Jr.'s Life of Struggle Outside the South https://bookshop.org/p/books/king-of-the-north-martin-luther-king-jr-s-life-of-struggle-outside-the-south-jeanne-theoharis/f812d5f86346d8dc?ean=9781620979310&next=t by Jeanne Theoharis Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for separation of church and state. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system, so they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools at the Supreme Court in a case we talked about on the podcast. If you're listening to us, you're seeing the writing on the wall. We can, we must, fight back.

• 0:43Leah Litman?

  Join Americans United for separation of church and state and their growing movement, because church-state separation protects us all. Learn more and get involved at au.org/crooked.

• 0:55Speaker 01

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

• 1:07Speaker 02

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

• 1:37Kate Shaw?

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

• 1:44Leah Litman?

  And I'm Leah Litman. And this is the last week of summer programming before we plunge right into October term 2025, the Supreme Court term that starts on Monday, October 6th. I can't say we're savoring this exactly, because this summer has been pretty hellish on the Supreme Court and general law beat, but we're taking full advantage of this last week of actually our final episode of the sixth season, which is just wild.

• 2:11Kate Shaw?

  It's crazy.

• 2:12Leah Litman?

  By, I know.

• 2:13Kate Shaw?

  Like, second graders. Wow.

• 2:14Leah Litman?

  Yeah.

• 2:15Kate Shaw?

  That's just wild.

• 2:17Leah Litman?

  But we're embarking the occasion by bringing you a very special conversation. The three of us had, Kate, Melissa and me, with Cheryl and Eiffel and Jamel Bowie, about the redemption court, the Supreme Court in the period following the Civil War and Reconstruction, when the court really did all that the law allowed and more to thwart progress, justice, multiracial democracy, in a way that seems a little too familiar. So, we're going to start with the news and then please stay tuned for that conversation.

• 2:46Kate Shaw?

  And speaking of the court doing all that the law allows and more, first up, we have the administrative state maybe ending not with a bang, but whimper or a series of whimpers. And we got the latest installment on that front last Monday, when the Supreme Court kicked off the week by granting the government's stay application in the case about whether Donald Trump can fire a commissioner of the Federal Trade Commission, or FTC. The upshot, and we'll go deeper, but the upshot is that Trump can fire the commissioner, while the litigation challenging her firing remains ongoing, and the litigation has actually been fast-tracked, as we're going to explain.

• 3:23Leah Litman?

  If FTC and presidential removal ring a bell, congratulations, you're already more familiar with the Supreme Court's case law than the six Republican appointees on the court are. As regular listeners have now been reminded more than a few times, more than a century ago, Congress established the Federal Trade Commission as an independent, expert, multi-member commission, led by people who can't be fired at will by the president. The Supreme Court upheld that statute nearly a century ago, saying that it is constitutional for Congress to insulate officials from presidential removal, in the case called Humphreys Executor. But this court said Humphreys Executor, fuck her!

• 4:04Kate Shaw?

  And for those of you keeping track at home, that is a major escalation from Humphreys Executor, don't know her. So, the court has, over the last few months, allowed the president to fire people who were part of other independent commissions and boards, like the National Labor Relations Board, the Consumer Product Safety Commission, the Merit Systems Protection Board. The majority where it wrote anything in those cases had not actually mentioned Humphrey's executor. It had essentially ghosted that case, although Justice Kagan definitely did not ghost the case in her dissenting opinions. But now, when the rubber hits the road, the court has basically made clear, we're not even going to pretend to treat that case as a still viable precedent of this court.

• 4:45Leah Litman?

  So the Supreme Court's order granting the stay application that cleared the way for Trump to fire the official in violation of a federal law that the Supreme Court has upheld also said as follows. Quote, "The application is also treated as a petition for certiorari before judgment, and the petition is granted. The parties are directed to brief and argue the following questions. One, whether the statutory removal protections for members of the FTC violate the separation of powers, and if so, whether Humphrey's executor should be overruled. Two, whether a federal court may prevent a person's removal from public office, either through relief at equity or at law." End quote. That case is going to be argued in December, so really closing out the year with a bang.

• 5:30Kate Shaw?

  Happy holidays, America. And the court has really placed this case on the fast track because the court granted cert before judgment. That is, it granted certiorari, agreed to hear the case before there is a judgment or decision from the Court of Appeals. All that has happened in this case is that the Court of Appeals has denied a stay of the lower court's preliminary injunction, but the Court of Appeals hasn't actually reviewed the preliminary injunction on the merits. And SCOTUS basically just said, eh, to heck with those niceties and formalities of the judicial process. We just want to go ahead as a New Year's gift to ourselves and do the damn thing.

• 6:05Leah Litman?

  Steve Lettich has statistics on the practice of certiorari before judgment, just so you realize how abnormal the court's conduct is. So certiorari before judgment, as a thing, there was not a single grant of cert before judgment between the period of August 2004 and February 2019. This, the Humphrey's executor cert before judgment matter, is now the 23rd such grant since then.

• 6:32Kate Shaw?

  So in six years. It is just wild how this practice has accelerated. And we want to play for you a clip we have played before, but just kind of can't play often enough. So let's roll that tape.

• 6:43Speaker 04

  Three years, four years, we've been able to move much more expeditiously. I think we did the TikTok case in a month.

• 6:52Kate Shaw?

  Court again telling us that it chooses not just what cases to take or how to decide them, but how quickly to move when it thinks things are important and how slowly can move when it thinks things aren't. So another reminder, the court was obviously able to move expeditiously in the TikTok matter and is moving expeditiously to overrule its precedent in Humphrey's executor. But remember where the court would not grant cert before judgment and expedite proceedings? I know you do.

• 7:16Leah Litman?

  I do.

• 7:17Kate Shaw?

  Trump versus the United States. When the court wanted to wait until the last possible moment, when a trial before the election was completely unavailable in order to issue its catastrophic decision immunizing much or maybe all presidential conduct from future criminal liability. But back to this case, Slaughter is the name of the case, the case about the future of Humphrey's executor. Justice Kagan dissented, as she has in a number of these cases. And I would say in this one, sometimes she descends in sorrow. In this one, I think it's sort of, it's quiet. She's always kind of understated, but it's less in sadness than in anger, is how I read it.

• 7:55Leah Litman?

  It's a lot of internally screaming vibes.

• 7:57Kate Shaw?

  Yeah, yeah. And yeah, I felt like I could, I saw that between the lines as well. So let's read a couple of excerpts. So here's one, quote, "The majority may be raring to take that action," that is, overrule Humphrey's executor, "as its grant of certiorari before judgment suggests. But until that deed is done, Humphrey's controls and prevents the majority from giving the president the unlimited removal power Congress denied him."

• 8:20Leah Litman?

  Whispers to Elena, "Just say YOLO, girl, instead of raring to go, you know you want to."

• 8:28Kate Shaw?

  See, raring to go for me called to mind, she wants to call her colleagues H O T T O G O, although I know that's like more last summer than this one, but it's still playing in my household.

• 8:38Leah Litman?

  We didn't have a song of the summer, so it's fine to use some of last summers.

• 8:41Kate Shaw?

  Thank you.

• 8:42Leah Litman?

  But basically, the Supreme Court is saying, "The law is now what the Supreme Court will do." That is, what the court will say the law is, not what the law actually is now before it's been changed. Again, Congress has passed a statute. The Supreme Court has upheld that statute. But now we act like that statute is unconstitutional because you know what these doofuses are going to say. They are just so thirsty for overruling.

• 9:12Leah Litman?

  Humphrey's executor and other matters. And the proceedings in this case reminded me starkly of SB 8, where they went ahead and allowed a state to nullify the protections of Roe versus Wade before formally making it a fish that they were going to overrule Roe.

• 9:31Kate Shaw?

  Again, both serve before a judgment and staying the lower court's order, even though the court doesn't explain it, it implicitly is telling us that it is an intolerable, extraordinary burden on the president to have to keep in place this official that every predecessor president has managed to do the work of presidenting while saddled with. And yet it's all of a sudden, because only these six can see the truth, intolerable under the Constitution. But they won't quite tell us that or why. But hopefully they'll come up with something by December.

• 10:02Leah Litman?

  It's like they just discovered nationwide injunctions were impermissible at this magical moment in summer of 2025.

• 10:10Kate Shaw?

  And they're just getting started. Yeah. Justice Kagan's closing, I think, is also worth sharing. So indulge me with one more quote. Quote, "Our emergency docket should never be used, as it has been this year, to permit what our own precedent bars. Still more, it should not be used, as it also has been, to transfer government authority from Congress to the president and thus to reshape the nation's separation of powers."

• 10:34Leah Litman?

  I'm going to whisper to her again. Elena, just say lawless.

• 10:40Kate Shaw?

  If you know what to look for, she is. She very much is.

• 10:43Leah Litman?

  Fair enough, fair enough.

• 10:44Kate Shaw?

  And that last sentence, I know, is too long for a T-shirt, but I kind of want one anyway. So I think we should.

• 10:49Leah Litman?

  If you want one, I'll make one for you, Kate. You know I will.

• 10:52Kate Shaw?

  It's so good. I mean, it might be too much, Tree, but I feel like I want to. Maybe I'll just tattoo it.

• 10:58Leah Litman?

  I'll run some experiments.

• 11:01Leah Litman?

  So I also want to remind our listeners who the guy is that this court keeps giving an ever-expanding set of powers to, allowing him to fire independent experts in violation of federal law and stack the federal government with toadies and hacks and stooges. So we have a montage of clips from him. And none of these, by the way, are from the embarrassment that was his speech to the United Nations. So here you go.

• 11:27Speaker 05

  I just recommend strongly that you don't use Tylenol. That's it's absolutely necessary. I just want to say, I want to say it like it is. Don't take Tylenol. Don't take it. If you just can't, I mean, it's just fight like hell not to take it. It's too much liquid. Too many different things are going into that baby at too big, at too big a number. The size of this thing, when you look at it, it's like 80 different vaccines and beyond vaccines.

• 12:01Speaker 05

  The FDA will be notifying physicians at the use of acetaminophen. Is that OK?

• 12:16Kate Shaw?

  This is the guy who can't even pronounce the active ingredient in Tylenol, but decided nevertheless to hold a presser suggesting, in the total absence of definitive and clear evidence that Tylenol causes autism, that he is just going to blame pregnant women trying to alleviate their pain, address fevers, things like that, for autism. And the nation's, like, scare quote, health officials just stood behind him as he did that. Anyway, this is the guy. It's not an abstraction called the president. Right now, this is the person to whom this Supreme Court supermajority is giving all the powers.

• 12:55Leah Litman?

  Yes. And the basic TLDR from the Supreme Court is that Democratic presidents like Joe Biden, they cannot exercise powers that are delegated to them, i.e. given to them by Congress. Think student debt relief, where the court took a bite-sized piece out of the statute, actually giving the Department of Education power. Whereas Republican presidents like Donald Trump get to exercise powers that Congress has denied them.

• 13:23Kate Shaw?

  Well, you've said this before, and I will say it again. The unitary executive is all the power is vested in all the Republican presidents across time.

• 13:29Leah Litman?

  Yep.

• 13:29Kate Shaw?

  It obviously makes sense. But in terms of like the actual asymmetry and uneven treatment between President Biden and President Trump, the rules for what interim policy will look like during the pendency of litigation have fundamentally been different between President Biden and President Trump. So, actions that Biden took that were allegedly illegal and found to be illegal in lower courts, those actions are generally blocked. Not so much with Trump, right? The administration can take actions lower courts find illegal or likely illegal, and the Supreme Court nevertheless allows the administration to go forward with those actions. The administration is now, sort of depends on exactly how you count consolidated cases, but something like on a 20-case winning streak over the summer, like since April, at the Supreme Court.

• 14:14Kate Shaw?

  It is stunning.

• 14:15Leah Litman?

  Yeah. I also wanted to make sure our listeners were aware of the second question that I read in the Supreme Court's order. You know, the court just slapped this question onto the order, scheduling the slaughter FTC case for oral argument, because this second question could mean, would mean, there is no remedy if the president fires someone in violation of a law that even this Supreme Court says is constitutional. So, the question is whether a federal court may prevent a person's removal from public office, either through relief at equity or at law. So, the premise is, again, the president has fired someone from public office in violation of federal law. Is there anything a federal court can do about this?

• 14:57Leah Litman?

  If the answer is no, that would mean there's no remedy for firing, let's say, a Federal Reserve governor in violation of federal law. It would mean there's no remedy for the allegedly unlawful firings of Maureen Comey or other individuals from the Department of Justice or individuals at the FBI, you name it.

• 15:17Kate Shaw?

  Of course, they might say, no, there's no remedy. That's a reinstatement remedy. But maybe these guys can find some way to get some monetary damages for an unlawful firing.

• 15:25Leah Litman?

  Oh, yeah, because this court loves bivins.

• 15:27Kate Shaw?

  Completely. They would love to basically say that and then see, both through their own handiwork and through some future decision that they might make. Make absolutely sure that no one's ever going to be able to get any kind of monetary relief.

• 15:39Leah Litman?

  For sure.

• 15:39Kate Shaw?

  But at least on, at least as the question is framed, right, preventing the removal rather than removing all possible legal remedies is the way they framed it. But of course, I suspect that even if they try to cast as a modest intervention with like lots of other avenues remaining, there will be no viable avenues to challenge if in fact, they answer that second question.

• 15:56Leah Litman?

  For sure.

• 15:57Kate Shaw?

  Do courts have this power at all in the negative? And as Leah was just sort of gesturing towards, that would encompass high level officials, like potentially a governor on the Fed, but also people in the civil service, in the foreign service, in the military, like people have, you know, I don't think sufficient attention has been paid to just how many firings, including of JAGs, right, military lawyers the administration engaged in very early and throughout the administration. So there are lawsuits challenging a lot of those removals pending. And maybe the court wants here to make clear that these people are just out of luck, at least when it comes to any potential for reinstatement by a federal court.

• 16:36Leah Litman?

  Things might be about to get real fucked, which I feel like is an apt way of closing out this season slash Supreme Court term. And now, you know, to the unitary executive theory, which is unfortunately increasingly part of our reality, outside of the courts. So last Thursday evening, it was reported that former FBI Director Jim Comey was indicted in the Eastern District of Virginia on two counts, one for making a false statement, the other for obstruction of justice. And the bare bones indictment doesn't make clear the bases for these charges. Don't worry, we're still going to talk a little about why different possibilities are bunk.

• 17:17Leah Litman?

  But in many ways, it's the context for the charges, the things outside of the indictment that make this so significant.

• 17:25Kate Shaw?

  Totally. Context here, Trump has made really crystal clear, he hates Jim Comey, he partly blames Comey for the inquiry into Russian interference in the election and for the negative, that is to say, accurate, coverage of the same. Trump has repeatedly explicitly threatened to punish and prosecute his perceived enemies, people he dislikes, often, although not exclusively, because they are political opponents or critics, but usually because these are people he thinks have said or done things that are less than flattering to Donald Trump, and he has said, again explicitly, that he will use the full power of the state to punish those people.

• 18:03Leah Litman?

  Yeah, I mean, Trump promised on the campaign trail and since vengeance and retribution for people who wronged him and against others who might have wronged the people he encouraged to vote for him. And in response to Trump's pressure and directives to investigate and prosecute his opponents, multiple federal prosecutors and officials have reportedly looked into potential cases against Jim Comey and others. And guess what? They found there isn't a case, there isn't evidence they committed crimes, there isn't evidence that would allow a jury to convict him of a crime. So Trump forced those prosecutors out, installed one of his personal lawyers, who was also a White House aide, Lindsey Halligan, who has never tried a criminal case, as the US attorney

• 18:46Leah Litman?

  in that office. And NBC reported those career prosecutors have even written up a memo to Halligan detailing the lack of evidence to charge Comey. But Halligan proceeded, within days of being installed, I'm sure she took a super careful look at the case, and just with days before the statute of limitations to charge Comey ran out, and Halligan obtained an indictment on two charges. Apparently, they actually sought an indictment on three charges but got no bill on one of them. She is, I think, somewhat notably, the only lawyer who signed this document. There are no career officials on it, and... Much is going to be said and should be said about this indictment and case.

• 19:28Leah Litman?

  I wanted to take a moment to explain what are called vindictive or selective prosecution claims and why this is a textbook case of a claim that is usually difficult and often prohibitively difficult to establish. So selective or vindictive prosecution claims are claims that allege you were targeted for prosecution, not because you violated the law, but for some other reason. And usually it is virtually impossible to show you were targeted for some reason other than that you committed a crime. Here, by contrast, these guys basically tweeted it out. You know, the firings and the replacements all substantiate this. This all is highly irregular and abnormal and unfolding very publicly.

• 20:12Leah Litman?

  And I also wanted to underscore, this makes the reporting on the attorneys advising Halligan, Bondi, and others, that there's no basis for these charges really important because that helps to substantiate this claim, which again, rarely succeeds. And yet, this one, I think, should.

• 20:28Kate Shaw?

  Yeah. It should and it has to.

• 20:31Leah Litman?

  Yes.

• 20:32Kate Shaw?

  If it's, that's a, that's a meaningful prohibition, right, on prosecutors?

• 20:36Leah Litman?

  Yep.

• 20:37Kate Shaw?

  That you cannot engage in this sort of vindictive and malicious prosecution. So as Leah said at the outset, right now, we are outside of the courts, right? This is, the indictment has been returned by a grand jury, but no federal court has rendered any kind of substantive decision on this yet. But there is a very, we think, important connection between the Supreme Court and what has just unfolded in the executive branch of the White House and the Eastern District of Virginia. And that is, you know, we talked a couple of minutes ago about the chief justice's appalling opinion for the court in Trump versus United States, the case that granted the president this enormous immunity even for potentially the commission of crimes. And I think the fact that the opinion does that is actually totally clear. There are parts of the opinion that are subject to different interpretations, but the part

• 21:19Kate Shaw?

  that says presidents are absolutely immune from criminal liability for things they tell the DOJ to do, even if those things are crimes, I think that part is pretty black and white. And while I don't think that Trump

• 21:33Kate Shaw?

  Told his Justice Department to go after Comey just because SCOTUS told him he's above the law in his dealings with DOJ? I am sure it assuaged any concerns that he or his lawyers might have had in any sane world in which a president, after having sworn to punish enemies, was going to actually sic his Justice Department on someone for essentially the sole reason that that person has been a thorn in his side politically.

• 21:58Leah Litman?

  Yeah, and just to underscore the portions of the immunity opinion that you're referencing, these are the occasions where the Supreme Court said the president's powers over investigations and prosecutions are core and exclusive to the president, so core and exclusive that it doesn't even matter if they are sham investigations or baseless prosecutions. Still, then, the president can do those things subject to impunity. And that is just part of why that opinion, I think, is just so incompatible with constitutional democracy. And, you know, on the Comey case in particular, we don't totally know the factual basis for the charges because this is a bare bones indictment, but it seems as though for any of the possibilities, there is no there there.

• 22:43Leah Litman?

  And if you want to understand more of the possibilities and why none of them hold up, I'd highly recommend to you Ben Wittes and Anna Bauer's piece at Lawfare, Choose Your Own Adventure, Lindsey Halligan. But in brief, you know, one of the theories is that Comey lied to Congress about whether he authorized, you know, a leak, but that claim is based on Ted Cruz's misremembering what Andrew McCabe had said. McCabe never said Comey authorized talking to the press before members of the federal government spoke to the press. The most he said was that Comey was informed after the story had run. And, you know, hopefully, these charges are dismissed before trial because, of course, part of the cost here that the president is able to exact on people is the cost of

• 23:28Leah Litman?

  the trial, you know, the proceedings themselves. And grand jury nobles like the kind we've seen and Jeanine Pirro's, you know, office out of DC are great. You know, they were great and they still are. But the reality is, they are not a perfect solution to an executive willing and able to use the entire apparatus of federal criminal law enforcement to target dissent. You know, and the same thing with the idea that juries are going to do the same thing here. You know, again, Just want to step back and underscore, this is the president ordering the prosecution of someone based on a fake, nonexistent crime. It's hard to put into words just how scary, red-line-y, break-glass moment this is. You know, the idea that you can order investigations and prosecutions into people who displeased

• 24:10Leah Litman?

  you is the stuff of like cartoonish accounts of authoritarian regimes. And I just worry we are so accustomed to these claims of weaponization of DOJ because Trump has been screaming about this for almost a decade and very real characterizations about the ongoing attacks on our democracy that this gets missed or obscured. But this is truly, truly edgelord authoritarianism, and Trump has suggested that more indictments are on the way. And not everyone is going to be like Jim Comey and able to get these high-profile lawyers and the kind of public scrutiny that will help protect him.

• 24:45Kate Shaw?

  Yeah. And that is why I think whatever one thinks of Jim Comey, it's extraordinarily important to rally behind him because if there is not a massive, I think, show of public opposition, it will just embolden them to do more and more of this. And we should say the indictment happened on the same day that Trump released another presidential memorandum on countering domestic terrorism and organized political violence, at least that's how it was captioned. But actually, this action too, I think, much like the Comey indictment, is really about suppressing dissent and opposition to the regime, controlling what people are able to say, and specifically how they can criticize the Trump administration and its allies.

• 25:28Kate Shaw?

  So this memorandum asserts, without citing evidence, that specific incidents of violence against conservatives are attributable to the words people use to express themselves about the Trump administration and its views and actions. So the memorandum says, quote, "There are common recurrent motivations and indicia uniting this pattern of violent and terroristic activities under the umbrella of self-described anti-fascism." These movements portray foundational American principles, e.g. support for law enforcement and border control, as fascist. Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity, support for the overthrow of the United States government, extremism on migration, race and gender, and hostility towards those who hold traditional American views on family, religion, and morality.

• 26:13Kate Shaw?

  There are like dissertations to be written about this memorandum.

• 26:18Leah Litman?

  Right. It literally just labels certain political views as-

• 26:23Kate Shaw?

  Terrorism, basically.

• 26:23Leah Litman?

  Right, as terrorism, you know, and makes broad swaths of speech now subject to being targeted. And the memo establishes a task force and directs that task force to look into non-governmental organizations, funding entities, other organizations that aid and abet this behavior, which, again, is just holding or sharing certain political views.

• 26:43Kate Shaw?

  Yeah. It did feel as though in nine months that have been, you know, scary and absurd and awful in just like countless ways, that sort of period of last week-

• 26:57Leah Litman?

  Yeah.

• 26:58Kate Shaw?

  -did feel like a turning point and a low point. And I would say definitely the scariest week that we have had. And kind of back to Comey for a minute. I actually want to play a short video that Comey put up, I think, on Instagram. Because, again, whatever you think of Jim Comey, I actually do think that in this video, he communicated a message that is urgent-

• 27:16Leah Litman?

  Yes.

• 27:16Kate Shaw?

  -and that really resonated. So let's play that now.

• 27:20Speaker 06

  My family and I have known for years that there are costs to standing up to Donald Trump. But we couldn't imagine ourselves living any other way. We will not live on our knees, and you shouldn't either. Somebody that I love dearly recently said that fear is the tool of a tyrant, and she's right. But I'm not afraid, and I hope you're not either. I hope instead you are engaged, you are paying attention, and you will vote like your beloved country depends upon it, which it does. My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system,

• 28:05Speaker 06

  and I'm innocent. So let's have a trial and keep the faith.

• 28:10Leah Litman?

  Agreed. You know, if we learned anything from the Kimmel episode, it is that solidarity, public outcry, right, is just super important and you need to take a stand in order to prevent them from trying to just bulldoze over more people with not as many resources. So at the same time, the Trump administration is prosecuting dissenters who didn't commit crimes, it also seems like they are or have been immunizing allies who might actually have committed crimes, or at least attempted to.

• 28:45Kate Shaw?

  And to wit, MSNBC broke the story that last year, White House borders czar, Tom Homan, was recorded by the FBI accepting $50,000 in cash in a Kava bag, pound paper bag, from the Kava chain, from agents posing as business executives after Homan represented to the agents that he could help them win government contracts in a second Trump administration. So according to the reporting, after this recording was made, the FBI and DOJ decided to wait to see whether Homan would actually attempt to steer government contracts towards the people from whom he had received this cash, once he assumed office. But of course, he assumed office when Trump took

• 29:29Kate Shaw?

  over. And what did the Trump appointees do? They closed the investigation for evidently reasons.

• 29:35Leah Litman?

  So Homan was asked about taking 50K in cash in a bag on the Laura Ingraham show, and we're just going to play that clip.

• 29:43Speaker 07

  They said that you took $50,000 in cash in a bag from an undercover FBI agent to help them win government contracts in Trump's second term. The DOJ said, they concluded there was no criminal wrongdoing, but nevertheless, that story is out there. And I imagine you want to respond to that.

• 30:05Speaker 08

  Absolutely. Look, I did nothing criminal. I did nothing illegal. And there's hit piece after hit piece after hit piece. And I'm glad the FBI and DOJ came out and said, and you know, said that nothing illegal happened, nothing, you know, no criminal activity.

• 30:20Leah Litman?

  Kate, do you think that this is a kind of corruption that the Supreme Court would actually allow the federal government to criminalize or prosecute in the event that we had an administration that believed in prosecuting cases of public corruption?

• 30:38Kate Shaw?

  If you don't know anything about the Supreme Court, I can't, you have to say, of course, this is something the Supreme Court would allow to be prosecuted.

• 30:46Leah Litman?

  That's the joke.

• 30:46Kate Shaw?

  And what is so insane? And first, let me just say about the Ingram quote, like, that's definitely not a denial of the cash bag.

• 30:54Leah Litman?

  Not at all.

• 30:55Kate Shaw?

  But we would have to know what exactly the quo is. But I'm sorry to report, I think this court would side and perhaps unanimously with Homan, because this actually looks a lot like Percoco, a case we talked about a couple of years ago that involved a guy who was in government and then out of government for like eight months. He took a bunch of cash to help a pal get a lucrative contract and ended up prosecuted, understandably. And yet the Supreme Court sided with him unanimously. So regrettably, Homan's odds would be excellent before this court, if it ever ended up there. But also, regrettably, it won't.

• 31:35Leah Litman?

  I personally cannot wait to read an opinion that says, guys, we're handing bags of cash to the king's men all the time. So common law, totally cool.

• 31:44Kate Shaw?

  That was what was in the snuff boxes, right? Like Ben Franklin just had a snuff box in order to put the bribes in.

• 31:50Leah Litman?

  Exactly. Also, Tom Homan obviously failed to realize that we are in a new era and he's several eras behind, taking money in bags and all. So.

• 32:00Kate Shaw?

  Why? Because crypto bribes are really where it's at?

• 32:02Leah Litman?

  Well, well, no, that was a Taylor Swift reference. There's a lyric in Getaway Car, taking money in, in a bag. It's okay, Kate.

• 32:11Kate Shaw?

  I do know that song, but I completely, whoosh, right over my head. All right.

• 32:17Leah Litman?

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• 34:19Speaker 09

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

• 34:55Kate Shaw?

  All right, well onward.

• 34:56Leah Litman?

  Yeah, more on the unitary executive theory in practice. So remember those hypotheticals from the arguments in the immunity case and the dissents in the immunity case that we were told were totally hysterical about how presidents might, I don't know, order assassinations?

• 35:13Kate Shaw?

  I recall Samuel L. being really offended by that suggestion.

• 35:17Leah Litman?

  Exactly. Unclear if he would be offended now that the federal government has bombed a fourth boat it claims without evidence is transporting fentanyl. This is, again, to be clear, the federal government executing private citizens, non-military, non-state actors, based on a say-so that has been provided with no due process or substantiating evidence. In fact, there is contrary evidence.

• 35:45Kate Shaw?

  Yeah. And, sorry to be a broken record, but once again, it does stand to reason that a president who was told a year ago that he can do no crimes when he is performing core presidential actions, might think he can ignore the law when ordering lethal strikes. So there just is no indication that ordinary executive branch legal processes have been used here. DOD said essentially, in response to a press question, like, "Yeah, lawyers have looked at this." But we just don't have any actual legal rationale. We have unsupported assertions from the administration that these boats are smuggling drugs. And I am not familiar with any legal principle that permits the president to summarily order the execution of individuals suspected of drug smuggling.

• 36:29Kate Shaw?

  And let me just say, I don't think it's histrionic to say that a president unbounded by law is not going to stop At these boats in the Caribbean, just like he's not going to stop at Jim Comey.

• 36:41Leah Litman?

  Right.

• 36:41Kate Shaw?

  And that is one of the many reasons the last week has been so terrifying, honestly.

• 36:47Leah Litman?

  Yeah. Maybe let's shift to something a bit more uplifting.

• 36:51Kate Shaw?

  Great.

• 36:51Leah Litman?

  Which is.

• 36:52Kate Shaw?

  Let's do that.

• 36:52Leah Litman?

  Goings on in the Aloha State. Please invite us back Aloha State. So Justice Edens of the Hawaii Supreme Court is someone we've talked about before, and he had an epic opinion earlier this month that we want to spend some time talking about. The case was about a deed requirement that particular land be used, quote, "for church purposes only," end quote. The majority of the Hawaii Supreme Court struck down that requirement as a violation of the Hawaii Constitution, and specifically that Constitution's Establishment Clause, which apparently exists unlike the one in the US Constitution, which the US Supreme Court has read out, and the Hawaii Supreme Court declined to interpret that state constitutional provision in line with

• 37:36Leah Litman?

  the United States Supreme Court's recent interpretations of the federal Constitution. But Justice Edens, in a concurrence, went much further, explaining that a position of, quote, "fealty to brand-new takes on the First Amendment's Establishment Clause," end quote, which is how he described the Supreme Court's Establishment Clause jurisprudence, quote, "dishonor the Hawaii Constitution," end quote.

• 37:58Kate Shaw?

  So the case was about the Establishment Clause and, you know, kind of religious freedom and government imposition of religion. And Justice Edens was, as the quote Leah just read, makes clear, really unsparing in his criticism of the Roberts Court's Establishment Clause jurisprudence, but was also unsparing in his broader criticism of the court on voting rights, democracy, fake facts, and much more. So the whole concurrence is very much worth a read.

• 38:24Leah Litman?

  Yes.

• 38:24Kate Shaw?

  We're just going to offer you some choice quotes here. So I'll start with a couple. Well, first, so this is him after explaining that the Hawaii High Court doesn't interpret the Hawaii Constitution in lockstep, meaning it doesn't just blindly follow the US Supreme Court's interpretation of the US Constitution. Edens writes, quote, "If the Supreme Court decides a case based on mission, text, trickery," text trickery, he said, "originalism, or imagination, then that case may have little value to a state that prefers a more principled way, or an interpretive approach that does not force contemporary society to pledge allegiance to the founding era's culture." Okay, I'll read one more. Quote, "Pupils of a glitchy new methodology may not admit it, but no theory of constitutional

• 39:08Kate Shaw?

  interpretation entirely eliminates judicial discretion. Originalisms, sales pitch, gaslights."

• 39:14Leah Litman?

  He also wrote that, quote, "The Supreme Court devalues democracy," end quote, and he describes how the court's First Amendment cases have required government to give public money to religious entities. And he writes, quote, "Forcing states to send public funds to religious entities federalizes public policy by unprincipled fiat," end quote. And then, I think this is my personal favorite, is about Shelby County versus Holder, the decision striking down, you know, the preclearance process of the Voting Rights Act. And he writes, quote, "As it often does, the court repackaged and whitewashed facts to achieve a desired outcome." And then a parenthetical describing Shelby County, he writes, "Scorning the record, history, legislative branch, and a great American law to daydream a textually unsupported rule

• 39:57Leah Litman?

  that Alabama's equal sovereignty prevents the federal government from enforcing federal law, a law the chief justice had a hunch worked too well."

• 40:05Kate Shaw?

  I mean, we had talked about Judge Burrows in the District of Massachusetts, sort of writing maybe the greatest footnote of recent judicial history.

• 40:13Leah Litman?

  Justice Adams is like, "Watch this."

• 40:14Kate Shaw?

  But this is also like just the greatest parenthetical. Like, it's just like, you know, if you don't read a lot of judicial opinions, it's a very common thing. There's an opinion, you cite an opinion, and then there's usually like, a kind of an, you know, anodyne summation of what the case stands for. And I have just never read a parenthetical like this. It's amazing. And just sort of continues on that sort of theme in one more. Quote, "The Roberts Court's frequent misrepresentations of the factual record and its 'throw judges under the bus' disdain for district courts, the fact finders of the federal judiciary, harm the justice system." Wow.

• 40:49Leah Litman?

  Snaps to Justice Adams.

• 40:53Kate Shaw?

  Truly legendary. And sometimes I feel crazy that I'm as angry at the Supreme Court as I am. And I think it's really helpful to have folks who wear robes on different courts confirm that we in fact are not crazy.

• 41:08Leah Litman?

  I really agree.

• 41:09Kate Shaw?

  All right. So other news to bring you up to speed on. Justice Alito is on his usual hustle, by which I mean, he is communicating to the world that the most urgent problem we face, right? This is a man who scans the globe and concludes this is the persecution of conservative Christians in the United States.

• 41:27Leah Litman?

  So, The New York Times reported that, quote, "Justice Samuel Alito warned an audience in Rome that he believes religious liberty is embattled. He spoke of several cases regarding religious freedom in the US that have come before the court," end quote, and that included Mahmoud versus Taylor, the case about LGBT storybooks in classrooms. And then The Times quoted Justice Alito as saying, quote, "It is a great matter of concern and something that I think all Christians should be concerned about and should try to find ways of combating this problem," end quote. This was said during an event that The Times again reports was co-sponsored by the United States Embassy to the Holy See, the Vatican, and the US Conference of Catholic Bishops.

• 42:09Leah Litman?

  And it occurred during the Jubilee, the year-long festival of faith, penance, and forgiveness of sins that takes place every quarter century.

• 42:15Kate Shaw?

  It seemed kind of wild to me just that he was speaking at all at this convening at the Holy See, of the Holy See, the Vatican, the Conference of Catholic Bishops. But I did wonder if maybe Popleio sort of sees the opportunity to try to talk some sense into him, but it was not reported if in fact that happened.

• 42:30Leah Litman?

  Yeah. And because these guys couldn't let us have a final episode of season six without absolutely fucking more shit up, after we finished recording, the court released an order on the shadow docket in the foreign aid case. This is the case challenging the administration's freezing and cancellation of foreign aid funding that Congress has appropriated to be distributed by the US Agency for International Development and the State Department. But we refused to let the court win, so we sat back down to record an update.

• 43:04Kate Shaw?

  We did let the moon our Friday night because of course, like, this was a political news dump. They dropped it Friday evening. So we had a stew on Friday night, but we're back on Saturday.

• 43:13Leah Litman?

  We honestly maybe should have recorded on Friday night while I was maybe just a little tipsy. But anyways.

• 43:21Kate Shaw?

  Maybe next time. Yeah, we're going to be cranked up pretty high even the morning after. Okay, so Leah mentioned this is a case about foreign aid funding and USAID. And if you're thinking, wait, I thought SCOTUS actually already declined to pause a lower court order in this exact case, you would be right. But as we tried to convey at the time, and this goes back quite a few months, that initial win was honestly probably overplayed. So previously, the matter went up to SCOTUS on an order to enforce a temporary restraining order. So back in February, after the district judge in this case, Judge Ali, entered a temporary restraining order, finding that the freezing and cancellation of all this foreign aid was likely illegal. The plaintiffs argued that the defendants were not complying with that restraining order.

• 44:05Kate Shaw?

  You know, at the time, seemed really shocking. Now it is just an ordinary day at the Department of Justice. So the judge granted the plaintiff's motion to enforce the TRO, basically issuing a stronger directive, like you must comply by a certain deadline. The government took that case up to SCOTUS and the Chief Justice entered an administrative stay. And the court didn't act on that stay application until after the deadline for enforcing the TRO had passed. But at that point, the court did deny the request for a stay. So ruled technically against the government, but it was basically moot at that point.

• 44:38Leah Litman?

  Right. So this also was the case that led everybody to say Amy Barrett was a moderate who was going to save the republic. No joke. That's part of why we have been so anti that narrative anyways. So after the Supreme Court denies the stay application in the order to enforce the temporary restraining order, the case goes back down to the district court. And the district court subsequently entered a preliminary injunction that was reviewed by the D.C. Circuit and then modified by the district judge, who entered another preliminary injunction that this one, the D.C. Circuit, let stand. And that one, this later preliminary injunction, that is now the district court order that the Supreme Court has stayed.

• 45:20Leah Litman?

  And meanwhile, in the interim, that is between the time the court declined to rule against the government on that motion to enforce the TRO. And now, the government has been able to drag its feet and stonewall. Paying up, paying over its obligations.

• 45:37Kate Shaw?

  And paying up billions of dollars of obligated funds. So that's how we got to Friday night. And on Friday night, the Supreme Court granted the government's application to stay. But on a theory that the government hadn't even really pressed and that the lower courts had actually amended their opinion to ensure they didn't reach. We've talked about this previously and we're not going to rehash it. But basically, the theory that the court seemed to embrace here is that the Empowerment Control Act, this federal statute passed to constrain president's ability to cancel funds after Nixon and Congress got into a war over Nixon's attempts to do just that,

• 46:18Kate Shaw?

  that this statute designed to respond to Nixon's overreach somehow prevents plaintiffs from litigating an otherwise valid APA claim, claim under another federal statute that could require the expenditure of funds wrongfully withheld.

• 46:33Leah Litman?

  We're going to say that again, just so you can appreciate how nutso it is. The Supreme Court appeared to embrace the theory that the Empowerment Control Act, a law specifically passed to restrain the executive's power to decline to spend appropriated funds, apparently bars plaintiffs from challenging the executive's power to decline to spend appropriated funds on grounds other than the Empowerment Control Act. This is nuts. It is absurd. It makes the Empowerment Control Act, which again is designed to prevent the president from canceling and rescinding funds, into a shield that somehow renders unenforceable other laws that might also limit the president's authority to decline to spend funds.

• 47:16Kate Shaw?

  So that is the basis on which SCOTUS granted emergency relief and blocked the lower court order. It's, again, a ground on which the D.C. Circuit panels amended their opinion to make clear that they were not saying they were not even reaching. Now, SCOTUS did something kind of interesting in its little short order for the majority. Emphasizing that this was just their preliminary determination. They said, quote, "This order should not be read as a final determination on the merits. The relief granted by the court today reflects our preliminary view, consistent with the standards for interim relief." So a couple of things. Nice try to sort of turn down the temperature. No one is buying that this is just not a big deal, tiny, temporary, preliminary. Who knows what's going to happen down the road? This is one of these bells that cannot be unrung.

• 48:01Kate Shaw?

  But I do think that it is revealing that the court saw the need to include that sentence because clearly the public criticism is getting to them and it should be. But regardless of that effort to kind of, you know, ratchet down the significance of this order, it's impossible. The order, I think, very clearly broadcasts this breathtakingly broad understanding of the president's foreign affairs power because the court does say, you know, there's a very good chance the executive branch has made a preliminary case at least that, you know, not granting this stay would unduly infringe the executive's foreign affairs power. So at least they want to make clear that if a future Democratic president refused to spend a lot of domestic funds, this order does not give them cover to do that.

• 48:43Kate Shaw?

  So there is that effort to sort of link this just to the president's conduct of foreign affairs. But obviously, I think an enterprising president can connect just about anything to the conduct of foreign affairs.

• 48:52Leah Litman?

  At least if they're Republican.

• 48:53Kate Shaw?

  At least a Republican president. Thank you for that. Very important qualification. But they basically say, "On the record, the asserted harms to the executive's conduct of foreign affairs appear to outweigh the potential harm faced by respondents."

• 49:05Leah Litman?

  Ah, yes. Forcing the executive branch to comply with a law that has been around for decades is a greater harm than is denying millions, billions in foreign aid to programs that depend on it and peoples whose lives and health may depend on it as well. This court's view is that President Trump and his administration are irreparably harmed when they have to comply with laws that have been around for decades, if not longer, and that no one may have even thought to challenge up until now. Like, the unitary executive is so unitary, it unites all of Congress's Article I powers, like the power of the purse, in the presidency now, at least a Republican presidency.

• 49:47Leah Litman?

  As Justice Kagan, like, described this case in her dissent, this challenge is to, quote, "A presidential usurpation of Congress's power of the purse."

• 49:57Kate Shaw?

  Right, because on one side of the balance is presidential authority to do whatever the president wants. On the other side are not only the recipients of this aid Congress has already appropriated, but also Congress. Congress. Literally, that's the other thing on the other side of the balance. And the court is like, oh, seems pretty clear. The president's interests are stronger here, but with like one unconvincing sentence of support. And I think that's part of what is making Justice Kagan in dissent just so furious is just how little consideration and care has clearly gone into this unbelievably consequential order. So Justice Kagan dissents, once again, she is joined by the other two Democratic appointees. And she actually notes that even if you're like somewhat sympathetic to what the majority seems to have concluded based on what we said, so there is this one statute, and maybe that statute's supposed to be the whole game, and thus plaintiffs like can't bring other

• 50:42Kate Shaw?

  kinds of challenges when the Empowerment Control Act is supposed to kind of occupy the field, turns out the Empowerment Control Act itself has in it a pretty strong non-proclusion provision. So the statute itself says, quote, "Nothing contained in this act shall be construed as affecting in any way the claims or defenses of any party to litigation concerning any empowerment." Okay, so she explains in plain English that nothing in the Empowerment Control Act or ICA affects like in any way other kinds of claims that relate to empowerment. The statute refutes the conclusion reached by the majority. Extreme textualism. Yes. She also just scorches the majority's assessment of irreparable harm, writing that basically

• 51:27Kate Shaw?

  what the executive complains about, like this is intolerable, is, quote, "Just the price of living under a constitution that gives Congress the power to make spending decisions through the enactment of appropriations laws. It cannot be heard to complain, as it does here, that the laws clash with the president's differing view of American values and American interests. That inconsistency is not a cognizable harm to be weighed in the equitable balance. It is merely a frustration any president must bear." Then this latest installment means that the number that we read up top is already out of date, so the Trump administration is actually now on, I think it's a 21-win streak on the shadow docket.

• 52:04Leah Litman?

  Yikes. If they are going to make, I don't know, small motions toward interim emergency docket reframing, I'm just going to put another proposed name on the table, which is the Just the Tip docket. Like, they give us just kind of like a little reasoning. They insist, like, the country's not getting fucked, but the country is getting fucked, as they say on RuPaul's Drag Race All-Stars, and that's the tea.

• 52:32Kate Shaw?

  Just one more thing about Kagan. Can I just say that the Just the Tip is amazing? But it's also, she, I don't know that it has been, that I have seen before, a justice be as explicit about what is happening inside the court. She is like, we haven't even talked about this. We haven't gone to conference. She says that, in three weeks, we're going to be deciding way smaller cases where we get briefs, people make arguments. We sit down and discuss this stuff with each other. And she is saying, literally, none of that happened here. We got like some papers filed and like, these guys decided like, thumbs up, president wins, without really saying more. And that's apparently just how this court does business now. And it is outrageous.

• 53:08Leah Litman?

  Yeah, no, she broke the fourth wall, like Justice Jackson had previously on an earlier shadow docket matter, accusing the Supreme Court of just wanting to give the Trump administration an early win in some litigation in order to kind of balance out the scales. So, yeah, that is apparently the Supreme Court now, ladies and gentlemen.

• 53:27Kate Shaw?

  Yeah.

• 53:29Leah Litman?

  So, we are wrapping up the news, which means it's time for me to announce slash introduce how I have decided to close out all conversations for the time being with, great thanks, if we could go light on the Kissinger part, I wouldn't complain because it could dwarf everything else. If you know, you know, this should maybe go on Favorite Things, but just a little treat, go ahead and Google that and read the full thing.

• 53:53Kate Shaw?

  See, you're so, I feel like I now need to say like, Leah, you once survived a Chonar interview, totally intact, so it can be done. And yet, not everyone manages to land that. So, that's it for the news. When we come back, Melissa will join us for a conversation with some special guests on the Supreme Court's role in the years after the Civil War.

• 54:14Leah Litman?

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• 55:43Leah Litman?

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• 56:18Speaker 10

  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, 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 3 at 9:00 PM Eastern, 6:00 PM Pacific for hot takes, catharsis, and as many results as we can possibly analyze.

• 57:08Leah Litman?

  So we have a very special segment teed up for you today. It is about a topic we've repeatedly alluded to, mostly in passing, and often recommend readings on, but have not yet had the opportunity to do a deep dive on. And that is the Supreme Court's role in the end of Reconstruction and Redemption, basically a primer on what we'll call the Redemption Court. We wanted to do this episode in part because, as we discussed in a debrief after we finished recording, which we unfortunately did not tape, there is a concerted attack, really a concerted effort to repeal a constitutional amendment. That's how one of our guests put it. Or at least a concerted effort to repeal the vision for the country reflected in that amendment, really. These guys, and some girls, are coming for the 14th Amendment.

• 57:52Kate Shaw?

  And we are super fortunate today to be joined for this segment by two guests who have been leading voices offering critically needed public education on this important topic. And so we're kind of following their lead and offering up our platform and our listeners the chance to benefit from their expertise.

• 58:07Speaker 10

  So today, we are delighted to be joined by Sherilyn Eiffel. Sherilyn is the former president and director counsel of the NAACP Legal Defense Fund. She's currently the founding director of the 14th Amendment Center for Law and Democracy and the Vernon Jordan Distinguished Professor in Civil Rights at Howard University School of Law. She's one of the most important legal minds in the game, and it is always a genuine gift to have her here on the pod as our guest. So Sherilyn, welcome back to Strict Certainty.

• 58:35Speaker 11

  I'm really thrilled to be with you all.

• 58:37Kate Shaw?

  And we are also delighted to be joined by Jamelle Bouie, who's a columnist for The New York Times, co-host of the Unclear and Present Danger podcast, and an accomplished photographer and TikToker. Jamelle was recently recognized with the Carrie McWilliams Award from the American Political Association for his journalistic contributions to the understanding of politics. As with Sherilyn, we are super fans of Jamelle's, which you, dear listeners, probably realize, given how often we recommend his work to you. So, Jamelle, welcome to the show.

• 59:01Speaker 12

  Thank you so much for having me.

• 59:03Leah Litman?

  So we should note for our listeners that we are airing this segment on the 20th anniversary of Juan John G. Roberts Jr. being confirmed to the Supreme Court. We will leave to your inference, listeners, why that might be.

• 59:16Melissa Murray?

  A redemption for John Roberts, as it were. Anyway, Sherilyn, Jamelle, let's start out with a basic brush clearing question. When we say reconstruction, what exactly are we talking about? And I just think it's important to do this because, as you know, we're not allowed to talk about reconstruction anymore. So let's just do it really quickly right here in secret.

• 59:38Speaker 12

  It generally refers to the period, usually the first decade and a half following the Civil War, where the Congress eventually is trying to literally reconstruct the nation following the war. That means reincorporating the rebel states into the United States. It means dealing with the constitutional issues that emerged out of the war and emancipation. And for, I'd say, the more radical people in Congress at the time, your John Binghams and Thaddeus Stevenses and so on and so forth, it really does mean trying to fundamentally

• 1:00:17Speaker 12

  reshape what the United States is in the wake of the war. There's an interesting conversation to have about when you say reconstruction ends. The traditional end date for reconstruction is 1877, following the 1876 presidential election. I am fond of the view that reconstruction ends in different places at different times. And so in some places, it ends in 1873 and 1874.

• 1:00:45Speaker 12

  In other places, it's not really ending until the 1880s. And I think you can make an actual pretty good case that you should, the last data which you should close the door on reconstruction is 1890, when that's the last time the federal government tries to pursue federal voting regulation until the 20th century.

• 1:01:06Kate Shaw?

  Okay, so that's a great distillation. So you have this period anywhere between a decade-ish to two, two and a half decades in which you have aggressive efforts by Congress to actually reconstruct, reconstitute the nation, constitutional democracy. You have these, obviously, three formal amendments to the Constitution, the 13th, 14th, and 15th amendments, and lots of statutes and other kinds of interventions by the federal government. So people are probably relatively familiar, even though they might disagree about the specific both time span and definition of reconstruction. People, I think, are less familiar with redemption, right, as a concept and a time period. So maybe, Sherilyn, let's bring you in. What do we mean when we talk about the redemption period? And then we'll get more specifically to the Supreme Court.

• 1:01:45Speaker 11

  Yeah, in order to explain redemption, though, we have to kind of also add on to what was happening during reconstruction and what it meant. This period, in addition to all of the things that Jamelle has pointed out, also was a period of tremendous Black advancement in this country, political advancement, Black people being elected up and down the government, including to the United States Congress. An incredible period of excitement within Black communities about being citizens, as the 14th Amendment deemed them, political organizing happening in communities throughout the South, people learning about our political system and trying to understand how to navigate

• 1:02:29Speaker 11

  politics. Because of the Freedmen's Bureau, the period of Reconstruction was also a massive public works program in which, you know, the South had to be physically rebuilt. But because of the importance of education for Black people, the Freedmen's Bureau was critical, along with northern philanthropists who came down and teachers with creating a public school system. So part of the reason I say this is because the question is, what had to be redeemed? And what were they trying to redeem from? They were trying to redeem what was characterized as kind of lost Southern honor,

• 1:03:11Speaker 11

  which was not just about the war, but about Reconstruction, about the idea of Black people being on an equal status with white people. The idea of Black people entering politics and having a say over the future of their states and their cities and their regions. The ability of Black policemen, the ability of Black postal workers. All of this was an affront to white supremacists in the South, who insisted that these new Black people who were experiencing leadership were corrupt, were driving the South into the ground, were lascivious, were violent,

• 1:03:54Speaker 11

  and that they needed to be removed and that the South needed to reclaim its decency by removing and changing what they deemed this unnatural situation of Black people in leadership positions. And that redemption took many forms. One form was violence, just unending violence against Black people. One of the forms was kind of congressional inaction, of course. One of the forms was the Supreme Court, you know, narrowly and reading out of the Civil War amendments, the promise of full citizenship for Black people. The last part of it, of course, was redeeming the narrative of the South.

• 1:04:40Speaker 11

  Who are we? And this is where the lost cause ideas begin to develop, that in fact, we're not this defeated group of white supremacists who did not have a noble cause. We had a noble cause. And, you know, we were just outwitted by the North because they had more money and therefore they had more guns and more machinery. But we had the noble cause.

• 1:05:03Leah Litman?

  Every year in constitutional law, I ask the students, how many of you have heard of redemption or the lost cause? And I will get somewhere between one to five students in an 80-person some section. You know, this isn't a change, I don't think. Like, I didn't personally know about redemption or the lost cause movement when I was in law school. And this just seems like a real gap in historical memory, but also like an illustration of the success of the redemption and lost cause movements in some ways. Like, that has, it has become invisible

• 1:05:32Speaker 11

  For sure.

• 1:05:33Leah Litman?

  in education about history.

• 1:05:36Speaker 11

  If I might, it's one of the reasons why one of the goals of the 14th Amendment Center is to encourage the teaching of a 14th Amendment seminar in every law school. This is the reset of our country, the most powerful constitutional moment after 1789. And it's outrageous that lawyers are not educated about it.

• 1:05:59Speaker 12

  Yeah, I'll just add real quick that the redemption period is very much, I think, subsumed in American historical memory, in part by the lost cause, in part in terms of just general education. There is, you know, you focus on the West, you focus on the populist movement in the 1880s, 1990s. Like, the South after 1876 becomes a sort of like, oh, well, you know what's happening down there is Jim Crow, right? And you can kind of just move on. And there is this real loss of the complexity and also just like dynamic events happening in the former Confederate states that are shaping the rest of the nation in major ways.

• 1:06:44Speaker 12

  Because, of course, and then we'll discuss this, you know, as the Supreme Court is drastically limiting the 13th, 14th, 15th Amendments and their implications, that also has sort of implications for how Congress exercises its power nationally, how states exercise their power. There is this Tension that emerges during Reconstruction between basically the goals of the authors of these amendments and just the general conception of what federal power is capable of doing. And you see, you see, you see moments when Congress is basically like, we can do

• 1:07:28Speaker 12

  a lot in a way that almost feels quite modern. And so the Enforcement Act-

• 1:07:33Melissa Murray?

  Or not.

• 1:07:34Speaker 12

  1871.

• 1:07:35Melissa Murray?

  Yeah.

• 1:07:36Speaker 12

  Right. And then you have moments for Congress is like, we can't do this.

• 1:07:40Melissa Murray?

  That feels familiar.

• 1:07:41Speaker 12

  Yeah.

• 1:07:42Speaker 11

  Yeah, but it's the Supreme Court that tells them they can't do it.

• 1:07:45Speaker 12

  And one thing I've always been fascinated by is just that a key justice in this moment is Sam and Chase, who wasn't, who notably was not some kind of revanchist white supremacist. Like, he was a leading anti-slavery figure before the war, was very integral to helping the Union finance the war. But he also, in his sort of pre-war political career, does believe in states' rights quite deeply. I mean, this is kind of the ironies of like, the Civil War is that like, both sides in a way, we're fighting for states' rights. Just, you know, the difference of what that meant. And so Chase is like, well, obviously

• 1:08:27Speaker 12

  the, we live under a constitutional system that doesn't allow this kind of stuff. You can't trample over states' rights this way. And there's like, this ideological limit that he has, even as an anti-slavery guy, that he kind of can't get over. And I, one of the interesting things I think about all of this is the way that some of the very same figures who are integral to building the Republican Party, to successfully fighting the war, are also people who are part of this retrenchment in the years following.

• 1:08:57Melissa Murray?

  This is a really great place to pivot. Sherilyn, you've already introduced the prospect of the Court. And Jamelle, you sort of laid it out really nicely here. You know, we have this moment where Congress seems like it's really exercised to do something. They have this authority under these new Reconstruction amendments. They are passing legislation. And at every turn, this legislation is being challenged because it is going perhaps farther than many people want. And when they push, when they challenge all of these measures, it all lines up in the Supreme Court, and you have a court that- Isn't quite as progressive as Congress is on a lot of different fronts. So can we talk a little bit about this Reconstruction Court, maybe Reconstruction/Gilded Age Court?

• 1:09:42Melissa Murray?

  That seems to be deeply, deeply skeptical of the prospect of expanded federal power. And maybe we can even go further and kind of relate it to this particular moment where, as I've mentioned earlier, it seems like our current court is embodying the ethos of that earlier Gilded Age Court.

• 1:10:01Speaker 11

  Yeah, it's really an astonishing study. It's the ultimate rabbit hole for people like us that you can fall down, this particular court, because it's not just the court. There are particular bad actors who just are unbelievable that you have to kind. And there are so many parallels.

• 1:10:19Melissa Murray?

  Let's name some names.

• 1:10:22Speaker 11

  You know, so let's just say, I would start with, I always say it's the four decisions that are the most important, but as we were talking about, there are many others as well, right? So I start with the Slaughterhouse case in 1873. This is the first case brought under the 14th Amendment, and so entirely fitting for our current moment that the first, you know, challenge to the scope of the 14th Amendment in the Supreme Court is a case not brought on behalf of black people or that involves black people at all, but that involves-

• 1:10:52Melissa Murray?

  Butchers!

• 1:10:53Speaker 11

  Business, yeah, butchers in New Orleans. And what's significant about the case is that, you know, essentially, the language of privileges and immunities, which, you know, is in the 14th Amendment, is rendered into nothing, you know? The Supreme Court says, well, privileges and immunities, what are the privileges and immunities of citizenship? You know, the ability to board ships in international waters. I mean, it's like things that are utterly insignificant.

• 1:11:18Kate Shaw?

  Protection on the high seas.

• 1:11:19Speaker 11

  On the high seas, something on the high seas.

• 1:11:20Kate Shaw?

  The kinds of rights we all draw on all the time.

• 1:11:22Speaker 11

  So we lose this provision that, I think, that today, if we talked about what we think are the privileges and immunities of citizenship, there's some things we would say that would be actually quite significant to the moment. But that just gets read out and we just never touch it again. Like, that's just, that's just what that is. So that's already 1873.

• 1:11:39Melissa Murray?

  So can we pause over Slaughterhouse just for a second?

• 1:11:42Leah Litman?

  Like walk through kind of these cases. So I wanted to highlight since, you know, Sherilyn and Melissa, you were talking about how these decisions really limited the scope of Congress's power to pursue its new vision for the country. And there's this quote from Slaughterhouse cases where the court says it would, quote, degrade the state governments, end quote, you know, to transfer responsibility for protecting civil rights from the states to the federal government. And I just think that phrase is so illuminating because it borrows on this idea of, right, restoring the honor of the South, redeeming the South, because something has been lost to them and that you can see it

• 1:12:23Leah Litman?

  in the language that the court uses to blunt the force of these amendments.

• 1:12:30Melissa Murray?

  To Leah's point too, and like that language and that ethos is very much underpinning John Roberts's 2013 majority decision in Shelby County versus Holder, which dismantles the preclearance regime on the view that subjecting formerly discriminatory states to preclearance degrades them in some way in the eyes of sister states.

• 1:12:52Speaker 11

  See, this makes me crazy because it is a denial of the very project of the Civil War amendments, right? The Civil War amendments start from the premise that, that what we have learned is that if we are going to integrate, and we are, we're going to integrate Black people, both formerly enslaved and free into the body politic and into full class citizenship. The states cannot be trusted to protect their rights. That's basically if we just had to put it in a nutshell, right? If the, the great reordering of the Civil War amendments. Is the expansion of federal power to the detriment of the states.

• 1:13:37Speaker 11

  The words no state shall, right? That is kind of the core of the thing. And there's no better example of Congress doing that job than when the Congress passes those enforcement acts that you're talking about. And they hold a series of hearings, Ku Klux Klan hearings. President Grant is getting letters. He's going nuts. We gotta do something about this violence in the South. Congress doesn't just write up an enforcement act. They hold hearings and brave black people come forward to say, this is what has happened to us. We live in the woods because we're afraid to be in our house. They broke something in me when they violently raped me. They tied me to a tree and they whipped me. They give all of this information, which then leads Congress to pass the Ku Klux Klan

• 1:14:22Speaker 11

  Acts, or the enforcement acts, as we call them. This is like Congress spending a year investigating whether Section 5 of the Voting Rights Act and the coverage formula is still needed by doing a year's worth of hearings, by having 90 witnesses, by having thousands of pages of material, and ultimately concluding, we thought it would be better and it's actually worse. And therefore, we're going to extend the Voting Rights Act again in 2006. And the Supreme Court coming forward and saying, but that is a dishonor to the reputation of the South. Yes, the whole point of the Civil War amendments was the South is dishonored. They have dishonored themselves and we don't trust them to protect the rights of these particular people.

• 1:15:06Speaker 11

  I don't think I'm exaggerating. Every, all of the signs, all of the legislative history point to that.

• 1:15:12Speaker 12

  No, I, I think that's exactly right. I, I'd also want to add that the, the ruling in Slaughterhouse, it's not just like a push against, I think a proper reading of the 14, much less expansive reading, but. The ideological victory of the Civil War was not just to establish the United States as like a singular entity, but really to settle this question that kind of plagued the entire antebellum period. What is, what exactly is like the ontological status of the states? Are they co-sovereigns? Are they, are they genuinely on par with the national government? Or are they something else? And by essentially saying in the war, you can't

• 1:15:55Speaker 12

  succeed, like Lincoln's argument that the Union precedes the Constitution itself. So there's no, there's no way for states to actually succeed, like on a very basic, again, like ontological level. The Civil War says the states are genuinely subordinate. They are subordinate political entity to the national government.

• 1:16:15Leah Litman?

  Yeah. So I want to go on to United States versus Krukshank, Sherilyn, which you were about to. But just on this particular point of, you know, retaining the state's authority and this being a hallmark both of redemption and some modern day decisions, you know, there is this language from United States versus Reese, which is interpreting one of the laws that Congress enacted, where the court says, well, this statute contemplates a most important change because before it, like states regulated in their own way, all of the details of all elections, end quote. And the court uses that as a reason to dismiss the indictment against election inspectors who refused to register black men to vote. And this idea that states somehow emerge from Reconstruction with this plenary control,

• 1:16:58Leah Litman?

  near plenary control over elections is of course also a feature of Shelby County versus Holder. But United States versus Krukshank, Sherilyn, I'm sorry, I interrupted you when you were about to go on to the case.

• 1:17:09Speaker 11

  No, not, not at all. And I think that is so right because that shows up again in the 20th century and that, that early 20th century case, Giles versus Harris, where Oliver Wendell Holmes says, well, we could tell, you know, Alabama that they have to register black people, but they won't. So what's the point of us telling them, right? Because like somehow we, we are, we have no power over the states. US versus Krukshank is really important because this is one of, I consider it the greatest tragedy of this period in terms of Supreme Court cases. And it is also the place where we can understand that there's a genuine villain.

• 1:17:49Speaker 11

  of this period, right? And that is Justice Bradley, who's really creepy.

• 1:17:55Melissa Murray?

  Oh, the worst.

• 1:17:56Speaker 11

  US versus Krukshank. I'm just saying, I hear you guys every week and you, you know, you talk about Sam Alito and stuff, but like, Justice Bradley, like, this is this guy.

• 1:18:05Melissa Murray?

  He walked so Sam Alito could run. Justice Bradley walked so Sam Alito could run.

• 1:18:09Kate Shaw?

  Could write Dobbs.

• 1:18:10Speaker 11

  I'm just saying, I'm just saying, if you, if you want to have a, you know, a list of the worst of the worst.

• 1:18:15Melissa Murray?

  The divine ordinance of things.

• 1:18:17Kate Shaw?

  That's of course, his concurrence in the Myra Bradwell case, denying her the right to be a lawyer.

• 1:18:21Speaker 11

  So, so he's, but he's particularly pernicious in Krukshank. So Krukshank emerges out of a violent conflict in Grants Parish, Louisiana, after an election in which black people, black voters are in the courthouse protecting the ballots of election in which the Republicans have won. The white Democrats are angry and they emerge out of the woods to attack the courthouse. There's kind of a standoff. At some point, the black people decide to surrender and lay their arms down and they are massacred by the whites who have come to the courthouse. Now, at this point, this is after the Ku Klux Klan Act. So we've got, we've got some material. We've got

• 1:19:05Speaker 11

  a statute that we can use. And, and in fact, remember that because of this, the statutes, the Ku Klux Klan Acts, the Klan had actually been on the run. This was something that President Grant wanted, and it was successful. They were prosecuting these cases of mob violence, and it was forcing the Klan underground for a couple of years. Then we have this big conflict in Grants Parish. And I will say, on January 6, 2021, I was sitting here in my house, and when I watched what was unfolding on the television screen, I went to my computer to write an email to our staff. Then I was leading the Legal Defense Fund,

• 1:19:48Speaker 11

  in which I talked about the Colfax massacre and how reminiscent this was. This did not look surprising to me. This is what I imagined it looked like. So the case goes to trial. They get a few of the people. They don't get all of the white folks, but they get some of them. And there is a zealous prosecution of these individuals. But this is the period when Supreme Court justices ride circuit. And that means they show up in local jurisdictions and they help with trials and so forth. And unfortunately, Justice Bradley is the person riding circuit in Louisiana where the litigation is unfolding. And he shows up periodically, comes up on the bench with the trial judge, who's really managing the case well.

• 1:20:34Speaker 11

  The United States is obviously prosecuting these individuals. So this is like a real Justice Department, which is why we have it, right? To do this, the Justice Department created for this purpose. Federal question jurisdiction created in this period as well. All of this is designed, again, to go back to Jamelle's point, to say like to empower the federal government to be able to undergird this new relationship in which the state is subordinate, right? To the federal government. And so Bradley proceeds to show up and honestly, the prosecuting attorney is kind of beside himself with the way in which he's inserting himself into various decisions during the unfolding of the trial. They're obviously making it clear where he stands

• 1:21:16Speaker 11

  and that he wants to do something about these men being convicted. There's a question that, I won't go into all the details, that is outstanding, that they asked the jury to decide before the actual verdict. Justice Bradley leaves and everyone breathes a sigh of relief. We're going to be able to bring this trial to a close without him here. They get a verdict from the jury, a guilty verdict from the jury, whereupon Justice Bradley reappears. And he says, no, no, no, I was working on that question that you have. And I now have an opinion about that question. And he presents that opinion, which then requires that the jury's indictment be removed.

• 1:21:58Speaker 11

  And on top of that, he orders the release of the men. And they are released to great fanfare. There's a big barbecue the next week where the men are in the middle of the town. And the kind of despair that goes through the black community at the release of these men. Right? And we've just seen 600 people who stormed the Capitol release, the despair that goes through them, the recognition that they are not protected as they have been. And much of the violence that then happens after 1875 into the 1880s is this re-upping, right, of Klan violence, of mob violence, because the federal arm has been removed. And the Supreme Court's decision in Krukshank, it does go to the Supreme

• 1:22:43Speaker 11

  Court, Bradley, again, clearly having a very strong influence on his brethren, is that there has to be state action, that this mob, they were not creatures of the state. They weren't sheriffs, they didn't work for the state, they're just random people. And the 14th Amendment does not authorize Congress to impose statutes that allow the federal government to just go after random mobs. It's not clear, he says, that this is about race, that it's not, it's not alleged clearly enough that this is, that this was because the victims were African American. And it's not clear that they were trying to interfere

• 1:23:26Speaker 11

  with the right to vote. That's also not clear enough in the complaint. I mean, it's insane.

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• 1:25:31Speaker 10

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• 1:26:21Melissa Murray?

  Just to go back to Crouxshank, Jamelle, you've talked about this a little bit, but there's actually one member of the modern court who is incredibly interested in Crouxshank and in overruling it. And that, perhaps paradoxically, is one Clarence Thomas. He spends a lot of time talking about US versus Crouxshank and the failure of Reconstruction and the rise of Redemption in his decision. So, for example, in McDonald versus City of Chicago, he writes a concurrence in which He talks about overruling Crookshank and he talks about resurrecting the Privileges or Immunities Clause as a more productive avenue for incorporating the Bill of Rights.

• 1:27:02Melissa Murray?

  In Bruin versus Nysirpa, that Second Amendment case from just a few years ago, he also mentioned Crookshank and the disarmament of African-American men, a disarmament that he says left the Black community prone to incredible violence. And all of this is laying a foundation for a more muscular and expansive understanding of the Second Amendment. So can we say a little bit about how this particular court is using Reconstruction and Redemption perhaps for advancing an agenda that is completely at odds with the agenda that the radical Reconstructionists or even just the regular Reconstructionists would have had in mind?

• 1:27:39Speaker 12

  I think in Thomas's case, and here I'm going to borrow from Corey Robbins's assessment of Thomas in his book, I think Thomas has this vision of sort of the elevation of Black men, sort of this vision of like Black patriarchy that he sees on one end, the modern welfare state as undermining this. And on the other end, decisions like Crookshank, you know, robbing Black men of the kind of the access to authority needed to maintain the sort of patriarchal status. I think for Clarence Thomas, this like, you know, idiosyncratic

• 1:28:24Speaker 12

  interest of his is part of this like very masculinist set of beliefs he has about the importance of, you know, a Black household led by an empowered Black man who obviously owns a ton of guns.

• 1:28:39Melissa Murray?

  Obviously.

• 1:28:40Speaker 12

  And can use that, obviously, and can use that to defend the household. As for sort of the ushers of Reconstruction, ushers and the abusers of Reconstruction, I mean, this, I think the current Republican-appointed majority on the court sees Reconstruction and sees the project of Reconstruction as one of establishing a constitution that doesn't recognize color.

• 1:29:09Speaker 12

  And so from there, right, nothing the government does in the present that might acknowledge the existence of racial inequality, that might acknowledge the necessity for ameliorating, you know, the legacies of racial discrimination, none of that's like legitimate because the Constitution doesn't recognize color. I think it was would run counter to the people who wrote these amendments because at no point were they like, you know, the formerly enslaved have no particular status that we can't pay attention to. The whole point was to in fact say that the well, the Constitution does not sanction racial subordination.

• 1:29:50Speaker 12

  It does very much sanction efforts to try to deal with its legacy. The same Congress that writes or the same, you know, members, you write that the 13th and 14th Amendment are also constructed in the Freedmen's Bureau. They are actively, you know, looking at efforts, as Sherilyn mentioned earlier, to assist the formerly enslaved and free blacks as well. They're the author of the 1875 Civil Rights Act. I mean, when you, when you go down the line, it's very clear that these lawmakers understood themselves to be establishing color blindness in the sense that the Constitution does not, again, recognize racial subordination,

• 1:30:32Speaker 12

  but not color blindness in the sense, in the modern sense. There's a, we could have a conversation about how, you know, you have someone like Lyman Trumbull, I believe the Illinois Senator, who's using phrases like colorblind in 1867, 1868, but he doesn't mean it the way that we might say it today, right? Like, he means it in the sense that the only way anyone knew the government recognized color was by putting a boot on people's faces. And so you can't do that. But if you were to ask, you know, if you were to ask, Thaddeus Stevens, you know, can, does the Constitution allow the federal government to directly assist the descendants of enslaved people? I'm, I'm 99% certain, 99% certain that Thaddeus Stevens would be like, that's a stupid

• 1:31:17Speaker 12

  question, of course it does.

• 1:31:19Kate Shaw?

  Yeah, and essentially every major player, but what is essentially irrefutable historical evidence to stand in the way of constructing this sort of ideologically driven account of the 14th Amendment and its purposes? And let me just mention the book that Jamel referenced about Justice Thomas is Corey Robbins' The Enigma of Clarence Thomas, really, really interesting read. So maybe, Sherilyn, let's come back to where you left off talking about the Civil Rights Act of 1875. So we have that Civil Rights Act and the next really big and infamous Supreme Court case from this era we want to talk about is the Civil Rights Cases in 1883. So what were those cases and what is so significant about them?

• 1:31:59Speaker 11

  Yeah. So the Civil Rights Act of 1875 is the, you know, the last dying wish of Charles Sumner, who was one of the foremost radical Republicans, and it outlaws discrimination essentially in public accommodations, in theaters and railways and so on and so forth. And a challenge to the Civil Rights Act makes its way, and of course, building on Kruikshank and this idea about state actors, makes its way to the Supreme Court and in 1883 arrives at the Supreme Court, which decides that they must strike down the Civil Rights Act,

• 1:32:40Speaker 11

  that it's unconstitutional, because once again, if you have a hotel and you don't want black people to stay there, you're not an agent of the state, you are an individual person. If you have a stagecoach or a railcar, you get to make your own decision about who you want to be in there, you're not a state actor. And so just as the mob that arises and that is terrorizing people without state intervention and often goaded by the state is not state action, so too are these exclusions not state action. And this is the decision in which, again, our friend Justice Bradley reveals himself and says, how long? You know, this is 20 years after slavery ends, and he says, how?

• 1:33:25Speaker 11

  He's just so exhausted with it. How long must the black man be the special favorite of the laws? You know, here we are 20 years after the shackles have been removed. And so it just, I love it, you know, just the idea that-

• 1:33:39Melissa Murray?

  And we all know slavery wasn't that bad. It was basically like an internship. You learn skills.

• 1:33:44Speaker 11

  Well, exactly. So like now, it should be- Yeah, you got some nice skills. And when you hear Justice Roberts in the SSFA case, right, say, you know, here we are 23 years into the 25 that Justice O'Connor made up for affirmative action, and there's no end in sight. You know, he's almost hysterical, like this idea that that there has to be a cutoff, like how long. But they're saying this 20 years after the end of slavery, they're already impatient to end the project of full citizenship for black people. And so that's just another moment of Justice Bradley. Obviously, we know about the Bradwell versus Illinois

• 1:34:25Speaker 11

  case that you all talk about often, in which Myra Bradwell wants, you know, her law license, and we get this, it's not just the decision, but this incredible weird language from Bradley about the delicacy of women and the role of women in the home and how they are prepared by the Creator for a very, for domestic tranquility, I guess. So he's doing a lot-

• 1:34:54Melissa Murray?

  He's not talking about the Constitution of the United States. He's talking about the Constitution of the family. I mean, it's actually a very conscious effort to demote the 14th Amendment in favor of a kind of natural law reading where men are superior and protectors.

• 1:35:09Speaker 11

  Absolutely. I mean, he's a, he just keeps popping up. He's like, you know, Zelig or I don't know, maybe Forrest Gump. But he's a through line in all of this. And I just think it's important because sometimes I think when people hear us talk about particular Supreme Court justices, it sounds, you know, kind of petty or something. But there have always been villains, you know, on the court who have a very clear agenda of where they want to go. This has never been balls and strikes. Right? And we see it later with Justice Fields around corporate personhood. You know, in the Fourteenth Amendment, that's also lots of sleight of hand, lots of deliberation there with, you know, making things up that aren't in a case and claiming they are.

• 1:35:54Speaker 11

  This is that that period. It's one of the reasons this is such an important period to study is because it really gives us this window into the how the Supreme Court can wield its power. We saw this also during the New Deal. There are these moments when the curtain is off, you know, and it makes it impossible to imagine that this is balls and strikes. And this is this is one of those periods. And so the Civil Rights Act case ends up in 1883. The Civil Rights Cases is a conglomeration of five cases challenging these challenging discrimination in public accommodations, which is lost. And that and that sets us up for Plessy in 1896.

• 1:36:34Leah Litman?

  Now I want to start to bring us to bridging, you know, past and present even more explicitly, you know, than we have been doing thus far. And think about how some of these cases, or if you would like to mention others, how they help us understand, you know, what is happening today. And I guess I will put a few on the table and then, you know, Jamel, I'll turn it over to you and then Cheryl and so, you know, when I look at, for example, Trump versus Anderson, this case about whether states can enforce a provision of the Fourteenth Amendment, and the clear fear of the court is about how radical that would be. It's difficult not to think of Slaughterhouse, or when I think of Bernovich versus DNC and narrowing the scope of the Voting Rights Act, or Trump versus the United States, right?

• 1:37:15Leah Litman?

  Eliminating an attempt to enforce the Enforcement Acts. You know, these are efforts to whittle down statutes based on skepticism of the underlying project, you know, that they were trying to fulfill or looking ahead Louisiana versus Colley. I mean, there too, it's like time's up, right? Time's up for enforcing voting rights or civil rights. So that was a very brief overview of a few just quick references. But Jamel, I guess I'll turn it over to you first and then then Cheryl and.

• 1:37:42Speaker 12

  Yeah, I mean, I'd see I'd see the connection between the Redemption Court and the present day Roberts Court is all about. I mean, it's quite it's quite similar. I mean, both recognize in their own ways, the kind of expansiveness of the Fourteenth.

• 1:38:03Speaker 12

  Amendment of the Reconstruction Amendments, they both quite clearly see that they are important obstacles to the preservation of a particular social order. So for the Roberts Court, the Fourteenth Amendment, an obstacle to, um, obviously allowing Trump to be on the ballot again, but like broadly an obstacle to the kind of hierarchical social relations that they, that the conservatives seem quite invested in, wanting to enable states in particular to be able to reify these things in law and culture. And so they see the Fourteenth Amendment as an obstacle. It's an obstacle to giving states unrestricted control over who is eligible

• 1:38:47Speaker 12

  to be a voter and who can vote and who can participate. Um, it's an obstacle to elevating the rights of certain practitioners of religious, of religious traditions over, over other Americans. It's like, it's, it's just like this, it's this, uh, this major obstacle to a less egalitarian society. And so I think the Roberts Court, you know, sees it as just something that has to be chipped away at, given its own interest in a more hierarchical, uh, society. And that's like not, that's very similar to where the Redemption Court was, seeing the Fourteenth Amendment and, and it's, I think, just plain expansiveness, an obstacle, if not to realizing

• 1:39:29Speaker 12

  a particular social order, then at least to preserving an older one, preserving what was left of the pre-war social order.

• 1:39:38Speaker 11

  Yeah, it's taken me a while to understand the scope of the project to dismantle the Fourteenth Amendment. But it is a project and it's, um, almost from, you know, it's ratification, it's been a project. And the parts that feel particularly offensive, I think, to someone like a Roberts, is what we've already talked about, this idea that states are subordinate to, to the national government. I think there's also an idea of congressional power that is offensive to those who oppose the Fourteenth Amendment. I mean, it's, it's what I was saying earlier.

• 1:40:18Speaker 11

  The framers of the Fourteenth Amendment were very clear that the states could not be trusted to protect the rights that were articulated in Section 1 of the Fourteenth Amendment: birthright citizenship, equal protection, due process, and so on. They understood that if that provision of the Fourteenth Amendment were to have any teeth and were to be real in the lives of free and formerly enslaved black people, you would need to put in some protections to ensure it could happen because we couldn't trust the states to do it. Why couldn't we trust them? Because those framers, like Andrew Johnson, had done some research. Andrew Johnson hoped his research

• 1:41:02Speaker 11

  would turn out a different way, but it didn't. He sent his friend Carl Scherz down to check out conditions in the South. The Joint Committee on Reconstruction investigated conditions in the South, and what they found was very alarming. What they found was that there was still this strong insurrectionist vibe throughout the South. Carl Scherz said, you know, "It seemed to hardly matter to them to commit treason, that they were just going along until they could get their power back." And the Joint Committee as well. You know, they were shocked when these Confederate generals, you know, walked into Congress and said, "We want our seats. We're the representatives of Georgia. They have elected us to be seated." And they hadn't even made a loyalty oath to the Union, right?

• 1:41:45Speaker 11

  So they saw this arrogance, this belligerence, and they also saw this ongoing white supremacy and the violence of it on these tours. Carl Scherz talks about the obsession of whites in the various states he visited with physical compulsion, believing that black people could not work without being whipped. They're just kind of horrified by what they see. So they know this is not going away. And that's the reason why there's Section 2, right, of the Fourteenth Amendment, which tries to impose some penalty on states that don't allow black men to vote because they know the southern states are going to try to keep black men from voting. And that's Section 3, which says if you've participated in insurrection, you can't serve in state or federal government.

• 1:42:30Speaker 11

  These are the protections they've put in place. And then the ultimate protection is, "And Congress has the power." So they're well aware, they've done the research. It's again, like section five, they've done the research to understand what they are up against. They're not going to just say the nice words like the rest of our Bill of Rights, where you just say all the nice words, but you're not honest about what exists in the American character that could undermine the ability to make those rights real. And so they create these protections. And those protections are offensive to those who are in opposition to the 14th Amendment. They are offended by the idea of Congress having the power, the discretion,

• 1:43:13Speaker 11

  to decide how to protect those rights. They are offended by the idea that you can suggest that you can't be on the ballot if you participated in this insurrection. They are offended by the whole idea that you would be solicitous of black voting. And I think we just have to confront, I wrote a piece at some point called, The Other Constitutional Crisis, because you know, it's always like, we're going to have one as soon as the president defies the Supreme Court. And I'm like, but what about the slow-rolling constitutional crisis of trying to undo a constitutional amendment? And so I think helping myself see the project that way is what kind of got me towards thinking about a 14th Amendment center,

• 1:43:55Speaker 11

  because this is not just about affirmative action in this case or that case. It is about a whole project of constitutional undoing.

• 1:44:02Kate Shaw?

  So I think that maybe let's end with a forward-looking question. And Sherilyn, your last answer started to get us there. But maybe Jamel, and then we'll come back to you, Sherilyn. What can we do in this moment, right? I mean, beyond podcasting, which is obviously going to save democracy from all the threats, but I mean, increasing public education, stopping, repeating the mistakes of the past, like what do you, there's a couple of things that you think we need to do. What do those look like?

• 1:44:29Speaker 12

  Well, I think actually, public education is an important part of this. We started this conversation kind of noting how little so many Americans know about Reconstruction and Redemption. And one of the things that's actually been striking over the last, like, decade or so is that it's still relatively few Americans, but like many more than before. Like there's this sort of a slow moving, growing understanding of the importance of reconstruction to the present moment, of kind of the lessons of the period, like a renewed interest in the period. And so I think, you know, people like us can just engage in like just more public discussion and conversation about reconstruction. The administration's efforts against birthright citizenship has like prompted more interest in sort of the

• 1:45:14Speaker 12

  origins of the birthright citizenship clause and has provided an opportunity for more discussion of the reconstruction amendments. And I think that that public education piece has to necessarily be part of a political piece. I think too often, you know, we, I'm using kind of the broad, we separate, you know, public education, that's nonpartisan, and then politics, then that's a little separate. But I think, I think in the same way that reconstruction was a partisan political project, I think that any attempt to, you know, actually realize the values

• 1:45:56Speaker 12

  and the aim of reconstruction is necessarily going to be something of a partisan ideological project. And so that, that would mean, you know, whatever lawmakers you are aligned with, like, not just, you know, pressuring them on concrete policy things, but like, make it, make it a point of discussion, like, well, how do you view, like, what is your constitutional vision? It's that question we talk about very much these days, very much, I think, on the political left, certainly on the political right, they talk about all the time, on the political left, not so much of a conversation of what is, like, what is the constitution to you? Like, what, what does it mean? What are its, what, what is your vision for constitutional

• 1:46:39Speaker 12

  government? And really try to make this, make this effort to have lawmakers and candidates, like, say just openly, you know, like, I believe in the fullest vision of the 14th amendment. I believe in expansive reading of the 13th amendment. I will.

• 1:46:56Speaker 12

  I will nominate judges who will bring back the badges and incidences of slavery, right? Like, that's the kind of thing you want to get, you want to pressure lawmakers to make those kinds of commitments. And I think that's the other part of it. It's sort of educating the public, but then also sort of real pressure on politicians to be like, this is what I want to hear from you about the Constitution.

• 1:47:20Kate Shaw?

  And Carolyn, what about you?

• 1:47:22Speaker 11

  Well, certainly here, here on public education, I do think it begins with lawyers. It astounds me how many judges don't know this history. And I go and speak to judges all the time. If a judicial organization calls me, I assure you, I will come. I never turn down a group of judges who ask me to come and talk about the Fourteenth Amendment because it's that important. You know, I've said it all the time. People have no problem talking about their Second Amendment rights. You know, people talk about their First Amendment rights all the time. I don't mean lawyers, I mean ordinary people. Often, they have it wrong. Often, they're wrong. Often, they're wrong. But they feel like they know what their First Amendment rights are, you know? You can be in a conversation joking with somebody

• 1:48:07Speaker 11

  and they'll say, oh, I plead the Fifth. It's not that we don't ever talk about the Constitution in normal language. But even those of us who are civil rights lawyers, you know, or activists, if someone is the subject of bias, we don't say they violated their Fourteenth Amendment rights. We say they were discriminated against, or there was prejudice, or there was bias, or... But we don't ground it in the Constitution. And that's on us, that people in this country think that when we talk about race, we're talking about feelings, and we're talking about morality, and we're not talking about the Constitution. And so, my hope in the public education space, and part of what I want to do at the Center, is to have an

• 1:48:47Speaker 11

  opportunity to embed, to inculcate, the ordinary American public with the ideas, the values, the principles of the Fourteenth Amendment. And it's this incredibly powerful democratic moment. And I use it as inspiration for what I hope will be a moment, if we manage to make it past this period, no guarantees that we do. But if we do, that's the spirit that we should have towards thinking about refreshing democracy in America. It's allowed. You can do it. We've done it before. You can make a new country. And I, so I think we need to learn about reconstruction and the Civil War amendments and this period also as a sense of empowerment, to empower ourselves to feel like we can be

• 1:49:32Speaker 11

  constitutional actors, that we can be founders and framers of a new republic.

• 1:49:37Melissa Murray?

  I love that. And I love the idea of ending on that note, that there is something popular and populist about approaching the Constitution as an unfinished project that we too can have a say in, maybe at the end of all of this. So Sherilyn and Jamelle, thank you so much for coming on Strict Street Need Today and for sharing your prodigious expertise with us. We have been ending our episodes by talking a little bit about our favorite things. So these are things that we've read, watched, eaten, enjoyed, and we'd love to invite you to share some of your favorite things that you've been doing this week with us and our listeners. Jamelle?

• 1:50:17Speaker 12

  I watched this 90-minute YouTube video.

• 1:50:21Melissa Murray?

  Okay, 90 minutes?

• 1:50:25Speaker 12

  90 minutes.

• 1:50:26Melissa Murray?

  Sir.

• 1:50:26Speaker 12

  Feature-length YouTube video. It's by a collective called The Elephant in Graveyard, and the video is called "How Comedy Was Destroyed by an Anti-Reality Doomsday Cult." And this all sounds quite esoteric, but it's actually a very interesting video essay about nominally Joe Rogan and all of his comedy empire, but really about the way that the combination of social media and far-right politics has shaped and warped recent American culture. And it's a video that's very much about ideas of what people perceive as being real,

• 1:51:07Speaker 12

  how social media has helped bad actors basically create kind of like mental bunkers that people can retreat to, wherein that is reality and the actual world is no longer real, and how this kind of feeds into and shapes right-wing politics in the moment. So it's like this very sophisticated analysis of the political moment under the pretense of being about why Joe Rogan sucks.

• 1:51:35Melissa Murray?

  So I have to say, you should do the PR for this because I was not at all interested when you started, and now I am.

• 1:51:43Speaker 12

  It's totally fascinating. It's sort of like, you know, I was trying to describe it in ways that didn't require me to be like, yeah, and it's lots of sort of like, you know, French postmodern theory being thrown around and but it's, it's, yeah, if a term like hyperreality makes sense to you, this is a video you should watch.

• 1:52:00Melissa Murray?

  All right. Sherilyn, can you top that? Do you have a 90 minute YouTube video that you'd like to tell us about?

• 1:52:06Speaker 11

  I do not. I do not. I do not. I have been really suffering because I've been just waiting for my favorite shows to binge to start back up.

• 1:52:15Melissa Murray?

  What are those?

• 1:52:16Speaker 11

  Fisk started, Fisk started last night. It's an Australian show about a woman in a law firm. It's pretty funny and quirky. I'm waiting on Slow Horses. I'm waiting on Lincoln Lawyer to re-up their new seasons. And I'm reading. I'm halfway through the new Charles Sumner biography. I know, Leah, you've read it. It's extraordinary and so good. And a book I really want to recommend, because I don't think it's getting enough attention, is a book called King of the North. I think I even have it here.

• 1:52:44Melissa Murray?

  And it's not about Robb Stark. Who is it about?

• 1:52:46Speaker 11

  It is not. It's by Jean Theo Harris. It's King of the North, Martin Luther King Jr.'s Life of Struggle Outside the South. And it's about the buried story of how profoundly active King was in northern civil rights movements, which is not the way the story normally gets told. And the other feature of this book is that it features a great deal, the work of Coretta Scott King. Most King biographers are men. Jean Theo Harris is a woman, and she includes so much of the perspective of Coretta Scott King, who, by the way, was, and, you know, her family were activists. She was from the famous Marion

• 1:53:26Speaker 11

  County, Perry County, Marion, Alabama. And all of those folks were very active. And she was in some ways more activist than he was when they first met. And so this book is just, you cannot believe the communities and the work that King was doing and how it was not reported on, even though these were civil rights challenges that rivaled in some ways the challenges that he was more publicly engaged in in the South. So I love that book and getting through Sumner.

• 1:53:58Leah Litman?

  And just so our listeners can easily find it, the Sumner biography that Sherilyn mentioned is by Zakir Tumiz. So, once again, our great thanks to Sherilyn Eiffel and Jamel Buie, two absolutely critical voices. Read them, heed them wherever you can.

• 1:54:14Kate Shaw?

  Those who are amazing, that was great. Lea, should we add in our favorite things before we go?

• 1:54:20Leah Litman?

  Yes. Okay, so I would recommend Jamel Buie's piece in the New York Times, Trump's Dream of Infinite Presidential Power. It's not only about the Lisa Cook case, but it's about the unitary executive theory more broadly.

• 1:54:33Kate Shaw?

  It's a fantastic piece. Everyone needs to read it.

• 1:54:37Leah Litman?

  Yeah. This isn't a thing that has happened, but it is, I don't know, on my mind this week, and that is that I am so excited to see Strickties in Chicago. We've got something special in store for all of you and also for our VIP ticket holders. Also wanted to repeat my call from last episode that the people I met at the NYU forum event that I did with Melissa, Apple, and the 2L at NYU, please email me. I'd love to send you something. And finally, I'd recommend Jimmy Kimmel's opening monologue from when he came back on the air. I thought it was exceptionally well done at the moment and was just a rallying cry that everyone should hear. And I feel like we need like positive signs, and this

• 1:55:22Leah Litman?

  was just such a welcome encouragement and confirmation that the fight matters and sometimes it succeeds and it's always worth doing. Like, don't bow down.

• 1:55:33Kate Shaw?

  Yeah, I thought he was incredible. And also, like, it was both late night entertainment, but also it did feel like this genuine exercise in popular constitutionalism. Like, he wasn't talking about, he wasn't saying the Constitution. He, I think, said the First Amendment once or twice, but talked about speech values in ways that, I guess it was just a reminder that you don't have to be doctrinal and talk about specific provisions in the Constitution, and you certainly don't need to talk about the Supreme Court. In fact, it's better if you don't, in order to be talking about the values in the Constitution. And I thought he was very much doing that, and it was a great. 15, 18 minutes, whatever it was. The With Pod, hosted by the one and only Chris Hayes, a couple of weeks ago, I wanted to recommend an episode, it dropped a few weeks ago, but I just listened to it. It's a conversation with the climate activist and expert Bill McKibben, who has a new book.

• 1:56:18Kate Shaw?

  And I thought it was actually a very uplifting conversation after the kind of horror show that was both the UNGA and Climate Week, or at least the US's performance on all things on a sort of international stage, including on climate in the past week. But the story of solar right now, in the past three years in particular, is actually an incredibly positive story. And so if you need some positive stories, I highly recommend that conversation. And then I thought there was a very good amicus brief filed in the Lisa Cook case, right, the case about whether Trump can fire this governor of the Federal Reserve. This brief was filed by all the former Fed chairs and a bunch of other top econ officials, like Treasury Secretaries, warning the court in really very stark terms that it would

• 1:57:02Kate Shaw?

  cause sort of untold chaos to US monetary policy for it to do, in this case, what it has done in so many other cases, like the slaughter one we were just talking about, which is to let the president have just like a little bit of firing while it decides what to do. Like, letting him fire Lisa Cook even right now would be catastrophic. And I thought it was one of those amicus briefs that I could imagine actually maybe making some headway. Most don't. This one, I thought, could. And finally, again, we all need some levity in our lives. The Trump Truth Social post last week, basically saying we have to tariff the bathroom vanities because of national security, is somehow howl-out-loud funny. So even if you've read, "Oh, the president says we have to tariff the bathroom vanities." If you haven't actually read it in his words, you must.

• 1:57:47Leah Litman?

  It's truly delightful. It's truly delightful. I already preemptively put it in the show note for our show at CrookedCon, where we're going to be talking about the tariffs case, because I am going to be bringing that bad boy back anytime we talk about the tariffs case. Just to remind people, what an utter embarrassment it would be slash will be for the court to act like they are just deferring to some regular, good-faith, reasonable determinations by a president who is definitely acting in the national interest, lol, by declaring bathroom vanities essential to national security. Like, truly, things are down the toilet.

• 1:58:27Leah Litman?

  Some housekeeping before we go. Chicago, Strict Fans were in session. We are live at the Athenaeum Center this Saturday, October 4th, with a very special guest, Illinois Lieutenant Governor and future Senator Juliana Stratton. Tickets are disappearing faster than district court opinions are getting swallowed up on the shadow docket. So get your ticket for Chicago now at crooked.com/events. I am, as we were saying in favorite things, so seriously excited for this, so excited to be with good people as we try to grapple with all of this.

• 1:59:03Kate Shaw?

  In my hometown, I cannot wait. All right, one more piece of housekeeping. Vote Save America is running a first-of-its-kind pilot program to recruit candidates from Arizona, North Carolina, and Texas, recruiting for positions like the school board, city councils, state legislatures, races that shape communities and build the bench for long-term democratic power. Even if you are not from those states, Vote Save America will connect you with incredible national partners at the National Democratic Training Committee and run for something to get you set up and ready to run anywhere in the country. Thousands of people have already signed up over the past couple of months, and Vote Save America is hosting a live call on Tuesday, October 7th, at 5:00 PM Pacific, 8:00 PM Eastern, to welcome new people to the program.

• 1:59:46Kate Shaw?

  Tommy's going to be there, along with the Vote Save America partners, who are driving this work to break down what it takes to run and how to get the support you need every step of the way. If you have even thought about running, this is a good place to start, so sign up for the call and learn more at votesaveamerica.com/Run. Paid for by Vote Save America. Learn more at votesaveamerica.com. This ad has not been authorized by any candidate or candidate's committee.

• 2:00:09Leah Litman?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Littman, Melissa Murray, and Cade Shaw, produced and edited by Melody Brawal. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglan and Charlotte Landis. Our music is by Eddie Cooper. Production support comes from Madeline Herringer, Katie Long, and Ari Schwartz. Matt Jagroth is our head of production, and thanks to our digital team, Ben Heathcote and Joe Motoski. Our production Staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. You can find us at youtube.com/AtStrictScrutinyPodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast apps. You never miss an episode. And if you want to help other people find the show,

• 2:00:54Leah Litman?

  please rate and review us. It really helps.

• 2:01:11Speaker 10

  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, 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.

• 2:01:50Speaker 14

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