Why is SCOTUS Hoarding Opinions?

Leah, Melissa, Kate, and special guest Elie Mystal of The Nation speculate about why the Court is hoarding opinions this late into bad decision season before diving deep on the ruling in United States v. Hemani, which features drugs, the Second Amendment, and Amy Coney Barrett’s iconic Ambien jar. Plus: a new summer cocktail makes its debut, and no holds are barred, especially when it comes to Trump’s flop makeover of the Reflecting Pool. This episode was recorded live at the Gramercy Theatre in New York City. Favorite things: Leah:Barack Obama’s speech https://www.youtube.com/watch?v=QEAmx1vsuMo at the opening of his presidential center, Kate:Michelle Obama’s speech https://www.youtube.com/watch?v=waUjBY1oaOE; Obama and Mamdani Show How It’s Done https://www.nytimes.com/2026/06/20/opinion/us-250-obama-library-mamdani-knicks-trump.html, Jamelle Bouie (NYT) Melissa: Becoming https://www.netflix.com/title/81122487 (Netflix); her award-winning audiobook https://libro.fm/audiobooks/9781668156018-the-u-s-constitution Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us onInstagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.social

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

• 0:00Leah Litman?

  Strict scrutiny is brought to you by Americans United for Separation of Church and State. The Trump administration's excessive Christian nationalist rhetoric is only building as we move toward the 250th anniversary of the Declaration of Independence. Those most caught in the crossfire are federal workers. Specifically, a multi-faith group of federal employees filed a new lawsuit against the U.S. Department of Agriculture for violating the separation of church and state and their religious freedom promised in our Constitution. Our friends at Americans United for Separation of Church and State received emails from multiple USDA employees. A handful of employees reached out, saying the proselytizing Easter email sent by Secretary of Agriculture Brooke L. Rollins to more than 100,000 USDA employees is an abuse of power that violates a separation

• 0:45Leah Litman?

  of church and state promised in the First Amendment. They are absolutely right. We've tried to explain to these guys before. You can overrule Lemon and call it abandon all you want. The first sentence of the First Amendment still says, "No establishment of religion." The hits just keep on coming from this administration, and Americans United is doing their best to keep up the fight against Christian nationalism. If you want to help, head to au.org/crooked to learn more about their work and how you can get involved. Every weekday, NPR's best political reporters come to you on the NPR Politics Podcast to make sense of the biggest news from Washington and beyond. They don't just tell you what happened, they explain how decisions made in Washington could affect you, from gas prices and affordability to elections and other issues shaping your community.

• 1:30Leah Litman?

  Listen every afternoon to the NPR Politics Podcast.

• 1:34Speaker 01

  Monday night is not just another weeknight. It's the last game of the football week, when one play can change the score, the conversation, or your fantasy matchup. And when the game gets good, the last thing you want to do is step away to figure out dinner and miss a moment? That's where DiGiorno comes in. Have a DiGiorno pizza ready to go before kickoff, then settle in for restaurant-quality taste, fresh from your own oven, while the game takes over. No stopping to figure out dinner when the matchup gets good. Stock up on DiGiorno over the weekend, so when Monday night rolls around, the only thing you sweat is the game. From the opening drive to the final snap, stay locked into the game and enjoy everything Monday Night Football brings. It's not delivery, it's DiGiorno.

• 2:24Speaker 02

  It's an old joke, but when a arrogant man argues against two beautiful ladies like this, they're going to have the last word.

• 2:32Speaker 03

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

• 3:05Melissa Murray?

  My court captured.

• 3:08Leah Litman?

  My rights shattered.

• 3:10Kate Shaw?

  My democracy still alive.

• 3:12Melissa Murray?

  Next in five!

• 3:19Melissa Murray?

  Hello, New York City!

• 3:25Melissa Murray?

  Happy Juneteenth to all who celebrate.

• 3:33Melissa Murray?

  And a very special Juneteenth to all who do not celebrate.

• 3:40Melissa Murray?

  And yes, I am looking at you, Pete, Sam, Clarence, Marco, JD, Mark Wayne, no spaces.

• 3:50Kate Shaw?

  Okay, okay. I'm gonna stop you there, Melissa, because we cannot name the entire cabinet and the entire Supreme Court. We celebrate Juneteenth, and we are, strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts.

• 4:07Kate Shaw?

  I'm Kate Shaw.

• 4:08Leah Litman?

  I'm Alyssa Murray.

• 4:10Melissa Murray?

  And I'm Leah Litman. And we are delighted to be here and so appreciative of the big parade you threw for us two days ago. We hear a million people showed up, so, thanks.

• 4:23Kate Shaw?

  Really, we are so excited to be here in New York for another live show. It is going to be a great one. No thanks to the Supreme Court, listeners, audience members. We had to work to wring a show out of the pittance that the Supreme Court gave us last week.

• 4:40Melissa Murray?

  Yes, that's right, folks. We are literally a week away from July, and this court still has 17 cases that it has not yet issued. And these are not little cases, these are big cases. The birthright citizenship case, the TPS case, the independent agencies cases, the ban on trans athletes cases, absentee ballots, or so much more. These folks are literally quiet quitting.

• 5:09Melissa Murray?

  And they had the nerve to quiet quit the week that we had a live show in New York.

• 5:17Melissa Murray?

  The absolute audacity of them.

• 5:20Kate Shaw?

  I am going to float a theory as the eternal optimist in our trio. Is it possible that the court held off on dropping the biggest and the worst decisions of the term to allow all of us to experience just a few more days of unfettered, nix-induced joy?

• 5:41Melissa Murray?

  I think it's possible.

• 5:43Leah Litman?

  No, Kate. No, Kate, not possible. Wrong answer, Kate. Yeah.

• 5:48Kate Shaw?

  Just asking.

• 5:49Leah Litman?

  Yeah, as the non-optimist, I will float another theory. Maybe issuing consequential, terrible, bad decisions within a week of a White House cage match and an unconditional surrender and humiliation on the world stage at Versailles, of all places, would be just a little too much.

• 6:11Melissa Murray?

  I'm going to go with they are trying to starve us of content. That's what they're doing. And that's just one way to silence your critics. But you know what? We will not be silenced.

• 6:22Leah Litman?

  It would take a lot more than that to silence us. So even though the court has yet to fully let its freak flag

• 6:32Melissa Murray?

  Fly, whether right side up or upside down, preferred. We still have a lot to talk about. We are going to cover the opinions we did get.

• 6:43Kate Shaw?

  We will also be joined by a very special guest, and not just any special guest. This is a repeat player who we can always count on to help us liven things up, even when the court is doing its level best to give us no material to work with for this live show.

• 6:58Melissa Murray?

  All right, so after we do that, we are going to begin with some of the legal news from last week. But before we get started with all of that, we have some real business to attend to. We are recording this episode the day before the official start of summer, right? And you know what summer means at Strict Scrutiny. It would not be summer at Strict Scrutiny without the official summer cocktail. Yes. Yes, I'm gonna need more than that. It's time to unveil the official cocktail of the Strict Scrutiny summer, all right?

• 7:43Melissa Murray?

  So let's recap what we've had on deck in years past.

• 7:47Kate Shaw?

  Okay, so you know, we've been in this game for a minute. We have had some epic summer cocktails in years past. There was the Ginny tonic. OG listeners will recall, premium gin, lots of bitters.

• 8:00Melissa Murray?

  Very bitter.

• 8:02Kate Shaw?

  Possibly a fax machine, unconfirmed.

• 8:09Melissa Murray?

  There was also the Martha Rita. Extra salty, not regular salt. This was road salt that you put on the rim. And whenever you had it, you were free to let your freak flag fly, upside down, per usual. Yes. We did try a fall cocktail once. That was the Secretary Build-A-Bear Raw Milk and Whale Juice Cocktail. It never quite caught on, but we've got Jordan, the intern, working on it. This summer, the Strict Scrutiny Mixology team, that's Jordan, the intern.

• 8:47Melissa Murray?

  Decided that we are going to give you something very special. Not court focused, but politics forward. Right? So this is something that we came up with for you as we speed into the midterm election cycle. So this is the cocktail for you when you're out canvassing for your favorite candidates, when you're getting out the vote. Take your strict scrutiny, emergency relief flask and fill it with summer's signature cocktail. Wait for it. The Susan Collins.

• 9:26Melissa Murray?

  You don't need a lot of persuading for this one. Okay.

• 9:30Melissa Murray?

  A Susan Collins is a little like a Tom Collins. It is a refreshing cocktail made with gin, lemon juice, sugar, and club soda, served in a very tall glass. Usually is garnished with a lemon wedge or a maraschino cherries. But I think to truly make this a Susan Collins, we're going to skip those traditional garnishes and instead garnish this drink with concerns and absolutely no regrets.

• 10:05Melissa Murray?

  Delightful. Very, really good.

• 10:07Kate Shaw?

  I can taste the concerns.

• 10:11Kate Shaw?

  Obviously, this summer cocktail is an homage to Maine Senator Susan Collins, who is, of course, up for reelection in November and who wants all of us to know she has no regrets about her decision to put aside her concerns about Roe versus Wade and its future and cast her vote for Brett Kavanaugh's confirmation.

• 10:31Kate Shaw?

  It's part of our villain origin story as a podcast, actually. But since we're talking midterm elections and elections generally, and we are in New York, reminder for everyone here tonight and listening on Monday morning that Tuesday is primary day in New York.

• 10:49Kate Shaw?

  Thank you, listeners. There are a lot of contested primaries, so get out there if you have not voted. You have to show up at every election, including this one, because the vibes right now in New York make clear that democracy can actually deliver joy. But it takes a lot of work and participation and committing to every single election. So let's drink to that, shall we?

• 11:18Leah Litman?

  Strict Scrutiny is brought to you by Smalls. Kitty girls, it's our world, but the world of cat food is pretty shocking. For example, some cat foods contain so much carbohydrate filler that they're closer to a granola bar than a prey animal. Really, dry kibble can be 30 to 50% carbs, despite cats having almost no dietary need for them. But Smalls is here to help. So Smalls had one of their customers say this. This is from Emmy. Quote, "Smalls changed my cat's life, and I know she would no longer be here if it weren't for finding you. She will be 20 in April. Within two months of starting Smalls, she was like a kitten again." Another customer said, quote, "Their litter box now has no smell at all. It's crazy, and I feel good that I am feeding them quality ingredients that are good enough for humans."

• 12:03Leah Litman?

  Look, vet bills can really rack up. They can get to thousands of dollars. But the thing is, Smalls may help offset some of those vet bills. Smalls Fresh Cat Food is protein-packed recipes that are made with preservative-free, 100% human-grade ingredients you'd find in your fridge, and it's delivered right to your door. Smalls works because most of the nutrients in Smalls food are digestible, so less junk comes out the other end. That means less stinky poops. Smalls cat food leads to high protein and improved hydration. That equals strong bones and toned muscles. Experts, cat owners, agree. After switching to Smalls, 88% of cat owners reported overall health improvements. So stop serving your little carnivore a bowl of processed shortcuts

• 12:48Leah Litman?

  for a limited time, because you are a Strict Scrutiny listener. Get 60% off your first order, plus free shipping, and free treats for life when you head to smalls.com/strict. One last time, that's 60% off your first order, plus free shipping and free treats for life when you head to smalls.com/strict.

• 13:07Leah Litman?

  Strict Scrutiny is brought to you by Babbel. I actually used to speak Spanish pretty fluently. I even read books in Spanish. Then, like adults, I gave it up. But I plan to relearn it. And whether you're trying to learn a new language for the first time or trying to relearn one you knew but then forgot, try Babbel. Even just 10 minutes a day with Babbel can help you start having real conversations in as little as three weeks. Instead of memorizing random vocabulary, you will be learning phrases you'd use ordering dinner, asking for directions, or talking with locals. What I like about Babbel is it's built for real life. Not vocabulary lists, not verb charts, but real conversation practice. Lessons are quick, practical, and built by more than 200 language experts. They have interactive dialogue, personalized reviews, even podcasts, all designed to get you speaking quickly

• 13:52Leah Litman?

  and confidently. And unlike cramming before a trip, Babbel fits into your actual schedule: coffee break, commute, or a few minutes before bed. Babbel's award-winning app has sold over 25 million subscriptions, and it's backed by a 14-day money-back guarantee. If you've got summer travel coming up, now is the time to start, so you can actually use what you learn on the trip. Right now, Babbel is offering listeners up to 60% off. Go to babbel.com/strict. That's B-A-B-B-E-L dot com slash strict for up to 60% off. Rules and restrictions may apply.

• 14:29Kate Shaw?

  All right. We're going to dig into the opinions the court did give us, such as they are. But before we do, we kind of want to talk a little bit about the court's workflow and pacing.

• 14:38Melissa Murray?

  Or lack thereof.

• 14:39Kate Shaw?

  Correct.

• 14:40Melissa Murray?

  They're bad. It's bad.

• 14:41Kate Shaw?

  If the pacing is bad, the workflow is not flowing particularly.

• 14:44Melissa Murray?

  The work also sucks, but you know.

• 14:48Kate Shaw?

  We've noted previously that the court typically issues all of the opinions in argued cases by the end of June and before the week of the July 4th holiday.

• 14:58Melissa Murray?

  Right now, as we've already said, we are still awaiting decisions in 17 cases, likely to produce 16 opinions, and that number includes several massively important cases.

• 15:07Leah Litman?

  This is all to say that there is almost no freaking way that the court will release all 16 opinions in a single week, which means that this bad decision season, and God forsaken term, is going to be even longer than we thought. Which leads me to the question: Why are these guys cockroaching us? Why do they refuse to go away? Just get it over with, release the opinions. No one needs this insane ritual of frantically refreshing our web browsers to figure out what constitutional rights we still have.

• 15:46Leah Litman?

  No need to dilly-dally on completely reconstituting the entire constitutional order. Just get it over with, for fuck's sake, so we can start dragging you.

• 16:02Melissa Murray?

  Start dragging you?

• 16:03Leah Litman?

  Escalate.

• 16:04Melissa Murray?

  When did we stop dragging them?

• 16:05Leah Litman?

  Escalate.

• 16:06Melissa Murray?

  That's fair.

• 16:07Leah Litman?

  I'm at a 10, I'm gonna be up to like a 50.

• 16:10Melissa Murray?

  Maybe they're taking their time because their emotional support billionaires are not inviting them on the yacht this summer. I think it's time for a little rank speculation. About, yeah, rank speculation. That would be a good drink, too, rank speculation. Let's put on our tinfoil hats and do some conspiracy theorizing for a moment about why the court is doing all of this. And I want to focus on a particular set of opinions that we're waiting for, those TPS cases, right? We are working under the theory that maybe last Thursday, the court actually did have an additional set of opinions that it wanted to issue in the TPS cases, but they held off

• 16:54Melissa Murray?

  because of some blockbuster reporting that surfaced at the last minute. Are you intrigued? Yeah. Okay, lean in closer. Are you intrigued? Yeah. I thought so. Let's dish. Okay, let's go.

• 17:08Kate Shaw?

  All right, first, as a refresher, the TPS cases are about whether the administration can pull the rug out from under Haitian and Syrian nationals in the United States by canceling temporary protected status, or TPS. Under the TPS regime, again, Haitian and Syrian nationals who underwent a rigorous vetting process have been permitted to stay and work and build lives and have families and pay taxes and contribute to their communities in the United States because of conditions in their home countries.

• 17:36Melissa Murray?

  So here's a theory, and again, this is just rank speculation, but we're all squirrel friends here, so maybe the court opted to pull the TPS opinions because of some new reporting that suggests, and you're not going to believe this, but hear me out, the administration may not have been completely transparent or honest in describing its decision-making process about whether to cancel TPS. I'm shocked, Leah. This is so shocking. Oh my god, so shocking. Here's the quick and dirty. The relevant statutes here require the Department of Homeland Security, it was then under

• 18:20Melissa Murray?

  the domain of one crispy gnome, haven't heard that name in a while, but it requires DHS to consult with other agencies about whether to cancel TPS. And the plaintiffs in these cases say that this required consultation did not actually occur. And the government responded by saying, aha, it totally did occur, we totally consulted with everyone we needed to consult with, and anyway, it's totally not reviewable by a federal court whether or not we consulted, so it kind of doesn't matter anyway. DHS out.

• 18:57Kate Shaw?

  That was sort of the TLDR of the administration's argument. Well, twist, or maybe entirely predictably. The New York Times now reports that new emails show that although DHS asked the State Department to weigh in, DHS then went ahead and canceled TPS for Haitian nationals without waiting to hear from the State Department or getting its input. Remember, the statute requires consultation.

• 19:22Melissa Murray?

  Is it consultation if you ask for the consult but then don't wait for the consultation?

• 19:26Kate Shaw?

  The administration says yes, but that can't be right. So this, I think, is the question. Will that complicate the court's consideration? As the Times put it, "These newly obtained DHS emails make clear there was no such consultation." Now, compare that reporting to what Solicitor General John Sauer said during the oral argument. Quote, "They initially said she," and the she is, again, then-Secretary Krisbi Noam, "didn't consult at all, but it turns out she did. There is an exchange with the Department of State." Interesting.

• 19:59Melissa Murray?

  Well, it's not just interesting. This brings up, for me, the man with the butterfly meme. Is this perjury?

• 20:05Kate Shaw?

  Well, what is consultation, Melissa?

• 20:08Melissa Murray?

  It's probably not perjury, but it is proof positive that these people love to cut corners and make their paid lawyers look like absolute morons in court. Here's the question. There's all of this new additional evidence that the New York Times reporting has surfaced that this consultation did not actually occur. Is this going to be a situation where John Roberts, noted institutionalist, decides that maybe we can't go forward and decide this case because the record below is kind of all jacked up now? I mean, so maybe they decide that they're not going to decide this and they just kick it back to the lower courts to actually build a record based on the new factual evidence that's surfaced? Possible?

• 20:51Melissa Murray?

  That is what the plaintiffs in the TPS case involving the Haitian nationals have asked for, and it is

• 20:57Leah Litman?

  Kind of giving me flavors of one of my previous favorite cases.

• 21:03Kate Shaw?

  Yeah, and this, I think we were thinking of the same case, which is Department of Commerce versus New York, another hometown case.

• 21:09Leah Litman?

  Yeah, so listeners, here's a quick refresher of that case if you have not been with the pod since the beginning. Back in Trump 1.0, the administration wanted to add a citizenship question to the 2020 census. And Wilbur Ross, then the Secretary of Commerce, justified this unorthodox change on the ground that it was necessary to enforce the Voting Rights Act. Yes, that would be the same Voting Rights Act that the administration just encouraged the court to nullify. The rationale was obviously bullshit, as several civil rights groups noted adding a citizenship question would likely suppress census participation in certain communities.

• 21:50Leah Litman?

  And after some pretty masterful lawyering by then ACLU attorney and now federal Judge Dale Ho, a New York District Court, yeah, New York District Court, agreed that the Voting Rights Act rationale was pretextual. And so then, the administration ran directly to the Supreme Court and said, "Oh, my God, a District Court judge has totally had the nerve to call me out for my completely nefarious and pretextual rationale." And so, I just want to note, it's so weird to be talking about this, this thing that happened back in 2018, because then it seemed to us so novel and innovative, but now, this is what they do every single day, right? So they're always making stuff up, courts are always shooting them down, then they run

• 22:33Leah Litman?

  to the Supreme Court and say, "I can't believe they did this. They don't believe my pretext." And here we are. Same circus, different clowns.

• 22:42Kate Shaw?

  Yeah. Anyway, we will see what the court does with this TPS case, especially in light of this new information. It raises, I think, the question, how much egg is the court willing to have on its face because of this administration? There was a limit in the first Trump administration. That is what we saw in the census case. The court was not willing to go along with that pretextual justification. The vibes feel different now, and we will see how different.

• 23:08Leah Litman?

  Well, as the immortal Katie Heron would say, "The limit does not exist." I mean, Donald Trump does now say there are no limits on his powers, so this would track.

• 23:23Leah Litman?

  Strict Scrutiny is brought to you by Jones Road Beauty. I'm a makeup skeptic, or just lazy, maybe both, I don't know. I just don't like faces that look super made up, and I also don't like taking the time in the morning to make up my face. I've got shit to do. But now, one of those things is dabbing some Jones Road Beauty Miracle Balm on my mug. So here is the Miracle Balm. It's basically the dictionary definition entry for glow up. It doesn't mask your skin, it just gives it a sparkle, which means it offers a natural look and one that can replace a bunch of steps like highlighter, bronzer, and blush. That also means it saves a lot of time. You can get that effortless, glowy look in under 60 seconds with just a little schmear and dab. And when you're

• 24:06Leah Litman?

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• 24:51Leah Litman?

  weightless on your skin. You'll love how it gives you medium to full coverage without ever looking cakey or heavy. It's dermatologist-tested and packed with skin-loving ingredients like ceramides, squalane, and sodium hyaluronicate to nourish while you wear it. And it's available in 30 shades to match a wide range of skin tones. Modern-day makeup that's clean, strategic, and multifunctional for effortless routines. For a limited time, our listeners are getting a free, full-size mascara on their first purchase when they use code STRICT at checkout. Just head to jonesroadbeauty.com and use code STRICT at checkout. After you purchase, they will ask you where you heard about them. Please support our show and tell them our show sent you. This episode is presented by Planned Parenthood Federation of America.

• 25:35Leah Litman?

  If you listen to the show, you already know this administration, Congress, and the courts have spent the past few years making it harder to get health care in this country. And it's patients who are paying the price. Take the Supreme Court. It paved the way for states to exclude Planned Parenthood Health Centers from state Medicaid programs in Medina versus Planned Parenthood. This undoubtedly violates patients' right to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients with low incomes from birth control, cancer screenings, STI testing, and more. That's why Planned Parenthood is fighting back. But fights like these take resources and supporters like you. No matter the size, your donation makes a real difference, helping Planned Parenthood

• 26:18Leah Litman?

  meet this moment and protect patients' access to care when and where it matters most. If you believe all people should get health care, no matter their income, donate now at PlannedParenthood.org/defend.

• 26:38Leah Litman?

  Enough rank speculation, though. It's time to dive headfirst into bad decisions season. We're about to drag them. Let's go. And to help with the dragging, we are so delighted to welcome to the stage one of our favorite friends of the pod, the one, the only, the Ellie Mistall.

• 27:12Speaker 06

  What's up, New York?

• 27:16Speaker 06

  Can I just quickly say, because you mentioned primary day already, and I just want to remind everybody here and everybody listening to the show that in New York, there are candidates who care about the Supreme Court, okay? There are candidates, they are running in a primary on Tuesday, they are not named Chuck Schumer. And you can vote for them. And if you do vote for them, and you say that you're voting for them because they care about the Supreme Court, that is a huge way to start to turn the ship of state that is the Democratic Party towards the kinds of reforms that I think a lot of people here agree with.

• 27:54Leah Litman?

  All right. You just cut into your intro.

• 27:57Speaker 06

  Sorry.

• 27:58Leah Litman?

  Okay. This is my friend Ellie.

• 28:02Melissa Murray?

  I'm kidding. Eli needs no introduction, but I'm going to give you some because it's Juneteenth. Oh. All right, here we go. Eli is the justice correspondent for The Nation, and he is also the author of two New York Times bestsellers, Allow Me to Retort and Bad Law, both of which we have covered extensively on this podcast. He joined us at our live show at the Tribeca Film Festival two years ago, and the energy was honestly so chaotic.

• 28:29Melissa Murray?

  He was filling in for Lea, who was recovering from her bike accident. But it was so chaotic that we were like, what would it be like if Lea and Eli were onstage at the same time?

• 28:41Melissa Murray?

  And so, here we are. Welcome, Eli.

• 28:43Speaker 06

  Thank you so much for having me. Yes.

• 28:47Speaker 06

  The principal at my kid's school says that I am an agent of chaos, so... There's that.

• 28:53Kate Shaw?

  So let the wild rumpus begin.

• 28:54Speaker 06

  This cocktail is... This cocktail is pretty good, but I can't help feeling a little... What's... I'm a little disappointed.

• 29:02Melissa Murray?

  Have some concerns?

• 29:03Speaker 06

  Have some concerns when I drink it.

• 29:05Kate Shaw?

  We are going to dive into the opinions, as we just mentioned. But before we do, Eli, wondering if you have any theories? We floated a couple. About what on earth is taking these guys so long and why they want to go into the holiday week, as they seem to want to?

• 29:18Speaker 06

  Yeah, I think it comes down to two words: birthright citizenship. If we win, birthright. And when I say "we", I mean we who agree in a multiracial, multi-ethnic democracy where bigotry is not part of the constitutional law, right?

• 29:37Speaker 06

  And when I say "them", I mean mouth-breathing racists who got their asses kicked to Gettysburg and haven't gotten over it, right? So that's not... That's the distinction, right? If the "we" win birthright, what does that do to the media on the way out the door, right? So the court can put themselves in a position where they can win on birthright, uphold birthright citizenship, and then run out of town, and then you've got three months of mainstream idiot media being like, "Oh, my God, the court is so impartial." They mean, sometimes you do Republican things. Sometimes they do democratic things, but really, they're just trying to do the law. Like, you get three months of that ridiculously bad narrative.

• 30:17Kate Shaw?

  Well, and it's three months, and they leave, and then it's the 4th of July. And so that dominates the kind of coverage of the 4th of July. I think that's a good theory.

• 30:24Leah Litman?

  John Roberts in his office stroking a hairless cat. I did it. I did it.

• 30:29Speaker 06

  And the alternative, if we lose birthright, one of the things you have to remember is that these people are cowards. And if you're gonna, if you're going to take away a constitutional right, taking it away and then skedaddling out of town before anybody can...

• 30:44Leah Litman?

  On a BJ.

• 30:45Speaker 06

  Right? And just, and just going to, as you were calling them, your, their emotional support billionaires. And getting out of town before the, the reaction to that happens, and then by the time they come back to work in October, people will be all into the election cycle, they'll kind of get away with it. So whether or not we win or lose birthright, I think dropping birthright and then leaving is their idea.

• 31:07Leah Litman?

  Yeah. Okay, so let's go into the opinions we got. We got three last Thursday. One was in the case that we actually focused on during our live shows in California. Yes, ladies and gentlemen, and non-binary listeners, this is your Supreme Court, and this is your Supreme Court on drugs. Because we got the opinion in United States versus H'mani, where the court held that the Second Amendment does not allow the federal government to disarm people just because they use drugs in violation of federal drug laws. The intro was something of a joke, the outcome here is pretty sane, and in my opinion, probably correct, but of course, the court gave all of the wrong reasons for reaching said right result.

• 31:52Kate Shaw?

  So the result in the case was unanimous, and Neil Gorsuch had the opinion for the court, which probably gives you a clue about how the opinion read, as Leah said, right outcome, wrong reasons. And importantly, the majority emphasized that it was a very narrow ruling. All the court did was reject the Trump administration's view that the federal law could prohibit unlawful users of controlled substances from possessing firearms. The court emphasized it wasn't addressing questions about firearm possession by people who are addicted to drugs, or firearm possession by people who are presently intoxicated.

• 32:24Leah Litman?

  Brett Kavanaugh.

• 32:31Kate Shaw?

  I will say that in rejecting the Trump administration's arguments here, the court made clear that, yes, it is actually more ammo-sexual than the Trump administration, which is saying something, right? The Trump administration had argued that the government could ban unlawful controlled substances users from having guns. And this wasn't the first time that the Supreme Court actually was more ammo-forward than the Trump administration. This also happened a few terms ago in Garland versus Cargill. That was the case where the Trump administration argued that federal gun laws allowed them to ban bump stocks, and the court said, "Nope, nope, not at all, because ammo-sexuality." Right?

• 33:13Speaker 06

  Yes.

• 33:14Leah Litman?

  Love wins.

• 33:15Kate Shaw?

  So because this is a Gorsuch opinion in a Second Amendment case, the court applied its ridiculous history and tradition test from Nysirpa versus Bruin. Under Bruin, the court asks whether federal law at issue in the case is sufficiently similar to and consistent with the nation's historic tradition of firearms regulation. That's right. No matter how many times you say it or hear it, it just never makes any sense. Gun laws today have to look like ye olde gun laws, no matter how different everything else looks today, or the laws get struck down. That is the test. That's what the court applied here. The administration argued that historical laws that disarmed habitual drunkards and

• 33:58Kate Shaw?

  vagrants and the like were sufficiently similar to the federal law at issue in Hamaani to satisfy the Bruin test, but the court said, "No, these laws, those laws were all different." Although the reason that the majority gave for why those analogues were not analoging were pretty unconvincing. Okay, Ellie, how much credit does Neil Gorsuch get here, especially for rejecting a view that should have been rejected, but for using these wildly unconvincing reasons and a really damaging and destructive method to get there?

• 34:27Speaker 06

  Look, I fundamentally agree with Neil here. When you go back and look at Richard the Long shanks and whether or not he could have his sword on... It's incredibly stupid, right? Like, it's incredibly stupid that in the year 2026, we have to go back to habitual drunken laws around the founding to figure out if somebody can have an Uzi. Like, that's just dumb.

• 34:54Speaker 06

  Now, the problem is that when you make that dumb argument, yes, Gorsuch is totally capable of ripping it to shreds, as he should. Right? Because there's no way that you can argue realistically that the Americans at the founding were not completely sauced when they were like, "Hey, let's take on the British. We'll kick your ass." Like, that's not, that's not a sober decision, right? Nobody's stone-cold sober being like, "This tea overboard, yeah, take that, Brit." That's not, that doesn't make no sense, right? So, of course, of course, the people at the founding were drunk while armed. Like, that, that's a thing that happened.

• 35:39Speaker 06

  And if you're gonna say that because that's a thing that happened literally 250 years ago, then that's a thing that has to happen now, well, then you're done, right? And so I think Gorsuch was, was right to rip up the analogy. Where I'll give him a little bit of extra credit, and I can't believe I'm saying this about the last justice of the Mohicans, but...

• 36:00Leah Litman?

  I manifested this.

• 36:05Speaker 06

  But he wasn't, he didn't get tripped up on the difference between alcohol and weed, right? He didn't get tripped up on the difference between intoxication.

• 36:12Leah Litman?

  He knew.

• 36:12Speaker 06

  He, I don't know if he's had some Colorado candies in his past, I don't know. But like, he didn't, he didn't let that stop his analysis. He, he went, he analogized correctly the modern-day use of marijuana to the historical use of alcohol, and, and just kept on going. So I'll give him a little bit of credit for not having the hanger, like, lodged so far up his ass that he couldn't see that.

• 36:36Leah Litman?

  So, Eli already gestured to the founding fathers being sauced, and it turns out Neil Gorsuch really agreed with that. So this opinion is basically a callback to Neil Gorsuch's greatest hits from the oral argument in Hamaney, which, if you recall, was basically giving, "What if Pete Kegsbrath were a Supreme Court Justice vibes? The founders were totally frat bros" energy. So here is Chapter Social Chair Neil Gorsuch at the oral argument. Habitual drunkard, the American Temperance Society back in the day said, "Eight shots of whiskey a day." Only made you an occasional drunkard.

• 37:19Leah Litman?

  We have to remember the founding era if you want to invoke the founding era. To be a habitual drunkard, you had to do double that, okay?

• 37:27Kate Shaw?

  John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of a user of alcohol, he only had three or four glasses of wine a night.

• 37:44Melissa Murray?

  Neil Gorsuch was a theater kid, right?

• 37:48Melissa Murray?

  100%.

• 37:50Speaker 06

  Look, he's right, of course, but you notice how he doesn't finish the sentence, right?

• 37:55Melissa Murray?

  Well, he wasn't the only one who's really bought into this. So Chief Justice John Roberts, noted institutionalist, allowed Neil Gorsuch to write this opinion and to memorialize this episode of drunk history in the annals of the United States Reports. And to be very clear, Gorsuch takes this opportunity to go on and on and on about this culture of copious drinking that existed at the founding, including all of these anecdotes about how Madison and Jefferson and Adams were just chugging and chugging and chugging, which happened to be a lot. It does prompt me to ask, though, when this court is taking up the 14th Amendment,

• 38:37Melissa Murray?

  are they also willing to talk about how many people these folks owned at the time? Because it was also a lot. Like, why won't we talk about that?

• 38:47Leah Litman?

  No.

• 38:47Kate Shaw?

  It's actually illegal to talk about that, Melissa.

• 38:49Leah Litman?

  Like Neil Gorsuch's personal episode of drunk history was just focused on how the law protects America's history and tradition of getting hammered. Ali, do you think Brett Kavanaugh had any qualms about joining this opinion that basically normalized being shitfaced?

• 39:08Speaker 06

  I do not.

• 39:11Speaker 06

  Brett Kavanaugh likes to join opinions that justify his own behavior. You know, there was the opinion earlier, a couple of terms ago, where he legalized bribery. Yes. Because we believe that he's probably kind of into that as well. So I don't think Kavanaugh had a problem with that. I think what the conservatives in the majority did that was really a disservice, and you saw it even in that clip that you played, is that they never finished the second half of the sentence. Yes, the founders were saucy. They were also using rifled muskets. Right? I would love to take the Pepsi challenge with that. Like, bring me Snoop Dogg. Put him right here. Give him a whole bong, and then let's see how long it takes him to reload a musket.

• 39:56Speaker 06

  Just, let's see.

• 39:59Speaker 06

  Right? And let's see how many innocent people he can mow down while he has to reload the musket one ball at a time every time before he takes another shot. Right? Like, that's the other part of the sentence that these guys never got to.

• 40:13Kate Shaw?

  Yes. No, absolutely. Yeah. And also, we're not going to relitigate now two decades of Supreme Court Second Amendment jurisprudence, but they're not keeping guns at home for personal self-defense anyway, right? Like, firearm possession was in conjunction with militia service, or potential militia service, at the founding anyway, but obviously all water under the bridge at this point. But I do think their disinterest in the difference in firearms between the founding era and today is conspicuous in all of these Second Amendment cases.

• 40:39Melissa Murray?

  Did James Madison have a bump stock?

• 40:41Kate Shaw?

  Yes. Yes. See, you're not allowed to ask that, is the problem. So, the history of these heavy-drinking, fratty founding fathers was not the only aspect of the oral argument in the case that then surfaced in the opinion. In fact, Justice Gorsuch included a number of callbacks to the oral argument. And just to refresh your memories, here's a snippet from one of the other memorable moments in the Hamani oral argument. Justice Sotomayor asked you about someone who takes...

• 41:08Melissa Murray?

  Ambien to sleep. So let's assume that someone takes their spouse's Ambien prescription. The spouse takes it too, lawfully with the prescription. But then, you know, you take it unlawfully because you break into your spouse's Ambien jar.

• 41:24Leah Litman?

  Yes, that is Amy Barrett, asking a hypothetical

• 41:31Leah Litman?

  about when a hypothetical spouse pilfers from the other spouse's hypothetical jar of Ambien. Well, guess what? Although he hangs with the originalists, Neil Gorsuch is not very original. He heeded Amy Coney Barrett and included an Ambien hypothetical in the opinion.

• 41:53Melissa Murray?

  Sir, sir.

• 41:55Speaker 06

  It's so oddly specific, right?

• 41:56Leah Litman?

  It is!

• 41:59Leah Litman?

  Also, Ambien doesn't come in a jar.

• 42:04Leah Litman?

  So, do you have a jar of Ambien?

• 42:07Melissa Murray?

  Do you have a jar of Ambien? You've got bigger problems.

• 42:10Leah Litman?

  Yeah. It was, obviously, an Amy Barrett Easter egg. It did make me wonder, was it intended for us? Does he hate-listen? And does he know how much mileage we got out of that Ambien hypothetical on the pod? Or is he also Ambien-maxing now? Maybe out of a jar?

• 42:36Melissa Murray?

  All right. There were also some concurrences in the Hamani case that were absolutely wild, and we really have to talk about them. But before we get to them, we want to play a little game with you, the audience. Are you ready?

• 42:51Melissa Murray?

  Okay. So, it's just like law school. We're going to ask the questions, and you're going to shout out answers. Okay? Are you ready?

• 42:59Kate Shaw?

  This is just a teaser to the longer game we're going to play later.

• 43:01Melissa Murray?

  To warm you up. These are warm-ups. Okay. All right.

• 43:04Kate Shaw?

  And if you get it wrong, they'll make you cry. I'm sorry. Maybe that was just me in law school. No, yeah.

• 43:10Kate Shaw?

  I think Elena Kagan is a tougher user of the Socratic method, at least than I am.

• 43:14Melissa Murray?

  Speak for yourself.

• 43:15Kate Shaw?

  Okay, right. I'm sure Melissa has made students cry in her day. I would not be surprised. Okay. Question. Which justice used his concurrence in Hamani to normalize weed usage?

• 43:29Kate Shaw?

  Shout it out. Yes, you guys, read the concurrences. Justice Samuel Alito. Stay tuned, we are going to come back to this.

• 43:37Melissa Murray?

  Which justice wrote about taking a mild gummy?

• 43:48Melissa Murray?

  It was Neil Gorsuch, or as we're now calling him, Neil Mild Gummy Gorsuch.

• 43:54Kate Shaw?

  That was too easy, because he actually discussed that at oral arguments. He talked about gummy bears. Yeah, he said gummy, and then he quickly added bears, so it didn't sound like he was too comfortable with just references to gummies. In addition to the mild gummy reference, the opinion noted the proliferation of state laws, obviously decriminalizing marijuana, and federal downgrading of some marijuana from Schedule I to Schedule III. It also observed, correctly, that millions of Americans regularly use marijuana, and that all of those users are certainly not unusually dangerous, which prompts me again to reference the butterfly meme that Melissa already referred to, and to ask, is the kind of discussion of the millions of contemporary marijuana users, is this originalism? Is this history and tradition? No.

• 44:39Kate Shaw?

  I think the answer is no. But, okay, back to the concurrences, because it is time for an evergreen segment, which is, we need to talk about Clarence Thomas.

• 44:55Melissa Murray?

  I'll begin. So, in Hamani, Justice Thomas wrote a concurrence where, per usual, he said that he would go further. And for context, four years, Justice Thomas has had a bee in his bonnet about the Commerce Clause. So the Commerce Clause is part of Article I, Section 8, and it authorizes Congress to regulate interstate commerce. And it has been a major head of congressional authority for enacting legislation, including major civil rights legislation. Now, obviously, Justice Thomas has a problem with the people's elected representatives enacting laws to protect the said people from rampant discrimination, right? So for years, he

• 45:38Melissa Murray?

  argued that the Commerce Clause should be limited. And in this concurrence, which nobody joined in Hamani, Justice Thomas decided to hard-launch his view that the Commerce Clause does not allow or authorize Congress to enact federal gun legislation solely because it is not enough for guns to travel in interstate commerce. That's not enough to trigger the Commerce Clause. I will just say that if this theory is accepted, it would not only invalidate the law in question here, but maybe other federal gun laws. It likely would also invalidate other civil rights laws that are enacted under the Commerce Clause.

• 46:20Melissa Murray?

  So this is another one of those cases where Justice Thomas decides to sow a few seeds for the future.

• 46:26Speaker 06

  Yes.

• 46:27Melissa Murray?

  Boo, boo hip.

• 46:29Speaker 06

  I can't emphasize how insane his argument is. Again, as Professor Murray just explained, right? The Interstate Commerce Clause is not something that you need to go through three years of law school to understand, right? It's if something is going from one state to another, that means the government has the right to regulate that. And Thomas is saying, no, just because something is going from one state to another, that's not enough to regulate from... Like, what the... Is he talking about? It makes absolutely no sense. It's like, I'm trying to think of an analogy for exactly how stupid this is, and I'm falling short because it's the dumbest thing that I've ever heard. Like, you can't...

• 47:14Speaker 06

  How could you possibly say that being in interstate commerce does not trigger the Interstate Commerce Clause? Right? It says like, it's like saying being pregnant does not trigger you being pregnant. No, you are pregnant. It's there. We can all see it, right? And so...

• 47:36Speaker 06

  And so when you... So then, what you have to start to think through is like, what kind of insane person writes this down? Like, what kind of addled person like, puts pen to paper to write this down and explain to the entire world how insane he is? And then you remember his billionaire support friends. Right? And then you remember that Clarence Thomas's entire, almost now 30-year history on the bench has been as the troll under the bridge. The poison pill, you know, I like to say, the shit in your ice cream, right? Like, you know, you can have the beautiful sundays, just a little corn on shit, just right there. And you can't unsee it. You can't not know that it's there.

• 48:21Speaker 06

  And he's been incredibly effective because he will make the argument that is ridiculous in his time. But then, over the course of years or decades, the rest of the conservatives can rally around and push his insane idea forward, right? So the reason why this concurrence is here, insane though it may be, is that he's telling the Wayne LaPiers of the world, this is the next front. Like, the next front is to fight the government's ability to regulate guns at all. That's what he's giving out. And he knows he's gonna lose now because it's stupid. But just... But he has shown, over the course of his career, that just because he's stupid doesn't mean he doesn't win.

• 49:05Kate Shaw?

  So I think it's important to underscore this is the theory wouldn't validate all federal gun laws. And as Melissa alluded to, maybe all federal civil rights laws. Because the Commerce Clause is the constitutional foundation for those laws too. And maybe that actually is the long game that Clarence Thomas is playing.

• 49:20Leah Litman?

  Happy Juneteenth!

• 49:23Kate Shaw?

  Exactly. One other small detail about the concurrence that I just have to mention. At the end, Thomas says, "Hey, it's been 26 years since we struck down a law under the Commerce Clause." And I'm just jonesing for a little Commerce Clause action. That's an actual argument he kind of makes.

• 49:43Leah Litman?

  He thinks the court is going through a Commerce Clause dry spell and Clarence Thomas is horny as fuck for a Commerce Clause freak-off.

• 49:52Leah Litman?

  Here's my actual hot take. The thing for last week's opinions was that the girls are fighting. There were a ton of intra-right wing fights about what the right wing dogma is. So in Hamani, there's this intra-right wing fight about the Commerce Clause. Should we use the Commerce Clause to take us back to the Stone Age? Clarence Thomas says yes. Sam Alito says no. Then there was another intra-right wing fight about whether the right cares about the Second Amendment or prosecutors more. Here, you know, Justice Thomas is suggesting maybe let's take down all gun control laws. Sam Alito writes separately to say, no, I actually like laws that prohibit felons from possessing firearms.

• 50:34Leah Litman?

  And that's going to lead to a divide between him, Thomas, Gorsuch, et cetera.

• 50:40Speaker 06

  Can you guys explain to me why my former professor, Alana Hagan, joined Alito's concurrence?

• 50:46Leah Litman?

  Yeah, because she wants to capitalize on the intra-right wing fights and basically ensure that the court doesn't strike down felon in possession laws. And so my guess is she was encouraging Sam Alito along and thought, okay, I'll like sign on to this and kind of make him own it.

• 51:05Melissa Murray?

  Yeah, yeah, that's a ticket.

• 51:07Leah Litman?

  Right. You're doing amazing, sweetie, Sam.

• 51:09Melissa Murray?

  You're so smart. Such a big, strong man.

• 51:14Leah Litman?

  All right.

• 51:17Speaker 06

  God.

• 51:22Melissa Murray?

  Susan Collins made me do it.

• 51:26Speaker 06

  No, I'm laughing because it's just...

• 51:27Melissa Murray?

  Zero regrets, Melissa. Zero regrets. So many concerns.

• 51:31Speaker 06

  I'm laughing just because, like, it's embarrassing how easily it is to handle men, right? Like, that would work on me. That does work, right? Like, that does work on me.

• 51:41Speaker 06

  I was used car shopping with my wife yesterday and she was literally just like, no. I was like, that car's too big. And she was like, no, honey, I think you can handle that kind of thing. I was like, yes, I can, in fact. You're right.

• 51:55Melissa Murray?

  All right. There are two other concurrences that we should mention.

• 52:01Melissa Murray?

  The first concurrence was by Justice Jackson, who was joined...

• 52:09Melissa Murray?

  Who is joined by Justice Sotomayor. And, per usual, Justice Jackson continued her righteous crusade against the incredibly fecockta and terrible Bruin history and tradition test. And she argued-

• 52:24Kate Shaw?

  The drunk history and tradition test.

• 52:25Melissa Murray?

  The drunk history and tradition test. So, she argued that the court should abandon Bruin's drunk history and tradition test, and instead, return to the test that had been in place before, which is basically a means and ends test, where, effectively, those considering and reviewing firearms regulation have to think about why the law was passed in the first place, and then consider whether the imposition on the Second Amendment right is justified, given what the legislature is trying to achieve. Seems very normal and reasonable. Definitely not going to get five votes. Right? Nope, nope. All right. Ellie, what did you think of KBJ's concurrence? You're vibrating, so I know you've got ideas.

• 53:09Speaker 06

  I love this concurrence, and I love it on two levels, right? One, it is Juneteenth. That's the blackest-ass concurrence you're gonna see, right? Because it's a little bit of like, she's saying, you know what? I do not truck with Bruin as a staff, label, or motherfucking crew. Like, she is gonna object to Bruin for the rest of her fucking life, and she's never gonna let you forget it. And I just, I love that aspect of it, to just object and object and object every single time. So, that's really cool. But, the other thing, the reason why that concurrence is great, is that it gives you the other answer for how to reach this conclusion that everybody up here agrees was the right conclusion, right? And so, one of the ways that originalists sometimes try to get people, try to trick

• 53:53Speaker 06

  people, is that, "Well, if we don't do originalism, what else can we do? There's no other way." No, idiot, there's always another way. And Jackson lays it right out, and she says in her concurrence, "We could've decided this case by asking familiar questions that we used to ask before we did this dumbass Bruin thing." And one of those questions from this case would've been really simple. Does smoking weed make you a greater risk to misuse handguns?

• 54:23Speaker 06

  Does anybody think that it does? I mean, like, does anybody in their right mind think that smoking weed makes you more of a danger to have a gun?

• 54:31Melissa Murray?

  Okay, so I'm gonna interject right here because not only did Katie Jay say this, it's also something that Alito said in his concurrence. Like, so, maybe the girls aren't all fighting, right? So Justice Alito also wrote a concurrence in which he was joined by Elena Kagan for the reasons that Leah has suggested. And basically, in this concurrence, Justice Alito talked about how marijuana use has basically become normal. Lots of people smoke a doobie, and sometimes a doobie is just a doobie, said Justice Alito. I'm paraphrasing, obviously. That shouldn't stop them from having guns, obviously.

• 55:10Leah Litman?

  I read this concurrence, and I seriously thought he was fucking with us. Like, I mean, this was wild to me. I just did not have Sam Alito writing a concurrence that rested on the normalization of pot on my October term 2025 bingo card. And yet, he wrote, quote, "Marijuana consumption is increasingly common in this country. It is widespread and increasingly considered socially acceptable in many quarters. Is this the rapture, or is this just what working with Neil Gorsuch does?"

• 55:44Melissa Murray?

  Wait, wait, wait, no, no. Wait a minute. Like, imagine being so exercised, having a wife who is so exercised about the pride flag, but you're totally cool with marijuana.

• 55:55Kate Shaw?

  With pot! It also, it's, it, it, everything is so personal with him, and it does feel like there just must be some people in his life who are recreational marijuana users. I don't think, like, in his immediate household, like, he and Mirthan, although I guess you never know. But I, but, but it felt like maybe that was it.

• 56:10Speaker 06

  See, I'm not gonna give Alito, I'll give Gorsuch credit, I'm not gonna give Alito credit. And the, and the reason why is because I think he writes that concurrence specifically because he still wants to put brothers in jail. Like, people need to remember what the law is actually used for. I, you know, I saw a lot of the media saying, "This is the, this is the Hunter Biden statute." A little bit not quite, it's a little bit different, and I don't wanna get into the weeds with that. But the way this law is used... Most often, let's say, right, is the cops stop somebody. They think that they're a drug dealer, they think they're a gangbanger, they think that they're a bad guy, but they don't got anything on them, right? They don't have any crime that that person committed. They stopped somebody for driving while black and the taillight was just out, right? But what they do find is a gun. Alright, we're gonna get you on a gun charge.

• 56:55Speaker 06

  Wait, wait, your gun is licensed. Damn. Alright, well, you have a dime bag, we're gonna get you on the drug charge. Oh man, it's just a misdemeanor, you know, it's two ounces of pot. Oh, but you got the pot and you have the gun, now you can go away for 15 years. And the carceral state starts going, right? Because you've got a little, you've got a drug offense with the gun, even though it's a legal handgun, now you can get the carceral state rolling on the person, right? And this opinion takes a big chunk out of that carceral state because weed is so ubiquitous. But there are other drugs that Alito is still trying to leave space to be like, alright, we're gonna let you off on the weed because it's habitual, because it's like alcohol, because what?

• 57:39Speaker 06

  But the crackhead, nah, nah, nah, your ass is still going to jail for 15 years, right? That's, that's what he's trying to still leave space for with this concurrence. They still want to be able to stop people for minor infractions and then ratchet up that infraction to 15 years in jail, which starts an entire carceral process.

• 57:59Kate Shaw?

  One other possible theory, which that all sounds very plausible, is that there were echoes, I thought, in the Alito concurrence of this dissenting opinion from Justice John Paul Stevens in the case that is colloquially known as the bong hits for Jesus case, which some people might know, that was a banner that some high school students held up and then were punished for doing so, and they raised a First Amendment claim and the court ruled against them, but Stevens dissented and just wrote this amazing dissent that was like, talked about his own childhood in prohibition because he had lived through it as a kid, and basically said, essentially, you know, our war on marijuana now is a lot like our experiment with outlawing alcohol when I was a boy, and we're gonna kind of come around. And anyway, my very charitable view of the Alito concurrence is that he's come around

• 58:43Kate Shaw?

  to the Stevens position, so it's at least possible.

• 58:45Melissa Murray?

  I think Ellie's take.

• 58:47Leah Litman?

  Or just Ellie's take. Let's take a vote. Who's with Ellie?

• 58:54Melissa Murray?

  Okay.

• 58:55Kate Shaw?

  For those listening at home, the audiences of LA, too.

• 58:58Melissa Murray?

  Who's here for Kate's Justice Stevens advocating for term limits?

• 59:01Kate Shaw?

  Thank you. I see a few hands in the crowd, real ones. Thank you.

• 59:06Leah Litman?

  So we did get two other opinions. Just going to quickly summarize them. This was kind of a fed courts fest. In one case, Hunter versus United States, the court said eight to one that even though a plea deal with the government agrees that the defendant won't appeal their sentence, that doesn't prevent a defendant from appealing a claim that would result in a miscarriage of justice. This case involves some intra-right wing fights between Justices Barrett and Thomas in particular about supervisory power and procedural common law, again, stuff that really matters to the right. Then, the second opinion was the Rooker Feldman opinion. I know, you all wanted us to spend the entire episode on this. I

• 59:51Leah Litman?

  apologize. This case, TM versus University of Maryland Medical System, the court held five to four that the so-called Rooker Feldman doctrine applies to state court trial and intermediate appellate decisions. So Rooker Feldman had said, you can't appeal or effectively ask a federal court to invalidate a state Supreme Court opinion. And TM said that applies to state trial and state intermediate appellate court decisions as well. This, too, involved the intra-right wing fight between Justice Thomas and other Republican appointees, since Justice Thomas wanted to take the position that Rooker Feldman is correct, which-

• 1:00:34Melissa Murray?

  That tracks, because everybody hates Rooker Feldman.

• 1:00:36Leah Litman?

  Exactly. Exactly. Exactly.

• 1:00:40Kate Shaw?

  So the intra-right wing fights are this kind of theme that Leah has identified as linking the three cases we got last week, we're talking about today. There is also like a lower brow through line, which is, these are all cases about drugs, like, different kinds-

• 1:00:52Melissa Murray?

  Okay, RF Kate.

• 1:00:56Speaker 06

  It's like they all went to the White Castle.

• 1:00:59Kate Shaw?

  Hunter is a case about the individual wanted to appeal a condition of his sentence, which involved taking medication he didn't want to take. And actually, the Rucker Feldman case also had to do with involuntary confinement and the administration of antipsychotic medication. So that is another potential through line for the three cases.

• 1:01:17Leah Litman?

  Potential, yeah.

• 1:01:20Leah Litman?

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• 1:02:03Leah Litman?

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• 1:02:40Speaker 01

  Monday night is not just another weeknight. It's the last game of the football week, when one play can change the score, the conversation, or your fantasy matchup. And when the game gets good, the last thing you want to do is step away to figure out dinner and miss a moment. That's where DiGiorno comes in. Have a DiGiorno pizza ready to go before kickoff, then settle in for restaurant-quality taste, fresh from your While the game takes over. No stopping to figure out dinner when the matchup gets good. Stock up on DiGiorno over the weekend so when Monday night rolls around, the only thing you sweat is the game. From the opening drive to the final snap. Stay locked into the game and enjoy everything Monday Night Football brings.

• 1:03:22Speaker 01

  It's not delivery, it's DiGiorno.

• 1:03:30Kate Shaw?

  So we have one more topic that we want to cover before we let Ellie off the hook for the rest of the night, and that is SCOTUS reform. Okay. So you all in the audience are here on a Saturday night to talk SCOTUS. Why? Because, because Melissa. Because we love you. Oh, thank you. We love you too. Thank you. But also, I think because you understand that something has gone very, very wrong at the Supreme Court. And yet, although you all know this, too many people still don't realize it. And there are definitely going to be a lot of end of term stories praising the court

• 1:04:10Kate Shaw?

  for slowing the pace of these insane pro-Trump decisions on the shadow docket, likely for rejecting the flagrantly unconstitutional birthright citizenship executive order and the lawless attempt to fire Fed Governor Lisa Cook. So it'll be great if those predictions just there come to pass, but this court will still be an enormous problem in need of a solution. And you all can be key messengers in helping push for a solution and in helping to bring people about to understanding that this court is a genuine threat to a functioning democracy. May I allow you to retort?

• 1:04:50Speaker 06

  Obviously. Obviously. I think court reform is the most important issue facing our country, and it's the most important issue in the 2026 election, the 2028 election, the 2030, like, it is, it is the thing. And the reason why, and I'll take it back to Louisiana versus Calais, the decision that, as you've all talked about, killed the Voting Rights Act. The historical doppelganger for Louisiana versus is Plessy v. Ferguson, right? It's the, that's the case that affirmed segregation, right? How do you get over Plessy? Right? How do you, how do you overcome the segregation in Plessy? Well, you have to have the 1964 Civil Rights Act. You have to have the 1965 Voting Rights Act.

• 1:05:33Speaker 06

  You have to have the 1968 Fair Housing Act. But none of that happens before you have the 1954 decision in Brown v. Board of Ed. You change the court first. And then you have the ability to pass all the legislation that you want to fix the problem. Changing the court doesn't fix the problem. It opens the door so the problem can be fixed. If you don't control the court, if you had in 1964, the same court that you had in 1896, when Plessy was decided, guess what happens to the Civil Rights Act? It gets ruled unconstitutional. Guess what happens to the Voting Rights Act? It gets John Roberts. Guess what happens to the Fair Housing Act? It gets Clarence Thomas.

• 1:06:18Speaker 06

  Like, you don't get these, these laws, these, these pieces of legislation unless you change the court first. And that is the message that I try to give to every person, especially young people. And I say this all the time. I can go to a bar in Texas. I mean, I don't like to go to Texas, but like when I do, I go to Austin. But I can go, and then, and then like just fly out like I'm not trying to stay. But I can go to, to a random conservative person in Texas and talk to them about the Supreme Court, and they will tell me, "Well, I don't know about no, but I know I gotta get my guns. I'm gonna keep my guns. I gotta keep my court." They know that, right? You go to a Denver, I can go to Brooklyn and I can find the crunchiest hippie, hippiest

• 1:07:02Speaker 06

  Birkenstock-wearing guy at a beer garden. Growing axes? Right? And he can be like... Oh my god dude, are you using a plastic straw? You know, that's so bad, man. Like, microplastics are terrible for the envi... I'm like, "Yeah, I know." "We have to have like a Green New Deal." "Yeah, so we have to do court reform, right?" Like, "What? Court what?" "No, man, we just need a Green New Deal." Like, "You don't get a Green New Deal if you don't reform the first... the court first." Because if you don't do it first, then the Green New Deal gets overturned before breakfast by these people. Gorsuch and Alito fight over who gets to write the opinion punting the Green New Deal into the sun. So, if you care about any of the brilliant, wonderful legislative fixes that you can think of

• 1:07:45Speaker 06

  to restore abortion rights, to restore the Voting Rights Act, to do... to end gerrymandering, none of that matters if you don't take control of the Supreme Court first.

• 1:07:57Leah Litman?

  Preach. You just preached a whole word. That was a whole... that was a whole word. Do you hear this?

• 1:08:04Kate Shaw?

  Ellie is...

• 1:08:05Leah Litman?

  Tell your friends! Tell your friends! Like, seriously, we... remember that time we went to the White House? And we were like, "Are you guys gonna talk about..." Lee is having PTSD.

• 1:08:14Kate Shaw?

  Yeah, I just cannot relate to that moment.

• 1:08:16Leah Litman?

  We were at the White House, and we were like, "Are you guys gonna talk about court reform in the upcoming elections?" This was after Dobbs. They're like, "We don't think people can understand it." I'm like, "You know what they can understand? Not having rights."

• 1:08:27Kate Shaw?

  Yeah, yeah, yeah. We have a ways to go in kind of getting people on the legal and political left to understand how central the Supreme Court is. But I do think that Ellie is going to help make hot Supreme Court reform summer happen. And so can all of you.

• 1:08:46Leah Litman?

  Thank you.

• 1:08:50Leah Litman?

  Nothing but respect for my Chief Justice, Ellie Mistol. That is the Supreme Court reform that we need.

• 1:09:00Melissa Murray?

  I mean, Ellie Mistol replacing Clarence Thomas.

• 1:09:06Leah Litman?

  Manifest it.

• 1:09:07Melissa Murray?

  You heard it here, folks.

• 1:09:11Melissa Murray?

  All right, let's go very quickly through some legal news. We are going to start first with some legal news made possible by John Roberts and Co. So, first of all, we're going to begin by laying the blame for the return of the Insurrection of Slush Fund right at the feet of John Roberts and Co. Hear us out, all right? So, in the immunity decision issued a few terms ago, the court told President Donald Trump that he had unfettered plenary authority over investigations, prosecutions, and the DOJ. What could go wrong? The Slush Fund for January Sixers is how the president, in tandem with his auditioning Attorney General Todd Carte Blanche, have wielded that power.

• 1:09:56Leah Litman?

  Yeah, and then, second, in a bunch of shadow docket orders, the court turned its cheek to very substantial allegations that the Trump administration had defied lower court orders, even going so far as to grant the administration extraordinary and discretionary relief from orders it had very likely defied. So, what did Todd Blanch do this week? He said "fuck you" to the federal courts, just as Emile Bové, now the Dark Lord of the Third Circuit, but previously a high-ranking official at DOJ, had allegedly encouraged the administration to do if and when courts tried to stop them.

• 1:10:39Kate Shaw?

  And, in one of the cases challenging the Slush Fund, the Eastern District of Virginia concluded the case was not moot and enjoined the administration from moving forward with the Slush Fund unless Blanch submitted a declaration saying the Slush Fund was indeed dead. Well, guess what Carte Blanche decided not to do? To submit that declaration. Instead, the department submitted a filing stating that such a declaration was unnecessary. It was frankly rude for the court to even ask. Quote, literally from the pen of John Roberts in the immunity decision, quote, "Such declarations are unnecessary, and the compelled testimony of senior officials from the executive branch implicates serious separation of powers questions."

• 1:11:22Leah Litman?

  Oh, really? These are the separation of powers questions you have. I mean, this is giving a ton of Cherie Whitfield, "Who gon' check me boo vibes," right? Yes, if you've been at this pod before, you know. It does make you wonder, why would Todd Blanch not want to submit to a federal court in writing, under penalty of perjury, a statement saying that the insurrectionist slush fund had been dropped off at a local fire station in a lockbox and was now abandoned? Why wouldn't he do that? Why would he be afraid to do so? Is it possible that maybe the insurrectionist slush fund is going to make a comeback like

• 1:12:06Leah Litman?

  Jason in Friday the 13th? Is this possible? Yeah. It also does make me wonder, though, why is he writing things in briefs that he won't swear to, under penalty of perjury? Like, what are these legal briefs to you glorified blog posts? It's just bananas.

• 1:12:31Kate Shaw?

  Okay, a little bit more legal news to cover. And one is, I think, maybe complicated but mostly happy news, which is, we did get the restoration of the John F. Kennedy Center for the Performing Arts. Let's go. I mean, there was something quite profound about kind of getting to see the removal of Trump's name from the Kennedy Center. You know, this kind of ruling and then its implementation was honestly a concrete reminder that the courts, and in particular, the lower courts, do matter. And it did feel like this kind of tiny taste of what it could be like post-Trump, as we try to undo the damage, physical, structural, and constitutional, that this administration

• 1:13:16Kate Shaw?

  has wrought. And also, how hard they're going to fight to prevent that, as evidenced by the fact that they put tarps up to cover the removal of the name, and it's still not entirely clear that all of the letters are gone, because we haven't been able to confirm it with our own eyes.

• 1:13:35Melissa Murray?

  All right. There's so much news to cover, and we don't have all night in this theater. Let's just be honest. We've got to let you guys go home at some point. But we could not let you leave without covering the fact that our president, the commander in chief, lost a big ol' war this week. Woo! You think I'm talking about the war with Iran and the memorandum of understanding that basically gives Iran money to rebuild, allows them to continue operating the Strait of Hormuz, and maybe eventually charging fees for it, and maybe continuing to have nuclear capabilities, all things that we said we got into this war to stop. I'm not talking about that war.

• 1:14:19Melissa Murray?

  I am talking about the president's war with Mother Nature and possibly the color wheel. Right? Yes, listeners, this is a reflecting pool subtweet. Yes.

• 1:14:34Kate Shaw?

  We cannot get enough of this story, can you? Like, it's just too good. So, as we have obviously talked about, and I'm sure you're all aware, Donald Trump undertook a $14 million renovation/defacing defilement of the reflecting pool this spring, only for said reflecting pool to be immediately overtaken with algae.

• 1:14:55Melissa Murray?

  Sometimes nature is healing.

• 1:14:57Kate Shaw?

  Yes. But obviously, the swamp story got even swampier this past week when The Times reported that a contract to purify this algae-ridden reflecting pool was awarded outside of the competitive bid process that is standard for most national park services' contracts to a company held in trust by a Trump friend and donor who also happens to be the president's neighbor at Mar-a-Lago.

• 1:15:19Melissa Murray?

  And because it always gets worse, said recipient of the $1 million no-bid contract had previously been convicted for bribery. And the piece de resistance is that the name of this company is, and I'm not making this up, Green Water Services.

• 1:15:46Melissa Murray?

  They tried to tell you.

• 1:15:50Melissa Murray?

  All right, so to close out this segment, I think it's time to offer some unfiltered thoughts about the reflecting pool. Leah, why don't you go first?

• 1:16:00Leah Litman?

  I love this. This is the new MAGA, "Make algae great again." I did wonder, did Green Water Services sign a memorandum of understanding with the algae in Versailles? Right? Like unconditional surrender to the algae? Just like the memorandum of understanding is a worse version of the deal that Barack Obama made with Iran? This, Green Water Services, is a worse version of a Green New Deal. This is their Green New Deal.

• 1:16:45Melissa Murray?

  Yeah.

• 1:16:46Leah Litman?

  That's all I've got.

• 1:16:47Melissa Murray?

  So, in addition to turning the reflecting pool Shrek Green, there's also the fact that Green Water Services was also charged with refacing the pool. So they had to repaint it. And now it seems like the paint is peeling. Like, the reflecting pool was fine. There was nothing wrong with the reflecting pool. Right? I mean, this again is the president's edifice complex, writ large. It's like, "Sir, we didn't need this, but if you're gonna pick someone to do it, maybe pick someone who's good at his job." But you could say that about the whole cabinet, right? If you're gonna do it, pick somebody who's good at his job.

• 1:17:28Kate Shaw?

  And I mean, you know, just a sort of prosaic observation, but I think an important one, is that we do have, you know, as like uninteresting or unsexy as it is, like we have processes in place for a good reason. Like, there's a bid process to make sure that people who get these contracts know what they're doing. And if there is a silver lining here, I think that government processes and government workers can get a bad rap, I think, in a cross-ideological fashion. But like, maybe the complete hash that these unqualified, like, lackeys have made of the reflecting pool, and, oh, the federal government, writ large, will remind everyone before it is too late of the value of a federal government that is merit-based and that actually does the work of the laws and the people. So, again.

• 1:18:13Leah Litman?

  Kate.

• 1:18:15Kate Shaw?

  That is my hope for the reflecting pool.

• 1:18:16Leah Litman?

  Kate, I honestly didn't think you could do it, but you have managed to wring a silver lining out of the reflecting pool. And I applaud you.

• 1:18:26Kate Shaw?

  And then if we could all get a little piece of the blue paint peeling from the bottom just as a souvenir, I think we'll be doing all right.

• 1:18:31Leah Litman?

  This was a DEI contract, a true dicks, ex-husbands, imbeciles contract. Absolutely.

• 1:18:39Kate Shaw?

  And we are seeing the effects.

• 1:18:41Leah Litman?

  Yes, and just to take it back to the Supreme Court for a second, you know, Kate, you were talking about how government can and should be full of experts based on merit. When, not if, the Supreme Court overrules or just limits Humphrey's executor and gives Donald Trump the power to control who heads all of these agencies, they are going to be making it possible for him to install people at these agencies who will engage in this kind of grift and make government just a spoils system rather than a meritocracy run by experts. So.

• 1:19:17Melissa Murray?

  I love the Gilded Age.

• 1:19:19Kate Shaw?

  The re-Gilded Age. Good news, it's coming back.

• 1:19:21Leah Litman?

  Yeah. Okay, so as we always do at the end of our episodes, we will offer our favorite things and then we will have one favor to ask of you. So, I will start with the favorites. My favorite, one of my favorites, was Barack Obama's speech at the opening of the presidential session.

• 1:19:45Leah Litman?

  Specifically, the part where he shouted out, quote, "Those ordinary people in the Twin Cities who braved frigid temperatures, risked their own safety, standing shoulder to shoulder to look out for their neighbors and sometimes for strangers because they knew that was the right thing to do."

• 1:20:08Leah Litman?

  We actually have some people in the audience tonight from Minnesota. So, wanted to shout them out as well. One other, just small thing, sappy note. So, this past week, the three of us learned that an article that we have co-written, that we've referenced on the podcast, but haven't actually released into the wild, was the recipient of the American Constitution Society Kuddehi Prize for Regulatory and Administrative Law. And, in like a very rare against-type, silver lining, positive message for me,

• 1:20:52Leah Litman?

  I just wanted to encourage everyone to find their own people. Like, women working together is incredible. Professional networks of women, female friends, are the best. And I feel like... One of the reasons why, you know, I wanted to, we wanted to start the podcast, I'll just speak for myself, is like this persistent feeling that women are just undervalued in the legal profession, the legal academy. And so, creating this space where we could do our own thing and do it for ourselves

• 1:21:35Leah Litman?

  was just a wonderful opportunity. And I am just very grateful for all of the things that have come from it.

• 1:21:46Kate Shaw?

  Amen. Second to everything Leah just said. And she mentioned President Obama's speech at the opening of the Presidential Center. I will also mention Michelle Obama's speech there.

• 1:22:00Kate Shaw?

  It was extraordinary. Watch it, you'll cry, I am sure. It'll get both joy and trauma that we have come so far from sort of what we saw on display in the opening of that center. And just on a quick personal note, so all the former administration staffers from the Obama administration were invited to go to the opening last week. And I was a lawyer in the administration and I got an invitation and I had all of these like end of school year obligations with my kids and I didn't think I could swing it and I, so I didn't go. And so I've watched with a heavy dose of FOMO, all of the incredible videos and images from the center. But I mean, I'm kind of glad I just got to experience it the way everybody else did. And I have to say that in the same way, we started with the Knicks, well, and the show with the Knicks, but the victory and the kind of ensuing joy felt like it restored some balance in the universe.

• 1:22:45Kate Shaw?

  It did feel like the opening of the Obama Presidential Center in Chicago was like the real 250th anniversary the country deserves. We have been better before. There is no guarantee, but we can be again. It's going to take a lot of work, but I did feel a lot of optimism in the last week. And even though I probably feel more than, than, than my, my, my co-host at times, it was much more than even I have felt in a long time. And, and I'm grateful to the Obamas and the folks who put all that work into making that center such an extraordinary place. Go see it if you haven't. That's all. Maybe one related piece I'll say, since the end of our show is often a Jamel Bouie

• 1:23:28Kate Shaw?

  appreciation space, he had a recent column, "Obama and Mamdani Show How It's Done", which I think just sort of encapsulated a lot of the themes I just shared. So those are my favorite things.

• 1:23:37Melissa Murray?

  So going last means that you're pretty much plus-one-ing much of what was said before. So I will plus-one. I really enjoyed the Obama speeches at the opening of the Obama Presidential Center. I loved seeing Malia and Sasha all grown up.

• 1:24:00Melissa Murray?

  So cute. All of this, I thought, was an antidote to the nonsense that we saw on the White House lawn earlier this week. And I don't want to bring down the vibe, but it's Juneteenth, so I'm going to call it out. I know a lot of people were really incensed about Josh Hockett's vile remarks about Mrs. Obama. And I'm just going to implore you to let it go. That man has a painted-on beard and looks like a thumb. He's got bigger problems. He's got bigger problems. Forget him. If it really makes you mad, and again, this is not me doing a Michelle Obama, "When

• 1:24:39Melissa Murray?

  they go low, we go high," because I firmly believe when they go low, we go to hell. But it just shows how the Obamas, who are classy and elegant and brilliant, just live rent-free in these people's heads because they know they will never be like the Obamas. They will never be like the Obamas. And it kills them. And it kills them. So if you really want to get them where they live, instead of talking about what he said, go to Netflix, download Becoming, and put it on a perpetual loop for the whole weekend,

• 1:25:19Melissa Murray?

  which I may or may not have done, and allow it to go to number one on the Netflix chart. Because that, listeners, is how you clear a bitch. Okay? By being elegant, unbothered, successful, moisturized, and on top of the Netflix charts. And I just want to shout out some folks who worked with me recently. The audiobook for my recent book, "The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader," the audiobook was recently recognized by Kirkus Reviews and Audiophile Magazine with

• 1:26:04Melissa Murray?

  an Earphone Award for Outstanding Contributions to the Audiobook Media. And... [applause]

• 1:26:13Melissa Murray?

  Thank you. So I read the annotations, but I really want to shout out the great Dion Graham, who actually read the text of the Constitution, was my co-narrator on the audiobook. And I especially want to thank Karen Pearlman and the rest of the audiobook team at Simon and Schuster, who are here tonight for their outstanding work. I could not have done this without you. You are fantastic. Thank you.

• 1:26:42Melissa Murray?

  And of course, New York, we couldn't have done all of this without you. So this is the greatest city in the world.

• 1:26:56Melissa Murray?

  Striktes are the greatest audience in the world. And we have one last favor.

• 1:27:03Melissa Murray?

  We have one last favor to ask. In addition to downloading us on all of your favorite podcast mediums and giving us a five-star rating, because if you don't, we are going to assume you are not a modern reader.

• 1:27:16Kate Shaw?

  And also, the next live show, we got to shout out the next live show.

• 1:27:18Melissa Murray?

  And buying tickets for the next live show, which is going to be in November in Washington, D.C. at Crooked Con. It's going to be so fabulous.

• 1:27:28Melissa Murray?

  But before you do all of those things, can we take a selfie with you? Yay!

• 1:27:35Melissa Murray?

  All right. Thank you, New York!

• 1:27:49Leah Litman?

  Striktes Gertney is a Crooked Media production. Our show is produced by Melody Raul and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Heathcote, Johanna Case, Kenny Moffett, Eric Schut, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.

• 1:28:21Speaker 01

  Monday night brings one more big matchup to settle into. And when every play matters, the last thing you want to do is step away to figure out dinner. That's where DiGiorno comes in. Get a DiGiorno pizza ready before kickoff, then enjoy restaurant-quality taste fresh from your own oven while you stay locked into every play. Stock up on DiGiorno over the weekend so when Monday night rolls around, the only thing you sweat is the game. Shop now at the link in the episode description. It's not delivery, it's DiGiorno.