Will SCOTUS Let Big Oil Off the Hook?

The first week of the new term has come and gone, and things are heating up… literally. Kirti Datla, director of Earthjustice’s Strategic Legal Advocacy Program, joins Melissa and Leah to discuss the term’s biggest climate case: Suncor v. Commissioners of Boulder County. They break down whether Boulder County’s lawsuit against oil and gas companies can move forward, or if the Court will shut it down based on federal law. Then, they dive into Samuel Alito’s big, bad book press tour and his reflections on Dobbs—including the friendships he says he lost along the way. Plus they cover Kash Patel’s engagement, Kimberly Guilfoyle’s corruption controversies, and Pete Hegseth’s announcement of a public execution. Finally, Melissa talks with Professor Bernadette Atuahene about her new book: Plundered: How Racist Policies Undermine Black Homeownership in America https://bookshop.org/p/books/plundered-how-racist-policies-undermine-black-homeownership-in-america-bernadette-atuahene/70ed2581a7936ff0?utm_source=google&utm_medium=cpc&utm_campaign=dsa_nonbrand&utm_content=%7Badgroupname%7D&utm_term=dsa-19959388920&gad_source=1&gad_campaignid=12440232635&gbraid=0AAAAACfld41ldHaMvqKWUuGwbkgDtT7P_&gclid=CjwKCAjwoaLWBhAWEiwAnyitu1XB6ewHMmdHPN3t8jz3mU-L19XiuPVUoJm-SuADfNCK52gBcgpz0hoCZ70QAvD_BwE. Favorite Things: Leah: So Unexplained: Justice Alito’s Non-Responsive Emergency Docket Defense https://www.stevevladeck.com/p/256-so-unexplained-justice-alitos?utm_campaign=post&utm_medium=web | Steve Vladeck’s Substack: One First https://www.stevevladeck.com/ | Jon Ossoff V. Mike Collins Debate https://www.youtube.com/watch?v=PXC7WSF0Qnc | Marquette Poll https://today.marquette.edu/2026/09/marquette-law-school-poll-finds-approval-of-united-states-supreme-court-declines-from-47-to-43/ Melissa: Cherry Baby by Rainbow Rowell https://bookshop.org/p/books/cherry-baby-a-novel-rainbow-rowell/aab2e6dbc64b55b2?ean=9780063380264&utm_source=google&utm_medium=cpc&utm_campaign=%7Bcampaignname%7D&utm_content=6443417794&gad_source=1&gad_campaignid=16235479093&gbraid=0AAAAACfld4088GP66ogXELlKZlarfwL7Y&gclid=CjwKCAjwoaLWBhAWEiwAnyitu0X7Izfu_FtKaBh73l-pwyXaAl951P25Es6Vts1BxJIkVBlekYpHmBoCLkYQAvD_BwE Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. It's back to school and back to SCOTUS season. And this year, 5 million children across Texas are going back to the 10 commandments in their classrooms. What is that you say? Yep, Texas politicians passed a law requiring the 10 commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for Separation of Church and State, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court gets its hands on this case. Don't let this case disappear on the cert docket and don't let it sneak under people's radar.

• 0:35Speaker 01

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

• 0:40Leah Litman?

  That's Texas public school parent Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish and Rebecca is Christian, and their kids are in Texas public schools. The story they tell in this video is moving, and we hope that everyone hears it and shares it, too. There is a human cost of Christian nationalist policies like these 10 commandments laws and the decisions the Supreme Court hands down. These 10 commandment laws, for example, don't exactly help everyone feel welcome at public schools as they should. Visit au.org/10c to learn more about this case and how you can help join the fight to protect church-state separation.

• 1:16Speaker 02

  Some days, it's the little things you look forward to most. And with Pepperidge Farm's thoughtfully crafted cookies, there's always something worth savoring. Maybe it's a Milano made with premium chocolate between two delicate biscuits, a Sausalito baked with rich milk chocolate chunks and macadamia nuts, or the simple buttery goodness of a chestman. So pour the coffee, find a comfy chair, and take a moment to treat yourself to a cookie or two. Pepperidge Farm, have a little taste.

• 1:47Speaker 03

  Mr. Chief Justice, may I please report?

• 1:51Speaker 03

  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.

• 1:59Speaker 04

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

• 2:29Leah Litman?

  Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts for today. I'm Leah Litman.

• 2:36Melissa Murray?

  And I'm Melissa Murray. And yes, it is just the two of us, which is going to make for a fairly chaotic episode, as you know. But that seems to be exactly what we need to recap the first week of the new Supreme Court term and the first week of one Justice Samuel A. Alito's new book slash polemic slash Jeremiah being released unleashed on the public.

• 3:03Leah Litman?

  Slash word vomit. But the first week of the new term happened, and I can't say the justices exactly covered themselves in glory or gave us any indication that this year would be better than the last.

• 3:13Melissa Murray?

  So, folks, that means we are going to spend most of our time recapping the big climate case that the court heard last Monday. That's Suncor versus Commissioners of Boulder County. And we are going to be joined by a very special guest. Kirti Datla of Earth Justice will join us for that discussion. And we are going to spend a huge chunk of time on court culture and specifically one Samuel A. Alito's big press tour accompanied by a book slash polemic slash Jeremiah slash word vomit, which we regrettably not only read, but also saw the fallout from. So get ready.

• 3:51Leah Litman?

  Then at the end, we will bring you an interview that Melissa did with Professor Bernadette Etwahini about her book, Plundered: How Racist Policies Undermine Black Home Ownership in America. Also, just, I don't know, trigger warning, if I sound harsh or raw on this episode, I'd like to write it up to the fact that this past week, I've had a fucking exposed nerve that's causing all sorts of nerve pain in my face. No, actually, this is like an actual medical thing. But also, the people on the receiving end of my strays, like Sam Alito, are going to deserve it. So both and, shall we soldier on?

• 4:21Melissa Murray?

  Let's soldier.

• 4:23Leah Litman?

  We'll start with recapping Suncor, which, as a refresher, is about whether Boulder County's lawsuit against oil companies will be allowed to proceed to the next stage of the case or whether instead the court will stop the suit in its tracks because something in federal law, although they're not quite sure what, and neither are the oil companies, but they do know that something in federal law TBD slash TK, that, you know, note to yourself you make while writing to come back and insert it later, they know that something TBD slash TK does bar this lawsuit. They just need to figure out what that thing is.

• 4:55Melissa Murray?

  Sounds legit. So Boulder County alleges that several oil companies' marketing practices around greenhouse gas emissions contributed to climate change that was harming Boulder, in part by damaging the county's water supply. So to help us and probably do also help this court, as well as the oil companies, sort through what justices Neil Gorsuch and Elena Kagan called a complicated case, we are delighted to be joined by our special guest, friend of the pod, Kirti Datla, the Director of Earth Justice's Strategic Legal Advocacy Program. Welcome back to Strict Scrutiny, Kirti.

• 5:30Speaker 06

  Thanks so much for having me.

• 5:31Leah Litman?

  Thanks for joining us. So maybe let's do it this way. Melissa and I are going to start out by summarizing what we think are the moving parts of the case. So in some ways, this is just a standard tort case. If someone makes a product that harms you, you can sue them. If someone deceptively markets a product that harms you, you can sue them. So the city of Boulder sued some oil companies, saying, "You're making a product and deceptively concealing its downsides, and that's harming us pretty standard fair."

• 5:58Melissa Murray?

  Except that they are suing, wait for it, oil companies over climate change and greenhouse gas emissions. And that, my friends, is a bat signal to all of the Republican climate change hoaxers to come out in full force. So the oil companies launched a bunch of arguments about why this suit should not be allowed to proceed.

• 6:18Leah Litman?

  And again, as best I can tell, and again, Kirti, please correct me if I'm wrong, is that the oil companies with the support of the Trump administration are saying as follows. Something about the federal constitution, again TBD slash TK, but something about the federal constitution means that states can't use normal state law, including tort law, to address the harms from climate change. And/or maybe/or, but also maybe and because they're not quite sure, the Clean Air Act, the statute that is supposed to be about protecting clean air from polluters, that statute actually forbids state efforts to protect clean air from polluters because textualism and big oil. And again, as best I can tell, the oil companies were floating something like the following theories about why the Constitution limits states' ability to pursue tort litigation here.

• 7:03Leah Litman?

  Maybe it's the equal sovereignty principle that precludes this. Maybe it's the principle against extraterritoriality. But maybe it's something like, I don't know, BMW versus Gore's substantive due process principle. Am I missing anything?

• 7:17Speaker 06

  I mean, if you're missing something, the justices were too. Like, as you said, Justice Gorsuch called Suncor's theory complicated not once but twice. Justice Kagan did too. Justice Barrett called it slippery, which I enjoyed. And Justice Kavanaugh, at one point, just said, like, there's a lot of constitutional theory being tossed around. So I think they were all kind of trying to figure out.

• 7:38Leah Litman?

  Way above his pay grade, but yeah.

• 7:39Speaker 06

  Yeah, like, where is this coming from? What are you saying? Very basic questions that it seems like argument is kind of late to be answering.

• 7:47Leah Litman?

  It's like a faculty workshop, right? Like, you're working out your idea with some of your colleagues.

• 7:52Melissa Murray?

  Deputy Solicitor General Sarah Harris invoked the court's decision in BMW versus Gore. That decision limited punitive damages awards in tort cases. And it made it pretty clear that this case is partly animated by hostility to tort litigation and that the federal government is basically inviting the justices to drill that hostility even further into the Constitution. So this is kind of a twofer. You can serve your big oil masters and stick it to tort liability at the same time. What's a federal government to do? It's going to keep going. Drill, baby, drill.

• 8:27Leah Litman?

  Yeah. So several justices noted during the argument that oil companies seem to be toggling between different theories, you know, as you were suggesting, Kirti. But one theory the oil companies did seem to be pushing is supposedly about extraterritoriality. So I guess what is that extraterritoriality principle as best you heard it explained? And why is that principle problematic?

• 8:49Speaker 06

  Yeah, I mean, I guess problem number one is that it's made up. So like, I think.

• 8:55Leah Litman?

  Hasn't stopped them before, but go ahead.

• 8:58Melissa Murray?

  Can I show you the immunity decision, Kirti?

• 9:01Speaker 06

  You guys are like fond of saying there's no, like, executive privilege clause in the Constitution. There's also no extraterritoriality clause in the Constitution, but like, hasn't stopped Suncor. So I think where you started is a helpful place to start. And actually, the chief justices' questions to Suncor's lawyer and the US's lawyer illustrate this pretty well. And he said multiple times, basically, like, everybody should agree at a minimum that states have the power to protect their citizens from harm through tort law. This is like basic first year tort law. If a product is made in California and it blows up in Texas, the person in Texas can sue. And this is true even when there's like tons and tons of harm to a lot of people, like opioid litigation, the tobacco litigation, all this stuff came up at argument.

• 9:47Speaker 06

  And there are limits to these kinds of suits, but they come from specific places in the Constitution. Like, the due process clause says you have to have personal jurisdiction over defendant, otherwise it's unfair to bring them into court. But there isn't, as we just said, like, a free-floating extraterritoriality principle, either in the Constitution or in the law. And I think this gets like hit on multiple times in the arguments because various justices ask Suncor's lawyer to say, like, where does this come from? And he keeps getting pressed. And at some point, he actually says, like, yeah, we are making these two constitutional arguments. One's about the plan of the convention, one's about extraterritoriality, but actually, they just boil down to the same thing, which is what he refers to as equal footing, which I guess is like another way to say.

• 10:30Leah Litman?

  I'll get to that one in a second.

• 10:33Speaker 06

  Yeah, but like, I don't really know what to do with that if there's no clear answer for where it comes from, other than to say what I started with, which is made up. And then I guess problem number two, which is probably directly related to problem number one, is like, when you're making things up, it's hard to say how they'll work in practice.

• 10:49Leah Litman?

  That is one of the dangers.

• 10:50Speaker 06

  Yeah. So like, what's the line between a tort suit and even a really big tort suit and this case? And this question gets posed multiple times. And at some point, Suncor's lawyer in response to Justice Kagan just says outright, yeah, air and water are different. But that's not really an answer to like, how do we draw a line in this case that will raise a bunch of questions in the future? How do we draw a line in this case that doesn't upset tort law that everyone seems to think should exist without these kinds of restrictions? And so, again, it's just like an answer to this case in search of a constitutional theory that has like no clear principles or limits.

• 11:24Leah Litman?

  Someone did think that air and water pollution are different is in fact, an argument. No points for guessing who will get to that in a little bit. But that plan of convention line is so frustrating because this is a phrase the court has just started uttering in its sovereign immunity jurisprudence, where it just declares that it is in the plan of the convention that the federal government can sometimes authorize suits against states. Now, like, where is that in the plan? Where is that in the text? I don't know. But it's basically become a permission structure for them just to announce rules that aren't in the Constitution, but they just know are there anyways. But since you mentioned equal footing, like, that is kind of my trigger. I actually wrote my job talk paper for academia on equal sovereignty or equal footing.

• 12:06Leah Litman?

  Equal sovereignty is, as its name suggests, this made up constitutional principle that says all states entered into the Union as equal sovereigns on equal footing. If you're wondering, what does that have to do with states' ability to regulate climate? I do not have that answer for you. I can report that the Republican appointees invoked equal sovereignty to kill part of the Voting Rights Act back in 2013 in Shelby County. So I guess they figured slap that baby, she can take another. Like, let's take this car out for another spin and use it to kill state efforts to deal with climate change, too. One problem with all these theories, as you were saying, is that they are nowhere in the Constitution. So here is Justice Kagan summing up that point.

• 12:44Speaker 02

  So there's a default rule that was part of the plan of the convention. And I suppose it's like, wow, like, where is the text for that? Where's the support for that? Where's the precedent for that? Where's the anything for that?

• 12:59Leah Litman?

  Kurti, can you explain how the oil companies' arguments, like, based on any constitutional principle, whether we're talking extraterritoriality, equal sovereignty, due process, plan of the convention, whatever, like, how these arguments invert federalism?

• 13:13Speaker 06

  Yeah. I mean, I think it's pretty basic. The classic story that we tell about who gets to do what as between the states and the federal government is that the states have the power to address harms that their citizens feel in their state through what's known in the law as traditional state police powers. But that covers, like, again, the product blowing up, the environment, crime, all of that stuff. And the Supreme Court actually relies on this principle when it's cutting back on federal power, like in Sackett versus CPA, which is a case about the reach of the Clean Water Act, where the court says that regulating water pollution and harms from water pollution is traditionally something that the states do. And so we're wary, we, the court, it's not we, everyone else is wary when the federal

• 13:56Speaker 06

  government tries to do too much there. And this case is like the opposite of that, where Suncor and the US are arguing that states and local governments shouldn't be able to protect their citizens in the circumstances of this case. And the reasons they give for that are like totally disconnected from the, again, very basic idea that this is a traditional role of states, that we should be hesitant to displace. I think they argue that because there are like so many sources of greenhouse gas emissions, that a suit even against one oil producer is like actually in disguise, a suit against every oil producer. And so you're like trying to do too much. Or like, because everyone is harmed by climate change.

• 14:38Leah Litman?

  They're cabal. You can't single one out.

• 14:41Speaker 06

  Yeah.

• 14:41Melissa Murray?

  It is giving like Spartacus, like, I am ExxonMobil. No, I am ExxonMobil. Right?

• 14:48Speaker 06

  Totally. Or like, it's giving like, too harmful to solve.

• 14:52Leah Litman?

  Yes.

• 14:52Speaker 06

  Which is a weird, a weird way to think about, again, state police powers being like disabled precisely when they might need it the most.

• 15:01Leah Litman?

  Like, committed tort so big and there's nothing people can do about it. That's the dare.

• 15:06Speaker 06

  Yeah. So it is, as you say, like, really turning this basic principle upside down.

• 15:11Melissa Murray?

  There was one person on the court who seemed very receptive to this whole line of, you know, too big to be caught by the states. And that was one Brett Kavanaugh, who tried to float a theory that, Leah, I actually think this might be your fault. I think you may have handed Brett Kavanaugh this theory on a silver platter in our last episode, when you suggested that the court might just make up a theory like the major questions doctrine, but for climate change. So let's take a listen to Coach Kavanaugh.

• 15:44Speaker 02

  On the tobacco and opioid question that Justice Kagan asked, and she alluded to this, I thought the answer was that this court has consistently said that air and water pollution are different in our federal enclaves.

• 16:00Leah Litman?

  So it's statements like this as to why he's not allowed to sit at the big kid's table at Thanksgiving. Air and water pollution are different is not an argument. It is just an assertion. And the siri atom transition, like during these oral arguments from Justice Kagan to Justice Kavanaugh, when Gorsuch doesn't ask questions, is so rough on my brain cells. Like, here, he is trying to answer her question as if she thinks there is a problem that he can obviously solve with his brain, when we all know, right, he's limited to finger paint. And if I sound like I'm already over Brett Kavanaugh's pea brain on week one of the Supreme Court, I don't think I'm alone. I thought it sounded like Elena Kagan also may have already had it with Kavanaugh's stupidity. He tried to trot out a series of cases.

• 16:44Leah Litman?

  He was alluding to that in that statement about how air and water pollution are just different, and like, we've said so. And he referred to those as a wall of precedent. And Leader Kagan said, I mean, whatever you think about the wall of precedence idea.

• 16:56Melissa Murray?

  I mean, shorter Elena Kagan, stop trying to make the wall of precedence happen. It's not going to happen. I also thought when he kept saying the wall of precedence, that it reminded me of Disney World and the Hall of Presidents. And I was like, oh.

• 17:10Leah Litman?

  He's confusing the two, right? He's probably, he's probably recently took a fun trip there.

• 17:14Melissa Murray?

  But it's all animatronic presidents. What if we just had an animatronic court?

• 17:16Leah Litman?

  Yeah.

• 17:17Melissa Murray?

  And we could reprogram them. That's the court expansion we might need. Okay.

• 17:20Leah Litman?

  So Kurti, you are right at Earth Justice. You do the law of air and water pollution. Is there a wall of precedence that suggests air and water pollution, right, is just beyond the can of states to do?

• 17:32Speaker 06

  Yeah. I mean, it's just like a kind of oversimplification of a series of prior cases.

• 17:38Leah Litman?

  From Brett Kavanaugh? What are you talking about?

• 17:40Melissa Murray?

  No, that can't be.

• 17:42Speaker 06

  Yeah. I mean, there are like cases that say, you know, if a state is suing another state over pollution, like, instead of the states going to war with each other, they're allowed to sue each other at the Supreme Court. And there are cases that say if somebody in one state is suing a polluter in another state, they have to sue under the law of the state where the polluter is. Those are all like pretty specific rules that get kind of crafted together to create this principle of like, air and water are different. But it kind of raises all these, again, raises all these questions about like, when are they different and why are they different? And it, this phrase, like, air and water and their ambient qualities gets tossed around a lot, which I find confusing, because I think ambient in this context just means like things that move.

• 18:26Leah Litman?

  Well, it could also mean they're abstract, like women's ideas, right, about how to run their lives are abstract. Air and water pollution also very abstract slash ambient.

• 18:36Melissa Murray?

  Right. Well, I mean, if it'd just been a jar of air pollution, an ambient jar, it might have been okay.

• 18:43Speaker 06

  Right. Or like ice.

• 18:44Melissa Murray?

  Right. Correct. Correct.

• 18:47Speaker 06

  Yeah.

• 18:47Melissa Murray?

  You sure you need that job at Earth Justice? You don't want to come be the fourth person on strike, certainly, Kurti?

• 18:52Leah Litman?

  So back to this case, you know, Kurti, you had kind of talked about this inversion of federalism, whereas the justices often use this idea of states' police power to limit what the federal government, you know, can do in order to protect the scope of states' authority. Whereas here, right, they are going to limit the scope of states' authority, right? So not usually how this is supposed to work. I do think that part of the problem here in this case that's informing kind of the insanity of this is the absence of the federal government during Republican presidential administrations in this space, and the forced absence of the EPA, you know, the Environmental Protection Agency, because of the Republican-controlled Supreme Court.

• 19:36Leah Litman?

  Like, in a sensible world in which a presidential administration actually attempted to solve real national problems, and a world in which the Supreme Court allowed agencies to solve national problems when Congress had given them the authority to do so, it might make sense to say the Clean Air Act as a federal statute preempts state regulation of air pollution in order to establish national rules, regulations, standards.

• 20:00Melissa Murray?

  That's not real federalism, Leah.

• 20:02Leah Litman?

  Apparently, right? Because like, this is a national problem, right? It might be difficult to pinpoint sources, right? Or like, which source is exactly causing what? But the court has so weakened the Clean Air Act, and Republican presidential administrations so nullified the Clean Air Act and Clean Water Act, like during their terms, that it just seems nuts to say that this law, which, again, Republican administrations nullify, they do not enforce or use to address climate change, and that the Supreme Court has hobbled, somehow prevents states from attempting to address climate change either.

• 20:34Melissa Murray?

  I mean, it is kind of a total mindfuck. I was teaching the Commerce Clause last week, and again, there's so many decisions in the modern Commerce Clause arena that focus on this question of traditional state sovereignty, like making sure the federal government doesn't intrude on state police powers. And here, states trying to do something and, you know, Well, here we are.

• 20:56Leah Litman?

  Turns out the real police power was the courts after all.

• 20:59Melissa Murray?

  There's also an argument here, Kurti, that there isn't jurisdiction in this case for the court to even take it up. So how do you view that issue? And where do you think the justices are going to go? Is this an off-ramp for them?

• 21:12Speaker 06

  Yeah, I think post-argument, it's still an off-ramp for them. And I guess maybe it's worth like backing up and saying what the issue is. But when the court took this case, Suncor and the oil companies wanted it to address this, these like constitutional issues that we've been discussing. But the court added in a question that it was, it's supposed to resolve about whether it can even hear this case at all, whether it has jurisdiction. And at this point, that question basically simplifies down to whether the Colorado Supreme Court in this case issued what's known as a final judgment. And that's like lawyer speak, I guess, for the idea that when the Supreme Court steps in, it's supposed to review the end of the case, like when the case has been resolved. And in this case, that's not actually what happened here.

• 21:56Speaker 06

  The Colorado trial court denied the oil company's motion to dismiss. That's usually an interim order because like the oil companies could win at trial. And then it won't matter whether their motion to dismiss was denied.

• 22:07Melissa Murray?

  Or summary judgment.

• 22:09Speaker 06

  Yeah, totally. Yeah. And so Suncor went up to the Colorado Supreme Court and they said, like, can we invoke an exception? And can you hear this appeal now? And the Colorado Supreme Court did. And so the question in this case is like, is that a sort of hermetically sealed proceeding that creates a final judgment that the Supreme Court can review? Or is that really like part and parcel of the ongoing trial court proceedings and therefore not final? And it didn't really seem like there was a ton of interest in that question and argument. So Justice Thomas asked everybody about it in his kind of like first question period. And then justices, so did Maureen Jackson, asked about it, but there like weren't a lot of follow-up questions. And it sort of seems like it's probably there, that they have to address it to reach the merits.

• 22:54Speaker 06

  And if they can't reach the merits, because there is a recusal here, I guess there's always the potential for something weird to happen when there are eight justices. It's an off-ramp for them to avoid deciding the case and hear it the next time it'll company ask them to.

• 23:08Melissa Murray?

  I want to just like, just flag though, for our listeners, like whether the court takes this off-ramp or not, this is how the oil companies answered the question of why this court, why now, given that other defendants might not be able to get into court in the mine run of cases? So let's take a listen. And I would submit that given the extraordinary magnitude of these cases, where in each of these cases, plaintiffs are seeking billions of dollars of damages, that we need an answer to this question sooner rather than later. And just as a matter of judicial.

• 23:44Leah Litman?

  Cash money. Does this bar, this court take cash?

• 23:47Melissa Murray?

  I mean, that part, right? I mean, like whatever, could it be more plain? Basically, big money gets to take a big leap up the food chain. Big money interests with big money at stake means obviously you get to go to court and be heard, whether it's too early or not. And, you know, if big money and big oil paid for a court, then that court better pony up.

• 24:12Leah Litman?

  They're like the Eric Deeters to Kimberly Guilfoyle's Supreme Court.

• 24:16Melissa Murray?

  I gave you $300,000 and I got nothing.

• 24:18Leah Litman?

  I'm not naive or stupid.

• 24:20Melissa Murray?

  Okay. We're getting ahead of ourselves.

• 24:22Leah Litman?

  And if you did not understand that reference, fear not, it will all be explained by the end of this episode.

• 24:29Melissa Murray?

  It will no longer be abstract. It will be clear. Kurti, were there any other notable observations that we missed that you did not, since you're so deep into this case?

• 24:39Speaker 06

  Yeah, I mean, I suspect you guys missed nothing, but I will say one thing that I love slash deeply hated about this argument is that both Suncor and the lawyer in for the US placed so much emphasis at argument on this case called National Port Producers Council versus Ross, which is a case about the dormant commerce clause, which is another clause that doesn't actually exist in the Constitution and exists as doctrine that kind of restricts what states can do under state law that might have an effect on things that happen outside of the state whose law it is. And Suncor's lawyer at some point actually says he can do no better than National Port Producers to support his extraterritoriality arguments.

• 25:24Leah Litman?

  I'm G, he admitted.

• 25:26Speaker 06

  So wild, because that is a case where the court rejected and attempt to use the same word, the words extraterritoriality, to create like a freestanding, hazy constitutional rule that would allow you to strike down state laws. And the court really seemed to be signaling like, we're uncomfortable with the like making it up tactic. And so we're going to like read our precedents narrow and kind of signal that we shouldn't be doing that anymore.

• 25:52Leah Litman?

  And then the oil companies are like, just do it and be legends.

• 25:55Speaker 06

  They're like, no, but this is a great case for us. And I guess like, I'm going to be maybe a little petty and say like, in addition to the fact, as a methodological matter, this case seems to reject what they're trying to do here. It's also a case, there's like a footnote that it relies really heavily on that Suncor doesn't even cite till its reply brief. So it's like, probably it's not that important and like helpful for you if you didn't bring it up earlier. I don't know. It's just wild. But I think it's like probably emblematic of how strong the case is for their extraterritoriality principle.

• 26:26Melissa Murray?

  So an additional observation, you know, Melissa, I'm sure you had to take more than one drink during oral argument, because as you predicted would happen. Neil Gorsuch made it very clear that he is open to revisiting the important decision in Massachusetts versus EPA. You know, the decision that said EPA had the authority to regulate greenhouse gases. You know, he referred to that issue, that is whether the EPA has the capacity, the authority to regulate greenhouse gases, an issue that Massachusetts versus EPA clearly resolved, as quote, hotly contested, and said he would, quote, take no position on it. Sir, this is not your Supreme Court confirmation hearing. All right, let's wrap this up. This was a lot to listen to, not you, Kurti, this oral argument. Any final thoughts here? Anything you want to leave us with?

• 27:08Speaker 06

  No, I just really never want to hear the phrase air and water in their ambient aspects ever again. That's, that's my takeaway.

• 27:15Melissa Murray?

  Kind of like these abstract women. Correct.

• 27:18Leah Litman?

  From your lips.

• 27:19Melissa Murray?

  One final thought from me. Kurti, don't take this the wrong way, but despite the looming climate catastrophe and this court's apparent willingness to facilitate it, I kind of enjoyed listening to this oral argument. I really did. Not the content, obviously, but this was the rare occasion when a Supreme Court oral argument did not make me want to self-immolate. And I really couldn't put my finger on why for the moment. And then it occurred to me, I didn't have to listen to Samuel Alito talk during this oral argument. It was substantively awful, obviously, but somehow it was made better by the fact that he wasn't in my ear holes. And I thought that was a small mercy. And we got to count our gratitude, and that's mine.

• 28:04Melissa Murray?

  I didn't have to listen to him as I listened to all of this.

• 28:06Leah Litman?

  Since we're doing silver lining, small blessings, even without Kate here, I guess I'll leave you with some of what I appreciated about this oral argument, you know, in addition to the absence of oil and gas Alito. And that is Elena Kagan going after male lawyers who do not understand that is she. She is the one with the life tenure. So let's play that clip.

• 28:27Speaker 02

  My clock is ticking, so I want to know the answer to my question.

• 28:31Melissa Murray?

  Emphasis on my.

• 28:33Leah Litman?

  My.

• 28:33Melissa Murray?

  Exactly.

• 28:35Leah Litman?

  My. Like, I'm Elena Kagan, bitch. Put some respect on my name.

• 28:41Melissa Murray?

  Right.

• 28:41Leah Litman?

  Kurti, thank you so much for taking your time and expertise and being willing to bear with our antics. We really appreciate it.

• 28:49Speaker 06

  No worries, just trying to keep up and happy to be here.

• 28:53Leah Litman?

  You more than kept up. We'll have you anytime.

• 29:01Leah Litman?

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• 29:46Leah Litman?

  for me meant getting up to run and then collecting my usual pastries from Yellow. So obviously this year for Crooked Con, I'm packing my Zbiotics Pre-Alcohol so I can celebrate after our live show on Friday and then wake up on Saturday, ready for the panel. Try for yourself today, and if you are unsatisfied, they will refund your entire order, no questions asked. Head to zbiotics.com/strict, code strict, for 15% off your first order. Zbiotics is a partner of mine. Strict Scrutiny is brought to you by Mint Mobile. In life, there are things that are too good to be true. Time shares, those pop-ups that say you want a free iPhone, the Nigerian prince that wants to give you money. You know what's not too good to be true? Mint Mobile, with their premium wireless plans that start at just $15 a month.

• 30:28Leah Litman?

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• 31:12Leah Litman?

  See Mint Mobile for details.

• 31:21Melissa Murray?

  Okay, folks, it's time to dive right into some court culture. And by culture, we mean a Petri dish filled with the festering bacteria of conservative grievance, which means, folks, we need to talk about, not Clarence Thomas, not this time, but it's time to talk about Justice Alito and his new book slash polemic slash Jeremiah and the accompanying promotional tour. Maybe this is why he recused himself from Sung Court to spend some time on the circuit flogging his conservative Jeremiah, I mean, book for the public. Let's begin with some thoughts on the justices' recent interview with CBS, formerly known as the Tiffany Network.

• 32:05Melissa Murray?

  So a good place to start is, per usual, with abortion and Dobbs, because guess what, folks? Shockingly, the author of Dobbs versus Jackson Women's Health Organization has a lot to say about Dobbs and related issues surrounding women, freedom, and the ability to seek lifesaving reproductive care if necessary. Let's start here. In the interview, Justice Alito is asked whether overruling Roe, which the court did in Dobbs, will lead to the overruling of Obergefell versus Hodges, that is, the 2015 case that legalized same-sex marriage across the United States. Justice Alito assures us that, no, the overruling of Roe will not lead to the overruling of Obergefell.

• 32:49Melissa Murray?

  I know I feel reassured. And notably, there isn't a full clip of this on Al Gore's internet, because Justice Alito probably knows what this podcast would do with an audio file of such an assertion.

• 33:02Leah Litman?

  But, well, okay, but yeah, okay. So we're still going to cover what he said about abortion rights and marriage equality.

• 33:08Melissa Murray?

  But we're going to do it in our Alito voice.

• 33:09Leah Litman?

  Well, I don't have an Alito voice. I'm just going to recite what he says.

• 33:12Melissa Murray?

  Do you want me to do it?

• 33:13Leah Litman?

  Okay, you go ahead and do it.

• 33:14Melissa Murray?

  Okay, I'll do it like Arthur the Adverb with my hands clenched. Okay. All right, so do the lead-in, Leah, ready?

• 33:19Leah Litman?

  Okay.

• 33:20Melissa Murray?

  And I'll just, I'll be there.

• 33:21Leah Litman?

  This is what Alito said about abortion rights versus marriage equality rights.

• 33:27Melissa Murray?

  Whereas with Roe, the argument was made that it had an effect on people's ideas, women's ideas about the kind of society that they were going to live in, that this would have an effect on the society. It was much more abstract than what would have been involved had we been asked to overrule Obergefell.

• 33:42Leah Litman?

  Ugh.

• 33:43Melissa Murray?

  Sir, what are we doing?

• 33:45Leah Litman?

  I'm sorry. It was just women's abstract ideas.

• 33:48Melissa Murray?

  Abstract ideas about living.

• 33:50Leah Litman?

  About the kind of society they were going to live in, like whether one that would allow them to live and receive health care, right? Like, when did lives, health, fertility?

• 33:58Melissa Murray?

  Or go to college, or have a job, or take care of their other children.

• 34:02Leah Litman?

  These are instructions, Melissa. They're not real. Women can't really have those things.

• 34:07Melissa Murray?

  You know what is real, Leah?

• 34:08Leah Litman?

  I don't know.

• 34:09Melissa Murray?

  You know what is real, Leah?

• 34:10Leah Litman?

  I don't know.

• 34:11Melissa Murray?

  Drilling, drilling offshore. That's rude. That's not abstract.

• 34:14Leah Litman?

  No.

• 34:15Melissa Murray?

  Theoretical.

• 34:16Leah Litman?

  No, it is not.

• 34:17Melissa Murray?

  Like, these ladies having theories about going to college, having jobs.

• 34:19Leah Litman?

  Ladies' lives are very abstract when you think about it.

• 34:21Melissa Murray?

  Very abstract.

• 34:22Leah Litman?

  Yeah.

• 34:23Melissa Murray?

  Am I even real?

• 34:24Leah Litman?

  Or am I just an abstract entity? Jury's out.

• 34:26Melissa Murray?

  You'd definitely be able to join the FBI if you were a goat, Leah, but maybe not if you're a real woman.

• 34:30Leah Litman?

  Yeah, we're too abstract for the FBI. Or rights, it turns out. That was not all Justice Alito had to say about Dobbs. He had some thoughts about the costs of Dobbs. Let's roll that tape.

• 34:42Speaker 03

  Is there an example that you can think of that a case that required particular courage? Well, the leading example is Dobbs. I think that required courage by all of the justices in the majority. I mean, there are cases that have resulted in the loss of old friendships and... Really? That's something that you have to live with. But you've lost friends over Dobbs? Yes, sure.

• 35:08Melissa Murray?

  And it was all worth it to keep those ladies under my thumb.

• 35:11Leah Litman?

  I was just about to say, right, news, Sam Alito has friends, real buried lead there. But also, the costs are you lost friends, not women lost their lives. I guess friendship, his friends, aren't abstract. They're real, but women...

• 35:27Melissa Murray?

  There are all those friends from the Concerned Alumni of Princeton, but they probably stayed friends afterwards.

• 35:32Leah Litman?

  Exactly.

• 35:33Melissa Murray?

  Yes. Like, no women at Princeton, no woman getting abortions.

• 35:37Leah Litman?

  No. Justice Alito did broaden out his thoughts, you know, beyond abortion and his friends, his so-called friends. He also had some thoughts on the court's role in a constitutional democracy, so take a listen to this.

• 35:50Speaker 03

  We are not part of any political movement, and we are not attempting to further any political agenda.

• 36:00Leah Litman?

  I don't know about you, Melissa, I found that super reassuring, right? Like, all my takes wrong, I take back everything I said, they are not furthering a political agenda. Boom.

• 36:09Melissa Murray?

  Ed Meese would like a word.

• 36:10Leah Litman?

  Exactly. Ed Meese, Ronald Reagan, Paul Weyrich, right, Heritage Foundation, Leonard Leo, right, the entire Federalist Society. Could go on, but we are somewhat time limited.

• 36:22Melissa Murray?

  Nothing to see here, folks. And as to his future on the court, when pressed by the intrepid CBS interviewer, Justice Alito said that he might consider the whole prospect of retirement, but would decide whether to retire every year. He would make a decision every year. And I guess, sure, like, sure, I guess.

• 36:44Leah Litman?

  Yeah. Okay, so that's a brief, kind of, foray into the press tour, but maybe now we can dig into the book, or air quotes, book slash whatever this is. The title arguably says it all. It is "So Ordered: An Originalist View of the Constitution, the Court, and Our Country."

• 37:03Melissa Murray?

  Timeout here.

• 37:04Leah Litman?

  Yes.

• 37:05Melissa Murray?

  Is he an originalist?

• 37:06Leah Litman?

  Well, this is going to end up being one of the real mysteries of the book, Melissa. And so, listeners, we're going to take you on a real whodunit mystery about whether Justice Alito is, in fact, an originalist, or who the real originalist on the court is. So, you ready?

• 37:22Melissa Murray?

  Nancy Drew and the Tale of the True Originalist.

• 37:25Leah Litman?

  Well, Nancy Drew's abstract. Let's think Hardy Boys.

• 37:27Melissa Murray?

  That's true.

• 37:28Leah Litman?

  Yeah.

• 37:29Melissa Murray?

  Correct. Encyclopedia Brown.

• 37:31Leah Litman?

  Right. So I...

• 37:33Melissa Murray?

  Oh, not brown race, can't think of it.

• 37:34Leah Litman?

  Oh, yeah. Encyclopedia White? Is there one of those?

• 37:37Melissa Murray?

  Better.

• 37:38Leah Litman?

  Okay. I did take one for the team and suffered through the entire Alito book.

• 37:41Melissa Murray?

  Benoit Blanc.

• 37:42Leah Litman?

  There we go. Melissa on fire.

• 37:44Melissa Murray?

  Took me a minute.

• 37:46Leah Litman?

  But this book is mostly just a collection of speeches Alito has given, which I had already read, because I'm a glutton for punishment. The book is an edited, updated collection of those essays.

• 37:58Melissa Murray?

  It's an anthology.

• 38:00Leah Litman?

  Yes.

• 38:01Melissa Murray?

  It's an anthology of grievance.

• 38:02Leah Litman?

  Yes, so I justified skimming the book to myself on the ground that I would be putting in the same amount of effort to reading the book as he put into writing it.

• 38:11Melissa Murray?

  Well, you know who wasn't going to just phone it in on this book?

• 38:15Leah Litman?

  I have an idea.

• 38:16Melissa Murray?

  Our friend of the pod, Commander Professor Steve Vladeck, appears to have actually digested this book and doesn't have cyclospora, so he lived to tell the tale. So let me give you some context, listeners. For some reason, Commander Professor Yoda of the Supreme Court, one Stephen I. Vladeck, lives rent-free in Justice Alito's Fox News pickled head. In this book slash polemic slash Jeremiah, Justice Alito calls Steve, among other things, quote, "the most prolific academic critic of the emergency docket."

• 38:51Leah Litman?

  That's actually true. So, props.

• 38:54Melissa Murray?

  That's just one of the things, you know, he calls Steve.

• 38:56Leah Litman?

  Just one.

• 38:57Melissa Murray?

  Alito inexplicably sometimes chooses to refer to Steve as Professor Stephen Vladeck, whereas others, it's Professor Stephen I. Vladeck. Zero idea why toggling between the two, but...

• 39:09Leah Litman?

  Because the "I" in Stephen I. Vladeck stands for, in my head.

• 39:12Melissa Murray?

  Great theory. I did definitely come away from this chapter with the firm impression that Sam Alito is at least a stage-five klinger on Steve Vladeck, the things you learn. Steve had a response...

• 39:23Leah Litman?

  The more you know.

• 39:24Melissa Murray?

  Which is perfection. The first sentence of Steve's response is, quote, "In the pre-publication galleys to his new book, So Ordered, Justice Alito spelled my last name inconsistently," end quote. I cannot recommend Steve's response highly enough. Please, please, check it out.

• 39:42Leah Litman?

  Spell-check it out.

• 39:43Melissa Murray?

  That must-read response aside, I think we have to highlight some of the things to which Justice Alito has subjected us. Shall we dig in?

• 39:53Leah Litman?

  Yes. So, we don't want to, nor will we try to duplicate the ground that Steve Vladeck covered on the shadow docket in his post, but Alito has this petulant line when he purports to answer the question, "What procedures do we follow in these shadow docket matters?" And he says, or writes, quote, "Remember that these are emergency applications," emphasis on emergency. To which one wonders, is that what the ballroom construction case was about, or the government's ability to send people to third countries instead of detaining them? Like, those were emergencies?

• 40:26Melissa Murray?

  It was an emergency because we had to torture people.

• 40:29Leah Litman?

  Right, exactly.

• 40:30Melissa Murray?

  We had to send them to third countries where they might be trafficked. And it was definitely an emergency that the ballroom could not hold all of the people that this administration wants to get in one room to buy crypto.

• 40:40Leah Litman?

  Five-alarm fire.

• 40:41Melissa Murray?

  Five-alarm. Anyway, Alito, obviously, gave an excerpt of the book to his favorite fair and unbiased outlet, that would be The Wall Street Journal, where he encouraged judges who fetishized the idea that originalism leads to results that they dislike, to, quote, "shed this insecure mindset." I almost feel like he's asking them to get therapy, which is, sir, heal thyself first.

• 41:09Leah Litman?

  Well, and that insecure mindset that he's referring to, I think he's talking about you, Neil Gorsuch, and also Antonin Scalia. So Alito even mocks those judges who, quote, "may actually welcome occasions when their originalist analysis leads to results they dislike," because he suggests those judges are so worried that they might be, quote, "subconsciously engaged in results-oriented decision-making and judicial activism."

• 41:37Melissa Murray?

  It's like, just go with it.

• 41:38Leah Litman?

  Exactly.

• 41:39Melissa Murray?

  Don't worry about it.

• 41:40Leah Litman?

  Just do it.

• 41:41Melissa Murray?

  Just go with it. Do it.

• 41:43Leah Litman?

  Do it if it feels good. Do what feels good. Anyway, Justice Alito went on to explain his preferred approach to constitutional interpretation, and it is this. Unless a theory, quote, "is widely viewed as generally producing good results," according to Justice Alito, the theory is no good and should be rejected. Let's roll that back and think about it for a minute. So what he's basically saying is that his favored approach to constitutional interpretation is baldly results-oriented.

• 42:15Melissa Murray?

  Yes.

• 42:16Leah Litman?

  I mean, that's what I got from it.

• 42:17Melissa Murray?

  And that's awesome, right? That's the way it should be, because this was just...

• 42:20Leah Litman?

  Sounds right.

• 42:21Melissa Murray?

  This was just one of the OMG he admitted moments in this book, because...

• 42:26Leah Litman?

  And then there was this point at which he is deriding a New York Times poll that had asked readers to indicate whether they, the readers, agreed with the results of some Supreme Court cases, which Alito protests the poll because, quote, "The whole thrust of this question is fundamentally at odds with the traditional conception of judicial decision making. The issue in Carhartt, that's an abortion case, was not whether the justices personally favored or opposed a ban on late-term abortions." End quote.

• 42:53Melissa Murray?

  Except-

• 42:54Leah Litman?

  Did you read your own book?

• 42:55Melissa Murray?

  Like, my guy-

• 42:56Leah Litman?

  You just said-

• 42:57Melissa Murray?

  You just said you are supposed to be evaluating your jurisprudential theory based on whether it produces good results.

• 43:04Leah Litman?

  But so here's the thing, it's whether he thinks it produces good results.

• 43:07Melissa Murray?

  Good according to him.

• 43:09Leah Litman?

  Okay.

• 43:10Melissa Murray?

  That's the rub.

• 43:11Leah Litman?

  The abstract ideas of the abstract of people, they don't count.

• 43:14Melissa Murray?

  Right.

• 43:14Leah Litman?

  New York Times-

• 43:15Melissa Murray?

  The abstract goodness that women ascribe to reproductive freedom, that's not what he's talking about.

• 43:21Leah Litman?

  Okay, okay. Not that we needed this, but I think we did get maybe a little confirmation. This is debatable, perhaps, but I think we did get some inkling that perhaps Justice Alito is a friend of the pod, or at least hate listening in his spare time. So he writes, quote, "Originalist judging requires a degree of humility, but it also demands boldness, to go where the original public meaning leads and self-confidence in the face of a hostile media and legal academy."

• 43:56Melissa Murray?

  Is that us? Is he talking about us?

• 43:58Leah Litman?

  Here's, here's the thing. I actually think-

• 44:00Melissa Murray?

  It could be so many people.

• 44:01Leah Litman?

  -women's voices might be too abstract for him to hear, which is why Steve Lattick features so prominently, right? Like, he can hear those real voices, those men's voices. The other stuff, right? Like, too abstract, right? Just in a register that the eardrums just do not process.

• 44:18Melissa Murray?

  Like, he doesn't have that dog hearing.

• 44:19Leah Litman?

  Right, exactly.

• 44:20Melissa Murray?

  I bet Kash Patel hears us.

• 44:23Leah Litman?

  Right?

• 44:24Melissa Murray?

  Don't worry, we'll get to Cash later.

• 44:26Leah Litman?

  Cash money!

• 44:28Melissa Murray?

  Does this bar take cash?

• 44:29Leah Litman?

  It might.

• 44:30Melissa Murray?

  Okay.

• 44:33Leah Litman?

  Justice Alito also describes the, quote unquote, "early originalists" as, quote, "beleaguered" because their theory was, quote, "ridiculed as intellectually indefensible, stupid, or disingenuous." And I think this actually tracks, both in terms of its substantive veracity and in terms of his persecution worldview.

• 44:54Melissa Murray?

  Never change with that persecution complex. Persecute to Alito. Persecute to Alito? I'm still workshopping that one.

• 45:01Leah Litman?

  Persecute to Alito.

• 45:02Melissa Murray?

  Persecute to Alito.

• 45:03Leah Litman?

  Okay, got it.

• 45:04Melissa Murray?

  I think that's right.

• 45:05Leah Litman?

  Right. Again, in case you listeners had any doubts that we are dealing with a dewy but thin-skinned man, a section of the introduction begins thusly, quote, "A Harvard Law School professor once wrote that freedom of religion has been a pet issue for me since my days on the Third Circuit, and I take that as a compliment." So I was kind of joking when I said I skimmed the book. I'm basically incapable of skim reading, right? I always have to read everything, including the footnotes. And so I went and looked at what Justice Alito cited for this in the footnotes. And he cites, get this, an op-ed that appeared in the Fort Worth Business Press. Does this

• 45:49Leah Litman?

  guy comb the entire internet to find people criticizing him?

• 45:53Melissa Murray?

  He's got a Google alert, for sure.

• 45:56Leah Litman?

  But if women say things, can you even hear them? Does it even make a noise on the internet?

• 46:00Melissa Murray?

  Justice Alito may have taken our rights, but he did not take our voice. He's not the sea witch.

• 46:04Leah Litman?

  He's not the sea witch, okay.

• 46:06Melissa Murray?

  Yet.

• 46:06Leah Litman?

  So-

• 46:07Melissa Murray?

  Someone tell Amy Coney Barrett.

• 46:08Leah Litman?

  Throughout the book, there is this dissonance that Sam Alito just does not seem to be able to appreciate. So he's regularly decrying the supposed intolerance, but he is also intolerant of people who reject his views, specifically about LGBT rights, and he castigates them for their views. So according to him, those people are intolerant bigots because of what they say and what they believe. But Sam Alito, by contrast, he can say and think whatever he wants and make those views the law, and no one can tell him shit. Like, no one can call him an intolerant bigot, right? Because that would make them an intolerant bigot. You understand?

• 46:47Melissa Murray?

  The people calling out the racism are the real racists.

• 46:50Leah Litman?

  Exactly, exactly. So many parallels. And, look, he's said a lot of questionable things in the past, specifically about the extent to which marriage equality is flawed and whatnot, but I thought he really ratcheted it up in the book, from at least what I recall seeing, hearing, reading before. So, for example, he calls Obergefell versus Hodges, the marriage equality decision that is a frequent target of his ire, quote, "perhaps the decisive point in our nation's turn against religious liberty." The gays caused the country to turn against religious liberty? Like, what the fuck?

• 47:24Melissa Murray?

  And he doesn't really mention what has followed in the wake of 2015 and Obergefell, which is-

• 47:29Leah Litman?

  How has religious liberty done in the last 10 years, Sam?

• 47:32Melissa Murray?

  Trinity Lutheran, Carson versus Macon-

• 47:35Leah Litman?

  303 Creative.

• 47:37Melissa Murray?

  Masterpiece Cake Shop, Fulton-

• 47:39Leah Litman?

  I mean-

• 47:40Melissa Murray?

  Tannen versus Newsom.

• 47:42Leah Litman?

  This term? I mean, we might just, like, blow the establishment clause.

• 47:45Melissa Murray?

  Oh, yeah.

• 47:45Leah Litman?

  I mean-

• 47:46Melissa Murray?

  We are about to eat that baby into the sun.

• 47:55Leah Litman?

  Strict Scrutiny is brought to you by bookshop.org. Would you be surprised to learn that we're living in a resurgence of independent bookstores? Not me. There are more than 1,000 new stores that have opened in the last five years. As they should, independent bookstores are the best. And when you purchase from bookshop.org, you're supporting more than 3,000 local independent bookstores, so they can continue their essential work. I love my local bookstore, Literati. Vibes are immaculate there. And if you listen to the show, you know I'm always reading a book. Most recently, it's been Nerd Reich, End Times Fascism, Live, Laugh, Love, The Steel, and more. But then there are also the funsy ones, too. Yes, I reread

• 48:36Leah Litman?

  The Love Hypothesis several times now that I've seen the movie, such an endearing one. I've also loaded up on the unedited journals of Emma M. Lyon. Can't wait. That one's a recommendation from Melody. There's always a great book that you can get from a great local independent bookstore. And you can always get that great book to your door and support your local independent bookstore by getting it at bookshop.org. Use code STRICT26 to get 10% off your next order at bookshop.org. That's 10% off at bookshop.org with code strict26. This episode of Strict Scrutiny is brought to you by Alloy Health. Here's something nobody tells you. The skin changes that start in your 40s aren't just aging. They're hormonal, specifically estrogen loss. Estrogen naturally helps maintain collagen, support elasticity,

• 49:21Leah Litman?

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• 50:03Leah Litman?

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• 50:46Leah Litman?

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• 51:10Melissa Murray?

  We should also talk about some of the interpretive methodologies that Justice Alito runs through here. So both the Wall Street Journal excerpt and the book have an incredible typology of the various strands of originalism. But these are not the strands of originalism that are typically discussed in most academic circles. So we really wanted to run through these and highlight them for you. So first off, there is what Justice Alito terms, quote, "Acarian originalism." And that is like Icarus, the boy in Greek mythology who flew too close to the sun. According to Justice Alito, quote, "Originalists sometimes lose sight of what constitutional texts would have meant to ordinary people when those

• 51:55Melissa Murray?

  provisions were adopted." And interestingly, to your point, Leah, his prime example of this misguided Acarian flying too close to the sun originalism are the originalist defenses of Obergefell. I might have looked forward to the originalist defenses of AR-15s in Veramonti that are sure to happen, but who am I? Just a woman with an abstract idea?

• 52:18Leah Litman?

  Speaking of flying too close to the sun, right? That analogy was so strained. I was like, sir, like, couldn't you have just like gotten an editor or something?

• 52:25Melissa Murray?

  It's like he just saw The Odyssey, just like, hold my beer.

• 52:27Leah Litman?

  Yes, exactly, exactly. I'll show Emily Wilson how to do, right, Greek mythology? That was just one variety. Another is archaeological originalism, which is, quote, "the opposite of Acarian originalism." Archaeological originalism, according to Justice Alito, burrows deep into the legal past in search of an artifact that will indisputably resolve a difficult issue, even though 21st century English speakers can read our Constitution without difficulty. I'm, for some reason, thinking about reading the Constitution and what it says about liberty and like feeling quite strongly that that would allow me to make decisions about my reproductive health care and body. And then someone went looking in the 1800s treatises

• 53:09Leah Litman?

  and court decisions for an answer. Is this ringing any bells? Too abstract?

• 53:14Melissa Murray?

  I can't hear your voice. You're a lady, sorry. I actually thought this was such a missed opportunity to show off your knowledge of Greek mythology and maybe call this Hadrian originalism?

• 53:26Leah Litman?

  Oh, yes, yes.

• 53:27Melissa Murray?

  I mean, Persephone originalism? I don't know. Like, come on, playboy. Show me what you got. There is also, according to Justice Alito, speaking of show me what you got, show it to me in black and white, originalism. According to Justice Alito, show it to me in black and white, originalism fails to account for, quote, "times when an important originalist principle isn't set out explicitly, but emerges from the Constitution's structure." Like, say, for example, and he quotes here, "the presidential immunity we recognized in Trump versus United States."

• 54:04Leah Litman?

  Hmm.

• 54:05Melissa Murray?

  Yeah.

• 54:06Leah Litman?

  He's covered all his bases.

• 54:07Melissa Murray?

  Exactly, exactly. That definitely explained that decision to me, right? It just emerged from the Constitution's structure.

• 54:12Leah Litman?

  Tell me more about the unenumerated rights having no roots in the Constitution.

• 54:16Melissa Murray?

  Or tell me more about abstract ideas, ideas that are too abstract to really be grounded in the Constitution. So Alito rejects these and other versions of originalism in favor of something else. Now, what he favors isn't explicitly elaborated, but he makes some broad gestures that suggest what he might mean. So he rejects the idea that originalism is about restraint and instead suggests it, quote, "sometimes called for bold action." One of many OMG he admitted moments. And then Alito comes out swinging in favor of Adrian Vermeule, Harvard Law professor, arch critic of originalism. Now we get to the mystery, the Nancy Drew, the Benoit LeBlanc of it all. Because this is odd for a book

• 55:01Melissa Murray?

  that is ostensibly in support of originalism, or Alito's version of it, to be praising one of the most prominent arch critics of originalism. Alito's book is actually called "So Ordered: An Originalist View of the Constitution, the Court, and Our Country." Vermeule favors common good constitutionalism, which he says isn't originalism. But he says common good constitutionalism, this is, you know, Vermeule, draws from Catholicism and indeed has been justified in part on the ground that it would and should lead to results supported by traditional conservative Catholicism. Some have also argued that this whole strain of common good constitutionalism actually leans toward a form of governance that may actually abandon traditional democracy in

• 55:41Melissa Murray?

  favor of something a little more theocratic, if you will. So he glosses over that, but he definitely seems on board with the Catholicism, which is, again, like, we knew this.

• 55:53Leah Litman?

  OMG, he admitted, though, right? Like, he just put it down in writing, stringer bell, again, would like a word, sir. I mean, again, this was like when...

• 56:05Melissa Murray?

  When he wrote that defense of Martha Ann and the upside down flag. And she's like, you know, she has her own views. She has her own life. And it was just like, not like these tricks out here with their abstract ideas about abortion rights.

• 56:19Leah Litman?

  Exactly.

• 56:20Melissa Murray?

  He's just playing in our faces. This whole book is playing in our faces.

• 56:24Leah Litman?

  It is, it is.

• 56:25Melissa Murray?

  Anyway.

• 56:26Leah Litman?

  And that concludes our recap of said book, word vomit, whatever it is you would like to call it.

• 56:29Melissa Murray?

  Leah read it, so you don't have to.

• 56:31Leah Litman?

  Right. It could be your potential TP. So, there you go.

• 56:34Melissa Murray?

  But then you'd have to buy it.

• 56:35Leah Litman?

  Yeah, that's true. Well, if someone accidentally gives it to you, or if you find it in a little free library.

• 56:40Melissa Murray?

  Some other news, and we got some dispatches from the Beast Coast. And that means we are bestirred to extend our heartfelt congratulations to FBI Director Kash Patel on the occasion of his recent engagement to a human woman. The same one he allegedly has been schlepping around on a taxpayer-funded FBI jet. Again, many of the outlets who are covering these impending nuptials have focused on the fact that Patel has been toting his girlfriend around the country on a government-funded jet. But I really think that buries the lead. Because to me, the really interesting aspect of all of this is, as we just alluded to,

• 57:23Melissa Murray?

  is that Kash Patel is marrying an actual member of the human species. So let's hear it for Team Homo sapiens.

• 57:29Leah Litman?

  Seriously, congratulations, sir. We're so happy for you and the residents of your local humane society.

• 57:36Melissa Murray?

  There is more in this segment that mentally I am calling the beast in me once again, and that is the Wall Street Journal's bombshell story about some of Kimberly Guilfoyle's corruption. Alleged, alleged corruption, yet documented in Signal text, alleged corruption. But the story anyways is this. Guilfoyle is...

• 57:57Leah Litman?

  It might be abstract, Leah. She's a lady.

• 57:59Melissa Murray?

  That's true. That's true. Abstract alleged corruption. Story is Guilfoyle is Don Jr.'s former fiance and now ambassador to Greece. And as Guilfoyle was prepping for her hearing to become the ambassador, she reached out to a Trump donor on Signal. Why? She needed $100,000 to cover a debt she owed to American Express.

• 58:18Leah Litman?

  And what follows can only be described as Acarian constitutionalism, flying way too close to the sun.

• 58:25Melissa Murray?

  Or anti-stringer bellism, basically. So Guilfoyle was really, really trying to avoid leaving a paper trail, it seems. She wrote, quote, "It won't show up anywhere if you wire money to American Express." She followed these instructions up with a very plaintive, "Please." Guilfoyle was talking to Eric Dieterz, who had been seeking her help in getting the Trump administration's attention on his own personal tax and legal issues. And he apparently, allegedly, had promised to pay her $1 million if she was successful in lobbying on his

• 59:04Melissa Murray?

  behalf with the Trump IRS. Dieterz was in the Trump orbit. He had run unsuccessfully for Congress and for governor, and he'd hosted a number of events at which various Trump children and Guilfoyle were speakers. So he's definitely someone with whom she was familiar.

• 59:22Leah Litman?

  He's in it to win it. Back to beast mode. Guilfoyle really wanted her balance down before her confirmation hearing. Quote, "Honey..."

• 59:28Melissa Murray?

  But wait, wait, can we talk about this? Just one second. Lots of people have had balances. Like, I mean, who are we to judge?

• 59:35Leah Litman?

  Yeah, I know. It's credit card debt, right? Like, this is America. Come on.

• 59:39Melissa Murray?

  I mean, people have student loan debt. It's almost like people needed waivers or a modification of excessive debt.

• 59:45Leah Litman?

  Almost, but not quite.

• 59:46Melissa Murray?

  Almost. All right, continue. I'm sorry.

• 59:48Leah Litman?

  No, no, no, no. So Guilfoyle wrote, quote, "Honey, please, I need you to get this done for me today," adding some prayer hands. She had been offering to lobby for him in the Trump world, including by getting him on Tucker Carlson's show, but she emphatically didn't want Dieterz to make a record of any of this. So she wrote, quote, "Eric, I really wish you would stop papering all these things. It's really dangerous and not helpful. Why, you could simply just call me on Signal. What a nightmare. You'll literally cost me my ambassadorship. Stop writing."

• 1:00:20Melissa Murray?

  It was hers to lose. Dieterz did not make the payment as requested, because according to Dieterz on this text exchange on Signal, it would cost him his marriage, to which I say, yes, sir. That is actually probably correct. He writes, "Your needing $100,000 urgent unfortunately is not going to work." He writes later, "I can't do this without getting a divorce." Correct. Like, that seems... I love that Eric Dieterz is like, ma'am, I want to stay a husband and not become a husband.

• 1:00:57Leah Litman?

  It's not the corruption, right? It's my marriage. I do it but for my wife.

• 1:01:03Melissa Murray?

  If only my wife weren't here with her abstract ideas about marital fidelity and financial profligacy. It's just like, she won't let me pay you off. Or maybe she just have questions. Like, why are you paying Kimberly Guilfoyle's credit card bill? What are we doing here, sir?

• 1:01:21Leah Litman?

  Yeah. Dieterz was also annoyed that Guilfoyle didn't deliver. He writes, quote, "I have paid you $300,000 over the year. As of this memo, I have not received one favor. I am not naive or a sucker. I need results."

• 1:01:38Melissa Murray?

  He admitted.

• 1:01:43Melissa Murray?

  Um, sir, it was really just a tip.

• 1:01:45Leah Litman?

  Right, exactly.

• 1:01:46Melissa Murray?

  The court said so.

• 1:01:46Leah Litman?

  Exactly.

• 1:01:47Melissa Murray?

  It's not a favor, it's a tip.

• 1:01:48Leah Litman?

  Just a tip.

• 1:01:49Melissa Murray?

  Just a tip. And apparently your services weren't that great.

• 1:01:52Leah Litman?

  Right.

• 1:01:52Melissa Murray?

  You didn't get a tip. The Wall Street Journal wrote, quote, "He said in a series of interviews that Guilfoyle's lack of results left him disenchanted with the Trump administration, even though he mostly supports its policies."

• 1:02:05Leah Litman?

  He's like, "You guys were supposed to be corrupt in addition to fascist."

• 1:02:10Melissa Murray?

  No, I mean, this is basically like everyone in MAGA land, only it's about the IRS and tax results as opposed to the price of gas.

• 1:02:18Leah Litman?

  Right, yeah.

• 1:02:18Melissa Murray?

  And eggs.

• 1:02:18Leah Litman?

  Yeah, yeah.

• 1:02:19Melissa Murray?

  You are every American, sir.

• 1:02:21Leah Litman?

  Yeah.

• 1:02:21Melissa Murray?

  Except not.

• 1:02:22Leah Litman?

  As these anecdotes suggest, Dieters himself seems to be quite a character. He had been banned from a courthouse after threatening to burn the place down on social media, and the Kentucky bar had suspended him not once, but twice.

• 1:02:37Melissa Murray?

  I mean, third time's a charm, Leah. Anyway. Again, let's get back on the rank corruption allegedly beat. The President of the United States, Donald J. Trump, has decided to indeed try to go ahead and do the thing. He's announced a committee that will be looking into allegations that Federal Reserve Governor Lisa Cook committed mortgage fraud. Recall that the President attempted to fire Lisa Cook via a Truth Social post, which the Supreme Court last June said was insufficient as process for getting her out of her position. But the court, of course, true to form, did leave the door open to Trump trying again,

• 1:03:18Melissa Murray?

  and this time putting some apparent procedural lipstick on a piggish firing of the only black woman who sits on the Federal Reserve Board of Governors. So that's what the President seems to be doing with his time, perhaps forcing the court to bless the charade of all of this. Please think of the travel ban when John G. Roberts decided that despite all of the discussion of keeping the Muslims out of the United States, the third iteration of the travel ban was not mired in the stink of rank Islamophobia. So he's either doing that, or he's basically sidling right up to John Roberts and daring him to stop him. So let's see.

• 1:04:03Melissa Murray?

  John Roberts is ready to do that.

• 1:04:04Leah Litman?

  We also just wanted to provide you a very quick capsule picture of just some of the grotesque state violence, right, that has happened over the last week, just because I think distilling this and quickly lumping it all together should hopefully give people a sense of just where we are. So bear with me. Pete Hegseth announced the federal execution of Fort Hood shooter Nadal Hassan by firing squad, and Hegseth announced that that will be livestreamed. The last officially acknowledged public execution was a lynching in the 1930s. Also, Hassan is paralyzed. On the execution topic, Krista Pike survived the state's attempt to execute her and is

• 1:04:49Leah Litman?

  recovering. Her lawyers released a statement that described the turnaround in her health as profound and credited the medical team. She was unconscious, you know, intubated and on a ventilator. Then she was able to take some limited steps and is walking with some assistance now, but sustained significant injuries to her arms, which are still regaining movement after being blistered and burned. The statement notes that, quote, "Krista is dealing with the profound psychological trauma of having survived a failed execution," and that big questions remain about what long-term effects this might have on her, including cognitively. Curtis Flowers died at 56, suffering from complications from diabetes. Flowers had been tried six times for the same murder, each time with the prosecution ensuring zero or very few black people were on his jury.

• 1:05:32Leah Litman?

  This is the flowers of Flowers v. Mississippi, when the Supreme Court invalidated one of those efforts. Also, the President of the United States attempted to incite a race war, posting on Truth Social that "The once great state of Minnesota is being taken over by Somali immigrants. There is violence. The people of Minnesota must fight back," he says. Again, like, you add all of this together, and they are telling you who they are, they are telling you what they want, and they are showing you, and it is just so, I don't even know how to describe it.

• 1:06:05Melissa Murray?

  The last part of this Truth Social post exhorts the governor of Minnesota and the mayor of Minneapolis to, quote, "Immediately ask for federal help and leave the rest to us." What could go wrong?

• 1:06:18Leah Litman?

  Right.

• 1:06:19Melissa Murray?

  Seriously? Anyway, enough.

• 1:06:21Leah Litman?

  Yeah, enough.

• 1:06:22Melissa Murray?

  I hate this timeline.

• 1:06:24Leah Litman?

  Yes. So that's it for the regular episode, but stay tuned for a conversation Melissa had with Professor Bernadette Atuhanyi about her book, Plundered. Strict Scrutiny is brought to you by Three Day Blinds. Is listening to what's going on in the world making you wish you could block out the entire world? Same. It at least made me want more privacy, which is where Three Day Blinds comes in. There's a better way to build, better way to buy blinds, shades, shutters, and drapery, and it's called Three Day Blinds. They are the leading manufacturer of high-quality, custom window treatments in the United States. And right now, if you use my URL, three day blinds dot com slash strict, they are running a buy one, get one 50% off deal. We can shop for almost anything at home.

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• 1:08:25Speaker 02

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• 1:08:56Leah Litman?

  So listeners, on this podcast, we often talk about state-level constitutionalism as a means of counteracting the deficiencies of federal constitutional law. As we have noted, state constitutions are often more generative and protective of individual rights than is the US Constitution. But we want to be clear. State-level constitutions are not a panacea. They can also be a source or means of profound injustice for marginalized groups. And to put a finer point on that, today we are joined by Professor Bernadette Atuhanyi, the Francis R. and John J. Dugan Professor of Law at the University of Southern California. Bernadette is a property law scholar whose work focuses on land stolen from people in the African diaspora.

• 1:09:41Leah Litman?

  Her most recent book, Plundered: How Racist Policies Undermine Black Home Ownership in America, examines how local governments, and particularly the city of Detroit, have used their lawful power to dispossess black homeowners through unconstitutional property tax assessments and mass foreclosures. Bernadette, welcome to Strict Scrutiny.

• 1:10:01Speaker 02

  You know, I could not be more excited to be here, Melissa, on the podcast and with you.

• 1:10:07Leah Litman?

  Well, I'm so glad to have you here. Your work is so interesting and urgent in this moment, and as I just said, much of your early work focuses on property law and land use in Africa, so outside of the United States. What prompted you to focus here, stateside, and specifically on Detroit?

• 1:10:26Speaker 02

  So my South Africa project, although it was wildly successful, we had the Deputy Land Claims Commissioner come to the official book launch in Johannesburg and declare that the Land Claims Commission would be adopting 90% of the book's recommendations.

• 1:10:42Leah Litman?

  Wow.

• 1:10:43Speaker 02

  So although it was wildly successful, it left me just troubled because I was looking at black victimhood. And so I said, well, in my next ethnographic project, I want to look at black agency. And so I decided to study squatting, which is when vulnerable populations are taking land instead of being taken from. And so I applied to the National Science Foundation to study actually squatting in Detroit. The last largest urban squatting phenomenon in America was on the Lower East Side of New York, but what's currently happening in Detroit far outpaces anything that ever happened in New York. And so I applied and won. One of grant to study squatting in Detroit.

• 1:11:26Speaker 02

  I teach first year property and I teach my students that there are two kinds of squatters. Number one is what I call a takeover. It's what normal people think of as a squatter. Someone who rolls onto a piece of property with no prior legal relationship to that property. But I also teach them about holdovers. Those are people who had a legal relationship and fell out of it. So I interviewed both populations. And when I was interviewing the holdovers, one after the other, after the other, was saying they were the owner and they were tax foreclosed and stayed waiting for the new owners to arrive. Now, at that point in my career, I knew quite a bit about mortgage foreclosure, but I didn't know much about property tax foreclosure.

• 1:12:05Melissa Murray?

  I don't either. What is a property tax foreclosure?

• 1:12:08Speaker 02

  Yes, and so a mortgage foreclosure is when you don't pay your mortgage and the bank takes your home. And property tax foreclosure is when you don't pay your property taxes and it's the state that takes your home. And so this is an act of legal violence by the state that should be exercised with extreme caution. And we find that in Detroit and many other cities, this power is being exercised not with extreme caution, but extreme recklessness. My first study found that between 2009 and 2015, in each of those seven years, anywhere between 53 and 84% of properties, the city of Detroit was assessing in violation of the Michigan State Constitution.

• 1:12:51Melissa Murray?

  Wow.

• 1:12:51Speaker 02

  And the lowest valued homes were the most severely affected. And the last thing I'll say is that in Detroit, since 2009, one in three homes has completed the property tax foreclosure process. We have not seen this number of property tax foreclosures in American history since the Great Depression.

• 1:13:10Melissa Murray?

  That is absolutely fascinating, harrowing certainly. And it's not the most harrowing story in the book. So the book is about these tax foreclosures, obviously, but it's about so much more. So you are really telling a broader longitudinal story about black homeownership in the city of Detroit. And again, the book is a testament to your commitment to ethnographic research and surfacing the voices of the communities where you work. I was most taken by a story that opens the book. You call it a tale of two grandfathers, one black and one white. And these two grandfathers had very different experiences in Detroit over time.

• 1:13:52Melissa Murray?

  But their experiences actually begin with sort of a similar kind of germ. Both are recent migrants to Detroit. One has immigrated from Italy. The other has migrated north from the south. Both are seeking greater economic opportunities in Detroit. And for the most part, they are successful in finding them. They work at the Ford Motor Company. They are able to purchase homes. They start families. But then their fortunes diverge radically, leading to this whole issue with tax foreclosure that you document. So what happened to these two grandfathers?

• 1:14:26Speaker 02

  And that's exactly right, Melissa. Both of these grandfathers, Grandpa Bucci is from Italy and he was a sharecropper in his place of origin in a system called Mesadria. And as you said, Grandpa Brown is from North Carolina and he was part of American sharecropping. And as you said, they come to Detroit at the same time, early 1900s. And we find that Grandpa Bucci did not have an easy life at all. Grandpa Bucci, before he made it to America, he worked in the coal mines of France and he literally only had four fingers because his thumb got sliced off in a work accident. And Grandpa Bucci didn't have an easy life because he was Italian, before Italians became white. Okay, that part.

• 1:15:07Speaker 02

  And so now we have a situation where Grandpa Bucci didn't have an easy life, but at no point did Grandpa Bucci face racial covenants, which were covenants tucked in deeds that prevented African Americans from living in the best parts of the city of Detroit and more importantly, from living in the suburbs where the homes were cheaper, bigger, with better amenities. Grandpa Bucci never had an easy life, but at no point was he subjected to redlining, which is where the federal government drew a red line around the African American community, saying that these communities were a credit risk and this prevented valuable investment from coming into the community, like mortgages, home repair loans, small business loans. So although Grandpa Bucci had a hard life, at no point did Grandpa Bucci had to deal

• 1:15:52Speaker 02

  with urban renewal, which because of the blight created by redlining, the federal government says now we're going to tear down entire communities to wipe out blight. But they're not only wiping out the blighted homes, they're wiping out the unblighted homes, the productive black businesses, the cultural institutions. And so where African Americans used to live in tightly connected communities with lots of social capital, now because of segregation, they are forced to disperse into a certain number of communities. And now instead of living in tightly knit communities, they're now living in neighborhoods of strangers, which are vulnerable to disrepair. Grandpa Bucci had a hard life, but at no point was he subjected to blockbusting, which

• 1:16:37Speaker 02

  is because of redlining, the very presence of black people could reduce property values. And these real estate intermediaries would come and say, the black people are coming. White people would sell, not necessarily because they didn't like black people, because they were worried about, some of them, their home values. And they sold at fire sale prices. These intermediaries then sold these homes back to African Americans. Community would switch over from majority white to majority black in a number of a few years, and then that community would get redlined. You get the picture here. And so the point that the tale of the two grandfathers show is that Grandpa Bucci never had an easy life, but he never had to face these layers and layers of racist

• 1:17:20Speaker 02

  policies that Grandpa Brown had to face. And I define racist policies as policies, procedures that create or sustain racial inequity. And so the book then comes to the grandchildren of Grandpa Bucci and Grandpa Brown. And we found that Grandpa Bucci's grandson, Robert Ficano, still lives in his grandfather's home in a suburb of Detroit called Livonia, and the home is worth over $300,000. And Grandpa Brown's granddaughter, Marisha, inherited his home, which was less than $10,000. It was a money pit and not a valuable asset because of these layers and layers of racist policies.

• 1:18:01Speaker 02

  These racist policies have no shoulders on which to carry the blame. And so our job as people who love justice is to make the invisible visible, to start talking about these racist policies.

• 1:18:14Melissa Murray?

  I think it's such an interesting point. Like these two men, neither of whom has an easy life. They both experience racism in particular ways. As you very provocatively say, at the time Grandpa Bucci comes to the United States, the Italians are still very much ethnic immigrants and they have not sort of transitioned into whiteness. Strictly listeners may be reminded of our discussion, Cecilia Wang's questioning and her colloquial with Justice Alito during the Trump versus Barbara oral argument, where she, this lawyer from the ACLU, had to remind Justice Alito that his Italian forebears came to this country as immigrants as well. And you were telling another story where they were not necessarily the beneficiaries

• 1:18:57Melissa Murray?

  of whiteness and racial privilege when they got here. So the racism is underlaying both of their experiences, but the divergence in their paths really come from systems, not from individual people exercising discriminatory intent, but from systems that are put in place to maintain racial hierarchies and specifically a black-white racial hierarchy. So although they start off in the same place, they have the same kinds of misfortunes. These systems operate to make it much harder for Grandpa Brown to pass intergenerational wealth on to his children and eventually grandchildren.

• 1:19:38Melissa Murray?

  It leaves Marisha with a home that is substantially undervalued, but heavily overtaxed. So can we talk about that disjunction? How does Marisha, Grandpa Brown's granddaughter, wind up with a home that is subject to such a burdensome tax liability, but that the state believes is not worth much?

• 1:20:00Speaker 02

  So let me just make one thing clear, which is that Detroit is ground zero for a national problem. So this property tax issue that we're talking about is not exclusive to Detroit. There's a recent study by Carlos Alvenazio Leon in True Power that shows blacks and Hispanics on average pay a 10% to 30% higher property tax rate than whites for the same bundle of goods, which equals on average about $300 to $400 more per year. So how I like to understand what's happening is that Detroit is ground zero for a national problem. So what is going on and why are black and brown people being overtaxed? First concept I want to really introduce you is something that we call the double bind.

• 1:20:45Speaker 02

  So I'm sure you've heard all of the stories, especially the very provocative story about the professor at Johns Hopkins, who goes to sell his house. He gets one price. He moves all the pictures of his family and replaces them with pictures of a white family, and then his house sells for more. So that's what we call appraisal bias, which is black people, when we go to sell our homes, our homes are undervalued. But on the other hand, Melissa, for property taxes, our homes are overvalued. And so that is the issue of the double bind. Part of what is going on is that lower valued homes are more difficult to value, meaning

• 1:21:25Speaker 02

  if you are off by $5,000 in the $50,000 home, that's not as bad as in a $500,000 home. So that's part of what is going on. But there's lots of layers as to the why, but this is what we're seeing. It's also Hollywood. Hollywood teaches us to look for the bad guys and the good guys, the black hats and the white hats. We're overfocused on intent, when in fact- In fact, what's doing a lot of damage are these systems. And so I want us to start focusing on, again, these racist policies. I borrow that term from Ibrahim Kendi. And again, any policy, procedure, law that sustains or produces racial inequity.

• 1:22:08Speaker 02

  And that way, we then can get to work on disassembling those policies and laws.

• 1:22:14Melissa Murray?

  You've spent so much time focused on this and the disjunction between the tax liability, the property assessment. You became a Michigan property tax assessor so you could really inhabit this world in a very clear way. This concept of predatory governance is so provocative. Can you explain what you mean by predatory governance? And is it just relegated to this particular phenomenon? Or are there other examples of predatory governance that we see all over that underlay our understanding of racial injustices that exist throughout the country?

• 1:22:50Speaker 02

  Without a doubt, without a doubt. There's lots of examples. So when I talk about predatory governance, this is when racist policies intentionally or unintentionally fill public coffers. So if we look back to Ferguson, beyond what happened to our dear brother, Michael Brown, when the DOJ did the report, their report, which was excellent, they found that the police in Ferguson were unconstitutionally policing Black people, which led to them being fined for things and jailed for things they weren't supposed to be jailed for, who benefited financially, not some corrupt police officer, but the city of Ferguson itself. Predatory governance is what's happening

• 1:23:35Speaker 02

  in Detroit and all these other cities that are inflating the property taxes intentionally or unintentionally of Black and Brown people. Again, who's benefiting? Not some individual corrupt public official, but the public coffers themselves.

• 1:23:51Melissa Murray?

  So what's the path forward for you all then, Bernadette? So you've been forced into this administrative tribunal that doesn't lead to the kind of relief that you want. What's the upshot of plundered for these families? Is it simply that we now know about these systems and are prepared to recognize them and render them legible where we find them? Or is there something that you want the reader to take from the book and your experiences with these families and apply in their own lives toward fighting for a more just world in Detroit and elsewhere?

• 1:24:25Speaker 02

  Absolutely. So when these legal avenues were closed down to us, we created something called the Coalition for Property Tax Justice, which we were looking for a political remedy. And the coalition has three goals and three goals only. Number one, to stop these illegally inflated property taxes, not only in Detroit, but throughout the nation. Number two is to stop the ongoing foreclosures in Detroit until we can assure that people are being foreclosed on for taxes they actually owe. And number three is to provide compensation. This coalition we formed, this over a dozen grassroots organizations here in Detroit, joined up with my students, and we have had several phenomenal wins in this battle.

• 1:25:07Speaker 02

  Number one, we've been able to pass two pieces of legislation. One, I didn't tell you the end of the case, which is although the Fair Housing Act claim never went for, the claim for the obstructive administration of the poverty tax exemption settled, and that settlement lasted for three years. And our first piece of legislation made those changes permanent. And our second piece of legislation, we created a property tax reform ordinance based on all of our community learning. I took a nine-month course and took a state exam to become a certified Michigan property tax assessor. So based on all of this information, we created and passed a property tax reform ordinance.

• 1:25:48Speaker 02

  We've also been able to appeal the property taxes for over 1,200 Detroit residents. We've been able to transfer millions of ARPA dollars to Detroit residents to pay their illegally inflated property tax debt. And we have already been able to secure $6 million from the city of Detroit for compensation. But a study, phenomenal study by the Detroit News, shows that at minimum, they estimate that the city of Detroit stole over $600 million from its residents. So 6 million, we need to understand as just a start. But the main thing we're doing is we have something called the Dignity Restoration

• 1:26:30Speaker 02

  Project. Again, you can go to dignityrestorationproject.org. And this is where we're seeking compensation for the hardest-hit Detroiters. And those are the people who lost their homes for property taxes they weren't supposed to be paying in the first place because they qualified for this poverty tax exemption that the city put out of reach. And so we are really focused on finding compensation for these people. And I always like to say, this needs to be the start of the whole reparations movement. There's a debate in the reparations movement, do we start with slavery? Tahanasi Coates says, no, no, no. Let's start with Jim Crow. And my position is let's start with yesterday, when they stole these houses in this majority Black city called Detroit.

• 1:27:14Speaker 02

  Because if we can't get it right in Detroit, where the harm is empirically verified and uncontested, and the harm happened so recently, then the whole reparations movement is in peril if we can't get this right in Detroit. So Detroit is ground zero, not only for the property tax injustice, but I believe it should be ground zero for the whole reparations movement.

• 1:27:36Melissa Murray?

  All right. Those are amazing suggestions, like amazing work that you're doing on the ground in addition to this fantastic ethnographic work that you are doing. The book, listeners, is called Plundered: How Racist Policies Undermine Black Homeownership in America. And the author is the incomparable Professor Bernadette Atuahene. It is available right now, wherever you get your books. We love it when you get your books from bookshop.org, where you can also support your local booksellers. Please rush over to bookshop.org and get your copy of this incredible account of dispossession, theft, and resilience. Thank you so much for joining us today, Bernadette.

• 1:28:17Speaker 02

  Well, I said, thank you for having me on. This was amazing.

• 1:28:21Melissa Murray?

  Once again, many thanks to Bernadette Atuahene. Her book is called Plundered: How Racist Policies Undermine Black Homeownership in America, and you can get it at bookshop.org.

• 1:28:32Leah Litman?

  Let's end with some abstract things, some favorite things of abstract people. That sound good?

• 1:28:37Melissa Murray?

  Okay.

• 1:28:38Leah Litman?

  Something not so abstract, and that's a writing by a man. And that is so unexplained, Justice Alito's non-responsive emergency docket defense over at One First by our friend Steve Vladeck. Just chef's kiss. Cannot recommend it enough. Please do yourself a favor and read it. Yeah. Another favorite thing, Jon Ossoff absolutely wiping the fucking floor with Mike Collins in the debate.

• 1:29:03Melissa Murray?

  Wait, wait, wait. Can I just say one thing?

• 1:29:05Leah Litman?

  Yeah, that's my family. Like, 911, I'd like to report a murder. Would you like to see a dead body? Again, do yourself a favor, pull up a mashup of those clips. I'll give you a light taste.

• 1:29:20Melissa Murray?

  Can't we play some?

• 1:29:21Leah Litman?

  No, no, they need to go look at the whole thing.

• 1:29:26Melissa Murray?

  Okay, I'm just going to give a quote or two as a sampler to entice people to do this.

• 1:29:31Leah Litman?

  I love a sampler. Go.

• 1:29:32Melissa Murray?

  Okay.

• 1:29:33Leah Litman?

  You hired half the Third Reich to staff your office.

• 1:29:38Melissa Murray?

  Boom.

• 1:29:38Leah Litman?

  If John Lewis were marching today from Selma to Montgomery, Mike Collins would be grabbing a billy club.

• 1:29:45Melissa Murray?

  Bam.

• 1:29:46Leah Litman?

  Imagine running for Senate while neo-Nazi propaganda is disseminated to an audience of millions from your home. That's Mike Collins.

• 1:29:54Melissa Murray?

  That's my family.

• 1:29:55Leah Litman?

  Like, just incredible. Could not like this more. Okay, so final favorite thing, and that is a Marquette poll, which came out with the news that overall support for Supreme Court expansion is at 53%. It is at 68% among Democrats and 56% among independents.

• 1:30:20Melissa Murray?

  Hot Supreme Court reform summer.

• 1:30:23Leah Litman?

  Think how far we have come in just a few years, right? Like, if you don't think any of this matters, right? If listening, talking to people, agitating about this doesn't matter, moving the needle on public opinion, that is happening in real time. And I just love, love to see it. One other thing, just to note, if you're not watching on YouTube, I'm wearing my newly minted, self-made shirt that I'm very proud of.

• 1:30:53Melissa Murray?

  What does it say?

• 1:30:54Leah Litman?

  No, you have to go look it up on YouTube.

• 1:30:56Melissa Murray?

  Okay. I actually genuinely can't see it because you're fuzzy.

• 1:31:00Leah Litman?

  It says, no more showgirl in green.

• 1:31:03Melissa Murray?

  Okay. All right. My favorite things for the week. I've really been on this Rainbow Raul kick. So Rainbow Raul is very well-known for her YA fiction, Eleanor and Park, maybe something you might have looked at in your earlier days, your earlier days as a reader. But she's lately been getting into more adult fiction and critically focusing on sort of midlife, perimenopausal women and their love interests. So I talked about a few, like many episodes ago at this point. Her last book, Slow Dance, which I loved. It was like very Jane Austen persuasion-esque. I love, love, loved her newest. It's called Cherry Baby.

• 1:31:48Melissa Murray?

  It's just so unexpected. I just absolutely loved it. I love that the heroines are not picture-perfect people. They're like normal people living in normal places like Omaha. It was fantastic. So Rainbow Raul, Cherry Baby, chef's kiss. Loved it. This week, I got the chance to go to the Argent 10 years anniversary work friend dinner. Congratulations to the folks at Argent on their 10-year anniversary to Sally Christiansen, who's put together such an amazing community of women. That is not abstract at all. It was actually real, live women, all wearing real clothes. That I touched. I could touch the outfit.

• 1:32:27Leah Litman?

  This is so abstract. Was it ambient though?

• 1:32:29Melissa Murray?

  The people who were there, it was just like genuinely.

• 1:32:32Leah Litman?

  Oh, I saw some of the pictures. Insane.

• 1:32:34Melissa Murray?

  Hillary Clinton, right? Thelma Golden from the Studio Museum in Harlem. Our friend Erin Haines, like just like so many people. I sat across at dinner. Deborah Khan, who is the showrunner for The Diplomat, like WTF, like genuinely gagged. It was amazing. It was just absolutely amazing. Many Shondaland people were there. Like, I was like, FYI, I gotta tell you about How to Get Away with Murder. Like, no black lady law professor is doing this shit. I'm just telling you. We're just trying to keep tenure here. So it was just fantastic. So congratulations to them. The clothes were fantastic. They've dressed us for our shows. We love Argent. So congrats. I will also say that I left New York and went to some other places this week.

• 1:33:19Melissa Murray?

  I went to Boston and while I was there, I ran into all kinds of stricties in the wild. So I just want to shout out Sajju, Elaine, Kathy, John from Newark, Claire from Zurich, Kia and Eric, Lauren and Rachel. Thank you so much for listening. Also, Rachel at the Argent's Work Friend Dinner, who is a big fan of the pod and has been for a long time. It's always great to see you guys in the wild, to know that you are real and alive and not abstract. And like us, you two have questions about Samuel Alito. And some housekeeping before we go. Election day is right around the corner, which means you only have a few days left to get in on the action. Vote Save America has launched brand-new ways to get involved based on the most effective organizing tactics and tools that can actually cut through the noise.

• 1:34:04Melissa Murray?

  It doesn't matter where you live or how much experience you have in politics. There's a place for you. In Club Vopro, you'll get trained on your rights and how to keep other voters safe and informed as they cast their ballots. In Club Digi, you'll boost accurate, helpful information online and get those social media algorithms working in our favor. And finally, in Club Relational, you'll learn about one of the most important organizing tactics of this era: talking to people in your life and making sure they have a plan to vote. Go to votemsaveamerica.com to learn how you can help ahead of election day. Remember, this whole democracy thing only works if we do. This message has been paid for by Vote Save America. It is not authorized by any candidate or candidate's committee.

• 1:34:49Melissa Murray?

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

• 1:35:18Speaker 03

  In business, there's the easy way with Staples or the hard way. Hard means. Jen, did you get the weekend specials menus from the printer by any chance? No, they said they'll be done on Monday. But they're weekend specials. Easy means Staples same-day custom printing, where same day means same day. Hard means. Our new brochures are back from the print place. So how do they look? Well, our logo is brown. But our logo isn't brown. It is now. Easy means custom prints, perfectly printed. Don't choose hard. Choose Staples. That was easy. Shop Staples online, in-store, in the app.

• 1:35:48Speaker 02

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