Will the Blue Wave Come for SCOTUS?

Post-blue wave and on the eve of Crooked Con, Kate, Melissa, and Leah break down what went right on election night, and how the Supreme Court did its very best to prevent it by disenfranchising voters and enabling Trump’s lawlessness. Then, some executive branch news both welcome (see ya, Harmeet Dhillon) and horrifying (the ascension of Stephen Miller to chief of staff), before a breakdown of the biggest case SCOTUS heard last week. Is there a constitutional right to use public funds to discriminate against gay and trans people? Brett Kavanaugh seems to think so! Finally, Sherrilyn Ifill, founding director of the 14th Amendment Center for Law & Democracy at Howard University, joins to talk about one of the most important tasks for Democrats ahead: Court reform. Favorite things: Leah: Barrett Adair’s Election Night Instagram content https://www.instagram.com/barrettadair/?hl=en; Stacey Abrams https://bsky.app/profile/cockymf.bsky.social/post/3mzblvaxovs2l, Ayanna Pressley https://bsky.app/profile/ayannapressley.bsky.social/post/3mzbufgxh522m, Debbie Dingell https://bsky.app/profile/mediaite.com/post/3mzcmnri4ds2l, & Mallory McMorrow https://www.youtube.com/watch?v=ea7tDjiyXbotelling Haley Stevens to go pound sand and dragging her for filth; Governor elect Amy Acton not picking up the phone when Vivek called to concede and adding that she doesn’t plan to speak to him https://bsky.app/profile/headquartersnews.bsky.social/post/3mznsowoegm2g. Melissa: American Hagwon https://bookshop.org/p/books/american-hagwon-min-jin-lee/c4f5cd7b2ff52c1a, Min Jin Lee Kate: The Most Dangerous Way to Misread the Midterm Results https://www.nytimes.com/2026/11/06/opinion/trump-era-blue-wave-democrats-midterms.html, M. Gessen Take the Strict Scrutiny survey https://crooked.com/strictsurvey. New Strict merch available here https://store.crooked.com/products/were-gonna-need-a-bigger-court-graphic-t-shirt. You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cle http://crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.com http://crookedcon.com/Buy Melissa’s book,The U. S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader https://bookshop.org/p/books/the-constitution-annotated-for-the-contemporary-reader-melissa-murray/8e7f0dfa472fc3ca?ean=9781668221938&next=t&Buy Leah’s book, Lawless https://bookshop.org/p/books/lawless-how-the-supreme-court-runs-on-conservative-grievance-fringe-theories-and-bad-vibes-leah-litman/5b562d6fcb316d6e?ean=9781668054642&next=t, now out in paperback Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en,Threads https://www.threads.net/@strictscrutinypodcast, andBluesky https://bsky.app/profile/strictscrutiny.bsky.socialFor a transcript of an episode of Strict Scrutiny please email [email protected] mailto:[email protected]

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

• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for separation of church and state. Americans United is here to remind us, regardless of what the front page headlines say, our nation promises everyone the freedom to live as themselves and believe as they choose, and our laws should not allow anyone to use their religious beliefs to harm others. But we know that promise is not yet fully realized. It will take all of us working together across the country to educate our communities about the importance of church-state separation and mobilize people to protect it. That's why Americans United for Separation of Church and State have started their Supporter Toolkit. This document has everything you need, whether you're brand new to grassroots organizing or a seasoned pro. And there's no time like the present to get involved. It's never too late to join the fight to protect our First Amendment freedoms.

• 0:42Leah Litman?

  Learn more and download the Toolkit at www.au.org/supporter toolkit.

• 0:51Speaker 01

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• 1:22Speaker 02

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

• 1:35Speaker 03

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

• 2:05Melissa Murray?

  Hello and welcome to Strict Scrutiny Live from the Howard Theater at Crooked Con.

• 2:15Kate Shaw?

  As you know, Strict Scrutiny is your podcast about the Supreme Court that is about to get reformed.

• 2:25Kate Shaw?

  And the legal culture that will enable that reform. We need all of you with us for this effort. We are your hosts. I'm Kate Shaw.

• 2:36Melissa Murray?

  And I'm Melissa Murray. And I'm Leah Litman. And my pronouns are she, her, they, them, Texas, Georgia, Abdul El Sayed, Jon Ossoff, I'm not done, Peggy Flanagan, Annie Andrews, Gina Hinahosa, Sherrod Brown, James Talarico, Roy Cooper, Amy Acton, Sam Alito sucks, and other things that will be appearing in my email signature, including pronouns that haven't even been fucking invented yet.

• 3:09Melissa Murray?

  Shorter, Leah Litman, our pronouns are she, dem.

• 3:18Melissa Murray?

  Honestly, folks, I've got to be really clear with you. I'm a little surprised that this blue wave didn't materialize sooner because I distinctly remember the president's gay son, the one who was having the torrid affair with the King of England's gay son, putting forth a whole plan to turn Texas blue. Do you remember that? Yes. Some of you are looking puzzled and wondering why Don Jr. entered the chat.

• 3:52Melissa Murray?

  Read a book, and the book is called Red, White, and Royal Blue by Casey McQuiston.

• 4:00Melissa Murray?

  And now that we've turned Texas blue, I just want to note, Ted Cruz, you're next.

• 4:13Melissa Murray?

  As you all can tell, we are so, so happy about the blue wave, the blue tsunami, the bluenami, that we decided to get dressed for it. Right? So, yes. We love that the bluenami blew the lid off this fascist, sadist, terrible, racist regime. Indeed. All the is.

• 4:40Kate Shaw?

  Yes.

• 4:41Melissa Murray?

  Yes.

• 4:41Kate Shaw?

  So this really, we could not think of a better night than tonight to be here with all of you. So thank you for coming out. What a thrill.

• 4:50Kate Shaw?

  It was a gamble to schedule this for the Friday after the election, but it has panned out extraordinarily well. So here is the plan for tonight and a little bit more broadly. We're going to start by talking about the election. We're going to luxuriate a bit more in it. And we're also going to connect it to the Supreme Court and some breaking news.

• 5:10Melissa Murray?

  And then we are going to briefly recap the big case the Supreme Court heard last week because we couldn't obviously just luxuriate in this high for long. We had to come back down to earth. The case, of course, is St. Mary Parish versus Roy, and it is about whether there is a constitutional right to use public funds that the taxpayers give you to discriminate against gay and trans people. Boo. That's right. There isn't. Exactly. Because you listen to this podcast and you read books. Exactly. But spoiler alert, as she's told you, there isn't. But that will not stop our favorite non-Talarico Christians on this court from trying.

• 5:53Melissa Murray?

  The bluenami has not yet reached the Supreme Court, but it's coming. It's coming. And we're going to talk about that, too.

• 6:01Kate Shaw?

  And we are, and we're going to do our part to help move things along by talking SCOTUS and democracy and SCOTUS reform as really an imperative for democracy. And yes, you can clap for that.

• 6:13Kate Shaw?

  And to do that, later in the hour, we are going to bring to the stage one of our icons and sheros, the great Sherrilyn Eiffel. You can definitely clap for her.

• 6:26Kate Shaw?

  And then, right, I'm just roadmapping here, because this live show falls happily in the season of joy, we are going to end with a little game. It is called Name Your Favorite Biblical Divorcee Who Is Not

• 6:38Melissa Murray?

  Ken Paxton.

• 6:39Kate Shaw?

  Who Is Not Lame Doc Texas Attorney General, Ken Paxton. That's too easy. You need to name a different one. No, that's actually not the game.

• 6:47Melissa Murray?

  That's not the game. But the game is actually genuinely very fun. You're going to love it. So stay tuned. But before we start, I'm going to add a trigger warning because trigger warnings and land acknowledgements are now required for everything because elections have consequences. So here it is. I'm going to be full-on nasty woman, mean girl, petty bitch because a lot of people eminently deserve it. Welcome to woke three haters.

• 7:21Melissa Murray?

  It's a lot of big chick energy.

• 7:26Melissa Murray?

  We should acknowledge that there are those in the leadership who would like for all of us to be a little more high-minded about all of this in the face of all of this winning. Like, we should be gracious.

• 7:40Melissa Murray?

  No, you hoes. We're not doing that. No, no, no. That, of course, was a shout out to Harmeet Dhillon, who announced this week, or last week, her retirement from her position as Assistant Attorney General for Civil Wrongs.

• 8:02Melissa Murray?

  Yes, we wish her well. No, we don't.

• 8:06Melissa Murray?

  Some folks on the interwebs speculate that Ms. Dhillon may be trying to clear her schedule in order to lawyer up in advance of some congressional hearings, to which we just say, you know what they say, MAGA, make attorneys get attorneys.

• 8:29Melissa Murray?

  And I will say this for Harmeet, you are hoes, Dhillon. Unlike one Haley Stevens, Harmeet realized that rats are supposed to leave a sinking ship, not hop aboard it.

• 8:45Kate Shaw?

  She did warn you. She warned you.

• 8:47Melissa Murray?

  It is very, very important for me personally that it be known, I was an OG hater of Haley Stevens before the rest of the country was. Everyone can attest.

• 8:58Kate Shaw?

  Can confirm.

• 8:59Melissa Murray?

  When, right, we have boy problems or bad boyfriends, like, we don't try to take the Senate and the country with us. But speaking of rats and ships, on Friday, we learned White House Chief of Staff Susie Wiles is making her exit. And Pee-wee German, I mean Stephen Miller, has been elevated to take her place. Boo, indeed. Now, if you're booing because you don't like the nickname Pee-wee German, don't worry, I have other options for you. There's deportation Gollum. Gollum Gerbils. The Third Reich's least fuckable intern.

• 9:44Melissa Murray?

  Incel of the apocalypse.

• 9:52Melissa Murray?

  I'm not done.

• 9:53Kate Shaw?

  I hope no one here has terribly delicate sensibilities, but I guess buckle up.

• 9:58Melissa Murray?

  I'm just going to say, I think it is absolutely insane that the man/thum, who was the architect of the mass deportation plan, Operation Metro Surge, and the Trump 1.0 family separation policy, all of which clearly fueled everything that we saw on Tuesday night, the end result of all of that is that he got promoted. Like, truly failing up. That is the lesson they took from the election, to which I say, open the schools. Open them.

• 10:35Kate Shaw?

  It does kind of feel more seriously like a giant fuck you to the electorate. I mean, I do, as democratic leadership really, I think wrestles with how to respond, what note to strike in this moment. This is something that they should take into account as they plan their next moves because these are not the actions of a chastened or humbled president who is open to conciliation. This is a declaration of intent to double down and to do the most awful things. And I think democratic leadership needs to respond accordingly.

• 11:05Melissa Murray?

  Yes.

• 11:10Melissa Murray?

  The executive orders seem like they are about to get more fascist and more dangerous, which is a cry for meaningful checks and accountability immediately. That is like disappointment. ...of SS Stormtrooper Schmiegel.

• 11:26Melissa Murray?

  You know what? I'm going to channel my inner Kate Shaw. I'm going to find the bright side here, the silver lining. One upside of Stephen Miller sticking around and getting promoted is that the internet can continue to refer to his wife as "the Bay of Pigs."

• 11:46Melissa Murray?

  Just as it refers to Cheryl Hines as "the marvelous Mrs. Measles."

• 11:58Kate Shaw?

  All right, well, true to form, I'm going to take us back to a more serious place for one moment. But actually identify, I think, a serious upside of this kind of Miller elevation, which is that Miller and his policies, I think, actually give the broad left Democratic coalition something very concrete to organize around and against, to focus the mind in a way that seemed to work pretty well in the midterms. And so I will take this announcement, you know, with full awareness that very, very bad things will happen, but from the perspective of organizing, galvanizing, mobilizing the public, in particular with an eye to 2028, I actually think that that is a genuine silver lining.

• 12:44Leah Litman?

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• 15:43Melissa Murray?

  But enough of those tools. Back to me. I will be encouraging all of you to indulge your instincts, to revel in the kind of joy that can only come from the absolute worst people having the absolute worst of times, and to put that energy toward a collective effort to bully our new Democratic majorities, not just in Congress, but in many states as well, to use their powers for the good of our democracy.

• 16:13Melissa Murray?

  As an amuse-bouche for the kind of vibe I'm talking about, think of Representative Jamie Raskin, incoming chair of the House Judiciary Committee, announcing that the law firms that struck deals with the Trump administration can expect subpoenas in the new year.

• 16:40Melissa Murray?

  What do we say? Make attorneys get attorneys. So with that note, let's focus on the election. I think we've been doing that. Yes and no.

• 16:52Kate Shaw?

  We will, I think, toggle between the serious and the petty. We contain multitudes. But in terms of sort of where we are right now, obviously, this is a moment of well-earned joy and relief, and as we have already said, we want to luxuriate in all of the winning. But in addition to focusing on the Supreme Court, we also just don't want to overlook this really important point, which is that in order to do this, to create this blue wave, the people had to overcome a lot, including a hugely distorted electoral landscape. That was partly, indeed largely, the work of the Supreme Court. It was partly the work of this president, but it was also produced by the direct actions

• 17:33Kate Shaw?

  of the Supreme Court, and we will just tick through a few of the ways that the court is responsible for the deeply distorted democratic process. So what has the court done to distort and degrade our democracy? It blew up campaign finance regulation, which cleared the way for individuals like Elon Musk to pour hundreds of millions of dollars into this election, much of it in the great state of Texas.

• 17:59Melissa Murray?

  Happy Now You Live in a State with a Democratic Attorney General Day to Elon cyber-fucked Cybertruck Musk, by the way.

• 18:10Melissa Murray?

  This lady would like a subpoena directed to Elon, please, and a glass of Pinot Grigio "Go to Fucking Jail."

• 18:20Melissa Murray?

  I'll have what she's having.

• 18:24Melissa Murray?

  We should also note that the court blew up the Voting Rights Act and its protections against racial discrimination and voter suppression.

• 18:33Kate Shaw?

  The court left portions, this is something that didn't, I don't think, get enough attention, but it left portions of the president's insane election interference executive order in place, including the provision that prioritized investigations and prosecutions of state and local election officials for the high crime of doing election administration, which the administration then tried to act on.

• 18:56Melissa Murray?

  You should also not forget that the court previously said that federal courts could not address partisan gerrymandering. And then they went and cleared the way for the mid-cycle, extra-partisan gerrymandering, redistricting effort that attempted to further deprive voters of the power to choose their elected officials, and instead allowed elected officials to choose their voters. In addition to that, the court also facilitated voter suppression in the Granite State, New Hampshire, permitting the New Hampshire Secretary of State to limit the use of student IDs for voter verification. And then the court let the Federal Communications Commission give discounted rates for political

• 19:41Melissa Murray?

  ads to political parties, even though the GOP already had oodles of cash on hand from their emotional support billionaires. They did not need a discount.

• 19:54Melissa Murray?

  And then, on top of all of that, the court allowed the administration to use an unreliable database for voter verification. I mean disenfranchisement.

• 20:06Leah Litman?

  Yeah. One additional matter relates to Mississippi's US Senate race, which is a true nail-biter between Scott Colom and Karen Hyde-Smith, the neo-Confederate Karen who refused to return a blue slip for Colom's nomination to a federal judge. Cullum returned the favor by running against Hyde Smith and now seems poised to beat her and become, yes. And become the first black senator from Mississippi since Reconstruction.

• 20:40Melissa Murray?

  Petty pays, petty pays.

• 20:46Leah Litman?

  And he's now up more than 2,000 votes.

• 20:50Kate Shaw?

  We had honestly really hoped that we would have a definitive call by tonight. And at the last count, he was up by, I think, over 2,000 votes. And I actually genuinely don't understand why she hasn't conceded. It seems clearly to be over. Why has she not conceded?

• 21:09Melissa Murray?

  Ma'am, this is a Wendy's. And Karen Hyde Smith would like to speak to the manager.

• 21:18Kate Shaw?

  I guess that's why.

• 21:19Melissa Murray?

  AKA the federal courts.

• 21:20Leah Litman?

  Yeah. But on the nail biter bit, you know, there are 70,000 people in Mississippi who are disenfranchised because they have a felony conviction. And 2/3 of those disenfranchised are black. A few years ago, the Supreme Court turned away a challenge to Mississippi's felony disenfranchisement provision. And that provision was originally adopted at a state constitutional convention where the president of the convention said, quote, "We came here to exclude the Negro."

• 21:51Melissa Murray?

  Yeah. History and tradition. Weirdly, the folks who are always so troubled by the history of black people being thwarted in the exercise of their Second Amendment rights were entirely unbothered on this occasion by Mississippi's history of thwarting black people on the exercise of their right to vote.

• 22:12Kate Shaw?

  In this Supreme Court's conception of the Constitution, bullets, but not ballots get constitutional protection. So anyway, all of this to say, this sort of, this is, you know, an under-inclusive recitation of many of the Court's interventions to degrade and undermine democracy. But all this to say that just because the voters overcame many, many obstacles to get to the result that we got on Tuesday does not mean that the Supreme Court's actions were no big deal, right? The people should not have to crawl over broken glass to cast their votes and participate in democracy. Competitive authoritarianism is still authoritarianism. So let's say it again for the folks in the back.

• 22:53Kate Shaw?

  So voter turnout here was massive enough to overwhelm the various distortions in the electoral landscape. But the distortions were there, they are still there, they were real, and the Court's rulings, once again, were a huge factor in creating them, which only makes the fact that they were overcome all the more incredible. So, having heard just that partial list, raise your hand if you have been personally or collectively impacted by the Supreme Court's effort to undermine democracy.

• 23:18Leah Litman?

  That's what I thought. So let's say it again with our whole chest. The Supreme Court did these things. Supreme Court reform has to be on any pro-democracy agenda. And we are going to dig into court reform at our panel tomorrow. And that will also be available as a bonus episode for those of you listening.

• 23:41Melissa Murray?

  All right. Another election slash SCOTUS crossover before we turn to the recaps. Jody Kantor and Michael Schmidt at The New York Times report that the Department of Justice is stepping up its criminal inquiry into the leak of the Dobbs opinion. Hmm. Huh. Okay. Okay. It is unclear what, if any, crime may have been committed by Martha Ann. With a Martherita in the library. Allegedly.

• 24:21Melissa Murray?

  But obviously, not having any clear evidence of any criminal activity has never stopped this Department of Justice before. So watch this space.

• 24:31Kate Shaw?

  I have to say, my initial reaction upon reading this story was, I guess, live by the unitary executive, die by the unitary executive? I mean, in Trump versus United States, that's the immunity decision. These guys, the Supreme Court, those guys, decided the Constitution basically means there is no stopping a lawless executive, even one who abuses the investigative and prosecutorial power. And, well, I guess sometimes that lawless executive comes knocking at the door of one First Street.

• 25:01Leah Litman?

  Chris Geidner, who runs the indispensable Law Dork Substack, floated the following theory, and we think he's on to something. So Geidner posted, quote, "Galaxy brain. Trump has Blanche indict Alito so he can replace him in The Lame Duck."

• 25:18Kate Shaw?

  This, this is, um, this, I think, if I'm using the meme properly, is some, like, unitary executive coming home to roost, like the me sowing, me reaping meme? Does that, is that, is that?

• 25:33Melissa Murray?

  Me fucking around, me finding out?

• 25:34Kate Shaw?

  Yeah. Maybe that one's better.

• 25:37Leah Litman?

  Enjoy those depositions, Sam and Martha Ann. But with, with the caveat that we are not political pundits, we'll leave that to our friends at Pod Save America, Hysteria, et cetera. You know, I did want to try and offer my own best take on what the Democrats' mandate is. So I prepared some notes to try to get this right. I'm pretty sure that the voters decided that as of tomorrow, or at least as of January 2027, the Supreme Court will be automatically converted into a Planned Parenthood facility. Vaccines will be dispensed by drag queens, who will also be conducting the new mandatory DEI and Critical Race Theory trainings.

• 26:19Leah Litman?

  Transgender witches will be enforcing the new billionaire tax that funds Medicaid, increasing the minimum wage, public education, housing, and the conversion of data centers into government-funded childcare and eldercare facilities. Abortions and non-monogamous polycule tarot card readings will be available at Targets nationwide, courtesy of Elon Musk and Harlan Crow. All of the months will be Black History Month and Pride. All football games will be converted into gay or bisexual or COVID-conscious lesbian hockey games.

• 27:03Leah Litman?

  Every game of every sport will begin with a land acknowledgement to be read by Fifth Circuit Judge and aspiring Justice Jim Ho. Or if he's too busy auditioning Kid Rock. The chick song "Not Ready to Make Nice" will be the new national anthem. And the Pledge of Allegiance in Texas. Everywhere else, the national anthem will be the cover of all the things she said from heated rivalry. Or Kendrick's "Not Like Us." Options because we're pro-choice. That's the first part of the mandate. The second is like a little bit more specific. Remember Susan Collins? I'm a little concerned.

• 27:47Leah Litman?

  I'm a little concerned that she only called Troy Jackson to concede and didn't call and concede personally to every single woman of reproductive age in these United States. And in conclusion, I maintain that one part of the Democrats' mandate is that when Susan Collins packs up and leaves DC, she has to take Brett Kavanaugh with her. Pretty sure I got that right. Any questions?

• 28:15Kate Shaw?

  I mean, she says she's not a political pundit. Come on.

• 28:19Leah Litman?

  I've been mainlining those gluten-free, vegan, gay Islamic vaccines since Tuesday night.

• 28:25Kate Shaw?

  Wow. All right. So while we are decoding slash announcing the new rules of the road, we would like to acknowledge one more irrefutable and irrevocable law of the land, which is that if you are a guest on Strict Scrutiny and you go on to run for office, you win your election. It's a fact. So Roy Cooper, Juliana Stratton, Ellie Savitt, Anita Earls, while he was never a guest on Strict Scrutiny, we should note that Leah and I were both guests on Abdul Al-Sayed's Crooked podcast, America Dissected. Note Leah's shirt if you haven't seen it. So.

• 29:08Leah Litman?

  The shirt says it's Senator Abdul.

• 29:17Leah Litman?

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• 31:29Leah Litman?

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• 32:11Leah Litman?

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• 32:56Leah Litman?

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• 33:10Leah Litman?

  All right. That was really fun. Now, let's turn to oral arguments.

• 33:17Kate Shaw?

  Yeah, this is going to be depressing, guys. So we are going to relatively briefly cover the biggest case the court heard last week, St. Mary's Catholic Parish versus Roy, a case that involves, as Melissa already mentioned, Colorado's universal pre-K program, which provides parents with free access to preschool education. In order to be eligible for the state program and the state funds that come with it, participating schools may not discriminate against prospective parents or students on the basis of certain characteristics, including sexual orientation and gender identity.

• 33:47Melissa Murray?

  And St. Mary's Catholic Parish, along with five, possibly six, of the Republican justices, took that personally. It seems that the parish believes that requiring conservative religious schools to abide by a generally applicable nondiscrimination requirement violates its constitutional right to free exercise of religion. To put it differently, not only is St. Mary's constitutionally entitled to public funds to subsidize religious education, it is also entitled to discriminate against gays, lesbians, bisexuals, and transgender people while also taking those public funds. Sounds constitutional to me.

• 34:28Leah Litman?

  They apparently did not get the message that gay marriages are now performed during first period and homeroom, and that drag queen story hours are offered every hour on the hour at Chick-fil-A, which is now known as either Chick-fil'they or They-Fil-A. Take your pick, assholes. Woke three.

• 34:49Kate Shaw?

  Are we, are we living too close to the sun, guys?

• 34:54Leah Litman?

  There's no such thing as living too close to the sun. You gotta lib, love, laugh.

• 35:01Kate Shaw?

  Okay, back to the case.

• 35:05Leah Litman?

  You guys are cynical, okay? Really cynical.

• 35:10Kate Shaw?

  As, you know, this case really is about a constitutional entitlement, an assertion of a constitutional entitlement to discriminate against LGBT people using public funds. That's what the case is about. And Justice Sotomayor basically got St. Mary's lawyer to admit that in this clip.

• 35:27Speaker 06

  Your bottom line is, let's get to it. Your school can reject a child because their parents are homosexual. I would say the bottom line rule is Catholic. Is that the bottom line? The bottom line is if it's a public benefit. Let's get to the bottom. I'm asking you a direct question. Your Catholic schools will reject the child merely because their parents are homosexual. I would say if it's the sincere religious exercise of the petitioner, then I think that would be permitted.

• 35:59Melissa Murray?

  As we mentioned in our last episode, and as Justice Jackson repeatedly underscored during the argument, St. Mary's is not really asking for equal treatment. Because equal treatment would be complying with the generally applicable nondiscrimination mandate that every other participating school complies with in exchange for receiving these public funds. What St. Mary's is asking for is actually different special treatment.

• 36:26Leah Litman?

  Yes, yes.

• 36:27Melissa Murray?

  Correct, okay. And at oral arguments, Justice Sotomayor, Justice Jackson, Justice Kagan made clear that if we followed St. Mary's logic to its conclusion, it would allow religious entities to claim a free exercise violation if, as a condition of public funding or under some other general rule that the government could adopt, they were asked to refrain from discriminating on the basis of race or sex. And the lawyers for the parish and the Trump administration, which predictably joined St. Mary in arguing for a constitutional right to discriminate, tried to swat away these objections by just declaring, by fiat, that race and sex are just different, right?

• 37:12Melissa Murray?

  Kind of like the Federal Reserve is just different.

• 37:16Leah Litman?

  I can see it now. Race and sex are uniquely structured quasi-private entities that follow in the distinct historical tradition of the First and Second Banks of the United States. That sentence makes about as much sense as the one the court used to describe the Federal Reserve Board.

• 37:35Kate Shaw?

  I truly love that only in DC could that joke land, the way it just did. But it really did. Thank you, all of you.

• 37:41Leah Litman?

  Never change, DC, no.

• 37:44Kate Shaw?

  But, you know, we are pretty sure we know how the court is going to come out in this Colorado St. Mary case. Once again, the Republican appointees really kind of phoned it in to the argument because, you know, when you have six votes, five, definitely, probably six, you don't even really have to try.

• 37:59Leah Litman?

  They just let you do it.

• 38:00Kate Shaw?

  They just let you do it. Take a listen.

• 38:02Speaker 02

  And then, just to follow up on Justice Barrett's question, do you think strict scrutiny, as announced in Sherbert by Justice Brennan, and in Thomas, and then again in our series of public benefit cases more recently, is a reasonable construct?

• 38:21Kate Shaw?

  ...of the original meaning.

• 38:23Speaker 07

  So just to pick up on that, as a matter of original meaning, you're saying that the free exercise clause is more than simply a protection against explicit discrimination.

• 38:34Melissa Murray?

  Yes.

• 38:35Speaker 07

  Against religious groups.

• 38:36Kate Shaw?

  Yeah, I mean, Shorter, Kavanaugh, Gorsuch, Barrett as well. The original meaning is basically whatever I want the law to be. Wouldn't you say, counsel? Yes, definitely. That's sort of the TLDR.

• 38:46Speaker 07

  Zero juice, these guys. Really, the Vivek Ramaswamy and Ken Paxton of Supreme Court justices. You can guess which is which. Neil is Vivek and Brett is Ken. Yeah. There were a few other, actually many, maddening things about this argument as well.

• 39:05Kate Shaw?

  Yeah, so one is that Justice Alito decided to hard-launch a new theory of discrimination. He began with the observation that, under the court's current case law, it would be unconstitutional if a state excluded all Catholic pre-K schools, and would be unconstitutional if the state excluded all pre-K schools that offered Catholic teachings. Okay, fine, descriptively. But then, Sam reasons, isn't it also unconstitutional for the state to exclude pre-K schools that refuse to recognize same-sex marriages, and also unconstitutional for the state to exclude schools that discriminate against the children of parents in same-sex marriages, because the state should know that that would negatively impact Catholic preschools?

• 39:45Speaker 07

  How do you like "they/them" apples? You know, look, like, John, Clarence, Sam, Neil, Brett, Amy, I'm merely interpreting the law and the mandate, and the law of woke 3.0 is that even food has pronouns. Also, Mississippi is "Mr. Sippy" or "Mix Sippy." Yeah.

• 40:04Melissa Murray?

  You're not dreaming big enough, Leah. Let's go really huge. Why don't we just, in this new woke 3.0 era, let's change Mississippi's postal code from MS to MX?

• 40:17Speaker 07

  Let's do it. Yeah. But back to Sam's new theory of discrimination, like, one issue with it is that not all Catholic schools require affirmation of the belief that marriage is between a man and a woman. And that means the state isn't discriminating against Catholicism as such, since there are Catholic schools able to participate in the program and actually participating in the program.

• 40:43Melissa Murray?

  But it's also never, ever, ever been the law that if policymakers know that their policy will negatively affect a certain group, that that fact, without more, means that the policy is illegally discriminatory against the group. That's never been the case.

• 41:00Kate Shaw?

  In fact, to the contrary, as Sam Alito very much knows, there are many, many Supreme Court cases saying, "Knowledge of a policy's likely effects is not sufficient alone to establish discrimination." For example, the court has said it is A-OK to create a hiring preference for veterans, knowing that, at the time, men were 98% of the veteran pool, and the policy would definitely disadvantage women applicants.

• 41:23Speaker 07

  Also, as Sam Alito knows, like, when Republicans engage in partisan gerrymandering, they know it has a predictable effect of depriving black voters of political opportunities, and yet he doesn't seem to think that that is a problem. But because Sam's new theory of discrimination is so, like, in an entirely different stratosphere than law, Justice Kagan had to do a little cleanup on Isle Alito. And so she explained that it was, quote, "Not like this is another way to get at Catholic people. It's like, we believe in anti-discrimination principles as applied to sexual orientation." Like, that's what the state is doing.

• 42:01Melissa Murray?

  So, in the last episode, Leah joked that we are not that far from the point where Chief Justice John Roberts is going to write an opinion saying something along the lines of, "The way to stop discrimination against religious conservatives is to start discriminating against gay people." We were just joking, but apparently, we were manifesting, because that's basically what Justice Alito is implying with his theory. He's basically saying that being anti-LGBT rights and being anti-marriage equality is so inextricably intertwined to Catholicism that it's not possible to prohibit discrimination

• 42:46Melissa Murray?

  against same-sex marriages without discriminating against Catholicism. So, the way to stop discrimination against religious conservatives is actually to start allowing discrimination against gay people. Did I get it right?

• 43:00Kate Shaw?

  I mean...

• 43:01Speaker 07

  And no, right? That's wrong, but, you know...

• 43:04Kate Shaw?

  You described...

• 43:05Melissa Murray?

  Did I get it right in this stratosphere of law that we're now in?

• 43:08Kate Shaw?

  Sure. Agreedably, yes. Okay, so at another point in the argument, we were treated to this claim that we should just allow discrimination, just a little bit of it, because what's the big deal? It's not like discrimination is really harmful, if you think about it, because the kids of gay parents can go to other schools, and they should just live and let live. Here is Coach Kavanaugh making that point.

• 43:31Speaker 07

  Why not seek the win-win? I mean, I raised this in the full oral argument, where there's a clash of rights, obviously, the free exercise right on the one hand, the same-sex marriage right recognized in Obergefell on the other. But there are 2,000 schools, there are only 34 Catholic schools, there are plenty of opportunities to respect the rights of the religious believers and respect the ability of LGBT parents to find, among the 2,000 schools, appropriate fit for their children.

• 44:10Melissa Murray?

  Who's gonna tell him? It's "lib and let lib," not "live and let live."

• 44:15Speaker 07

  Also, it's not a fucking win-win. And, like, hearing Brett Kavanaugh talk sounds like seeing Haley Stevens chewing on water. It's just bizarre. But I don't know who needs to hear this, except I do, it's Brett Kavanaugh, like, he needs to hear this. Like, that's not how anti-discrimination law works. People don't get to discriminate because the victims of their discrimination are free to seek better treatment elsewhere? That would be like saying, "We can do a little Jim Crow light, because there is some other school, some other restaurant, some other hotel for black people to patronize."

• 44:58Kate Shaw?

  Exactly. And Kavanaugh also sort of made a variation on this argument. Yes, you can, you can definitely clap for that.

• 45:05Speaker 07

  The bar is in hell, because basic legal argument gets applause.

• 45:12Kate Shaw?

  When, and when it's contrasted with Brett Kavanaugh. So, he also gestured toward this kind of related idea that same-sex couples wouldn't want to send their kids to schools that don't believe in same-sex marriage anyway, and therefore would choose other schools. So, again, NBD, like, no problem.

• 45:30Speaker 07

  Problem. So, Colorado's excellent lawyer, truly superb, Helen Norton, pointed out, you know, sometimes parents choose schools based on location or other factors of convenience, and allowing schools to discriminate against gay parents would restrict those parents' ability to choose schools based on those factors. And also, this is also not how anti-discrimination works. I probably don't want to work for a big misogynist, but that doesn't mean an employer gets to engage in sex discrimination because women don't want to work for him.

• 46:06Melissa Murray?

  America's favorite father of daughters then went on to suggest that allowing discrimination against gays, lesbians, bisexuals, and transgender people is necessary to protect girls. Yes, Brett Kavanaugh has one gear, and it is bastardizing feminism, so let me tell you about it. During the argument, Coach K focused on the fact that Colorado allows single-sex preschools to participate in the universal preschool program. "Wasn't this impermissible discrimination?" asked Coach K. "After all, if you were the father of daughters, and the closest preschool was an all-boys preschool, that would be inconvenient.

• 46:51Melissa Murray?

  Wouldn't that subject your daughters to impermissible sex-based discrimination?" Again, Shorter, Brett Kavanaugh, "The fact of single-sex preschools means that Colorado must be required to allow schools to discriminate on the basis of other characteristics, such as sexual orientation and gender identity." And again, news flash to our favorite father of daughters, anti-discrimination laws do not prohibit all discrimination on the basis of every possible characteristic. Title VII, for example, prohibits discrimination on the basis of race. It does not prohibit discrimination on the basis of being dumb. And that does not make Title VII unconstitutional.

• 47:35Kate Shaw?

  Also, Melissa, you, on a related note, really called it when we previewed this argument, which is that Coach Kavanaugh was extremely concerned, per usual, about anti-Catholic discrimination, which, to be clear, would be totally fair if he was equally open to and concerned about other sorts of historical discrimination on the basis of sexual orientation, say, or race. Here he is, again, with Colorado's really excellent Helen Norton.

• 48:03Speaker 07

  The director of the program, by all accounts, dutiful public servant, but was asked at the trial, "Are you aware that Catholics have historically been discriminated against?" And she answered, "No." I was surprised by that answer, and curious if that's Colorado's position. Not at all, Your Honor, and it's Colorado's position that the equal opportunity requirements help religious families. They ensure that Catholic families are not turned away from the UPK school that best meets their needs because of their faith or because of any other protected characteristic, and a history of discrimination against Catholics is among the reasons that requirement

• 48:48Speaker 07

  is so important.

• 48:49Kate Shaw?

  Honestly, if, there's a lot of, like, oral argument stands in the room, clearly. Fire up the oral argument and listen to it, if you can stomach it. I mean, it's, a lot of it's tough, but Norton really is extraordinary in it. So, if you, if you like that clip, listen to the whole thing.

• 49:04Melissa Murray?

  But you'll also have to listen to knuckles being dragged across the table, so, you know, up to you. There's just no way to sugarcoat it. It doesn't look great for Colorado in this case.

• 49:17Speaker 07

  Or the Constitution.

• 49:18Melissa Murray?

  Or the Constitution. So, between Brett, Sam, Neil, Amy, to say nothing of Clarence, you know what? Let's actually say nothing of Clarence. Let's, yeah. It doesn't look promising, that's all I'm going to say.

• 49:35Speaker 07

  Yeah. The argument was a pretty depressing way to start Tuesday, but then, we, the people, turned it around. With that in mind, I have one note for Brett.

• 49:46Leah Litman?

  ... et cetera. Enjoy this victory for Catholic preschools because the war on Christmas is about to replace the war on Iran. I went, I went to Starbucks this morning and my cup said, "Happy holidays." It's already started.

• 50:07Leah Litman?

  And that's because this was not just a blue tsunami. It is a blue wormhole, something you pass through and then come out on the other side in a completely different dimension.

• 50:22Leah Litman?

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• 51:49Leah Litman?

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• 52:21Speaker 07

  Corrupting our democracy works best when we forget that we, the people, are in charge. I'm Stacey Abrams, voting rights advocate and host of Assembly Required. In my podcast, I'm talking with some of the sharpest minds in politics and in civic activism to help us figure out how to fight authoritarianism and win. My podcast doesn't just diagnose problems. We give actionable steps to help you feel a little more connected and a lot more empowered to make change in your communities. So check out my podcast, Assembly Required. New episodes drop every Tuesday on YouTube or wherever you get your podcasts.

• 53:12Kate Shaw?

  I think we have spent ample time in the Coach Kavanaugh dimension, so let us go through this blue wormhole and enter a new delightful dimension, the Sherrilyn Eiffel dimension. Stricties, please join me in welcoming to the stage the great Sherrilyn Eiffel.

• 53:36Leah Litman?

  You all know who she is. Sherrilyn Eiffel needs no introduction, but let me offer a very brief one. Sherrilyn is the former president and director of counsel for the Endile ACP Legal Defense Fund.

• 53:54Leah Litman?

  She is also the founding director of the 14th Amendment Center for Law and Democracy at Howard University School of Law.

• 54:07Leah Litman?

  H-U.

• 54:10Leah Litman?

  That was weak. H-U.

• 54:15Leah Litman?

  In addition to all of that, she is one of the smartest, coolest people in this entire game, and we are so delighted to welcome her back to Strict Scrutiny. So Sherrilyn, right after the court's decision gutting what remained of the Voting Rights Act in Louisiana versus Calais, you went on The Daily Show and called for Supreme Court reform. And then, right before the election, in your must-read Sherrilyn's newsletter, you wrote about the importance of maintaining, quote, "democratic discipline to urge accountability and block abuses of power." And you reminded us that doing this work means that, quote, "Democrats must begin to lay the foundation for structural transformation that can better support a reimagined and resilient democracy."

• 54:58Leah Litman?

  Hearings on Supreme Court reform should be scheduled in 2027 to begin to educate the public and to explore with experts the variety of measures that have been proposed. Okay, we recognize that answering this question could take up this entire show. But why Supreme Court reform? Why does the court have to be a part of any agenda focused on accountability and blocking abuses of power?

• 55:26Speaker 07

  Yeah, first of all, just, I'm always so thrilled and honored to be with all three of you together, which is like the super treat. So thanks so much for having me. Shout out that there is a bar, which I didn't know in the back.

• 55:41Kate Shaw?

  I think the lady needs a drink for afterwards.

• 55:42Speaker 07

  Well, I didn't want to be the one to say it.

• 55:46Speaker 07

  No, it's, it's, it's an important question, and I just keep hammering it because I'm worried, you know? We have, all around us, collapsing institutions. That's how we ended up here. The institutions that undergird democracy, that undergird healthy democracies are collapsing, right? And so that could be the media, that could be faith institutions. It's certainly our political system without question, but it is also the Supreme Court. And if we delude ourselves into thinking that electoral victories, you know, are victories that are in and of themselves, they are portals, they are preparation, they allow you to make the other kinds of changes that you need to make, right?

• 56:31Speaker 07

  So if you have a certain kind of election and you elect certain kinds of people, then you can pass legislation that regulates the tech industry, right? You can pass legislation that ensures separation between church and state. There are all these things you can do. That's what elections are for. But one of the things that it's for is to allow you to have the power to shore up the other branches of government that have shown themselves to be weak and cracked at their foundation, and the Supreme Court is certainly one of them.

• 57:01Leah Litman?

  Yeah. I mean, one way, like, I kind of think about this is, like, we have to learn lessons from what the Biden administration didn't do and their errors. And I think they had the view that you kind of summarized, which is, we won the election, let's just look forward. And lesson of history, right? If you let fascists go and don't hold them accountable, they come back worse and stronger, right? Like, from Trump 1.0 to Trump 2.0. So then it's this lesson of, and are we just going to say, oh, we won an election, the Supreme Court is going to be fine now? On that note, if we are focused with this new supermajority in Congress on accountability, how does that cash out in terms of SCOTUS reform?

• 57:47Speaker 07

  Well, my own view is that there are multiple levels of SCOTUS reform, and I think you have to take them in stages. Some parts of SCOTUS reform, at least in my mind, that I've been wrestling with and I'm writing about, that are, have nothing to do with legislation. It has to actually do with the rules by which we confirm Supreme Court justices. So those are rules of the Senate Judiciary Committee.

• 58:11Leah Litman?

  So breathalyzer tests?

• 58:14Speaker 07

  Perhaps. But I just, I mean, I think that Supreme Court confirmation process is broken, and it's not separated from the other problems that we see with the Supreme Court. I don't think that we have, that we are giving ourselves the best opportunity to get the personnel that we need for a 21st century Supreme Court in a country that purports to be at least one of the most powerful in the world. I just don't think so. I think when a Supreme Court is confronted with the, the threat of partisan gerrymandering and the threat that it makes to democracy, which the court concedes that it's like anti-democratic, and then looks at solutions and says, that's all gobbledygook because they can't figure it out, that's evidence that you don't have the right person.

• 58:57Speaker 07

  When that person thinks that the only way to end discrimination based on race is to end discrimination based on race, right? That is, that is a statement I think we tend to attribute to particularly the conservative justices, everything to ideology, and I increasingly attribute a lot of it to limitation. I think they're just limited. I don't, I really think they, they are not equipped to be able to solve the kinds of problems that they have to solve in a country of this magnitude at this time. So that's one thing, and that's, that's not even legislation. And then, of course, it's, you know, ethics, and then it's grappling with adding seats to the court, which is, you know, I think, not a hard thing to do, honestly.

• 59:40Speaker 07

  And then this question of, you know, term limits, that's a little bit more tricky. But I think in stages, it's important, and you have to get started on it right away. Because one of the problems is, this job is too enjoyable. Like, no one is watching, no one can tell you what to do. And that's nice, on one hand, and I'm all for the independence of the judiciary. But I also think that, like, nothing happening to you when you don't file your financial disclosure forms is a problem.

• 1:00:14Kate Shaw?

  Yeah.

• 1:00:15Speaker 07

  So we have to figure out ways to make it a little less comfortable.

• 1:00:18Kate Shaw?

  Yeah. And I think, we want to follow up, I think, on some of the specifics, but maybe just to quickly ask you a little bit more about the kind of first answer you gave, which I think was so correct. So, elections, right, they feel great right now, but they're instrumental. They are about actually getting into place the people who will make the policy that channels the will of the sovereign people, right? Like, that is the point of the whole enterprise. But this Supreme Court is going to be a major obstacle to the effective passage of most of the policy preferences of the people who chose the majority of members in Congress as of January. And so, maybe to just ask one specific question. So, the numbers on, the kind of polling on corruption as a motivating issue, as a top

• 1:01:01Kate Shaw?

  campaign, as a top electoral issue for voters, was really striking, right? This is something that people said both before and after the election was either their first or second most important issue. This is an issue that can seem really abstract, but doesn't right now to people. So you can imagine a Congress doing a lot to actually try to legislate to respond to the problem of corruption. But this Supreme Court has been just single-minded in its hostility to anti-corruption federal statutes. It has struck down law after law. It is clearly skeptical about any law that would purport to do anti-corruption work with respect to the justices, but even elected officials more broadly. So, I guess, just to sort of put a finer point on the problem, is the court going to

• 1:01:45Kate Shaw?

  allow the democratic mandate that we saw last week actually to take effect?

• 1:01:50Speaker 07

  No, they're not. And I think, I think this is really important, and it just has to be faced, and it's very pragmatic, because I get people who say to me, "Well, you know, we can't just keep changing the court because you don't like the substantive decisions that they're making." You know, because I'm a student of Reconstruction and the Fourteenth Amendment, and I know what the Supreme Court did to essentially gut that constitutional amendment and a series of decisions that over 30 years essentially turned the Fourteenth Amendment into a dead letter, and the Fifteenth as well. I do, and I know what flowed from that. I know the, the consequences that were felt by black people in this country.

• 1:02:30Speaker 07

  I know what it meant to have, you know, 5,000 lynchings between the 1880s and the 1930s. I know what it meant for black people to be assigned to sharecropping and domestic work as their lives, and to be left out of even New Deal legislation that would have changed their lives. So, I know what it means to be a second, feel like a second-class citizen, or to feel like you can't make a better future for your children. I know what happened to those people. Now, if what you're telling me is that in a democracy, as citizens, we can see that happened, and we have to accept that it will happen again, without doing anything about it, because we don't want to seem like them, or we don't want to seem like we're not being

• 1:03:13Speaker 07

  ethical in terms of the court, I just, I reject that. I think if we see the path that we're headed down, and that path involves terrible pain, terrible pain and dislocation for people, and also the destruction of the core of our democracy, I don't think we have to sit idly by and watch it. And in this case, this court, the corruption piece is a great example. Every time I think about the fact that a majority of the justices that sit on this court are justices who were in the dissent in a case called Caperton versus Massey that was about judicial corruption, you know, state, and if that case comes before them again, they would definitely rule the other way. They would say it was okay for a state Supreme Court judge to have that kind of connection

• 1:03:58Speaker 07

  with, you know, mine owners, as they did in West Virginia in that case. Every time I think about that, I'm like, they're not going to do it. They're not going to allow it to happen, and we don't have to sit idly by and just watch that. We can, we can decide for ourselves, as a people, that there is objectively something called democracy, and that this court has been in the, in the business of restricting, not expanding, democracy, and that that's not okay. I think that's, I think we could get to do that.

• 1:04:29Kate Shaw?

  Yeah.

• 1:04:36Speaker 07

  One of the reasons, like, I loved your call for hearings to begin immediately on Supreme Court reform in 2027 is that, in addition to the exit polling on corruption, Kate, that you mentioned, like, I really think, looking at the bigger picture, it feels like voters rejected so much of what the Roberts Court has done, because it wasn't just the corruption, it was the abusive immigration enforcement, right? Grabbing neighbors and family members off the streets and disappearing them. The racial discrimination, right? Not just the racial profiling, but the dismantling of the Voting Rights Act and mid-cycle redistricting, you know, and the court allowed them to do that. The court gave the Trump administration an unprecedented 25 straight wins on the shadow docket.

• 1:05:21Speaker 07

  And, so they have enabled, right, the very things that voters rejected, and I think hearings could really draw a connection between those two. Yeah, and I don't say that we should be cavalier about Supreme Court reform. I think it's important. I am actually an institutionalist myself, which is why I support Supreme Court reform, because I think tremendous harm has been done to the institution. People in a democracy have to believe in something. You know, I don't, I don't think it's naive that, you know, people want to have confidence in the Supreme Court, or want to believe that their president is a person of integrity. I think we have been harmed. I think it feels terrible. I think we have been spiritually harmed by having, as the leader of our country, someone that is so base, and having that person on the world stage saying the things that they say, and being the way that they are.

• 1:06:05Speaker 07

  I think that harms us as a country, as a democracy, and we feel it. That's why we feel sick, you know? And, and, and so I think, so I think, I know how I felt after Louisiana versus Calais and Allen versus Milligan, the two cases that, you know, essentially completed the job of dismantling the Voting Rights Act, not just because I've been a voting rights, you know, lawyer for a long time, and, and there was a part of it that just felt like, "Wow, 35 years of a career, what was, you know, what was that?" You know, that, that felt very pain, personally painful. But it's also true that, we, I take very seriously what it takes for people to participate in democracy movements, you know, around, around the world.

• 1:06:47Speaker 07

  And if we recognize that the civil rights movement was a democracy movement, the most successful democracy movement of the 20th century, to be honest, and completely changed this country, and, you know, the many sacrifices that went into that, the people who lost their lives, the people who were injured, all of that, and to see a court take what, you know, we consider to be the most successful statute to emerge from that period and dismantle it in this way, it's, it's, it is really harmful, you know? It is, it is not just, "Oh, we don't have the Voting Rights Act." It is, it is a rebuke of history. It is a rebuke of sacrifice. It is a rebuke of a democracy movement. It is a rebuke of one of the high points of the history of this country.

• 1:07:32Speaker 07

  So, I, I, I just think we have to be serious about what is facing us and confronting us, and now we have to go about taking it on. And the reason I say hearings is because, and I said to educate the public, because it's not a small thing. And we need to be having these conversations, not just in the Howard Theater, but like, you know, we need to have C-SPAN, like, showing the conversations that we're having about what the history is, about why this is consistent with what we should think our power is, why we don't have to feel completely disabled before the Supreme Court, why they are part of our democracy and not above it. You know, all the things that we need to understand, and the powers that Congress currently has,

• 1:08:13Speaker 07

  even if, you know, Justice Alito thinks they don't have any power, period.

• 1:08:18Kate Shaw?

  Yeah.

• 1:08:19Speaker 07

  You know, I think we need to educate the public, because you do need the public's support for something like this.

• 1:08:23Kate Shaw?

  Yeah.

• 1:08:24Speaker 07

  And so we should have those hearings.

• 1:08:30Kate Shaw?

  So maybe we'll ask a couple of specific questions about, you know, we'll go deeper, as we said earlier, on some of this tomorrow. But just to underscore one thing you said about institutionalists, I really do think this is such an important point that I think that there was an impression for some time that this was a radical position, Supreme Court reform. And I do think that it is now a position that should unite radicals who want to completely tear down our institutions and protectors and guardians of our institutions. I actually think we can all agree that the Supreme Court desperately needs reform and that reform is consistent with the Supreme Court exercising the constitutionally appropriate amount and kind of power. So constraint legitimates power, actually, I think.

• 1:09:14Kate Shaw?

  I don't think it's about stealing their legitimate authority. I think it's about correcting this outsized authority that they have asserted. And so I do think that people who identify as institutionalists like you, and I do also, I really do think that there is value in people who come from a lot of different places converging on the imperative of Supreme Court reform.

• 1:09:33Speaker 07

  Well, and there's a narrative part to, Kate, like, taking back the language. Why do I not get to be an institutionalist? People say that John Roberts is an institutionalist.

• 1:09:42Melissa Murray?

  He is an institutionalist.

• 1:09:45Speaker 07

  Oh, oh, okay, okay.

• 1:09:47Melissa Murray?

  It's not the same.

• 1:09:48Speaker 07

  The emphasis, the emphasis.

• 1:09:49Melissa Murray?

  It's not the same.

• 1:09:50Speaker 07

  I mean, I just think if you were a CEO and you had, you know, a company that started out with a stellar reputation, right, that it was the one company that most Americans believed in, and you, for the first time in, you know, the history that we've been kind of polling these things, now you're underwater that a majority of Americans don't have confidence in the Supreme Court, right? And if you were the CEO of that company and there had been something that had never happened in the history of that country before, a leak of massive proportions that suggests someone in there does not respect either your leadership or the mores and traditions of the court.

• 1:10:33Speaker 07

  And then you did an investigation yourself of that, and then years later, there was another leak, like, just recently, right, about the original shadow docket opinion, right? I mean, I'm just saying, if we just took it out of the, like, hollowed frame of the Supreme Court, are you an institutionalist? Because people are saying, like, we don't have confidence in you because we found out that you all were, like, going to Alaska and having glacial martinis with millionaires and flying, and that seems like a problem. And because some, you know, one of your spouses was flying flags upside down that suggested making common call, like, you're not going to put your foot down? You're the chief, and you're not going to be like, let me tell you what's not going to happen, Sam, right? Or whatever, right?

• 1:11:18Melissa Murray?

  Let a black woman be Chief Justice.

• 1:11:20Speaker 07

  I'm just saying.

• 1:11:21Melissa Murray?

  Let a black woman be Chief Justice.

• 1:11:22Speaker 07

  That part. I'm just, I'm just saying, I don't think that you get to just say, like, you're an institutionalist because people just say that. Like, you have to actually show it. And so I think we have to also pull back the language. Why do we get to be the crazy radicals and they get to be, and he gets to be the institutionalist? I don't see it that way. I come into the court, I disagree with so much of what they do, I still feel a little something when I go up those stairs, I still go listen to arguments, I still, I still dress conservatively when I go into the court, I sit there and I listen, I don't roll my eyes and mouth, not true, I just, I...

• 1:12:00Kate Shaw?

  So who is the real institutionalist?

• 1:12:02Speaker 07

  Even when they're saying things I think are crazy, like, I respect the court as an institution. So I'm not going to allow myself to be herded into some category while they take the high road of being institutionalist because the evidence is not there.

• 1:12:16Leah Litman?

  You don't get up and say, "Well, do you have a drinking problem, Your Honor?" No, no, okay, yeah, me either, weird.

• 1:12:25Melissa Murray?

  It's such a good point, though. If John Roberts had been a CEO of a public or a private company and suffered these kinds of knocks on his watch, we would be singing that "You About to Lose Your Job, Catch This Beat." It'd be a whole different thing. I mean, like, life tenure is working for him.

• 1:12:48Speaker 07

  We all know deans and other people have lost their jobs because of stuff like this. So I get that they don't, you know, that he has lifetime tenure, but I don't have to also add on to that that, oh, yes, he's a great institutionalist, when this is the record.

• 1:13:01Melissa Murray?

  So another thing we ought to think about is, this court has shown us what real YOLO energy looks like. You know, when you have your supermajority, you only live once, like, you got, you got to do it. That's kind of the energy we need to adopt in this moment, right? So how do we push for more, to imagine bigger, better, at a time when the risk is, if we don't push on court reform right now, the Supreme Court just sort of lays there like a loaded gun? And we saw this happen before. Like, we saw this happen when the Democrats won the midterms and the court sort of backed away from demolishing the Voting Rights Act and they decided Milligan, and then they

• 1:13:45Melissa Murray?

  came back three years later and, like, totally crushed it. Like, if we leave this loaded weapon on the table, we are, we are doing ourselves a disservice.

• 1:13:56Speaker 07

  I mean, Jesus, John Roberts has been trying to kill, you know, the Voting Rights Act since 1982. That is like, what, you know, talk about, it comes back. It's like, it doesn't go, it waits, it lurks, it crouches, it, you know? But I guess I would say something else as well. You know, I take my lessons from Reconstruction, and I think that, because I do think it is that serious, what we have seen in this country, and at some point after we've passed a few years and we've all had some therapy, we will be able to actually face how freaking dangerous this has been and how scary it has been and how many people have suffered as a result.

• 1:14:39Speaker 07

  And how many years of our lives have been taken with just the uncertainty and just the grotesque nature of what we have been compelled to experience and accept. So I think that if, the only reason we would not swing for the fences is because we have not been able to process and confront that reality. And, and so I think we really do have to, in very short order, process that reality. This is not normal, this is super scary, really terrible things have happened, and we haven't even had the worst, you know, happen yet, and I pray we won't. So I think we just have to take responsibility, and I think we're seeing other countries do this. I think we saw the new leader in Hungary who's like, "Let me tell you what's not going to happen," you know?

• 1:15:23Speaker 07

  I think that, you know, we can't be scared off by things like people saying, you know, "We don't want to get even, we don't want retribution." We do want accountability. It's, we don't, again, it's like, it's backwards, it's backwards, you know? We get, we get tarnished with this language that's supposed to scare us off from doing what we're supposed to do. And we're not accepting the fact that we had a long period of no accountability that I think actually has something to do with the moment that we're in. You know, we saw Abu Ghraib, and we saw the excesses during the Iraq War, and, you know, I go back to, I ran contra, I hate dating myself, but yes, you know, there's all that's like, you know, the pardon, Gerald Ford, like, we, this is what we do. We blow past these things without really, without true accountability.

• 1:16:08Speaker 07

  And so I, and how has that worked out for us? Like, how, how is it possible? And so that's the question I always ask. If your democracy is strong, how does some guy get to come down an elevator, like, you know, with his wife in a white dress and just steal your democracy in just, like, two years? Like, how does that happen? It means you weren't strong. So we have to actually recognize that what we thought was strength, you know, staying above it all, was actually not, it was weakness, it was, it was not wanting to be confrontational. So I think now we have to be mature enough to recognize, and it's not fun, I'm actually not a confrontational person, I like to, you know, I like to binge, you know, slow horses, I don't want trouble, you know what I mean?

• 1:16:52Speaker 07

  But, but, you know, notwithstanding being a civil rights lawyer, I feel like trouble comes to me, I don't go looking for it, you know? And so I just think we're, we tend to be non-confrontational, but some real terrible shit has happened, and we cannot let it go, and it's still ongoing, that's the worst part. It's happening right now while we're, while we're sitting in the Howard Theater. So we, we don't really have the luxury of, of taking the high road, and it has not served us well at all. So, so we got to go about swinging for the fences.

• 1:17:22Melissa Murray?

  Game? Okay, okay, so, that's a good note to end on for the substantive part.

• 1:17:32Leah Litman?

  Yes, and as promised, as promised, we're going to end with a game. So, when we were planning for the live show, we thought we'd play a game of how to give a Supreme Court justice the boot and brainstorm ways we could get Thomas Alito, Kavanaugh Gorsuch, Barrett, or the Chief to quit after January 2027. Ideas included forcing Alito and Thomas to work on their favorite holidays, January 6th, or requiring all justices to take a breathalyzer and pass an IQ test. That one would address Brett. But here's the thing, we were so overcome with this odd feeling, I think it's called joy and hope and excitement, so we changed things up last minute.

• 1:18:12Melissa Murray?

  So we're going to play a different game. The name of the game is called This or That? And here's how it works. We will give you two choices. One is going to be something warm, fuzzy, rainbows and ponies goodness, things that we're happy about after the election. And then the other thing is going to be some kind of peppermint petty, petty LaBelle, schadenfreude, bad things happening to bad people stuff that also makes you maniacally happy. And we're going to ask Sherilyn to choose between the two.

• 1:18:53Melissa Murray?

  We're going to find out how non-confrontational you really are. Here's an example, all right?

• 1:19:06Speaker 07

  This is not, this doesn't count.

• 1:19:08Melissa Murray?

  This doesn't count. This is just an example. It's like a hypo. Okay. The state of Georgia electing the first black woman governor, Keisha Lance Bottom, or Karen Hyde Smith likely losing her...

• 1:19:25Speaker 07

  Cindy, Cindy.

• 1:19:26Melissa Murray?

  Karen, Karen.

• 1:19:27Speaker 07

  Karen.

• 1:19:31Leah Litman?

  It's actually neo-Confederate Karen.

• 1:19:33Speaker 07

  It starts.

• 1:19:35Melissa Murray?

  Karen Heidsmith likely losing her Senate seat to Scott Colom, the guy she blocked from becoming a federal judge under Joe Biden.

• 1:19:48Melissa Murray?

  Scott Colom enters his petty Labelle era.

• 1:19:54Melissa Murray?

  So you get it, this or that?

• 1:19:55Speaker 07

  I gotta have those both. I gotta have them both. I can't this or that.

• 1:19:58Melissa Murray?

  No, no, no.

• 1:20:00Speaker 07

  I gotta have this and that.

• 1:20:01Leah Litman?

  We said that was the example.

• 1:20:02Speaker 07

  This and that.

• 1:20:03Melissa Murray?

  She can have both of those, okay? Okay, I'll start it off. All right.

• 1:20:10Melissa Murray?

  Watching MSNBC on election night and hearing former strict scrutiny roadie-turned MSNBC anchor Christopher Hayes chortling off-camera, "Wow, oh my God!" Every time a Democrat flipped a seat.

• 1:20:28Kate Shaw?

  Wait, did he really? I was not watching. Wait, did he really do that?

• 1:20:32Melissa Murray?

  Yes.

• 1:20:34Kate Shaw?

  Yes, yes, he did.

• 1:20:36Melissa Murray?

  Or watching Fox on election night

• 1:20:43Melissa Murray?

  and hearing Bret Baer and his hair caught on a hot mic asking Fox staffers, "How are we gonna spin this bloodbath?"

• 1:20:58Speaker 07

  That one is easy. I'm going with Bret on that one. I'm going with Bret.

• 1:21:05Melissa Murray?

  Sorry, Mr. Trump.

• 1:21:06Speaker 07

  Too much fun, too much fun, too much fun.

• 1:21:09Leah Litman?

  Okay, okay, I'm next. This.

• 1:21:13Speaker 07

  Okay, first of all, she kept these secret from us.

• 1:21:15Leah Litman?

  I did. We don't know what these are gonna be. I've got two, and I'll do the easier one first, the nicer one first. Okay, okay. This.

• 1:21:23Kate Shaw?

  Oh, this is so we couldn't save you from yourself?

• 1:21:26Leah Litman?

  Exactly. These are unedited and unfiltered. You guys have normally workshop this stuff.

• 1:21:31Speaker 07

  We have no idea how many things they took out of the show notes that I put in.

• 1:21:35Leah Litman?

  So many things have been taken out. No idea. Okay.

• 1:21:38Speaker 07

  So many things.

• 1:21:39Leah Litman?

  This, this, okay. Dems flipping 13 state legislative chambers, winning eight new trifectas, and flipping so many state Supreme Court seats that there are chances of progressive majorities after the 2028 elections on the North Carolina, Ohio, Texas, and Montana Supreme Courts.

• 1:22:01Leah Litman?

  This. Or that. After January 2027, Samuel Alito will likely need to stay on the Supreme Court for at least another six years, or else one Melissa Murray will automatically replace him.

• 1:22:21Speaker 07

  Damn, damn.

• 1:22:26Melissa Murray?

  That's a tough one. Even I'm torn.

• 1:22:28Speaker 07

  This is sick and diabolical.

• 1:22:30Melissa Murray?

  I'm sorry.

• 1:22:32Speaker 07

  I have a grandchild. I can't be making these crazy choices.

• 1:22:35Leah Litman?

  You said we had to do hard things for our democracy, Sherwin.

• 1:22:41Speaker 07

  Okay, but that still leaves five in the majority, so I'm gonna go with this. I'm gonna go with the first one.

• 1:22:46Leah Litman?

  That's fair, that's fair. Great choice, great choice.

• 1:22:49Kate Shaw?

  Sorry, Melissa.

• 1:22:50Melissa Murray?

  That's okay. I only want the hearing.

• 1:22:57Kate Shaw?

  Okay, here is mine. So this, that the young staffers responsible for, hopefully soon-to-be Senator-elect Scott Colom's epic campaign ads, you guys have seen these, the "Choose Another Protein" ad, the "I'd Rather Pick Another Senator." So good. The Senators ad in which Colom plays two Smoke and Stack-type characters. It is epic. Find and watch if you have not. Okay, so, the prospect that they will, the staffers responsible, I guess his brother did the Senators ad, but the young staffer responsible for the protein ad and colleagues

• 1:23:39Kate Shaw?

  will hopefully, if there's any justice, soon be running all social media slash communications for Congressional Democrats? That would be so good.

• 1:23:50Kate Shaw?

  Or that the person responsible for Vivek Ramaswamy's despicable ad deploying Amy Acton's estranged mother against her is likely without a job today.

• 1:24:05Speaker 07

  Well, I should say, first of all, the person responsible for that ad was really Patrick Gaspar.

• 1:24:10Kate Shaw?

  That's great.

• 1:24:11Speaker 07

  Who, yes, for the protein ad.

• 1:24:14Melissa Murray?

  Oh, I thought you meant the Amy Acton ad.

• 1:24:16Speaker 07

  No, no, the protein ad, it was executed by the staffers.

• 1:24:19Kate Shaw?

  But it was Patrick's.

• 1:24:20Speaker 07

  But it was the sick mind of our beloved Patrick Gaspar, who came up with the "Pick Another Protein" one. I don't think being out of a job is really enough for the staffer who did the Vivek thing.

• 1:24:34Leah Litman?

  So this, yeah.

• 1:24:36Speaker 07

  No, we're gonna need more. You're gonna have to up the game on that one. I'm hoping that there will be more. I don't know. Never get a job?

• 1:24:46Kate Shaw?

  Yeah, I'm not going, like, I'm anticarceral enough that I'm not... I don't wanna lock the person up, but never can show their face.

• 1:24:54Leah Litman?

  You didn't say he had to be locked up. We just said he had to be unemployed.

• 1:24:56Kate Shaw?

  Okay. An electoral, but also...

• 1:24:58Speaker 07

  Indefinitely.

• 1:24:59Kate Shaw?

  Okay, all right, okay, so if we up the ante to that.

• 1:25:01Speaker 07

  Melissa, you wanna give yours?

• 1:25:05Kate Shaw?

  I don't like yours.

• 1:25:08Melissa Murray?

  Yes, you do. Watch. The workwear guy on Blue Sky lusting after the cut of Jon Ossoff's jib.

• 1:25:19Melissa Murray?

  Or Donald Trump lusting after John Houston's deflated peaches.

• 1:25:28Speaker 07

  Well, since the second one, the "that" causes me to heave. I'm gonna go with this. I'm gonna go with workwear.

• 1:25:40Melissa Murray?

  Separately, and it is bear disgusting.

• 1:25:43Kate Shaw?

  Did that really happen? Did you hear him talking about that?

• 1:25:46Melissa Murray?

  Oh, yeah. Leah made me a mashup.

• 1:25:48Leah Litman?

  I created a mashup of videos for her to watch, yeah. I think that was last episode.

• 1:25:54Melissa Murray?

  You gotta listen. Can I just, one second, though, we'll pause the game for a minute. Did you all see that Vogue cover?

• 1:26:02Speaker 07

  I did. I did.

• 1:26:04Melissa Murray?

  With Barack and Abdul and Zorah.

• 1:26:06Leah Litman?

  Sometimes AI is okay.

• 1:26:08Melissa Murray?

  Well, let's just say, okay, and Jon Ossoff with those country little Zaticus Finch glasses, like...

• 1:26:16Melissa Murray?

  Like, if that's what AI is doing, I say, open the data centers.

• 1:26:21Leah Litman?

  Open them all, all of them.

• 1:26:25Melissa Murray?

  Every single one.

• 1:26:26Speaker 07

  We should shout out @Quantadini on threads.

• 1:26:32Melissa Murray?

  Oh, yes.

• 1:26:33Speaker 07

  Who started the Senator My Boo campaign.

• 1:26:36Melissa Murray?

  But didn't finish it. Because it's getting finished right here.

• 1:26:39Speaker 07

  Yeah, but she's a serious person who raised a lot of money for Ossoff over the last year by objectifying him.

• 1:26:54Melissa Murray?

  You love to see it.

• 1:26:55Leah Litman?

  We do.

• 1:26:56Kate Shaw?

  I think, Leah, we should let you end. Let me go, and then, I think, is there gonna be an...

• 1:26:59Leah Litman?

  Okay, yeah, you can go, and then I'll end, and then we'll close.

• 1:27:03Kate Shaw?

  Okay, so my next this or that. It's not spicy, but I guess true to form.

• 1:27:13Kate Shaw?

  This is re-elected North Carolina Supreme Court Justice Anita Earls vaguely Chariots of Fire-style victory video on social media. It was a little bit like, na, na, na, na, na. It was awesome and so joyful. Okay, or, and this is petty, this is the "that", the fact that the Democratic victories were outside of the margin of litigation almost everywhere, and even actually where they were close, I guess Mississippi TBD, but most Republicans decided to just take the L, which further underscores, actually, I won't even say anything about the current president, but I was actually gonna make a point about North Carolina, which is it underscores how vile, something we talked about a lot on the podcast was, which was Jefferson Griffin's ham-handed efforts to

• 1:27:58Kate Shaw?

  litigate his way to a victory on the North Carolina, and he was, in the previous cycle, ran for the North Carolina Supreme Court. Do you remember this? We remember, remember he hold it? But this remains one of the most galling things. He's a sitting jurist, and he was trying to litigate his way up to the North Carolina Supreme Court after having decisively lost by offering some novel theory after the election that would have thrown out tens of thousands of votes. Anyway, the fact that nothing that egregious happened this cycle actually underscored just how appalling his conduct was, and so that is my petty, that to contrast with Justice Earls.

• 1:28:32Speaker 07

  That's a good one, that's a good one. Well, first of all, I love Anita Earls. Grew up with her as a civil rights lawyer, amazing, amazing lawyer and jurist, really great win, loved seeing that video. But yeah, that actually felt good, just seeing the margin by which people, we didn't have to go through the shenanigans, you all didn't have to spend the next three shows breaking down completely baseless cases that, you know, nevertheless were holding up the show. And I will say...

• 1:28:54Melissa Murray?

  We're gonna break down other completely baseless cases.

• 1:28:56Speaker 07

  Other baseless cases, right, exactly.

• 1:28:58Kate Shaw?

  Plenty of material.

• 1:28:59Speaker 07

  And I will say, I am gonna do, I mean, my husband's here, he's gonna drive me home, so he doesn't know this yet, but I'm gonna ask him to drive by on M Street, the home of Blanche Kelso Bruce, the last elected Senator from Mississippi during Reconstruction who served a full term. I just think there's something so wonderful about the Scott Colom victory in particular that just makes me so happy. And so even though they're counting, you know, ever so slowly, I, you know, I just know how it's gonna turn out, and that just means so, so much.

• 1:29:37Leah Litman?

  Do you think they're counting, like, one Mississippi?

• 1:29:39Speaker 07

  Two Mississippi.

• 1:29:48Leah Litman?

  So Blanche Bruce actually factors into my this or that, so... Yeah, okay. This. Annie Andrews, the newly-elected Senator from South Carolina,

• 1:30:01Leah Litman?

  will hold the seat previously held by Confederate secession apologist John C. Calhoun and segregationist Strom Thurmond. James Talarico will hold the seat of Lyndon B. Johnson. The Democratic president...

• 1:30:17Speaker 07

  ...who signed the Civil Rights Act and Voting Rights Act. And after that said, I think we may have lost the South for your lifetime and mine. But in the first election after SCOTUS nullified the remaining provision of the Voting Rights Act, a majority of the former Confederate states will send a Democrat to the Senate in January. There's no "or." When Scott Colom becomes the Senator-elect from Mississippi. The next part was going to be the first black senator after, you know, the last black senator from Mississippi was Blanche Bruce, who was actually born enslaved.

• 1:30:58Speaker 07

  And Scott Colom winning the Forest District, named for Nathaniel Forrest.

• 1:31:03Melissa Murray?

  Nathan Bedford-Carron.

• 1:31:04Speaker 07

  Started the KKK. So that's the "this." I would read the other part of the "this," but I will start to cry. It's Alex Preddy's mom posting a picture of her son as a young kid with a "thank you to voters" and the "I voted" stickers on the memorials for Renee Nicole Good and Alex Preddy. That's the "this." I want both of those. It's all of it. You get to pick all of it. It's all of it. Because the "that" is the statistics showing Republican candidates performed worse in areas and districts where Trump held rallies. And... It's definitely, it's definitely the "this." It's definitely the "this." And that Democrats won districts with cheesecake factories.

• 1:31:47Speaker 07

  I love it. I love it. Oh, my God. That is great. I love, I love what you put together for the "this" because it just, it's, you know, I keep talking about the long game, you know, Ernie Suggs piece about, you know, the forebears of Keisha Lance Bottoms having been enslaved. And, you know, I talk all the time about having to play the long game and talk to my kids about it. And they don't want to hear it because they're not interested in the long game, which is really what's great about young people, you know, that they're impatient. No, it's true. That's, that's how things get done because they're impatient and they don't want to hear your arc of whatever. They want it to happen now. But it doesn't change the fact that it is true.

• 1:32:31Speaker 07

  And in, in, in church, we say something about running on to see what the end's gonna be. And I'm always telling my kids that, like, you just, you gotta stick around. You gotta stick around. And I tell them, and when it goes, it goes fast. I said, I lived through, you know, we thought Baby Doc, remember Baby Doc in Haiti? We thought forever. Marcos in the Philippines. Then you just woke up one morning. I mean, Chao Chesku came out to give, give a speech and somebody heckled him. And then the next thing we knew, they were dragging him through the streets. We were like, what? What happened? Right? So I just think when it goes, it goes fast. And you do have to stick it out. And, and I ask everyone that, and I would ask this, you know, audience that too. Is it okay with you?

• 1:33:13Speaker 07

  Are you still prepared to do the work even if you may not get to experience it? You know it's gonna happen. You know what the end's gonna be, but you may not get to see it. Are you okay with that? Can that be okay for you? And I think that's what we're being called to in this moment. Like, someone did it so certainly I could sit on the stage, you know, and, and so I could be a lawyer, so you could live where you live, so you could be married to who you're married to, so you could live in the house that you live in despite the covenant that probably is still in the deed and all that stuff. And they didn't get to see the outcome. And so all of that, everything that you said is just a reminder that we have the obligation,

• 1:33:58Speaker 07

  obligation to keep going even if we don't get the joy of seeing the end of the game. Because I feel absolutely confident. I don't have any doubt of what the end's gonna be. No doubt. And if I'm not there to see the end, it doesn't change the fact that the end is the end, you know, and it's gonna be better than what we have now. This is why she's the greatest. Please give it up for Sherrilyn Eiffel. And as always, we will end with our favorite things.

• 1:34:40Speaker 07

  So I have to say on the Sherrilyn, right, like, long game being okay note, like, as I was preparing for this note, I was like, I'm so happy. And I knew, and we've talked about this before, that like, I was okay, we were okay, doing this podcast, knowing that, like, Supreme Court reform, right, democracy reform, like, might not happen in our lives, in our professional lives. And on Tuesday, I felt like, oh, my gosh, it might happen. And that was just so incredible, so incredible. So that's obviously on the list of favorite things. Other things, Barrett Adair's Election Night Instagram post. If you don't know her, go check it out. She's incredible.

• 1:35:25Speaker 07

  She's gonna be a crooked con. It's hilarious. Okay. Stacey Abrams, Ayanna Pressley, Debbie Dingell, and Mallory McMorrow telling Haley Stevens to go pound sand and dragging her for a fill. Governor-elect Amy Acton not picking up the phone. When Vivek called her to concede and adding that she doesn't plan to speak to him. We stan a boundary queen. Also, a hello to some stricties in the wild I saw. Luke at Kroger and Ben at Albee.

• 1:36:09Speaker 07

  Always delightful to hear from you.

• 1:36:11Kate Shaw?

  I will add a few. I think it was this morning, maybe it was yesterday, but, but if you're listening on Monday, I think Friday's M. Gessen column in the New York Times about just not accepting an autocrat's worldview about kind of a politics of division and then tweaking it. This just goes to the kind of, I think, deep debate that's going to unfold within the Democratic Party. Do you try to make some changes on the margins or do you fundamentally oppose the autocratic worldview that you vanquished? And obviously, Gessen is in the latter column and makes a great, great case in defense of it. A couple of other things we haven't talked about. The young voter numbers. Incredible. Incredible. We each, we teach law students, we tell our students all the time, I mean, just young

• 1:36:55Kate Shaw?

  voters voted like this in every election, the world would look really different. It's just so exciting. Halloween in New York City plus Election Day meant like, just a couple of days of like terror and elation and just stress eating candy that turned from full body clenching into full body joy. And then getting to be here at the end of the week with all of you and with Sherrilyn. And can I shout out what Sherrilyn gave us? These pocket constitutions? I don't know how you get one.

• 1:37:24Speaker 07

  They're not pocket constitutions.

• 1:37:25Kate Shaw?

  Let me, but they're, they're not full constitutions. They are pocket constitutions of the most important part of the Constitution, which is the Reconstruction Amendments. With a little reading list at the end that you should check out. So I don't quite know how to get these, but like, you know, they're out there. This is pretty exciting.

• 1:37:44Speaker 07

  Check out, right, 14th Amendment Center for Law and Democracy. I'm sure it has many of the resources, you know, that are listed here and watch out for the programming there as well, for sure.

• 1:37:51Kate Shaw?

  And finally, Melissa called an audible and said as art director, we need to change our outfits and, and dress as a blue wave tonight. And she was right.

• 1:37:59Speaker 07

  Kay wanted to wear a forest green drab blazer. It's like, no, girl.

• 1:38:03Kate Shaw?

  And so shout out to Argent, who made our blazers, which we love.

• 1:38:07Speaker 07

  All right.

• 1:38:08Kate Shaw?

  Those are my favorite things.

• 1:38:12Speaker 07

  Favorite things, Election Night 2026. We just haven't felt this good in a really long time. Yeah. I mean, it's been pretty shitty. Yeah. So that was great. I genuinely couldn't even go to sleep. I don't think I've been up that late since the Obama administration, truly. So it's great. I'm also loving Min Jin Lee's American Hagwon. I think this may be one of the, this may be the great American novel as far. I mean, I think it's that great. So please. Yesterday, I spent the evening at Princeton talking to the youth about the Constitution, the Princeton Pre-Law Society, and I met some stricties in the wild.

• 1:38:56Speaker 07

  So let me shout out Tori, Ariana, Jamie, Maria, Melissa, Teddy, Issa, Dabby, Hannah, Andres, Alex, Anthony, and Noah. They were terrific. And then this morning, I had the great pleasure of spending time with the 7th and 8th graders at the Holy Trinity Episcopal School in Prince George's County. And these were some very well-read 7th and 8th graders, and we were talking about the Constitution. They each picked an amendment that they liked and they were so, like, they knew more about the amendments in the Constitution than Brett Kavanaugh. And one of them picked the Ninth Amendment and said it was her favorite because the Ninth

• 1:39:40Speaker 07

  Amendment is basically like going to the grocery store with a list. Everybody knows that you're not limited to the list because you forget things that you're going to need and you're not gonna want to come back. So that's true. The future looks bright. So thank you so much to Holy Trinity Episcopal School and their indefatigable head of school, Deandre

• 1:40:02Melissa Murray?

  For inviting me. Thank you.

• 1:40:06Kate Shaw?

  All right, so just a couple thank yous before we go. You know, CrookedCon, we have so loved getting to have some fun with all of you tonight. Thank you so much to all of you. Thank you to our producer, who was our forever producer, even though he's technically moved on to bigger and better things, Michael Goldsmith, for helping staff us here tonight, as well as Adrian Hill and Alona Mankowski, Melody Rauw, always making us sound our best and saving us from most of our worst, maybe not all of it, and to Sophie Eisenstadt and the rest of the Crooked team for making CrookedCon possible. What a gathering.

• 1:40:39Kate Shaw?

  Just a few more, as we amp up for Thanksgiving under Woke 3.0. Stacey Abrams, again, for doing the work to make a blue Georgia possible. So incredible. Also, the organizers who did the work to make a blue Texas possible, despite being told it would never happen when it didn't materialize the last few cycles, while, as Sherilyn so beautifully put it, you don't always get to see the fruit of your labor, but actually, this time you did. It just took a couple cycles. And thank you so much to all of them.

• 1:41:13Melissa Murray?

  To the Minnesotans, who showed us we can get through this together, and, in the process, made the country see the horrors that this administration was perpetrating. To all of these Southern state voters, especially the black voters who organized and showed up, despite people saying the South would never go blue and it was not worth investing there. Senate Dems, send some money to Louisiana next time, challenge in Florida, too.

• 1:41:44Melissa Murray?

  Thank you to Argent Workwear for helping us physically embody the blue wave tsunami wormhole. And finally, thank you to everyone who made this moment possible, this moment and the moments that have preceded it this week. This feels so good. It's overwhelming. It's amazing. And we can continue it. So please, keep going. Don't stop. Can't stop. Won't stop. That energy. And before we go, we would like to know, can we take a selfie with you?

• 1:42:28Melissa Murray?

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

• 1:42:53Speaker 07

  Hey, everyone. My name is Elijah Cohn, and I've been a producer here at Crooked Media for a decade. I love making our shows with the smart, creative people who work here and hearing from all of you who listen every week. But the thing that I'm proudest of is that video we made of Vivek Ramaswamy grunting while hitting baseballs. No, wait, sorry. The thing I'm proudest of is the work we do through Vote Save America. See, we don't want our shows to only leave you feeling anxious about the state of the world. We want to give you something you can actually do about it. Just this year, our listeners have raised millions of dollars and filled thousands of volunteer shifts to help candidates and causes in the 2026 midterms. And we have no plans to slow down as we head into 2028. As far as I know, there's no other media company that does what Crooked does. We make

• 1:43:36Speaker 07

  entertaining, thoughtful content that brings people into politics, and then we give them a direct way to get involved. And if you believe in that mission, one of the best ways to support us is by becoming a paid subscriber. Your subscription helps us keep making the shows you love and building a media company that doesn't just talk about politics, but helps people change them. And if the mission sounds great, but you feel like you need some sweet subscriber benefits to get you over the finish line, we've got you covered. Subscribers get ad-free shows, plus excellent exclusive podcasts, newsletters, and much, much more. So, thank you for listening and supporting what we do. Head to crooked.com/friends today to learn more and become a subscriber. Coca-Cola. For the big, for the small, the short and the tall.

• 1:44:20Speaker 07

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