Strict Scrutiny Podcast Summary
Episode: 9-0, but Make It Complicated
Release Date: June 9, 2025

Strict Scrutiny, hosted by constitutional law professors Leah Littman, Kate Shaw, and Melissa Murray, delves into the latest developments surrounding the United States Supreme Court, executive actions, and the broader legal culture. In this episode titled "9-0, but Make It Complicated," the hosts provide a comprehensive analysis of recent Supreme Court decisions, executive branch maneuvers, and the interplay between judiciary actions and political influences. Below is a detailed summary capturing the key discussions, insights, and conclusions from the episode.

1. Executive Branch's Latest Moves

The episode opens with the hosts discussing the recent executive actions that mirror tactics from the first Trump administration. Kate Shaw introduces the topic of the newly enacted Travel Ban 4.0, highlighting its similarities to previous iterations:

Kate Shaw [02:22]: "This new ban, which we're calling Travel Ban 4.0, also proclaims that it is the product of some kind of departmental review process."

Melissa Murray echoes concerns about the ban's underlying motivations and potential implications:

Melissa Murray [05:33]: "All of this seems to be entirely on brand. And by on brand, I mean..."

The hosts draw parallels between the current administration's travel restrictions and Trump's former policies, emphasizing the persistent themes of anti-Muslim animus and executive overreach.

2. Supreme Court Decisions Since Last Episode

a. Travel Ban 4.0 Upheld

The discussion delves into the Supreme Court's decision to uphold the third iteration of the travel ban. Melissa Murray provides context on the ban's evolution and the Court's rationale:

Melissa Murray [04:03]: "The United States Supreme Court in all of its glory, and of course in a decision by noted institutionalist John G. Roberts, eventually upheld the third iteration of the travel ban."

Kate Shaw critiques the Court's approval, suggesting it allows for "a little racist xenophobia animus" under a veneer of legality.

b. Ames v. Ohio Department of Youth Services

One of the pivotal cases discussed is Ames v. Ohio Department of Youth Services, which addresses discrimination claims by members of majority groups. The Supreme Court unanimously decided against requiring majority plaintiffs to meet a heightened evidentiary standard:

Melissa Murray [19:45]: "Justice Jackson wrote the opinion for the unanimous court, and she held that under Title VII, the requirements to bring a claim are the same whether you are a member of a majority group or a member of a minority group."

John Kennedy raises concerns about Justice Thomas's concurrence, fearing it may pave the way for more reverse discrimination claims:

John Kennedy [26:50]: "But as Leah said, not having a majority opinion with this language is really, really important. [...] But there is no question, I think, to our mind, that this opinion will make it easier for reverse discrimination claims to move forward..."

c. Catholic Charities Bureau vs Wisconsin Labor and Industry Review Commission

Another significant case is Catholic Charities Bureau vs Wisconsin, where the Supreme Court ruled on the Establishment Clause concerning tax exemptions for religious organizations:

Melissa Murray [31:48]: "Justice Sotomayor wrote for the majority, and she wrote as narrow a majority opinion as I think you could, while also ruling for Catholic Charities."

The hosts discuss the implications of this decision, noting it as a rare instance where the Court enforces the Establishment Clause, albeit in a limited context.

d. Additional Supreme Court Decisions

The hosts provide brief overviews of other recent decisions:

• Smith and Wesson Brands vs Estados Unidos Mexico: The Court dismissed Mexico's lawsuit against gun manufacturers, citing the Protection of Lawful Commerce in Arms Act.

  Kate Shaw [40:38]: "We also got the opinion in Catholic Charities Bureau versus Wisconsin labor and Industry Review Commission..."

• CC Divas vs Antrex: The Court ruled on personal jurisdiction under the Foreign Sovereign Immunities Act.

• Blom Bank vs Honigman: The Court emphasized the necessity of extraordinary circumstances to vacate final judgments under Rule 60B6.

• LabCorp vs Davis: The Court dismissed the case, leaving lower court decisions intact.

3. Court Culture and Political Interactions

a. Senate Judiciary Committee Hearings

A significant portion of the episode focuses on the interaction between podcast host John Kennedy and the Senate Judiciary Committee. Kennedy recounts his challenging testimony, where he faced aggressive questioning about statements made on the Strict Scrutiny podcast:

John Kennedy [71:28]: "You referred to the conservative justices as, and I'm quoting you, her evil color Colleagues."

Melissa Murray underscores the hostile environment faced by female law professors testifying before Congress, highlighting attempts to discredit their expertise and viewpoints.

b. Judicial Nominations and Partisanship

The episode touches upon recent judicial nominations, emphasizing the partisan battles and the influence of organizations like the Federalist Society. Kate Shaw and John Kennedy discuss the nomination of Whitney Hermandorfer to the 6th Circuit and the lack of participation from Democratic senators in district court nominee hearings.

John Kennedy [57:06]: "The nominee for the 6th Circuit is, has been nominated for that position because the Democrats could not get the votes to confirm Biden's nominee to that position, Carla Campbell."

c. Policy Rescissions and Legal Ambiguities

The Trump administration's move to rescind Biden's guidance on EMTALA (Emergency Medical Treatment and Labor Act) is analyzed, raising concerns about legal uncertainties for hospitals in abortion-ban states:

Melissa Murray [52:09]: "Not gone to emergency rooms if they're in distress because they're like, oh, the Trump administration says I can't..."

John Kennedy counters by emphasizing that rescinding guidance does not override statutory obligations, though acknowledging the ensuing confusion.

4. Shadow Docket and Emergency Orders

The hosts examine recent actions taken via the Supreme Court's shadow docket, noting their implications and the ideological divisions they reveal:

Melissa Murray [34:34]: "These are dark times, right? This order is riddled with animus."

They critique the Court's use of emergency orders to fulfill administrative agendas without thorough deliberation, highlighting the potential erosion of judicial impartiality.

5. Cultural References and Audience Engagement

Throughout the episode, the hosts infuse cultural references and humor to engage listeners. They mention interactions with other podcasts like Vibe Check and light-heartedly discuss running into fans and sharing personal anecdotes. However, these segments are kept concise to maintain focus on substantive legal discussions.

6. Concluding Thoughts

In wrapping up, the hosts reiterate the importance of vigilance in upholding the rule of law amidst executive overreach and judicial partisanship. They underscore the delicate balance between legislative actions, judicial interpretations, and executive implementations, urging listeners to stay informed and engaged.

Notable Quotes:

• Melisa Murray [19:45]: "Justice Jackson wrote the opinion for the unanimous court, and she held that under Title VII, the requirements to bring a claim are the same whether you are a member of a majority group or a member of a minority group."

• John Kennedy [26:50]: "But there is no question, I think, to our mind, that this opinion will make it easier for reverse discrimination claims to move forward..."

• Kate Shaw [31:48]: "So in the spirit of looking on the bright side, the Supreme Court finally found an Establishment Clause violation that it was willing to enforce."

• Melissa Murray [52:09]: "But without a Congress stepping in saying like we did that, who's to say?"

• John Kennedy [57:06]: "Yeah. And it says future suits, potentially even another one by this plaintiff, the Mexican government, that are more able to specifically identify wrongdoers breaking specific laws."

This episode of Strict Scrutiny offers a critical examination of the interplay between current executive policies, Supreme Court rulings, and the broader implications for American legal and political landscapes. The hosts provide insightful analysis, backed by pertinent quotes and real-time reactions to unfolding events, making it an essential listen for those interested in the nuances of U.S. constitutional law and its real-world applications.