9-0, but Make It Complicated

Summary

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.

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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.

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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.

Transcript

[Melissa Murray]

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You can't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our lives and our laws. Church state separation is the bulwark blocking their agenda. And one of the last bastions of church state separation is our public school system. So that's why they are pushing school vouchers everywhere. It's why they're arguing for religious public schools. Yes, you heard that right. Religious public schools. We've talked about this on the podcast. Just this term, there was a case in which the state of Oklahoma said, hey, guess what? We can't have religious public schools. But these guys were like, no, you totally can. The First Amendment requires it. Thankfully, the Supreme Court pushed back on this. But there's going to be another case, and it's going to percolate back up to the court in real time. And it means that we have to be vigilant. We have to fight back. And you know this. If you're listening to Strict Scrutiny, you already see the writing on the wall. You know we can and we must fight back. And that's where Americans United for Separation of Church and State comes in. You can join Americans United for Separation of Church and State and support their growing movement because church state separation protects all of us. You can learn more and get [e-mail] Crooked.

[Leah Littman]

You host a podcast. Correct. And that is called Strict Scrutiny.

[Kate Shaw]

Correct.

[Leah Littman]

You host a pod. Host a pod. Host a podcast. Correct. And that is called. That is called Strict Scrutiny. Strict Scrutiny.

[Melissa Murray]

Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray.

[Kate Shaw]

I'm Leah Littman.

[John Kennedy]

And I'm Kate Shaw. And wow. It has been a week for this podcast for each of us and for the country. So we're going to start by bringing you up to speed on some of the executive branch's latest moves in its campaign of lawlessness. We'll then cover decisions the court has issued since our last show, and we will end with some court culture.

[Kate Shaw]

First up, article. Too fascist? Too furious. So last Wednesday evening, the president unleashed a travel ban that is a bar on immigrant and nonimmigrant visas for nationals of several countries, as well as restrictions on certain kinds of visas for the nationals of other countries. Nationals from the following countries are subject to the flat out band. Afghanistan, Burma, Chad, Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan and Yemen.

[Melissa Murray]

H what do they all have in common?

[Kate Shaw]

Nope, nothing's coming to mind. Nothing's coming to mind.

[John Kennedy]

So that's not all. Nationals from the following list of countries are subject to the other restrictions. That's Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan and Venezuela. And if all of this sounds familiar, then you were probably around during the first Trump administration. In that hellscape, Trump announced as a candidate that he would order a complete and total shutdown of Muslims entering the United States. That's literally a quote. Then within the first few weeks of his becoming president for the first time, Trump, without warning announced a ban on entry from several Muslim majority countries. You might remember the chaos surrounding that ban. People were stuck at airports because they had boarded flights bound for the United States and were midair when the order announced they wouldn't be allowed to enter the country. So not only was the public not given any notice, the State Department and the Department of Homeland Security were similarly not briefed. And so there were no processes in place whatsoever.

[Melissa Murray]

Because that's how you govern.

[Kate Shaw]

Executive. That's how you so unitary. So unitary.

[Melissa Murray]

In any event, 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. And this was after allowing the administration to partially implement the second iteration consideration of the ban. The third version purported to be more legitimate and it appeared to have emerged from some kind of intergovernmental process. So good work, fellas. It also didn't apply to green card holders, so that certainly helped. But all to say that the third iteration, which the Court ultimately found to satisfy the requirements of the Constitution, appeared to be somewhat reverse engineered, cleansing it of its original origin story, which was course rooted in that anti Muslim animus.

[Kate Shaw]

So realizing that the Supreme Court would let him do a little racist xenophobia animus as long as there was some minimal effort to pretend it wasn't racist xenophobia animus. 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. The order purports to restrict travel from the aforementioned countries because it says those countries lack sufficient processes to screen applicants and because some, some people from the countries overstayed their visas. Of course, everyone else from the same countries would overstay their visas too. Children, this is what we call a.

[Melissa Murray]

Stereotype the order also went out of its way to smear Haitians. In particular, it noted, quote, hundreds of thousands of illegal Haitian aliens flooded into the United States during the Biden administration. This influx harms American communities by creating acute risk of increased overstay rates, establishment of criminal networks, and other national security threats. Hmm. Just going to say. All of this seems to be entirely on brand. And by on brand, I mean this.

[Kate Shaw]

They're eating the dogs.

[Melissa Murray]

The people that came in, they're eating the cats.

[John Kennedy]

I really could live the rest of my life without ever hearing that clip again. So listen, or could you read it?

[Kate Shaw]

The TikTok remixes and the dances were something.

[Melissa Murray]

Could you tolerate it more if it were mixed in with Elena Kagan? Just assume you're dead wrong. Like, what about that? That mashup could be amaz.

[John Kennedy]

Way more about that I could listen to.

[Melissa Murray]

That's true. They're eating the dogs. They're eating the cats. Just assume you're dead wrong. Just assume you're dead rock.

[Kate Shaw]

That's it.

[John Kennedy]

Wait, if no one's done this, please, someone do it. Get on it.

[Melissa Murray]

Definitely start with.

[John Kennedy]

All right, well, that would take the edge off, because this is. These are dark times, right? This order is riddled with animus. And, you know, because, of course, the malevolence and the incompetence are always layered at top one another in this administration. It also reflects complete policy incoherence. The administration previously rescinded temporary protected status for nationals of certain countries, including countries on this list, on the specific ground that conditions in those countries had so improved that TPS was no longer warranted. But it now proclaims those countries as lacking the capacity to actually screen visa applicants or migrants. Little bit of tension. The administration has also tried to expel people to two of the countries on the list, Libya and Sudan, that it now says lack the infrastructure to reliably screen and process migrants. And you would think all of this would call into question the lawfulness of this order, and yet we are not that optimistic that SCOTUS will care.

[Melissa Murray]

Look at you parsing, Kate. Like getting into the interstices here. It's almost like you're in Article 2, but not. Not this Article 2.

[Kate Shaw]

No.

[John Kennedy]

This is not the kind of thing they do in Article 2. Not this time around, no.

[Kate Shaw]

No. So that wasn't even the only illegal executive order issued last week. It never is. The President also issued a proclamation canceling visas for international students and researchers at Harvard. The proclamation announces that in news to everyone, including those at Harvard, that crime rates are apparently up at Harvard, including violent crime rates. So obviously it has to be the foreigner's fault. Children, this is what we call a baseless xenophobic accusation.

[John Kennedy]

The proclamation also insists that it is suspending the student exchange visa program or sevp, because it claims Once again, without evidence. Who needs evidence that Harvard continues to use affirmative action?

[Melissa Murray]

Two things about this claim. First, it's not entirely clear how the alleged continuation of race conscious admissions policies and the student exchange visa program are related, but whatever. Second, I'm not exactly sure what the evidence is for the claim that Harvard continues to use race conscious admissions policies. So is it that the number of black and brown students admitted to Harvard didn't immediately drop to zero because of merit? Is that the point?

[John Kennedy]

Yep. Seems like pretty good evidence.

[Melissa Murray]

Well, just going to note if that is the logic, the antipathy for race conscious admissions processes seems less about fairness and more about rank racial supremacy. But whatever folks, don't let any of this logic stop stop you from punishing Harvard for exercising First Amendment rights and refusing to bend the knee.

[Kate Shaw]

Carry on in more Article 2 shenanigans this is a shenanigan we weren't able to cover at the live show but wanted to note, and that's that the Department of Justice, headed by one Pamela Joe Bondi, filed some voting rights litigation that is more like voting wrongs litigation.

[John Kennedy]

Specifically on the heels of Justice Allison Riggs's victory in the North Carolina Supreme Court race, which Riggs won by a few hundred votes, remember one back in November, but was only declared finally the winner a few weeks ago. In the wake of that, DOJ has decided something must be wrong with the voting system in North Carolina because when the Democratic candidate wins, something is deeply suspicious. So enter doj, which is suing North Carolina, arguing that the state has not done enough to purge its voter rolls. That is the list of register voters that determine who can vote in an election. The basic claim is that North Carolina registered voters without requiring a driver's license or the last four digits of their Social Security number.

[Kate Shaw]

Unless you think the geniuses at the Department of Justice are innovating new theories of voting wrongs, we should explain that DOJ's move really echoes a complaint that Jefferson Griffin, the turd, or maybe the second or third had. Hard to say, but DOJ seems to be borrowing from the claims Griffin made when he tried to overturn the results of the North Carol Carolina Supreme Court election and challenge his loss to justice rights.

[Melissa Murray]

Does that make this a sheep heat? Are we going to give Pamela Joe Biden credit For sheep heating. She's always sheep heating.

[Kate Shaw]

Kamala Jovandi is. Yeah, she's big on it.

[Melissa Murray]

She's like, no more hyposiums. I'm just sheep heating my way through the doj. Good for her. At least we now know that at least some portion of the Department of Justice here, the Civil Rights Division, is actually committed to enforcing civil rights, that is the rights of Republicans with Confederate names to win elections by disenfranchising voters.

[Kate Shaw]

In more Article 2 wrongs. So this last week, Article 2 and their enablers in Article 1 got quite explicit about how they view the whole law thing. We wanted to play two illustrative clips. Here's Russ Vaught.

[Melissa Murray]

We're certainly not taking impoundment off the table.

[Leah Littman]

We're not in love with the law.

[Kate Shaw]

And here's Louisiana Senator John Kennedy, AKA the gentleman from the Confederacy.

[Senator Blackburn]

Harvard is, in many respects, violating federal law. They just are. And they say, but we're entitled to the money anyway, and they're not. And it'll be. It'll be interesting and. And impactful to see how it turns out. And what federal law is Harvard violating? Well, here's what I think Harvard is doing. Harvard practices ideological capture.

[Kate Shaw]

We're just gonna leave that there. Supreme Court, we know you will find some inspo in these remarks for the remainder of your decisions.

[John Kennedy]

Can I just pause for one second? We'll get to this later in the episode. But as. Do you know this gentleman, Kate communicated, no, I do. But I also. Now everything. I'm gonna get over this, but everything that comes out of our mouth, I am now hearing in that being posed to us by either Senator Kennedy or Senator Blackburn. Did you refer to the gentleman from the Confederacy? Did you say too fascist? Too furious? I mean. Oh, yeah, you know, that's probably me.

[Kate Shaw]

Yes.

[John Kennedy]

And the answer is yes. Yes.

[Kate Shaw]

I said it and it was awesome. Can I defend it now?

[Melissa Murray]

Do you remember that clip of Sex and the City? It's like a mashup of like when Samantha is at the clinic and she's going to get an AIDS test, and they start asking her about her sexual practices and she's like, yes, yes. Only when scared. Yes.

[Kate Shaw]

Also, yes. Yes.

[John Kennedy]

I probably should have watched that as like a hype up exercise. Before testifying.

[Melissa Murray]

Last week, did you refer to Senator Cruz as a gentleman from Cancun?

[John Kennedy]

Yes.

[Melissa Murray]

Did you refer to Senator Kennedy as the gentleman from the Confederacy? Yes.

[Pamela Jo Bondi]

Yes.

[John Kennedy]

All right, next time, ladies.

[Melissa Murray]

Next time only when surprised.

[John Kennedy]

All right, we'll come back to Senate testimony.

[Melissa Murray]

We're Back to Article 2. Don't worry, worry.

[John Kennedy]

That's true. Okay.

[Melissa Murray]

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[Leah Littman]

People.

[John Kennedy]

Moving on to Article 3 now.

[Melissa Murray]

Okay, good. I'm glad we're back on Article 3 because guess what ladies, Bad Decision Season continues apace. We got one decision that we talked about on our live show, but it was just the one this week. SCOTUS was like, guess what? We're showing our work. There were a bunch of decisions that they dropped this week. And not surprisingly, several of these decisions were predictably bad, though not as bad as they could have been. And of course, because this is the Supreme Court, one of these quote unquote decisions is actually a non decision. So we'll talk about that. All of this is inevitably going to prompt some in the legacy media to proclaim that the Supreme Court isn't so bad. Really. It's actually very, very moderate. They reach unanimity so many times, they're actually really together. There are no ideological divisions, blah, blah blah. Guess what folks, this is just a warmup. This is just John Roberts and his boys buying themselves some very publicity as they get ready to go guns blazing into the real heart of Bad Decision season where it's all going to come out. So hold off on those hot takes about this moderate unanimous Supreme Court because this is just the PR spin.

[Kate Shaw]

So to celebrate Pride Month, the Supreme Court announced that all sexual orientations matter and that straight people can be discriminated against too. That's right. We got the decision in Ames v. Ohio Department of Youth Services. We've previously discussed this case in the context of the rights ongoing effort to extend the underlying logic of Students for Fair Admissions versus Harvard that members of majority groups are the real victims of discrimination to everything. Ames involves an Ohio woman who says she was discriminated against because she was straight. She was first passed over for a promotion that went to a gay woman and later demoted, only to see her prior position go to a gay man. And obviously she surmised, these gays, they're trying to murder me. Hat tip. Jennifer Coolidge.

[John Kennedy]

In reality, I am familiar with White Lotus. Just to be clear.

[Melissa Murray]

Proud of you.

[Kate Shaw]

Love it. Proud of you.

[John Kennedy]

Yes.

[Kate Shaw]

But Marlee and Ames basically said that her straight supervisors were discriminating against her and in favor of gay people. Hmm. For like the fifth time this episode.

[John Kennedy]

But the specific question before the court in the case wasn't actually whether she was in fact discriminated against because she is straight. Instead, it's a more abstract legal question. That is, specifically, when a member of a majority group like straight people brings a discrimination claim and they don't have direct evidence of discrimination, do they need to show, quote, background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority? So Title VII of the Civil Rights act of 1964 does not, by its terms, require majority plaintiffs to do so. But a number of circuit courts, including the 6th Circuit at issue here, have required majority plaintiffs to satisfy this kind of separate evidentiary standard. And in this case, the Supreme Court unanimously decided that those courts were all wrong to require a plaintiff like this one, again, a member of a majority group, to make this kind of showing in order to bring a claim.

[Melissa Murray]

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 majority group or a member of a minority group. That is to say, regardless of what group you're in, you have to satisfy the McDonnell Douglas versus Green standard. McDonnell Douglas versus Green is a 1973 Title VII case that established the three step burden shifting framework for intentional discrimination claims. So now this case will return to the District Court and Ms. Ames will have another opportunity to present her case, and who knows how it will be resolved. Although there is some indication here that she may very well lose even on the second go around, because the courts had earlier said that her sex discrimination claim failed under McDonnell Douglas because her employer had a legitimate, non pretextual reason not to promote her.

[Kate Shaw]

But outside of this particular case, I think I am concerned that the Supreme Court's decision will make it easier for heterosexual and white plaintiffs to bring discrimination claims which tracks this curse timeline. See Justice Thomas's concurrence, which we're going to talk about in a second. Again, happy pride, straight rights, says the Supreme Court.

[Melissa Murray]

Well, here's a silver lining, though. So, and again, maybe this sort of gestures to why this was able to be unanimous, despite the fact that it does open the door to these kinds of reverse discrimination claims. The unanimous court cited Bostock versus Clayton County. And Bostock, of course, is the 2020 decision that concluded that discrimination on the basis of sexual orientation and gender identity is discrimination on the basis of sex for purposes of Title vii. This is a sexual orientation discrimination claim. And I think the fact that the Court cited Bostock here makes it harder for them to back away from Bostock in other circumstances, should some litigant decide to ask them to narrow or even rescind or overrule Bostock entirely. And there are plenty in the conservative legal movement who have been hammering away at Bostock since it was decided in 2020. And I think that's good here. The fact that they were able to get them to all come around that Bostock is still good law, and the fact that Sam Alito signed on to an opinion citing Bostock without launching into a homophobic screed is also a major accomplishment. So good on them.

[John Kennedy]

Yeah, I mean, I obviously wish they had said more about Bostock. I wish they had mentioned.

[Melissa Murray]

But then it wouldn't be unanimous.

[John Kennedy]

Kate. Totally. No, no, no. But so it's just, it's an important but very narrow silver lining. There's no mention of the fact that Bostock holds that not just sexual orientation discrimination, but gender identity discrimination is encompassed within the prohibition on sex discrimination in Title vii. There is no real discussion of Bostock. But yeah, they're having unanimously said that she can state a claim for sexual orientation discrimination under Title VII without being subject to some special sort of threshold showing that I think does, as you were just saying, make it much harder, not impossible, because they can obviously, you know, decide to change course. But I think it is a very helpful additional sort of overlay on top of Bostock, should anybody come for it, which I think is very likely to happen. So that's, you know, silver lining. But of course, we hasten to add, and we might be saying this a lot, and we think that's because people sort of reading these opinions and commenting on the Court probably need to hear it. But we kind of need to understand the Court's unanimity in this case and some of the others we're going to be discussing today in a very particular way. And to do that, I think we need to talk about Justice Thomas separate writing in Ames, which is this kind of bizarre world version of what SCOTUS could have said, you know, literally just very plausibly might have said in this case without the calming law forward influences of the Democratic appointee. So we are often, I think, critical of the Democratic appointees if we think they are engaging in appeasement that we think will ultimately be unsuccessful or even counterproductive. But a case like this does show you that they sometimes are able to divert onto a path of sanity, something that could go very, very badly. And I think the Thomas concurrence in this case really is a case study in that.

[Melissa Murray]

So this is the point in the episode where we're just going to call this segment. We need to talk about Justice Thomas's concurrence. Okay, so let's start there. So Justice Thomas filed a concurrence in this case. And again, this is very typical of him. He often has things that he wants to say go a little bit further. Even though he nominally agrees with the outcome, he wants to go a little further, maybe issue some invitations to do more, say some other things. Typically he doesn't get a lot of takers for these. He often does solo concurrences here. He got Justice Gorsuch to join him. So I think that is significant. But this is a doozy of a concurrence. Justice Thomas, straight out of the gate decides that he is going to cite a brief filed on behalf of America First Legal, that is Stephen Miller's organization. Specifically, Justice Thomas cited the following from the America first brief. Quote, A number of this nation's largest and most prestigious employers have overtly discriminated against those they deem members of so called majority groups. American employers have long been obsessed with diversity, equity and inclusion initiatives and affirmative actions plans. Initiatives of this kind have often led to overt discrimination against those perceived to be in the majority. And then he cites himself. So he cites the opinion in SFFA versus Harvard. He then goes on to explain that the courts have applied uniquely disadvantageous rules only to white and male plaintiffs. And civil rights litigants. Would like a word here, but just putting that out there.

[Kate Shaw]

Yeah. So going back to the question we were gesturing at, what do the Democratic appointees get with unanimity? They avoid a majority opinion that suggests straight white men are really, really, really, really discriminated against. An opinion that might have included a bunch of language to that effect that straight white male plaintiffs could point to to make reverse discrimination claims easier and sympathetic courts could invoke. And by finding common narrow ground with the Republican appointees, they ward off a fractured decision that would have decided much more. And you know, for whatever it's worth, I think the decision is legally correct formally in the sense that, you know, the plaintiff made out a prima facie case, but it should fail at a later step of the McDonnell Douglas framework, where the employer's justification for why they took the adverse employment action might seem additionally plausible because of the rarity of discrimination against straight people for being straight. That's kind of my way of understanding how this framework should work.

[John Kennedy]

And as Leah said, not having a majority opinion with this language is really, really important. Of course, white male plaintiffs or white plaintiffs or straight plaintiffs who want to bring these claims can still point to the concurrence. Right? That is definitely the case. And enterprising lower court judges will pick up what Justice Thomas has put down. So we have seen that playbook play out many times. But it's obviously really different if it's language in a majority opinion, and it's in this instance, great that it's not there. But there is no question, I think, to our mind, that this opinion will make it easier for reverse discrimination claims to move forward and not be screened out at the initial stage of a case as they were in the sixth Circuit and a bunch of other circuits that used this threshold test until this opinion. And the political context in which this is taking place is important too. As we have talked about, the Trump administration is not so subtly suggesting that everyone who is not a straight white CIS male and who is in a position of authority got their position illegitimately through DEI full stop. They are stoking grievance flames and egging this on. And I think this case has to be understood in that context.

[Melissa Murray]

With that in mind, we should also note that as is the case with many Thomas concurrences, there is an implicit invitation here, inviting litigants to go forward and do more. So another part of the Thomas concurrence basically says, hey guys, let's be legends and get rid of McDonnell Douglas versus Greene. That is the 1973 Title VII precedent that sets forth that three part burden shifting framework for intentional discrimination claims. Justice Thomas wrote in this concurrence, quote, I seriously doubt that the McDonnell Douglas framework is a suitable tool for evaluating Title VII claims at summary judgment. In my view, the framework is incompatible with the summary judgment standard. It fails to encompass the various ways in which a plaintiff could prove his claim. It requires courts to maintain artificial distinctions between direct and circumstantial evidence, and it has created outsized judicial confusion. For example, Justice Thomas is confused about whether black people experience discrimination, but he is not at all confused about white guys experiencing it. So that's the confusion totally resolved.

[Kate Shaw]

So speaking of reverse discrimination and Stephen Miller, we wanted to acknowledge a New York Times story about the administration's investigation that's in air quotes into the Harvard Law Review. It appears that the administration had a whistleblower, then student at Harvard Law, who has since graduated and was apparently feeding them information, according to this story. Even more curious, the administration hired said whistleblower Right out of law school. And the Times piece suggests that the whistleblower was actually in discussions with the administration about a possible job at the same time he was feeding the administration information about the law review.

[Melissa Murray]

Hmm. Curiouser and curiouser. This is actually even better than the Fed Sock Job Network. I mean, like, this is like, you maybe get a clerkship if you're in fedsock, but this, you go straight to the administration. Yeah, Love it.

[Kate Shaw]

Can't beat it. Love it. There were this past week, even more decisions in which the democratic appointees were forced to take one for the team, where the team is the law and democracy. So let's. Let's get into those as well.

[John Kennedy]

All right, so we also got the opinion in Catholic Charities Bureau versus Wisconsin labor and Industry Review Commission. This is the case about whether the Wisconsin Supreme Court and Wisconsin law could deny a state tax exemption, that is, for taxes related to unemployment insurance, to a religious charitable organization that offers services to the poor, but where the organization does not engage in proselytizing. So the Wisconsin Supreme Court had concluded that this organization, Catholic Charities, did not qualify for a tax exemption because it did not satisfy a core condition under this particular provision of law of being a religious charitable organization because it did not engage in proselytizing.

[Melissa Murray]

And 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. Her opinion explained that the condition which required an organization to engage in proselytizing in order to receive the tax exemption unconstitutionally discriminates between different religious denominations, some of which are able to proselytize according to their religious doctrines and some of which are prohibited from doing so. Justice Sotomayor wrote, quote, put simply, petitioners could qualify for the exemption while providing their current charitable services if they engaged in proselyzation or if they limited their services to fellow Catholics petitioners. Catholic faith, however, bars them from satisfying those criteria. Catholic teaching, petitioners say, forbids, quote, misusing works of charity for purposes of proselytism. End quote.

[Kate Shaw]

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. So that's something. Now, it just so happened that this particular Establishment Clause violation resulted in public money going to religious organizations. You know, twist, right? Exactly. Big twist on the Establishment Clause, or at least religious organizations not having to pay, you know, into the public Fisk. So I don't know, maybe this will mean the Supreme Court will have a harder time saying the Establishment Clause has been abandoned. And posted.

[Melissa Murray]

Not this establishment clause, the other one. That's the other one.

[John Kennedy]

The other one.

[Kate Shaw]

Okay, okay.

[John Kennedy]

We're gonna steal the little bit of joy that Leah was trying to identify. I'm gonna stick with the joy, which is that they. There's one establishment clause, and at least in this opinion, they are willing to concede it remains a part of the Constitution.

[Melissa Murray]

Only when it's doing good stuff, though, Kate.

[John Kennedy]

Right, yeah, sure. But at least it's there. And, you know, I'm gonna hold on to that. But as with the previous discussion, to emphasize the context in which this opinion was issued, the Establishment clause gets, you know, one more hurrah. And also this unanimity occurs. You know, it is possible that the opinion could have been written way, way more broadly as Justice Thomas's once again, separate writing indicated. So Thomas would have said it's like.

[Melissa Murray]

An alternative conservative universe.

[John Kennedy]

It really is.

[Kate Shaw]

Yes.

[John Kennedy]

Completely.

[Kate Shaw]

Yes.

[John Kennedy]

And it's like we're real close to like it actually, these being majority opinions. And so the willingness of the Democratic appointees to go along and even author these opinions actually comes into focus when you kind of understand it in that context. So let's talk about what Thomas, separate writing in this case said. He basically would have said.

[Melissa Murray]

Wait, wait, we need to talk about Justice Thomas's concurrence.

[Kate Shaw]

Yeah, exactly. Segment, segment.

[John Kennedy]

Kate, we need to talk justice about Justice Thomas's concurrence. Second installment of today's episode. So here Thomas would have said that basically any separately incorporated entity that identifies as a Catholic religious organization is entitled to tax exemptions since they really are arms of the diocese, but have to be incorporated separately because of church practice and doctrine. So. So this just potentially would have given any organization that was that identified as a Catholic religious organization, not just this. Catholic Charities is definitely a Catholic organization engaged in charitable work. He is talking about a much more expansive definition that would have entitled a much broader swath of organizations to this particular tax exemption. So, like, would have been much broader.

[Melissa Murray]

I want to understand, is it like Catholic cable industries, like, like that's a religious organization. Like every time he use Catholic.

[John Kennedy]

Seems like it, yeah.

[Melissa Murray]

Interesting.

[John Kennedy]

Much broader than. Than narrow. Sotomayor authored opinion in this case. So, you know, it is tempting, and I think we fall prey to this all the time, to want the Democratic appointees to take a very adversarial posture vis a vis these guys in the majority day in and day out. So dissent or maybe concur, but take the opportunity to point out the ways in which they are refashioning doctrine society, you know, the world. But we can obviously do that as podcast hosts. But their roles are obviously different. And sometimes their roles might allow them to stave off more sweeping change by holding their fire in particular cases. And that is definitely one possibility for understanding these cases last week.

[Melissa Murray]

Hear me out. Do you think that's what they thought they were doing in Town of Greece or Trinity Lutheran back in the day?

[Kate Shaw]

Yeah, yeah.

[Melissa Murray]

And look where that led. So Trinity Lutheran and Town of Greece were these free exercise cases that have paved the way for Carson vs. Macon will likely pave the way for Mahmoud vs. Taylor, et cetera, et cetera. And I think they genuinely thought they were trying to put up some bulwarks to keep the majority from riding roughshod over the First Amendment. And I think maybe it sounds like a good idea in the moment. I just think these folks are undeterred, bulwarks be damned. Like, this is literally like the Dutch boy putting his finger in the dike.

[Kate Shaw]

It's certainly not going to prevent them from doing something bigger later on. But does, I don't know, delay that, you know, by some time? I don't know. I don't know.

[Melissa Murray]

That's a great point, Leah. And we talk about this all the time in the context of abortion litigation, like, you know, just keeping clinics open for an extra two months, three months, as long as possible. That's the name of the game right now. But I also, again, just, we need to understand, like, how much ground has been seeded when we're literally just trying to delay, delay, delay.

[Kate Shaw]

Agreed.

[Melissa Murray]

And that's what we're doing here. To my point, I think we'd be remiss if we didn't point out all of the ways in which this decision, despite its efforts to hem in this out of control majority, may still pave the way for more significant changes in First Amendment doctrine. So here's a question. What other conditions will the Supreme Court say discriminate between different religions or different religious denominations? What about a non discrimination condition? Would the Supreme Court say that that discriminates against certain denominations provides an opportunity to distinguish between different denominations? What would this decision mean in the context of religious hospitals or organizations that are affiliated with a church? And I don't think this is an abstract question because over the last couple of years there have been a number of hospital consolidations under hospital corporations that are affiliated with the Catholic Church and the Baptist Church. I'm thinking of Dignity Health, for example. What rules can states apply to those kinds of organizations and their work going Forward. Strict scrutiny is brought to you by Zbiotics Pre alcohol. Let's face it, it's really hard to bounce back after a night of drinks. And in fact, in my dotage, I don't bounce back the next day like I used to. I have to make a choice. I can either have a great night or I can have a great next morning. That is, until I found Zbiotics Pre alcohol. Zbiotics Pre alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after a night of drinking. Here's how it works. When you drink, alcohol gets converted into a toxic byproduct in your gut. It's the buildup of that byproduct, not dehydration, that's actually to blame for your rough day after drinking. But pre alcohol produces an enzyme that breaks that byproduct down. So just remember to make pre alcohol your first drink of the night. Drink responsibly, and you'll wake up feeling your best the next day. Look, I'm not gonna lie. I was a bit on the fence about pre alcohol initially, but as you know, we have a new summer strict scrutiny cocktail, the big baller. So I decided before I had my big baller, I was gonna take a little swig of the pre alcohol probiotic drink, had a little bit of it, had my big baller, woke up the next day ready to do battle with this. This administration. That's how you do it. Summer is here, and that means more opportunities to celebrate warm weather. But before your backyard barbecue brew, before that glass of pinot, watching the sunset at the beach, or before that campfire cocktail, don't forget to first take your Zebiotics Pre Alcohol drink one before drinking and wake up feeling great and ready to take on the next day and all that summer has to offer. Go to zbiotics.comstrict to learn more and get 15% off your first order. When you use strict at checkout, ZBiotics is backed with a 100% money back guarantee. So if you're unsatisfied for any reason, they'll refund your money, no questions asked. Remember to head to zbiotics.com strict and use the code STRICT at checkout for 15% off.

[Kate Shaw]

Hey, I'm journalist Sam Sanders.

[Chris Hayes]

I'm poet Saeed Jones.

[Pamela Jo Bondi]

And I'm producer Zach Stafford. And we are the hosts of a podcast called Vibe Check.

[Chris Hayes]

On Vibecheck, we talk about everything.

[Kate Shaw]

News, culture and entertainment and how it all feels.

[Pamela Jo Bondi]

That's right. We talk about any and everything on our show from real life issues like grief to music and movie critiques. And that barely scratches the surface.

[Chris Hayes]

Yes indeed. And it doesn't stop there. We have got a lot to say so join our group, chat, come to life, follow and listen to Vibe Check wherever you get your podcasts.

[Kate Shaw]

So we are going to offer some quick summaries of the additional decisions or non decisions we received. There was another unanimous opinion in Smith and Wesson brands versus Estados Unidos Mexico. SCOTUS said that Mexico suit against gun manufacturers could not move forward based on the allegations in the complaint. The suit had maintained that the gun manufacturer's sales practices facilitated illegal firearms transactions and violence in Mexico. In that decision, the Supreme Court invoked the Protection of Lawful Commerce and Arms Act, a law shielding gun manufacturers from suit, which friend of the pod, Ellie Mustall wrote about as one of the bad laws in his fantastic book Bad Law. So that statute placa generally shields gun manufacturers from tort liability based on actions of other parties, in particular the people who buy their guns. And basically the Supreme Court said that aiding and abetting liability requires affirmative malfeasance rather than nonfeasance, so action rather than inaction. And most of the allegations in that case were about the gun manufacturer's failure to address the problem. The court also added that the complaint didn't identify particular criminal transactions or acts by gun manufacturers or specific bad apple dealers with whom they engaged.

[John Kennedy]

But the court actually did not hold that any independent acts by a third party would sever proximate cause. And that's what the gun manufacturers were asking for, and it would have been a much bigger win for them. So by not ruling on this kind of third party and proximate cause question, but instead just on this aiding and abetting liability question, the court arguably leaves the door open to plaintiffs who can make more specific allegations than Mexico had made here. So, yeah, and.

[Kate Shaw]

And this is another like unanimous opinion written by Democratic appointee, you know, that like staves off that potentially bigger change.

[John Kennedy]

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. Those are not precluded by this opinion. And yeah, I think that's actually really significant.

[Kate Shaw]

Yeah.

[Melissa Murray]

All right. We also got a decision in CC Divas, Mauritius versus Antrex. And there the court held that courts have personal jurisdiction over a defendant under the Foreign Sovereign Immunities act when an immunity exception laid out in the FSIA applies and service is proper. The FSIA does not require proof of minimum contacts over and above the contact tax already required by the Act's enumerated exceptions to foreign sovereign immunity.

[John Kennedy]

And last opinion we got before the non opinion was Blom bank versus Honigman in which the court held that relief under Rule 60B6, which allows federal courts to vacate final judgments, requires extraordinary circumstances even where a plaintiff seeks fake iter to amend the complaint. You know, basically to refile the case with additional allegations. Still need to make that extraordinary circumstances is showing. Okay, so then there was a non opinion. So the court issued a dig in LabCorp vs Davis. By dig we mean the court dismissed the case on the ground that certiorari had been improvidently granted. This means that the lower court decision remains in place and there is no opinion from the Supreme Court. The case was about whether courts can award class relief when some members of the defined class lack Article 3 standing. Or at least that's what the court court thought the case was about when it granted cert.

[Melissa Murray]

The problem is that it's unclear whether there are any class members who lacked Article 3 standing here. And we noted that Deepak Gupta, who argued this case on behalf of the plaintiffs, did a really great job at oral argument pointing out the various deficiencies in the case and making it clear to the justices that this was perhaps an imperfect vehicle for the court to weigh in on the standing question. For example, here no lower court had said that there were class members who lacked standing. And the company's arguments rationalizing that finding were kind of weird. The company LabCorp asserted that some blind people who couldn't use their automated check in system that didn't have an option for Braille or other disability accommodations might not actually want to use the system and therefore had never been injured because they couldn't in fact use the system. So, so just a lot of stuff that made this perhaps not a really good case to flesh out these questions to that point. I will just note that this is the third dig that the court has issued in this term. And then last term they also dismissed Moyle as improvidently granted. And we've also had one per curiam opinion that was an equally divided affirmance. Really interesting. Seems a lot like quiet quitting to me. I will say separately on the question of the digs, like maybe you guys just need to slow the fuck down and stop taking so many cases just because you really want to get to the issues. Because like that's kind of what the digs say to me.

[Kate Shaw]

Yeah, well, Several of the cases that they dig this term were cases that sought to limit class actions. And it's clear the court is just foaming at the mouth to do that and doesn't pause to actually consider that. Actually, some class litigation is perfectly fine, and it doesn't raise these conspiracy theories that you think it does.

[Melissa Murray]

But wait, what is the conspiracy theory? It's the conspiracy that lots of people are getting together to get justice for themselves.

[Kate Shaw]

Is that the conspiracy, Some without degrees standing, and that they're just artificially inflating the class to balloon these awards, and they're forcing defendants to settle and blah, blah, blah, blah, blah.

[Melissa Murray]

It's almost like when a group of doctors incorporate themselves in Amarillo, Texas, on the fly so they can bring claims for the tort of outrage, for the use of mifepra stone.

[Kate Shaw]

No, it's not like that. That's not like that. Yeah, that's cool. This is bad. But, you know, it's justice, right? Yeah. Melissa, since you brought up quiet quitting, I do want to talk about the pace of Supreme Court opinions here. In my mind, they are going quite slowly in terms of releasing opinions.

[Melissa Murray]

They are. They dropped a boatload this week.

[Kate Shaw]

Well, I know, but let's think about how many they have left left. So there are 26 argued cases with opinions yet to be issued and three weeks and a day to finish them. If they plan to finish by June. That's a little. That's like seven decisions a week. I mean, not counting shadow docket orders. And I. At least I'm concerned they might go into July.

[Melissa Murray]

Can be a sentence. They can be a sentence. And unless they were doing justice and you want to dissent from that, like, you don't do anything on the shadow docket.

[Kate Shaw]

I just, you know, the not being able to plan when they're gonna be able to finish, it's just. I don't know.

[Melissa Murray]

Well, that's on us.

[John Kennedy]

That's our.

[Melissa Murray]

That's our beef.

[Kate Shaw]

That's like.

[Melissa Murray]

No, I'm gonna give them some credit. Six this week. I was surprised.

[Kate Shaw]

I was like, oh, wow.

[John Kennedy]

Well, they, too, are getting nervous about their summer vacations, and so maybe they will. But I think it's a couple. I think, at least. Yeah. We don't know where they're going. That is a reference, too. For newer listeners, Neil Gorsuch debating which fabulous Italian destination he should select for some boondoggle. What was he doing teaching?

[Kate Shaw]

Yes.

[Melissa Murray]

I don't think he was selecting between locations. I think he was like, they were putting him up at some Nice place.

[John Kennedy]

He was choosing between Venice and Bologna, I think.

[Melissa Murray]

Oh, was that what it was it.

[John Kennedy]

Was that the exchange. But then you're right, the fantastical might have been a reference to the lodging, but it was context of where would you like to go, sir?

[Kate Shaw]

Yeah.

[John Kennedy]

Anyway, TBD where they spend the summer. But yeah, I would like them to get to rip this band aid off a little faster. Agreed.

[Melissa Murray]

Girls, you guys, you want to get to the end when the end might really be the end. Like the end of the rule of law.

[Kate Shaw]

That's all fair.

[Melissa Murray]

Delay. That's all fair.

[Kate Shaw]

But we were just. I do wish they spaced it out a little bit more because I am concerned that some of these big cases are just going to get lost in the mess.

[Melissa Murray]

What you're concerned about is that at our live show we'll have to do like nine of these opinions and we won't have time for any games.

[Kate Shaw]

We'll do a game. It's just the game might not make it into the episode.

[John Kennedy]

That's true. Fair.

[Kate Shaw]

Okay, so maybe just taking a step back on the decisions and big picture, you know, friend of the pod, Ellie Mistahl called the last week walk the plank week for the Democratic appointees which evocative, kind of along the lines of what we were talking about. And I think another thing that the decisions underscored to me is how much has already been lost in various areas of law such that the Democratic appointees are no longer putting up a fight like in the Ames case, about whether non discrimination law tracks an anti subordination view where you care about whether the law creates some sort of hierarchy versus an anti classification or colorblind view where you just care are they considering race or sexual orientation even if as part of an effort to diversify an institution or rectify past wrongs. And that ship sailed in important ways. And so it was also a reflection of that for me. And just as we cautioned against firing up those scotus so unanimous and moderate takes, the court issued two emergency orders on the shadow docket that seemingly divided the justices alongside six to three ideological lines. As the Republican justices on the court once again went to bat and did a solid for the Trump administration. First, the Republican justices are apparently on team big balls. So the court allowed Doge to get access to data held in by the Social Security Administration. They blocked a lower court ruling that had limited Doge's access to that sensitive information. The three Democratic appointees dissented. Justice Jackson's dissent was joined by Justice Sotomayor wrote, quote, today the court grants emergency relief that allows the Social Security Administration to hand DOGE staffers the highly sensitive data of millions of Americans. The government wants to give Doge unfettered access to this personal, non anonymized information right now before the courts have time to assess whether Doge's access is lawful. End quote. The Republican justices also shielded DOGE from some oversight. They blocked a lower court court ruling that had allowed CREW Citizens for Responsibility and Ethics in Washington from being able to obtain records related to doge. Once again, the three Democratic appointees dissented. So now I guess I'd encourage all of you, when you think big balls, think scotus. And when you think scotus, think big balls. In any case, we're definitely going to need to have a few additional drinks of the summer. The big ballers at this point in bad decision season.

[John Kennedy]

All right, let's move on to some court culture. And this week's Court Culture segment is going to be a bunch of Article 2/Article 3 crossovers. So the Trump administration announced that it is rescinding the Biden administration's guidance that hospitals in states with abortion bans cannot turn away pregnant patients experiencing medical emergencies. So the Trump administration is saying abortion ban states can force hospitals to turn away pregnant patients experiencing medical emergencies that jeopardize their health and potentially their lives.

[Kate Shaw]

But as Joni Ernst would remind us, we're all going to die anyways, so why not let it be because a hospital refuses a woman life or health saving care? It is illuminating to know that their all lives matter mantra apparently did not include pregnant women.

[Melissa Murray]

Not gonna lie, I'm actually surprised they didn't do this on January 21st. I mean, I wonder if abortion is set such a third rail for them right now that this had to get buried in the travel ban and the stuff with Harvard and everything else because they think we won't see it or no one will call it out. Or there's no enterprising podcast of raging feminist podcasters that would have noticed it and just said it to their their listeners every week. But thankfully we're here. Also should note that the rescission of the EMTALA guidance is also very Fetal personhood forward. The Trump administration promises to enforce the law to prevent serious harm to quote the health of a pregnant woman or her unborn child. Mostly her unborn child. And just going to say again, SCOTUS made all of this possible for the administration to do this because it last term decided to dig the case about whether federal law, emtala, the emergency Medical Treatment and Active Labor act act preempted state abortion bans, at least as applied to women requiring stabilization in the context of medical emergencies. So. Thanks, John. At all.

[John Kennedy]

Yeah. I mean, one thing that I did want to flag, and maybe you guys are sort of reading this differently, but this is guidance that is being rescinded. The Trump administration, despite its insistence across the board that it can, cannot. Right. Like, we just can't emphasize this enough, it cannot change a statute passed by Congress. The statute requires hospitals to provide stabilizing care to any person who goes to the emergency room, and no guidance can change that. So I guess I am saying this because I am worried that sounding the alarm is really important, but I don't want people not to go to emergency rooms if they're in distress because they're like, oh, the Trump administration says I can't, the hospital can't help me. There, I think is going to be an understandable fear on the part of doctors and ERs in abortion ban states about what they can do. But I at least still read the statute to require stabilizing care if they are in crisis. And I don't think that anything the Trump administration has done changes that.

[Melissa Murray]

So I don't think anyone experiencing a medical emergency is not going to go to the emergency room because pain and you're just going to go. I do think, though, the rescission of the guidance creates more of illegal morass, a lot of legal uncertainty on the part of providers. And, and again, I don't know, like, you're right, the guidance is distinct from the law itself and AMTALA is still very much a thing, but without a Congress stepping in saying like we did that, who's to say? And so I hear you, and I don't want to be hyperbolic about it, but I do think this is really, really bad. And there are a lot of doctors based on this guidance who are just going to be really skittish about this. And I think more importantly, there are a lot of, of general counsels and hospitals who are going to be super skittish.

[Kate Shaw]

Well, and also consider how EMTALA is enforced. You know, it is in part a spending clause statute. And if the federal government, which has the power of the purse, is now saying, we're not going to withdraw funds from hospitals that refuse stabilizing care. Right. That general counsel's office is going to say, well, our doctors are facing criminal liability. We don't face financial risk if we refuse care. And so I think that that also. Right, yeah.

[John Kennedy]

No, it's it's, it's an awful and like, genuinely scary development. I just, I think that there's, for general councils that are not inclined to go down that path. I absolutely think statute continues to, you know, be in force and says what it says, which is that any patient in any hospital that receives federal funds is entitled to stabilizing care. And stabilizing care is, I think, a capacious term. So moving along to more Article 2, Article 3 crossovers, judicial nominations. So one, you know, tiny blessing in this hellish four plus months we've had is that Trump hasn't been nominating judges at a particularly quick clip, certainly not at the pace he did during the first administration. But last week, the Senate did hold its first round of hearings, one for a nominee to the 6th Circuit and then one for a few district court nominees. Let me just say one word about the 6th Circuit nominee. 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. So instead we are facing the possibility, indeed I think the likelihood of a lifetime appointment for one Whitney Hermandorfer, an Alito and Barrett clerk in her 30s. Yeah, I think Joe Manchin did that. I'm pretty sure that's what happened. Anyway, we now also have some district court nominees and at their hearing last week, guess how many Democratic senators showed up?

[Kate Shaw]

All of them.

[John Kennedy]

All of them. That would be a good guess. That that's, that should be the answer. The answer is two. So Durbin, come the up and briefly. Padilla.

[Melissa Murray]

What briefly? So it's really just one and a half.

[John Kennedy]

I mean, I just, I'm not sure I know he came at the end. I just don't know if he had a chance to actually ask any questions of the nominees. But he like was physically present. But.

[Melissa Murray]

So like what happened to Hirono and Booker and all White House, all of.

[John Kennedy]

Them, I have no idea. I was actually stunned to learn this, but they just didn't show and they're, I guess it was a busy week on the Hill. Like, I'm sorry, that's no, excuse me, excuse.

[Melissa Murray]

We all have three jobs.

[Kate Shaw]

You know, to give you a sense of the kinds of candidates these Democratic senators didn't show up to interact with, some enterprising journalists have provided some important details about these potentially life tenured individuals. We're just going to highlight one, Josh Devine, who Trump nominated to a district judgeship in Missouri. Devine is the current Solicitor general of Missouri and previously Clerked for Thomas and is a longtime member of the Federalist Society.

[Melissa Murray]

Jen Bendery at the Huffington Post reported on some of Devine's writings while a college student. In those writings, he noted that he wanted to make literacy tests great again. So he argued in favor of reviving literacy tests as preconditions for voting. While such tests, he acknowledged, had been used as a form of discrimination during the Jim Crow era, he maintained that they weren't inherently, quote, a bad thing.

[John Kennedy]

This, like, Overton window is moving so fast.

[Kate Shaw]

It is just.

[John Kennedy]

It is stunning. Yeah, go on. What else do we learn about him?

[Melissa Murray]

There's more. Jay Willis, our friend at Balls and Strikes, looked at some more of Josh Devine's columns. In one column, he explained his opposition to homosexuality, which he likened to bestiality, and continued to say, quote, any form of sex that goes against the biological design of. Of procreation, end quote. Hmm. I wonder where he's going to be on Skermetti.

[Kate Shaw]

Yeah, something else the Democratic senators did not show up to ask this guy about was his views about fetal personhood, on which he wrote, quote, I am a zealot. And he believes that, quote, pre born humans have had their inalienable right to life stripped from them by Abortion Mill, end quote. And of course, he compared Roe versus Wade to Dred Scott and Plessy, as all the Fed Sock bros do. He claimed that Planned Parenthood, quote, aids, sex traffickers, end quote. And he maintained Christians cannot, quote, just leave their religion at home, end quote, because they are, quote, obliged ethically to impose their beliefs on others, end quote.

[Melissa Murray]

I'm just gonna say this is one where we could have used Dianne Feinstein saying, the dogma is strong in you.

[John Kennedy]

I'm going to dissent strongly from that.

[Kate Shaw]

Too soon, Too soon, my friend.

[John Kennedy]

But Cory Booker could have had a good round with this guy and you know what? Wasn't there.

[Kate Shaw]

And Divine also maintained that criticism of the former Denver Broncos quarterback Tim Tebow was the product of, quote, bias and possible hatred against Christianity, end quote.

[Melissa Murray]

Or just a hatred of the Denver Broncos.

[Kate Shaw]

Nope, that can't be it. So, you know, in light of this nomination and others, I just wanted to come back to something we briefly alluded to at the live show, which is the Trump Leo supposed fight. And I just think that has been vastly overstated and overplayed because even as Donald Trump might not be outsourcing these picks to the Federalist Society, it's clear he's still going to be drawing from their ranks, since they are the pool of available Nominees who share the beliefs of this administration. And yes, he might be looking for the most hackish among them, but that's not going to mean going with non Federalist Society types and doesn't change like what the Federalist Society has done for Trump or the judicial selection machine anyways.

[John Kennedy]

But I do think we may see sort of two different track like the FedSoc judges and the MAGA judges and there may be some space between them. I don't think there are that many.

[Melissa Murray]

This space would be a library.

[John Kennedy]

But like I don't think there are that many. I mean you have Beauvais obviously nominated to the third Circuit, but beyond that I think it is going to be a small pool of the kind of MAGA judges that Trump is going to want. And so he is still going to be pulling from Fed sock types. And I mean there, I, I will say you guys may disagree with this, but there are definitely some Fed sock identified people who are rule of law conservatives who ruled against Trump in the aftermath of the 2020 election. And so I think that there will be a, a strong impulse to, you know, weed out those rule of law types. And, and so, you know, I, I, I truly don't know what the kind of future of the Fed sock Trump relationship will be. And I think all we can hope for is that it grinds at least to a slow if not to a halt the kind of wheels of the judicial nomination process if there just is not that because that's the only way they did it last time was through the Fed sock. And without Fed sock I, I think it's going to be hard for them to keep up much, much kind of volume.

[Kate Shaw]

Yeah.

[John Kennedy]

So that's at least another silver lining.

[Kate Shaw]

Yeah.

[Melissa Murray]

We should also note that the Court declined to review a couple of really important second amendment cases. This was after they considered these two challenges in 15 consecutive conferences. These were challenges to a Maryland law banning semi automatic rifles and a Rhode island law that restricted high capacity magazines. Now obviously this really bothered some of the Court's amisexuals who took it personally. Justices Alito and Gorsuch indicated that they would have granted the petition. And Justice Kavanaugh issued a statement, he called it a statement respecting the denial of cert that indicated that because, quote, millions of Americans own AR15s and a significant majority of the states allow possession of those rifles, petitioners have a strong argument that AR15s are in common use and are therefore protected under the second Amendment. Try again nra. You'll get Brett Kavanaugh's vote when this comes up again. Justice Thomas obviously took all of this very personally, wrote a lengthy dissent, very much of a piece with Justice Kavanaugh's statement where he noted that the AR15 is the most popular rifle in America and the question of the rights of lawful AR15 owners are of critical importance and should be determined conclusively. He then blasted the lower courts for failing to read his mind and apply the confusing and stupid Bruen test properly.

[John Kennedy]

And just to say a word about the challenged Maryland law that banned AR15s. It was enacted in response to the 2012 Sandy Hook Elementary School shooting, in which on AR15 this kind of gun was used to kill 20 children and six adults. And in upholding the Maryland ban, noted liberal squish Judge J. Harvey Wilkinson of the 4th Circuit referenced the court's 2008 decision in D.C. versus Heller in noting, quote, our nation has a strong tradition of regulating excessively dangerous weapons once it becomes clear that they are exacting an inordinate toll on the public safety and societal well being. Wilkinson, I should say was sort of a skeptic about Heller from when it emerged from the pen of Justice Scalia, but always took the position that it left ample room for some kind of regulation and obviously believed that this fell within what Heller clearly allowed.

[Kate Shaw]

One additional note of court culture which is we are recording on Friday afternoon as we try to do to avoid any late breaking news news, but as we are recording, ABC News is reporting that Kilmaro Brego Garcia is on his way back to the United States to be returned where and again this is according to abc, he might face charges, criminal charges for allegedly transporting undocumented migrants. And again this is just happening as we are recording. This is just so like unexpected, like wonderful. You know, obviously like criminal charges. Maybe he's guilty, maybe he's not. But like that's what criminal trials and due process is for. And the fact that the administration seems to have relented to the variety of court standing form, media pressure on this, public pressure on this I think think should be taken as like one of the more significant and encouraging signs of the power that like people backed up by like courts and law can do, I don't know.

[John Kennedy]

That's a huge deal.

[Melissa Murray]

So cosign on all of that. Just again not to be the turd and the punch bowl here. There is a two count criminal indictment which was filed under seal in federal court in Tennessee last month. According to ABC News. That two count indictment alleges that Abrego Garcia participated in a years Long conspiracy to transport undocumented migrants from Texas to the interior of the country, according to the sources that were briefed on the indictment and that reported that out to ABC News. So this. There's a lot of stuff here. So it's great that he is on his way back home. This, I think, should also get our attention, this alleged conspiracy.

[John Kennedy]

Yeah, I mean, I'm. I'm skeptical, but. But obviously, as Leah said, like, we do have a system of justice in which those charges can be presented and he can defend against them. And I mean, that could be another sort of test of the actual. God, I'm going to say the sentence integrity of Pamela Jo Bondi's Justice Department. You know, I'm not that optimistic about it, but it is an allegedly transported.

[Melissa Murray]

Are members of the Salvadoran gang Mississippi 13, according to the allegations in the case.

[John Kennedy]

Well, so we'll see what evidence there is. But there is, regardless, a world of difference, right. Between being rendered with no process to see cot and facing federal criminal charges in court. And I totally agree with you, Leah. This is. That's an enormous win for the rule of law. Although obviously the legal jeopardy for Mr. Abrego Garcia is far from over.

[Kate Shaw]

Yeah.

[John Kennedy]

Wow.

[Kate Shaw]

And indeed, some red flags have already emerged about the indictment and accusations. The former chief of the criminal division of the United States Attorney's office in Nashville resigned following the decision or perhaps the instruction to seek an indictment against Kilmar Abrego Garcia. That office is the office in Tennessee that indicted Kilmar Abrego Garcia. And as Melissa's colleague Ryan Goodman noted on Blue sky, the indictment already seems to depart from the referral report from the Department of Homeland Security and in potentially meaningful ways, which kind of undermines the government's case against Abrego Garcia. So we will be watching this.

[Melissa Murray]

This is an ad by BetterHelp. There's so much stigma around men's mental health, but I think we all know simply by reading the US Reports, and in particular Justice Thomas and Justice Alito's opinions that if men had better access to mental health care care, things would be better for all of us. Men today face immense pressure to perform, to provide, and to keep it all together. So it's no wonder that 6 million men in the United States suffer from depression every year. And it often goes undiagnosed. Guys, it's okay to struggle. Real strength comes from opening up about what you're carrying and doing something about it so you can be at your best for yourself and everyone in your life. If you're A man and you're feeling the weight of the world. World. Talk to someone. Anyone. A friend, a loved one, a therapist. Don't put it down in the US Reports. Do not write a concurrence. I've benefited from therapy. When my mom passed away, talking to someone about the experience was something that really helped me get through it and really think about how my grief was affecting other parts of my Life. With over 35,000 therapists, BetterHelp is the world's largest online therapy platform and it's helping serve over 5 million people global fully. And it works. BetterHelp has an App Store rating of 4.9 out of 5 based on over 1.7 million client reviews. BetterHelp is also convenient. You can join a session with a therapist at the click of a button, helping you fit therapy into your very busy life. Plus, you can switch therapists at any time. As the largest online therapy provider in the world, BetterHelp can provide access to mental health professionals with a diverse variety of of expertise. Talk it out with Better Help our listeners at Strict Scrutiny get 10% off their first [e-mail] Strict. That's betterhelp.com Strict.

[Kate Shaw]

Hey, I'm journalist Sam Sanders.

[Chris Hayes]

I'm poet Saeed Jones.

[Pamela Jo Bondi]

And I'm producer Zach Stafford. And we are the hosts of a podcast called VibeCheck.

[Chris Hayes]

On Vibe Check, we talk about everything.

[Kate Shaw]

News, culture and entertainment and how it all feels.

[Pamela Jo Bondi]

That's right, we talk about any and everything on our show, from real life issues like grief to music and movie critiques. And that barely scratches the surface.

[Chris Hayes]

Yes, indeed. And it doesn't stop there. We have got a lot to say, so join our group, chat, come to life, follow and listen to Vibe Check wherever you get your podcasts.

[John Kennedy]

All right, so we're going to transition now to not really court culture. I think this is actually pod culture, like I think culture. No, it's all of us. Sorry, we're all in it. Okay, fine. Maybe this whole Kate Forward segment, I guess. Kate and Senator Kennedy forward content. So, okay, last week I testified before two subcommittees of the Senate Judiciary Committee on nationwide injury injunctions. And like, I wrote a long statement and spent some time preparing, but I honestly did not think to prepare for being interrogated about this podcast. And Senators Kennedy and Blackburn are surprisingly super fans. Did not know, but they are listeners and so are their staffs and they really wanted to talk strict scrutiny. So let's roll that tape.

[Leah Littman]

You referred to the conservative justices as, and I'm quoting you, her evil color Colleagues. That is something you said on strict scrutiny in your podcast. And you, in that same podcast, you made a reference to Justice Alito. Do you recall that?

[John Kennedy]

I don't recall that. We certainly do reference Justice Alito, so I believe that. But I don't recall specifically what there.

[Leah Littman]

Was that he was an abject misogynist.

[Senator Blackburn]

On April 22, 2024, you said there are some members of the Supreme Court that are evil. Which justices were you talking about?

[John Kennedy]

I'll take it. Your word, Senator. I don't recall using that word, but.

[Senator Blackburn]

All right, here's what you said. You were talking about the majority opinion in Muldro v. City of St. Louis. You said, quote, Justice Kagan. I mean, will she be able to control the opinions. Future. Future distortion by her evil colleagues. Probably not. End quote. Who are you talking about, sir?

[John Kennedy]

I'm, I, I'm very skeptical. There's a. If it's a transcription, it was probably a transcription error. I do not think I said.

[Senator Blackburn]

No, you said it once you own up to it. Which you call some of the members of the Supreme Court evil. Now, which ones do you think are evil?

[John Kennedy]

I would have to refresh my recollection. I have. I've been very critical, very Members of.

[Senator Blackburn]

The Supreme Court statement, aren't you?

[John Kennedy]

I, I, I'm. Officer, it doesn't sound like something that.

[Senator Blackburn]

You know what I'm saying, that you're teaching our kids.

[John Kennedy]

I don't refer to Supreme Court justices as evil in the classroom, sir.

[Senator Blackburn]

Podcast, April 22, 2024. Okay, big as Dallas, and you're an officer of the court, and you're here advising us to be respectful to federal judges, and you say they're evil members of the United States Supreme Court. Gag me with a spoon.

[John Kennedy]

All right, so Senator Blackburn wanted to know if I had called Justice Alito a. I think raging misogynist seemed to check out. So I tried to explain why I might have done that. But when Senator Kennedy confronted me about whether I'd called the justices evil, I thought that didn't sound like something I'd say. So I told him I really didn't think.

[Melissa Murray]

No, you were like, I think that sounds like something my bitch co host would say.

[John Kennedy]

If I am being honest, I think I will come to mind. Right.

[Kate Shaw]

And Melissa could fit in the category.

[John Kennedy]

Your staffers cannot tell our voices apart, Senator. I mean, I didn't say that, but I was thinking it. Okay, so fast forward to actually checking the transcript and the tape and this, like, reel that they had put together. Turns out I, in fact, did, did use the word evil. And in the immortal words of Dirty Dancing, when I'm wrong, I say I'm wrong.

[Melissa Murray]

Let's roll the tape.

[John Kennedy]

So good result. Deftly constructed opinion by Justice Kagan. I mean, will she be able to control its potential future distortion by her evil colleagues? Probably not. But, but for a couple of.

[Melissa Murray]

But like, were you that wrong, though? It was such an offhanded comment. I mean, yes, he made. It sounds like you were saying they were stirring call cauldrons and have a pitchfork.

[John Kennedy]

That's not really.

[Kate Shaw]

We've been doing six years. Like, if our listeners played a game, like at a live show with us where they threw out phrases and said, did you say this or not? I would get less than 50% correct. Because unless it's like a recurring joke, you know, like, I'm not going to remember it. You don't remember all the conversations you have with friends. Right.

[Melissa Murray]

And that was also incredibly. I mean, it wasn't like you were saying, like, Brett Kavanaugh writes BuzzFeed listicles instead of opinions.

[John Kennedy]

I wish I had been asked about that.

[Kate Shaw]

It's not like you just went on the Daily show and called Brett Kavanaugh and Neil Gorsuch dumb and said you basically had to like, write your book in language plain enough for them to understand. Which, like I said. Right.

[John Kennedy]

Yes, that was, that was a great moment.

[Melissa Murray]

You know, so basically Leah and I are never testifying before Congress. And I wanted to say maybe, maybe that's the point.

[John Kennedy]

That is a serious, I think, kind of conversation to have about them making it intolerable to testify.

[Kate Shaw]

Yes.

[Melissa Murray]

Well, let's, let's go back. Like, you aren't the only woman, woman law professor who has gotten this kind of treatment from the Republican members of Congress when they have testified. Marianne Franks of GW got absolutely excoriated by John Kennedy as well. And, and she held her own, but she got a flood of like terrible comments from like absolutely misogynist maga folks who flooded her emails and social media. Jen Daskell also had a hard time in front of the committee. Now you have query, do any of the mens who testify before these committees get similar treatment?

[Kate Shaw]

I have thoughts about this because at the same hearing where Kate was testifying, one of the majority witnesses happens to be someone who has called for some Supreme Court justices to step down when they don't vote the way he wants. Who claimed credit for the Supreme Court justices overruling Roe vs. Wade because he blogged negatively about them when he thought they wouldn't do so. And at the hearing, wouldn't slash, couldn't answer where the money came from that endowed his chair. And all of that was totally fine. But, like, you have the audacity to criticize the court that they built to overrun our constitutional democracy, and so they want to shame you out of being able to appear at a Senate confirmation, like, or like a Senate hearing.

[Melissa Murray]

They kept talking about how you're a law professor. Like, FYI, we do not assign this podcast to our students. This is my thing. Right?

[John Kennedy]

Yeah. And I did say I don't. I definitely don't refer to them as evil in the classroom. And that's absolutely true. It is a different mode of discourse, and I don't think a committee that has a leading podcaster on it would understand the medium. He didn't come to my defense.

[Melissa Murray]

Your husband. Didn't he, like, weirdly introduce you with your husband? Like, what was that about?

[John Kennedy]

It was apparently a huge breach of protocol. Like, you have a bio you give to the committee, and that's what they're supposed to use to introduce you. The chair is not supposed to introduce the minority witness anyway. And they're definitely not supposed to editorialize about how you're married to a left wing cable news host, which Cruz actually did when introducing me. And I, like, I felt my body kind of like, shoot back six inches in my seat. Like, I was so taken aback. And anyway, I guess they were just.

[Melissa Murray]

Warming up just for the gentleman from Cancun. Kate Shaw is a graduate of Brown University and Northwestern University's law school and a Supreme Court clerk and a professor at the University of Pennsylvania. Chris Hayes is.

[Kate Shaw]

Has won awards for her scholarship.

[Melissa Murray]

Yes, she's. But Chris Hayes was our roadie.

[Kate Shaw]

Okay.

[John Kennedy]

That's what I.

[Melissa Murray]

Let's get it right.

[John Kennedy]

We're not disparaging Chris Hayes, but it really was a little bit like, you're only here because of your husband or something. Seemed to be what Cruz was trying to communicate, and I don't think it was offered in, like, a complimentary spirit was my pretty strong suspicion.

[Melissa Murray]

Anyway, justice for Snowflake and for Chris Hayes and for you.

[Kate Shaw]

On this. Like, they are trying to scare people out of facilitating any kind of oversight, whether that is before Congress or outside of it. I mean, I feel like they felt like they had to come for you and the other talented women that have appeared before them because watching the live hearing live, also seeing the public's reaction to it, like, you managed to keep your cool while spitting cold, hard facts about how their false narratives were indeed false and So I wanted to play this clip so that everyone can hear it if you weren't tuning in.

[Michael Kosta]

What's the principle of when an injunction biting non parties, which was never done in this country before the 1960s. And let's see the chart, the Trump chart. Chart, which was done really only once Trump came into office for the first time. You don't think this is a little bit anomalous? You don't think that's a little bit.

[John Kennedy]

A very plausible explanation, Senator, you have to consider is that he is engaged in much more lawless activity than other presidents. Right.

[Michael Kosta]

You don't think.

[Melissa Murray]

You must consider.

[Michael Kosta]

Never used before the 1960s. And suddenly Democrat judges decide we love the nationwide injunction. And then when Biden comes office. No, no, it's Republican.

[John Kennedy]

Republican appointees as well, senator. And the 1960s is where some scholars begin. Sort of locate the beginning before then. Mila Sahoney, who's another scholar of universal injunction, suggests 1913 is actually the first others in the 20s.

[Michael Kosta]

The Republic endured for 150 years before nationwide injunction.

[John Kennedy]

Well, the federal government was doing a lot less until 100 years ago. So, you know, there's many things that have changed in the last hundred or the last fifty years.

[Michael Kosta]

So long as it is a Democrat president on office, then we should have no nationwide injunctions. If it's a Republican president, then this is absolutely fine, warranted and called for. How can our system of law survive on those principles, Professor?

[John Kennedy]

I think a system in which there are multiple constraints on the president is a very dangerous system.

[Michael Kosta]

That's not what you thought when Joe Biden. That is not what you thought when.

[John Kennedy]

Joe Biden was president.

[Michael Kosta]

You said.

[John Kennedy]

That is not what you said.

[Michael Kosta]

It was a travesty for the principles of democracy. Democracy, notions of judicial impartiality and the rule of law. You also said Supreme Court center agreement.

[John Kennedy]

I know with me.

[Michael Kosta]

You also said when Joe Biden.

[Kate Shaw]

Like that was just incredible. And you were doing that throughout the period.

[Melissa Murray]

The only person who exhibited manhood in this moment was you. More balls.

[Kate Shaw]

More balls than all of the Republican members of that committee combined.

[John Kennedy]

Is that what a testicular confrontation looks like?

[Kate Shaw]

Like me and Jack Holly, by the way, Republican senators, if I come before the committee. Yeah, I said that. Right? Like I said, Kate has more balls than you.

[Melissa Murray]

Yes, that sounds like.

[John Kennedy]

Ask me about it.

[Kate Shaw]

Right?

[John Kennedy]

Ask me about it all different time.

[Kate Shaw]

Ask me what I said about on my podcast.

[Melissa Murray]

I mean. Yeah. The point of this, I think, is to keep. Keep smart women from testifying. Keep anyone who might be a dissenting voice from testifying, make it harder for the minority in both chambers to conduct oversight or participate in oversight and underscore, I think for everyone that your real job, Kate, is really to be at home having babies and collecting your Trump baby bonus or whatever nonsense policy they want to put out there.

[John Kennedy]

And just to abstract up for one second on that, I think that's right. And I also think it's not just about testifying. I think it is disincentivizing speaking out. I actually think it's part of that larger program to like, ratchet up the costs of dissent. This is like one tiny instantiation of that. But that is the larger project. And that.

[Kate Shaw]

Listeners, if you want to send some fan mail describing exactly how pumped as fuck you were like when you heard the clip we just played, you know, you know where to send it.

[Melissa Murray]

So, like, forget those guys. We had some real fans in the audience in D.C. on May 31st and we've got to issue some thank yous to that amazing audience. 850 people at the Capitol turnaround. Amazing.

[Kate Shaw]

Just incredible. We loved meeting the fans that stuck around for the like after special package deal. There were Stephanie and Holden, Jamie Rose, a pair in the pink no law just Vibes shirt, someone in an OG Strict scrutiny T shirt in an OG no law just Vibes sweatshirt. Anna with the cool tattoos, the vet who was going to night law school, Kyra Hill, you know, like, if you took pictures with us, please email those pictures to me. We would love to just like send a small thank you. But that event and the people we met were just really incredible. And they are. Yeah, things we read and liked.

[John Kennedy]

Let's do it.

[Melissa Murray]

Sure.

[Kate Shaw]

So on the recommendation of one of the people I met at the live show, I read Kristin Henning's the Rage of Innocence. Worth the recommendation. Also enjoyed listening to some of the new music for Pride Betty, who has a new single, Addison Rae as well. But finally, the shitposting war between Trump and Musk that we've all been waiting for finally happened. And the content was incredible. Specifically the Republicans not knowing what to do. I just want to highlight this one tweet that honest to God, had me gasping for air when I read it. And that is from Jack Posobian Centric. So he says, quote, some of you all can't handle two high agency males going at it. And it really shows. This is direct communication, parenthesis phallocentric versus indirect communication, gynocentric. I understand you aren't used to it. I just. I loved it. I loved it. I died. Right. Like, I basically want it tattooed.

[John Kennedy]

Wait, which part of it?

[Senator Blackburn]

All of it.

[John Kennedy]

The whole thing.

[Kate Shaw]

On the back.

[Melissa Murray]

Gynocentric. And it's irreversible. And you can decide what you want to do with it. That's the new merch. Someone call crooked.

[John Kennedy]

Oh, my God. That's a great idea.

[Kate Shaw]

Yeah.

[John Kennedy]

Would wear.

[Kate Shaw]

Yeah, yeah. Would wear.

[John Kennedy]

Possibly tattoo of my body. Yeah.

[Kate Shaw]

Yeah.

[John Kennedy]

All right. I will shout out just a couple of brief things.

[Melissa Murray]

Your super fans that you met. Marsha Blackburn and John Kennedy.

[John Kennedy]

No, the actual amazing people that I met. So it was. It's summer, and I have not, I don't think, ever been, like, in Congress in the, like, high summer when everyone there is like, the mean age is 21 or something. It's all interns. So the room, hearing room was full of, like, lovely, fresh faced young people, like, younger than law students, mostly college students. And a bunch of female students came up to me afterwards and said hello and said they listened to the pod, but also were like, wow, you really kept your cool. That was amazing and inspiring and thank you. And I was like, I was pretty shook after those hours, and it was just like, it was very life giving to have this conversation. So thank you to all the Capitol Hill interns who came up after the testimony. Yeah, thanks to all the haters. I really got an enormous volume of hate mail this week. So I guess some of it was a little funny. Some of it was, like, pretty disturbing. But I did get to call out an awesome woman scholar during my exchange with Holly. Got to mention Mila Sahoney, who is a great scholar of the universal injunction. All of them, the members of the committee, were acting as though Sam Bray, who's another scholar of universal injunctions, sort of was gospel on this subject. And I was happy I got to crack the record by invoking Mila. And finally, Leah mentioned this earlier, but her amazing appearance on the Daily show with Michael Costa, who is one of the hosts, kind of rotating, it was epic. I loved watching it. I'm sorry I couldn't be there in person. Melissa got to be.

[Kate Shaw]

Melissa gave me my shoes that I wore.

[Melissa Murray]

Oh.

[John Kennedy]

Oh, those were like, the spiky flats.

[Kate Shaw]

Yeah, they looked great. Obviously, I'm not cool enough to own them, so.

[John Kennedy]

But luckily, you have a friend who is.

[Kate Shaw]

Exactly.

[Melissa Murray]

Unfortunately, her friend is maybe a half size larger than she is in the foot. So in the green room, we literally lined those shoes with Kleenex.

[John Kennedy]

Are you serious?

[Melissa Murray]

Like, I'm wearing these motherfuckers on stage.

[John Kennedy]

Well, it didn't show that the walk was perfect.

[Kate Shaw]

It was great.

[Melissa Murray]

Um, I also wanted to shout out Leah's amazing star turn on the Daily show with Michael Kosta, who was amazing. It was a big night for the Mitten. Jordan Klepper was also there. Michiganders Leah, Jordan. Michael Kosta really did you proud. I will also say sleeper hit. Troy Iwata, who did an amazing bit on Elon Musk and his movement training, which was so funny. He also made a terrific cameo as the big beautiful Bill that basically everyone on the house floor had had their way with. And that was hilariously funny. Absolutely fantastic. Also, big shout out to our intern Jordan, who brought his mom Mari, who was. And they both came wearing strict scrutiny gear. And that made it very visible on the TV when they panned to the audience. Is absolutely fantastic. Jordan also did the Lord's work. Almost got kicked out of the Daily show by taking some surreptitious photographs and also documenting, because at one point, Michael Costa referred to Leah's book as Supreme Court law Pop culture have sex book. And I was like, write that down, Jordan. And he pulled out his phone and started making a note. And then the security guy was like, put that phone away. And I was like, okay, we're doing it. Like, you know, I don't want Jordan arrested for strict scrutiny. So it was absolutely fantastic. And we met some of Leah's friends, just like a really terrific night. And Leah, you were absolutely fabulous. The second thing that was awesome this week is I read this terrific op ed about William Buckley, and it was so illuminating to me. Like, I read God and Man at Yale. This is William Buckley's book in the 60s about moral relativism in the Ivy League and whatever. And this author, Sam Tannehouse, essentially linked Buckley to the current conservative grievance that's happening all over Washington and really, really illuminating. And Sam Tannehouse has a book coming out on William Buckley called the Life and the Revolution that Changed America that I have now ordered and can't wait to read. I too have been enjoying the bro on bro combat of DJT versus Elon Musk. Absolutely fantastic. The memes have been great. As one meme said, this is just like Drake versus Kendrick Lamar, except everyone here is Drake. And that.

[John Kennedy]

I thought it was everyone here is Kendrick.

[Melissa Murray]

No, no, no, no.

[John Kennedy]

Well, everyone here's Drake in that way. Oh, in that way. Sorry. See, I was just thinking he's better at the actual.

[Melissa Murray]

I think you've got to go to pop culture summer school again.

[Kate Shaw]

Summer.

[Melissa Murray]

Oh, that's okay, we'll work on it later. You've had a hard week. I also saw John Proctor is the Villain on Broadway with Sadie Sink, and it was absolutely amazing. If you have a chance, go and see this. It's so smart. It's just absolutely fantastic. I actually ran into one of Leah Lipman's students. Rosella, so great to see you. And your boyfriend, James. He was great. I think his name was James. I'm pretty sure it was James. James. Fantastic play. Highly recommend. And then finally, I'm now reading the new Taylor Jenkins Reid Atmosphere, which I'm very excited about.

[Kate Shaw]

So excited.

[Melissa Murray]

Are you gonna. Don't you love her?

[Kate Shaw]

It's on my list. So I have this, like, series of books that I have lined up for travel because I know I like them, and so that's what I'm working through first.

[Melissa Murray]

Yeah, Yeah. I just. I can't delay gratification like that. So I'm going like. I'm just reading it.

[John Kennedy]

All right. Should we land this plane? Let's do it.

[Melissa Murray]

Let's land this Qatari jet. Okay.

[John Kennedy]

All right.

[Melissa Murray]

All right. Newark, we're coming in.

[Kate Shaw]

Do you have room for no Newark or bus?

[Melissa Murray]

I landed in Newark and it was fine.

[John Kennedy]

This is perfectly fine.

[Kate Shaw]

You're so glad that one. You're braver than me.

[John Kennedy]

I'm not doing Newark.

[Melissa Murray]

This is fine.

[Kate Shaw]

So because the court's actions on the shadow docket required a post recording update, as always, I. Leah, I'm going to take advantage of this unfortunate fact, which required me to record some updates on my own and use it to say some additional things about the pressure, not so subtle threats and attacks that were directed at Kate in particular and the three of us on the podcast more generally. One is that Kate Shaw is a hero for willingly going in to the Senate Judiciary Committee hearing, having seen how they've conducted themselves as part of. Of an effort to fight back against the false and misleading narratives about how the lower courts are doing something untoward by merely enforcing federal law against the Trump administration. That's probably not something I would do right now, but her commitment to public education, the rule of law, and our system of separated powers and the rule of law runs that strong. There's a reason why they came for her, our beacon of hope, and subjected her to this abuse to try to dim her light. And I just want her and Melissa to feel support and like they aren't out on their own and won't be left on their own if and when they are threatened. Kate, I don't know if you will get this reference. Melissa I think you will. But imagine the moment in Miss Congeniality where one Gracie Lou Freebush Gracie Hart is asked in the finals of the scholarship competition about her feelings on the Miss United States Pageant. And remember what she says after her brief shining moment.

[John Kennedy]

That's all Little Housekeeping before we go for the next month, when you buy something from the Crooked Store, you'll get a promo code for a free 30 day trial of Friends of the Pod Crooked's subscription community. That means a full month of ad, free pods, exclusive subscriber only shows, and access to our Discord server completely free. So if there is a T shirt you've had your eye on or you need something to wear at the next protest, volunteer event or angry walk around your neighborhood, now is the perfect time to grab Support the mission. Get the merch head to crooked.com store now.

[Melissa Murray]

Strict scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Me, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our Associate producer. We get audio support from Kyle Seglin and Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeline Haringer, Katie Long and Ari Schwartz. Matt Matt De Groat is our Head of production and we are thankful for our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to strict scrutiny on YouTube. To catch full episodes, find [e-mail] strictscrutinypodcast if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

[Kate Shaw]

Hey, I'm journalist Sam Sanders.

[Chris Hayes]

I'm poet Saeed Jones.

[Pamela Jo Bondi]

And I'm producer Zach Stafford and we are the hosts of a podcast called VibeCheck.

[Chris Hayes]

On Vibe, we talk about everything.

[Kate Shaw]

News, culture and entertainment and how it all feels.

[Pamela Jo Bondi]

That's right, we talk about any and everything on our show. From real life issues like grief to music and movie critiques. And that barely scratches the surface.

[Chris Hayes]

Yes indeed, and it doesn't stop there. We have got a lot to say, so join our group, chat, come to life, follow and listen to Vibe. Check wherever you get your podcasts.

[Melissa Murray]

USAA knows dynamic duos can save the.

[Michael Kosta]

Day like superheroes and sidekicks or auto and home insurance.

[Melissa Murray]

With usaa, you can bundle your auto and home and save up to 10%. Tap the banner to learn more and get a'@usaa.com bundle restrictions apply.