A Term for the Rich, the Reactionaries, and the Ruthless

Summary

Strict Scrutiny Podcast Summary: "A Term for the Rich, the Reactionaries, and the Ruthless"
Release Date: July 7, 2025

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Overview

In the July 7, 2025 episode titled "A Term for the Rich, the Reactionaries, and the Ruthless," the hosts of Strict Scrutiny—Melissa Murray, Leah Langley, and Kate Shaw—delve deep into the recent United States Supreme Court term. They dissect pivotal cases, analyze the Court's strategies, and critique the evolving legal landscape, emphasizing the profound implications for everyday Americans. This summary captures the episode's key themes, discussions, insights, and conclusions, enriched with notable quotes and timed references.

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1. Procedural Maneuvering Masking Substantive Outcomes

Key Discussion:
Melissa Murray introduces the concept of the Supreme Court's dual role in simultaneously granting and taking away rights through procedural decisions that conceal significant substantive implications.

Notable Cases:

• RJR Vapor, Inc. v. FDA: The Court upheld FDA regulations on e-cigarettes ("the giving") but simultaneously allowed tobacco companies to file in favorable circuits, undermining the FDA's authority ("the taking").
• Diamond Energy v. EPA: Fuel manufacturers were permitted to challenge EPA regulations by joining litigation in friendlier jurisdictions, thereby weakening environmental protections.

Notable Quotes:

• Melissa Murray (02:15): "The court sometimes gives us good stuff, sometimes takes it away in the same breath."
• Leah Langley (04:05): "The substantive motivation is giving a leg up to favored litigants and erecting obstacles to disfavored ones."

Insights:
The hosts argue that the Court's focus on narrow procedural issues often serves to protect corporate interests, sidestepping broader, more impactful constitutional questions. This tactic leads to decisions that may appear technical but have far-reaching consequences for public policy and individual rights.

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2. Justice Amy Barrett’s Conservative Trajectory

Key Discussion:
The episode scrutinizes Justice Amy Barrett's performance and alignment within the conservative bloc, highlighting her unwavering stance and the political repercussions thereof.

Notable Observations:

• Justice Barrett rebuffs liberal expectations, firmly cementing her position as a staunch conservative.
• Her willingness to critique even her more junior colleagues signals a deepening rift within the Court's ideological spectrum.

Notable Quotes:

• Melissa Murray (15:28): "She made clear that she is a no more suitors conservative to her core. She is definitely with the boys."
• Leah Langley (19:51): "Barrett will probably rule against the Trump administration in some tepid ways in some cases, but her right-wing views make her a reliable MAGA vote in most others."

Insights:
Justice Barrett's actions reflect a broader trend of consolidation within the conservative majority, prioritizing ideological conformity over judicial restraint. This behavior not only affects Court dynamics but also influences public perception and political mobilization against perceived judicial overreach.

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3. Corporate Influence and Judicial Favoritism

Key Discussion:
The hosts critique the Supreme Court's apparent bias towards corporate interests, suggesting that procedural rulings disproportionately benefit wealthy entities over ordinary citizens.

Notable Cases:

• Planned Parenthood v. Birthright Citizenship: The Court limited remedies available to plaintiffs representing underprivileged communities while simultaneously making it easier for corporations to challenge federal regulations.
• Stanley v. City of Sanford: Justice Jackson's dissent highlighted the Court's over-sympathy towards corporate entities.

Notable Quotes:

• Leah Langley (08:57): "It just also, you're saying anything these guys say the Trump administration says gets credited and treated as law."
• Melissa Murray (26:05): "Gerrymandered judging—making up the law—for the Republican Party."

Insights:
The discussion emphasizes a perceived shift towards a "gerrymandered" judiciary where legal principles are tailored to favor specific political and economic interests. This trend undermines the Court's role as an impartial arbiter and raises concerns about the erosion of democratic checks and balances.

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4. Justice Ketanji Brown Jackson’s Advocacy for Judicial Independence

Key Discussion:
Justice Ketanji Brown Jackson (represented by Leah Langley) is lauded for her robust dissenting opinions that defend the integrity of lower courts and challenge the majority’s decisions.

Notable Cases:

• Challenging Shadow Docket Decisions: In cases like Diamond Energy and Birthright Citizenship, Jackson critiques the Court's procedural tactics that favor the administration and corporate litigants.
• Dissents: Her dissents articulate concerns about the Court’s favoritism towards powerful interests and the resultant impact on marginalized communities.

Notable Quotes:

• Leah Langley (08:51): "I'm going to start at an 11 and I'm going to take it up about a 15 real quick."
• Melissa Murray (10:17): "Justice Sotomayor and Justice Jackson are the only two members of the court to have ever served as district court judges."

Insights:
Justice Jackson emerges as a pivotal figure advocating for judicial accountability and the protection of individual rights against procedural manipulations. Her dissents serve as critical counterpoints to the majority's decisions, highlighting the deep ideological divides within the Court.

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5. Shadow Docket and Its Implications

Key Discussion:
The episode analyzes the increasing reliance on the Court's shadow docket—emergency orders and last-minute decisions that bypass full briefing and oral arguments—and its implications for judicial transparency and accountability.

Notable Cases:

• DVD v. DHS: The Court's procedural stay of lower court decisions without substantive rulings exemplifies the shadow docket's opaque nature.
• Planned Parenthood and Birthright Citizenship: Shadow docket decisions that limit judicial remedies while supporting corporate litigation strategies.

Notable Quotes:

• Leah Langley (09:12): "That's another example of the phenomenon… the court using these procedural shields to essentially reach the merits results that it wants without taking responsibility."
• Leah Langley (26:05): "Shadow docket orders are executed with a presumption of regularity and lawfulness that the Court unjustifiably provides."

Insights:
The shadow docket's growing prominence raises significant concerns about the Court's ability to make timely and reasoned decisions on urgent matters without adequate scrutiny. This trend diminishes the Court's transparency and its role as a balanced judicial body.

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6. Gerrymandered Judging and Judicial Lawmaking

Key Discussion:
The hosts argue that the Supreme Court is engaging in "gerrymandered judging," effectively creating bespoke laws tailored to the conservative agenda, undermining established legal doctrines and principles.

Notable Cases:

• Planned Parenthood Medicaid Challenge: Narrow rulings that hinder the enforcement of federal benefits.
• Dominion v. Biden Administration: Conservative interpretations limiting executive branch powers.
• Skremetti and Others: Decisions favoring corporate and reactionary interests over equitable legal standards.

Notable Quotes:

• Leah Langley (28:07): "The court is siding with the Trump administration and against the district court… a big win at CASA is hugely emboldening."
• Kate Shaw (30:11): "The doctrines and reasoning they announce do not resemble anything I would recognize as law."

Insights:
The argument posits that the Court is departing from its role of interpreting law within established frameworks, instead adopting flexible and partisan doctrines that enable selective enforcement and favoritism towards certain political and economic groups.

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7. Selective Application of Stare Decisis

Key Discussion:
Melissa Murray and Leah Langley discuss the Court’s inconsistent application of the principle of stare decisis, which dictates adherence to precedent.

Notable Observations:

• The Court upholds certain precedents like Yoder v. Wisconsin but disregards others such as Employment Division v. Smith.
• Future cases assessing the viability of foundational decisions like Wong Kim Ark and Voting Rights Act.

Notable Quotes:

• Leah Langley (54:30): "Stare decisis is still for suckers… Some of the time."
• Melissa Murray (55:58): "They are not going to uphold reinforced stare decisis in the Voting Rights Act case."

Insights:
The selective adherence to precedent suggests a judicial philosophy that prioritizes current ideological goals over legal consistency and stability. This unpredictability further erodes the rule of law and undermines the Court's authority.

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8. Justice Samuel Alito’s Majority Opinions and Internal Court Dynamics

Key Discussion:
The hosts critique Justice Samuel Alito's role in crafting majority opinions that advance the conservative agenda while maintaining an appearance of legal propriety.

Notable Cases:

• Mahmoud v. Taylor: Alito’s majority opinion is sarcastically lauded for its minimal endorsement of the podcast, reflecting the Court’s performative aspects.
• Trump v. Casa: Alito’s separate concurrence showcases the Court’s strategic positioning in high-stakes political cases.

Notable Quotes:

• Melissa Murray (59:08): "Thank you, Justice Alito. You heard it here, folks. Strict scrutiny is appropriate."
• Justice Alito (60:03): "The leather that they're pointing to is a woman in a leather jacket and one of the words is drag queen in the search."

Insights:
Justice Alito is portrayed as a pivotal figure in shaping the Court’s conservative jurisprudence, often leveraging procedural decisions to achieve substantive policy outcomes favorable to the administration and corporate interests.

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9. Impact of Supreme Court Decisions on Lower Courts and Public Policy

Key Discussion:
The episode underscores the Supreme Court's influence over lower courts' ability to enforce laws and protective measures, particularly in immigration and deportation cases.

Notable Cases:

• Kilmar Abrego Garcia’s Case: Highlights the human cost of judicial decisions that facilitate harsh deportation practices.
• Amalgamated Bank v. Facebook: Illustrates the Court's support for corporate litigation strategies against regulatory bodies.

Notable Quotes:

• Leah Langley (73:01): "Packages by Expedia... Justice Almeida: We were made to be rich..."
• Melissa Murray (77:03): "They have tattoos and they are brown. They have tattoos and they are brown."

Insights:
Supreme Court rulings have direct and often detrimental effects on vulnerable populations, enabling administrative overreach and facilitating human rights abuses. The Court's support for procedural maneuvers that protect corporate interests further marginalizes disadvantaged groups.

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10. Closing Reflections and Future Outlook

Key Discussion:
As the episode draws to a close, the hosts reflect on the grim nature of the current Supreme Court term while expressing concerns about the upcoming term's potential challenges.

Notable Observations:

• Anticipation of intense cases involving transgender rights, voting rights, campaign finance, and administrative law.
• Speculation on potential retirements and shifts in Court dynamics based on political changes.

Notable Quotes:

• Kate Shaw (84:25): "This is going to be a crazy summer and then an even crazier term."
• Melissa Murray (97:42): "The PRESUMPTION OF REGULARITY is quite broad."

Insights:
The episode concludes with a sober outlook on the Supreme Court's trajectory, emphasizing the critical need for vigilance and advocacy to counteract the Court's drift towards partisan decision-making and erosion of legal norms.

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Conclusion

This episode of Strict Scrutiny presents a thorough and critical examination of the Supreme Court's recent term, highlighting concerns over procedural tactics, corporate favoritism, and ideological rigidity. The hosts effectively utilize notable quotes and case analyses to underscore the profound impact of the Court's decisions on American legal culture and everyday lives. As they look ahead to future terms, the emphasis remains on the necessity for continued scrutiny and resistance against judicial overreach to preserve democratic principles and individual rights.

Transcript

[Melissa Murray]

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don'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 laws and our lives. Church state separation is a bulwark that blocks their agenda. One of the last bastions of church state separation is our public school system. So they are pushing vouchers everywhere. They are arguing for religious public schools. Yes, you heard that right. Religious public schools. And they argued for it at the Supreme Court last term, which we talked about a lot on this podcast. If you're listening to us, you already see the writing on the wall. You know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement, because church state separation protects us all. You can learn more and get [e-mail].

[Justice Samuel Alito]

Crooked Mr. Chief justice, please, the court.

[Justice Ketanji Brown Jackson]

It's an old joke, but when I.

[Justice Samuel Alito]

Argue man argues against two beautiful ladies like this, they're going to have the last word.

[Justice Kate Shaw]

She spoke not elegantly, but with unmistakable clarity.

[Justice Samuel Alito]

She said, I ask no favor for my sex.

[Justice Ketanji Brown Jackson]

All I ask of our brethren is.

[Justice Samuel Alito]

That they take their feet off our necks.

[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.

[Justice Ketanji Brown Jackson]

I'm Leah Langley.

[Justice Kate Shaw]

And I'm Kate Shaw. We have now had a few days to step back from the term, which means we are ready, or as ready as we will ever be for our term recap. So we're going to highlight some big term themes, share our takes on the biggest opinions of the year, and take a walk through some of the moments from the term that will forever be seared into our memories.

[Melissa Murray]

So one theme that I'd like to highlight, just to get us started, is this idea that the court giveth and the court taketh away. And by that I mean the court sometimes gives us good stuff, sometimes takes it away in the same breath, and that often happens in tandem with the court highlighting really procedural issues that appear really wonky. But those procedural issues really mask underlying substantive questions that have really impactful consequences. So I'm just going to highlight a couple of these cases. Two of them were the E cigarette cases. So there was the White lion case, in which the court upheld an FDA ruling on E cigarettes. That was the giving. And then the Court took it away, which is to say in another case, it allowed those companies challenging FDA regs and rulings to find friendly litigants to bootstrap onto their litigations. And then they were able to file their lawsuits in friendlier circuits, and that again enabled them often to prevail against the fda. So the case I just mentioned, RJR Vapor, essentially held that tobacco manufacturers can file outside of the D.C. circuit and the circuit in which they are incorporated if they can find some retailer or a gas station or basically anybody that sells e cigarettes in a friendlier location. And the court did a similar kind of thing in Diamond Energy vs EPA with regard to standing, essentially allowing fuel manufacturers or fuel producers to jump in and challenge litigation against the epa. So all of this, I think, is really concerning. And as in the Birthright Citizenship case, the court really focused on these narrow procedural questions, venue standing remedies that skirt these bigger, broader, more substantive questions.

[Justice Ketanji Brown Jackson]

So I would maybe generalize from that or go one step further in saying what the substantive motivation is behind these ostensibly procedural or technical issues, and that is giving a leg up to favored litigants and favored rights and erecting obstacles and burdens to disfavored litigants and disfavored. Right. So you mentioned Birthright Citizenship and RJ Reynolds. I would add to that JGG versus Trump, one of the initial Alien Enemies act cases. So on Birthright, the court chooses this existential challenge to our constitutional order, the project of reconstruction, as the case to limit what remedies plaintiffs can get against the government. And in jgg, it says to the men who are at risk of being permanently sent to Secot, the Salvadoran prison that we now have a firsthand account of the torture the men will be subjected to there. It says to those men file a habeas petition, a more challenging, difficult process than blocking a policy ENT under the APA. And then in R.J. reynolds, it tells Big Tobacco, you get to basically pick which federal court you file in or contrast how the court exercised discretion in Diamond Energy versus Birthright. In Diamond Energy, it revives a lawsuit by fuel producers against the EPA's approval of a California regulation, even though the Trump administration is considering at this very moment revoking said regulation, thereby potentially eliminating the need for litigation challenging it. So even though this whole issue is likely to be moot, the court chose to decide the case anyway. Then in Birthright, the court opts not to say anything about the merits and how wildly illegal the executive order is, creating this chaos and uncertainty about when and where it might go into effect. And this is what I took to be the BS that Justice Jackson talked about in her dissents in these cases. In diamond, she talked openly about the perception of the court, quote, being overly sympathetic to corporate interests, end quote. And in Birthright, she says the court's decision will fall hardest on the, quote, poor, the uneducated and the unpopular, those without the power to lawyer up.

[Melissa Murray]

Let me just add on to that, Leah. So I think Justice Barrett's opinion in Trump versus Casa is very much of a similar vein. And I want to focus specifically on the fact that she credited the administration's 30 day delay that had been baked into the initial EO. And that 30 day delay for the implementation of the EO was ostensibly so the government could devise guidance for implementing its obviously and flagrantly unconstitutional order. And she kind of credits that in the last part of it. I mean, like, again, talk about stacking the deck in favor of certain interests. Like, we know this is unconstitutional, but yet we're going to allow this 30 day delay to proceed so they can figure out how to do the unconstitutional thing more unconstitutionally.

[Justice Ketanji Brown Jackson]

Like, it just also, you're saying anything these guys say the Trump administration says gets credited and treated as law.

[Justice Kate Shaw]

One more thought on that kind of part of the ruling in the birthright citizenship case that says, you know, there is a 30 day delay that we are essentially gonna just announce fiat. It's part of the executive order, but while saying the administration has to wait to begin enforcing it. But guidance development can happen right now. And I just think a couple things about that. One, it does give me some pause with respect to all of these confident assertions that the executive order will clearly be deemed unlawful when the court addresses the merits. I mean, I still think that's very likely the case, but I think it is far from 100% certain. And I think this might be something of a tell. And I also think there is something profoundly corrosive to just kind of the general constitutional culture to say executive branch lawyers start devising. How exactly is this going to go into effect? What should hospitals do when they are.

[Justice Ketanji Brown Jackson]

Actually how to violate the law?

[Justice Kate Shaw]

You know, just figure it out. Figure out the mechanics of this egregious constitutional violation. I think it is appalling that the court does that. But there's one silver lining I think that should be noted, which is that once you have guidance, if they do it fast, then you have the possibility of a challenge under the Administrative Procedure act, which you don't have in the context of just an executive order. So it is. There is some sense in which the guidance might provide a hook for a different avenue for legal challenges.

[Justice Ketanji Brown Jackson]

Yeah. So I could go on forever about the substantive choices and vision reflected in the procedural rulings, But I'll just note one other pairing, which is Planned Parenthood and Birthright. So in the former case, the Supreme Court says Medicaid beneficiaries and providers can't challenge a state's violation of federal law on Birthright. Again, the Court chooses an attack on multiracial democracy and the Reconstruction Amendments as a vehicle to limit remedies in civil rights cases. Then in diamond, it adopts a generous theory of standing that makes it easier for fuel producers to sue in the FDA and EPA cases, preserves the ability of corporate interest to pick where they sue. Like, I feel like at this point we are on theme number one, and I should warn our listeners that in the immortal words of Matt Damon playing Brett Kavanaugh on SNL, I'm going to start at an 11 and I'm going to take it up about a 15 real quick. Like before we started recording, I read one of the more revealing garbage takes on the last term, and I haven't been able to come down from it.

[Melissa Murray]

Name a name.

[Justice Ketanji Brown Jackson]

No.

[Melissa Murray]

Name a name.

[Justice Ketanji Brown Jackson]

No. Leave it to the listener's imagination and maybe I'll talk about it in the Friends of the Pod Discord.

[Justice Kate Shaw]

Is this fuel more or less powerful than three magnolia cupcakes? Just curious.

[Justice Ketanji Brown Jackson]

It's just different kinds of fuel. Like, the magnolia cupcakes make me a little cheery and chipper. This just makes me incandescent with rage.

[Justice Kate Shaw]

Yeah. Okay. Well, I don't know if this is going to help.

[Justice Ketanji Brown Jackson]

Like, I think I damaged my phone by throwing.

[Justice Kate Shaw]

By throwing it across the room so hard. Okay. Okay. Well, I don't know if this is going to help, but I did want to add one more case here which might ratchet things up further, but that is the shadow docket order DVD versus dhs. So there the court made just in terms of the kind of procedural and discretionary choices the court is constantly making and trying to conceal. So it made the decision to stay the careful work of the lower courts that had considered challenges to the administration's efforts to render individuals to third countries they had never been to, including South Sudan. But the court put that lower court work on hold without saying a word about why. Now we are just reading tea leaves. But it may be that there were some jurisdictional concerns about the court's ability to hear that case that's the explanation will Bode supplied for the court in a term roundup we did for the Times last week. But if that is the case, that would be another example of the phenomenon that Leah and Melissa, you're both identifying, which is the court using these procedural shields to essentially reach the merits results that it wants to without actually taking responsibility for doing that.

[Justice Ketanji Brown Jackson]

And somehow that order in DVD became even more appalling when on last Thursday evening the Supreme Court granted the Trump administration's, quote, motion to clarify the Supreme Court's unreasoned, unclear order halting the trial court's injunction in the case that had blocked the government from carrying out third country removals without providing due process. After the Supreme Court's unexplained literally zero explanation order, the lower court, doing his darn best to figure out what's going on, determined that while the initial order injunction wasn't in effect, a subsequent order still was. And that was the subsequent directive, a remedial order that had required the government to provide the men it shipped off to South Sudan without due process, in violation of the lower court's order to require the government to offer those men some due process and credible fear interviews before releasing them into the custody of South Sudan. On Thursday, the Supreme Court, quote, clarified that, but that order was blocked too. What the government asked for, as Justice Sotomayor explained in a blistering dissent, is, quote, to send the 8 non citizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death, end quote. Justice Kagan issued a short concurrence to the order, saying that while she disagreed and still disagrees with the Supreme Court's order staying the lower courts court's order, she doesn't think a remedial order can remain in effect to remedy an order that is itself no longer in effect. Which I don't know sounds plausible, but it's kind of treating what the Supreme Court did earlier in DVD with the same kind of presumption of regularity and lawfulness that this court unjustifiably provides. A Trump administration. I recognize these obviously aren't totally the same thing, but still struck me as similar. Justice Sotomayor with Justice Jackson dissented. And did they? They wrote, quote, perhaps the majority hopes that in light of its contentless stay order, the district court will simply give up on adjudicating this case. But if this court wishes to permit the government to flout the fundamental rights guaranteed by the Due Process Clause. It cannot avoid accountability for that lawlessness by tasking the lower courts with inventing a rationale. She also wrote, quote, the Court's continued refusal to justify its extraordinary decisions in this case, even as it faults lower courts for failing properly to divine their import, is indefensible. Today's order clarifies only one thing. Other litigants must follow the rules, but the administration has the Supreme Court on speed dial, end quote.

[Melissa Murray]

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[Justice Ketanji Brown Jackson]

Strictly close your eyes, exhale Feel your body relax and let go of whatever you're carrying today. Well, I'm letting go of the worry that I wouldn't get my new contacts.

[Justice Kate Shaw]

In time for this class.

[Justice Ketanji Brown Jackson]

I got them delivered free from 1-800-contacts.

[Justice Kate Shaw]

Oh, my gosh, they're so fast.

[Melissa Murray]

And breathe. Oh, sorry.

[Justice Ketanji Brown Jackson]

I almost couldn't breathe when I saw.

[Melissa Murray]

The discount they gave me on my first order. Oh, sorry.

[Justice Kate Shaw]

Namaste. Visit 1-800-contacts.com today to save on your first order. 1-800-contact contacts.

[Melissa Murray]

Okay. Another theme of this term, I think, was all eyes on Amy.

[Justice Ketanji Brown Jackson]

Under Amy's eye, maybe?

[Justice Kate Shaw]

No, no.

[Justice Ketanji Brown Jackson]

His eye.

[Justice Kate Shaw]

We don't. It can't be under her eyes.

[Melissa Murray]

Amy doesn't have her own eye in this particular milieu. She is definitely under his eye for these purposes. So at the end of the last term, Justice Barrett was on the receiving end of brickbats from Conserv who were incredibly disappointed that she displayed a modicum of restraint in certain cases. She was also, I think, in our view, weirdly and wrongly celebrated by some liberals as the second coming of David Souter. Which is to say they were wishcasting their fondest hopes and dreams for a 5 to 4 court onto justice Barrett. Well, Justice Barrett took that personally. And in this particular term, she decided that Amy was gonna Amy, which is to say that she made clear that she is a no more suitors conservative to her core. She is definitely with the boys. And not just with the boys. She's actually willing to beat up on her more junior black female colleague, which has prompted MAGA World to celebrate Amy again some more, while also denouncing Justice Jackson as a quote, unquote DEI hire. I will just note that as of a few months ago, MAGA World was actually lambasting Justice Barrett as a quote, unquote DEI hire. So life comes at you fast.

[Justice Kate Shaw]

It's almost like they're willing to accuse anyone of being a DEI hire so long as they are not a white male if they are doing things that. That they dislike or disfavor.

[Melissa Murray]

Dissent is the first D and D correct.

[Justice Kate Shaw]

And I will just say, as between the Barrett opinion and the Jackson opinion, I really do just implore our listeners to read the two opinions and form your own judgment regarding who gets the better of it. Jackson's dissent, to my mind, clearly comes out on top of to pick up on Barrett, though I assume she will continue to occasionally disappoint conservatives and rekindle a degree of hope. Maybe what glimmers of mine remain but her conservative bona FIDE should be safe for at least a little while. And I think that's not just because of her opinion for the court in Trump vs Casa, which as we said in our emergency episode, is like her first really big opinion for the court. And boy, is it a decent. I have thoughts on that, yeah. But also I just want to kind of throw into the mix her track record in cases involving equality, equality and liberty, which, you know, the birthright citizenship case obviously does as well, but ones that do more explicitly grapple with those things. So first she wrote a truly extreme concurrence in the Scrometti case, going out of her way to say that discrimination against trans people should not be subject to heightened scrutiny, in part because there hasn't been enough official state sponsored discrimination against trans people. I mean, totally shocking factual claim and also gratuitous to stake out a claim on the level of scrutiny which the majority resolves the case without deciding. And to do that while the ban on service by transgender individuals in the military is still pending and while there are other cases involving pressing legal questions regarding the basic rights of transgender people before the lower courts and before the Supreme Court. So she went out of her way to say, this is how I think all those laws should be scrutinized. And I just actually want to mention one other case which is her opinion last term for a 6:3 court in State vs. Munoz, kind of under the radar, but this was this case that held there is no protectable liberty interest in living with your non citizen spouse in the United States in a way that I think like, you know, suggested a very cramped conception of constitutional liberty, at least if we're talking about anything but a paradigmatic heterosexual CIS US citizen marriage, which she probably does think the Constitution protects.

[Melissa Murray]

Well, maybe not in this particular milieu right now. So, I mean, Munoz takes on, I think, new contours right now. But I will just say that I think you're right to highlight those two cases. I think they really suggest her growth and her new level of comfort in her position. Because I can still remember justice Barrett in 2022 saying absolutely nothing in Dobbs, like, you know, not even a word about a Dropbox where you could leave your baby. She had nothing to say. The sea witch had her tongue.

[Justice Ketanji Brown Jackson]

Yeah, she is going all in on Dobbs over and over. And I am personally over it. I do not find her interesting and I implore people stop trying to make Amy Barrett interesting. She will probably rule against the Trump administration in some tepid ways in some cases, but her right wing Views make her a reliable MAGA vote in most others, like most cases, period.

[Justice Kate Shaw]

Okay, so let's shift to another theme from the term and say it with your chest.

[Melissa Murray]

See it with your chest.

[Justice Kate Shaw]

So this next theme is the kind of big the house is on fire energy that we are getting both. Both, you know, energy and explicit warnings from both Justice Sotomayor and Justice Jackson. One thing I think is less than clear is whether it is the administration or the court that is to blame. I mean, maybe the obvious answer is, why not both? But I just want to highlight a couple of writings on this theme. So first, Sotomayor, in her dissent in the DVD case, that's the one where the court, you know, granted this stay in the Third country removals case, she says, quote, given its conduct in these proceedings, the government's posture resembles that of an arsonist. So here it's the government, right, starting the fire, who calls 911 to report firefighters for violating a local noise ordinance. In any event, the government has not established a likelihood of success on any of its arguments. That actually, I think, also well describes the government's conduct in the birthright citizenship case. And second, I want to quote Justice Jackson in the Social Security Administration versus afscme. This is the case involving Doge and Big Ball's access to Social Security Administration data. So she said there, quote, once again, this court dons its emergency responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them. So I think we have the administration starting fires and the majority on the court fanning flames rather than extinguishing them.

[Justice Ketanji Brown Jackson]

She's just so fucking good at writing so clearly with just super evocative turns of phrases that, yeah, really capture the moment. And speaking of calling out bullshit, we wanted to remind people of this very memorable moment from Justice Jackson during the birthright citizenship argument. Something that I think has really stuck with people, including us, in her description of the regime the Supreme Court might have just ushered in.

[Melissa Murray]

I understand. Let me just turn your attention to one other thing, because the real concern, I think, is that your argument seems to turn our justice system, in my.

[Justice Kate Shaw]

View, at least, into a catch me.

[Melissa Murray]

If you can kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights. Justice Kagan says, let's assume for the purpose of this that you're wrong about the merits, that the government is not allowed to do this under the Constitution.

[Justice Kate Shaw]

And yet it seems to me that.

[Melissa Murray]

Your argument says we get to keep on doing it until everyone who is potentially harmed by it figures out how to fire, file a lawsuit, hire a lawyer, et cetera. And I don't understand how that is remotely consistent with the rule of law.

[Justice Kate Shaw]

Okay, so coming out of that quote, let's maybe identify another theme, Both from Trump vs Casa, but also more broadly from the term, which is the court siding with the Trump administration and against the district court. So I think that's true about Trump v. Casa, kind of first and foremost on the court's merits docket, but the case just has to be discussed together with the court's disposition of cases on the shadow docket. So I know a lot of folks saw, and we have mentioned the eye popping statistic that political scientist Adam Bonica compiled a week or so ago, finding that from May 1 to June 23, federal district courts ruled against the Trump administration 94% of the time, and the Supreme Court sided with the Trump administration the same 94% of the time. Just like pretty stunning data. And look, there are some caveats to the data in that the administration only asked the Supreme Court to take up a small subset of the cases that they lost, ones where they thought they could make some kind of procedural argument that they could notch a win on. But it's still like that track record. And this big win at CASA is hugely emboldening. And I think that you have already real evidence of that in that within, I think, a day of the CASA ruling in the Birthright Citizenship case, the administration filed its first appeal in one of the law firm executive order cases, the one involving the order targeting Perkins Coie. So they had been essentially just letting those losses lie, and they were all of a sudden like, oh, you know what? Maybe we'll take our chances at the Supreme Court might be able to get a win there.

[Melissa Murray]

Well, to that point, I just want to underscore the complete antipathy for lower court judges, both at the court and within the administration. I think it was incredibly evident this term on the court side we saw in the oral argument in Kelly and in Justice Elite statements in the oral arguments from Trump versus Casa, that these guys don't think that district court judges know what the fuck they're doing. Like, Justice Alito was talking about district court judges as though they were monarchs of their own realm. And it's like, why don't you start with the man in the mirror? Why don't you ask that guy to make a change? Because that's where this all begins. And again, it is also worth noting that the two voices standing up for the district court judges against the administration and against this court are Justices Sotomayor and Jackson, who are the only two members of the court to have ever served as district court judges. And they have been vociferous in their defense of the juridical power of the lower federal courts. I will also highlight Justice Jackson's speech at the First Circuit Judicial Conference in Puerto Rico where she talked explicitly about how the administration's rhetoric was putting district court judges in danger. And I will just note that it was pointed out to me that in addition to making those statements to a full audience of judges who gave her a standing ovation, Justice Jackson then had that speech and the coverage of it included on the Supreme Court's website. So she wants you to know this is what she thinks. And again, I don't. Just the antipathy was stunning this term.

[Justice Ketanji Brown Jackson]

Well, compare and contrast her rigorous, meaningful defense of the lower courts with the chief justice's meh kind of statements, you know, in that direction. You know, Kate, I agree with the limitations on the statistics you mentioned. I also think they are pretty eye popping and say a lot. And one of the things they suggest to me is that the administration knows or has a pretty good sense of when the Supreme Court is with them and that on a lot of things the Trump administration is doing, the Republican justices are with them. You know, on term themes, I'm extra not news to our listeners. So I couldn't stop myself at one. Sorry, like, if these guys don't have to, you know, do law, I don't have to restrict myself to one hashtag take on the term. So one, and I think this is related to what you've both said, Kate and Melissa, but one is how the court is enabling lawlessness by giving the go ahead to the administration and a big middle finger to the lower courts. Like they respond sternly and quickly to the lower courts and then offer some like mild shrugs on Trump, like, I don't care, do you? They come up with legal rules that basically say, yeah, there will be no consequences for violating the law. And I know we've gestured at this, but I think it's important to emphasize by pausing so many lower court orders, including ones the administration defied, they are adding cover and fire to the administration, administration's rhetoric on the lower courts. The message they are sending to the Trump administration is that, yes, what the lower courts are doing is wrong. And when you send that to an administration who believes any judicial oversight is wrong and who is defying court orders. What do you think you're going to get? Like again in the case about perhaps the most egregious extreme lawlessness, birthright citizenship. They decided in picking what issues to weigh in on to say that the problem that warranted their attention and time is is the lower courts. Like it is a law of lawlessness, a law for lawlessness and to my mind, like this court is an anti, anti Trump court. Like to them the problem is people, institutions resisting Trump, not what Trump is doing.

[Melissa Murray]

I will chime in to say it's not even just that they're sending that message to the administration, it's that the administration is then broadcasting it to their supporters and that is having a profound impact, negative impact on lower courts. The safety of lower court judges, like it's incredibly irresponsible.

[Justice Ketanji Brown Jackson]

Completely agree. So my second theme is gerrymandered judging. So making up the law. A lot of bespoke law for the Republican Party. We've talked about this some already and I wrote a short term recap for democracy docket making this point. So I'll just quickly rattle through some of it. But in the Planned Parenthood Medicaid case, they make it harder to enforce rules about the availability of public benefits, the same programs the Republican Party is vitiating on major questions doctrine, a tool that constrain what the executive branch can do. Brett Kavanaugh says, eh, this doesn't apply to foreign affairs, Trump's favorite kind of emergency or exception to invoke to justify emergency powers on the First Amendment porn is just different. In Trump versus Wilcox, our rule doesn't apply to the Federal Reserve Board. In Skremetti they revive precedent that legitimized sex discrimination. And Godoldig versus Aiello, they are ruling again and again for different constituencies of the Republican coalition that created and got us this court. The rich corporate interests, the reactionary right wing Christian theocrats and the strongman.

[Melissa Murray]

In this sense, I would say that the court is very much aligned with the administration which rode to victory in 2024 on this kind of working class populism, affordability rhetoric. But since actually getting into office in January, this administration has been clear that they are beholden only to oligarchs and the mega rich. So you see this with the big beautiful bill, the cuts to Medicaid that are contained within it, the efforts to limit services at VA hospitals, the cuts to hospital research and universities, and these are all programs that benefit working people, whether it is Medicaid recipients or veterans or the Many people in red states who are employed by their local hospitals or their state university. So just to say this is not a populist court and it is in service of an administration, that's not really popular list either.

[Justice Ketanji Brown Jackson]

Yeah, third final theme, I promise, related to ones we've already talked about. Like, what is law? Don't know her. Like, these guys are making the law into a whole ass vibe. Like they're just hot boxing or freestyling, whatever you want to call it. The doctrines and reasoning they announce do not resemble anything I would recognize as law. Like they are not principles or rules that can be applied by the lower courts. It's just a bunch of mumbo jumbo that allows. Allows the court to do whatever the fuck it wants. Again, quick lists.

[Melissa Murray]

Eh, this doesn't really feel like sex.

[Justice Ketanji Brown Jackson]

Discrimination to us, Mahmoud, you know, Eh, these books kind of give me the ick and make me feel like a bigot because I don't like gay people. Like, this is not judging because they only care about the interests on one side. In Mahmoud, the standard they adopt depends on whether the books are a normative message. It's a burden of the same character. It's an objective threat, not law. Nationwide injunctions fives are just different than the bill of peace. Like in most of their opinions. It feels like you could pick out the sentence or sentences that contains the quote rule or quote reasoning, recite that sentence and then say the Aristocrats and you'd have like a pretty good joke. And the legal reasoning and rules announced in these cases are about as law. Like as if Sam Alito was performing a rhythmic artistic gymnastics dance routine like an old school. It's just the do the vibe seem off standard.

[Melissa Murray]

Do not do that to Will Ferrell.

[Justice Ketanji Brown Jackson]

Sorry. I'm sorry.

[Melissa Murray]

I will not stand for this Will Ferrell erasure.

[Justice Ketanji Brown Jackson]

It's not Will Ferrell erasure. It is reviving this image of Will.

[Melissa Murray]

Ferrell and inviting, but with Justice Alito's head on him.

[Justice Kate Shaw]

No one wants to visualize that.

[Justice Ketanji Brown Jackson]

Okay, sorry. I'm sorry. I've had to visualize and read a lot of things I didn't want to. So all's fair. All's fair. Okay. So those were, I think, the big themes we wanted to work through. I think there were some other assorted topics maybe to reflect on over the last term. One which we've really already gestured at, which is just the vision of Justice Jackson and her willingness to call out hypocrisy. We've mentioned her descent in diamond energy, which was Just remarkable in talking about the perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens. So too was her epic iconic footnote 12 in Stanley calling bullshit on textualism, I can't and won't read it all. Now recommend to our listeners a track of Elie Mistahl reading it to the track of ether. So last line I'll drop really far from being insufficiently pliable, I think pure textualism is incessantly malleable. That's its primary problem. Indeed, it is certainly somehow always flexible enough to secure the majority's desired hours.

[Melissa Murray]

So this was definitely the spiciest footnote of the term. It might even give Caroline Products Footnote 4 A run for its money for the spiciest footnote of all time. But I just want to make clear she is true to this game, but she's not new to this game. So let's go back to last term in Snyder where Justice Jackson wrote a very spicy dissent where she observed that the torture faux textualist reading of a public corruption statute was one that, quote, only this court could love.

[Justice Ketanji Brown Jackson]

Yes.

[Melissa Murray]

And she opened that opinion by noting that when public officials are on the grift, you could lose faith in your public institution. So she's never been here for the bullshit. And I kind of loved that she really stepped up the truth telling this term, which I think helped explain the sharp rebuke from Justice Barrett in the Trump versus Casa opinion. I think Justice Barrett was not only commenting on Justice Jackson's very on point dissent in the Casa case. I think she was actually speaking for the entire conservative supermajority that is probably more than a little PO'd that Justice Jackson continues to take them to the woodshed over and over again in her dissent. And I think they're really tired of her calling public attention to their absolute bullshit. I think that helps explain perhaps why Justice Barrett may have gotten this quite unusual assignment for such a junior Justice. I think it's clear that the supermarket is not happy with what Justice Jackson is doing. But I also think the Chief justice probably realizes that the optics are really poor if he or one of the the more senior male Justices takes KBJ to the woodshed in an opinion. And so instead they enlisted Justice Barrett to write this decision and in the process to be the one to publicly chastise her colleagues. So it looks maybe a little better girl on girl crime and there are more peers than anything else. But I think it would have looked really, really bad if the Chief justice had been the one to do that.

[Justice Kate Shaw]

Super interesting, I think. I agree. It's a really interesting theory. I wonder what. What we make of. There was just this really interesting contrast in the Barrett majority opinion between the way she talked about the Sotomayor dissent, the principal dissent, which it is technically, but she kept saying that, like, that's a dissent that I disagree with, but I respect, and that other dissent that's not even doing law. We're not gonna take it seriously. I mean, it was really not doing law.

[Justice Ketanji Brown Jackson]

Not doing law, you say? Did you read Brett's separate writing Girl?

[Melissa Murray]

Wait, so, Kate, I think this is so interesting in view of the Jodi Kanter profile of Jessica Justice Barrett, where she mentioned specifically that there is some kind of friendship between Justice Sotomayor and Justice Barrett, and Justice Sotomayor has given gifts to Justice Barrett's daughter or whatnot. And it also reminds me of last term in the Andy Warhol case, where Justice Sotomayor wrote a majority opinion and Justice Kagan issued a very stinging dissent. And I said on the pod then that it surprised me how barbed the dissent was, because I don't think anything Justice Sotomayor was saying was anything that Justice. Justice Ginsburg would not have said when she was the one writing those IP decisions. And I don't think Justice Kagan would have come at Justice Ginsburg in that way. And maybe there's a similar kind of thing here. Like, maybe there's just a kind of grudging respect between Justice Barrett and Justice Sotomayor that just isn't there between Justice Barrett and Justice Jackson.

[Justice Kate Shaw]

Yeah, I also, just like, I really loved Jackson being as explicit in not just this term, but you're right to mention Snyder from last term about the. The deficiencies of textualism as a method. And I just think it's so refreshing. We're not just all gonna embrace textualism and offer our, like, sort of slight variations on it. I mean, I actually think she really does take text very seriously, but in context and not in isolation. And I just, like, I.

[Melissa Murray]

Well, I mean, she's a district court judge. She used to be on the Sentencing Commission. She knows from text completely, and she's.

[Justice Kate Shaw]

Just better at it, and she has no patience for the way they do it and just made me wish. I. I used to teach legislation as a law school class, and I don't teach it anymore, but I would love to teach some of Jackson's statutory cases if I were ever teaching that subject again. They're great.

[Justice Ketanji Brown Jackson]

It's. Honestly, it's so refreshing, in part because I feel like at the various public law conferences or conversations I am part of for the last however many years. Even as a left leaning progressive Democrat, still, saying you weren't a textualist put you in some sort of weird minority. Like oh, you're, you're just not on board. You haven't gotten the message. And I feel like now with her platform, she is providing so much support and ammo and it is just wonderful to read.

[Melissa Murray]

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[Justice Samuel Alito]

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[Justice Ketanji Brown Jackson]

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[Justice Kate Shaw]

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[Justice Ketanji Brown Jackson]

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[Justice Kate Shaw]

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[Melissa Murray]

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[Justice Ketanji Brown Jackson]

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[Melissa Murray]

Oh, sorry.

[Justice Kate Shaw]

Namaste. Visit 1-800-contacts.com today to save on your first order. 1-800-contacts.

[Melissa Murray]

So we also need to talk about Justice Kagan's appeasement energy. I don't know if maybe that's not the right thing to call it, but I will just note that there were a number of cases decided on a 7 to 2 fracture because Justice Kagan joined the conservatives. So RGR Vapor was one Diamond Energy Stanley versus City of Sanford. Any theories as to why Justice Kagan left Justice Sotomayor and Jackson out in the cold on these cases? And I will also note that these were some of the cases where Justice Jackson penned her most stinging dissents against the majority. What's going on here? Is Justice Kagan extracting compromises for her vote? I don't think her vote makes much of a difference with a 7 to 2 fracture. I mean, they're fine without her. What's going on here? Is this just sort of more appeasement? That's what Micah Schwartzman at UVA has called it in the context of the First Amendment. I'm confused.

[Justice Ketanji Brown Jackson]

I really don't know. I mean, Justice Kagan authored the non delegation case FCC v. Consumers Research. It's just hard to know, you know, what is going on behind the scenes. And I think I've said this before and it's something we've talked about, but it's so hard to know the internal dynamics at the court and the extent to which the Democratic appointees or any Democratic appointee feels like if I peel off more or all the time, are these guys really going to go even full on crazier in more sets of cases? Like they truly are enough snowflakes where that's not impossible for me to imagine. And you know, I don't know how to strike the right balance. You know, Diamond Energy, that case is one where Steve Vladek and I talked about this in the episode you all unfortunately had to miss. Like, we are both sympathetic to broad theories of standing. So on the merits, I think they are probably right that there is standing. I think their decision to decide the case is appalling and is revealing of the kind of selectivity that Justice Jackson rightfully criticized them for including on standing doctrine. But yeah, I don't know.

[Justice Kate Shaw]

And I'll just say I think she's a very kind of careful and tactical thinker and writer. And it is entirely possible that she, through the process of, you know, draft revisions that circulate inside the Court, she was able to extract some concessions where language she thought would be destructive in other areas of the law and she was able to sort of smooth those over or like get them actually taken out. So certainly like she may have made these one off decisions that I think in the aggregate get. It is a little hard to understand. But and on an individual basis, like actually may have been totally rational and helped blunt the negative force of some of these opinions.

[Melissa Murray]

Hear me out. I just worry that appeasement is not really a strategy here. And thinking back to Justice Breyer and Trinity Lutheran, like that did not forestall the flood of absolute asshat decisions on the First Amendment that the Court produced. And I'm also thinking of her joining the dissent in Ramos. When was that? Back in 2019. And I understood then, I think she telegraphed pretty clearly that she was joining them in order to make a point about stare decisis and the continuing vitality of Apodaca versus Oregon, a decision decided in 1973, the same year as another embattled decision. And that still did not forestall what happened in Dallas.

[Justice Ketanji Brown Jackson]

It didn't forestall it. You know, as we've kind of speculated before, it might delay some of the impending doom.

[Melissa Murray]

We got a good four, three years out of that.

[Justice Ketanji Brown Jackson]

Three more years of the establishment clause. Again, I don't know. And you know, I am also super skeptical of the appeasement strategy. It is not obviously where I lean. And I do think this difference in the Justice's posture relates to another thing that was said on the episode with Steve that I was mentioning. And that's something Mike Sachs said, which is Justice Jackson as the model of the Post Dobbs justice who recognizes that appeasement fails and that is not the strategy you need to construct and build something new and advocate boldly for an alternative vision.

[Melissa Murray]

I'm gonna say what I mean plainly then. I think this appeasement strategy in this particular moment where it's a six to three court and there are two women of color among that minority and you are the third person, I think when you depart, even on these cases that look not so Consequential, but are actually quite consequential. You leave the other two open to tons of charges from the conservatives about the stupidity, the lawlessness of their reasoning when, if you join them, you could instantly some of that talk. And I think. I'm not sure that the appeasement is worth what you're losing.

[Justice Ketanji Brown Jackson]

That's a.

[Justice Kate Shaw]

It's a great point. Yeah.

[Justice Ketanji Brown Jackson]

Great and important point. Because I feel like in some ways what you're saying is that Justice Kagan might be ignoring some important context. Right. In which the court is deciding cases in the same way that the Republican justices in the super majority ignore the context of the Trump administration. Right. And like, not situating your decisions in the moment we are in. Right. Is, you know.

[Justice Kate Shaw]

Yeah, I wouldn't say those are comparable. Right. But like, but for sure, like, there are real costs involved. And I think, Melissa, you highlighted those really, really well. Okay, so another thing I want to pause over. So we've talked obviously about Kagan and Sotomayor and Jackson and Barrett. Let's talk about the chief a little bit. And I want to maybe raise a couple of things. One kind of the chief's role and, and how central that is in the court's orientation toward Trump in this past term. So at the end of the term, the Chief justice offered some remarks at a judicial conference. Quote, if you have somebody who's expressing a high degree of hostility to the court on whatever basis, the danger, of course, is somebody might pick up on that. And we have had, of course, serious threats of violence and murder of judges just simply for doing their work. So he's so close to actually identifying the problem and yet. Yet does not seem able to actually internalize that Donald Trump is the guy in the hot dog suit, or maybe John Roberts is.

[Melissa Murray]

Or maybe they both just like the.

[Justice Ketanji Brown Jackson]

Chief justice begging for the guy in the hot dog suit meme like, sir, we're all trying to find the guy who did this. Well, it's not.

[Justice Kate Shaw]

Yeah, but Trump is a big part of it.

[Justice Ketanji Brown Jackson]

Yes, but this is some of what I'm talking about with the anti. Anti Trump court. The timing of the signals don't call US Supreme Court out for our complicity in what the Trump administration is doing. He's signaling. That's just like when Donald Trump posts pictures of judges and their families and invites death threats against them.

[Justice Kate Shaw]

I just don't even know if he is able to grasp that Donald Trump is as culpable as he is. Maybe, maybe he is. I'm not sure, but. Or that he is as culpable or that. No, no. Yeah, yeah.

[Justice Ketanji Brown Jackson]

Yes, that's that. So.

[Justice Kate Shaw]

So that's the point, is that Roberts is culpable. I just. I'm just not even sure he realizes about Trump either. I don't think he thinks either of them is responsible. But I also just kind of wanted to pose this question, which is, what do we think about Roberts in this moment and the Robert's Court? So, remember, obviously, we've now been doing this podcast for over six years. So I remember after Dobbs, it really felt. And we really talked about Roberts having lost control of his court. Right. So he doesn't join the majority opinion that overrules Roe and Casey. It doesn't feel like they need him or care what he would like the court to do, how fast, how radical, any of it. And I just wonder whether in the wake of the immunity opinion and. And his rate of 95% presence in the majority in opinions this term, and this is really, really high, he was in the majority in almost every case, I guess. Is it again, his court in more than just name? What do you guys think?

[Melissa Murray]

We definitely talked about this last term with the Clean Water act case. I mean, he gave Justice Alito, like, the most parsimonious docket to. Right. Last year. And I think that was intentional. Sort of like, I'm the captain. I'm really the captain, and you're not. And get it together. I think he has been resting control back from the hardcore conservative bloc. And I say hardcore conservative bloc advisedly, because I think to call them hardcore and to take Roberts out of it is to suggest how far to the right the court really has moved. But I do think this is his court. I mean, I think he's making decisions. Some of them, I think, are really strategic, as I said, with the choice of Justice Barrett for Trump versus Kassa. I think he allowed her to carry a lot of water and take a lot of the heat for the whole conservative supermajority.

[Justice Ketanji Brown Jackson]

Yeah, I think it is his court, and I think it's his court in part because he is on board with a lot of what they are doing. And so they are traveling together, and he is authoring some of the worst decisions in those respects.

[Justice Kate Shaw]

So let's cover a bunch of additional kind of smaller themes. One, foreign law in the last term, I think, played a pretty interesting role. So once upon a time, for our younger listeners, it was anathema for conservative justices to consider or cite foreign law. Our Constitution was all that mattered. And it was something I would say akin to lawless to even consider the practices or legal regimes of peer nations in deciding what the Constitution or laws in the United States meant or required. So an example of that is Justice Scalia's absolute hissy fit over the nod to foreign law in Justice Kennedy's majority opinion in the 2003 case Lawrence vs Texas. So the court then, 20 plus years ago, was was firmly of the view that foreign law, or citations, even in passing to it, were bad for limiting the government's ability to criminalize consensual sex between adults. But all of a sudden, in 2025, if you read Justice Alito's opinion in Scrobetti, it is totally fine to cite foreign law if the goal is to uphold the government's ability to dictate medical treatment for other people's children.

[Melissa Murray]

I think that's a really good point. Foreign law is great when it allows us to get to our desired outcome. It's almost like we're an outcome determinative court doing vibes, not law. But who said that? I'll say the other point that we ought to focus on a little bit is the way in which these justices seem to have a really hard time figuring out their own docket. So I thought it was really telling and very on brand for this group that I think, as Leah points out, has struggled with this law thing quite mightily over the last couple of years. They really could not figure out why they had taken some of these cases. So there were three digs this term. A dig is a situation where the court decides that certiorari was improvidently granted and the case is subsequently dismissed. There might be lots of reasons why you would dig a case. Maybe you've decided on reform reflection that this is an improper vehicle for deciding the issue at stake. Maybe the facts aren't sufficiently well developed. Either way, a dig kind of suggests that maybe you should have done a little more upfront reading. And the court did a few digs last term. There was the very famous dig in the Moyle case with the conflict between the federal law EMTALA and the Idaho abortion law. And this term they dig three other cases. So there was the Nvidia case that they digged. There was also Facebook versus Amalgamated bank, another dig. And then the LabCorp case, which was also dig. And it just again, we've talked about this before on the podcast. The fact that they figure out later that maybe these aren't good cases to be deciding suggests that at least some portion of the court is in such a rush to decide certain issues that they just give their votes for cert. They get the four, they put it on the docket and then they're like, oh, wait a minute, this really is not what we should be doing. And that's one of, I think, the dangers of a supermajority where you don't have to be really considerate, where you don't have to think about where your votes are coming from on Final Review. And you can just take stuff. And they have been taking stuff.

[Justice Ketanji Brown Jackson]

Yeah.

[Justice Kate Shaw]

Another theme to highlight is selective stare decisis. So I think it's pretty clear that stare decisis is still for suckers. Just not all the time. Right. Some of the time. So let's play a clip from kind of a smaller case from this term, Royal Canaan, because it has Justice Sotomayor once again trying to tell us, do.

[Justice Samuel Alito]

You think that courts of appeals read our decisions differently than we may? I was on a court of appeals for 15 years. If I saw strong dictum in a Supreme Court decision, I would very likely just salute and move on. But here we have more of an obligation. It depends just a set of.

[Justice Ketanji Brown Jackson]

Just.

[Melissa Murray]

To take an inventory. So we're all clear about where we stand here. Stare decisis is apparently okay in the Context of Yoder vs. Wisconsin allowing the Amish to opt out of compulsory high school education. Guldaltig versus Aiello, where it is clear that any distinction based on pregnancy is not a sex based distinction for purposes of the Constitution. And any case that triggers Justice Alito's feelings, those are all fines for stare decisis.

[Justice Ketanji Brown Jackson]

Yes. But stare stare decisis is apparently not for Employment Division versus Smith, which says neutral generally applicable laws that burden religious practices are constitutional. Also not for the Court's previous First Amendment cases about restrictions on non obscene pornography which had applied strict scrutiny, not intermediate scrutiny. Also Televski on the Spending Clause which said you can enforce spending clause power legislation through the general civil rights statute. A mere 2. Also all of the cases involving nationwide injunctions against the Biden and Obama administrations, no stare decisis there.

[Justice Kate Shaw]

Correct. And stare decisis is very much TBD for Wong Kim Ark, the Supreme Court case that confirms that the first sentence of the 14th Amendment means what it says, which is persons who are born in the United States are citizens regardless of the status of their parents. Also TBD the cases the Court has previously decided upholding the constitutionality of the Voting Rights Act. We don't exactly know what the Court is going to ask the parties brief in the Voting Rights act case, Louisiana vs Calais, which will be re argued next term, but it will not be good whatever it is. The remaining parts of Buckley v. Valeo, the 1976 opinion in which the court, you know, did a bunch of things but in part found that the Constitution did permit some regulation of campaign finance. We will see if that endures after next term. And maybe just for good measure, all Warren court decisions, tbd, if any of them are still good luck.

[Melissa Murray]

Yep, we'll find out. Really keeping my fingers crossed for Brown.

[Justice Kate Shaw]

I mean I would say too soon.

[Justice Ketanji Brown Jackson]

But yeah, if they overrule Brown, if they overrule Brown, they don't get to say Brown actually forbids efforts at integration, which you know, they love to do.

[Melissa Murray]

They need to keep it for. That's the upside of Brown.

[Justice Ketanji Brown Jackson]

Yeah, that is the upside.

[Justice Kate Shaw]

Great point. Great point. Okay, so we want to highlight a handful of notable moments from the last year. 1. You know, we've talked about this before, but it deserves one more turn. Edith Jones, coming for our friend Steve laudick at a FedSoc conference. We are not going to force you to rehear that moment. We will just remind you that a federal judge came to a panel with a manila folder containing printouts of Steve's tweets criticizing single judge divisions and she proceeded to read Steve's mean, I mean quote mean or even that mean tweets and accuse him and not Matthew Kaczmarek of being the problem. This was is a perfect indication of a judicial temperament. Give her a promotion stat.

[Justice Ketanji Brown Jackson]

Edith Jones, read my social media posts. If Steves trigger you challenge.

[Melissa Murray]

We should also say as we reflect upon the term, that we are very grateful for all of you, the strict scrutiny fandom. You keep us going in what has been some very grim times this term. But I just want to highlight that, that it is not often that we get a rave review from 1 First Street, a supreme Review, if you will. Which is why we were a little surprised, but very gratified to read Justice Alito's majority opinion in Mahmoud vs. Taylor. And it wasn't just Justice Alito's utter disregard for precedent other than Yoder that surprised us in that decision. In fact, it didn't really surprise us at all because. Because Justice Alito. Instead, what surprised us was that Justice Alito acknowledged publicly in writing that this podcast strict scrutiny is, in his words, appropriate. Let me read the quote Justice Alito said, and again, I'm quoting, strict scrutiny is appropriate. Now, obviously that is not necessarily the most overwhelming and enthusiastic endorsement, but we know that Justice Alito is not one to gush. So given that he is often a little bit stingy with his praise, and because we know he is, deep down a friend of the pod, we are going to take it as a win and maybe make some T shirts with it. So thank you, Justice Alito. You heard it here, folks. Strict scrutiny is appropriate.

[Justice Kate Shaw]

It is his version of a five star review. I am quite sure you don't need.

[Melissa Murray]

To prove your age before listening. We are appropriate. We get strict scrutiny all the time.

[Justice Kate Shaw]

Oh, careful. Don't give him any ideas. Age verification. What other verification for downloading our podcast? Anyway, okay, so we also wanted to highlight some highlights. Lowlights, memorable moments from oral arguments, and let's start with a moment from Garland versus Vanderstock, which was a case about ghost guns and whether federal law restricted things, their sale. I mean, yes, you heard me right. That case was this term, which really kind of underscores how much this last year has actually been 1 million years. So let's play the clip.

[Justice Samuel Alito]

No, I want to stick with the definition of weapon for just a second.

[Justice Ketanji Brown Jackson]

Oh, sure.

[Justice Samuel Alito]

I'm going to show you. Here's a. Here's a blank pad and here's a pen. All right. Is this a grocery list?

[Justice Ketanji Brown Jackson]

I don't think that that that's a grocery list, but the reason for that is because there are a lot of things you could use those products for.

[Melissa Murray]

To create something other than a grocery list.

[Justice Samuel Alito]

I show you. I put out on a counter some eggs, some chopped up ham, some chopped up pepper and onions. Is that a western omelette?

[Melissa Murray]

No, because again, those items have well known other uses to become something other than an omelet.

[Justice Ketanji Brown Jackson]

The key difference here is that these weapon parts kits are designed and intended.

[Melissa Murray]

To be used as instruments of combat.

[Justice Ketanji Brown Jackson]

And they have no other conceivable use. I actually had the experience of putting one of these kits together and it's just like what the record shows.

[Melissa Murray]

There are usually only a couple of steps.

[Justice Ketanji Brown Jackson]

The first thing that most of the.

[Melissa Murray]

Kits require is drilling the holes. Usually it's six holes and you do it with the jig. That case was argued before Luigi Mangione. And I'm just going to say I think Luigi Mangione may have been a deciding factor in this court concluding that ghost guns fall within the ambit of the firearm acts. I'm not even joking. Like Elizabeth Krilager did an amazing job, but I think the realpolitik of that moment may also have been very determinative. That clip also highlights that earlier this year we had a different sg, Elizabeth Preylogger. The transition from her to acting Solicitor General Sarah Harris was also also kind of an interesting one. But we then got another transition to John Sauer. And all of that happened in just a single term, a term of three SGs. It just boggles the mind really.

[Justice Kate Shaw]

So all that happened in the single term. But John Sauer's ascent happened in this calendar year, as did the TikTok argument. That was in 2025. So was the Supreme Court Court's 54 decision rejecting Trump's effort to block his sentencing in the New York hush money case. That was January of 2025. You know, launching a million takes about Amy Coney Barrett as our savior. But also I feel like I've aged 40 years and all that was January.

[Melissa Murray]

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[Justice Kate Shaw]

Huh?

[Melissa Murray]

Definitely. Do quick errands turn into an all day event all the time. If you're a realtor, a lawyer, an accountant, or any profession that requires a lot of mailing or shipping, you don't have time to be a postage expert or to stand in line to drop off letters and packages. Which is where Stamps.com comes in. Stamps.com gives you a chance to focus your time on what you do best. They take all of those little errands, the running to the post office, the picking up the stamps, the mailing and shipping of the package. And they do it all for you. Stamps.com gives you the chance to focus your time. It prints the stamps, it prints the shipping label labels, it can do certified mail forms in seconds, and you can schedule free package pickups all from one place. And all of this is for up to 89 off what the US Postal Service, UPS and other carriers would charge you. For more than 28 years, stamps.com has been doing more than just small business mailings. It handles all of your mailing and shipping needs wherever, whenever. It seamlessly connects with every major marketplace and shopping cart. If you sell your products online and you can access all of the USPS and UPS services, you need to run your business right from your computer or phone, anytime, day or night. No lines, no traffic, no waiting. So don't waste time worrying about being a postage expert or standing in line to drop off letters and packages. Let stamps.com do what they do best so you can do what you do better. Go to stamps.comstrict to sign up for a special offer. No contract. You can CANCEL Anytime. That's stamps.comstrict.

[Justice Ketanji Brown Jackson]

Close your eyes. Exhale, Feel your body relax and let go of whatever you're carrying today. Well, I'm letting go of the worry that I wouldn't get my new contacts.

[Justice Kate Shaw]

In time for this class.

[Justice Ketanji Brown Jackson]

I got them delivered free from 1-800-contacts.

[Justice Kate Shaw]

Oh my gosh, they're so fast.

[Melissa Murray]

And breathe. Oh sorry.

[Justice Ketanji Brown Jackson]

I almost couldn't breathe when I saw the discount they gave me on my first order.

[Melissa Murray]

Oh sorry.

[Justice Kate Shaw]

Namaste. Visit 1-800-contacts.com today to save on your first order. 1-800-contacts.

[Justice Ketanji Brown Jackson]

So maybe looking back on this millennia, let's do a quick round of roses and thorns.

[Justice Kate Shaw]

Okay, so here's one rose, or maybe bullet dodge, which was the court's decision in AJT declining to impose a heightened standard on students with disabilities, raising claims under the AD and the Rehab Act. There is of course, an ominous Thomas concurrence Thorn, which raises questions about Congress's constitutional authority to impose accommodation obligations on schools at all. But the majority opinion definitely was, I think arose also arose in the court. Again, this is like how far we have fallen that these are roses, but they are given where we are. The court declined to further upend administrative law and further hobble administrative agencies and both Braidwood about the composition of the Preventative Services Task Force and FCC v. Consumers Research, which was about the FCC's universal service scheme and the non delegation doctrine. Tiny little rose, I will note is that the dissent in Scrometti cited in amicus brief we've mentioned on the POD authored by my dear friend Issa Kohler Haussman and my awesome colleague Amanda Chanor. And it was, you know, a powerful enough discussion in the Sotomayor dissent that the majority tried, albeit unconvincingly, to respond to that argument.

[Melissa Murray]

I'm going to be brief here because although this term was long, it was consistent. And I find as the rose here, the fact that every lower court that encountered the birthright citizenship EO was like, yeah, that's obviously unconstitutional and they did it all in under 30 minutes. I'm exaggerating, but it felt like that. I also appreciate the lower courts essentially holding the line on the EOs, eliminating the Department of Education, firing federal workers. Yes, all of these things really require congressional intervention. And we should again highlight that the separation of Powers things is a real thing. The thorn here, I think, is this administration, this court that is facilitating this administration, maybe even effectuating and facilitating this administration in equal measure. And of course, the cadre of oligarchs who apparently own us.

[Justice Ketanji Brown Jackson]

Well, also, the appearance of all of those oligarchs at the inauguration was just its own thing. So in my roses and thorns, I guess all of these are going to be roses slash thorns. So one is Justice Kavanaugh's concurrence in Trump versus Casa. Steve Vladic did a phenomenal one for speaker piece called the New Judicial Supremacy on it, basically exposing the extent to which Brett Kavanaugh, while ostensibly being kind of a formalist in the majority opinion. Justice Baritz being an anti formalist in his separate writing, also assuredly saying I can and will solve everything, even though the Supreme Court has never bothered to explain most of what they do on the shadow docket, and insisting that the court would be in a position to provide a uniform interim rule, even though they declined to do so in this case. So like Rose slash Thorne Thorne in just its grotesque obliviousness, Rose in that it basically proves everything I've ever said about Brett Kavanaugh is right. Another Rose slash Thorne. Justice Jackson's dissent in Department of Education versus California. This was one of the dissents from one of the shadow docket orders where she kind of broke the fourth wall and accused the court, again. Yeah. Of giving the Trump administration an early win when they were ultimately going to lose on the merits for some sake of appearances that I just found fascinating. Thorn in that it was a dissent, you know, same Rose slash Thorne energy to Justice Kagan's dissent in Trump vs Wilcox in which the Supreme Court basically overruled Humphrey's executor on the shadow docket. You know, there she accused the court of favoring this president over our precedents, of creating a bespoke fed exception and saying the order allows the president to overrule Humphreys by fiat. So those are my roses thorns.

[Melissa Murray]

When you said that the Brett Kavanaugh was a formalist in the majority and then not a formalist in his own concurrence, it reminded me of when Strom Thurman passed away and they noted that he had fathered an African American child out of wedlock. And the newspaper report that I read called him segregationist by day, integrationist by night.

[Justice Ketanji Brown Jackson]

Oh, my God.

[Justice Kate Shaw]

Oh, my God.

[Justice Ketanji Brown Jackson]

God. Schrodinger's formalism is what I'll call this, I think, because I can't top that description. So good. So I guess some additional news to note that's kind of related to fallout from this whatever it is we just concluded. So one is some fallout from the Court's opinion in Scremetti. In particular, on a recent orders list, the court did some GVRs grant, vacate and remand. So what those do is they vacate some lower court opinions and remand for the lower court to reconsider their decision in light of a Supreme Court opinion. And this was notable to me because after the Chief said in the majority opinion in Scremetti that the case wasn't about laws that discriminated against trans people because the Tennessee law didn't discriminate against trans people and was just about a medical procedure. Wink the court GVR'd a ton of cases about laws that did discriminate against trans people, weren't just about health care, and told the lower courts rethink this in light of sc Almost as if the limits in Sctti weren't real and were just some soothing bs. Add to that the Court's rejection of the parental rights challenge in sc, they opted not to hear a parental rights challenge to laws banning gender affirming care for trans minors. Chris Geiner had a phenomenal piece at Law dork about this SCOTUS's parental rights message Protect anti LGBTQ views ignore LGBTQ people. This is part of why I don't trust these assets on birthright like or just one of the reasons like they said Scrumetti was just about health care ban that didn't discriminate against trans people around the basis of gender identity. Then they go ahead and ask the lower courts to take another look at a bunch of other laws outside the healthcare context that do discriminate against trans people. And on Thursdays, last Thursday's order lists and Montana vs Planned Parenthood, Samuel Alito, the author of Dobbs Rogue with Justice Thomas that maybe the Constitution gives parents a constitutional right to prohibit their children from getting an abortion where state law allows it. I. E. The Constitution overrides some democratic political choices that the political democratic process might make about abortion. So so much for leaving the question about the availability of abortion access to the political process. Also, the Court just agreed to take up next term the constitutionality of state laws that exclude trans women and trans girls for from participating in women's and girls sports. Not surprising given the eagerness of Justices Barrett, Alito and Thomas to address the question of whether trans people constitute a protected class. But still add to this a recent 11th Circuit decision that held that a transgender school teacher had no first amendment right to refer to herself with she her pronouns when Florida law prohibits her from doing so. The court reasoned that when the teacher is in front of the classroom and engaging with students. Students, she is a government speaker and representative of the government and accordingly can be required to misgender herself.

[Melissa Murray]

Obviously, this outcome would have been completely different if the trans teacher were also the school football coach who articulated her pronouns on the 50 yard line at the conclusion of each game because then she would not be a public employee.

[Justice Ketanji Brown Jackson]

I see. You know, the 11th Circuit did reject an analogy to Kennedy vs. Bremerton School District in this case case. You know, because religion sltrans people. You know, line up this 11th Circuit decision with cases in other courts of appeals that say teachers have a first amendment right to misgender students, I. E. They cannot be forced to address trans students with their correct pronouns. And ladies and gentlemen and non binary listeners, what we have is a doctrine that says the first amendment just protects your right to misgender people. It doesn't protect your right to use correct pronouns. It is just the perfect encapsulation of lawlessness and how they are fashioning the law just to require the Republican party's views.

[Melissa Murray]

Hold up. Your book Always be closing. Okay.

[Justice Kate Shaw]

Good. Good.

[Justice Ketanji Brown Jackson]

This is my book. How the Supreme Court runs on Conservative grievance, Fringe theories and bad vibes. If you haven't heard me talk about it, the New York Times Book Review recommended it even though they called humor my somewhat cringe. I think I'm funny though.

[Justice Kate Shaw]

So do we. So do our listeners.

[Melissa Murray]

We do. Okay. On a less funny, more somber note, Kilmar Abrego Garcia, the man who was wrongfully expelled to El Salvador because of a clerical error, has filed an amended complaint in his case in the District of Maryland. The complaint asks the court to return Abrego Garcia to Maryland and restore the status quo that was in place place before he was expelled to El Salvador. And this is the really important part, I think. The amended complaint now contains allegations about what actually happened to Mr. Abrego Garcia while he was in seot, the Salvadoran mega prison where he and all of the other individuals who were deported to El Salvador were held. To our knowledge, Abrego Garcia is the first person released from seot. So. So this would mean that this amended complaint is the first first person testimony from someone who is able to actually account for what he witnessed happening in ccot. And I'll just be very clear here what he alleges in the amended Complaint is absolutely horrifying and shocking.

[Justice Ketanji Brown Jackson]

It made me ill reading it. So this is your heads up, listeners. You know we are going to recommend account some of what is in the amended complaint. Yeah.

[Justice Kate Shaw]

Because if you haven't actually had a chance to read it, I think it's important for us to describe some of its contents. So the complaint describes how upon arriving at sicot, Abrego Garcia was repeatedly struck by officers. When he attempted to raise his head, he was told, quote, welcome to cecot. Whoever enters here doesn't leave. He was forced to strip. He was beaten more. He was struck in the head. Frog marched to a cell where he continued to be beaten. He describes the next day his body being covered with lumps and bruises. He and others were then required to kneel from 9pm to 6am in their cell with guards beating anyone who succumbed to fatigue and toppled over. They were denied access to bathrooms. Bright lights remained on for 24 hours a day. Prison officials. Officials repeatedly told Abrego Garcia that they would transfer him to the cells containing gang members who they assured him would tear him apart. He observed prisoners in nearby cells who he understood to be gang members, violently harm each other without intervention from guards or personnel. Screams from nearby cells would ring out throughout the night without any response from prison guards or personnel. He lost 30 pounds in the course of two weeks, which I actually didn't know was even physically possible.

[Melissa Murray]

What is there to say about this? This is what the Trump administration has done to more than 200 other people. And again, there's a lot in MAGA world about these individuals being criminals and somehow they deserve it. But I just want to note that at least one of the individuals who's in CET is a young gay makeup artist, Andre Hernandez Romero. He was the one who cried out for his mother when he had his head shaved at seacot. That was documented and then broadcast. Regardless of what you think of the individuals who the Trump administration is targeting, this is absolutely inhumane treatment. Just absolutely shocking and inhumane treatment.

[Justice Kate Shaw]

And just as a reminder, in addition to Romero, the Cato Institute research that we had talked about on this podcast. Yes. Makes a very compelling case that a tiny subset of this 200 plus population has any kind of documented criminal history or even immigration infractions.

[Melissa Murray]

They have tattoos.

[Justice Kate Shaw]

That seems to be the whole case against most of them.

[Melissa Murray]

Yeah, yeah, yeah.

[Justice Ketanji Brown Jackson]

They have tattoos and they are brown.

[Justice Kate Shaw]

Yeah.

[Melissa Murray]

Which again, if you were wondering how this administration was going to go about enforcing its immigration policy, I think racial profiling, tattoo profiling is pretty much the Answer and think about where that goes.

[Justice Ketanji Brown Jackson]

And this is the administration that this Supreme Court insists on treating as any other, as just a regular administration, while granting them a seemingly ever expanding set of powers.

[Melissa Murray]

The presumption of regularity is quite broad.

[Justice Ketanji Brown Jackson]

Yeah. As we've said, this term has been a long one. So we thought, thought we'd play a mashup of some of the memorable moments from oral arguments over the last term as a look back at warp speed. So are you ready for it? Here we go.

[Justice Kate Shaw]

Yeah.

[Justice Samuel Alito]

The book has. The book has a clear message and a lot of people think it's a good message and maybe it is a good message, but it's a message that a lot of people who hold on to traditional religious beliefs don't agree with. I don't think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men. Uncle Bobby gets married to his boyfriend Jamie, and everybody's happy and everything is, you know, it portrays this. Everyone accepts this except for the little girl, Chloe, who has reservations about it, but her mother corrects her, no, you shouldn't have any reservations about, about this. So Pride Puppy was the book that was used for the pre kindergarten curriculum. That's no longer in the curriculum. That's the one where they are supposed to look for the leather and things and bondage, things like that. It's not bondage. It's a woman and a leather sex worker, right? No. No, it's not. Correct. No. I thought, my gosh, I, I read it. Drag queen and drag queen.

[Justice Ketanji Brown Jackson]

Correct.

[Justice Samuel Alito]

The leather that they're pointing to is a woman in a leather jacket and one of the words is drag queen in the search. And they're supposed to look for those. It is an option at the end of the book, correct? Yeah. Okay. All the religious school is saying is don't exclude us on account of our religion. I mean, if you go and apply for to be a charter school and you're an environmental study school, or you're a science based school, or you're a Chinese immersion school, or you're English grammar focused school, you can get in and then you come in and you say, oh, we're a religious school. It's like, oh, no, can't do that. That's too much. That's scary. We're not going to do that. And our cases have made very clear and I think those are some of the most important cases we've had of saying you can't treat religious people and religious institutions and religious speech as Second class in the United States. States. And when you have a program that's open to all comers. Except religion. No, we can't do that. We can do everything else that seems like rank discrimination against religion. And that's the concern that I think you need to deal with here. So one of the parties here is the owner of pornhub, right? Right, yes. And what percentage of the material on that is not obscene as to children? Well, your honor, if we're talking about the youngest minors, I would agree that most of it is. And that is how we read.

[Justice Ketanji Brown Jackson]

Is it.

[Justice Samuel Alito]

Is it like the old Playboy magazine? You have essays there by the modern day equivalent of Gore Vidal and William F. Buckley, Jr. Not in that sense. All right, let's go down to. What's the second most popular porn site? Your honor, I don't. I don't have the.

[Justice Ketanji Brown Jackson]

You don't know?

[Justice Samuel Alito]

You represent these people.

[Justice Ketanji Brown Jackson]

What the school district has said, which.

[Justice Kate Shaw]

Is what Monahan said, you believe that.

[Justice Samuel Alito]

Mr. Martinez and the solicitor general are lying.

[Justice Kate Shaw]

Is that your argument?

[Melissa Murray]

Yes, absolutely.

[Justice Kate Shaw]

It is not true that we should.

[Justice Samuel Alito]

Be more careful with your words.

[Justice Ketanji Brown Jackson]

Okay, well, they should be more careful in character, mischaracterizing a position.

[Justice Samuel Alito]

Yeah, I confess I'm still troubled by your suggestion that your friends on the other side have lied.

[Justice Ketanji Brown Jackson]

Okay, let's pull it up.

[Justice Samuel Alito]

Yeah, I think we're gonna have to here. And I'd ask you to reconsider that phrase.

[Justice Kate Shaw]

An oral argument, if I might, was incorrect.

[Justice Samuel Alito]

Incorrect is fine. People make mistakes. Incorrect, you can accuse people being incorrect. But lying? Ms. Blatt, if I might finish.

[Justice Ketanji Brown Jackson]

Sure.

[Justice Samuel Alito]

Lying is another matter. One could interpret those perhaps different ways. But surely a reasonable person could interpret them as arguing for a special rule in the educational context. Correct?

[Melissa Murray]

No, only because of Ms. Black.

[Justice Ketanji Brown Jackson]

Okay, well, you.

[Justice Samuel Alito]

I mean, a reasonable person. All of those emphasize the unique context of primary and secondary education and the need for a special rule, don't they?

[Melissa Murray]

Fine.

[Justice Kate Shaw]

But what I'm obtaining to.

[Justice Samuel Alito]

Fine, then would you withdraw your accusations?

[Melissa Murray]

Withdraw it.

[Justice Samuel Alito]

Thank you. That's it.

[Melissa Murray]

And the government doesn't care about that? I mean, the government. The government is fine with you doing that. You can invent it yourself.

[Justice Ketanji Brown Jackson]

It doesn't even care what content that.

[Melissa Murray]

Displays cat videos or whatever.

[Justice Samuel Alito]

I agree. But then the question I would ask, if the government said that, which I think kind of in the reply brief, maybe the government does say that, Is that how on earth are you then serving a national security interest? You know, if all you're doing is just saying, we don't like a Foreign country rearranging cat and dance videos. Like it's hard to come in and make a national security argument.

[Melissa Murray]

That's your thing about it.

[Justice Samuel Alito]

Argument is that the average American won't be able to figure out that the cat feed. Feed he's getting on TikTok could be manipulated. Even though there's a disclosure saying it could be manipulated.

[Justice Ketanji Brown Jackson]

That's true of every search engine. I mean, you can, you can take any of these algorithms, whether it's X or whether it's, you know, you name it. What are the new ones?

[Melissa Murray]

Blue Sky.

[Justice Ketanji Brown Jackson]

I mean, none of these, none of these are apparent.

[Justice Samuel Alito]

Right.

[Justice Ketanji Brown Jackson]

You get what you get and you think that's puzzling.

[Justice Kate Shaw]

And.

[Justice Samuel Alito]

I mean, I don't know if she. I guess the pool is probably not deep enough for her to get crushed in it, but it's. The gravity is dragging her down in the pool. There's an internal process going on, on in her body whereby her life is sucked away from her. I apologize, I'm not a doctor, I couldn't quite tell you what happens with asphyxiation, but the body is going to be attacking itself there, gasping for air eventually.

[Justice Ketanji Brown Jackson]

I'm just going to ask you to.

[Justice Kate Shaw]

Put yourself in a different frame of mind.

[Justice Ketanji Brown Jackson]

Hard to do, assume something you won't want to assume.

[Justice Kate Shaw]

But the assumption that I want you.

[Justice Ketanji Brown Jackson]

To make is that on the merits, which, which of course you did not.

[Justice Kate Shaw]

Take to this court, on the merits.

[Justice Ketanji Brown Jackson]

You are wrong that the EO is unlawful. And I want to ask you, if we assume that, how do we get to that result on your view of the rules?

[Justice Kate Shaw]

It is very difficult for me to.

[Justice Samuel Alito]

Adapt the hypothetical, but I will.

[Justice Ketanji Brown Jackson]

You know, I think that that's the important question in this case. Let's just assume you're dead wrong.

[Melissa Murray]

I think assume you're dead wrong is an apt place to let this term wre cap rest. So we're out.

[Justice Ketanji Brown Jackson]

That's probably right. Although the detailed graphic description of drowning also really spoke to me.

[Justice Kate Shaw]

Eric Fagan was describing the experience of the last term for so many of us. Yeah.

[Justice Ketanji Brown Jackson]

Yes. And he didn't even know it.

[Justice Kate Shaw]

Nope.

[Justice Ketanji Brown Jackson]

Closing thoughts, any?

[Melissa Murray]

This was grim as fuck.

[Justice Samuel Alito]

Yeah.

[Justice Ketanji Brown Jackson]

Yeah.

[Justice Kate Shaw]

I mean, I just. Maybe a closing thought is a looking forward thought, which is this was so grim and next term is also going to be insane, if anything, even crazier. So between the transgender athletes case, the Voting Rights act re argument that we've mentioned already, the huge campaign finance case, possible return of birthright citizenship, and the constitutional challenge to independent agencies, in addition to all of the many shadow docket cases which again, as Vladek reminds us, the court is still sitting on a bunch of. So it's not like we get to rest and recharge until October. This is going to be a crazy summer and then an even crazier term. And let me just throw into the mix that depending on how the political landscape develops over the course of the next six, nine months, there is a very real possibility of retirement announcements. I would think been, you know, fantastico by January. I, I would if I had to guess because if the Senate map looks like it might result in the Democrats that's attaining a Senate majority, one or both of Alito or Thomas, I think.

[Justice Ketanji Brown Jackson]

Will very likely announce Justice Eileen Cannon or Emile Beauvais. Gosh. Oh my gosh. Next year.

[Melissa Murray]

Okay, highlights. We need a positive note.

[Justice Ketanji Brown Jackson]

I will do a positive note and play the role of Kate Shaw given the bleakness that Kate just offered us. So we've turned Kate.

[Melissa Murray]

We've turned her.

[Justice Kate Shaw]

It's been a few terms now. I think. I think I have been turned.

[Melissa Murray]

No, Kate, you were, you were trying valiantly to stay in the light, but we brought you down. Leah and I got our hooks into you and we made you dark.

[Justice Kate Shaw]

Well, and I mean so did Sam Alito. Yeah.

[Justice Ketanji Brown Jackson]

As a peace offering last week the Wisconsin Supreme Court issued their much awaited decision on whether the state states 1800s abortion ban. Complete and total abortion ban remains in effect in the Badger state. The progressive majority on the Wisconsin Supreme Court said that the state's 1800s era abortion ban is not in effect because the Wisconsin legislature effectively repealed that flat out ban by creating a comprehensive set of regulations on abortion. So as a relation result that prohibition on abortion not going to go into effect and allows abortion access to exist in the Badger state. Wanted to highlight not just the great majority opinion by Justice Rebecca Dalit, but also a separate writing by now Chief Justice Jill Karofsky and in Justice Karofsky's church. Justice Karofsky is concurrence. She has a section that is about honoring their lives and their stories in which she names women who have died recently because of abortion restrictions. Candy Miller, Amber Thurman, Giselle Barnica. And she notes that not only should those women be alive today, but that their suffering and experiences were foretold by the suffering of women generations ago. And she talks about how her great grandmother Julia Cowan dying because she sought to obtain an abortion during an era when abortions were prohibited. So I think an extremely remarkable powerful writing and an outcome that also reminds us that courts can be better and they can do better if you fight for them.

[Justice Kate Shaw]

And if you have the Chief justice of our hearts actually serving on courts.

[Justice Ketanji Brown Jackson]

Nothing but respect for my Chief Justice, Jill Correct?

[Melissa Murray]

Amen. All right, let's close up with some favorite things just to give people something to do over the summer. I'll start. One of my favorite things in the last couple of weeks was footnote 12 of Stanley vs City of Stanford, where the justice of my heart, Justice Ketanji Brown Jackson, dragged Neil Gorsuch for filth, calling his textual healing, faith and outcome determinative. So inject that into my veins. I'm just going to keep reading it over and over again. That is my asmr and I love it. I will also note that I really enjoyed Emily Bazelon and Matthias Schwartz's New York Times profile on Judge Amir Ali's first seven months on the District of the District of Columbia. I think it's always really interesting to think about how judges set up their chambers and sort of adapt to the project of being being a new judge. And I think doing so in this particular moment was especially challenging. And I think this is a really good examination of those challenges and what that was like. Also want to recommend Linda Greenhouses. This is the real impact of the Supreme Court's Planned Parenthood decision. That's an op ed piece in the New York Times on Medina vs Planned Parenthood of South Atlantic. Really fantastic. And then finally I will just note a note that I read and the notice titled When Rational Basis Review bit. It is featured in the Harvard Law Review, and it's a history of Rational Basis Review that is tethered to a discussion of a Louisiana case in which a widow lost her job arranging flowers at a local grocery store because the state of Louisiana requires that such floral arranging be done by licensed florists. So it's a great piece just of legal history and a really wonderful piece of student writing. Regrettably, the student isn't identified, but I just wanted to highlight this as something that I really enjoyed reading.

[Justice Ketanji Brown Jackson]

So I have a slew of things. Several of them are term recaps. You know, it's not like I want to consume more content on the Supreme Court, but there's so much great writing being done about the moment we are in that I want to highlight a lot of it. So Steve lasso post at 1 First street, which I've already mentioned, A New Kind of Judicial Supremacy is, I think, just a terrific piece on Trump versus Casa and the context for the term. Ellie Mistahl's piece in the Nation, Samuel Alito takes pride in gay bashing. Very pointed, powerful takedown of Mahmoud vs Taylor. Sherilyn Ifill's post A Court without the Range on Sherilyn's newsletter on Substack also on Trump vs Casa Kate I love your piece in the New York Times. A culture of disdain. The Supreme Court's actions speak louder than its words. Another recent piece I liked Alexandra Petrai's in the Atlantic with the big beautiful bill, you can now sponsor a billionaire of your choosing. She moved to the Atlantic in case listeners weren't aware and were looking for her in the slightly lighter fare Andor season 2 has just been a wonderful show to watch in the midst of rising fascism because it is about living under and resistance to fascism. Lorde's recent album I Know it's what Was that? It's received mixed reviews. I liked it so I also loved it. I love Current Affairs. I love Broken Glass, I love Shapeshifters. I really like the album album like Slash. Love Donald Trump announcing Trump fragrances and the video announcement of the Trump fragrances. Just the specter of the President hawking his perfume and the Website Get Trump Fragrances.com I don't know, I just like.

[Justice Kate Shaw]

I mean from Jimmy Carter selling his peanut farm to trump fragrances.com it really is just the arc of decline of a once great nation. Sorry Melissa, I interrupted you.

[Melissa Murray]

No. Did you all read the New York Times story last year about how teenage boys are or pre teen boys are really into scent maxing where just like they're really into cologne and yeah, I would like to see how the teenage boy audience responds to Trump fragrances. I think this will really be telling. Are they truly red pilled or are they still up for grabs if they say no to the Trump fragrance fragrances?

[Justice Kate Shaw]

I am also I know no one who owns it. I don't even know if you can actually get it yet but I am sure it smells like trash. I am sure it is smells like an emolument. Yep. No, our candles smell like emoluments and those smell good. So this doesn't smell like that.

[Melissa Murray]

I don't want to Eucalyptus. Our eucalyptus candle slapped so hard.

[Justice Ketanji Brown Jackson]

I love eucalyptus as a scent.

[Justice Kate Shaw]

This is not what that smells like.

[Melissa Murray]

I mean it smelled like the inside of a private jet so that's true. Like a Qatari private jet.

[Justice Kate Shaw]

It was amazing. I'm just going to make a few additional recommendations. One Bob Bower I thought had a really good piece in his executive functions Substack about the appalling decision by Paramount, the parent company of cbs, to settle the lawsuit filed by Trump because Trump didn't like the way 60 Minutes edited an interview with Kamala Harris before an election that Trump won. No plausible legal theory of injury gives Trump, Trump any chance of winning, I don't think.

[Melissa Murray]

But the real politic of this is that CBS is looking for a buyer.

[Justice Kate Shaw]

And yep, yeah, they want to stay in the good graces of this administration. And it's a vile blow to the rule of law and to journalistic independence. And I'm glad that Bob was as unsparing as he was about it. A couple of other things. One, a study published last week in the Lancet about the monstrous human toll of the decision by Elon Musk, Doge and the Trump administration to destroy USAID and the United States foreign aid. So these researchers, there's like 10 authors on the study, they estimate that if the current cuts continue until 2030, so that is just five years from now, up to 14 million people who otherwise would have lived will die, including over 4 million children. It is impossible to get your head around those numbers.

[Melissa Murray]

Party of life.

[Justice Kate Shaw]

Yeah, exactly. I did want to mention the Times book review that includes Leah's book, which I guess doesn't like Mean Girl references but is otherwise a fantastic review. And it was in the context of kind of a group review recommendation of a number of SCOTUS books. The author of the review is Alexis Koh. The title of the piece was Great Books on American History and the Supreme Court, although I think the headline has changed, Changed. But it includes not just Leah's wonderful Lawless, but also Rebecca Nagle's by the Fire, We Carry, Anthony Lewis's classic Gideon's Trumpet, Richard Kluger's classic Simple Justice. So kind of a good summer SCOTUS reading list if you are looking to go deep on various eras in the Supreme Court's history. And then two books I haven't read yet, but that will be out this fall and I am beyond excited to read. So one is Irene Carmon's Five Women and the page Perils of Pregnancy in America, and the other is the Harvard historian Jill Lepore's we the A History of the U.S. constitution. I love basically everything Lepore ever does and I cannot wait to read that book.

[Justice Ketanji Brown Jackson]

Yeah, so I got an advanced reader copy of Erin's book. It is fabulous and I will be plugging it when we do our Dobbs retrospective later this summer and also look forward to hopefully discussing it with her on the podcast.

[Justice Kate Shaw]

Awesome.

[Melissa Murray]

All right, before we go, listeners, let's take a beat to fill you in on what our plans are for the summer. I will be be getting on a private jet with my emotional support billionaire to go to a fantastico location somewhere in Europe. I'm just kidding. We're going to be here. We're going to be doing lots of episodes. We probably will not be done with this Supreme Court beat because shadow dockets are going to shadow docket and we're going to be there. So just so you understand, over the summer and through the beginning of October, the Supreme Court doesn't hear oral arguments. So there won't be any cases for the court to issue bad decisions in on the merit stocket, at least for the summer. That doesn't mean they will not issue some terrible decisions on the shadow docket. So we are going to be covering that. There will still be legal news. We will be covering what the lower courts are going to do as they try valiantly to do their jobs with one hand tied behind their back. That's a whole different story. We'll also be covering what Article 22 will do now that they have been emboldened and facilitated and effectuated by Article 3. So this is all to say that we will still be in your ear holes with a combination of legal news. We'll also have some deep dives on books that we loved and certain evergreen topics that we think you would like to know about. So we are still going to have a hot, strict, sweetening summer. A very appropriate, hot, strict scrutiny summer. And we hope that you will join us.

[Justice Ketanji Brown Jackson]

Just a quick note about the summer episodes, in part because it is the summer. You know, there will be some episodes on which not all three of us might be hosting. But don't worry, we will return in full force once the new term begins and there will be some episodes in which all three of us are on as well.

[Melissa Murray]

We have to have time for our emotional support.

[Justice Ketanji Brown Jackson]

Billionaires, please understand they impose a lot.

[Justice Kate Shaw]

Of demands on us and. And who are we to say no? So as we wrap, just want to say thank you to our listeners for supporting the show and making it possible amidst this hellscape when there are so many things to focus on and pay attention to. We really do appreciate you sharing your time with us. We loved the chance to meet a lot of you in New York and D.C. at our live shows this summer. We'll be in Chicago in October and other locales to be announced soon. So we really hope we have a chance to meet more of you in person soon.

[Justice Ketanji Brown Jackson]

So also, in the spirit of closing, I will just make one final plug for my recently published book, how the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Look, I wrote a book. I'm kind of proud of what I did. I enjoyed it, so I'm gonna plug it. But I recognize that there is a moment to stop doing a lot of things and and that moment is probably now, at least until the paperback edition comes out. Although that might not stop me from like noting things when the court does then that call to mind the book.

[Justice Kate Shaw]

But it's your podcast, Leah. You don't have to stop.

[Melissa Murray]

Well, Republicans in Congress just passed one of the cruelest and least popular pieces of legislation in history. It's going to kick millions of people off their health care so that billionaires and millionaires can get another massive tax break. Many House Republicans who voted in favor of this bill won in their state states by slim margins and they're up for re election next year. We can vote them out and win back the House and stop future awful legislation of this sort and hold these individuals accountable. You can donate to Vote Save America's Take Back the House Fund to support must win state House races next year. Just go to votesave America.com House for more. This was paid for by Vote Save America and you can learn more@votesave America.com this ad has not been authorized by any candidate or candidates committee.

[Justice Kate Shaw]

And one more Summer Reading Alert Amanda Lippman's new book, when we're in Charge, which you should know about because Leah had a great conversation with her on the pod a couple of months ago, is out now from Crooked Reads. It's a guidebook to leadership for the next generation from the founder of the wonderful organization Run for Something and it's the newest release from Crooked's publishing imprint, When We're In Charge, makes a great gift for new graduates for friends celebrating a big promotion or really anyone looking to up their beach reading game this summer. Plus, you can complete your book look with an accompanying tote if you head to crooked.com store for the exclusive tote bundle. Or you can just head straight to crooked.combooks to get the book.

[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 Golsy Smith 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 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 us at YouTube.com@strict scrutiny Podcast. 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.

[Justice Samuel Alito]

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[Justice Ketanji Brown Jackson]

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[Justice Samuel Alito]

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[Justice Ketanji Brown Jackson]

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[Justice Samuel Alito]

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[Justice Ketanji Brown Jackson]

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[Justice Samuel Alito]

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[Justice Ketanji Brown Jackson]

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