Strict Scrutiny Podcast

Episode: Absentee Ballots, Asylum, and Too Many A**holes to Count

Date: March 23, 2026
Hosts: Leah Litman, Kate Shaw, Melissa Murray

Episode Overview

This episode, hosted by constitutional law professors Leah Litman, Kate Shaw, and Melissa Murray, provides a preview of the U.S. Supreme Court’s March sitting, focusing on high-stakes cases involving absentee ballot counting (Watson v. RNC), asylum law at the border (Gnome v. Al Otro Lado), and bankruptcy law (Keith Lee v. Buddy Ayers Construction). The hosts also bring their irreverent, incisive commentary to current legal news—from lower court drama and judicial appointments to alarming developments on abortion criminalization. The show's signature mix of deep analysis, legal culture, biting humor, and fiery takes makes this essential listening for anyone seeking to understand what’s at stake at the Supreme Court and beyond.

Major Supreme Court Case Previews

1. Watson v. Republican National Committee – Absentee Ballots

[03:58–13:54]

• Background:
  The RNC is challenging state practices (originating in Mississippi) that allow absentee ballots to be counted if received after Election Day, provided they're postmarked by then. Mississippi law allows five business days for such ballots to arrive.

• Context:

  • Past: Enlisted military (who often vote GOP) have long relied on such absentee ballot deadlines.
  • 2020 "Red Mirage": Early Trump leads faded when absentee ballots, counted later, swung results, fueling GOP attacks on post-Election-Day counting.
  • Recent Federal Statutes: The Uniformed and Overseas Citizens Absentee Voting Act (1986) and the Military and Overseas Voter Empowerment Act (2009) recognize flexible state timelines.

• Key Arguments:

  • RNC: Federal law requires ballots to be received by Election Day, not just cast or postmarked.
  • Hosts’ Analysis:
    • Kate Shaw: "If you look at the relevant federal statutes...there's nothing about the plain meaning of the word 'day'...that requires an absentee ballot be counted by a local official by Election Day." [07:31]
    • Melissa Murray: Criticizes possible double standards in textualist interpretation: "You can't do a vibe check on Congress. Unless of course the vibe check involves disenfranchising millions of absentee voters..." [10:50]
    • Leah Litman: Points out conservative justices’ willingness to ‘vibe check’ in voting rights cases, referencing Brnovich (2021) and the major questions doctrine.

• Panel Commentary:

  • Lively, darkly comic banter about Mississippi being "too much" even for strict voter suppression.
  • Repeatedly noting the panel in the Fifth Circuit (“the rare Stuart Kyle Duncan, Jim Ho, Andy Oldham special”) signals the outlier nature of the decision. [13:00]
  • "Democracy. You in danger, girl." – Leah Litman [13:32]

2. Gnome v. Al Otro Lado – Asylum and Border “Arrivals”

[18:38–23:56]

• Question Presented:
  Can border officers block individuals at ports of entry from seeking asylum by deeming them not to have "arrived in the United States" if they are physically on the Mexican side of the border?

• Background:

  • “Metering” policy designed to turn back asylum seekers before they can enter the U.S.
  • Later, a “transit rule” required asylum seekers to apply in a third country first.
  • District court found metering illegal and granted relief; the appeal questioned whether those turned away had "arrived in the U.S." for asylum eligibility.

• Key Quotes & Insights:

  • Kate Shaw: “The 9th Circuit agreed that non-citizens who were turned away at the border had, quote, 'arrived in the United States.'” [21:23]
  • Melissa Murray: Describes government’s narrow, literalist take: "In ordinary English, a person arrives in a country only when he comes within its borders." [21:48]
  • Leah Litman (sarcastically, on textualism): "But, like, it's not plain English, it's immigration law, which is, like, rife with terms of art and technicalities." [22:26]
  • Kate Shaw: Nervous about the Court’s approach: "They just love to yank words out of context in the kind of version of textualism that they do. And so, yeah, I'm very nervous about this case." [22:44]
  • The challengers argue the issue is moot as the policy’s been rescinded, offering an “off-ramp” to avoid a harmful precedent.

3. Keith Lee v. Buddy Ayers Construction – Bankruptcy Law

[24:26–27:50]

• Issue:
  Should debtors who fail to disclose potential civil claims in bankruptcy be barred from bringing them later (“estoppel”)? Should intent matter?

• Case Details:

  • Debtor Keith Lee didn’t disclose a potential claim after an accident. The Fifth Circuit barred him from suing.
  • Most courts use a “totality of the circumstances” test to see if nondisclosure was intentional; Fifth Circuit uses a strict rule regardless of intent.
  • The U.S. government argues the Fifth Circuit rule is too harsh.

• Notable Moment:

  • The panel makes Beyoncé puns and references about “Bay Court,” merging pop culture with explanation. [24:26–26:54]
  • Melissa Murray: “It’s a hard knock life for us.” [27:24]

4. Flour Foods v. Brock – Arbitration and Interstate Commerce

[27:50–29:19]

• Issue:
  Whether local workers are “engaged in interstate commerce” under FAA exemption if they deliver goods (e.g., Wonder Bread) that crossed state lines.

• Significance:

  • Decision affects which workers can avoid forced arbitration and sue in court.

5. Olivier v. City of Brandon – First Amendment & Civil Rights

[29:19–32:15]

• Summary:
  Supreme Court (unanimously, Kagan writing) ruled that a civil rights suit for prospective relief by a street preacher isn't barred by the “Heck” doctrine, which blocks suits that challenge the basis of a criminal conviction.

• Noteworthy Context:

  • Cites Fred Smith’s scholarship on “timing violence” in civil rights litigation (sue too soon: no standing; during prosecution: abstention; after conviction: barred by Heck). [30:32–32:00]
  • Hosts highlight rare “strange bedfellows” result: conservative justices aligned with liberal justices for different reasons.

Lower Court Legal Drama and News Roundup

New Jersey U.S. Attorney’s Office Fiasco

[32:18–40:23]

• Events:

  • Federal judge Zaid Qurashi admonished assistant U.S. attorneys over leadership chaos following unlawful appointments in the DOJ.
  • Judge ejected a supervisor (Mark Coyne) who tried to speak without having filed appearance, scolding: “If you speak again, I’m going to have you removed. I already told you not to speak. You didn’t file a notice of appearance.” [36:41]
  • Plea deals were being negotiated without all evidence reviewed, including, alarmingly, missing child pornography evidence.
  • Judge’s stinging rebuke: “You have lost the confidence and trust of this court, ...and you are losing the trust and confidence of the public.” [39:12]

• Hosts’ Reactions:

  • Leah: “The first few pages of this transcript had me levitating.” [35:00]
  • All three encourage listeners to read the full transcript.
  • Melissa: “When the judge specifically asked... If Alina Haba was continuing to run the office. The younger lawyer replied, I saw Goody Haba dancing with the president in the pale moonlight. Just kidding. Crucible Stans. That did not happen, although I wish it had.” [36:15]

Executive Overreach and Judicial Responses

[43:26–55:28]

• Voice of America (VOA):

  • Judge Lamberth found Kari Lake unlawfully ran the VOA, violating Congress’s funding prerogatives.
  • Ongoing pattern of illegal appointments and executive overreach.

• Fed Board Subpoenas & Attacks on Powell:

  • Judge Boasberg quashed government subpoenas seeking to intimidate Fed Chair Powell over interest rates, citing clear retaliation via social media posts. [46:30–48:12]
  • Boasberg called DOJ’s criminal claims "so thin and unsubstantiated...can only conclude that they are pretextual." [47:44]
  • New court policy to notify public when grand juries refuse to indict at DOJ’s request.
  • U.S. Attorney Jeanine Pirro and President Trump respond with unhinged rants against the judiciary. [48:35–51:46]
  • Melissa Murray: “I don't even know what she's saying. ...Anyway, the President also had a response. He posted on Truth Social...” [49:07]

• Threats Against Judges:

  • Federal judges detail disturbing threats during a public event led by Judge Ana Reyes.
  • Judge Reyes (via Kate): “I hope you lose your life by lunchtime, you worthless...” [54:00]
  • Discussion on politicized attacks, imported culture-war rhetoric, and Roberts’ tepid response calling for civility.

Fifth Circuit Outrages — Protest Liability

[55:28–59:34]

• Ford v. McKesson:
  • Activist Deray McKesson faces potential liability for injuries caused by a protest attendee—no evidence McKesson authorized or knew the perpetrator.
  • Fifth Circuit allows trial to proceed, threatening First Amendment protest rights.
  • Kate: “It’s just so insane.” [56:39]
  • Leah: “The idea that participating in or organizing a protest somehow makes you liable for any illegal conduct... makes protesting illegal.” [57:22]
  • Judge Edith Jones’ majority opinion “breathless” and telling in its language: protesters/“rioters”, always “Officer Ford” but denying McKesson basic courtesy of title. [58:16]
  • Hosts parody Trump’s riot response (“Go home in peace”) as what McKesson “should have” done. [58:49–59:18]

Abortion Criminalization Developments

[59:39–61:21]

• Georgia case:
  • Alexia Moore charged with murder for taking abortion pills—first use of murder statutes in this context in Georgia.
  • Kate: "The actual charging of murder, you know, breaks entirely new and horrifying ground." [59:39]
• Kentucky case:
  • Student indicted for manslaughter after fetus/“infant” discovered. Law is rapidly criminalizing abortion and pregnancy outcomes.
  • Melissa: “This is another push on this fetal personhood thing, and we need to call it out for what it is.” [60:24]

Political Corruption and Congressional Theater

[64:25–73:38]

• Markwayne Mullin (“no spaces”) Homeland Security Nominee:
  • The NYT exposed “one of the biggest stock traders in Congress,” with suspiciously profitable trades preceding U.S. actions in Venezuela. [65:18–66:01]
  • Senate hearing with Rand Paul becomes a spectacle: Paul details his severe injuries from a neighbor’s assault; Mullin (“snake”) previously condoned the violence. [67:10–68:46]
  • Hosts riff on “podcast diplomacy” when Mullin and labor leader Sean O’Brien make nice after previous “name a time and a place” threats.
  • Melissa: "The kids call this podcast diplomacy. And I think it's pretty fucking beautiful. I love it. I love it." [71:27]
• Corey Lewandowski – Corruption Allegations:
  • Accused of demanding quid-pro-quo payment from private prison giant GEO Group for government contracts.
  • Even GEO found his requests "too much". [73:01–73:38]
  • Kate: "Even the private prison company wasn't like, down to go quite as quid pro quo as Lewandowski seemed to be." [73:01]

Notable Quotes & Memorable Moments

• “Democracy. You in danger, girl.” – Leah Litman (re: Fifth Circuit’s anti-democratic absentee ballot decisions) [13:32]
• “What is electoral joy? That’s the butterfly meme again. Is this electoral joy?” – Melissa Murray [07:01]
• “You really cannot rule out the possibility of a vibe check in these election law cases.” – Leah Litman [11:38]
• “Sit down, Mr. Coyne. If you speak again, I’m going to have you removed.” – Judge Qurashi as recounted by Leah [36:41]
• “You have lost the confidence and trust of this court...” – Judge Qurashi via Melissa [39:12]
• “The idea that participating in or organizing a protest somehow makes you liable for any illegal conduct that happens at the protest, makes protesting illegal.” – Leah Litman [57:22]
• “Call me Lady Whistledown, bitches.” – Melissa Murray (on her book’s Bridgerton-title vibes) [77:14]

Timestamps for Key Segments

| Time | Segment/Topic | Notes | |-----------|---------------|-------| | 03:41 | Main Episode Start | Introduction by hosts, episode overview | | 03:58–13:54 | Watson v. RNC | Absentee ballots, textualism, voting rights | | 18:38–23:56 | Gnome v. Al Otro Lado | Asylum seekers, border law, textual interpretation | | 24:26–27:50 | Keith Lee v. Buddy Ayers Const. | Bankruptcy law, civil claim estoppel | | 27:50–29:19 | Flour Foods v. Brock | Arbitration, interstate commerce | | 29:19–32:15 | Olivier v. City of Brandon | First Amendment/prospective relief | | 32:18–40:23 | NJ U.S. Attorney’s Office | Legal news, court drama, rebukes | | 43:26–48:12 | Voice of America case | DOJ overreach, illegal appointments | | 48:12–51:46 | Attacks on Judiciary | Threats, social media rants, Roberts’ weak response | | 55:28–59:34 | 5th Circuit - Protest Liability | McKesson decision, First Amendment threat | | 59:39–61:21 | Abortion Criminalization | Georgia/Kentucky cases, fetal personhood | | 64:25–73:38 | Congress/Corruption Theater | Markwayne Mullin, Rand Paul, Lewandowski | | 75:25–77:50 | Favorite Things | Book and music recs, pod merch giveaway [75:25] | | 77:50–81:38 | Housekeeping/Midterms & Outro | Call to action for midterms, merch, endnotes |

Tone and Language Notes

The episode combines sharp legal analysis with caustic wit, pop culture references (e.g., Beyoncé, TikTok memes), and cutting commentary on both conservative and liberal legal actors. The hosts don't shy from calling out hypocrisy, corruption, and regression in voting rights, judicial appointments, and civil liberties, while also finding dark humor and fleeting moments of “electoral joy” in the chaos.

For Further Listening/Reading

• [Read the New Jersey plea agreement transcript – Times link in show notes]
• [Zack Beauchamp, "How to Stop a Dictator," Vox]
• [The Daily: The Case of Christy Metcalfe]
• [Aziza Ahmed, Risk and Resistance (new book)]

Takeaways

• The March Supreme Court sitting deals with landmark cases that will influence voting rights, asylum, bankruptcy, worker rights, and civil liberties.
• Hosts expose the stakes behind seemingly dry procedural disputes, highlighting the real-world effects on democracy and marginalized individuals.
• Lower courts are increasingly venues for both corruption and accountability—sometimes simultaneously.
• The legal and political scene is becoming more chaotic and dangerous, with accountability for both executive power and judicial independence at issue.
• Strict Scrutiny continues to provide not just legal analysis but commentary on the broader state of American democracy—with humor, exasperation, and, occasionally, a meme about electoral joy.

Listen to the full episode for deeper dives and more signature Strict Scrutiny shade.