Melissa Murray (2:52)

And I'm Melissa Murray. And what this actually is is Strict Scrutiny, your podcast about the Supreme Court and the legal culture that circumstances surrounds. It Put differently, we are a podcast that is not going to cave to the trend of insisting that the Supreme Court is reasonable now that it seems like some of the justices can read the constitutional text of the 14th Amendment and therefore are capable of immediately recognizing that the President's executive order rescinding birthright citizenship for the American born children of certain non citizens is in fact blatantly unconstitutional and should be burned with hot fire.

Leah Litman (3:27)

They got there eventually. Or they might eventually.

Melissa Murray (3:31)

Right?

Leah Litman (3:31)

Exactly. We'll talk about that. But a court that can only read sometimes, and on April Fool's Day no less, might not be that great a chord is the perspective we will be offering. So as you might have surmised, it's just me and Melissa today, which is why we're already at a 15. Kate is out. She said she was interviewing for a high level post at the Department of Justice. JK that's a late April Fool's joke. You know they'll never nominate another woman to that post. Or maybe anyone anyways, because it's just the two of us. We are going to be wilding out. So get ready. My local independent coffee shop actually just released their seasonal flavor and it's a root beer float latte and I just get the root beer added to my chai. So I am just gonna be on this sugar high for the next few months and I can't wait. It's been a great week. We're gonna start by recapping oral arguments that happened last week focusing on birthright citizenship. And then we are going to cover the Bonan legal news, including saying goodbye to our girl, Pamela Jo Bondi.

Melissa Murray (4:35)

New nickname Pamela. No Pamela. No Bondi.

Leah Litman (4:41)

Pamela. No job by. We're gonna have a few of those.

Melissa Murray (4:47)

We're trying not to be petty, but it's hard. It's real hard.

Leah Litman (4:50)

I'm not trying.

Melissa Murray (4:51)

You're. No, I was trying. I'm gonna have to be the Kate here and I'm trying not to be petty. But again, it's really, really, really hard. And anyway, first up, the birthright citizenship.

Leah Litman (5:02)

We learned that the justices can do hard things this week, Melissa, so you can too.

Melissa Murray (5:06)

We did reading. Okay.

Leah Litman (5:09)

Exactly.

Melissa Murray (5:10)

So first up, the birthright citizenship argument in Trump versus Barbara. This was a challenge to the President's executive order denying the constitutional right of birthright citizenship to children born to certain non citizens, namely undocumented immigrants and individuals who are here in the United States on temporary visa statuses. We are going to first provide some context and by that I mean we are going to give you some of the milieu of the immediate run up to the argument. Then we're going to give our high level overview and top lines of the argument. And then we're going to give you a summary of the cast of characters and all of the quote unquote fuck shit that happened during this argument. And there was a lot of it.

Leah Litman (5:53)

Oh yeah. So the lead up, the President announced that he would be attending this argument and he didn't taco out this time. I was curious if he was thinking I can mog Neil Gorsuch. But he also apparently brought Pamela Joe Bondi with him and told her on the way to the argument that she was no longer going to have a job.

Melissa Murray (6:16)

Okay, so this is so delicious to me. Cause can you imagine getting fired in the Beast on your way to the Supreme Court and then having to sit an oral argument watching John Sauer make an absolute mash of his job knowing you don't have a job? Like imagine that.

Leah Litman (6:32)

It's a perpetual reminder that the misogynist will never accept failure among women. Only men like trad wives.

Melissa Murray (6:40)

I don't care how much homemade Coca Cola you make for your husbands. This is not the way. Not the way.

Leah Litman (6:46)

No, no. But this was actually the first time a sitting president attended a Supreme Court argument as a sitting president. And I personally love the spec of Trump making this argument a clown show and staring down the justices who just deserve the entire clown show that they helped create. And I hope they were annoyed af

Melissa Murray (7:06)

this is literally like if Frankenstein's monster just showed up in Frankenstein's lab and had a seat, was like, what you doing? What you making?

Leah Litman (7:14)

Exactly. Exactly. Now, Trump reportedly left the argument shortly after the Solicitor General's appearance as Cecilia Wang, who was arguing for the plaintiffs, began. Unclear if the President was bored, unclear if he just couldn't stand a woman of color explaining why he was wrong or if even he could perceive that BLM Amy and Brett and not Arland Neal showed up and he knew it was over for the executive order.

Melissa Murray (7:44)

Not BLM Amy again.

Leah Litman (7:45)

I'm already a 16 girl.

Melissa Murray (7:46)

Wow. All right, so let's get to high level predictions and thoughts about the argument before we take attendance at what was the best clown show I've seen in some time. So first of all, it is clear, thankfully, that the President is going to lose this case because he should. Because reading is fundamental and this executive order is blatantly unlawful and it will be declared unlawful and killed with hot fire and will not go into effect. What is not clear is whether the President will lose this case unanimously, which should be the case, because this is so fucking unconstitutional. Like, everyone should just be like, yeah, you can't do that. But no, it seems likely here that the President will get a vote. Maybe more, but definitely one, we think. And that single vote, I will just say right here, is an actual travesty and a stain on the rule of law. And if you're wondering who does that remind me of, and you're saying Samuel Alito listener, you are correct. But leaving aside the fact that Samuel Alito is likely to vote for this clown show of an executive order, the outcome of the case at least seems clear. That being said, even when the President loses, he succeeds in some capacity that's sort of a hallmark of his whole presidency. One and two, this President has been so successful in unsettling and politicizing what is a bedrock constitutional principle, this idea of birthright citizenship. So just to be very clear here, these fringe conservatives took an off the wall theory that was cooked up by John Eastman in a meth lab of conservative grievance and that just 10 years ago would have been regarded by almost everyone who could read as the province of kooks and cranks. And yet these French conservatives managed to husband it into an on the wall theory that just got a full airing at the highest court in the land as though it were a normal thing.

Leah Litman (9:55)

Oh, by the way, the guy who originated the theory disbarred.

Melissa Murray (9:58)

Yeah, disbarred John Eastman. Yes. So, I mean, we're doing only the best people are on this case. And they husbanded it into an on the wall theory that the Supreme Court literally took seriously. And in doing so, the President and his minions have not only unsettled this idea that was bedrock, they've now invited more attacks on birthright citizenship and the children of immigrants who would likely claim it. They've unsettled the law, even if they haven't actually succeeded in changing it. And they've basically made the world safe for what J.D. vance calls heritage Americans. Which is to say that it means the world is no longer really safe for multiracial democracy and the rule of law. And that is probably the point of all of this.

Leah Litman (10:48)

Yeah, it was also a little rich for me to hear the justices at various points during the argument sound almost indignant and self righteous in their skeptical questioning of the federal government. Yes, I'm looking at you, Neil Gorsuch, when time and time again they have embraced ridiculous arguments, they have bent the law to enable this president. And so, yeah, he's out of control and lawless. Care to look in the mirror, my guys? And we should also note that it is an absolute choice for the court to hear this case at all. They didn't have to do that. They could have disposed of it last term when they resolved the issue of nationwide injunctions again in a case involving the Birthright Citizenship Executive Order and just then ruled on the merits as the plaintiffs in that case asked them to do, as the three Democratic appointees did. See, the 14th Amendment. And the Republican appointees didn't do that. So they invited this face eating leopard circus show into their house and our constitutional democracy.

Melissa Murray (11:42)

A few more beats on that. Again, this isn't just about the President and John Eastman and this cockamamie, ridiculous, craptastic theory of the 14th Amendment. It's also about this court that literally uses its control over its docket to percolate ideas that are genuinely up. Yeah, like genuinely fucked up. They could have decided this last term. They could have gotten rid of this with a very spare opinion. Like, nope, wrong, move along. No, no, they let it sit out there. The whole substantive question just sat out there. Then they're like, you know, what is

Leah Litman (12:22)

this, the 14th amendment?

Melissa Murray (12:23)

And then they decided to grant cert. And then they, like put it for like, April 1st. So, you know, as far as they

Leah Litman (12:29)

could get from it, joke's on us.

Melissa Murray (12:31)

Jokes on us. And they let it percolate. So we've literally spent four months talking about whether this bullshit theory is in fact a real thing. And it's like Pinocchio. We just asked if a ruler is a real boy for four months.

Leah Litman (12:47)

And do we have a real Constitution?

Melissa Murray (12:50)

Probably not. So they're part of the problem here. I mean, the way they manage their docket, the way they choose to answer things and the timeline. I mean, we saw this with Trump versus the United States and how they dillied and dithered on that. And then, oh, no, we can't have a trial. I guess we'll have to decide this. Oh, well, I guess we'll have to give the President complete immunity and here we are. So they're part of this. They're complicit in this ridiculousness.

Leah Litman (13:13)

Yeah, I think, bottom line, Mike Dorff, a professor at Cornell, said it best. Echoing points we've raised before. What he said is, this case is a to the Supreme Court. By rejecting an outlandish position, it will earn credibility as apolitical, even as the Overton window moves far to the right.

Melissa Murray (13:31)

Let's just remember that they're the ones that helped open this fucking window and then put, like a stack of books to keep it open.

Leah Litman (13:38)

Yeah.

Melissa Murray (13:39)

All right. Because we've already discussed how ridiculous the argument in favor of the executive order is was. Let's actually just delve into it and let it all hang out. The text of the 14th Amendment, I can tell you, is as follows.

Leah Litman (13:55)

Melissa is holding up a copy of her book. She literally wrote a book on the Constitution so she can tell you the U.S. constitution, a comprehensive and annotated guide for the modern reader.

Melissa Murray (14:05)

And it is coming out on May 5th. I can tell you, because I've written this book, that the text of the 14th Amendment reads as follows. All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Does that sound simple to you? Sounds simple to me, yes, because it's simple. It's pretty straightforward. The citizenship clause of the 14th Amendment responds to the Supreme Court's 1857 decision in Dred Scott v. Stanford, where the Court infamously held that persons who are descended from the enslaved could never be citizens. And the Court's reasoning, of course, was racist and rooted in ideas about who is fit to be a citizen, who is deserving, and who is an American. The 14th amendment. The whole point of the 14th amendment is to reject that vision of selective citizenship in favor of a clear rule of birthright citizenship. What had actually been the default rule in the Anglo American legal tradition, which had been adopted by the colonists at the founding and was the prevailing norm until the Supreme Court in the racist school that is called Dred Scott decided to depart from it. How's that for originalism?

Leah Litman (15:18)

Leah, is this originalism guy in the Butterfly meme says, you know, in some ways, like, this is the original originalism.

Melissa Murray (15:26)

It is the original, not this fake, fucked up originalism that John Sauer was peddling. Anyway, so the TLDR was we had birthright citizenship at the start. Dred Scott was like, hey, let me do a little racism and fuck this up. And then the 14th amendment was like, let's go back to the originalism part and just have a general grant of birthright citizenship to anyone born in the United States. The Supreme Court later confirmed that principle of broad birthright citizenship in its 1898 decision, Wong Kim Ark, which held that an individual who was born to noncitizens, that is people who are not eligible to be citizens, people who were prohibited from becoming citizens because of the Chinese Exclusion act, because we were still doing a little light racism and that their child, despite all of these exclusions because he was born in the United States, was a citizen by birth.

Leah Litman (16:16)

At the beginning of the oral argument in Trump vs Barbara, Justice Sotomayor quoted from the drafting history of the 14th Amendment and included specific comments made by people debating the amendment that acknowledged the amendment would grant citizenship to children of non citizens immigrants, including Chinese nationals who were vilified at the time and and now by the current president.

Melissa Murray (16:37)

The practical consequences of the federal government's position would also be absolutely outlandish and untenable. And this is something we covered in last week's episode. But it was again, so outlandish and so untenable that Justice Jackson felt compelled to unpack it on the floor of the Supreme Court. So this all came out in a very revealing colloquy with Solicitor General John Sauer, who may not know what it's like to give birth and what happens after you give birth and what you might be capable of doing just after you give birth. So we bringing pregnant women in for depositions? What, what are we doing to figure this out? Yeah, I'm not trying to have a deposition after pushing a baby out. Sorry. Or having my stomach cut and having a baby pulled out. Like, no one's wanting a deposition. Like, how does this actually work? Like, have you ghouls actually thought things through this?

Leah Litman (17:32)

Like, genuinely unclear.

Melissa Murray (17:34)

I mean like, you're sitting here telling me that the Strait of Hormuz is going to open naturally, but you have no fucking idea what natural childbirth looks like. Give me a break. Anyway, as should be clear, hospitals are not really equipped to determine citizenship. People are not equipped to prove their citizenship when they go to the hospital to give birth. And Solicitor General John Sauer's response is basically, eh, you can just sue the federal government to establish your baby citizenship after they're born and they deny your baby's citizenship. So yes, it's up to you to get yourself a lawyer, launch a case, get it all sorted out, and maybe after about a year and a half or so, you'll get an actual answer on this. No big deal though. Not a big deal at all.

Leah Litman (18:17)

Yeah, just more disdain for pregnant people. And in the interim, before you get that determination, is the federal government going to be trying to or succeed in deporting you and or your baby? It's just cruel. And that's the point exactly. Strict scrutiny is brought to you by ZBiotics. We are just about on the precipice of bad decision season, which means it's time to make sure you're making some good decisions so you can stay in the game. And that means drinking Zebiotics Pre Alcohol before you have your glass of wine after a long Supreme Court inflected day or a glass of wine you have before a SCOTUS heavy week. Zebiotics Pre Alcohol Probiotic Drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. Here's how it when you drink, alcohol gets converted into a toxic byproduct in the gut. It's a buildup of this byproduct, not dehydration, that's to blame for rough days after drinking. Pre alcohol produces an enzyme to break this byproduct down. Just remember to make pre alcohol your first drink of the night. Drink responsibly and you'll feel your best tomorrow. Every time I have pre alcohol before drinks, I notice a difference the next day. Even after a night out, I can confidently plan on getting up and getting ready to go to the gym or usually the pool to work off my Supreme Court induced stress. Look, I won't lie. I was on the fence about pre alcohol initially, but as I've said, after I drank the Sea Biotics Pre alcohol before the Pod Safe show here in Ann Arbor and at Crooked Con in dc, I was sold. And believe me, it's the real deal. Not like the fake history that's being trotted out in the birthright arguments. Let's be real. Usually a Friday night out means a Saturday morning spent canceling my workout class. But since I started incorporating pre alcohol, my glass of wine doesn't disrupt my morning flow. Remember to head to zbiotics.com strict and use the code STRICT at checkout for 15% off. Strict scrutiny is brought to you by Mint Mobile. So it turns out this administration not super great at bringing costs down. Oil and gas are up. Economy seems to be hurtling towards some sort of disaster. And that means you have to be careful about how and where you're spending your money. And that's where Mint Mobile comes in. You can stop overpaying for wireless just because that's how it's always been. Mint exists purely to fix that. Mint Mobile will rescue you with premium wireless plans starting at 15 bucks a month. All plans come with high speed data and unlimited talk and text delivered on the nation's largest 5G network. You can bring your own phone and number, activate with ESIM in minutes, and start saving immediately. There are no long term contracts and no hassle, so ditch overpriced wireless and get three months of premium wireless service from Mint Mobile for $15 a month. If I was in the market for a new cell phone plan, Mint Mobile is where I'd go and Mint Mobile is what I recommend to friends and family who are in the market. If you like your money, Mint Mobile is for you. Shop plans@mintmobile.com strict that's mintmobile.com strict upfront payment of $45 for 3 month 5 gigabyte plan required equivalent to $15 a month new customer offer for first 3 months only, then full price plan options available, taxes and fees extra. See Mint Mobile for details. We are now going to shift to explaining the vote count and why every justice save for Sam Alito and maybe also Clarence Thomas, although that was less clear to me.

Melissa Murray (21:50)

Hard to pin him down.

Leah Litman (21:51)

Yeah, I agree. Made clear that they can read and that the 14th Amendment says what it says. We're going to start out with the textually and literarily challenged Samuel Alito, who opened his remarks by positing to John Sauer that because unauthorized illegal immigration didn't exist at the time of the 14th Amendment, the 14th Amendment couldn't possibly have anything to say about the citizenship of children of people without legal status. That question, of course, was an attempt to offer a framework for him that is Alito to say, well, because things have changed, I can just do whatever we want. Basically living constitutionalism for the win. Says the guy who has a forthcoming book coming out about how he's an originalist, offering an originalist perspective on the US Constitution, the Court, and the country. Of course.

Melissa Murray (22:39)

Also, Justice Alito, I'd like to introduce you to the Second Amendment because I am pretty sure that when the Second Amendment was ratified, they didn't have machine guns or assault rifles and we could make these same arguments. In fact, we do make these same arguments and you always literally shoot them down. Get it? I made a pun there.

Leah Litman (22:59)

Haha.

Melissa Murray (23:00)

Pew pew, pew, pew. And yet Justice Alito still insists that the Second Amendment has something to say about machine guns and assault rifles. But you know, whatever. Let's just try to be consistent. Like, if you're going to do it, just be consistent.

Leah Litman (23:15)

But no, he's not trying.

Melissa Murray (23:16)

Later in the argument, the Chief justice kind of got in on this as well. He had an exchange with Solicitor General Sauer that pointedly responded to the administration's selective embrace of living constitutionalism in this case. So let's roll that clip.

Leah Litman (23:31)

No, but of course, we're in a new world now. As Justice Alito pointed out to where 8 billion people are one plane ride away from having a. A child who's a U.S. citizen.

Melissa Murray (23:39)

Well, it's a new world.

Leah Litman (23:39)

It's the same Constitution.

Melissa Murray (23:42)

All right, I'm just going to say this line has been quoted so much, I actually hate it. He's going to get he. By he, I mean the Chief justice is going to be credited with being wonderfully principled and institutionally minded and, wow, what amazing perspective and insight. We should be so thankful that he is on the court. Don't buy this.

Leah Litman (24:05)

Right.

Melissa Murray (24:05)

Like, I'm 100% sure John Roberts practiced this quip in the mirror before he got to work that morning. And again, like, they have allowed this administration to put this on.

Leah Litman (24:19)

He's the author of the immunity opinion.

Melissa Murray (24:21)

I mean, like, say it again. He's the author of the immunity opinion which has midwife this administration. He allowed this case to percolate for months, and now it's here. And then he's going to be like, it's the same, you constant. It's. It's the same constitution. Yes, sir. It's the same Constitution. And we could have said that literally last year. We could have done this last year.

Leah Litman (24:43)

Yeah.

Melissa Murray (24:44)

So, no, I don't buy this.

Leah Litman (24:46)

No. But back to Sam Alito, whose claims that while things have changed so birthright citizenship ain't no thing, led him to talk about microwave ovens, which is how, you know, he really had a great argument. Alito also offered a pretty dubious interpretation of the Supreme Court's decision in Wong Kim Ark. Even though reading is fundamental, Sam is not really into fundamental rights. So this all tracks. And Alito read Wong Kim Ark and said, aha. Wong Kim Ark recognized some exceptions to the rule of birthright citizenship, such as in cases for the children of foreign ambassadors or invading armies. And then from these exceptions, Alito insisted there is some broader rule that renders ineligible the children of all persons who have some allegiance to or association with a foreign power. But one, that's not what the 14th Amendment says. Two, that would make the exceptions to the rule rather than the rule. The rule and the rule is birthright citizenship. And three, there's just no indication that Wong Kim Ark was stating those exceptions as indicative of some broader, more general rule about the meaning of subject to the jurisdiction thereof.

Melissa Murray (25:49)

I actually thought Cecilia Wang, who argued for the ACLU and the immigrant plaintiffs, had the most sick burn. It was very subtle, but I thought it was great. So Justice Alito, his specific hypothetical was about the child born to a member of an Iranian sleeper Cell fucking crazy. Like, sir, whoa. And he was basically saying, you know, this is a child who. Whose parents have allegiances to Iran will likely have to serve in the Iranian army when he grows up. And that was never intended to be a citizen from birth of the United States. And Cecilia Wang weighed in to say, well, you know, if that's the measure, any immigrant obviously has these ties to the country from which they came. Do we presume that that allegiance extends to their children? We've never said that. And in fact, if we had, we would be precluding the children of Irish immigrants and. Wait for it, Italian immigrants from being citizens. Like, boy, you better watch out. We're coming for you too. Like, I thought that was actually masterful on her part.

Leah Litman (26:58)

That was giving very. A time to kill for me. When the lawyer asked the jury to remember the horrific crime committed against the defendant's daughter, who was black. And then the lawyer asked the jury, now imagine the girl was white. And, you know, Cecilia tried to play that exercise with Sam Alito and it didn't work. He just seemed unmoved.

Melissa Murray (27:16)

Again, just the abandonment of not just originalism, but textualism. Like, we're just going to pretend that the word jurisdiction actually means allegiance and we're just like a whole new word.

Leah Litman (27:25)

Why not people?

Melissa Murray (27:27)

Again, these conservatives have for years acted like progressives, just read what they want to into the Constitution. It's not us. We're not the ones doing it. No, not us. No.

Leah Litman (27:38)

No. Yeah.

Melissa Murray (27:39)

Anyway, other justices had very different takes on Wong Kim Ark. So when the Solicitor General, who is arguing against birthright citizenship, attempted to invoke Wong Kim Ark, Justice Gorsuch had this to say.

Leah Litman (27:53)

I would first cite Wong Kim Ark on that point because Wong Kim Ark says you're. Well, I'm not sure how much you want to rely on Wong K. Kim. Art. Neil Gorsuch has drag queen level bitchiness and pettiness, and I just wish he would deploy it.

Melissa Murray (28:05)

Better use it for good, not evil.

Leah Litman (28:08)

I know. In addition to the clip you introduced, I'm also thinking of this exchange where he's just dripping with disdain. But that's 1898. Now I'm looking at 1868. You're telling me is when I should look. And the test for domicile and the stuff you have about unlawfully present. It's like Roman law sources. You're going to. Again, sometimes the pettiness just hits. And even Brett Kavanaugh's brain seemed to grasp that Wong Kim Ark meant something other than what the federal government was saying it did. And he seemed to be on the hunt for a way to make this case easy enough that even he could write it. As you can hear here, you mentioned this in your opening, that if we agree with you on how to read Wong Kim, Arkansas, then you win. So that could be a. If we did agree with you on

Melissa Murray (28:56)

Wong Kim Wak, that could be just

Leah Litman (28:57)

a short opinion, right. That says the better reading is respondents reading Government doesn't ask us to overrule. Affirmed. That's that.

Melissa Murray (29:10)

Justice Kagan, as is her want, decided to take Solicitor General John Sauer for a dog walk on Wong Kim Ark. She pointed out how people have for generations understood Wong Kim Ark to cement birthright citizenship. And she then asked Sauer what quote, magnitude of evidence we would need to see in order to accept this revisionist theory and in order to change what I think people have thought was the rule for more than a century. I mean, ma', am, say it plain, say it loud. I mean, in response, John Sauer basically discombobulated and just started yelling at her, which was the perfect encapsulation of this administration's attitude and approach to the courts, the law. People with uteruses just generally. Let's have a listen.

Leah Litman (30:03)

Senator Trumbull says I said not subject to any foreign power. I wanted to say born in the United States and, you know, owing allegiance to the United States. But I was aware that there's a, quote, a sort of allegiance from persons temporary resident in the United States whom we have no right to make citizens. So Senator Trumbull says the reason I haven't adopted the language and meaning that they say should be packed into these provisions is that everybody knows that the children of temporary visitors should not be citizens. Thank you, General. This was John Sauer's equivalent of. But the Dow. The dow is at 50,000 for me. He saw Pam in the audience and he's like, yeah, I'm going to do that.

Melissa Murray (30:43)

Game recognized Game Girl.

Leah Litman (30:44)

Exactly.

Melissa Murray (30:46)

But Game has a job.

Leah Litman (30:52)

So we wanted to take a bit just in case you listened to the argument or have been reading coverage or you want to hear a little bit more to explain the domicile concept that was thrown out a bunch. So as we've said, the language of the 14th Amendment says if you're born in the United States, you are a citizen. If you're subject to the jurisdiction of the United States. The federal government says subject to the jurisdiction means your parents have allegiance to the United States. Note the text doesn't say allegiance. Neither does it talk about Parents, but whatever.

Melissa Murray (31:19)

Textualism, right, Exactly.

Leah Litman (31:21)

You know, the federal government then tries to distinguish Wong Kim Ark by saying that the parents of Wong Kim Ark were domiciled in the United States. They were residents permitted to be there, not there wasn't such a thing as unlawful status at the time. And the federal government says they were domiciled, permitted, intending to remain here, and therefore were subject to the jurisdiction of the United States, even if they weren't citizens and were prohibited from becoming citizens. Wong Kim Ark does use, you know, domicile and domicile several times in the opinion, likely because the parents in that case were domiciled here, but whatever. And also, domicile can't mean, you know, owes allegiance to the United States. Because Wong Kim Ark's parents maintained an allegiance to China, they couldn't become United States citizens and they ultimately returned to China.

Melissa Murray (32:06)

And also textualism, it's not the same word.

Leah Litman (32:09)

And also textualism. And also, there's no indication. This is just reading. I'm not sure it's even textualism that domicile was part of the rule or holding of Wong Kim Ark. And in addition to this, at the beginning of the argument, Justice Sotomayor quoted from the opinion in Wong Kim Arc, which had quoted Daniel Webster as saying, quote, independently of a residence, with intention to continue such residence, independently of any domiciliation, independently of the taking of any oath of allegiance or renouncing any former allegiance. It is well known that by the public law, a noncitizen while he is here in the United States owes obedience to this country's laws. End quote. Shorter. Justice Sotomayor, can you read? Unclear. Strict scrutiny is brought to you by cookunity. If you didn't already know, I'm a foodie. Whenever I travel somewhere, I plan out all the meals, both sit down restaurants and also breakfast pastries. 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There's also just this huge, glaring inconsistency in the federal government, its position about how to determine what the word jurisdiction means. Because the Solicitor General maintains that the federal statutes that contain the same language as the 14th amendment don't actually codify the Supreme Court's decision in Wong Kim ark, interpreting the 14th Amendment. Because the federal government says, well, those statutes use the language of the 14th Amendment. But at the same time, the federal government says that the 14th Amendment and the federal statute guaranteeing birthright citizenship actually mean the same thing as a different statute, the 1866 Civil Rights act, which uses a different phrase, the phrase not subject to any foreign power. So, just to get this straight, words mean the same thing as other different words, but they don't mean the same thing as the same words. Textualism.

Melissa Murray (37:46)

I mean, I'm sure Pam Bondi was listening to this and be like, I cannot believe that I just got fired from the Beast and this motherfucker has a job. What? Absolutely not.

Leah Litman (37:58)

Yeah. Or she might have been listening to Sam Alito, thinking, I can do this. Maybe he'll tap me for the Supreme Court.

Melissa Murray (38:04)

Girl, you're not getting tapped. You're going back to Florida for a life in the private sector. You don't even have a job at the Shield of the Americas.

Leah Litman (38:14)

Whew.

Melissa Murray (38:15)

All right, so that's where Justices Kagan and Sotomayor were. That's where the boys were. Justice Barrett also took a fair amount of time making her position on all of this very, very clear. She asked Solicitor General Sauer about how the government's theory that only people whose parents have allegiance to the United States are capable of having children who are born citizens of the United states how that would have applied to the descendants of enslaved persons. And as she pointed out, people who were captured and enslaved often were brought forcefully to the United States and returned to the United States. Probably did not have much allegiance to the United States. Can confirm they may have wanted to escape, yet their children were still definitely citizens. As we said, Black Lives Matter's Amy showed up for this argument, and we applaud her. Okay. All Lives Matter. Not today. Black Lives Matter.

Leah Litman (39:16)

Not today.

Melissa Murray (39:17)

Exactly today. All of this to say the three Democratic appointees are sane. They can read. So by now, it should be clear that the vote count against the administration is at least seven against the administration, with likely one vote for the administration. That would be Justice Alito. There's a wild card here, not surprisingly. And his name is Clarence Thomas.

Leah Litman (39:42)

Yes. And, you know, I guess you kind of suggested you also found him hard to pin down. You know, on one hand, he sometimes seemed to be channeling an inclination to want to say something about how the 14th Amendment was just about the descendants

Melissa Murray (39:56)

of enslaved persons so attractive to someone like him.

Leah Litman (40:00)

Exactly. Exactly. You know, on the other hand, he seemed to ask more softballs of Cecelia Wang than John Sauer. Different people seem to have read him differently. I just could not get a read or have a sense about where I thought he was leading.

Melissa Murray (40:15)

He loves that kind of argument going back to Reconstruction. He's done it before with the Second Amendment, like this whole idea that after the Civil War, during Reconstruction, African Americans were summarily disarmed, and therefore you should have a robust Second Amendment because it would have protected them during this period. I can see why the Solicitor General's argument would be so attractive to him. But it would also, I think, fundamentally raise questions about other aspects of the 14th Amendment that are, I think, are too troubling for him to contemplate, like, too progressive for him to contemplate.

Leah Litman (40:50)

So why don't you know one other person who was at the oral argument other than the president and now former Attorney General Pamela Joe Bondi. And that would be Norman Wong, a direct descendant of Wong Kim, Arkansas, who told the press after the oral argument that, quote, they, that is the justices will be shamed for history if they get this wrong.

Melissa Murray (41:09)

Samuel Alito is like, bet, right?

Leah Litman (41:12)

Exactly. Don't threaten me with a good time, Bergonia. Exactly.

Melissa Murray (41:16)

Bergonia. All right, bottom line, just to reiterate, the case should be 9 to 0 and a clear and simple reaffirmation of birthright citizenship. Actually, the case shouldn't have been heard at all. It should have been decided last year when they did that nationwide injunction. But, you know, here we are. And the case, when it is actually decided, probably in the last day of this term, sometime just before July, that case, when it's decided, will be a gift to this Supreme Court, because generally, anything that seems to be good for democracy probably isn't as good as it could be and is always a gift to the court. By rejecting this outlandish position, the court, as Mike Dorff says, will earn credibility as apolitical, even as it moves the Overton window far to the right.

Leah Litman (42:06)

Yes.

Melissa Murray (42:07)

Good job, guys.

Leah Litman (42:08)

Great job. So the court heard oral argument in another case we also wanted to spend a little bit of time on, and that was in Pitchford vs. Cain. The case is about a technical issue of federal habeas law, but the facts are quite simple and straightforward. So the defendant, Mr. Pitchford, who is black, was convicted of basically a murder offense when he was 18. And. And during Mr. Pitchford's trial, the district attorney, Doug Evans, removed four black prospective jurors.

Melissa Murray (42:34)

Now, listeners, if you're like, Doug Evans, why do I know that name? Where have I heard the name Doug Evans before? Well, listeners, you'll remember that Doug Evans was the prosecutor who brought you Flowers v. Mississippi, the Supreme Court case where BLM Brett Kavanaugh wrote an opinion concluding that the prosecutor, Doug Evans, had violated Batson, the restriction on removing jurors because of their race. In Flowers, the state tried the defendant multiple times, only to have multiple convictions reversed for prosecutorial misconduct. At the first two trials, the prosecution removed all of the black jurors. At the third and fourth trials, the state used all of its peremptory strikes against black jurors. And at the sixth trial, the one that the Supreme Court reviewed, the state of Mississippi exercised six peremptory strikes, five against black prospective jurors. And even this was too much for BLM Brett Kavanaugh, who wrote an opinion for seven justices, and it's not the seven that you're thinking of. And the opinion said, basically, yes, Mississippi, you did a racism. And the two dissenters here were Clarence Thomas. No points for guessing that. And wait for it, Neil Gorsuch. Right. So, woo. Flowers versus Mississippi. That was a heady time. That was when we first started this podcast.

Leah Litman (43:55)

It was. And yeah, those early days. Anyways, back to Mr. Pitchford's case, though. So during the 2006 trial, the prosecutor, again, Doug Evans, the artiste behind flowers, removed four prospective black jurors. And Mr. Pitchford's defense counsel objected and the state court basically said, no, all good here. No bats and problems. And then on appeal, the Mississippi supreme court ruled that the defendant had waived, that is agreed to forego the batson challenge, the one that trial counsel had raised during the trial that the state court judge told trial counsel was quote, in the record because reasons and maybe in part because the trial judge who rejected the batson claim didn't really apply the batson test anyways. Here's the rub. If the state court is right that defense counsel waived the objection in state court, then a federal court can't review that batson claim. Now that Mr. Pitchford's case is in federal habeas post conviction review, the waiver

Melissa Murray (44:53)

argument here is kind of batshit. Not only did the state trial judge tell defense counsel her objection was in the record three times, and the argument seems to boil down to the fact that the defense counsel didn't use the magic word pretext. Right. The supreme court has established a three part test for batson claims. So the first part of the test is that the defense counsel has to object, check. Then the prosecutor has to offer a race neutral explanation, and then the court has to determine if the race neutral explanation that the prosecutor has offered is actually pretextual, I. E. Fake. And in fact, the prosecutor actually relied on race in striking the juror. The waiver argument here goes like this. The defense counsel objected, the trial court said, nope, rejected, so there's no batson claim. And then the state and several supreme court justices as well as the fifth circuit say that the defense counsel waived the objection by not screaming at the trial court about how they were wrong about batson and the explanation is actually pretextual, even though it's not really clear what the prosecutor's basis for the objections were since the questioning of the jurors was limited, which would then make it really hard for defense counsel to argue that the prosecutor's somewhat mysterious reasons for striking the jurors were actually pretextual. Right. So again, a lot of this is very fact dependent the fact that the prosecutor didn't offer a lot of reasons, there weren't a lot of bases for the defense counsel to raise questions around pretext all of this. The problem, or a problem is that the state court just cut off the batson process before all of this could sort itself out. The court just allowed the prosecutor to recite some race neutral explanations without purporting to actually examine if those explanations were in fact pretextual, or to even allow the defense counsel to argue that they were in Fact pretextual.

Leah Litman (46:47)

And the lawyer for the state as well as the lawyer for the federal government arguing in support of the state as well as Sam Alito really doubled down on this idea that defense counsel should have been more assertive. As you can hear here, Mr. Perkovich, what happened here is certainly not a model to be followed in future cases. But I wonder if you would agree that in interpreting this transcript we can take into account the way defense counsel generally behave in a situation like this. Justice Alito, if you could clarify that question of defense counsel's general behavior. Well, this is the most timid and reticent defense counsel that I have encountered. Any competent defense attorney that I knew would have spoken up. Because we all know how much state courts love public defenders who get adamant like come on, you know, wanted to make a wonky habeas note for my fellow habeas nerds. There's some uncertainty about whether the Supreme Court will say that the state court here made a factual mistake because there actually wasn't a waiver versus a legal one because the state court didn't perform that third batson step of analyzing whether the race neutral explanation was pretextual. And federal law and post conviction creates super complicated rules that are specific to factual challenges versus legal ones.

Melissa Murray (48:16)

There was also a lot of this could just be a short opinion energy in this case and it really came from Justice Jackson. And part of me wondered, Leah, if her interest in a short opinion here is to keep her ghoulish colleagues from doing the most if she can. So let's hear from her. I see this also as possibly a very short opinion.

Leah Litman (48:37)

When we look at what Mississippi's Supreme

Melissa Murray (48:41)

Court said it would go something like Pitchford's trial counsel made a Batson objection and re raised it multiple times. Each time the trial judge reassured her

Leah Litman (48:54)

that it was preserved.

Melissa Murray (48:56)

Nevertheless, Mississippi Supreme Court said it was waived. That's unreasonable.

Leah Litman (49:01)

The end.

Melissa Murray (49:03)

What would be wrong with that?

Leah Litman (49:05)

Not. Not anything I can think of. I mean this had big no duh dumb shit energy to me, which I was here for. And you know, just as far as how this case is going to come out, you know, blm, Brett was back for this argument. So my guess is there is going to be a majority for the defendant here that thankfully. All right, here we are. Here we are.

Melissa Murray (49:28)

Wait, what's that me that. That gif like.

Leah Litman (49:33)

Yes.

Melissa Murray (49:35)

So excited for this. This is that that gif of the guy behind the tree looking at.

Leah Litman (49:40)

Licking his lips in.

Melissa Murray (49:42)

Yeah, it's time. It's time folks. It's Time for legal news. Pamela Joe Bondi.

Leah Litman (49:50)

Boom.

Melissa Murray (49:54)

Pamela no job. Bondi. Pamela Gandhi no stick. Pam P.B. out of J. P.B. out of a job. So many people.

Leah Litman (50:04)

We could go on.

Melissa Murray (50:05)

So many.

Leah Litman (50:06)

We probably will in our spare time.

Melissa Murray (50:09)

I mean, what could have made this better is if he had actually nominated Mark Wayne Mullen to be the Attorney General. This is a time. This is a place. Let's go, cowboy. No one should ever say that the President of the United States is not a gentleman. Because after firing Pamela Joe Bondi unceremoniously in the Beast on the way to the Supreme Court, he wishcasted on the way out and offered this truth for the graceful departure of Pam. Quote, we love Pam. And she will be transitioning to a much needed and important yet unspecified new job in the private sector to be announced at a date in the near future, never. And our deputy Attorney general in a very talented and respected legal mind, sort of. Todd Blanche will step in to serve as acting Attorney General. Thank you for your attention to this matter. President Donald Trump.

Leah Litman (51:08)

So let's just step back to observe the arc in Trump's second terms Attorneys General. So initially, one.

Melissa Murray (51:15)

Okay, can I just say.

Leah Litman (51:16)

Yeah, go ahead.

Melissa Murray (51:17)

Can you imagine, like Janet Reno in heaven.

Leah Litman (51:20)

Oh, my God.

Melissa Murray (51:21)

Eric Holder, Loretta lynch watching all of this? Like, what the actual fuck? Like this whole arc is so messed up.

Leah Litman (51:29)

It is. And that.

Melissa Murray (51:31)

14 months. 14 months.

Leah Litman (51:34)

Of course, we all remember initially, Trump wanted to select and nominate one Matt Gaetz for Attorney general. The guy accused of paying minors for sex.

Melissa Murray (51:44)

I believe Lear referred to Matt Gaetz as a frat paddle that became a real live boy and Attorney general nominee.

Leah Litman (51:54)

That one. And from there we then went to Pamela Joe Bondi, who of course, one of the most associated moments and images of her tenure is a photograph of her refusing to turn around and acknowledge the Epstein survivors during her congressional testimony.

Melissa Murray (52:11)

But she did acknowledge the stock market. She did.

Leah Litman (52:14)

She did. But the Dow. She did. But the dow is at 50,000. And now, at least for acting, we are getting Todd Blanche, Trump's personal lawyer, who met with one Ghislaine Maxwell and may have arranged her transfer to a lower security prison and who once had this to say about Jeffrey Epstein? So take a listen.

Melissa Murray (52:38)

Is there any chance that any of these individuals who partied with Epstein and

Leah Litman (52:43)

engaged in

Melissa Murray (52:46)

relations with minors will be prosecuted?

Leah Litman (52:49)

Any chance? I'll never say no. And we will always investigate any evidence of misconduct. But as you know, it is not a crime to party with Mr. Epstein. Again, not unconstitutional to have parties.

Melissa Murray (53:02)

It is so clear that Todd Blanche was auditioning to be America's next top Attorney General last weekend at the CPAC convention, where he just said outrageous, outlandish shit about sending ICE agents to polling places like he was auditioning. He knew that there was chum in the water for Bondi and that there was gonna be a shakeup at doj, and he wanted to put himself in the right place. Except Ghislaine Maxwell. Like, my dude, you are unconfirmable. There's no way you could be confirmed. Not only were you his personal lawyer for the hush money thing, not only have you helped orchestrate all of these retributive prosecutions against people who've literally done nothing except dissent against this president, you also seemed to have something to do with the transfer of Ghislaine Maxwell, or at least that is the appearance of it. Like, you're not going anywhere, sir. And that is why he called you the acting Attorney General, and why he is literally considering three other people, one of whom may be a box of wine, to be the actual Attorney General. Okay, let's break down what happened with Pamela Joe Bondi. It was so promising. That's not true. It was never promising.

Leah Litman (54:18)

No.

Melissa Murray (54:18)

Okay, so one of the apparent problems that the President had with Pamela Jo Bondi was that she was insufficiently effective at mounting political prosecutions. And I don't know. I mean, I feel semi bad for. And I actually don't feel bad for her. It wasn't really her fault. It was the Constitution and the public and judges and jurors who refused to go along with this. But. But she did catch a lot of the strays.

Leah Litman (54:49)

Why not blame a woman for everyone else's?

Melissa Murray (54:53)

I mean, I will say, like, she should have stood up to him and been like, sir, this is absolutely, like, ridiculous. You should not be doing this. But we knew she wasn't capable of that kind of medal, so it was never going to happen. But this could have happened to any. Honestly, anyone. This could have happened to Matt Gaetz. It could have. Like, if he refused to do it.

Leah Litman (55:13)

Because we have alluded to this moment, we do want to invite you to relive one of Pamela Jo Bondi's greatest hits, when we thought she had short circuited during her congressional testimony. So here you go.

Melissa Murray (55:28)

The dow is over $50,000. I don't know why you're laughing. You're a great stock trader. As I hear. Raskin, the dow is over 50,000 right now.

Leah Litman (55:39)

Just remember, people, Pamela Jo Bondi may be out, but the Dow. The Dow is at whatever it is at night.

Melissa Murray (55:46)

I mean, this was the bravofication of Pamela Jo Bondi. And I kind of knew when it happened she was not long for this world. I mean, Kristi Noem had a similar kind. I'm like, ladies, don't go testify before Congress acting like a housewife.

Leah Litman (56:02)

Well, this is why they need to get Stephen Miller to testify before Congress. Right? Just parade him out, dog walk him, humiliate him, and get him the F out of town.

Melissa Murray (56:14)

I mean, just my advice. Yeah.

Leah Litman (56:16)

More seriously, we all deserve this moment of schadenfreude with Pamela Jo. We earned it. In the last year, federal judges have described how she, quote, lost the, quote, trust that had been earned over generations. Quote, destroyed the presumption of regularity and, quote, loss of trust and confidence of legal communities and the public. Like, we can all mock her failures and there were many, but she did a ton of damage. And she succeeded at a lot of unlawful aims, including the still pending vindictive political prosecution of, for example, Representative Lamonica McAvoy.

Melissa Murray (56:48)

Okay, let me just say here, she could have been anyone, right? I mean, like, let's just to be very, very clear, this is all the rot comes from the top. This is the President literally dictating the policies and priorities of the Department of Justice. To be very clear, an actual Attorney General who took seriously their oath as a lawyer would stand up, but that's not going to be anyone here. So, like, this literally could have been ahead of Lettuce leading this department and the same thing would have happened. But it is delicious that it was Pamela Jovandi and then that she got literally dog walked and kicked out the way she did.

Leah Litman (57:27)

Speaking of deliciousness, I do wonder if we need to launch a spring or summer drink to pour one out in honor of one Pamela Jo.

Melissa Murray (57:35)

I know it can be Prosecco.

Leah Litman (57:38)

Oh, that's good. That's good. Okay. Fire Bondi or Fire Bondi. Oh, okay.

Melissa Murray (57:47)

I'm thinking.

Leah Litman (57:48)

Okay, that's my nomination.

Melissa Murray (57:50)

We have to think about some of these. This is great. I want to think of something with a spritz in it.

Leah Litman (57:57)

Oh, yeah, I see that. I see that.

Melissa Murray (57:59)

Like, instead of a Hugo spritz, a Pam go spritz.

Leah Litman (58:03)

Okay, okay.

Melissa Murray (58:04)

I know you're not loving it, but I do, I love elder theory, elder flower, whatever's in that.

Leah Litman (58:08)

Something with like. Anyways, we'll workshop this.

Melissa Murray (58:14)

We'll workshop it. Speaking of drinks, other Trump officials have also been covering themselves in glory, and yet they've somehow managed to hold onto their Jobs. Even in the face of incompetence and malevolence, this administration still manages to squeeze in a little light sexism. So Cash Patel, FBI Director, apparently fell for a phishing scam that compromised his emails. In addition to Cash covering himself in glory, the Financial Times reports that, quote, a broker for Pete Hegseth attempted to make a big investment in major defense companies in the weeks leading up to the US Israeli attack on Iran. What do they call this in the law, Leah?

Leah Litman (58:56)

Attempted dildo. Also known as insider trading. Yeah, or public corruption. I mean, you name it. But obviously, Uncle Drunky wasn't going to be fired for trying to get in on the grifty deal. Doze. Perhaps another reason he might not have been fired is what NBC News reported. Namely that Hegseth has apparently intervened to stop military promotions for more than a dozen senior officers. Which ones, you ask? Well, the story notes that his interventions have, quote, raised concerns that he may be targeting the officials because of race and gender. Hegseth intervened to block or delay promotions for more than a dozen black and female senior officers. He has also been firing senior military officials while conducting this unplanned, rudderless, forever war that has not achieved any of its objectives and just created additional problems. Is this DEI right? Exactly. Yes, Dick. Ex husband, incel, imbecile, you name it.

Melissa Murray (59:56)

All right, onto the institutions that are actually covering themselves in glory. We got several big district court opinions last week. And for those who might not know, every six months, the federal trial courts have to submit reports about how many cases remain outstanding and pending. This creates pressure on the district courts to release opinions before those dates. This is known as the six Month List. One of those dates that is relevant for the six month list is March 31st. And not surprisingly, we got a big batch of opinions. So Judge Leon in the District of the District of Columbia, halted the construction of the President's Ballroom in the White House. And in typical Judge Leon fashion, there are many exclamation points, and we love it. The opinion.

Leah Litman (60:49)

You can hear those exclamation points.

Melissa Murray (60:51)

I love it. Love it. Pound the tables. The opinion begins, for example, quote, the President of the United States is the steward of the White House for future generations of first families. He is not, however, the owner of the exclamation point. Judge Leon then said, quote, the National Trust is likely to succeed on the merits because no statute comes close to giving the President the authority he claims to have. Judge Leon then referred to that claim of authority as, quote, a brazen interpretation indeed.

Leah Litman (61:30)

What a performance. What a performance.

Melissa Murray (61:33)

Thank you, Judge Leon. We loved it.

Leah Litman (61:36)

Well, I was referring to yours as well.

Melissa Murray (61:38)

We're not like, honestly, we're not making fun. We love an exclamation point in an opinion. If you can put craptastic in an opinion, we are here for it.

Leah Litman (61:47)

Okay, so Judge Mehta, also in the District of the District of Columbia, held that some of the civil lawsuits against Donald Trump for actions on January 6 could proceed because the suits concerned actions taken in Donald Trump's private capacity rather than his official capacity. And then Judge Moss, also in the District Court for the District of Columbia, held that the executive order freezing funding to NPR and PBS was unlawful. And now a bad decision because bad decision season never stops. A district court held that the Trump administration can demand and obtain information from the University of Pennsylvania that identifies Jewish faculty and students, and specifically groups of and organizations on campus related to Judaism, and that it can get, you know, individual personnel and membership information. The opinion is, in my view, pretty, like, tone deaf and callous and dismissive of what I think are legitimate concerns with handing over this information to the administration. But that's my note.

Melissa Murray (62:45)

Article 2 also issued some opinions. Yeah, the President, who was definitely on one, issued an executive order purporting to restrict absentee ballots. Just to be clear, this has the same legal force and effect as if a frat boy wrote it on a napkin at a bar and puked on it and then wiped his face. Executive orders can't change federal statutes. The President also doesn't have the authority to set the rules regarding federal elections, as the Constitution reminds us. But nevertheless, this was all the President's effort to sow more and more chaos as we careen toward the midterm elections.

Leah Litman (63:30)

And then the Office of Legal Counsel decided to one up the President and issued an opinion declaring the Presidential Records Act a law that just requires presidents to keep records of official business, is, you guessed it, unconstitutional, an infringement on the executive power. Because federal laws that tell the President to do things are apparently unconstitutional because they interfere with the president's power to take care that the laws be faithfully executed. It does not make sense. And the attack on the Presidential Records act kind of teed up this question for me, which is, what the fuck are these guys hiding? What do they not want to keep records of? Because what they're doing out in the open is already bad enough.

Melissa Murray (64:19)

I just wanna be clear for our listeners. We laughed when we said that Article 2 issued some opinions. It's kind of funny, but it's not really right. So these executive Orders are basically the President's attempt at constitutionalism. And they have nothing to do with reading. They have nothing to do with reading the Constitution. This is the President wish casting what he wished the Constitution and relevant statutes said. And there will be lawsuits, I'm sure, challenging all of this. But there is something to be said for how he sort of normalizes these ideas by putting them out there. And so we feel like we are obliged to remind you again that these pronouncements, whether it's from OLC or the President, these are not the law. These are basically frat boy musings and wishcasting.

Leah Litman (65:09)

And part of ensuring they're not the law is insisting they are not the law.

Melissa Murray (65:16)

Yeah, so keep saying that part exactly right. This is frat boy wishcasting. That's what this is.

Leah Litman (65:23)

When I saw this OLC opinion, I thought I heard a sound. And that sound may have been one Professor Alon Wurman preparing an op ed arguing that Congress itself is unconstitutional. So Alon Wurman is one of the right wing professors that went on a bender trying to justify the President's illegal executive order. At one point during the oral argument, Solicitor General John Sauer invoked his amicus brief, which was definitely a sign the oral argument was not going well for the federal government. And when that happened, Ellie Mistahl, who was live blue skying the argument, said this reminded him of that moment from Arrested Development where Tobias Fuquay is like, there are dozens of us. Dozens. And I just. I loved it. Anyways, the reasoning in this OLC opinion, such as it is, is like extreme unitary executive theory, where extreme and executive are words that begin with the letter X. It maintains that Congress cannot expropriate the papers of the Chief executive. Those are papers that Congress paid for and appropriated to the President. Like, the next thing they're going to tell us is that Congress can't take back the Chief Executive's ballroom. And the OLC opinion also claims that the retention of presidential records serves no valid legislative purpose. Like, these guys have truly lost the plot.

Melissa Murray (66:46)

All right, again, just what is this timeline?

Leah Litman (66:51)

I don't know. I don't know.

Melissa Murray (66:54)

Anyway, it's so exhausting with an ex ex Austin. All right, briefly, some notes on the other cases that were argued last week at scotus. So the court heard Abuamo v. United States, which is about venue in criminal cases. Venue is about where a case can and should be filed. The specific question in this case is whether venue is appropriate in a district where the event's conduct. That's the stuff that constitutes the crime didn't happen, but that the defendant's intent contemplated would have effects in the district. So the case was argued the day after the huge no Kings protest that occurred across the country. And that seemed to be on some of the justices minds. So, for example, Chief Justice Roberts asked a question about the Boston Tea Party, and he directed this to the government and he said, quote, the Boston Tea Party takes place entirely in Boston, but it causes effects back in England. And so why can't you say it's all right to take these cases to England? As in, that can't possibly be right. Justice Alito's mind also went to a similar place, which you can hear right

Leah Litman (68:06)

here, you're trying to defend this particular conviction, and I understand that. But maybe when you're told that what you're doing is a violation of. Of the Declaration of Independence, you might think about what seems to me the more important point for lasting significance. Pot, kettle, my guy. Like when people tell you you're violating foundational principles, maybe you too should pause and reconsider your life's choices. There was a lot of weird no Kings acknowledgements slash celebrations going around among these guys. So here was people. I think the President was clear this morning in his truth that there are countries around the world who ought be prepared to step up on this critical waterway as well. It's not just the United States Navy. Last time I checked, there was supposed to be a big bad Royal Navy that could be prepared to do things like that as well. I have to say, celebrating no Kings and America's 250th birthday by asking the Royal Navy for help. Is America great?

Melissa Murray (69:12)

Just ask Meghan Markle.

Leah Litman (69:14)

Great step in.

Melissa Murray (69:16)

Not yet. You know, like, again, do these people fucking. Do you know any history?

Leah Litman (69:23)

Oh, my God. You know, back to this particular case, the argument was a little hard to read. You know, if I had to guess, I think maybe the justices were leaning toward the defendant, you know, not clear what the grounds would be.

Melissa Murray (69:35)

The court also heard argument in Jules vs Andre Balass properties about arbitration stays. If the name Andre Balass sounds familiar to you listeners, it's because back in the go go, late 90s, early aughts, Andre Balass was a hotelier who was hanging out with all the hotties. He took out Uma Thurman. He. I mean, all the folks. I mean, he. He was. He was on the pages. Everyone knew him. In any event, this case is not about that. It is about arbitration states. That's right. Arbitration stays. So the case is a follow on to Badgerow vs Walters, where the court said that the Federal Arbitration act doesn't grant jurisdiction for federal courts to enforce an arbitration award where they lack jurisdiction over the underlying dispute. The question here is whether federal courts have jurisdiction to confirm an arbitration award in a case over which the court has jurisdiction to compel arbitration. But I do recommend the entire oeuvre of Andre Balazza's Dating life from the late 90s and early 2000s. Very, very interesting.

Leah Litman (70:40)

So the actual case kind of comes down to whether the Federal Arbitration act kind of creates its own jurisdictional universe and exceptions or whether arbitration cases are subject to the more general rules about supplemental jurisdiction. This argument was also a little hard to read for me. I read the court as initially skeptical of the petitioner's argument that there's no jurisdiction. It's not possible. The advocate, Adam Unakowski, made some headway. Justice Kagan, who's the author of Badgerow, asked the person arguing second respondent, tough questions. But then there were no questions for the respondent during the seriatim portion of the argument, which is often a sign that that side might win. This was also the second argument of the day though, so it's possible the justices just got tired, which also was maybe evidenced to me by this question from Samuel Alito. Just out of curiosity, do you think we should ask Claude to decide this case? No, I adhere to the wise judgment of this court.

Melissa Murray (71:41)

I mean, honestly, relatable. First relatable moment from him ever. Also a reminder, we got the court's opinion in Chiles versus Salazar that was a challenge to Colorado's conversion therapy ban. Leah did a short emergency episode with Shannon Mittner of the national center for LGBTQ Rights. Definitely take a listen. It was fantastic. But again, we have a couple more big cases on trans rights coming down from this court this term, and this was an early reminder that it's not going to be great.

Leah Litman (72:20)

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Melissa Murray (72:47)

Years.

Leah Litman (72:48)

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Melissa Murray (76:51)

I mean, I loved reading them too, but I just, I gotta give you some props. What a great giveaway shirt. It's such a cute shirt. Constitutional af.

Leah Litman (77:00)

Maybe we'll do another giveaway. Maybe we'll run it again.

Melissa Murray (77:02)

We should. I'm sure James Madison was sitting there.

Leah Litman (77:05)

You have already given James Madison such a glow up with this book.

Melissa Murray (77:08)

I mean, but they're all just like, I wish we thought about that constitutional af. We should have just put it in there.

Leah Litman (77:13)

Oh yeah, for sure.

Melissa Murray (77:14)

We should have done it. For sure. Yeah.

Leah Litman (77:16)

So other other favorites of mine. Oh, I'm not done, Melissa.

Melissa Murray (77:20)

Okay.

Leah Litman (77:20)

All of the coverage of Kristi Noem's cross dressing husband injected into my veins. You know, there was this meme going around about fuck, marry, kill, you know, as Kristi Noem plays it with Corey Lewandowski. Her dog Cricket and her husband cannot recommend that enough. Emily Amick made a wonderful video providing him some, her husband some advice about bras for the big boobies. And then add to that all of the dancing on Pam Bondi's grave. For the people who are going to get into my DMs and call me sexist for coming after all the women in the Trump administration, I will just quote Mr. Bennett from Pride and Prejudice and say, send them in. I'm quite at my leisure. Also, Melissa, you guest hosting the Beat the night Pamela Jo Bondi was fired. Oh, my gosh. Sometimes karma works out and it's real. And I loved it.

Melissa Murray (78:17)

It was a fun night. I'm not gonna lie. Not gonna lie.

Leah Litman (78:22)

Still not done. Wall Street Journal's Rachel Bachman and Justin Lehart had a fantastic story about the WNBA players relying on Claudia Goldin, a Nobel laureate, to help negotiate more equal pay. I loved reading that. Two other things that are a little bit favorite, promotional. So the paperback edition of my book is going to be coming out on June 16, and apparently that release date means I'm gonna be competing with JD Vance's shitty forthcoming book. And you can pre order copies of my paperback book and get them signed. So my local independent bookstore, Literati, is running, so you just go to their website. We'll include the link in the show notes and you can order the book paperback version with a signed copy. And I know you're not usually supposed to do this, but I'm me and I couldn't help myself. I wrote a new chapter on the unitary executive, and they'd updates to all the chapters. The publisher was like, this is a new edition, girl. This is gonna take more time. And I was like, I don't care.

Melissa Murray (79:23)

I love new edition. Both the band and this new iteration of your book.

Leah Litman (79:29)

Exactly, exactly. So I had a lot of fun doing that. And then on the podcast front, we have been nominated for a Webby.

Melissa Murray (79:36)

Wait, say it like Judge Leon would.

Leah Litman (79:37)

A Webby for the Webby Award for the best politics and opinion podcast. But Webbies are determined by votes and we could really use your help in voting. And so please check out the link in the show notes and consider voting for us for a Webby Award.

Melissa Murray (79:55)

Please vote for us for the Webby. We are going to give such a great speech and acceptance speech for the ages.

Leah Litman (80:01)

Oh, you know it. This episode just gave you a flavor of all of the things we might say.

Melissa Murray (80:06)

I mean, we're going to leave Kate at home. No, we'll bring her.

Leah Litman (80:10)

Kate, we love you.

Melissa Murray (80:12)

We love you, Kate.

Leah Litman (80:12)

Appreciate. Last week you attempted to recite a line I gave you about the consummation court fucking the country and democracy. And she just couldn't get it out and was just like, oh, yeah, Leah said this thing about the country consummation court, but I appreciate the effort, girl. I see you.

Melissa Murray (80:28)

We see you, Kate. Kate's on vacation, but we know she's interviewing for A high level position. Okay. All right. My favorite things. I read a terrific new article that is forthcoming in the UCLA Law Review. It's called Parents as Regulators, and it's by Arizona State Law Professor Caitlin Milott. The paper is.

Leah Litman (80:48)

I love her work.

Melissa Murray (80:49)

Her work is fantastic.

Leah Litman (80:51)

Junior scholar articles I'm working on.

Melissa Murray (80:53)

She's great. She's my research assistant once upon a time. So maybe I'm biased, but I think she's just doing some of the best work.

Leah Litman (80:59)

I didn't know her at all. Love her stuff.

Melissa Murray (81:01)

She's great. So this paper is so interesting. It focuses on Mahmoud versus Taylor, which we, of course have covered a lot, but it sort of goes into this question about parents rights. And she notes that the whole concept of parents rights was sort of born in this milieu that was really focused on the private side of things, like what happened in the home. And like parents exercising their rights mostly were confined to the home, but now in the context of schools and the sort of veto that parents may exercise post Mahmoud, when the parents exercise their rights, it's not really in the private context. It has public consequences. And in that sense, it functions more like regulation. And we ought to understand it as a species of regulation. It's very, very smart. Really fantastic. I think she's doing some of the most interesting work at the intersection family law, education, law and gender. People should really be looking at her and reading her. I also read Harlem Rhapsody for my book group. It's by Victoria Christopher Murray. No relation, but I'm all here for Clan Murray. I'm always rooting for Clan Murray. And it is about Jessie Redmond Fawcett, whom Langston Hughes referred to as a midwife of the Harlem Renaissance. And it is juicy, though. So I learned a lot about the Harlem Renaissance. But I also learned that maybe Jesse Redmond Fawcett and W.E.B. du Voice were kind of an item, and she was his sort of side piece. A lot going on here, and I was here for all of it. I also want to recommend for those of you who are going through the college admissions process, it just wound down. And I see you, because that was. And I would love to kill it with hot fire. So if you made it out to the other side of the college admissions process, give yourselves a pat on the back. If your kids made you crazy the whole time, give yourself a pat on the back. And congratulations to all of you just for making it through. And your kids are gonna be great. For those of you with little kids, I have a great suggestion for a podcast. It's called My Boo Buddies. And it's. It's so delightful. These little kids that I met on vacation were listening to it at the pool. I was like, what is that? They're like, it's a podcast. And I'm like, you listen to podcasts? They're like, yeah, we listen to podcasts. I'm like, well, have you heard of Stick Scrutiny? They're like, no. What's Stick Scrutiny? This is My Boo Buddies. And so I was like, well, what's My Boo Buddies? And apparently it is a kid friendly mystery podcast that's packed with laughs, light scares, and lovable ghost pets. It's really cute. It's about a Latino family that inherits a house in East Hampton. And hijinks continue throughout as they meet a bunch of ghost pets. And I know it sounds increa. It sounds just insane, but these kids actually loved it. So if you need something to keep the little ones and your lives busy, I highly recommend My Boo Buddies. Because all I know is this mom was at the beach, she was chilled, she was chillaxing, she had a pina colada, and these kids had My Boo Buddies. So if you want that for your life, hop on it. Also want to say that the day before I anchored the demise Demise Old yellering of Pamela Joe Bondi, I got to anchor the launch of Artemis 2.

Leah Litman (84:18)

That was so cool.

Melissa Murray (84:19)

The first crewed lunar mission in the United States since 1972. And I have to say, I'm pretty jaded. This actually warmed the color just the depths of my cold dead heart. It was really, really amazing to watch.

Leah Litman (84:34)

And I did love following it.

Melissa Murray (84:35)

Right. And one of the people who was on the show that I was leading anchoring said, now little kids are gonna wanna be astronauts for Halloween again. And I was like, oh, yeah, I haven't seen many astronauts. That used to be a big thing when I was a kid. People would dress up as astronauts and not so much anymore. And. And it was nice. And it was nice to see that America can do amazing things. Really amazing to see that. The crew of Artemis 2 was so diverse. The pilot, Victor Glover will be the first African American on a lunar mission. The mission specialist, Christina Koch is the first woman in a lunar mission. And there was a Canadian mission specialist. It was just so interesting in this moment where we seem to be wanting to kill DEI with red hot fire, where it actually seemed to be working. Interesting.

Leah Litman (85:28)

Yeah. So, all right, we've got some housekeeping. And it's big. It's very big.

Melissa Murray (85:34)

Okay. All right, let me prepare myself.

Leah Litman (85:37)

Okay, so June has the honor of not only being Pride Month.

Melissa Murray (85:40)

Pride Month.

Leah Litman (85:41)

Yay.

Melissa Murray (85:42)

Yay.

Leah Litman (85:42)

Pride Month.

Melissa Murray (85:43)

Pride Month.

Leah Litman (85:44)

But also the month when the Supreme Court often makes its its most controversial and worst decisions. Boo. Yes, June is complicated. But luckily, this June, we, Strict Scrutiny, are coming to New York City to help all of us get through it together.

Melissa Murray (86:02)

Live show.

Leah Litman (86:02)

You want to tell people when? Live show.

Melissa Murray (86:06)

Live show.

Leah Litman (86:07)

So you can catch Strict Scrutiny live at the historic gramercy theater on June 20 as part of our Bad Decisions tour. The presale will begin this Wednesday, April 8th, at 10:00am Eastern Time. Now, the presale only lasts two days, so get your tickets before they sell out. And the code is Vibes. Vibes. That's V I B E S. So hope to see you in New York.

Melissa Murray (86:37)

We better see you in New York. And Judge Leon Big Strict Scrutiny Energy.

Leah Litman (86:48)

Strict Scrutiny is a crooked media production hosted and executive produced by me, Leah Lippman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt de Groat is our head of of production. And thanks to our video team, Ben Hethcote and Johanna Case, our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube. Strict Scrutiny Podcast 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. Sam.