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Strict Scrutiny
Can Trump Sue His Way Out of the Epstein Mess?
01:32:28
Kate and Leah break down the week’s legal happenings, including Trump’s flailing efforts to manage the Epstein fallout, the latest abomination from the shadow docket, and the legal quagmire surrounding Trump lackey Alina Habba’s appointment as U.S. Attorney for New Jersey. Then, they speak with law professors—and former clerks for David Souter—Allison Orr Larsen and Erin Delaney about the late justice’s legacy.
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- [00:00]
Leah Littman
Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedent, shattering some norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and our lives. Church state separation is the bulwark blocking their agenda. One of the last bastions of church state separation is our public school system. So these factions are now pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right. Religious public schools. And you know that we have talked about the case that they brought before the Supreme Court. St Isidore, we narrowly escaped a real catastrophe with that decision. But it's still percolating and it will be back at the High Court soon, soon enough. So if you are listening to Strict scrutiny, you can see the writing on the wall. You know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement. Because church state separation protects us all. Learn more and get involved at au.orgforward/crooked.
- [01:12]
Kate Shaw
Mr. Chief justice, please report.
- [01:17]
Aaron Delaney
It's an old joke, but when I.
- [01:19]
David Souter
Argue, man argues against two beautiful ladies.
- [01:21]
Kate Shaw
Like this, they're going to have the last wor. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
- [01:55]
Aaron Delaney
Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Leah Littman.
- [02:03]
Kate Shaw
And I'm Kate Shaw. And we are continuing our summer approach of taking a little rotating respite from the Hellscape. So it'll just be the two of us today. And we have another two part summer episode for you. We will start with some breaking legal news from the last week that will include a number of legal developments on the Jeffrey Epstein front that really aren't great for the Trump administration. But don't worry, SCOTUS is there to give Trump a boost. So of course, it has weighed in to underscore that, yes, Trump can violate statutes passed by Congress when it comes to who runs an agency whose job it is to keep your kids cribs from killing them. After that news update, we will bring you a conversation that we recently recorded with a couple of great guests reflecting on the life and legacy of Justice David Souter, who passed away this spring. At the age of 85.
- [02:47]
Aaron Delaney
First up, the news. So much of this week's legal news relates in some way to the administration's attempts to manage the fallout from La Fair Epstein. Why is this issue now consuming the president, his staff, a majority of the United States Congress, and much of MAGA world? Well, during his presidential campaign, Trump and many of his surrogates spent a lot of time talking about disgraced financier and pedophile Jeffrey Epstein, the key player in what David French referred to as, quote, the thinking man's version of QAnon, a complex conspiracy theory that says the leaders of the Democratic Party, Hollywood and other powerful people are basically a cabal of child molesters and that the all powerful deep state has been protecting them.
- [03:35]
Kate Shaw
And while to be clear, all of this Q stuff is pretty clearly pure fiction, there is much more there there with Epstein, who really did abuse many underage girls and who really did have many powerful friends, importantly, including one President Donald Trump, though he wasn't the president then. And also with respect to Epstein, whose 2019 death while awaiting trial on federal sex trafficking charges and or suicide watch raise some real additional questions.
- [04:04]
Aaron Delaney
So, during the campaign, Trump spent a lot of time fomenting interest in Epstein, including pledging that if elected, his administration would release all of the information in the government's possession about Epstein. This continued once Trump 2.0 took office. In March, Attorney General Pamela Joe Bondi said the administration would be releasing, quote, truckloads of information about Epstein. She even seemed to say in a Fox interview that the Epstein client list was on her desk.
- [04:33]
Kate Shaw
So in light of all that, MAGA waited patiently for the promised day to come. But instead, in early July, the administration issued a joint FBI and DOJ memo saying, basically, nothing to see here. Let's move on. There is no client list. There is no evidence that Epstein blackmailed prominent people. He died by suicide in jail, full stop.
- [04:55]
Aaron Delaney
MAGA wasn't exactly placated. In fact, that announcement led to an outright rebellion in the MAGA ranks. Some of the ire has been direct at Trump himself, which is kind of a first in terms of many of his hardest line base seeming to turn against him. But the key target right now is Pamela Joe Bondi, who seems potentially shaping up to be the fall girl, despite Trump's efforts to defend her on social media and elsewhere. And again, just to kind of give you a sense of this, two Trump administration officials, Cash Patel and Dan Bongino, even kind of earned their chops in MAGO world, in part through their embrace of this Jeffrey Epstein, Deep State Theory. And oh, how the tables have turned. And can I just say, so I was on vacation for, like the last week and a half, and I tried to stay out of the news, but occasionally something would, like, flicker by. And not kind of following this in real time, but just seeing blips of it was surreal. Like, I could not believe the different alerts and whatnot that I would see or references. It was wild.
- [06:02]
Kate Shaw
So you sort of actually didn't do the reading you're now trying to kind of piece back together?
- [06:06]
Aaron Delaney
Yeah, I actually didn't do the reading until we landed in the United States, which was the day that the Wall Street Journal reported that Trump indeed was in the Epstein files. And it was just really weird again, to see flickers of this unfolding. And I just wasn't sure what was happening. And then you land and it's like, oh, okay, that's what's been going on.
- [06:27]
Kate Shaw
Okay. So in case you were also on vacation, you, dear listener, in the last week and a half, let's continue to sort of bring you up to speed on recent developments. So soon after the administration memo saying, nothing to see here. And while Leah was trying to stay blissfully unaware of all of these developments, the Wall Street Journal published a story containing previously unreported information regarding connections between Trump and Epstein. Specifically, the article reported that at Epstein's 50th birthday, one Donald J. Trump contributed a sexually suggestive letter and sketch slash drawing that hinted at shared interest in young women, an interest that, to be clear, Trump has discussed elsewhere.
- [07:12]
Aaron Delaney
Trump naturally denies that he is the artiste behind this letter. Slash doodle, you know, real shaggy. It wasn't me energy. Although the New York Times subsequently corroborated that Trump was a contributor to Epstein's birthday book. But Trump filed litigation because, of course, he has, which we will get to in a minute.
- [07:33]
Kate Shaw
And meanwhile, the administration has attempted to placate the base through some artifice and distractions. So, one thing, and this is where sort of the kind of legal angles start to come in. DOJ has put on a show of asking courts to release some of the materials from grand jury proceedings in the Epstein case. Now, grand jury materials are by default, secret. Releasing them is allowed only under narrow circumstances and requires court permission. And the executive branch wouldn't need court permission if it wanted to just release information and materials it had in its possession. But asking the court for permission to release grand jury materials gives them a fall guy, the courts, because there are rules that have to be satisfied in order to release grand jury materials. And those rules are rules that the government's bare bones request to these two different district courts did not even begin to satisfy. A couple of pages. Not really any legal argument, clearly designed to be rejected. But in order, they didn't really specify.
- [08:34]
Aaron Delaney
What materials they were asking for.
- [08:37]
Kate Shaw
There were like legal documents in scare quotes. They had like the caption of a legal document. But no, there was no actual serious good faith effort to convince the courts to release these materials. So, of course, the courts have not done so. So in Florida, a judge has already denied the request by the administration, and a New York judge basically said, government, you' gonna have to work a little harder to provide more information if you want me to seriously entertain this request to release these materials.
- [09:03]
Aaron Delaney
Yeah, like at least pretend to try. And then last Wednesday, the Wall Street Journal followed up its birthday note story by reporting that, yes, Trump is in the Epstein files, that is when I landed in the United States. And that Bondi informed him of this fact, not that I landed, but that he was in the Epstein files back in May before the administration is back on American soil. I mean, I want that so bad. Yeah, you know, not gonna imagine that that makes the briefer, but I was not detained anyways. So Bundy informed Trump that he was in the files back in May, before the administration's about face on releasing the files and before the federal government released the reportedly doctored edited jailhouse video of Epstein, and before Kash Patel and others spoke to the media about Epstein dying by suicide.
- [09:53]
Kate Shaw
So now we're going to dive in a little further on the legal aspects of all of this. So let's start with the lawsuit that Leah already mentioned. So in the wake of the first wave of Wall Street Journal reporting just about the birthday letter, slash, you know, doodle. In the wake of that, Trump immediately turned to this tool that no sitting president has ever used, but is getting a real workout in this first stretch of the second Trump administration, and that is litigation against the media when it publishes stories that Trump doesn't like. So he filed a lawsuit against the Wall Street Journal, against Rupert Murdoch, against the journalist responsible for the piece seeking 10 billion with a B dollars in damages, which I'm. If I'm not mistaken, that's also the exact same amount he initially purported to sue CBS for because they edited the Kamala Harris interview in a way not to his liking. I mean, obviously that worked out for him. Really, really hoping that the end game here is not the same. So just the document, the complaint, again, scare quotes, complaint that Donald Trump and some personal lawyers have filed is an astonishingly poorly written and juvenile document, even for Trump. So let's just dig through a few highlights.
- [11:06]
Aaron Delaney
There's a real lack of familiarity with the journalistic concept of exclusive. So the document writes, quote, the article was published in the Wall Street Journal as an exclusive. However, since public defendants have widely disseminated it to hundreds of millions of people worldwide, end quote. I didn't realize they were imagining exclusive stories were something that a reporter just wrote to themselves and kept in their draft folder or something.
- [11:32]
Kate Shaw
Or like, or, or it's bilateral. It's like an exclusive dating arrangement. So there's just two of you. So you can write it to, I don't know, Donald Trump, but no one else can see it.
- [11:40]
Aaron Delaney
And that sounds like a great business model.
- [11:43]
Kate Shaw
Totally make. I mean, I, I, I. Truly there's nothing else to say except for like, what the fuck with this complaint. Yeah, all right, what else?
- [11:53]
Aaron Delaney
Okay, so it says, quote, notably, Murdoch and Thompson authorized the publication of the article after President Trump put them both on notice that the letter was fake and non existent, end quote. How can something be both fake and non existent? I mean, okay, yeah, arguing in the alternative.
- [12:11]
Kate Shaw
This is what our students learn.
- [12:12]
Aaron Delaney
This might be how I would describe the Supreme Court's reasoning on the shadow docket orders about firing. Like, it's both fake and non existent. Right. Okay.
- [12:21]
Kate Shaw
You know what I'm coming around to that actually is a meaningful position that you can take. Something can be both fake and non existent, but maybe only Supreme Court shadow dock activity. Exactly. I don't think a letter can be both fake and non existent. But yeah, yeah, I mean, there's also like this kind of reference to the publication of the article as a caustic situation, which I'm just like racking my brain. What word did they intend here? And I genuinely, I don't know. Anyway, you know, truly a mortifyingly stupid document. I was full body cringing as I read it. And yet, of course, like all this is these intimidation tactics against the media, like, are not funny at all. They're incredibly serious. Okay, so question for you. If you're gonna put together, you know, a work of art like this, where. Where do you think you would file it?
- [13:10]
Aaron Delaney
So Amarillo would be a good guess if that's where your mind went. Maybe an original action before the supr. Or just a application for a stay to Justice Alito. Those would be others.
- [13:22]
Kate Shaw
Those are very good. Those are good. We should sign you up for his, whatever personal legal team.
- [13:27]
Aaron Delaney
Leah, why do you hate me?
- [13:30]
Kate Shaw
Okay, those are good guesses. I don't know. Maybe like they, maybe Alito was like, I sent word that he was going to be unreachable for a few weeks and Kacmer too. But for whatever reason, this complaint ended up getting filed in the Southern district of Florida. Hoping, I'm sure, to draw one. Eileen Cannon.
- [13:46]
Aaron Delaney
Alas, that didn't work out. He drew Obama appointee Darren Gales. Now, perhaps having decided to go forward, publishing these scoops in the face of tons of pressure, including from the president, not to, the Journal isn't planning to just fold in the face of frivolous litigation like cbs, but we shall see.
- [14:04]
Kate Shaw
Yeah, I mean, I am hopeful that given the amount it sounds like of pushback from the administration that they faced and given their likely expectation that this would be the result in their decision to publish anyway, they're not going to turn around and like enter some ridiculous agreement. I mean, I'm sure that when 60 Minutes, like engaged in normal journalistic editing of an interview with a presidential candidate, they did not envision an insane fraud suit in Texas arising here. The Journal has to have anticipated it and published anyway. And so I presume that they are willing to fight this and God, I hope so. All right, another part of this fast moving story involves Epstein associate Ghislaine Maxwell. Maxwell is the longtime companion slash associate of Epstein's who in 2021 was convicted of helping him recruit and sexually abuse underage girls. She is currently serving a 20 year federal sentence.
- [15:01]
Aaron Delaney
So in a development that would be almost comical, if not so chilling, the number two official at the Department of Justice, Todd Blanche, who is also Trump's maybe former personal attorney.
- [15:13]
Kate Shaw
Unclear.
- [15:13]
Aaron Delaney
Right. First announced that he was going to meet with and then at the time of our Friday recording, appears to be going into a second day of meetings with Maxwell. So there has long been speculation that Trump might try to pardon Maxwell. It seems at least possible that on the table right now is some sort of pardon in which Maxwell says some things that are favorable to Trump. And he's been asked about this possibility a few times. And we will just play two of those clips here.
- [15:41]
David Souter
Would you consider a pardon or a.
- [15:43]
Aaron Delaney
Commutation for Ghislaine Maxwell? It's something I haven't thought about. It's really something recommended.
- [15:48]
Alior Larson
It's something I'm allowed to do it.
- [15:50]
Aaron Delaney
But it's something I have not thought about.
- [15:52]
David Souter
And I do wish you well.
- [15:53]
Kate Shaw
I'm not looking for anything bad for her.
- [15:55]
David Souter
I'm not looking bad for Anybody.
- [15:57]
Kate Shaw
And they took that.
- [15:57]
Aaron Delaney
And I mean, she's a child sex, alleged child sex trafficker.
- [16:00]
Kate Shaw
Big deal. But all it is is her boyfriend died.
- [16:04]
Aaron Delaney
He died in jail.
- [16:06]
David Souter
Was he killed?
- [16:07]
Kate Shaw
Was it suicide? I do, I wish her well.
- [16:09]
Aaron Delaney
And I think part of what makes this chilling is there is no reason why the number two official at DOJ is meeting with prospective witnesses. That's not something they do.
- [16:22]
Kate Shaw
No, there's no good reason. There are bad reasons.
- [16:25]
Aaron Delaney
Yes.
- [16:26]
Kate Shaw
And yeah, like figuring out some way to try to get her to help them put the brakes on this scandal and fully exonerate Trump seems like the most likely reason.
- [16:38]
Aaron Delaney
Yep.
- [16:40]
Kate Shaw
So, you know, Maxwell's attorney issued a statement that didn't seem to tamp down the speculation that, you know, we're engaging in. He said, quote, I can confirm that we are in discussions with the government and that Ghislaine will always testify truthfully. We are grateful to President Trump for his commitment to uncovering the truth in this case. I mean, one thing to note. I don't really know what to make of this, but Maxwell has a pending cert petition arguing that her New York prosecution violated a non prosecution agreement out of Florida. Sauer, the Solicitor General, actually filed the federal government's opposition last week. So, you know, who knows? I mean, I'm sure that's a long shot cert petition, but I wonder whether we could yet see Article 2 and Article 3 storylines collide yet again. If the court in some universe did decide to take up Maxwell's case. I mean, I highly doubt it, but I also would not totally rule it out. Out.
- [17:36]
Leah Littman
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- [20:06]
Kate Shaw
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- [20:46]
Aaron Delaney
So shifting for a minute from Articles 2 and 3 to the alleged Article 1. At the same time that all of this is going on, there was a genuinely surprising development, which is that while the administration is dragging its heels and seeking judicial cover on releasing Epstein materials, the House Oversight Committee voted to subpoena Epstein. Documents from doj as well as the testimony of a number of people including Ghislaine Maxwell and for good measure, Bill and Hillary Clinton, Eric Holder and others, natch. Not clear how meaningful this is, but it does suggest potentially some space opening between the administration and House Republican leadership.
- [21:24]
Kate Shaw
So I think that is definitely significant. But of course nothing is going to happen in the very short term because as there was further Epstein related activity in the Rules Committee, Speaker Mike Johnson decided to shut down the House for all of August. So no lawmaking can happen until after Labor Day. And this was pretty clearly and pretty explicitly actually, in order to avoid more Epstein related votes. They are obviously all hoping that things will blow over by September when the House is back in session, but I'm not sure that actually seems all that likely to me. Anyway, it's not going to stop them from trying.
- [21:58]
Aaron Delaney
Yeah. So in addition to suing and possibly pardoning his way out of this, in addition to having his enablers in Congress grind that branch to a halt, Trump has also desperately attempted to change the subject, attempting to distract from La Fair Epstein. He has done things like promote a memo from Director of National Intelligence Tulsi Gabbard. Another phrase I cannot believe I have to utter that says Obama administration officials engaged in a, quote, treasonous conspiracy in 2016, end quote, aimed at Trump. Trump also posted an AI generated video of President Obama being arrested, something I genuinely hope we never have occasion to address on our legal podcast.
- [22:42]
Kate Shaw
Indeed. All right, so shifting gears to squarely focus on Article 3, we got another absolute abomination on the shadow docket, to quote Leah, an order that was both fake and non existent. And in that order, the Court continues to grant Trump an ever expanding set of powers and the ability to violate laws without consequence. This time, the laws in question are those that restrict the President from firing members of the Consumer Product Safety Commission or cpsc, unless there is some cause for doing so. The CPSC is an independent agency with a statutory mandate to protect the public from the risk of injury or death from various consumer products, including doing things like developing safety standards and issuing recalls. By design, this agency is independent and bipartisan. So of course Trump has fired the Democratic members of that commission.
- [23:35]
Aaron Delaney
So possibly in response to the sustained criticism of the Court's failure to provide any reasoning in many shadow docket orders, the Court decided to trouble itself to drag draft a solid sentence or two of reasoning that is just definitely both fake and non existent.
- [23:52]
Kate Shaw
Just fake this one, because there is a little something.
- [23:54]
Aaron Delaney
So here's the reasoning.
- [23:56]
Kate Shaw
Where's the fake reasoning?
- [23:57]
Aaron Delaney
Yeah, the application is squarely controlled by Trump versus Wilcox. That's the shadow docket order allowing Trump to fire the Members of the National Labor Relations Board and mspb. The court continues in this case, quote, although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in, like, cases, end quote. Here's a question. How can an order be controlling but not conclusive? This was a real puzzle for me.
- [24:27]
Kate Shaw
But it's just like if you can understand fake and non existent, controlling but not conclusive sort of follows a similar logical arc.
- [24:33]
Aaron Delaney
Yeah, it's like the inverse of abandoned but not overruled. Like, these are just words that the court is churning out. And it seemed to me like, okay, they're no longer saying shadow docket orders aren't precedential. Right. So like, maybe we should call it the Schrodinger's docket. Like, some of what the court does is like semi precedential but not conclusive.
- [24:56]
Kate Shaw
Well, we're going to pretend it's not conclusive when we say it's temporary, but you lower courts have to understand it's controlling. So you need to do exactly as we do in all cases remotely like this one. Exactly, I think is a rough translation, but obviously, like, we're really parsing just a handful of words here because that's all they could be parsing to give us.
- [25:15]
Aaron Delaney
Indeed, they really seem content on making the Executive Branch the Apprentice. It's like they watched that show and they were like, you know what? That's how the presidency and Executive Branch should work.
- [25:27]
Kate Shaw
But like, again, they won't actually say it with their words. They will just allow it to happen either silently or like, yeah, with like a little haiku for all of us. Little, little Summer Zen Cohen. Justice Kavanaugh, you know, the typical poet on the court does say a little bit more and you know, in actual prose. And the substance of his separate concurrence in this case essentially goes all in on stare decisis is for suckers. He basically says if the court is inclined to narrow or overrule one of its precedents, like obviously here, Humphrey's executor, which allowed for the existence of independent agencies that the President couldn't just like, remove the heads of, then the court should just do the damn thing. Right? Basically, forget the courts of appeals, skip over them, grant, start before judgment and just do it now because, you know, like, why bother?
- [26:20]
Aaron Delaney
Yeah, like, what's a legal system and legal process to get in the way of a good time. This is the guy, by the way, who during the oral argument in Casa, the Birthright case, was emphasizing how important it was for the court to follow the right procedures and get the rules right. And here. Right. He's like, yeah, ordinary process whatevs. Let's just do it. It's also like he's saying, we, the justices already know what we're going to do. Like, why bother with the formalities of adjudication, which of course is not judicious, not court, like, at all. And yet somehow the majority's approach isn't much better than that because they're basically telling lower courts, yeah, you can overrule Supreme Court precedents too, like Humphrey's executor, but only the ones we want you to overrule. And we're not going to tell you what all of those are. It's like they have an abundance mindset for overruling precedent. Right? Like, everybody gets to do it totally. And yet they do so in the most confusing, disrespectful way possible.
- [27:31]
Kate Shaw
Just like the rage I imagine you would feel if you were like a good faith district judge trying to do your damn job right now while these clowns just jerk you around, like, just knows no bounds. Yeah, okay. Speaking of rage, Justice Kagan dissents, joined as she was in the controlling but not conclusive Wilcox order by Justice Sotomayor and Justice Jackson.
- [27:57]
Aaron Delaney
This was real and existent.
- [27:59]
Kate Shaw
It was real. It was, it was existent. And, you know, but it was tight. Like, it wasn't like a, you know, super long, but it's longer than the two sentences the majority gave us. And she writes what we just quote a little bit from the. From her dissent. Once again, this court uses its emergency docket to destroy the independence of an independent agency as established by Congress. By means of such actions, this court may facilitate the permanent transfer of authority, piece by piece by piece, from one branch of government to another. And she goes on to basically say the sole basis for this state order is the majority's prior state order in Wilcox. But Wilcox itself was minimally. And she says, and as I have previously shown, poorly explained. God, but I just love her. And she says, like, look, there was one sentence that was ignored today. Hinting it, but not deciding the likelihood of success on the merits. So then we have another under reasoned emergency order, the CPSC order, essentially atop the Wilcox order, will result in two under reasoned orders. To cite. And let me just quote her from her one more time. She says, truly, this is turtles all the way down. I love. Which I think is really unfair to turtles.
- [29:05]
Aaron Delaney
Yeah, but I still. But I still like maybe snapping turtles. Okay, so next up, a filing by Someone you don't see every day as a party to a lawsuit, and that is John G. Roberts, Jr. Who has filed a motion to dismiss in the lawsuit brought by Stephen Miller's America First Legal Foundation. The lawsuit is ostensibly a Freedom of Information act, or foia, suit. That is a suit seeking records from both the Judicial Conference and the Administrative Office of the United States States. But it also seems to be a backdoor way to try to seize power over the federal courts by asserting that these entities, which are critical to the functioning of the courts, are actually executive branch entities subject to presidential control, in addition to making them subject to foia. So Robert's response, in a nutshell is, I, not the President, am the boss of the Administrative Office and the Judicial Conference. Yeah.
- [30:03]
Kate Shaw
And so this, you know, FOIA request for the documents of these entities should be dismissed because these entities are not subject to foia. What's really interesting, though, about this motion to dismiss is actually less the contents than who filed it. So it's filed by, and he signed by Ethan Tory, who's the legal counsel to the Supreme Court. And, you know, that means he works in and for the Supreme Court. Right. The Chief justice is very clearly his boss. And the reason this is quite interesting is that in other cases that are cited in this motion to dismiss, so a case called Strickland, a case called Sinai, these are cases that also involve the applicability of statutes like FOIA or the Administrative Procedure act to the Judicial Conference. It was the Department of Justice and not an internal SCOTUS lawyer who represented the federal judiciary, which, for me, raises a lot of questions. Right. So did DOJ refuse the representation in this case? Did Roberts know, and enough to keep this in house. Either way, this seems like a pretty big indication that John Roberts is aware that things may not be purely on the up and up in the federal executive right now. And he is kind of letting us see that when it is his institution at stake, not, say, those who, by statute, independently protect consumers from products that try to hurt us. Hmm.
- [31:25]
Aaron Delaney
What to make? Yeah. It's just galling because they keep giving this President more and more power. But as soon as entities associated with the President or his officials come for their power and authority, then all of a sudden, it's too much. And, of course, it also seems to reveal some dissatisfaction with the lawyering at doj, something he has never deigned to express in any of the cases where, say, he stayed lower court orders that the Trump administration had violated and that DOJ had tried to paper over with Specious legal arguments. And it is, is the hypocrisy.
- [32:05]
Kate Shaw
Yeah. Once again, once again, if you were a lower court judge and you had again, sort of like diligently managed the docket in a case where you were being disrespected and disregarded routinely and the Supreme Court just without any explanation, decided to override your judgment. But then again, like, when it's them, they're like, oh, we don't want DOJ representing us. Like, God knows.
- [32:28]
Aaron Delaney
No. We want real lawyers who actually follow the law and can make legal arguments.
- [32:33]
Kate Shaw
Indeed.
- [32:34]
Aaron Delaney
Okay, so next development involving both Article 2 and Article 3 and regarding broadly speaking, presidential efforts to be sure they can install unqualified lackeys to various positions, this time involving Alina Haba Ahaba, of course, is another of Trump's former defense attorneys. She's manifestly unqualified for a senior Department of Justice role. And I think there's even maybe a real question about her ability to get confirmed by this Senate who confirmed Pete Hegseth as Secretary of Defense. But short term officials can be installed without the Senate's approval. And that's how Trump installed her as interim U.S. attorney in New Jersey. Then on July 1, he actually nominated her to be United States Attorney in New Jersey, and that nomination is pending. And in the meantime, her interim appointment expired. Under a long standing statute, courts have the authority to then make the appointment. And the New Jersey District Court picked her replacement, choosing the first assistant in that office, Desiree Grace, who Haba actually hand picked. So likely not some liberal squish, but.
- [33:43]
Kate Shaw
Doesn'T matter because Pamela Jo Bondi was clearly offended by the district court's decision to appoint Grace to this position. And she announced via X, because of course, that's where all serious government business must be done, that this appointment was the work of politically minded and rogue judges and that she was removing Grace altogether. I think that means from the office, not just from the position of interim United States Attorney. Although, like everything these people do, like, kind of muddled and unclear because she also maybe sort of announced that she was trying to put Haba back into the role via tweet, but it wasn't super clear. And you know, the law here is really complicated. Our friend Steve Laudick, of course, like, has the best overview of all of it in his most recent substack. But the gist seems to be that Bondi likely can designate a new acting U.S. attorney, but it can't be Haba because she has been nominated to do the job for real and likely in response to People kind of realizing that on Thursday, the administration announced that it was pulling her nomination. But that might not work because the statute says she can't remain in the job on this temporary basis if her nomination has been submitted, which it was, even though it was later pulled. So basically, it's a massive. It's not clear, like, who is actually signing documents on behalf of the U.S. attorney's office in New Jersey at the time of our recording. And, you know, I think things are only probably going to get worse.
- [35:11]
Aaron Delaney
Yeah. And getting worse. You know, there was some uncertainty about whether Bondi had the authority to remove the individual who had been appointed as the new interim, because I think technically the president can. And the way Bondi phrased it, it wasn't actually clear if she was like, exercising authority delegated to her by the President. There's also an open question about whether this case could open up the can of worms that Thomas wrote about, which is the possible constitutionality of federal courts even appointing executive officers like interim U.S. attorneys. So this is just an absolute mess waiting to become even messier, perhaps. We unfortunately have more news on institutional capitulation. So Columbia University announced a settlement with the Trump administration under which the university will pay a $200 million fine. Question whether that's to the Trump Library directly or to some entity within the federal government. And they will also, as part of that settlement, give the administration an enormous amount of control over admissions and, and the school generally. It is stunning.
- [36:30]
Kate Shaw
It's appalling.
- [36:30]
Aaron Delaney
It's a tragic, deeply disturbing. Dave Posen had a terrific Balkanization post about this. This is also something you, Melissa, you know, and I are working on a longer article about, you know, that this is relevant to, that hopefully we'll be able to share at some point in the nearest future, but no promises there. And this was announced on the heels of this New York Times op ed by the former ambassador to Hungary in which he wrote very powerfully about how Hungary became the autocracy that it is because of elite institutions, capitulation and their unwillingness to resist. And it was just this one, two punch that was very scary to observe.
- [37:20]
Kate Shaw
I totally agree. So that was a fantastic op ed by David Pressman, who is a wonderful lawyer now back at Jenner and Block, but various turns in public service, including most recently serving as the US Ambassador to Hungary. And he's just like, this is. We have seen in Hungary this sequence of events, these both like both cowardice and self deception on the part of elite individuals and institutions about their ability to essentially save their own hides by making deals with the administration, with strong men that they think will kind of conserve like their sort of core values, but allow them to sort of escape being targeted. And it, it's a fool's errand. Like it does not work. The only thing that works when we're talking about these kinds of aspiring autocrats and strongmen is to resist and stand up to them. Right. Like those and solidarity. Only ways that you can actually safeguard your core values like this kind of, of capitulation and collaboration, just like are doomed from the start. And again, we know this from Hungary and people don't seem to be learning those lessons. Yeah. So that piece by David Pressman people really should read if they haven't. And actually there was an article on the news side in the Washington Post also since we last recorded, that we wanted to highlight, which is just basically some kind of analysis of the numbers on the administration's response to court order. So we were talking a couple of minutes ago about, about pretty widespread defiance of lower courts. And Julia and Dan Deacon have a great piece that you've now posted publicly about some of the kind of clear defiance of court orders that is sometimes kind of dressed up in legalistic trappings that make it less overt and sometimes harder to detect than the basic Emile Beauvais approach of just like telling courts, fuck you, I won't. But that is defiance nevertheless. And. And the Post actually did a deep dive on a bunch of pending cases in the lower courts and basically concluded that the administration has been accused of violating court orders in not a small subset of the cases, a third of the cases involving challenges to various administration actions. I will say I did have a quibble, which is that the piece doesn't interview you or cite your article with Dan, but it is nevertheless, I will admit, a good roundup of what has.
- [39:31]
Aaron Delaney
Happened in terms of data, in of terms empirical work is super important and helpful. Yeah. So a few other legal developments we wanted to bring you up to speed on the judge and Kilmar Abrego Garcia's case. That's of course the man who was wrongfully deported to Sea Cot because of a paperwork error. The judge in his case decided he should be released from custody. Recall, the administration brought him back to face criminal charges. But the judge also entered an order prohibiting the government from rearresting Kilmar Abrego Garcia and attempting to deport him, which was a very real threat. The order has been staged. So at the time we're recording this, he is not yet released. But still that Seems like some good news. In other good, though complicated news, the more than 250 men who were sent to Sicot were released to Venezuela as part of a prisoner exchange. Remember, the men who were subject to the Alien Enemies act expulsions were Venezuelan national. So these men are no longer in ccot. That is the good news. Why it's more complicated is these men now have had an opportunity to describe how they were treated as Mr. Abrego Garcia had. And there are reasons to think that many of them are not safe in Venezuela. And that includes the gay makeup artist Andre Hernandez Romero, who is one of the individuals who was sent to Seekot. He has an asylum claim because he is concerned about his treatment in Venezuela. I wanted to read a quote from him upon his release when he learned that people continued to call for him to be released and drawing attention to his case. So he said, quote, it fills me with so much peace, so much comfort, so much tranquility that I was never alone from day one. There were many people who worried for me. End quote.
- [41:25]
Kate Shaw
Yeah, and. And I do think that it can feel like you're toiling in the dark. And it's totally futile, too, whether you're like, you know, posting on social media or actually marching with signs, but continuing to call for the return of individuals detained at Szigat. Whether or not, like any individual action has any kind of causal connection to what ultimately happened. A. It meant a lot to the people who, like Andri Hernandez Romero, but also the other hundreds of men like, who not only whose friends and families, but a lot of people in the kind of public at large continued to press for the release of. But also, I do think it matters from the perspective of policymakers and kind of the diplomatic effort, such as it was, that actually did kind of result in people actually being released from these horrific conditions. So the Washington Post also had a piece that included some interviews with several other individuals who were in the group that was released and someone by the name of Julio Gonzalez Jr. Who was an office cleaner and a house painter, who. Who literally thought he was being deported back to Venezuela when he boarded the plane that ultimately took him to Seekat. And he described the experience to the Post. He and others, once they realized where they were landing, tried to refuse to get off the plane and then were forced off the plane. He says that members of the flight crew wept as they were essentially, like, forced off the plane. He described the experience as a horror movie. One detail from, like, this totally wrenching article that I just. I didn't see or read elsewhere that I just wanted to read. Someone else who the Post talks to tells the reporter, quote, at one point, the detainees used sharp iron pipes to cut themselves and write messages in their blood on white sheets as an act of protest. The messages said things like, we are not terrorists, we are migrants. And Gonzalez, the cleaner and house painter, also told the Post they tortured us mentally and physically. The whole thing is in disruption, describable. But that episode at least has ended with their return to Venezuela.
- [43:27]
Aaron Delaney
Yeah.
- [43:29]
Alior Larson
Okay.
- [43:30]
Aaron Delaney
So we want to provide you a brief update, state of play on birthright citizenship or at least where things stand as we are recording on Friday. So there is a nationwide injunction in place out of the 9th Circuit in a case brought by several Democratic leaning states. And this is important because, you know, at the time this episode airs, we're going to be 30 days after the Supreme Court decision. And because of that nationwide injunction, so long as it remains in effect, the Birthright Citizenship Order remains paused and will not go into effect. Also in effect is the district court decision out of the District of New Hampshire that awarded interim relief for the class of individuals who were subject to the OR order. So again, as long as these judicial orders remain in place, the Birthright Citizenship Executive Order will not be in effect. So that's the good appellate news that we have for you. We also, unsurprisingly, have less good appellate news. So I wanted to flag a decision out of the 9th Circuit, not typically a court that makes its entree into our bad decisions category yet.
- [44:45]
Kate Shaw
Yeah, depending on the draw, you can issue some pretty bad decisions.
- [44:49]
Aaron Delaney
So the Ninth Circuit issued an opinion that applied the Supreme Court's recent decision In Catholic Charities vs. Wisconsin labor and Industrial Review Commission. Catholic Charities was the unanimous Supreme Court case from last term that said it is a violation of the establishment clause to impose as condition for receiving a tax exemption a requirement that discriminates between denominations. In that case, the requirement was that entities engage in proselytization which is forbidden by certain religions. When the Supreme Court case was decided, we highlighted our concern about what other conditions courts might say discriminate against certain denominations, which we will replay here.
- [45:28]
Leah Littman
Here's a question. What other conditions will the Supreme Court say discriminate between different religions or different religious denominations? What about a non discrimination condition? Would the Supreme Court say that that discrimination against certain denominations provides an opportunity to distinguish between different denominations?
- [45:47]
Aaron Delaney
So listeners the 9th Circuit took up that challenge. They held that an Oregon policy requiring adoptive parents to respect a child's sexual orientation and gender identity violates the Establishment clause because it discriminates against certain denominations who do not want people to be able to honor and respect and live according to their sexual orientation and gender identity. The plaintiff in the case, quote, believes that the Bible accurately describes the differences between men and women, and as a result of these beliefs on sexuality, attests that she, quote, cannot affirm or promote LGBTQ affirming messages that the state expects of caregivers, end quote. So, again, this was a unanimous decision, but its reasoning left open the possibility that courts would expansively construe what constitutes discrimination against certain denominations. And that is what we, we just saw.
- [46:42]
Kate Shaw
And this is probably just the start of it.
- [46:44]
Aaron Delaney
Exactly. We are a month out from the end of the court releasing its opinion in argued cases. So other appellate news, a more frequent flyer, the fifth Circuit. That court held that, get this, police officers cannot stop and frisk you if they suspect you have a firearm. So the defendant in this case was violating a law by carrying an unlicensed concealed firearm. But no matter, the judges say, because some people could carry concealed firearms with licenses, the fact that you're carrying a concealed weapon isn't reasonable suspicion of a crime, and therefore you can't be stopped and frisked. But what is reasonable suspicion of a crime? What might allow an officer to stop and frisk you? Having a friend who is suspected of a crime who officers were trying to locate.
- [47:31]
Kate Shaw
Yep. Now, one tiny piece of good news atop some previously highlighted bad news from the federal appeals court. So on Thursday, the Supreme Court court stayed an 8th Circuit ruling that we previously covered that plaintiffs cannot use section 1983 to enforce the Voting Rights Act. Now, in my view, the court, even though it was clearly right here, should have explained why. It always should. But the bottom line, it did not just allow the 8th Circuit or any appeals court to nullify the Voting Rights act right now. So that is really important. Of course, I, my sort of deep fear is that the reason that the court court did not allow the 8th Circuit to just nullify the Voting Rights act is that it wants the pleasure of doing the nullification itself. So this may be a very temporary reprieve.
- [48:17]
Aaron Delaney
Although why not? Like I thought, lower courts were supposed to read the Supreme Court's mind and guess, like, which precedents they're supposed to overrule or which statutes they're supposed to nullify. But I guess they guessed wrong here.
- [48:28]
Kate Shaw
Well, and I actually think, like, our little Hamlet Kavanaugh may genuinely be a little torn about, about what he actually is going to do. And so the lower court should know enough to know the Kavanaugh hasn't totally decided yet, and so they should wait for him to decide before they jump the gun. Clearly.
- [48:45]
Aaron Delaney
Okay, got it. Finally, in prospective awfulness in the Court of Appeals, Emile Beauvais, the Trump henchman nominated to a lifetime appointment on the Third Circuit, is moving closer to confirmation. If ever there was a time for Senate Democrats to pull out all of the procedural staff stops, it would be now. We are looking at all of you.
- [49:06]
Kate Shaw
All right, well, that's it for this action packed update. Stay tuned now for our conversation with Ali or Larson and Aaron Delaney about Justice David Suter. But one quick thing to tell you first. This month I hosted Inside 2025, a monthly friends of the Pod exclusive series that features a rotating cast of former White House officials, including Tommy Vitor, Jon Favreau and Alyssa Mastermind Monaco. And on that show, they share what it's really like to work in government and to serve a president. I mean, not this president, but, you know, other presidents. On the latest episode, I was joined by my friend Ian Bassin of Protect Democracy and we pulled back the curtain on the unique challenges that lawyers in the White House Counsel's office have to grapple with. We talked about how White House lawyers used to and really should think about their responsibilities, how an actually principled White House should deal with its obligation to the Constitution, how Trump has shattered at really record speed, long standing DOJ norms in ways that are going to be very hard to undo, but that absolutely have to be addressed if and when we make it through this. To hear the full conversation, get access to bonus content and more, you can head to crooked.com friends.
- [50:16]
Leah Littman
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- [52:31]
Aaron Delaney
The McDonald's snack wrap is back.
- [52:33]
Kate Shaw
You brought it back.
- [52:35]
Alior Larson
Ranch Snack Wrap Spice See Snack Wrap.
- [52:38]
Kate Shaw
You broke the Internet for a snack? Snack Wrap is back. Today we are bringing you a very special episode devoted to remembering Justice David Suter, who passed away this past May. And for this conversation, we are super fortunate to be joined by Professors Ali or Larson and Aaron Tyler Delaney. Ally is the Taylor Reveley Research professor and Alfred Wilson and Mary I. W. Lee professor of Law and the Director of the Institute of the Bill of Rights Law at William and Mary we are big fans of her work on amicus briefs and on appellate court fact finding, among other things. She clerked for Justice David souter during the 2005 term, and Aaron is the Leverholm professor of Comparative Constitutional Law and the Inaugural Director of the Global center for Democratic Constitutionalism at the University College London. Before that, she was on the faculty of Northwestern, where she retains an affiliation, and she is a singular expert on comparative constitutional law. She clerked for justice souter during the 2008 term. Ali Erin, Welcome District Scrutiny thank you.
- [53:45]
F
So much for having us.
- [53:47]
Aaron Delaney
Thank you. So let's begin by discussing your experiences clerking for Justice Souter. What do the two of you most remember about the justice as a boss, as a person, or as a juror? Aaron, maybe let's start with you.
- [54:00]
Alior Larson
So many wonderful things about the justice. I think probably his humanity and his personhood, right? Getting. And I see Allie nodding already. Getting to know him as a person was a remarkable opportunity, but part of that was his very intentionality about the sense that when he was hiring clerks, he was hiring people, that he wanted to be his friends. And that is a tremendous honor to think about that you are not only being chosen for having had good grades, but really for the idea that you would be an interlocutor over time and a friend of this really remarkable man.
- [54:49]
Aaron Delaney
Ali, how about you?
- [54:50]
F
So I kind of, when I first met him, I expected to meet someone weird and quirky because he had that reputation, you know.
- [54:59]
Aaron Delaney
But actually, weird has a specific connotation these days. But I take it the old weird.
- [55:05]
F
Old weird, Old school weird, like somebody like, not very socially adept. That's what I thought I was gonna meet, but that's so not true. I mean, he was very good in a living room. He was very good making people feel comfortable around him. He had a great way of telling jokes. And like, I would remember my mom, when she met him, she said, oh, David, it's so nice to meet you. And I was mortified that someone that my mom would call him David, and he said, alison, that's my name. And it just like that's how he thought of himself was as a David, not a Justin Justice.
- [55:42]
Kate Shaw
I'm reminded of Josh Chaffetz had a great piece in the Times last year that said something like a Supreme Court, a person's first name is not justice. Just like there is something deliberately mystifying about our attachment to that term. And I think that's. I didn't realize that he did not insist on always being referred to as Justice. So that is great. So, Ali, you wrote a tribute to Justice Souter on SCOTUS blog, which ran a bunch of attributes after he passed away. And yours was titled the Heartbeat of the Law is Human Connection. And you referred to, reflected in it on some of the greatest lessons that justice taught you. So I'm going to quote from it the value of caring for others, the wisdom in slowing down to get the law right, and the incredible power when those two forces are combined. So can you elaborate a little bit about, you know, kind of how those Lessons were imparted. And was there anything particularly memorable in your time with the justice and how he approached cases or, you know, you already talked a little bit about how he interacted with the people around him that kind of exemplified those qualities.
- [56:39]
F
Yes, absolutely. So, I mean, he really felt like what he was doing as a judge, you know, affected the lives of other human beings. And that meant a great responsibility that he had to use his, like I think he said, the power of his mind and the power of his heart to get the rulings right. And that was really influential on me as a young lawyer. I mean, I remember one day we had a emergency application and a death penalty case and I was super overwhelmed by it, just the high stakes and the last minute nature of it. And I remember him saying, even if he didn't agree with me on the merits, he was like, it's so important for you to remind me about the humanity here because that's the most important thing we do. And that is, I think that's a really important legacy.
- [57:30]
Aaron Delaney
So. Tributes to Justice Souter invariably note his modest lifestyle and unassuming daily routine during his 19 years on the court. He famously didn't own a cell phone, rarely used email, wrote with a fountain pen, and normally ate an apple, corn all and a cup of yogurt for lunch. Then when he stepped down in 2009 at the relatively young SCOTUS age of 69, it was generally accepted that a key motivation was his desire to return to his home and his books back in his beloved New Hampshire. Are there any particularly funny or notable idiosyncrasies that you remember from your time with the Justice?
- [58:08]
Alior Larson
Well, I have one. So I had the pleasure of clerking with him in his last year on the court. And so you talked about his sort of modesty and everything else. There were a few moments that year where he tried things for the first time. So one was the first time, apparently he had a sprite at the.
- [58:30]
Aaron Delaney
He's really living it up.
- [58:32]
Alior Larson
It was really exactly exciting at the holiday party.
- [58:35]
Aaron Delaney
This is David Suter's take on yolo, by the way. Yeah, really.
- [58:40]
Alior Larson
And we found out this because my cousins were my guests to that holiday party. You were able to have family to my cousin and her daughter, who was about nine months and she, her name was Sophie, just dove her hand into the justice's sprite. And he said, well, it was the first one I'd had and I wasn't really enjoying it that much anyway. So that was. So he was living on the sort of living on the edge. But the second point to his austerity, he went to resign, went to the White House and went to speak with the President to step down. And he wore the same suit, suit that he wore the day that he was interviewed. And he, he came in and said, ah, you know, look at it, it still fits and it's perfectly good. Plenty of wear left in it 19 years later.
- [59:43]
Kate Shaw
As someone who rarely updates their wardrobe, I really feel so seen by that anecdote. Let me ask one question about the suit. Was it a three piece? It's because he almost invariably wore a three piece suit and he rocked a three piece like few others would. He looked so good in his three.
- [60:00]
Alior Larson
Pieces and he refused to wear a coat. Famously never would wear an overcoat.
- [60:07]
Kate Shaw
It's that New Hampshire kind of tough exterior. You don't need one in D.C. right. Did he not wear one even at home in New Hampshire? I wonder. No.
- [60:14]
Alior Larson
I mean, he never.
- [60:16]
Kate Shaw
Amazing. Okay, so that's sort of some of the kind of personal dimensions of Justice Souter wanted to pivot now to ask about how you would characterize or how you think about Justice Souter's overall judicial philosophy. So maybe Ali, you want to start with you?
- [60:32]
F
Sure. I think of him as like a small C conservative, as in somebody who was very careful, very deliberate, very respectful of precedent, very aware of his own capacity to make a mistake. Like he had a lot of judicial humility. I do think it's important and others have said this, like Charles Barzin at uva. That doesn't mean he thought that all of the law was like clear cut and objective, like math. You know, he rejected that. He in particular believed that as the facts changed, societal values changed. Our interpretation of the Constitution had to change too. So that's not what I mean by conservative, but he was very much a common law judge, a one case at a time judge. He didn't care about making big ripples or bold statements or soundbites.
- [61:23]
Aaron Delaney
He was more writing for all of history.
- [61:25]
Alior Larson
Right.
- [61:25]
F
He wasn't doing that. Like he wasn't doing that at all. He was more concerned.
- [61:29]
Kate Shaw
What's the opposite of Neil Gorsuch?
- [61:33]
F
I think he was more concerned with like carrying the torch of like judicial independence through his chapter of history and not messing it up.
- [61:40]
Alior Larson
I could not agree more. I think Ali said it very succinctly. As I was thinking about this question, you know, all that came into my mind was humility. It kept coming in epistemic humility. Sort of the idea, the idea that Certitude was dangerous almost and that it is part of our responsibility to be, to understand the limitations of our own knowledge, to learn to update. And I don't know when at some point, I hope you'll share a clip of his Harvard speech. But part of what that Harvard speech was about is just about the danger of certitude. And I think we're in a moment right now of anxiety, I mean a global moment, not just in the United States, of anxiety and fear and a desire to kind of have control. And you see that in many different countries. And it tends to a sort of political, psychological, tend towards authoritarianism, tend towards the sense of just wanting things to be clear. And he pushed back against that in every way and was comfortable with his discomfort in uncertainty. And that's a very, I think, brave place to be. And it is uncomfortable, but I think it's, you know, it's very human.
- [63:11]
Aaron Delaney
So, Aaron, you asked for the Harvard Commencement address. You will get the Harvard Commencement address. So he delivered that address in 2010 and he offered a portrait of his fact intensive, values based approach to constitutional interpretation. He also offered some criticisms of overly rigid interpretive methods such as textualism and originalism. And we would like our listeners to be able to hear a little bit of it because it does seem to capture the way he approached his role as a Supreme Court Justice. So here are some clips.
- [63:42]
David Souter
The Constitution has to be read as a whole. And when it is, other values crop up and potential conflict with unfettered rights to, to publish the value of security for the nation and the value of the President's authority in matters foreign and military. The explicit terms of the Constitution, in other words, can create a conflict of approved values. And the explicit terms of the Constitution do not resolve that conflict when it arises. A choice may have to be made not because language is vague, but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we also want liberty. And we want not only liberty, but equality as well. And these pairs of desires of ours can clash. And when they do, a court is forced to choose between them, between one constitutional good thing and another one. The Court has to decide which of our approved desires has the better claim right here, right now. And a court has to do a lot more than read fairly when it makes this kind of choice.
- [65:07]
Aaron Delaney
That opening reference, I think is to the Pentagon Papers case. And I guess either or both of you, would you like to reflect at all on those remarks?
- [65:18]
F
What I remember from that speech, and I don't even think we heard this phrase, but he said that there's just a natural longing for a world without ambiguity. And I see that in my classroom all the time. It's a comfort in security knowing the answer for sure. But that's a false comfort. And Justice Souter, I think, bravely stood up for that principle in a way that is much harder to do now. I actually get emotional hearing him talk about it because it seems so different from the world we're living in right now.
- [65:54]
Alior Larson
When I interviewed, he read my student note, which was very kind of theoretical and he's very pragmatic. And so, so he kept talking about, well, what does this mean pragmatically? And went on and on and what's so funny about that and his pragmatism. But what is true is I think, although I haven't done a count recently, but I think he may have the most law professors of any justice. And what is interesting, even though his desire was for this kind of go out and be a practice pragmatic lawyer, so many of his clerks ended up becoming law professors. And here I'm just going to put in a plug for the university, which I think is under some attack today, that it is where we do search for truth and where we have to be uncomfortable with uncertainty and where we are meant to challenge responsibility, received wisdom. And it is, I think, to his credit that there are so many of us who participate in that project, that project of uncertainty, of learning, of self reflection, of challenging and of challenging, as Ali said, our students, to realize that things are not easy and that when we search for the easy, we may be doing ourselves, ourselves a disservice, not just us, but society a disservice.
- [67:26]
Kate Shaw
Yeah. And I want to add one thing, that that clip. And as Ali said, he's got lots of other wonderful material in that speech. It's very much worth listening to or reading in its entirety. But one thing that I thought about listening to the part we just played is that just this kind of openness about the inherently value laden nature of judging, especially in constitutional cases. And you're both talking about kind of certain contrast between that vision and the present moment. Like I am just reminded of the kind of contrast between that kind of openness and candor with the kind of current Supreme Court majority's insistence that it is not doing that. Like I think about the immunity decision from last year. The court is just like, you know, it is the court taking the position that it thinks the value of shielding the president from legal process and shielding, you know, its vision of presidential decision making from like potential chilling is more important than other values, than like accountability than and congressional authority to pass, you know, statutes criminalizing certain conduct. Like that's just a normative judgment inescapably. But the court is never honest about what it is doing in those cases. And I just read Sutter as basically admitting and inviting others to kind of admit that that is just part of judging. And there's something deeply anti democratic because it evades accountability when judges don't actually take responsibility for that aspect of judging.
- [68:44]
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- [71:01]
Kate Shaw
The McDonald's snack wrap is back. You brought it back.
- [71:05]
Alior Larson
Ranch snack wrap.
- [71:06]
Aaron Delaney
Spicy snack wrap.
- [71:08]
Kate Shaw
You broke the Internet for a snack Snack wrap is back. I wonder if either of you has specific cases that you could point to where his jurisprudence, his interpretive methodology, his personal values, kind of any or all were sort of in particular on display. Ali, do you want to name any cases?
- [71:38]
F
Sure. Well, I clerked the year that the Hamdan case was decided, which was one of the Guantanamo Bay cases. But there was a very suitor specific moment in that term because during the oral argument, he was uncharacteristically like, I think he actually rose from the bench. Like, he like wagged his finger and rose from the bench at the possible implication that Congress could accidentally suspend the writ of habeas corpus. And I remember him saying, like, you know what, like the writ is the writ. And just in a way that I like a tone of voice that was uncharacteristic for him. And I think that showed that even though he, he was a judicial conservative and didn't like to make waves, he also, he knew that there was importance in standing up and that there was a judicial responsibility in safeguarding freedom and liberty. And that was an example of him, like the line had been crossed for him.
- [72:34]
Kate Shaw
How about you, Erin?
- [72:35]
Alior Larson
Well, I was thinking about a case called District Attorney's Office v. Osborne in which Justice Souter dissented. And it was about access to state held DNA for post conviction testing. And he concluded that there was a right within the state scheme in order to do this. But he wanted to say something about a substantive due process claim that had been made and that he thought should not be decided yet, but wanted to say some things about substantive due process in this, in his dissent. And so he asked me to look for what he understood to be the court's approach to substantive due process. And he said, well, you know, we just, we don't rush it and timing matters, and surely we've said this somewhere. And so I was looking and I said, justice, no one has actually said this. I believe this is exactly what happens where there's a question about timing and where things stand. But we couldn't find an explicit statement. And so he made one. And this is Kate, I think your point about candor was that he said, listen and you see resonances of what he did in this, in the Harvard speech. He said, we need to take into account that society changes, there's changes in societal understanding. Satay is going to work through issues. And he wrote this all out as a way of trying to make sense of substantive due process, taking that tradition was, of course, a serious consideration, but that it could not be all and that you had to understand that. And his quotes, yesterday's reasonable range of the government's options could turn into today's due process anomaly or ultimately violation. And this sense of learning and changing, and that it was part of the Court's responsibility to take this into account, was something that he was not afraid of acknowledging. I mean, everyone knows the Casey decision, the three judges plurality decision, where there's just an acknowledgement in candid terms of what exactly is happening as a Supreme Court in a constitutional system like our own. And again, he just wasn't afraid of trying to explain that.
- [75:13]
Aaron Delaney
So, Aaron, since you mentioned Planned Parenthood vs Casey, this is maybe one of his most famous moments during his tenure in that case. He joined the three justice plurality together with, with Justices o' Connor and Kennedy to uphold the central holding of Roe versus Wade and declining to overrule the decision. So I guess I am curious to hear what you think about how or if that decision is representative of the Justice's broader jurisprudence.
- [75:41]
F
I think it is. I mean, so the part of that plurality that he's most associated with is the stare decisis discussion. And I think his, the way he approached precedent in stare decisis was very emblematic of who he was and his respect for those judges that came before him. So it wasn't just, I don't want to rock the boat, although there was a little bit of that. But I think it was, you know, we need to really look into. I'm not the first to think about this. Like, I'm not the first to encounter this. And so I should give, like, if not deference, at least, like, significant respect to the views that are of those who came before me. And that's why he was so. He's well known for having such a friendship with Justice Brennan when Justice Brennan was a senior Justice. And, you know, he's just, he respected judges not just of his own time, but those that came before him. So I do think it's an example of his larger approach to the law.
- [76:39]
Kate Shaw
Can I just mention, since we're talking about favorite suitor opinions or, you know, kind of emblematic or representative ones, I'm not sure. Sure that it's as well known, as it should be. But one of my favorite of his opinions was his dissent in the Crawford vs. Marion county voter ID case. That was from the term that I clerked. And the court, regrettably, in my view, although the opinion was written by the justice for whom I clerked, Justice Stevens upheld that it was the first encounter the Supreme Court had had with the voter ID law. And Justice Souter just writes a really powerful dissent that, you know, the court has some cases that reflect this kind of, you know, balance of values that we've already been talking about him engaging in kind of generally. So these Andrew and Berta cases say, you know, we ask about how big the burden on the right to vote is, and we ask about how important the state interest is. And. And he's just kind of very pragmatic in doing this wing and just basically says tens of thousands of voting age people in Indiana don't have a necessary photo ID a lot. I'm going to quote a sentence. A large proportion of them are likely to be in bad shape economically. Right. Like, it's not a very technical assessment, but it's like, act clearly. Right. And he says the state's asserted interest in modernizing elections and combating fraud are decidedly modest at best, they feel, to offset the clear inference that thousands of Indiana citizens will be discouraged from voting. So it's just like a very practical. We've got these values at stake. We have to look at facts and sort of decide how they shake out. And again, it's sort of inescapably normative. So, okay, we wanted to play maybe one or two clips of Justice Souter asking questions during oral arguments. He had a reputation for being, like, a pretty incisive questioner, although, you know, invariably very polite during oral arguments arguments. And one example I like a lot is during the arguments In United States vs Lopez, the case about whether, you know, Congress exceeded its Commerce Clause authority when it enacted the Gun Free School Zones act for your law. Students are very familiar with the case. In his questioning, Souter was, you know, it seemed to be concerned about the kind of expanding scope of legislative power and sort of the lack of limits that Congress had observed. And he drew some laughs during this clip. And I also have to say I want to play it because you. When he's first on the bench, you hear the New Hampshire and his voice waves louder than in the Harvard speech, which is much more recent. So. So for our listeners, both the substance and just the kind of vocal quality. Wanted to play this clip.
- [78:52]
David Souter
I mean, that is no Limit. Benjamin Franklin said, it is so wonderful to be a rational animal that there is a reason for everything that one does. And if. If that's the test, it's all over.
- [79:04]
Kate Shaw
So, okay, so he sounds kind of skeptical about the rational basis test being insufficiently demanding. Although, you know, ultimately he does dissent from the Court's decision that Congress had exceeded its authority in enacting that law. So maybe just one more, since Ally already brought up the Hamdan oral argument. So. Well, I'm not sure if this is the moment when he rose from the bench, but. But he's definitely, like, really concerned about undermining the Great Writ. So let's play that clip from Hamdan here.
- [79:32]
David Souter
The whole point, it seems to me, of the argument is should we not consider the significance of those very questions? Because if we don't, as Justice Breyer said, at the end of the day, as you describe it, we will have to face the serious constitutional question whether Congress can, in fact, limit jurisdiction without suspending habeas corpus. The whole point is to grapple with them now and to treat them in a way that allows for this adjudication so that we avoid this constitutional difficulty tomorrow.
- [80:06]
Aaron Delaney
Okay. So much ink has been spilled over the fact that Justice Souter was appointed by a Republican president, George H.W. bush, but over time evolved to become a reliable member of the Court's more liberal, progressive block. Today, the phrase no more suitors became a rallying cry for Republicans who wanted to appoint and want to appoint only those whose votes they feel confident they can predict in some set of important cases.
- [80:37]
Kate Shaw
I will just say that I know that my old boss, Justice Stevens, who is also a Republican appointee who became in many ways the leader of the Court's liberal block, would like insist that he had not changed, but like the Court had and maybe the country had changed around him. And, you know, whatever you make of that answer, I'm curious how you think Justice Souter would have responded to questions about his ideological shift. Valley, what do you think?
- [80:57]
F
I mean, I think he thought of himself as a conservative, and I think if you look at his confirmation here hearing, he's remarkably candid about the way he thinks of the right to privacy, for example. I mean, the idea that it was some sort of stealth move to the like, that's just false. And I do think, as I said before, I think he was a conservative. I think that what it means to be a conservative has changed.
- [81:21]
Kate Shaw
Erin, what do you think?
- [81:22]
Alior Larson
I completely agree. And also, being from New England, I'm in a New England Shed at the moment, trying to be suitable.
- [81:32]
Aaron Delaney
Perfect location. Yeah, exactly.
- [81:35]
Alior Larson
That kind of small C conservatism is very New England. And the way in which his kind of maybe a little bit libertarian aspect on some of it dovetailed isn't surprising given his background. And I'm not sure, I wonder how surprising it was to President Baby Bush or if President Bush knew what he was getting in that selection of Justice Souter. I mean, there's a certain kind of New England, New Hampshire background that seems similar to me. And perhaps the country did change around him.
- [82:19]
Aaron Delaney
I like that he in some ways, I think, better acknowledged that the court and the country had changed around him than some other justices have. You know, when we did, for example, our retrospective on Justice o', Connor, you know, one of her former law clerks talked about how she might not have recognized the ways in which the Republican Party had changed around her. Whereas it seems like Justice Souter kind of like understood what he was about and his core and could recognize, you know, when law, life, court, country, society, you know, might not be, I guess, for lack of a better phrase, like channeling the same vibe.
- [82:58]
Alior Larson
So.
- [82:58]
Aaron Delaney
So what might we all learn from Justice Souter's approach to life and law, whether it's his lifestyle or his legal reasoning or any aspect of the justice that you knew.
- [83:11]
F
It's interesting to reflect upon this in some ways, because he wasn't someone that talked about or probably even thought a lot about his own legacy. But for me, the legacy is what I wrote about in that tribute, like, really thinking about the law's impact on humanity and the human connection. And he did his job with that at the forefront of his mind, not trying to make waves, not trying to make sound bites, but trying to responsibly carry out the important power that had been placed upon him. So I think that is what I would take as an important part of his legacy.
- [83:48]
Alior Larson
On a personal level, I think I would add to that, which I of course agree. Ali. I would add, add that he knew himself and he was comfortable with himself, and he wasn't trying to be anything other than himself, except when people mistook him for Justice Breyer, which he thought was hilarious. He was from New Hampshire. He went back to New Hampshire. He climbed the mountains of New Hampshire. He was, I think, the last Supreme Court justice who was a state court justice. You know, there was a certain primacy of place in his heart. He was comfortable with who he was. And he really. And he talked about this quite a bit in his last year. You know, he was ready to retire because he did not want the court to be all who he was. He did not want that to be it. He was a person with many other interests, with other things he wanted to explore. And the idea that he would just be synonymous with this one part of a long, varied and engaged life was distressing to him. And I think he probably would have thought it distressing to the country. It's interesting to me that he retired at 19 years. And as anyone who's read the Biden Commission will know, we're the only country in the world with no retirement age and no term limit. It's an unusual situation from a comparative perspective. And 20 years is often a time that seems accurate for service. And so but it wasn't just about the Court. It was about himself. It was about what he wanted. And I think that's something to remember. And again, another impressive aspect of him.
- [85:46]
Kate Shaw
As a person, I hadn't thought about that 19 years here yet, because the proposals that sort of are afoot for limiting the terms of Supreme Court Justices here tend to be in like the 18 year range. So maybe like the yes, more suitors rallying cry yes, more suitors could be reappropriated for a term limit push. And also just briefly, like the just Aaron mentioned the Justice Breyer confusion. So for listeners who aren't familiar with this, like, I might garner marble this story, so correct me if I get any of it wrong, but there's like this famous pseudo anecdote in which he's stopping at a gas station in New Hampshire or something and somebody says, oh my God, it's Steve Breyer. And then he does sort of plays along and then, I mean, doesn't want to like, embarrass the guy by correcting him. But then when the person asks him what the best thing about serving on the Supreme Court is, he says somewhat cheekily, like, oh, the opportunity to work with David Souter. Did I get that basically right?
- [86:33]
Aaron Delaney
Yes, exactly.
- [86:34]
Kate Shaw
So it's sort of like his humility, but like his sort of wry sense of humor. Like, I can sort of see him they turn my clerk. He and Justice Stevens are very close, so we got to spend probably more time with him than any other justice apart from our own. And so I can sort of envision him saying that if either of you have any sort of thoughts that, you know, I think it's right. He probably didn't think about legacy much, but things that justice would have wanted to, like, leave. As his parting lesson to the next generation of lawyers and citizens, I Think.
- [87:02]
F
What we said earlier about being comfortable with ambiguity and, and rejecting the search for certainty. And that's also, by the way, reflective of that humanity that he embraced, like, that's who we are. And I think even though he would have rejected the idea of wanting to leave a legacy to me, I think he would have been proud if that's what people remember.
- [87:23]
Alior Larson
And I think he loved. He famously did not love the Supreme Court in Washington and everything, but I think he appreciated that opportunity to do his job. He called the Constitution a pantheon of values. I mean, he was, I think, deeply faithful to the concept of all that the United States could be and would want that to be remembered as well. He said in that Harvard speech, you know, hard cases are, are hard because the Constitution doesn't give a simple rule of decision, but there is a lot of good things in that document. He didn't say that last part, that's my paraphrase, but that there are a lot of good values. And the fact that you have to make hard choices is part of the judge's job, but it doesn't in any way denigrate the idea that, that it is in fact a pantheon of values.
- [88:28]
Kate Shaw
All right, so I think we will leave the Suter conversation there. Before we let you go, though, we have been ending episodes with recommendations, things that we've read we want to share with our listeners and would love to hear. Maybe I'll start with two. And then I would love to hear if you all have things you want to share. So the first is I'm finally listening to Robert Caro's the Power Broker, which I've never read or listened to. And there's a 50 hour audiobook. And so I'm a solid four hours in. But it's amazing. Recently read Bruce Schwartz's Will to Resist what Dartmouth Teaches Harvard About Protecting American Freedom, which is a great piece in Just Security, kind of comparing the canonical Supreme Court Dartmouth College case to, you know, Harvard's being targeted by the federal government right now. A great short piece. And then finally I just wanted to shout out the Suter clerks from the year that I clerked. Aaron mentioned the justice really focusing on picking people. And I do think he did an amazing job picking law clerks. And so Leslie Kendrick, who's now the dean at uva, Bert Huang, who's a law professor at Columbia, whose work I love, Mike Mongan, who is the Solicitor General of California, who's done some incredible arguments we've talked about in recent years, and Micah Smith, who's a district court Judge in Hawaii. All just, like, phenomenal people and lawyers. And so, you know, among the many things he did well, he really could pick them.
- [89:41]
Aaron Delaney
So my recommendations from my vacation I downloaded at the recommendation of several people, including our producer Melody Ray, Julianne Long's palace of Rogue series. I managed to finish all but the last one. My favorites were one through three, and then I'm planking on the number, but the one with Lorcan Saint Leger. Hugely enjoyable. You know, historical romance fiction that I just loved. So, as always, if you have your favorite historical romance or just modern romance fiction to recommend, I always welcome those recommendations.
- [90:18]
Kate Shaw
Allie, what recommendations do you have for our listeners?
- [90:20]
F
Well, I think I've been focused on distraction in my off time, so I recommend the Stanley Tucci in Italy show because you can just watch Stanley Tucci, like, eat pasta across the country and meet these locals, and it just makes you feel okay. All right. Like, humanity is good. And the other thing is we. We listen to a lot of Taylor Swift in my house. I have two teenagers, girls. And there is adults listen, too. I know, I know. I hear you. I hear you. And I doubt Justice Souter was a Taylor Swift fan or knew who she was, but I know there's a lyric that he would have loved, and it's the one about her grandmother where she says, never be so polite. You forget your power. And never wield such power. You forget to be polite.
- [91:05]
Kate Shaw
That's great.
- [91:06]
Alior Larson
I have moved to London, and I've been thinking a lot about the British Empire and how the British Empire has impacted British constitutionalism. And it reminded me, and I've gone back to a terrific book by my former colleague Daniel Immerwahr, which is called how to Hide an Empire. And it's a short history of the greater United States. And it's a fantastic history to sort of showing American expansionism, the history of American empire. And I think it's an important book to read now. I also, I taught immigration law while I was at Northwestern. As we're thinking about our relationship to other countries and the way in which immigration is structured at a macro level, understanding our history of relationship relations with many other countries, some of which were formerly part of the empire, I think is really important. And he's a fantastic writer. He now he writes for the New Yorker, so you may have seen him there. How to Hide an Empire.
- [92:19]
Aaron Delaney
All right, so Alyor Larson and Erin Delaney, we're so sorry for the loss of your beloved justice, and we are so grateful to you for taking the time to join us today.
- [92:28]
F
Thank you.
- [92:32]
Kate Shaw
Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray and me, Kate Shaw Produced and edited by Melody Rowell Michael Goldsmith is our Associate producer. Jordan Thomas is our intern. Audio support from Kyle Seglin and Charlotte Landis Music by Eddie Cooper Production support from Katie Long and Adrienne Hill. Matt de Groote is our head of production and thanks to our digital team, Ben Hess, Joe Matoski and Johanna Case, our production staff is proudly unionized with the Writers Guild of America East. Subscribe to strict scrutiny on YouTube. To catch full episodes, find us@YouTube.com strictscrutinypodcast if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.
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Aaron Delaney
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Kate Shaw
Greenlight Kids the other day mine stopped to think about the ROI on a bag of chips.
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F
Seriously.
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Aaron Delaney
From getting paid for doing chores around.
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Kate Shaw
The house to saving up for concerts. Green lights Teaching my kids how to handle their greenlight.
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