Melissa Murray (2:26)

Mr. Chief justice, please support. It's an old joke, but when a

Kate Shaw (2:33)

man argues against two beautiful ladies like

Melissa Murray (2:35)

this, they're going to have the last word.

Kate Shaw (2:38)

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.

Melissa Murray (3:08)

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

Kate Shaw (3:16)

And I'm Kate Shaw. Melissa is unfortunately away this week, but we have a jam packed episode for you. Anyway. We will start with legal news, including the DOJ's decision to charge the Southern Poverty Law center for, get this, efforts to take down the Ku Klux Klan.

Melissa Murray (3:30)

Not a joke, just a fact. We will also cover the latest and greatest from both America's liquor cabinet, this time focusing on FBI Director Cash Patel and America's thirstiest Circuit. Yep, the fifth Circuit is back on its bullshit, by which I mean bringing down the separation of church and state. We'll briefly recap the cases Supreme Court heard last week, say a quick word about the two opinions the court released. We may also briefly walk through some of the cases the court will hear this week.

Kate Shaw (3:58)

So as Leah said, we have a lot to cover, but also. Is that the first time you've said liquor cabinet?

Sean Oseiwusu (4:03)

Maybe?

Kate Shaw (4:04)

I don't remember hearing it and I love it. Just wanted, just wanted to flag that I support fully.

Melissa Murray (4:09)

Okay.

Kate Shaw (4:09)

So as Leah mentioned, a lot to cover and not we're not going to have time to fully recap all the arguments the court heard last week, but we are definitely going to cover some highlights, including a pretty epic Lisa Blatt Elizabeth Prelog face off about the Rooker Feldman doctrine, which is basically a Leah Lippman bat signal slash fever dream. And at the end of today's show, we're gonna bring you a conversation with my Penn colleague Sean Oseowusu about his fantastic new book Law on Trial. So stay tuned for that.

Melissa Murray (4:35)

I'm hoping that the combination of those two things, the Rooker Feldman bassop and Sean's book, will raise my energy levels because before we started recording I was telling Michael I've been listening to Noah Khan's album all morning and it's very sad girl spring music. And so I'm worried it depress the affect but maybe those two will bring it back up. We'll see.

Kate Shaw (4:57)

I'm actually recording on Friday and I'm going to see Florence and the Machine at Barclays in downtown Brooklyn tonight with my 14 year old. And so I had a very different energy in my ears all morning. So I'm going to try to like send some of that through Al Gore's Internet to your ears. Leah.

Melissa Murray (5:11)

Great. Love it. As we noted. We will start with the legal news and we have some news on tariffs, where the refund system is up and running after the administration's loss in the tariffs case at the Supreme Court. And Donald Trump is, as always, just posting through it. He started off with a rant about the Democrat justices who stick together like glue and never wander from the warped and perverse policies, ideas and cases put before them. He must have missed Justice Kagan and Sotomayor's concurrence in Chiles vs Salazar, the conversion therapy ban case.

Kate Shaw (5:47)

But I guess he's not reading the concurrences that closely. Leah.

Melissa Murray (5:50)

No.

Kate Shaw (5:52)

So you know, he launched this broadside against the Democrat justices sort of en masse, but of course reserves special insult for the only black woman justice on the court, insulting her, as you might expect from him at this point in time, as a quote, low IQ person who has, just to state the obvious, managed to reason circles and laps around his nominees, his liquor cabinet and everyone else. But whatever he then that is Trump in his posting through it shifted to bitching both about the quote, completely ridiculous tariff decision which resulted, he says, in a $159 billion pile of cash refunds to people who've been ripping off our country for years. You know, note that the refunds go to American companies. And you would think Trump, if he really thought it through, would love something that steals from American consumers and gives back to companies and corporations. But I'm not sure he's actually tracking all of it.

Melissa Murray (6:43)

No, he also has some ire reserved for the quote, nasty one sided questions on the country destroying subject of birthright citizenship, apparently hasn't gotten over that. And post closed with how, quote, the radical left Democrats don't need to pack the court since it's already packed. Which if you pause to think about it, is true that it's already packed, just not in the way he's suggesting.

Kate Shaw (7:07)

There is like a kernel of an insider.

Melissa Murray (7:10)

So close.

Kate Shaw (7:10)

Yeah, okay, so that was last week, but now we need to turn to something that we previewed up top, which is that last week we learned that the administration is bringing charges against the Southern Poverty Law Center. So DOJ announced late in the week that it had secured an indictment against the splc, which is a nonprofit civil rights organization founded in the 1970s. SPLC is based in Alabama and is probably best known for monitoring and tracking and litigating against white supremacist organizations. Indeed, their mission is focused on dismantling white supremacy and advancing human rights.

Melissa Murray (7:42)

So obviously that raises a red Flag. Right. White flag. Or the administration.

Kate Shaw (7:47)

Right, Right. So you think about it like this is of course, the group that DOJ targets in exactly the way that it has. And we should say that this organization is far from perf. Its founder resigned amidst allegations of misconduct. There have been reports about toxic workplace culture, but none of that is what DOJ is concerned with. The indictment that they brought arises out of an old SPLC program known as Clan Watch, which, as the name suggests, was aimed at dismantling the Ku Klux Klan, including through a system of informants.

Melissa Murray (8:20)

And it's that system, which is part of a program that no longer exists, that is the basis for the indictment. The indictment accuses the organization of wire fraud because it says the organization's donors supposedly weren't aware of the program. It's totally unclear how that could be true. Even Klan groups issued public statements in Klan publications about Klan Watch, which they obviously hated and wanted to take down. The indictment also accuses the center of making false statements to a federally insured bank when SPLC set up bank accounts with a dummy company to pay its informants. Apparently DOJ might think it's illegal to protect the COVID and identity of informants who were infiltrating and taking down the Klan. That is the actual basis of one of the charges, conspiracy to commit money laundering, which arises out of their efforts to protect their sources in the field.

Kate Shaw (9:12)

Even supporters of the indictment actually seemed to recognize that there is no there there. So which they love. I mean, like, so fascism philosopher in chief slash like bro Curtis Yarvin had this incredibly revealing post on X about the charges. He says, quot what's cool is that I. Sorry, I have to read this. Losing it, he says verbatim. What's cool is that I don't really see a strong legal case that the SPLC shouldn't be able to run these kinds of wacky black ops. That means DOJ is prosecuting the SPLC just because it kind of can. If this would be an unusual sign of finally getting it. So the fact that there is no there there, that these are literally trumped up charges, is for a cause for celebration, which is just like how sick a lot of minds in this timeline are. So Todd Blanch, acting Attorney General in Oppressor, suggested that SPLC was manufacturing extremism. I gather the suggestion is that the Klan wouldn't exist without the SPLC and this network of informants. But regardless of what was said at the podium, the indictment itself completely refutes this claim. It describes how informants stole clan documents and things like that. And I, I guess maybe we should just end by saying, like, in an era of incredible lows for doj, this is among the lowest. DOJ was created in part to help prosecute the Klan. DOJ is now prosecuting entities for acts they took to help take down the clan.

Melissa Murray (10:51)

Yeah, I mean, clan Watch, as we've said, was started to identify and take down the clan, which of course, prompted virulent opposition from, you guessed it, the clan. And that is the fight DOJ is taking up when doj, of course, was partially created and fleshed out to go after the Klan. And for more on this, we'd recommend Chris Geidner's post at Law Dork. It's titled the SPLC Indictment, the Klan History behind it and the Ignominy of Todd Blanche.

Kate Shaw (11:19)

Okay, we should also mention, actually a pretty different piece of news out of doj, and that is that at the end of the week, we got news that this same DOJ had actually indicted a soldier for using classified information to make bets on the prediction market Polymarket. This soldier was actually involved, according to the indictment, in the operation to capture Venezuelan President Nicolas Maduro and then use the information that he got by virtue of being part of that, planning to make bets on polymarket and enrich himself to the tune of $400,000. So scandalous, but not shocking. We all had a very strong sense that lots of administration insiders have been trading on and enriching themselves on inside information of exactly this sort. But what was really striking was that the indictment was brought at. And it was interesting that it was brought in SDNY here in New York, where, as our guest host Ian Bassa noted a few weeks back, there are some signs that prosecutors may be seeing the writing on the wall when it comes to Main justice and, and maybe showing a little spine and independence. So I think it will be really revealing to see if or when, like, the White House and Main justice get involved in potentially even try to override or otherwise interfere with this prosecution. But for the moment at least, it suggests, like, there is a tiny bit of, like, real law enforcement still on inside at least the Southern District of New York.

Leah Lippman (12:41)

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Kate Shaw (16:27)

Now we got to talk more about other actions out of this liquor cabinet. And that includes Cash Patel Suing the Atlantic Magazine. So listeners, this president's, I'll call it, innovative use of existing legal processes, together with his creation of his own shadow legal processes, is actually something that the three of us, so Leah and Melissa and I have written about in a law review article that's forthcoming in the Northwestern University Law Review. We will get that draft posted online sometime soon, but for now we will just sort of tease some of its contents by noting that the President's underlings seem to be taking a page from his book in responding to reporting that paints them in an unfavorable favorable light by filing lawsuits seeking just preposterous sums of money. So in this case, FBI Director Cash Patel has filed a 250 million dollar lawsuit against the Atlantic for a piece describing drinking and other behavior that would be concerning for any government official, but in particular for someone in charge of an agency as large and powerful and national security essential as the FBI.

Melissa Murray (17:28)

Tidbits from the Atlantic reporting include nine people describing an incident when Patel couldn't get into his government email and started to freak out about the fact that the White House may have fired him when really he just messed up his password or something. Notably, his lawsuit makes a different claim about this supposed incident than Patel himself has made from the podium, including last week. So the lawsuit says, yes, Patel could not get into his email, but it was an it thing, not a blotto moment. Whereas on the podium Patel said this

Sean Oseiwusu (18:02)

I was never locked out of my system.

Melissa Murray (18:04)

Anybody who says it says the opposite. Your lawsuit.

Sean Oseiwusu (18:07)

Anyone that says the opposite is lying. Thank you.

Kate Shaw (18:10)

That you filed.

Leah Lippman (18:11)

Says that directly.

Sean Oseiwusu (18:12)

Stop.

Melissa Murray (18:13)

You're being extraordinarily rude. At the end of that clip was, yes, Todd Blanche calling the press extraordinarily rude. And sir, if you think that's rude, maybe this podcast should come with a

Kate Shaw (18:24)

trigger warning like today and in general. Right? So the Atlantic article, just in case you missed it, also describes what it sort of delicately refers to as conspicuous inebriat, including at a Vegas establishment, less delicately titled the Poodle Club, also describes a request by Patel's security detail for breaching equipment, I gather, so they could break down doors if needed to get him up since they had had so much trouble doing that because he was so fast asleep after nights at places like the Poodle Club. Anyway, read the article if you haven't. If it is as well sourced as it sounds like it is, Patel's typo laden lawsuit, the complaint has like a bunch of embarrassing errors. That suit will get tossed. But the point of this kind of litigation, this is something that we talk about in the article, is to scare the press off of critical reporting of just this sort and we cannot let it work. And in a related vein, the Times has now reported that the FBI supposedly investigated a New York Times reporter after she wrote an article describing how the federal government was using government resources to shepherd around Patel girlfriend.

Melissa Murray (19:35)

Next up in news, there was a lot going on on the orders list from the Supreme Court that they issued last Monday. So there was a huge grant of certiorari in yet another case involving religious objections to LGBT equality. This case won't be heard until next term, but we wanted to put it on your radar. The case, St. Mary Parish vs Roy, involves Colorado's universal Preschool program under which the state of Colorado offers free preschool to all people under 4. The program includes public and private private providers, including faith based providers, but all providers have to give children an equal opportunity to enroll regardless of the children or family's religious affiliation, race, sexual orientation, gender identity, housing status and other traits. And because this is a year starting in 20 and because Colorado is once again trying to do non discrimination law to ensure equality and dignity within its

Kate Shaw (20:28)

borders, there are some objections, always with the objections, this time from the petitioner who's a Catholic preschool that wants to keep receiving public funds while also turning away kids based on their parents gender identity or sexual orientation. The school loss below and their petition which the court has now granted and as Leah mentioned will be heard next term, makes all kinds of claims about the many other exemptions that Colorado provides. The Colorado brief says that's just not accurate. And this kind of heated dispute at the sort of search stage about the basic facts of the case really calls to mind a number of other recent cases on related topics where the facts were also really contested in ways that that is just, you know, they just haven't historically been when it comes to cases that make it to the Supreme Court. So I'm thinking in particular about the wedding website designer or would be designer in three or three creative and also the praying coach in Kennedy versus Bremerton. So the question of what the policy actually does, how it works is actually the first question on which the court granted cert. And it also granted a second question about whether the program violated the First Amendment. But it did not grant a third question about whether Employment Division vs. Smith should be overruled. That's the case. It says you can't get an exception from a neutral and generally applicable law just because you have religious objections to or are burdened by the law. So for now, Smith may live at least in name to fight another day. Maybe because it was written by the great man himself. Yes, Antonin Scalia, a fact that does seem to influence the court to this day.

Melissa Murray (21:52)

That orders list also contained an odd per curium order in a case D.C. versus R.W. where the Supreme Court appeared to just disagree with a D.C. court's resolution of a Fourth Amendment reasonableness question. The per curiam order walk through the reasons the D.C. court of Appeals gave for concluding that a stop was not reasonable and basically just decides we disagree that court was mistaken. This really felt like what the clerks used to call and I suspect still call an instance of fact bound error correction, which is usually a way of saying a case is not a good candidate for a grant of certiorari. But here, for reasons the court felt differently. Justice Jackson solo dissent said, quote, if the court's decision to intervene reflects disapproval of the DCCA's assessment of which particular facts to weigh and to what extent, I cannot fathom why that kind of fact bound determination warranted correction by this court. End quote. Girl same Justice Sotomayor also would have denied the petition but did not join. Justice Jackson okay, let's move on to

Kate Shaw (22:57)

some news from the lower courts. First up, any guesses as to which federal appeals court says Ten Commandments displays in classrooms are a. Okay,

Melissa Murray (23:07)

let me think. The D.C. circuit. That's a joke.

Kate Shaw (23:11)

The no, the fifth. Of course it was the fifth. Eighth would have been, you know, I would have, I wouldn't have accepted it as an alternative. Correct answer, but it would have been plausible. But no, fifth it is. And if that's what you guessed, listeners, we're glad you're paying attention. So the fifth Circuit by a nine to eight vote. So that's an on bank. Fifth Circuit upheld a Texas law that requires Texas classrooms to display the Ten Commandments in conspicuous locations with large type face in each classroom. The opinion by Stanford stormtrooper Stuart Kyle Duncan basically says the establishment clause only forbids actual state religions. And it also says that everyone knows the free exercise clause, like the other religion clause of the First Amendment forbids, quote, oppressive curriculum like story books celebrating diversity and inclusiveness, but not massive scripture on display in all classrooms at all times. Times. Yeah, I mean the TLD Dr. Is that story books with LGBT characters or themes are mean, like really mean, but reciting sections of the Bible is just reciting the good word. There isn't even any effort to make any kind of principal distinction between the two, as far as I can tell. Judge Ho concurs to say our founders didn't just permit religion in education, they presumed that there would be religion in education. And this case is, I think, pretty clearly headed straight to scope.

Melissa Murray (24:32)

Notice, I've got some additional things to say about this opinion just to underscore how ludicrous it is. I mean, this is out there even for the 5th Circuit. So the 5th Circuit did something kind of wild with how history and tradition works in the Second Amendment in ways that just seem totally gerrymandered to reach the Court's preferred outcome. So in the Second Amendment, the Supreme Court has said that in order to uphold a law, the government has to show that a modern day firearm regulation is similar to a historical firearm regulation. Here the fifth Circuit says that in order to strike down a law, plaintiffs who are challenging a law have to show the law is similar to a prior law that was treated as unconstitutional. So it puts the burden in a different place because gun control bad and religion and public office good. Just no effort to explain how these things all make sense. It also, I think, adopts a pretty different take on religious motives from what the Supreme Court has done in the religious exemption cases. So the fifth Circuit seems to rest on something like a claim that when the government mandates posting scripture, who is to say whether the government's motives might be religious? And in any case, why do their motives even matter? But when individuals seek exemptions from civil rights laws like those individuals say I don't want to comply with non Discrimination protections protecting the LGBT community because it's opposed to my religious views. Those individuals can just declare their conduct to be religious in nature and that motive has constitutional significance and transforms their actions into religious practices. The opinion is full of wild quotes. This one just to give you a flavor said quote, what the founding generation understood as an establishment of religion is a legal question to be decided by a court, not a fact question to be decided by experts. Experts, no matter how credentialed. To be sure, courts must make a determined effort to grasp the relevant history. They do so by consulting articles, books, and historical sources and bringing their own independent judgment to bear on them, not by appointing an expert whose findings might be insulated by review on appeal. I mean, basically they are just saying judges hot takes. Those are the laws, not actual history, no history, just vibes. This is straight up vibe maxing.

Kate Shaw (27:05)

It is also just like it's a totally different topic, but it somehow also just feels like the major questions doctrine to me, which is just like literally sort of a founding credo of this podcast. No law, just vibes. And like here they are now just copying to it where for a while they were making it a little bit hard to pin them down. You had to sort of like pull threads together. No longer. No, they're disowning it. Okay, so that's from the opinion itself. But Leah, you have some theories that I feel like. Let's share with our listeners.

Melissa Murray (27:35)

Okay, so put on your tinfoil hats and hear me out. Okay, so this Texas Ten Commandments case was consolidated with another case challenging a similar Louisiana law. And the cases were argued together back in January. You can hear the oral argument announcement for both of the cases, which were again were consolidating.

Sean Oseiwusu (27:54)

Here this afternoon, we have two cases

Melissa Murray (27:57)

consolidated for purposes of oral argument only. Case number 2024 30706, Darcy Roque et al. Versus K. Brumley et al. And case number 2550695, Mara Nathan et al. Versus the Alamo Heights Independent School District at all. Now, the Louisiana case was released in February and that case was decided on different grounds, ripeness grounds. So the court said it couldn't actually resolve whether the law was constitutional at this point in the litigation because it wasn't clear how the law would be applied. That case, also decided by an en banc court that is full court, was actually decided by a different group of judges. So in addition to the active Judges on the 5th Circuit, the en banc court in the Louisiana case included a senior judge, Judge Dennis, who had participated in the panel decision on that Louisiana case and he dissented from the fifth Circuit's decision dismissing the challenge to the Louisiana law. Now, with Judge Dennis on the court, it was an 18 judge court. The Texas case, as you noted up top, that was just released. It was released after Judge Dennis took inactive status. It was therefore decided by 17 judges and it split nine to eight. So had Judge Dennis participated, it could have been an affirmance by an equally divided court which has the effect of leaving in place case the panel opinion, the three judge decision striking down the Texas law. Now, it's not clear Judge Dennis would have, could have or should have participated in the Texas case had he still been senior rather than being inactive. He was, after all, on the panel in the Louisiana case, not the Texas one. And by convention, senior judges participate in en banc full court proceedings when they were on the panel, but not otherwise. On the other hand, these cases had been consolidated for oral arguments argument. Now, it's possible this distinction between being consolidated for purposes of oral argument versus a decision is what the chief judge was alluding to when she announced in the announcement of the cases that they were consolidated only for purposes of argument. But still, you know, I have to wonder, did they delay releasing this case until he took inactive status?

Kate Shaw (30:12)

So I had tracked none of this. It seems very plausible to me. And honestly, this kind of analysis is why people structure their Mondays around new episodes. Leah. So. So that very much seems plausible to me. All right. Another piece of very different state court news. Since we got a lot of bad news in already. We did get a sort of glimmer of good news out of Pennsylvania last week where the state's Commonwealth Court ruled that a ban on public funding for abortion violated the state constitution's Equal Rights amendment. Terrific opinion. It could still go to the state Supreme Court. But huge and really important ruling in a lawsuit that's been ongoing for quite some time. So congrats to everybody who worked very, very hard on that case.

Melissa Murray (30:48)

In other happy news, happy but potentially for the courts wanted to cover right. But courts developments in redistricting in Virginia. So the voters of Virginia approved a redistricting plan that would gerrymander the state's congressional districts in ways that advantage the Democratic Party and create more seats advantageous for the Democratic Party in order to counterbalance the partisan gerrymandering war launched by Texas and the president to to retain control of the House in the Republican Party's hands. Republicans are of course apoplectic about Virginia, insisting that obviously this gerrymander is unfair and illegal to which we have this to say Democrats.

Kate Shaw (31:27)

Wow.

Leah Lippman (31:27)

Wow.

Kate Shaw (31:29)

And yes, that was AOC responding to Republican complaints about this gerrymander and Democratic gerrymanders in general. And while this, the Virginia referendum was a response to the Texas gerrymander, it is really important to know note the way these new maps have come about. So in California and Virginia, voters were the ones asked to decide about whether to implement new maps. By contrast, it was the already gerrymandered Texas state legislature that rammed through their gerrymander. So even if you're interested in posturing about the undemocratic quality of these gerrymanders, you cannot be taken seriously if you don't at least acknowledge that it was a democratic process in the two states that resulted in these Democrats Democratic advantaging

Melissa Murray (32:11)

maps, not a democratic process if Republicans lose.

Kate Shaw (32:15)

Kate Right. Thank you for the reminder. I keep forgetting and you know, that's on me.

Melissa Murray (32:21)

So as you know, Kate and I said but courts and after this Virginia referendum passed, of course, a Republican appointed judge purported to invalidate the voter passed gerrymander in Virginia and throw out all the votes. Now the state's attorney general is appealing that ruling and indeed the Virginia Supreme Court will hear oral arguments argument in this case about whether to throw out the referendum today, the day this episode comes out.

Kate Shaw (32:48)

All right, final piece of news before we get to SCOTUS recaps.

Melissa Murray (32:52)

We had a liquor cabinet, more liquor cabinet news. That's the phrase that.

Kate Shaw (32:57)

Okay, sorry, you're right. Another piece of news. Another another bottle of pulled off the shelf of the liquor cabinet, which is that another cabinet secretary to really mix metaphors bit the dust last week. So yes, Labor Secretary Lori Chavez Durant resigned amidst the ethics scandals and investigations that we talked about last week kind of swirling around her. I have zero sympathy for her, but I have to say I don't love that of all of the awful people in this liquor cabinet, it is so far only the awful women actually being given the boot. So you know, I guess justice for the remaining bottles on the shelf now do them.

Melissa Murray (33:36)

Yes,

Leah Lippman (33:41)

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Incredible.

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Melissa Murray (37:42)

We'll turn now to recapping the oral arguments the Supreme Court heard last week. They heard a few Two of them were in Sripetch versus SEC and FCC versus AT&T. Both are about the respective agencies authority to seek particular remedies. So Sripech v. SEC is about whether the sec, the securities and Exchange Commission Commission, can seek what's called disgorgement, that is Return of a company's profits without showing that a company's investors suffered economic harm. And the FCC versus AT&T case is about whether the FCC can, within the agency, make some sort of determination that a company is in violation of federal law in ways that would warrant civil penalties, or whether instead it has to do that in a federal court and with a jury. In the Sripetch case concerning the sec, the justices seemed interested in whether disgorgement was still an equitable remedy under the statute and whether these limits that the petitioner's freepetch was seeking on disgorgement would make disgorgement duplicative with compensatory damages as a remedy. Based on the argument, it sounded to me like the Democratic appointees probably. Also, Justices Thomas and Barrett were skeptical of the no disgorgement argument. The federal government received substantially fewer questions. So my guess is the court will say the SEC can seek disgorgement without showing economic harm to investigators.

Kate Shaw (39:01)

And then FCC versus at T is the case about the FCC's ability to conduct an adjudication within the agency about whether a company is in violation of the law in ways that would carry fines or penalties. The government is asking the court to construe the statute to mean that FCC determinations about liability don't obligate the party found to be in violation of the law to actually pay the amount of the fines. Instead, the FCC says the liability finding isn't final until it is enforced in federal court. You know, either by the federal government seeking to enforce it or when a company files a declaratory judgment, that the liability finding doesn't carry a fine. There too, the court can provide de novo review. AT T says this would still put companies in a difficult position, kind of like an unconstitutional condition on their right to a jury trial by asking them to forego a pellet review of the order in favor of district court litigation. There is some dispute about the extent of deference courts owe the agency, determinations, perhaps about the facts, and also whether any delay between the agency adjudication and a federal court case might harm the company somehow here.

Melissa Murray (40:02)

And this might be a theme of last week, it seems like the federal government, I mean, it doesn't seem like they've definitely changed their position throughout the litigation from saying that the company had to pay now to saying the company didn't have to pay until there was an enforcement order, a proceeding in federal court. So there's some question about whether or how that will affect the resolution of this case and a question about what that might mean about the 7th Amendment in future cases. Cases. It's just kind of a mess. And now my energy booster, TM versus University of Maryland Medical Systems Corporation, the Rooker Feldman case.

Kate Shaw (40:39)

I mean, this is if you have to suffer through an on Bank Texas 10 Commandments case like what you get on the same week I listened to

Melissa Murray (40:46)

it, the same day as I read that fifth circuit opinion, and the same day my poor doggy had to have dental surgery. Oh, poor thing. Oh, she's still out of it. I feel so bad for her. But anyways, I was listening to this.

Kate Shaw (41:00)

This was a pick me up. This is what you needed.

Melissa Murray (41:02)

Power through.

Kate Shaw (41:03)

Yeah.

Melissa Murray (41:04)

Okay. So this is a super fascinating case, and it was a super fascinating argument about a doctrine known as Rooker Feldman. That is the doctrine that says federal courts do not have what's called appellate jurisdiction, the jurisdiction to review on appeal, certain state court judgments such that the federal courts have to dismiss and effort to bring a case to them that invites appellate review of a state court decision. As we noted last episode, the Supreme Court does not like Rooker Feldman. The doctrine is a mess. And the last Rooker Feldman decision, the Supreme Court had attempted to curb how lower federal courts were relying on the doctrine. So in a lot of ways, this case pits the Supreme Court's antipathy for Rooker Feldman and the desire to limit federal court's invocation of Rooker Feldman against what seems like a somewhat arbitrary limitation on the doctrine. So the petitioner in this case is arguing that Rooker Feldman applies only where the state court decision that a party is seeking review of is a decision from the state's highest court, and that the doctrine doesn't prohibit federal courts from entertaining collateral attacks to state court decisions from state trial or intermediate appellate courts. You know, that's a clear enough line, but the question is, like, why would that be the line? Why allow federal court review of intermediate state court decisions or state trial court decisions, but not state supreme court decisions? Now, there are potential answers to that question, but it did seem like that was really what some of the justices were struggling with.

Kate Shaw (42:31)

Yeah. And sort of. Even if Rooker Feldman doesn't require federal courts to dismiss collateral attacks on state court judgments, there are other doctrines that might prohibit federal courts from reaching the merits, like abstention doctrines that require federal courts to pause their proceedings for ongoing state proceedings or claim preclusion, which doesn't allow parties to, like, endlessly litigate issues or claims resolved by prior judgment. This sort of range of other tools is something that Elizabeth Prelogger, who is back before the court, and it was glorious. I didn't honestly realize how much I missed her until she returned. But that's something that she repeatedly emphasized. And, you know, in part because, as Leah was just describing the case, kind of asked the court to adopt a limitation on Rooker Feldman, and maybe like, a counterintuitive one, there were questions about whether the court should just do the damn thing and overrule Rooker rather than trying to gerrymander, like a somewhat puzzling limitation on it. And when asked whether just the question is the case encompassed whether the court should overrule Rooker, Prelogger said, basically, I mean, you did it in DOS and Citizens United, which, like, it's hard to argue with. Yeah, I know you sort of felt a tiny bit of the DOS pain. Like, it's just a. She's so poised always. But she did live through that. And you heard a tiny bit of it, I think, in her answer. It turns out, guys, you can actually overrule. I know it was.

Melissa Murray (43:50)

Was a way of just kind of like. I don't know. I felt shame. I felt shame on behalf of the court. I felt shame on behalf of the country. Just like having to kind of invoke that case, just. But this is our timeline. So when asked about whether the court could. Should Overrule Rooker. In this case, the advocate on the other side, Lisa Blatt, had had this to say.

Kate Shaw (44:17)

So you don't even have any state in front of you here to. So, no, you're not going to overrule Rooker. I mean, I'm sorry, I don't think you're going to do that, Not in an April case. Not happening.

Melissa Murray (44:37)

Don't.

Kate Shaw (44:37)

Don't dare. My colleagues. Okay, I'm sorry. A little too much. I'm all yours.

Melissa Murray (44:46)

You know, Lisa's gonna. Lisa and I, even for her, that was pretty epic.

Kate Shaw (44:53)

What was the. A little too much like my answer. Me like.

Melissa Murray (44:57)

Exactly. Exactly.

Kate Shaw (44:58)

I was so curious what she meant in reference with a little too much.

Melissa Murray (45:04)

There was a weird moment in the audio during the argument, which, again, I was listening to as a coping mechanism. And so I noticed that I wanted to play for our listeners one more question.

Kate Shaw (45:17)

As I read the question presented here, it does not enable us to look at overruling worker Felman.

Melissa Murray (45:24)

There's an audible sigh as I read the. And I just want to know who the sigh came from because, you know, Justice Jackson was speaking. She sits by Justice Kavanaugh. But it didn't sound like Justice Kavanaugh Thomas to me. Nasally phlegmy breathing.

Kate Shaw (45:40)

Right.

Melissa Murray (45:41)

Exactly.

Leah Lippman (45:41)

So.

Melissa Murray (45:42)

So maybe it was Justice Thomas. And for whatever reason, I also wanted to invite listeners to compare that sigh with the sounds of a member of the liquor cabinet, you know, Secretary bear carcass, whale juice, raccoon penis breathing during his Senate testimony. So we'll play that clip here.

Kate Shaw (46:01)

Done. Among the many that you described in your testimony, in that context, in your testimony, you identified nutrition as a bedrock of health and one of the primary levers for treating and preventing chronic disease.

Melissa Murray (46:18)

And I'm just sorry I did that to your ear holes listeners, but, I

Kate Shaw (46:22)

mean, I guess I'm glad nobody did that while Justice Jackson was talking. Right?

Melissa Murray (46:26)

Yeah. Small, small blessings.

Kate Shaw (46:27)

I guess so. So let's briefly touch on the other cases the court heard last week. It heard the important immigration and entry case, Blanch vs. LA, which is about whether and under what circumstances immigration officers can parole lawful permanent residents into the country, rather than just admitting them. Lawful permanent residents, or green card holders, are people who have already cleared the most demanding standards in immigration law, save for becoming a citizen. And federal law says that green card holders can only be excluded if one of six circumstances is true. That includes if they committed certain crimes. So the question here is when and how the determination that they've committed those crimes gets made so the federal government,

Melissa Murray (47:07)

it turns out here too has just said a bunch of things in this case and my might be still saying a bunch of different things, but they seem to be taking the position that officers at the border can basically say I'm not sure that this LPR has established that they can't be excluded, so I'm paroling them rather than admitting them. And then whether they are in fact excludable or inadmissible will be determined at some point later by an immigration judge in more formal proceedings. But in the interim they will have this uncertain legal status where maybe they can't work and they don't have their green card which the guy government is apparently taking away from them. You know, when it makes this parole decision. Mr. Lau by contrast says no. If an immigration officer at the border will not admit an lpr, the officer needs to establish by clear and convincing evidence that one of the exceptions to admission applies. Mr. Lau argued that it doesn't make sense to structure a subsequent immigration proceeding around whether the initial immigration officer had clear and convincing evidence that the legal permanent resident was excludable, but based on evidence that might have arisen since that determination was made, but asking about it at the time of the determination. So having listened to this I thought that the federal government got more questions than did the lawyer for the respondent, which is encouraging. And the respondents lawyer did a good job suggesting that the federal government's position in this case has been all over the map, vacillating between this case being about when the determination gets made, made to what standard governs the determination such that maybe the Supreme Court should dig, you know, dismiss the case as improvidently granted and not decide it. Made me wonder if the President's approach to Iran is infiltrating the DoJ's approach to all of its cases. Just totally all over the map and conflicting things.

Kate Shaw (48:48)

I think that's an accurate characterization of this administration writ large. So yeah, that tracks okay. But back to the argument the federal government kind of ominously suggested among the sort of many arguments that it was making that Lee was just mentioning and Barrett actually kind of picked up on this idea that if the federal government can't parole lawful permanent residents into this country, then maybe they could just detain them and begin removal proceedings. Fortunately the Democratic appointees were all over this case, coming at it just from a bunch of different angles. KBJ focused on the real burdens imposed on LPRs who are paroled. Kagan on the kind of conceptual oddity of Saying this later determination is about whether the determination made sense at an earlier point in time, but based on subsequent evidence. And so tomorrow was really locked in on where the government got this authority to. To put lawful permanent residents in a liminal state.

Melissa Murray (49:36)

And Justice Sotomayor's efforts to question the government's lawyer generated what was for me maybe one of the most cringeworthy exchanges, which is saying a lot given how much right wingers blatantly disrespect Justices Sotomayor and Jackson in particular. You know, no points for wondering why that might be. So just brace yourselves for this exchange.

Kate Shaw (49:57)

I'm not.

Melissa Murray (49:58)

At the moment he made the decision.

Kate Shaw (50:00)

Decision. At the moment he made the decision the border. Did he have enough proof the border officer. Did he have enough proof at that moment? Forget whom for him?

Melissa Murray (50:10)

Yes, the border officer had enough proof for himself.

Leah Lippman (50:13)

To do what?

Kate Shaw (50:14)

Parole him or to exclude him?

Melissa Murray (50:18)

I. I'm not sure what you mean by exclude.

Kate Shaw (50:20)

With all. He could have just said, you're not admissible. Bye. Yes, but then that would.

Leah Lippman (50:24)

And not parole him.

Kate Shaw (50:25)

That would require initiating removal proceedings.

Leah Lippman (50:28)

And as I said earlier.

Kate Shaw (50:29)

And so at that moment. Moment, if there was an IJ there sitting there, he could not have won that removal, Correct? Probably not. Because we have a clear and consisting burden.

Sean Oseiwusu (50:41)

Sorry, maybe would you like to finish that answer?

Kate Shaw (50:43)

Thank you.

Melissa Murray (50:45)

Just wanted to crawl under my desk and.

Kate Shaw (50:51)

Oof.

Melissa Murray (50:52)

There was one other moment that I'm not gonna play a clip of, but reminded me of your colleague Sean's book that we talk about later in the episode. And that was when Justice Jackson asked the lawyer for the federal government about the risk that the government might exercise this option to parole lawful permanent residents, even if the officer might not think the lawful permanent resident is actually excludable or inadmissible, and that they'd parole basically to make the life of the LPR difficult and see whether they would self deport. To which the lawyer for the federal government said almost with some irritation, that the question had even been asked. We don't and can't and shouldn't presume back bad faith of the entire executive branch, which. Okay, like sounds fine enough in the abstract, except we know this is a thing that has happened, you know. Rumesa Oz Turk was one of the people detained in the administration's mass censorship and terror campaign directed at the people who criticized the United States and Israel's actions in Gaza. And she chose to self deport because of what she described as vicious harassment targeting her and abusing. And she had asthma attacks and detention and whatnot.

Kate Shaw (51:57)

And can I can I just say this is a point that you've made before, Lee, and I think it's really wise. Often the, like, the meanest and most disrespectful thing you can do is just kind of accurately and dispassionately describe the conduct of this administration. And the sort of umbrage taken at this kind of suggestion, I think sort of called to mind for me that observation.

Melissa Murray (52:14)

Yeah. And really like, what a week to talk about Shawn's fabulous book Law and Trial, which is about, as we'll get to how the legal profession cements inequality and higher hierarchy. Because also this past week we got news that the Tennessee attorney general effectively blocked the upcoming trial in the case that was brought by women who were harmed by the state's abortion ban and who were set to testify about the ways in which the abortion ban harmed them. This case was similar to the one out of Texas where women did testify and some became physically ill, you know, describing what the abortion bans had put them through. This was also a week in which there was just a remarkable effort to sanewash the shadow docket actions that had been described by the New York Times last weekend, the Supreme Court's actions in the Clean Power Plan case with just legalisms and whataboutisms that really when you kind of boil down and drill down, they just undersell or obfuscate what a big deal it was. Sure, maybe there's some formalistic distinction here, there or that, but come on, get real real.

Kate Shaw (53:15)

It just felt there was just such an effort, I think, to, to both kind of minimize the reporting, excuse the conduct on display. And I mean, I think that we'll say this probably in our favorite things, but just God bless Steve Laudic for sort of single handedly being out there, kind of like, I will talk more about that, responding to all of those efforts. So. Okay, let us now turn to the arguments that the court will hear this coming week. And there are some big arguments. I think we're just going to mostly cover a pair of cases the court will hear on Wednesday, which is the last day of the court's regular session for this. And that's a pair of cases, Mullen vs Doe and Trump vs PIAT, about TPS, or Temporary Protected Status. TPS, as we have discussed before, is an executive branch designation that entails a determination that conditions in a particular country are so dangerous, think war or natural disaster, that it is unsafe for individuals to be sent there. TPS gives individuals from affected countries protection from deportation and the ability to work and travel while they are here. But it is not in itself a pathway to permanent status. Both Haiti and Syria, as well as a number of other countries are under a TPS designation. So back in September, speaking of, you know, the liquor Cabinet, then DHS Secretary Nome announced that the administration was ending the TPS designation for Syria. And then in December she made the same announcement for Haiti. The TPS recipients filed suit challenging those decisions to end tps. As to the Haiti decision, Judge Anna Reyes in the District of Columbia, the District Court in D.C. found the administration action was likely on the unlawful, both because the decision appeared predicated on hostility to non white immigrants and because it did not satisfy the reason decision making requirement of the Administrative Procedure act or apa. The opinion quotes at length from some truly vile statements by administration officials, including referring to immigrants as killers, leeches or entitlement junkies. The opinion also notes quite pointedly that the plaintiffs in the case include a neuroscientist researching Alzheimer's disease, a software engineer at a national bank, and other individuals, just far more accomplished, sort of to the person than anyone in Trump's liquor cabinet. A group of plaintiffs also challenged the Syria TPS cancellation. In that case, the government produced the administrative record and it contains a one sentence email consultation between DHS and the State Department regarding country conditions in Syria.

Melissa Murray (55:34)

At least it was an email, not a signal chat.

Kate Shaw (55:36)

At least I guess again sort of more kind of small blessings. But the lower court in house the that case, you know, in part because of the thinness of the consultation, preliminarily blocked the cancellation, which it determined would irreparably harm the plaintiffs. Like the plaintiffs in the Haiti case, highly qualified doctors, journalists, students, teachers, researchers, business owners, caretakers and others who have been thoroughly vetted as part of this TPS process and who would be in real danger of being killed if forced to return to Syria.

Melissa Murray (56:04)

These cases are emergency applications. That is how the kind of posture arose and the Supreme Court granted what's called cert before judgment, hearing the case before a judgment in the Court of Appeals and set the cases for oral argument. So all that is before the court technically is whether the lower court's preliminary grants of relief should be stayed. There isn't even a written lower court opinion in the Syria case. The federal government argues both that the Secretary has unreviewable discretion to make these determinations and that the judicial decisions below were wrong. It also seems to kind of suggest that the Supreme Court's earlier orders staying lower court rulings in cases involving the termination of the Venezuela TPS designation control here. Or at least that the lower courts were wrong and not putting more stock in their non existent reasoning. A couple things to note about posture and just these cases. First, the federal government's position that courts lack jurisdiction to reduce review these determinations would render these TPS decisions, which affect more than a million people, unreviewable. It would make the Temporary Protected Status statute, which contains specific criteria the government is supposed to find, satisfied, effectively advisory. And it would allow what advocates say would be the largest de documentation in modern United States history. Now maybe there is a potentially good sign in that the Supreme Court did not just grant the stays the federal government asked for, as it had in the case of Venezuela Venezuela's TPS cancellation. In a New York Times column I think last week, or maybe the week before, Linda Greenhouse read that move as a strong signal that the Supreme Court plans to rule against the administration in these cases. I am less sure. I think it could be attributable to the persistent criticism of folks like our friend Steve Vladic who have kept the spotlight and the pressure on the justices and kind of shame them into not consigning hundreds of thousands of individuals living and working and contributing here to an uncertain fate via unreasoned orders. But that doesn't mean they are. They won't ultimately get to that conclusion.

Kate Shaw (58:09)

Yeah, I very much hope Linda is right and she is not like just a starry eyed optimist. And so like I do put a lot of stock in that, but I just don't have the kind of confidence in that prediction that was on display in her column. But I do think that the administration's conduct was outrageous. If the court takes at all seriously its decisions in the census citizenship case and the DACA rescission case in which it ruled against the first Trump administration's completely unreasoned and pretextual moves in other domains. These cases should be no brainers. But you know, that was a different court and I'm just less confident that the court is going to kind of extend the reasoning of those cases, which is what Linda thinks should happen. And that's right, it should. But I don't know that it will. But anyway, it's going to be an important argument to watch. And the court will also hear arguments in an important preemption case involving the pesticide roundup, in a patent case, in a case about the Torture Victim Protection act, an alien Tort statute, and then finally in an important Fourth Amendment amendment case, Chatri vs United States, about What are called geofence warrants. And if that is not a term that you are familiar with, same. I gather it's a relatively novel kind of warrant and it raises questions under the Fourth Amendment. So Fourth Amendment stands. That will be an interesting argument and we will bring you a recap after the case is argued next week.

Melissa Murray (59:25)

So we will briefly cover the opinions that the Supreme Court issued last week. First up is Henley versus Floor Corporation Corporation. This was the torts case that was brought by people who were injured by a suicide bomber attack at a US Base in Afghanistan. It was perpetrated by someone who was hired by the military contractor Flora Corporation. And the question in the case was whether injured individuals or their estates can sue the military contractor who hired the individual or whether the state law tort suit is foreclosed by some federal law, maybe a federal statute, maybe the Constitution, maybe the federal law that shall not speak its name. That would be federal common law. Federal common law refers to the body of federal law that is fashioned and made by judges. It doesn't derive from statutes or the Constitution.

Kate Shaw (60:13)

So there's a famous Scalia opinion, Boyle vs United Technologies, that said that federal common law barred a state tort suit filed against a military contractor that alleged the military contractor's design of an item was defective, even though the design accords with the terms of the federal contract contract. Now, federal common law is not super popular among the legal formalist Republican appointee crowds, but twist, the great man himself wrote the opinion in Boyle, which creates some cross pressure. And this tension might have produced the opinion that we got in Hensley, which was authored by Thomas, joined by Gorsuch and Barrett, relies on Boyle to say the state tort suit isn't barred. But the Thomas opinion doesn't actually utter the phrase federal common law. And as if they want to basically say we're relying on Justice Scalia, but not on federal common law. Another way to think of it is just literally the man himself is the brooding omnipresence in the sky.

Melissa Murray (61:11)

That's what great men do. So the dissent in this case was somewhat surprisingly authored by Justice Alito and joined by the Chief justice and Justice Kavanaugh. I was a little shocked that Justice Kavanaugh didn't write something. This was the case in which he basically had a melty at the oral argument and was told by Justice Gorset, no less, to take a chill pill and, you know, take it down from like an 11 to a 2. And I did want to flag a line from the dissent by Alito as This case, as we, you know, have talked about previously, could have implications for state litigation, including state criminal litigation against federal officers. So Justice Alito cites a previous Supreme Court case involving the prosecution of a federal marshal and says the case stands for the proposition that, quote, states can cannot prosecute federal agents for their official acts, end quote. That is a remarkably broad and unnecessary reading of that decision, but perhaps an important sign about where at least three justices are on some matters that might make their way to them.

Kate Shaw (62:12)

Yeah, definitely concerning. And finally, in Enbridge versus Nestle, we got a unanimous opinion in a case involving a statute that says that parties who are sued in Federal Court have 30 days to try to remove that is like to move the litigation from state to federal court. And here a party sued by the state of Michigan waited a lot longer than 30 days to try to remove. It was something like over two years, but then argued that the statute that sets forth the 30 day requirement was subject to equitable tolling, meaning that the court has discretion to pause or extend or that 30 day period or, you know, forgive a delay. And there the court, as I said in a 9. 0 opinion authored by Justice Sotomayor, rejected that argument and held the case was removed way too late and thus had to stay in Michigan state court.

Melissa Murray (62:55)

So before we get to our interview with Kate's colleague Sean about his book Law on Trial, some housekeeping. So we are very excited to announce something big to our beloved members of the crooked media extended universe. So last year, the first ever Crooked Con blew our expectations out of the water. It was super fun. It was just an amazing energizing event. And this year we will be coming out of the midterms and heading into a presidential election where the stakes will be total. So we realized there has to be a bigger Crooked Con. So join us for that bigger and yes, we're saying it even better. Crooked con. This November 5th to 7th in Washington, D.C. we're talking bigger stages, more panels, more ways to plug in where you're needed most, and more opportunities to connect with people who believe a better America is, is worth fighting for. In the days following the midterm elections, we're going to have a lot to learn and even more to do to prepare us for the two years ahead. And we will need all hands on deck. So head to crookedcon.com and sign up for all the updates to come like ticket release dates, lineup announcements, and more. We're going to be there and so should you.

Kate Shaw (64:06)

Okay, so that is going to be in November and we are all super excited about that. But you don't have to wait until November if you want to see us live because you can catch trick scrutiny live at the historic gramercy theater on June 20 as part of the Bad Decisions Tour. We will be there. We'll have some great guests. There is going to be a lot of legal news to cover because in late June there always is. We'd love to see you in person. Tickets are on sale now, so grab them@crooked.com events. And now stay tuned for our conversation with my wonderful colleague Sean Ose Wusu about his terrific new book, Law on Trial.

Leah Lippman (64:41)

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Kate Shaw (67:52)

Foreign. We are delighted to be joined for this segment by my Pen Law colleague, Sean Ose Owusu. Sean is the Presidential professor of Law at Penn. He holds a J.D. and a Ph.D. from Berkeley, and he's the author of the brilliant and important new book Law on an Unlikely Insider Reckons With Our Legal System. Sean, welcome to Strict Scrutiny.

Sean Oseiwusu (68:16)

Great. Thanks for having me, Kate. Thanks for having me, Leah, and thanks for the kind words.

Melissa Murray (68:21)

Super excited about the conversation, which I think will really resonate with a lot of our listeners, particularly those in law school about to start law school, maybe recent graduates of law school. So you begin by addressing one of the legal profession's most foundational principles, equal justice under law. And you suggest that it, quote, belongs to America's collection of beautiful fictions, nestled somewhere between Huckleberry's Finn, the Tooth Fairy, and Trickle Down Economics. End quote. Maybe that's why it's above the Supreme Court right there in the business of fiction. Anyways, so how would you describe the book's central argument to our listeners? And how does it complicate aspirational ideals like equal justice under Law.

Sean Oseiwusu (69:02)

Yeah. So I would say the key point that I want readers to take away from the book is that law schools endow students, students with what I call a tragically necessary skill. And that's the ability to take pretty messy human problems and situations and transform them into legal questions. And I think part of the tragedy there is the necessity. I see it as akin to a doctor. You know, when a patient comes to a doctor in pain saying, you know, my chest hurts. I'm having trouble breathing. The doctor can't sit there and say, wow, that's crazy. Crazy. Their job is to translate that into diagnoses, reimbursable Medicare codes. And I think there's something similar happening with lawyers. That translation is important to the work we do, translating it into legal questions, into procedural issues. But part of the challenge is that the human consequences of those problems and the moral weight tends to be abstracted in that process. Process. And so it's easy to lose sight of the human consequences of that process.

Kate Shaw (70:11)

So that's a great kind of broad distillation. And the book goes really deep in very specific ways about lots of aspects of both kind of legal training and education and the legal profession. And I think it's really a little genre defying in that it's this very powerful blend of, like, memoir and systemic critique, again, of both law school and the legal profession. So the introduction kind of provides an overview of your personal background and explains how it informs your view of legal education and the legal system more broadly. And I will just note here that at one point, while I was reading the introduction, I handed the book to my husband, who is also from the Bronx, and I literally had to wrestle it back from him because he was so riveted. So at some point, you need to write a full memoir, because there is some memoir here, but it's not a full memoir. But in any event, with that teaser, can you just, like, tell us a little bit about what makes you the unlikely insider of the subtitle and how your background convinced you that you needed to write this book in particular? Particular.

Sean Oseiwusu (71:05)

That's pretty funny. I mean, I. I mean, I would say a few things. You know, there's. I mean, there are parts of me that. Many parts of me that have been pretty hesitant to call it a memoir. And I think it's in part because a lot of people have memoirs, and I'm somewhat of the view that, you know, I'm 41. I think people under the age of 50 should not write memoirs.

Kate Shaw (71:25)

Well, it's not a full memoir. But I.

Melissa Murray (71:27)

It does.

Kate Shaw (71:27)

Yes, yes. At some point, you should write one. But it does have you. You're in it in the first person, like in the book. And I think that's really important, and it works beautifully.

Sean Oseiwusu (71:35)

You're absolutely right. There's definitely, like a first person. It's a first person forward book. And initially it was not that. And I got feedback from some of my friends and colleagues who encouraged me to kind of dive more into what makes my perspective unique. And I would say, to answer your question, I think the reality is I grew up working class. And when you look at the demographics of the legal professor, they tend to come from the top 10% of incomes. And I think coming from outside these legal spaces, I began to kind of just see things that some people took for granted. So a perfect example is something that Leah's colleague Maureen Carroll talks about in some of her own work, and that's the filing fee. For federal courts, that's $400. And so for law professors and judges and attorneys, attorneys, that might be peanuts, but for the average American making minimum wage, that's a week's worth of wages. And so for me, you think about something like civil procedure. We tend to jump into questions tied to pleading standards and summary judgment and these doctrinal questions. But for the people I grew up around, that's not a technical detail. That can be a barrier. So for me, it's kind of hard to jump into the doctrinal analysis with the. Without asking who's able to access the system. And so that's kind of one way my background, I would say, shapes what I notice. And on the flip side, I came to law school with a different toolkit. I pretty much did a PhD before law school, so it's a bit more comfortable pushing back on the way things were framed. I was cautious about how I did it in class because I didn't want to be that guy. But I would find myself thinking individually or in officers, like, yes, this might be legally accurate, but this might be sociologically wrong and not fully capturing what's going on. But at the same time, I'm an insider. I'm an Ivy League law professor. I teach at a fantastic law school. And so, you know, part and part of the book, I'm kind of wrestling with the fact that, you know, I'm technically part of this club, but I come from a community that law often disregards.

Melissa Murray (73:44)

So, Sean, I don't want to speak for everyone else, but I will suggest that maybe everyone in the universe would have preferred you to be that guy in their section than the guy who actually was that guy in their section. Just, you know, a thought. So, you know, you organize the legal profession, you know, that you are describing as part of the system, into four major institutions or institutional actors that perpetuate inequality in distinct but related ways. There's law schools, there's big law law firms, there's government attorneys and public interest lawyers. If you had to diagnose one core pathology in each of those four corners, what would be the high level diagnosis for each or even like the through line between them?

Sean Oseiwusu (74:27)

Yeah, so I think, I would say for law schools, I think the challenges in much of the first year curriculum aren't giving sufficient attention to the human problems that bear a tight nexus to the subject matter areas they're covering. And so, for example, property is about questions of ownership, but there's little attention to the issue of homelessness. And so we have 700,000 people who are homeless. That is more than the populations of Atlanta, New Orleans and Miami. So we're talking about property, but not talking about homelessness, not talking about civil asset forfeiture. Torts is definitionally about harm and injury, but we pay little attention to some of the core harms in the torts curriculum, like state violence and interpersonal violence. We say that's something that we'll deal with in constitutional torts, fed courts, civil rights courts, or family law. And you see that pattern repeat itself across the first year curriculum. In the context of government lawyering, I would say part of the tension is these lawyers are government actors who are acting on behalf of the state, but oftentimes undermining the rights of their citizens. I have a chapter about municipal lawyers, so city law departments that represent cities in civil rights cases, you have this structural tension where their client is the city. They're trying to minimize legal liability and big payouts for the city, but at the same time, they're undermining Title 2, ADA claims, 1983 claims, Fair Housing claims. So there's this tension around these public servants that are undermining claims brought by their own residents in the context of big law firms. And I try to make it clear I worked at one. And so I think much of the discussion around the executive orders villainizes or valorizes law firms. And I think that's not right. And so they villainize law firms for making these deals with the Trump administration, misunderstanding the fact that these are businesses that care about their bottom line. And also I think they valorized the law firms that pushed back, when in fact, these people were not civil rights activists. They were fighting to protect their bottom line and their access to federal buildings and administrators and important national security work. And so the through line that I would say there is, I think that there's sometimes because law firms represent deep pocketed corporations. Oftentimes some of that work is innocent and uncontroversial. But sometimes that work runs in deep conflict with public interest. And that's where we see some of the inequalities in the context of environment, the health, consumer protection, banking, and then finally in public interest. Part of what I try to do in the book is describe the ways public interest, public interest work has really been straight jacketed by various kinds of reforms in the 1970s that prohibited the kinds of work that federally funded lawyers could do. And so you have this situation where they're under resourced, understaffed, and unfortunately cut corners in the delivery of legal services in ways that undermine the interests of their clients.

Kate Shaw (77:42)

There's so many wonderful parts of the book in terms of the first year curriculum. You mentioned torts. There's just like each chapter is just so dense with I think like pretty blinding insights about some of the omissions and some of the assumptions that sort of are threaded throughout each of these first year subjects. And I don't teach contracts, but I just loved this anecdote of you texting a friend who was an undergraduate friend of yours who was already a practicing attorney by the time you went to law school because you had done the PhD first. And you text her quote, is contract law a course in advanced oppression techniques? ETF is going on because you're just

Melissa Murray (78:17)

like, you know, we don't talk about,

Kate Shaw (78:19)

about predation and power dynamics and like language barriers and I mean some contracts professors do, but that is not, that is just wildly overlooked in so much of the way contracts is taught as a course. And then constitutional law. There's just tons, I think, of really insightful material on many of the omissions from the constitutional law, kind of the typical syllabus. And you also sort of note the way that a lot of the kind of structural discussions in the Constitution law assume a functional democracy, which is a kind of fatally flawed assumption anyway. So I offer these by way of illustration, but I just commend to our listeners just sort of how much that is so rich and insightful is in each of the chapters about the first year curriculum.

Sean Oseiwusu (79:00)

Thank you, I really appreciate it. And one of the goals I think of this book is certainly geared toward a general audience that's never going to go to law school, but really want to understand how our legal system operates, but also see it as something of a companion of sorts for first year students who are either trying to understand what's going to happen, what the hell is happening in real time, or what just happened to me. And I think the April release date may make it useful for people who just finished first year.

Kate Shaw (79:30)

Yeah, absolutely.

Melissa Murray (79:32)

So can I ask a question about the diagnosis of these different institutions and the legal profession more generally? Because I think you're right in describing so many of these dynamics. And then there's also this risk to me with this kind of critique in suggesting to people that these are endemic to the legal profession and these institutions and so they can never live up to the ideal of equal justice under law. And so I guess I wanted to hear your thoughts just about how you think about describing these dynamics within these institutions, legal profession more broadly, but also in the spirit of encouraging lawyers and institutions to be better and not accepting that this has to be this way, which is sometimes what I hear from people making a similar critique, but I didn't get in this book.

Sean Oseiwusu (80:25)

Yeah, I would say I took law of democracy, essentially election law, when I was at Berkeley with Bertrall Ross. And I remember in the beginning of the semester just talking about democracy, democracy. And one of the helpful things that he said is that part of what we're going after is aspirational. And I think about equal justice under law in similar ways. I don't know that it's something that'll ever be fully achieved. I mean, empirically, there's always going to be instances of inequality. But I like to think of it as an aspirational ideal. And I think part of what troubles me is that in many parts of the curriculum and in many corners of the profession, it doesn't even feel like we're doing this kind of aspirational work. And I want to be clear that I think that this varies depending on the site. I think law schools are situated differently, and I think I say it in the book. A place like CUNY is going to be different than a T14 law school. I suspect that that CUNY is doing a better job at some of the things that I'm describing than some of them. To the extent that T14 is a trope that people even use. And I think the same applies to law firms, public interest attorneys, and government lawyers, that there are attorneys who are aspiring more toward that ideal. I try to be encouraging in that context. I sometimes get questions from. From students who have a sense of My diagnoses from reading my other work or chatting with me in office hours about how can I remain optimistic. And I just try to point them to history and thinking about civil rights activists working along the lines of race, sex, broadly construed and disability, and highlight the fact that they engage in advocacy with a much more limited toolkit and in a much more hostile environment. And so that's how I think, kind of think about how to work toward that aspirational ideal.

Kate Shaw (82:36)

Yeah. Okay, so next thing I want to ask about is you mentioned the law firm executive orders issued by the Trump administration. And, you know, Donald Trump sort of came to mind, actually a bunch of times as I was reading the book, only because it sort of helps illustrate the stakes, I think, of a professional production pipeline, that it's insufficiently attuned to the human costs of deploying the skills that law school imparts. And I guess to explain that just like, you know, you have lawyers in the Trump administration who are concocting arguments that have the kind of, you know, like sort of shiny cover of sort of clever legalism in defense of the president's power to unilaterally, you know, dismantle agencies or render babies stateless or cancel billions of dollars in federal funds. So, so I just mentioned this because if folks think, well, legal education is a. It's not a niche topic, but it's maybe not one that affects everybody. It actually does produce these players who have enormous impact on all of our lives. So. So that's kind of like a wind up to a question that's actually about something different, which is about the decision to focus just kind of mostly on ordinary professionals working within normal rules and incentives rather than on obvious villains or kind of like sensational bad actors. Because that seems like a very considered choice you make in the book. And I'm curious about why you chose that framing.

Sean Oseiwusu (83:55)

Yeah, I would say I chose the framing for a few reasons, some practical, some kind of conceptual. I think the practical explanation is I started this project in law school a decade ago, before Trump entered office. And so the project precedes him and it's ending while he's still president. But it felt important and me to not make that the center of my attention. So I would say that I think, one, I think I'm generally disinclined to focus too much on sensational topics. I think that another goal of this book is, I think about Scott Turow's 1L, which fantastic book. And my hope is to be, I don't know that I would displace Scott Turow But I want this book to have lasting, enduring impact. And I think focusing just on the present, I think would frustrate that goal. But then there's a deeper conceptual explanation. And I think that's just tied to the fact that much of this actually predates him. And it will, what I'm describing, I suspect, will outlast him. And so, you know, you focused rightfully on much of what the lawyers and the Trump administration, administration, what they're doing. But I think I could probably point to something in every presidential administration before Trump where lawyers were engaged in problematic behavior. I was just at a talk where people were commenting about the lawyers who wrote the Dear Colleague letter under the Obama administration, and people were raising questions, well, what's so different between what those lawyers did and what the Trump administration administration is doing? Obviously, there's the big conflict about the torture memos under the Bush administration or historically, the fact that lawyers were central to the regime of slavery. So there's a kind of historical explanation that lawyers have been responsible for perpetuating inequalities. But on the flip side, they'd also been responsible to challenge it. Which brings me back to, to my previous answer. And then I just think we'll see what happens in 2029. But I suspect that these same problems will still be sitting with us, and then we'll have new ones. As it relates to artificial intelligence in the law school context, the rise in accommodations, I think that there are going to be problems that just outstrip the Trump administration.

Melissa Murray (86:36)

You are refreshingly candid about the institutional and personal headwinds that this book confronts. So you write, quote, some will consider it sacrilegious. My takes will almost certainly generate negative reactions from legal establishment types. Idgaf. Their comfort is not my concern. And my sleep schedule remains unaffected. End quote. Honestly thinking about getting that on a T shirt or like tattooing it to my inner eyeballs. Amazing line. And, you know, you are also confronting of current headwinds around social justice, DEI and what can safely be said or implemented across various sectors of the legal profession. So I guess, you know, who do you think this book is for? What readers do you have in mind when writing it?

Sean Oseiwusu (87:18)

I think I had a Tupac line in there that a colleague suggested that I take out because it was a bit too flagrant. So. So that was the final product.

Kate Shaw (87:27)

You can use it here if you want to find out.

Melissa Murray (87:29)

Exactly. Exactly. This is the place for the cutting room floor takes.

Sean Oseiwusu (87:34)

I think it's receded to my memory, but maybe If I'm fortunate to come up in the future. I remember. Yeah. I mean, I think I would say a few things. Again, I think I would say the kind of general reader who's really trying to just make sense of what's happening in our legal system across a variety of as subject areas. So you think about climate change, health care, housing, disability rights, free speech. I intentionally wrote this to cover a broad swath of issues because I know that people read modularly. I know that there's a vast attention economy. And so I would love for people to read my book from front to end. But I also know people are. People, including myself, can be a la carte about what they decide to read. And so I would say for general readers, I'm really trying to cover many issues tied to inequality that may be of interest to them. But I'm also trying to speak to law students. I would say I kind of wrote this kind of as a letter to myself in terms of what I would want to know before entering law school and before entering the legal profession. I find, at least with myself and with some of my peers and colleagues, that we tend to have the same conversations with law students every year about the detachment between doctrine and lived experience. And so I was hoping that this book could be something that could memorialize some of these discussions and have it so people can have a physical thing to have conversations around. And then I would say lawyers. I'm really trying to push lawyers. I know the books provide provocative, intentionally so, But I also try to be rigorous because I'm a scholar, and that's important to me. But I think, you know, oftentimes when we think about the causes of inequality, we tend to point to racism, sexism, capitalism, the various phobias of the world. And I think that those things matter, but I actually think it's much more uncomfortable to point to lawyers because we're lawyers, we train lawyers, and we tend, in the general public, tends to think about lawyers, lawyers as people who are professional and necessary and not as people who are accomplices to inequality. And so I would say I'm really trying to speak to general public interested in issues of inequality, law students and the legal profession.

Kate Shaw (90:04)

Well, all of those prospective readers and more. And I'm gonna throw law school deans into the mix because there are lots of, you know, actionable suggestions about sort of how to address some of the dynamics that Sean was just talking about in the final portion of the book. But you will have to pick it up in order to actually get those. But it really is a searing but also humane critique of legal education and the legal system. And it really needs to be read far and wide. The book once again is Law on Trial by Sean Oseiwusu. We will be thinking about it for a long time. I guarantee if you read it, you will as well. Sean, thank you so much for this wonderful book and for taking the time to join us on Strict Scrutiny.

Sean Oseiwusu (90:40)

Thanks Kate. Thanks, Leah. I appreciate being on. Thank you.

Melissa Murray (90:43)

Thanks again to Sean for a great conversation. And now it is time for our favorite things.

Kate Shaw (90:50)

Okay, I've just got a couple I mentioned I'm going to see Florence in the Machine tonight. I haven't seen the show yet, but I think it's already one of my favorite things this week. I'll report back. I have been very into Robin's new sexistential album. Yeah, it's.

Melissa Murray (91:05)

I'm gonna do that one. Yeah.

Kate Shaw (91:06)

I'm sorry.

Melissa Murray (91:07)

It's okay.

Kate Shaw (91:08)

It's weird. It, I was like calendar marked for it to come out and then it came out and I just like kind of forgot to even listen to the whole thing because she'd put out a couple of singles and like little clips from singles in advance. But now that I've actually started listening to, to the album, it's so good. It's hilarious and energetic and great. So definitely recommend that. A lot similar to her earlier stuff but then some of it new. Kind of like motherhood themes and lyrics and, but, but, but it's deranged and great. Other recommendation is actually two interviews with Nicholas Enrich who was interviewed in Wired and then actually by Tommy on Pod Save the World about his new book Woodchipper, a whistleblower's account of how the Trump administration shredded usaid. I, I mean you knew it was bad as like Elon and Doge destroyed the foreign aid apparatus of the federal government. And you know, we sort of all sensed and then kind of later from experts had a real understanding of the literal human stakes and body count of the decision to savagely, sadistically terminate these life saving aid programs. But this insider account kind of fills in the details in a way that's even more disturbing than from, you know, the perspective that we all had kind of watching from afar as this carnage unfolds. So definitely check both of those out. And I've also loved this week the excerpts from our co host Melissa's conversation with Sally, founder of Argent, the clothing line that we have all talked about and love on her Work Friends series. They're just like wonderful, delightful little like Excerpts of Melissa being, you know, charming and brilliant and. And Sally asking great questions. So I've really enjoyed that this week.

Melissa Murray (92:43)

Can we. Can we. Can I preemptively manifest enjoying being a work friend and podcast friend dressed in more urgent clothing at our New York City live show?

Kate Shaw (92:53)

Manifest that.

Melissa Murray (92:53)

Put that out there.

Kate Shaw (92:54)

Okay.

Melissa Murray (92:54)

I'm putting that on my favorite thing. So I also would have listened Robin's sexistential, kind of like Hilary Duff's Luck or Something album. It just really grew on me. I think I have some issues where singers release lead singles that I like a ton. You know, unlike often every Taylor Swift album or know, Charlie's Wuthering Heights album, like, the lead singles are never my favorite songs. Whereas it's not so much the case with Existential and Luck or something. I saw Lily Allen's show in dc. It was everything. I loved it. Just incredible. I've got kind of a lot of favorite things. Sorry. So the Lego videos of Cash Patel,

Kate Shaw (93:32)

kind of like, I can imagine this, but I don't think I've seen them. What is. What. What is the.

Melissa Murray (93:36)

They're like, you know, replaying the Atlantic story, you know, reenacted with Lego.

Kate Shaw (93:42)

Is he at the Poodle? What was it called? The Poodle Room.

Melissa Murray (93:44)

The Poodle Club. Just. You gotta check it out.

Kate Shaw (93:47)

Okay.

Melissa Murray (93:48)

It's really great. It's really great. As I kind of alluded to up top, really loving Noah Kahn's a great divide. I loved his Tiny Desk concert. You have to be in the right mood. It is at least a Tiny Desk concert. The saddest thing since Taylor Swift performed I can't stop loving you. Just very, very sad person energy. Great time to be sad. But yeah, loved it. So two related posts that I really liked. One was on the Bulwark by jbl and that was it is time for ruthless aggression. And the other was by Brian Beutler at Off Message. The gerrymandering fight should be a dress rehearsal for court packing. And both of them are basically making the same argument that the Democrats basically being willing to fight by engaging in partisan gerrymandering in order to achieve, like, a more nationally equitable fair outcome is something that they should get comfortable with and be willing to deploy when it comes to Supreme Court reform. And I just really like these takes being out there. I don't love that the bulwark is to the left of, like, the median Democratic official in the Senate, but maybe this is a way of getting them there. So liked those. And then as we were kind of alluding to To Steve Vladic had a great post on one first called sanewashing the emergency docket, responding to some of the efforts that Kate and I were alluding to that just try to kind of throw out. Well, you're misunderstanding. There's this way of explaining what the court was doing and a way of analogizing it to things the court had done before that just make it no big deal. And actually, all of the court's reasoning was great because, because they invoked legal standards and Steve just has the Constitution to actually do the replies and responses. So. And I just, like, I really admire it because I tried to do this kind of during the first Trump administration where I was actually willing to kind of be in social media on the replies and the comments. And I just, I can't do it. It just completely taxes all of my energy. Energy. And so I can do it in certain fashions, like writing my own things or. Right. Talking on the podcast, but I can't constantly be on social media doing it in replies and comments. But that's important. Like, it is really important to do that. And you know, again, more power to Steve.

Kate Shaw (96:07)

God bless.

Melissa Murray (96:08)

Yes. Yeah. Okay. So one other small thing so I've talked about before, the paperback version of my book Lawless is coming out June 16, has an entirely new section on the unitary executive. And, and again, because I'm me, I updated all the chapters. I can go into reasons why later, but I want to run a giveaway like I did last time, where if you pre order the paperback, you can get a T shirt. And so I'm willing to accept requests for what T shirts I should make. So some possibilities that I had were I kind of like what you just said, like, but courts, you know, maybe vibe maxing, maybe, you know, good vibes rising, maybe weak on crime. Again, willing to, to accept suggestions. So, yeah, you know, hit, hit me up with those, those ideas.

Kate Shaw (96:54)

All right, so once you tell Leah what to do for the T shirt giveaway, she will announce what she's doing and then you can get on it pre order that paperback well in advance of the June 16 pub date. I'm excited. I want to read the new chapter. Do you have galleys yet of the paperback or It's. You have PDFs?

Melissa Murray (97:12)

Not galleys exactly. Yeah. So I, I don't. But I can send you a copy as soon as it is out.

Kate Shaw (97:18)

Yeah.

Melissa Murray (97:19)

Because I will be out there chatting

Kate Shaw (97:21)

it up as will Melissa, whose book comes out about a month earlier than yours, but you guys will be like, just a little bit overlapping in, like, the kind of circumstances.

Melissa Murray (97:29)

It comes out next week.

Sean Oseiwusu (97:29)

Yeah.

Kate Shaw (97:30)

Oh, it's next week. Okay. All right, Melissa. Next week. Happy Release Eve. I know you're out there recording your audiobook and. And doing all the other things. I'm excited to see it out in the world.

Melissa Murray (97:41)

Me.

Kate Shaw (97:53)

Strict Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Music by Eddie Cooper. Production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production. And thanks to our digital team, Ben Hethcote, Johanna Case, Kenny Moffatt, and Eric Schutt, 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.

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