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Strict Scrutiny
Reform, Repression, & Reproductive Rights (Live from Texas!)
00:58:09
This week Kate and Melissa are live from the Texas Tribune Festival with a couple of dream guests. First, Representative Jamie Raskin joins to discuss how Congress can rein in our ethically questionable Supreme Court. Then, they speak with activist Amanda Zurawski, lead plaintiff in Zurawski v. State of Texas, whose story tragically illuminates the cost of “pro-life” laws. Finally, a look at SCOTUS’s enabling of voter suppression and the latest shenanigans of the always-spirited Ginni Thomas.
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- [00:01]
Preet Bharara
I'm excited to tell you about a show for my friends over at Cafe called Stay Tuned with Preet. Preet Bharara is the former U.S. attorney for the Southern District of New York. He breaks down everything you need to know about Trump's ongoing court cases and the other legal headlines shaping today's politics and our futures. He's joined by thought leaders to explore topics at the intersection of power, policy, and justice in our increasingly complex world. Clarity, calm and sense they can feel elusive. Stay Tuned empowers listeners with the knowledge and thoughtful insights you need during these transformative times. Listen to Stay Tuned every Monday and Thursday and follow the show wherever you get your podcasts.
- [00:40]
Melissa Murray
Mr. Chief justice, may it please court. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word. 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. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And today we are podcasting live from Austin, Texas. Even the applause is bigger in Texas. I love it. We are podcasting live from the Texas Tribune Festival, and we are so delighted to be here. We are your hosts. I'm Melissa Murray.
- [01:52]
Kate Shaw
I'm Kate Shaw. And we are once again without our wonderful co host, Leah Lippman, who is on the mend from a bike accident a few months back, hasn't yet been cleared to fly. But we truly cannot wait for the three of us to hit the road very soon.
- [02:04]
Melissa Murray
But in the meantime, we have a great plan for today's episode. We're going to flip our usual order. So if you are a regular listener to the podcast, you know we often start with breaking news. We're going to put the breaking news toward the end because we have two fantastic guests that we want to share with you and get to them first. Our first guest is someone you may have heard of, Representative Jamie Raskin. Representative Jamie Raskin is in the House and we are going to talk to him all about how Congress could start to get serious about reining in this runaway Supreme Court.
- [02:42]
Kate Shaw
Yes.
- [02:48]
Melissa Murray
And after Representative Raskin, we are going to be joined by a true hero and an amazing Texan, Amanda Zyrowski, who's going to talk with us about her efforts and her lawsuit to keep Texas safe for pregnant people. And as promised, we will finish up with our breaking news segment. And spoiler alert, we are going to Talk a little bit about how there are some state officials here in Texas and elsewhere who are doing the absolute most to break democracy. Perhaps you've heard of them. We'll talk a little bit about that. And then, of course, it wouldn't be a strict scrutiny episode if we didn't have something to say about Mrs. Ginni Thomas, because she stays on her hustle, stays on it. And we'll talk a little about that. So we're gonna have Jamie Raskin, Amanda Zyrowski, some democracy breaking hijinks, and then a little Ginny Thomas chaser, and we'll be all done.
- [03:50]
Kate Shaw
All right, so let me introduce our first guest before we bring him out. And as Melissa said for our first segment, we are delighted to welcome to the podcast for the first time, but hopefully not the last time, Congressman Jamie Raskin, who is one of our true heroes, an unstoppable champion for democracy and the rule of law. And also, from our perspective, proof positive that constitutional law professors can go on to do great things other than podcasting. To add some Texas flavor to his bio, the Texas legislature, I just learned this, has repeatedly tried to ban one of Congressman Raskin's books titled we the Students. In fact, it was banned by the State Board of Education. He has also been banned from Vladimir Putin's Russia. So real badges of honor with that. Congressman Jamie Raskin, come on up on stage. Welcome and thank you so much for joining us today.
- [04:49]
Melissa Murray
To Russia with love. Indeed. So, Congressman Raskin, you were just at the Democratic National Convention in Chicago, and I was there. Have to say the vibes were immaculate. Right. People were really, really excited. And obviously nothing is guaranteed. Right. There's going to be an all hands on deck effort to not only register new voters, but to turn out the vote in overwhelming numbers so that the Democrats can win in November. But it does seem like there is a real possibility that the Democrats might run the tables and take the White House and maybe both houses of Congress as well, if that happens. What are the legislative priorities ahead for you and your caucus? And how does the Supreme Court and Court reform fit in there?
- [05:38]
Jamie Raskin
All right, thank you, Melissa, for having me. And thank you, Kate. And yes, our soon to be president got an immaculate reception at the convention. It reminds me, somebody from Planned Parenthood sent me a poster saying voting prevents unplanned presidencies. Love it.
- [06:03]
Melissa Murray
Love it.
- [06:06]
Jamie Raskin
But, you know, it's not a big mystery because it's everything we've been trying to get through. But the Republicans have been blockading. I mean, we passed the John Lewis Voting Rights act to repair the damage that the Supreme Court did in Shelby county versus Holder. We passed the for the People act so we could abolish gerrymandering in America and have some free and fair elections. I've been traveling across the country and everywhere I go, I mean, I was in Tennessee, as in North Carolina and Texas. I mean the Democrats are at least in a 50, 50 posture. In a lot of these states like North Carolina, we're winning the statewide elections, but then we're gerrymandered into oblivion. And a sixth grader can do that with the computer technology. Right. So which means the Republicans can do it. So they've been doing it to us. So anyway, you know, I am very interested in the democracy agenda we've got to get past right away. And you know, when we say we're defending democracy, that's not just a static collection of institutions and practices. Democracy is always a project in motion. It's something unfinished. And so just starting off with, for example, the presidency, it is 2024. Shouldn't we be electing the President the way we elect governors and representatives and senators and mayors? Whoever gets the most votes wins. Right. So, you know, we will be pushing hard for that. But obviously as the party that believes that government should be an instrument for the common good rather than private money making for the guy who gets in and his family, we have a big agenda and we want to continue to fight for healthcare as a right for everybody in the country. And that's something that we're going to get done. And you know, so we've got a big agenda that everybody knows it's what we've been fighting for, but we've been blocked from doing because of all these anti democratic mechanisms like the gerrymandering, voter suppression, filibuster, the electoral College and so on, like the Supreme Court and the Supreme Court especially. So, and I think that the court is going to be central to, for us to deal with because if we do our job right, and we will, and we win resounding majorities in the House and the Senate and we win the presidency, as I think we will, then that just sets the table for the fight. We will pass legislation to guarantee women's right to choose, to restore a right that women had for more than a half century in America, but that was stolen away by Donald Trump as he's bragging around the country by stacking and packing and gerrymandering our Supreme Court. But the thing is, is that even if we pass it in the House, we Pass it in the Senate and President Harris signs it, the Supreme Court could strike it down. They could say it's outside of our powers under Section 5 of the 14th Amendment, outside of our powers under the Commerce clause. And certainly Sam Alito would do that and Clarence Thomas and Neil Gorsuch and you know, it's quite possible a majority would just strike it down. And that's true of almost anything we're talking about doing, whether it's repairing the damage inflicted on the Voting Rights Act. I mean, it's been happening in terms of the college loan work we've been trying to do. They pulled a rabbit out of a hat and invented that new doctrine, the major question doctrine.
- [09:35]
Melissa Murray
Fan fiction. It's fan fiction, fan fiction.
- [09:38]
Jamie Raskin
I mean, it's like the stork brought that. Where did that come from? Anyway? So the Supreme Court is going to have to be very much within our sights.
- [09:46]
Kate Shaw
And can we just drill down a little bit on the specifics? Because that was a very ambitious legislative agenda you just sketched out, and rightly so. Democracy reform, restoring a right to choose healthcare. But of course, any of those legislative initiatives, as you just suggested, could run into the buzz saw of this hostile Supreme Court. Whether it's the major questions doctrine, whether it's a constrained view of Congress's power under the Commerce clause or Section 5 of the 14th Amendment. I mean, this Court will have tools at its disposal to invalidate much or all of what you just listed. So I guess our question is how high on the kind of policy priority list is Supreme Court reform? Are we talking about should that be rolled into a democracy reform legislative package? Should it be separate and would it be a first week, first month, first hundred days kind of priority? Where does Supreme Court reform fit? Because from our perspective, it is inextricably bound up with these other priorities that you just listed.
- [10:38]
Jamie Raskin
Well, I agree with that. And obviously that's going to be up to President Harris and Tim Walz and you know, the members of the House and the Senate to form the actual day by day agenda. But it's a very ambitious and robust agenda. And we understand that the Supreme Court is not some extraneous detail. I mean, this is going to be central to our ability to get anything done. And President Biden has laid it out in his reform package. I'm sure you guys have talked about it. And you know, moving to 18 year terms where really the only western democracy where people have this lifelong sinecure and we can limit their terms just so long as they can keep their job somewhere in the federal judicial system. And, you know, I feel strongly that, you know, we've got 13 federal circuits in America and we only have nine justices, which means that four federal circuits are going to be left out at any point today. It's much worse than that. The big majority of circuits are left out because five of our justices come from New York City alone. One for each borough. Yeah. So, yeah, I mean, I love to visit New York like the next person, but let's not take a good joke too far. I think this would be an opportunity to say the Supreme Court should be constituted in a way such that people from all over the country are represented. And you don't get this packing of the Court by Federalist Society hacks. So I think we can make a very strong argument to the country that this is something that needs to be done. And if we don't, then we could be looking at a sustained period of conflict between the political branches and the ultra political branch.
- [12:31]
Melissa Murray
The Supreme Court, the ultra political branch. I love that you mentioned sinecures. Can we talk about Clarence Thomas for a minute?
- [12:38]
Kate Shaw
Good segue.
- [12:40]
Melissa Murray
Great segue. We've heard over the last couple of months about some of the justices really having emotional support. Billionaires who provide them with untold largesse, whether it's private jet travel and vacations and boarding school tuition. All of those things. You and Representative Alexandria Ocasio Cortez have sponsored. Yes, sponsored a bill. It's called the High Court Grif. I'm sorry. The High Court gift ban could go either way. Honestly, the High Court gift ban that would prohibit the justices from accepting any gift valued over $50 and from accepting gifts that exceed in the aggregate $100 in a calendar year from any single source. Is that enough?
- [13:27]
Jamie Raskin
That's the rule that applies to us in the House, and it's the rule that applies to everybody in the executive branch. Of course, you wouldn't know that from Donald Trump and the millions of dollars of emoluments from foreign governments he pocketed from Egypt and Saudi Arabia and the United Arab Emirates and Indonesia and so on. And you wouldn't know it from Clarence Thomas, who has taken more than $4 million from his billionaire sugar daddy, Harlan Crowe. So, I mean, from our perspective, it's just unbelievable and outrageous that this is going on. And it is reflective of the profound jurisprudential corruption of the Court, which is, of course, an even bigger deal. But they go hand in hand with each other. I mean, it's just a money making opportunity for them. They think that they like Donald Trump. They're above the law. They're beyond the law, too. And we've got a neo monarchical, neo oligarchical Supreme Court.
- [14:28]
Kate Shaw
So let me ask actually a follow up question on ethics, not gifts specifically, but in the neighborhood. So you have been laser focused on Supreme Court ethics for quite some time. And so we can't resist asking for you to comment on the latest bombshell reporting from ProPublica. And that's kind of like an evergreen teaser because there has been so much Great reporting from ProPublica. But we're talking specifically about reporting just last week about a call with top donors to the First Liberty Institute, which, if you're not familiar with them, is a major Supreme Court litigator responsible for big cases, including the praying football coach case, Kennedy vs. Bremerton and the school funding case, Carson vs. Macon. Anyway, on that phone call, the head of First Liberty read aloud from an email that a member of the group received from Ginni Thomas.
- [15:17]
Melissa Murray
She stays on her email like she's always emailing people, sometimes texting, also texting, sometimes texting.
- [15:23]
Kate Shaw
This is email. So in the email, Thomas thanked the group for opposing Supreme Court ethics reform, saying, quote, I cannot adequately express enough appreciation for, for you guys pulling into reacting to the Biden effort on the Supreme Court. And then she continues in all caps. She really likes the all caps. All caps. You guys have filled the sails of many judges. Can I just tell you? Thank you so, so, so much.
- [15:52]
Jamie Raskin
Do they have a sailboat, too, that Harlan Quinn gave them?
- [15:55]
Kate Shaw
We haven't yet learned of the sailboat there. We have the land yacht. There may be a real yacht in the offing. So I guess, what do you make of this? Who are, who could be the many judges Ginny references in that email? And I just say I can't decide what to make of how Brazen. Right? An email like this is. Is it that they're running scared or that they genuinely believe they are untouchable? Which is it? And what is your reaction to this?
- [16:20]
Jamie Raskin
Well, both. I mean, they believed they were untouchable up until the Democratic majority got awakened and enlightened and engaged. And that's really going to be our only safeguard against that kind of judicial tyranny and political tyranny in the country. But I'm glad that Kelly Shackelford read that and that ProPublica got a hold of it because it tells us, you know, if anybody on our side got caught doing the kinds of stuff they're doing, people would say, oh, my God, all right, we took $4 million. Let's follow the rules scrupulously now. Let's do the right thing. They just double down and they go back and, like, they want to keep the grift going. And, you know, Ginny Thomas is out there saying, you know, thank you so much for defending us against the Democrats who are so brazen as to want to impose an ethics regime on the Supreme Court. Right. It's the highest court in the land with the lowest ethical standards, the only court that doesn't have a binding ethics code. But that's what we're up against. And, you know, I don't mean to pick on Ginny Thomas because, you know, you could pick on Martha Analito for a while, who has unflagging fervor for maga. By the way, you know, the good name of the Appeal to Heaven flag has been dragged through the mud because of her. That was a revolutionary democratic flag that was flown against Great Britain by radical pro tompane democrats in the 18th century. And they, of course, have usurped it and appropriated it. But there's nothing wrong with that flag except the fact that they've tried to steal it. But we're taking that flag back along with the American flag from these people, because it's not safe for.
- [18:18]
Melissa Murray
So I love this energy. The energy I also love is coming from none other than Joseph Robinette Biden, because since stepping down, President Biden literally has zero Fs left in the tank. Right. So he has announced his own proposal for Supreme Court reform, and it includes ethics reform. It also proposes a constitutional amendment that would overrule Trump versus the United States. That was the recent decision that gave the president sweeping immunity to crime with impunity. Yes, exactly.
- [18:55]
Kate Shaw
This is the last line of the Sotomayor dissent, for those of you who haven't committed it to memory. With fear for our democracy, I dissent.
- [19:01]
Melissa Murray
Also available at the Crooked Store.
- [19:03]
Kate Shaw
Wherever you buy your merch, wherever you.
- [19:04]
Melissa Murray
Get your great stuff. What do you think about a constitutional amendment? This would not only reverse that decision, it would also presidents from being able to pardon themselves, since that's a gray area in the Constitution. Is that something that we need to get done? Is that a legislative priority as well?
- [19:22]
Jamie Raskin
Yes. Let me just say one thing about Kate's T shirt. With fear for our democracy, I dissent. When we talk about democracy now, the Republicans get up in Congress and they say, we're not a democracy, we're a republic.
- [19:35]
Melissa Murray
And they think Mike Lee said that, and it sounded better in the original German.
- [19:39]
Jamie Raskin
Yeah, well, you know, they think They've struck some kind of major blow in political philosophy against us with that a republic is just a representative democracy. That's all a republic is. Okay. And, you know, we started as a slave republic of white male property owners over the age of 21. But through social and political movement and constitutional amendment and change, we've grown much more into a democracy, a more perfect union. What our last great Republican president, Abraham Lincoln, called government of the people, by the people, for the people. And we're moving closer to it, and we gotta get back on the growth track to that. So, you know, on a, you know, a constitutional amendment is obviously, you know, that's a tall responsibility. With a two thirds vote in the House and the Senate and three quarters of the states, the Republicans are obviously going to oppose it. I think it's fine to talk about constitutional amendments and to plant the flag of where. Of where we want to go. We probably have a better chance of changing the composition of the court to make it fair and getting the court to reverse that outrageous, egregious decision, overturning two centuries of understanding that nobody's above the law, including. Including the president. But, you know, in a statutory sense, I'm going to be introducing legislation which will say that the president is subject to the criminal law categorically across the board, which he has been for American history whenever the powers are powers that are granted by Congress. So maybe we can't do something about the organic constitutional powers that the MAGA court talked about. The core functions where, you know, Donald Trump can now sell pardons. Undoubtedly, if he were to get back into office, which he won't, but if he were, he would go on ebay and start selling pardons. Why not? Because the Supreme Court has said it's a core executive function.
- [21:47]
Melissa Murray
Yeah.
- [21:47]
Jamie Raskin
And he can't be criminally prosecuted for anything that he does there. I mean, it's just utterly incoherent, insensible doctrine that nobody thought that they would do.
- [22:01]
Melissa Murray
Even we were floored. I mean, we were not predicting a decision as sweeping and monumental as the one they issued.
- [22:06]
Jamie Raskin
No, I thought they were just trying to slow it down.
- [22:08]
Melissa Murray
So that's what I thought, too.
- [22:09]
Jamie Raskin
There would be no trial. But no, they're far more ambitious than that. They really have neom monarchical ambitions. And they all thought that Trump was going to be president. They thought that it was inconceivable to them that President Biden would do what he did because Donald Trump would never put his country above his own political ambitions. And so let's hear it for the great President Joe Biden, for what he did.
- [22:42]
Kate Shaw
So things like constitutional amendments, there's a very high hurdle to actually getting that to happen under Article 5 of the Constitution. But ordinary legislation, whether we're talking about things like expanding the size of the Supreme Court or seeking to reverse at least most of the Supreme Court's misguided decision in the immunity case, that's something that just requires a Democratic Congress and a Democratic president and maybe filibuster reform. But in terms of thinking about other things that do require supermajorities, we wanted to ask you about your colleague AOC who is introduced articles of impeachment. Right. With respect to Justice Thomas and Justice Alito. So that too, you know, something about impeachment. Actual removal requires, of course, another supermajority vote in the Senate, although just a simple majority vote in the House to initiate the impeachment proceedings. What is your comment on the utility, whether from the perspective of kind of public messaging or actually successfully seeing something happen in the Senate with pursuing a impeachment against those two justices?
- [23:40]
Jamie Raskin
Well, the constitutional standard, as we constantly remind the Republicans who just want to impeach people they disagree with, is that of high crimes and misdemeanors. So the question is whether Justice Thomas has engaged in high crimes and misdemeanors in accepting millions of dollars and then systematically failing to report it according to the disclosure, the minimal disclosure would regime we've got. And, you know, I don't think there's anything remotely fruitless about that. I think it's raising concerns of a serious constitutional dimension. Obviously, with the Republicans in control of the House, it has a symbolic quality to doing it, and we would undoubtedly need to do a much more detailed, factual investigation. And there have been impeachment drives against Supreme Court justices in the past. I mean, of course, the right wing wanted to impeach Earl Warren for Brown vs. Board of Education. And you know, how they transmogrify a Supreme Court decision implementing equal production clause into a high crime misdemeanor is beyond me. But that's why I'm saying AOC has raised a serious point about being ethically compromised to the point of millions of dollars with respect to a guy who has actual business before the court.
- [25:07]
Kate Shaw
All right, so we got to let you go soon. We got a couple more final questions, and one is, so at the dnc, you and Senator Whitehouse actually did a panel that Melissa moderated, and when she asked you why there hadn't been more Supreme Court talk on stage at the DNC I think you mentioned that you had submitted a very long 5,000 word, ish speech to the convention organizers, largely about the Supreme Court. But that, you know, time imperatives had led you to cut it down to about 500 words.
- [25:36]
Melissa Murray
So I think they gave your words to Oprah.
- [25:40]
Jamie Raskin
I think Bill Clinton got.
- [25:41]
Melissa Murray
Yeah, maybe he might have taken that. Just taken them.
- [25:44]
Kate Shaw
That was not 500 words. Definitely not. So I guess, you know, a two part question. One, why aren't Democrats making more space to talk about the supreme court? And then two, we don't have time for the full 5,000 words, but we would be happy to be your shadow DNC and give you back some of that time that you would have devoted on stage at the dnc.
- [26:01]
Jamie Raskin
I'll give you all my great JD Vance material I had to drop before, I guess we love it. So, yeah, I mean Melissa and I had a little tangle over this at the Democratic Convention.
- [26:13]
Melissa Murray
So was it a tangle?
- [26:15]
Jamie Raskin
Well, you were as always being perfectly objective and dispassionate and I'm always as usual being like a total ardent Democratic partisan, you know, and I mean, look, I feel that the people have put the Supreme Court back into action because of the Dobbs decision and the Democratic Party is all over that. I mean, freedom is the central component of our campaign. Freedom and democracy. And Lincoln told us the relationship. He said that democracy is the beautiful silver frame upon which the golden apple of freedom rests. Right. We don't have freedom without democracy. The autocrats in Moscow and the kleptocrats and plutocrats in Mar a Lago and the theocrats with Mike Johnson and Maga are not going to protect our freedom. The Democrats are going to do that. We're the ones who are going to do that. So. So I think we are talking about it, but I guess we're talking about it in the way politicians do, which is what is most of most immediate concern to people like the right to choose and whether you can cross state lines to get health care. And you know, I guess it's just a two step operation getting back to the Supreme Court. I think people understand it's the court that is bearing down on everybody's liberty and freedom.
- [27:29]
Melissa Murray
Yeah, I love that. I love the contrast between plutocrats, oligarchs, theocrats and Democrats. And I love everything you're doing. We are always happy to tangle with you, Jamie Raskin, because Ginny Thomas works hard, but Jamie Raskin works harder. Thanks so much for joining us. We know you've got to get back to Washington.
- [27:56]
Jamie Raskin
All Right. I owe you some J.D. vance jokes then.
- [27:59]
Melissa Murray
You do. You do. Thank you.
- [28:05]
Preet Bharara
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- [30:46]
Melissa Murray
Okay, That's a hard act to follow, but I am confident that our. Our next guest is more than up to the task. Please welcome, in strong strixitney fashion, a true Texas hero, Amanda Zyrowski.
- [31:05]
Kate Shaw
It's such a pleasure to actually finally meet you in person, Amanda. Regular listeners to the POD will be familiar with your name and with your story. Among other things, you were the lead plaintiff in Zyrowski vs Texas, which is a case that you. You and others brought to try to make sure that other Texans would not have to go through what you went through, which is the catastrophic denial of a medically necessary abortion. We have talked about that case on the POD before with your wonderful attorney, Molly Duane from the center for Reproductive Rights. So can you tell us a little bit, just to start, about your decision to bring that lawsuit?
- [31:38]
Amanda Zyrowski
Yeah. So, to be completely honest, I was quite skeptical at first. Very soon after my experience, my husband Josh and I started speaking out about what happened to us just because we were terrified that this was going to happen to other Texans, other Americans, and other banned states. And as we were speaking out and through our advocacy, people kept asking us, are you going to sue? Are you going to sue? And I thought, well, no. Why would I ever sue? You know, I've never had a lawyer before. I don't know how this works. And after being connected with the center for Reproductive Rights, I said, well, you can sue the state of Texas, which sounded ludicrous. How do you sue a state? Apparently, you can. And so we started putting together this idea of this lawsuit. And the more we talked about it, the more I got to thinking, this is really a win, win situation, because on the one hand, we win the case. Yay. On the other hand, we lose. But the state of Texas and Ken Paxton very publicly out themselves as being anti women, anti pregnant people, anti freedom. And we realized that if that happened, hopefully people would hear about this splashy lawsuit and maybe it would start changing hearts and minds and ultimately votes. And so the Supreme Court of Texas did rule against us in May, which was not altogether surprising. But what we've seen since then is this real mobilization of folks, not just in Texas, but across the country that are pissed off and they're fighting back. And so I think it made an impact.
- [33:20]
Melissa Murray
It certainly made an impact. You know who also impacted one, Hillary Clinton and her daughter Chelsea Clinton, who are so taken by your story that they decided with their production company, Hidden Light, to make a movie called Zyrowski vs Texas, which is all about your story. So where can I watch this great question.
- [33:39]
Amanda Zyrowski
So it's a documentary. It just premiered at the Telluride Film Festival last weekend. And it was produced by Hillary Clinton, Chelsea Clinton, and then also Jennifer Lawrence, if you've heard of her.
- [33:48]
Melissa Murray
I've heard of her.
- [33:49]
Kate Shaw
I've heard of her.
- [33:50]
Melissa Murray
She's a pretty popular actress.
- [33:52]
Amanda Zyrowski
So as of today, Friday, September 6th, as far as I know, there's not distribution, but we're very hopeful that will get picked up and everyone in America can see it soon.
- [34:04]
Preet Bharara
I want to see this.
- [34:09]
Kate Shaw
And we actually. So as you mentioned, the Texas Supreme Court ruled against you this past spring. That was after a victory, right, in the trial court. So we actually, in an earlier episode of the podcast, read some of the transcripts from the trial because there was just unbelievably wrenching testimony from a number of the plaintiffs in the case who really bared their stories for exactly the kinds of hearts and minds reasons that you just listed. And it's interesting to hear that from the outset, maybe everybody understood that actually winning this case would be amazing because it would make real medical exceptions to savage abortion bans like the Texas ban. But losing the case would potentially have some real value, too, in that people would be exposed to some of the stories that you and the other plaintiffs brought to the court and now are bringing to the screen, which I assume this will be picked up, but hopefully people will be able to hear that story. So that's the kind of genesis of the lawsuit and the film. And they both, I think, make clear that the consequences of the denial of a needed abortion for individuals, for spouses, for families, are catastrophic. There's recent reporting just last week out of Texas about some of the catastrophic effects of abortion bans like Texas is even beyond their effects on pregnant people and their families.
- [35:20]
Melissa Murray
So there's been reporting that after SB8, which is the Texas heartbeat law that has that bounty hunter provision, all of the things that not only is Texas terrible for pregnant patients who need medically necessary abortions, it's actually terrible for infants who are born in the state of Texas. Infant deaths in Texas after SB8 rose by 13%. That's a stunning figure in a modern democracy and seems completely antithetical to this pro life ethos that ostensibly guides Texas AG Ken Paxton and Texas Governor Greg Abbott, who also doesn't seem to know how menstrual cycles work. Are you there, God? It's me, Greg Abbott. Amanda, for those who are seeking to raise a family in healthful conditions in Texas, these policies don't seem to cohere with a pro life for the whole life kind of mentality. How would you like to see the state of Texas respond? And what sort of public policies would you like to see the state enact to make this a healthful place for families?
- [36:32]
Amanda Zyrowski
You know, it's very simple. I think that I want politicians to stay out of it. I don't want them making decisions with me and my doctor. It's none of their business how and when and if I choose to have a family. I don't want them in these conversations. You know, throughout my fertility journey and throughout my pregnancy, I spent a lot of time, time in doctor's offices. And do you know who wasn't invited? Do you know who wasn't missed in my doctor's office? Donald Trump, JD Vance, Greg Abbott, Ken Paxton? No, thank you. I don't want them anywhere near my doctor's office or my family's decisions.
- [37:21]
Kate Shaw
All right, so you just referenced your family, and we wanted to ask you to talk a little, a little bit about the role of men in the fight for reproductive justice. So in June, we were actually fortunate enough to have the amazing second gentleman on the podcast, Doug Emhoff. That's an issue that he has recently been very, very focused on. And there was also a great piece last week in the Washington Post about how a lot of men, including men in deep red states, many who either thought they didn't have very developed views on abortion or actually thought they opposed abortion, have become fierce defenders of abortion rights after seeing their partners really brutalized by restrictive state abortion laws like the one in Texas. So can you talk a bit about what this experience has been like for your husband Josh, who's also been a real voice on this issue?
- [38:04]
Amanda Zyrowski
Yeah. The second gentleman, first of all, is a great partner, a great ally in this fight. We're very happy to have him on board. And I think my husband is, too. And you might have seen him on stage with me at the DNC in Chicago. He spoke with me and I think he did a great job. And he made a really good point that this isn't just a women's rights issue. This is about an individual and their human rights. This is about families and their rights. And I hate that it would take for someone's family going through what I went through for men to get on board and to see how it can affect them. But I think that we're starting to see that change with folks like Doug Emhoff. My husband Mark Hamill, by the way, is a great ally. Luke Skywalker, we love having Luke Skywalker on the team. Welcome. And so I think as we see more men speaking out and explaining how this is an issue for every American, we're seeing these conversations kind of trickle down into people's living rooms and around their kitchen tables and while they're watching football. Like, did you think you were going to be talking about abortions while you're watching the Chiefs? Maybe not, but here we are. And, you know, that's what I think it's going to take. And I think we are really starting to see this happen across the country.
- [39:18]
Melissa Murray
So, Amanda, when the supreme court Overruled Roe vs Wade in 2022 in Dobbs vs Jackson women's health Organization, they said they were removing this question from the national conversation and instead giving it to the states to decide for themselves. But since Dobbs, what we've seen is that when the people in the states have the opportunity to directly register their preferences for reproductive freedom at the ballot box, they overwhelmingly vote to protect, preserve, and even expand access to abortion. There are states, however, where intermediaries don't seem to like all of this democracy and they have tried to thwart efforts to put abortion on the ballot. For example, neighboring state of Arkansas, where just last week the Arkansas Supreme Court voted 4 to 3 against letting voters decide whether to add an amendment to their state constitution that would protect abortion rights. Are there avenues here in the state of Texas for individuals to express their support for reproductive rights beyond simply protesting and speaking out? Like, what can you do as a sort of democratic vehicle to make it clear to the Texas legislature and you're elected officials that reproductive freedom is top of mind for Texans?
- [40:31]
Amanda Zyrowski
Well, first of all, you can show up in November and you can vote and you can vote for pro choice candidates. Unfortunately, we don't have the option here in Texas to do a ballot measure. But something that a lot of folks in our state don't know in other states is that our Supreme Court justices are elected. There are three this year who are up for reelection. They are three who ruled against us in, in our lawsuit. And, you know, I do want to point out that these state measures are great. And the work that people are doing in states where you can have a ballot measure, it wins. It's fantastic work. But if we elect Donald Trump, it's not going to matter because he will enact a national abortion ban. And this is going to be a problem in every state no matter whether you have it on the ballot or not. And to your point, we know that this is a very unpopular opinion. Most Americans do not agree with bans. They do not agree with restrictions on reproductive health. And we're seeing MAGA Republicans walk back their previously stated opinions because they know that it's unpopular. But let's be clear. Donald Trump and JD Vance do not support ivf. They will impose a national abortion ban. And we have to do everything we can to make sure they don't get reelected.
- [41:48]
Kate Shaw
And we do want to follow up on ivf. But actually, just since we're talking about the state Supreme Court, I did want to shout out an organization we actually mentioned last week on the podcast, a new organization called the Find out pac, whose founder, Gina Ortiz Jones is trying to lay the groundwork for changing the composition of the Texas Supreme Court where there are multiple justices on the ballot this fall. So that's a long term effort, but it's one that it's really, really great is underway right now. So did want to shout them out since we're here in Texas. So on ivf, which you mentioned, Amanda, so a lot of people will know your name because of your advocacy around access to abortion, but you have very much also used your voice to speak out about ivf. So can you talk a little bit about your experience with ivf? And you know, you've drawn a straight line between restrictive abortion laws and laws restricting access to ivf. How do you understand the relationship between the two?
- [42:34]
Amanda Zyrowski
Yeah, so I just tick all the boxes for the freedoms that MAGA Republicans want to take away. So as a result of what I went through, there's now permanent damage to my reproductive organs. So our doctors have advised us to go straight to IVF and to use a surrogate if we want to have biological children in the future. And when the Alabama Supreme Court ruling came out earlier this year, we saw a lot of politicians saying a lot of things that made it very clear they have no idea what they're talking about.
- [43:06]
Melissa Murray
I believe you're talking about Tommy Tuberville.
- [43:08]
Amanda Zyrowski
Well, and our own governor was talking about, you know, if you've got these embryos, this is a very delicate situation. You don't know what's going to happen. What if the couple splits up? What if one of them dies? We just don't know what would happen. This is very delicate. Well, guess what? You know what's going to happen. Have any of you ever done an egg retrieval? Ivf? Okay, so let me tell you, before you even start the process, you know what's going to happen to those embryos. You signed so much paperwork. You know exactly where they're going to be stored. What would happen to them in the event that you split up? Someone dies. So if Josh dies, I might not be able to figure out how to use our Apple tv, but I know damn well where my embryos are and what's going to happen to them. So it was just very clear that these politicians have no idea what they're talking about, yet somehow they think that they're in a position to be able to tell us what we can and can't do in these situations that they have no experience with. And so they're trying to restrict us on both sides having no information, no real personal information. And it's just, you know, again, stay out of my business.
- [44:24]
Melissa Murray
It's actually so searing to hear you talk about your experience in this way. You wanted desperately to have biological children and you had this horrific experience. It's compromised your fertility going forward. And now there's the prospect of limiting access to ivf. And again, this is the party of life. Let that sink in for a little bit. We are so grateful for the work that you've done. You've been so brave and courageous to share your story with so many and so many people will learn from what's happened to you and will share your story and hopefully use your experience to inform the way they move forward in this election cycle. And so you are truly a hero to us and we're so grateful to have had you here on the podcast. Thank you so much. Amanda Zyrowski. Thank you.
- [45:18]
Preet Bharara
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- [46:43]
Melissa Murray
Well, we have really dragged the state of Texas for this whole.
- [46:48]
Kate Shaw
Deservedly so.
- [46:49]
Melissa Murray
Well, I mean, and we still have time, so there's more. We have to give the people what they want.
- [46:58]
Jamie Raskin
Yeah.
- [46:58]
Melissa Murray
There's no okay. All right. Our breaking news segment, which we promised we would get to. And now this is that time. We're going to focus on some of the voter suppression that has been enabled, whether directly or indirectly, by the United States Supreme Court. But we really want to focus on the voter suppression efforts that are happening right here in the great state of Texas as well as in Arizona and Nebraska. So we're going to talk about that.
- [47:25]
Kate Shaw
We are. But we are first going to talk a little bit more about House Thomas.
- [47:30]
Melissa Murray
Ginny Clarence, always good for that.
- [47:32]
Kate Shaw
So we talked a little bit with Congressman Raskin about it. There is a little bit more to it seems like someone might have been feeling a little Martha Ann fomo because Ginny, after laying low for some time, is back.
- [47:43]
Melissa Murray
Very relatable.
- [47:45]
Kate Shaw
So of course we talked about the call with First Liberty Institute in which the email from Ginny Thomas was read aloud. Let's talk a little bit more about the context. That is, what exactly First Liberty was involved with that Ginny was praising in the email. So as Kelly Shackelford of the First Liberty Institute recited at Ginny's support, what exactly was the First Liberty Institute activities that Ginny was thanking First Liberty for? Well, an effort in Shackelford's view, spearheaded by people in the progressive extreme, left us us it me upset by just a few cases. Shackelford also referred to Justice Elena Kagan, who has voiced her support for a binding ethics code in pretty shocking language.
- [48:33]
Melissa Murray
Quote, can I do this in a.
- [48:35]
Kate Shaw
Voice when we do live shows, Melissa does voices. So yes, take it away.
- [48:41]
Melissa Murray
So this is the Kelly Shackelford quote about one Justice Elena Kagan. That is incredible. Somewhat treasonous what Kagan did. The chief justice rules the court. They're trying to keep the other branches hands off of them. And then you've got Justice Kagan from the inside really being somewhat disloyal and somewhat treasonous in what she's doing.
- [49:02]
Kate Shaw
Somewhat.
- [49:03]
Jamie Raskin
Yeah.
- [49:04]
Melissa Murray
Like what? So somewhat treasonous, some Elena Kagan, somewhat.
- [49:13]
Kate Shaw
Treasonous colleague of one Clarence Thomas. Now, this is to be clear, this was not in Ginny's email. But this is the kind of tenor of the First Liberty. This is what she's praising, that Thomas is praising.
- [49:24]
Melissa Murray
So she literally fixes her face to write an email to this group that has business before the court where her husband works, that is praising efforts to stop Supreme Court reform. And also she is praising this group's tagging of her husband's colleague as somewhat treasonous, a traitor. I mean, like, yeah, no decorum, no judgment.
- [49:52]
Kate Shaw
But this is to what Congressman Raskin was saying. This, I think, is sort of proof positive that court reform actually really does matter and that they are those who oppose it are very, very nervous about what it might mean. And so you have a group out here opposing Supreme Court reform. And Ginni Thomas is so buoyed by this that she actually writes a thank you note.
- [50:12]
Melissa Murray
I'm going to write a thank you note.
- [50:14]
Preet Bharara
Yeah.
- [50:15]
Kate Shaw
So that was really something. But that is not all from House Thomas in that Justice Thomas was recently invoked in a D.C. courtroom. A little like Beetlejuice.
- [50:26]
Melissa Murray
Like Beetlejuice. Beetlejuice. So, okay, this actually seriously wowed me. So there was a hearing last week before Judge Tanya Chutkan in the District of the District of Columbia in the January 6 election interference case that Jack Smith has brought. Again, this is the case that was really stymied by the court's ruling on presidential immunity. Much of this hearing was devoted to how to address the concerns raised in that July 1 immunity decision from the court. But Donald Trump's team also told the court in that hearing that in addition to resolving the questions about what were official and unofficial actions, they also wanted the chance to argue that Jack Smith's appointment as special counsel was entirely unconstitutional. And Judge Chutkan seemed very skeptical of the Trump team raising this argument at literally the 11th hour. But it is worth noting the Trump team was actually successful in using this line of argument to get Judge Eileen Cannon in the Southern District of Florida to throw out the Mar A Lago documents case on this ground. But in D.C. there is actually binding D.C. circuit precedent on this very issue. And to the contrary, saying that the special counsel appointment is entirely constitutional. But and this is the big part, according to Donald Trump's lawyer, they should be allowed to raise it now because, quote, Justice Thomas directed us to raise this issue, end quote.
- [51:58]
Kate Shaw
Oh, really? Oh, really? That's what justice what Judge Chutkan said.
- [52:04]
Jamie Raskin
Oh, really?
- [52:05]
Melissa Murray
Oh, really?
- [52:06]
Kate Shaw
She literally said to the lawyers, he directed you to raise this.
- [52:11]
Melissa Murray
I have so many questions about the Federalist Society and its reach at this point. Trump's attorneys likely were referring to Justice Thomas concurrence in Trump v. United States, which called into question the constitutionality of the special counsel appointment. But again, the language is so specific that it does give me pause.
- [52:34]
Kate Shaw
Was there an email?
- [52:35]
Melissa Murray
I don't know. I mean, is Ginny Thomas going to write a note thanking them as well?
- [52:41]
Kate Shaw
Potentially. Stay tuned.
- [52:43]
Melissa Murray
I think this is wild. People haven't been talking that much about it. I really think they need to.
- [52:49]
Kate Shaw
Well, Chutin did say they could file their brief raising this issue, but I suspect that she's going to say, you know, a big no and, you know, they could try to take the case back to the Supreme Court yet again.
- [53:01]
Melissa Murray
And then we'll really know if Justice Thomas direct. Justice Thomas made me do it. Anyway. The fun just never ends with House Thomas. But let's move on from House Thomas and let's pick right up here in the Lone Star State where your governor, are you there, God? It's me. Greg Abbott has issued a press release bragging that the state of Texas has purged over a million people from its voting rolls since 2021.
- [53:32]
Kate Shaw
That's right.
- [53:33]
Melissa Murray
Democracy in action. Most people have not heard of a case called Houston vs. A Philip Randolph Institute in the way that they've heard of Shelby county versus Holder, which we've talked about already. But can you explain this case and its relevance to the voter rolls purge?
- [53:48]
Kate Shaw
Just actually, it's one of these under the radar Supreme Court cases from a few years back that gives states virtually carte blanche to purge their voter rolls. And to be clear, federal law requires states to do a degree of maintenance of voter rolls because people move out of state and they die. And it is important to maintain voting rolls. But Ohio in that case was wildly aggressive in basically starting the process of kicking people off the voting rolls if they failed to vote in one federal election. And the Supreme Court said nothing to see here and 5, 4 allowed Ohio to do what it was doing, which has basically given a permission structure to states to ever more aggressively purge individuals for reasons like just not voting in a single election. Now, to be clear, we do not know of the 1 million plus individuals removed from the rolls that were in this announcement, how many of them are in the category of movement or passed away. But the Supreme Court has essentially allowed states to do the most on the purging front. And that is just one of the really disturbing developments out of Texas in recent weeks when it comes to access to voting.
- [54:50]
Melissa Murray
So another disturbing development, the announcement of the million voters purge followed raids that were conducted by Attorney General Ken Paxton's office that included a raid of the leadership of lulac, which is League of United Latin American Citizens, a major group for protecting the voting rights of Latinos in the state of Texas and elsewhere. In addition to several Democratic officials, These raids targeted 87 year old LULAC volunteers and other members and leaders in the group. Their homes were ransacked, their electronics were seized. All of this apparently in an effort to determine if they were doing improper things like trying to register voters, I guess.
- [55:33]
Kate Shaw
And underwriting these activities as well is the Supreme Court because it has accepted in cases like Crawford vs Indiana case involving voter ID requirements, it has accepted these baseless allegations of voter fraud as justifications for ever more both restrictive voting laws and aggressive interventions like this. Again predicated on the desire to detect fraud absent any evidence that fraud is happening on any kind of widespread scale. So the Supreme Court's fingerprints are on these kinds of raids as well.
- [56:04]
Melissa Murray
So purging voters, raiding those, the homes of those who are trying to protect the vote for their constituencies. So that's what's going on in Texas. Moving across the map, let's go to Arizona. And again we saw the Supreme Court's fingertips, fingerprints and their fingertips, because they have their fingers in everything even more directly. So in a 5 to 4 ruling that let Arizona enforce its proof of citizenship requirement for voting, the Supreme Court essentially blessed this and said it was okay for Arizona to do this, at least for voters using states rather than federal forms. So that's going to have a major impact on the vote in Arizona. Going into every closed state, even every.
- [56:45]
Kate Shaw
Single one of these decisions that on the margin makes it hard to register or removes people from rolls or makes it harder for them to vote could tip a close election. So the stakes just could not be higher in each and every one of these states.
- [56:57]
Melissa Murray
Moving on from Arizona to Nebraska. No, these are all states with that are either swing states or in the case of Nebraska, there's that one congressional district that has its own electoral vote.
- [57:09]
Kate Shaw
And it is a genuine.
- [57:10]
Melissa Murray
And it's a genuine swing district. Yes. So sort of interesting how the map is aligned here. But in Nebraska, the Republican legislature passed a law last year that allowed people convicted of felonies to vote after they complete their sentences. And this is part of an ongoing trend to re enfranchise those who have been convicted of felonies once they have finished their prison sentences. But here in Nebraska, the Attorney general has now thrown voting into chaos with an opinion claiming that this new law is unconstitutional. And that the previous reenfranchisement law, which allowed people to vote two years after completing their sentences, was also unconstitutional. So basically everything is chaotic in Nebraska. Nobody knows what the rules are. And again, that has a chilling effect on people exercising the right to vote. And again, because Nebraska is one of two states that don't allocate electoral votes statewide on a winner takes all basis, it means that Nebraska could really be an issue in an upcoming presidential election.
- [58:12]
Kate Shaw
And there has been reporting, including interviews with individuals who have completed sentences either recently or even more than two years ago, thought they were eligible to vote, and in light of these new developments, are now scared that if they register or try to vote, they could be actually violating the Attorney General's understanding of the law, could expose themselves after finishing earlier sentences to newfound criminal liability, and thus are not going to turn out at all. And maybe that is the point. So this is just an overview of recent developments.
- [58:41]
Melissa Murray
That was really bleak. Can we end on a high note? That's like, really, even for us, that was grim. Like, this is the distortion, right? This is the architecture of the landscape. But every one of us has the power to overcome these distortions by going, getting our friends to vote, making a plan to vote, making sure people know what their registration status is. Now is the time to do this. These are the obstacles that they've laid out.
- [59:06]
Kate Shaw
Here's one positive spin on this is that they wouldn't be working so hard if it didn't matter so much and if they weren't scared. So I think that that actually is the way to understand all of this.
- [59:17]
Melissa Murray
They're scared, and they're scared of all of us working together. So we still have. We have the momentum. And we do this, we can overcome these structural distortions. And when we fight, we win.
- [59:33]
Kate Shaw
That's right.
- [59:33]
Melissa Murray
All right, that's all we have time for for this very special episode of Strict Scrutiny. We want to thank the Texas Tribune so much for having us and for those delicious breakfast tacos. We love this town. Thank you, Austin. And we love the chance to dream of a better Texas. Thank you.
- [59:49]
Kate Shaw
You okay?
- [59:51]
Leah Lippman
Before we go, we wanted to mention a couple of things. From the legal news coming out of Trump's countless trials to the latest headlines you see on your feed, Crooked's what a Day podcast is the place to get your daily news. The show has a new lead host, former Vox senior politics reporter and New York Times opinion contributor, the excellent Jane Costen. What a Day will still offer the same quick listen, but it will now have even more curated headlines in depth reporting and analysis about the stories that shape how you live, work and play. Tune in Monday through Saturday to get the top news and stories that matter most, all in just 20 minutes. Search for what a day on your favorite podcast app or YouTube and don't forget to subscribe so you never miss an episode. The first two episodes of the podcast Empire City, the Untold Origin Story of the nypd are out now. Hosted by Peabody Award winner Chenjerai Kumaniku, the series begins with Chenjerai transporting us back to the 1830s before the NYPD came into existence, when a nefarious kidnapping club targeting free black New Yorkers prowled the streets. From Wondery Crooked Media and Push Black Empire City is a captivating and immersive window into New York's early days, and it couldn't be more relevant for understanding today's debates around policing. New episodes drop every Monday. Follow Empire City on the Wondery app or wherever you get your podcasts. Listen early and ad free by joining Wondery plus in the Wondery app or on Apple Podcasts.
- [61:26]
Melissa Murray
Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, Melissa Murray and Kate Shaw, with production and editing support by Melody Rowell, audio support from Kyle Seglin and Charlotte Landis, and music by Eddie Cooper. We get production support from Madeline Harringer and Ari Schwartz. And 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 cool people, please rate and review us. It really helps.
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Jamie Raskin
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