SCOTUS Keeps Rewriting Gun History

Summary

Strict Scrutiny — SCOTUS Keeps Rewriting Gun History

Date: June 29, 2026
Hosts: Leah Litman, Kate Shaw, Melissa Murray
Theme: In this episode, the hosts break down a series of Supreme Court decisions from late June 2026—highlighting a right-wing majority’s maximalist approach to immigration, gun rights, administrative law, and corporate power. Through detailed (and at times acerbic) legal analysis, they show how the Court is rewriting constitutional doctrine in favor of conservative priorities: expanding gun access, limiting protections for immigrants, narrowing Congress’s ability to legislate, privileging corporations, and showing selective concern for "history and tradition." The episode’s major focus: the hypocrisy and flexibility with which the majority deploys “history”—particularly on gun rights and race.

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Main Topics and Key Insights

1. Overview of Recent Major Supreme Court Decisions

(Beginning – 04:25)

• This is the “home stretch” of the Supreme Court’s term; an onslaught of opinions, most with major implications.
• The hosts are bracing listeners for a "busy and probably terrible week for all of us" as the term closes.

"Buckle up." — Kate Shaw (04:02)

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2. Immigration Cases: TPS and Asylum

(04:25 – 12:43)

a. Mullen v. Doe (TPS Case)

• The Court allows the President to cancel Temporary Protected Status (TPS) for Haitian and Syrian nationals.
• Two key holdings:
  • Courts cannot review the President’s compliance with procedural requirements for rescinding TPS.
  • The majority (Alito) rules that TPS cancellation for Haitian nationals was not racist—even in the face of explicit racist presidential remarks.
• Practical implications:
  • Will result in the largest mass “delegalization” of immigrants in US history—impacting over 300,000 Haitians and 6,000 Syrians (06:00).
  • Effects will ripple through the American workforce, especially in healthcare, childcare, and construction.
  • Raises alarm about future law enforcement practices, likely involving racial profiling and collateral impact on citizens.
• Hosts’ reaction: Deep pessimism about what this means for immigration moving forward, including birthright citizenship.

  “It will affect more than 300,000 Haitian nationals and 6,000 Syrian nationals, and the delegalization isn't going to be confined to those groups… this will be massive…” — Leah Littman (06:00)

b. Mullen v. Al Otolato (Asylum Case)

• Another 6–3 Alito opinion: Allows the administration to bypass required procedures for asylum seekers stopped at the border.
  • “As long as a U.S. Border official manages to stop the asylum seeker at the border and prevent their entry...”
• Court's dismissiveness toward possible humanitarian abuses is called out.

  “…Alito basically dismisses the discussions about how this ruling might generate extreme, egregious, callous takes on asylum policy as just hypotheticals that weren't worth his too precious time.” — Leah Littman (11:55)

c. “Stephen Miller White Nationalist Maxing” (07:20, 11:30)

• Clips of then-Trump administration adviser Stephen Miller highlight administration spin for mass removal and elimination of asylum.
• The hosts underscore how quickly the administration pushes court wins to extremist ends.

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3. SCOTUS and the Use & Abuse of "History and Tradition"

(14:12 – 33:04, 54:27–56:10)

a. Second Amendment – Wolford v. Lopez

• Hawaii’s law banning guns on private property (unless owners consented) is struck down, 6–3 (Alito for the majority).

• Key issue: The case pits the “history and tradition” of gun rights against the tradition of private property rights—conservative darlings.

  “The real property interest this Court seems willing to protect is the property interest in a Glock.” — Melissa Murray (20:19)

• Alito applies the “Bruen test” (history/tradition as determining Second Amendment scope) but with new, looser, more subjective factors.

  “Wake up babe, new Bruen factors just dropped.” — Kate Shaw (21:39)

• Much of the discussion: the Court cherry-picks historical analogs to fit a desired outcome; laws with racist origins are sometimes included (e.g. Dobbs v. Jackson Women’s Health, anti-abortion laws), sometimes rejected (e.g. Hawaii’s cited 1860s Louisiana law).

  “Justice Alito seems to be someone who doesn’t mind taking account of laws tainted by racism when the ultimate goal is to rescind a woman’s right to choose an abortion.” — Melissa Murray (26:46)

• Justice Jackson’s Dissent:

  • Accuses the majority of “manipulat[ing] Bruen into a free for all that lets the judiciary thwart the will of legislatures by privileging access to firearms above all else.” (30:04)
  • Bruen is used as a tool to invalidate gun regulation regardless of actual historical analogs.

• Justice Barrett’s Concurrence:

  • Frames the issue as about gun rights, not property rights; would force gun regulation to happen via private ordering, not state law—untenable as policy.
  • Uses analogy to religious garb, but hosts note the false equivalency (“hijabs are not instruments of injury and death”).

b. The Broader Pattern

• Across cases, the Court is increasingly rendering longstanding statutory and constitutional protections for less powerful groups as “parchment promises”—unenforceable in practice (54:27).
• Congress’s ability to legislate is narrowed at almost every turn.

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4. Other Major Decisions Highlighted

a. Blanche v. Lau (Lawful Permanent Residents)

(37:28 – 38:56)

• The Court rules immigration officials can bar green card holders’ reentry without clear & convincing evidence they committed “crimes of moral turpitude,” undermining supposedly “permanent” residency.
• Host’s point: The Court now treats federal immigration law as “more of a suggestion than a rule,” despite railing in other contexts against “judicial lawmaking.”

b. Peng v. Isabella County (Tax Foreclosures)

(38:56 – 40:31)

• The Court upholds harsh historical foreclosure rules—rejecting takings and excessive fines claims, invoking “history and tradition.”
• “Personal responsibility mogging”: chiding property owners for not keeping up on taxes.

c. Lander v. Louisiana Dept. of Corrections (Religious Liberty)

(40:31 – 44:39)

• A prison official forcibly cut a Rastafarian prisoner’s dreadlocks; the question was whether he could sue under the Religious Land Use and Institutionalized Persons Act (RLUIPA).
• 6–3 (Gorsuch): Prisoners cannot sue individuals for damages unless those officials “consent” to be sued—which, as Jackson notes, defangs a huge swath of Congress’s power (in spending clause statutes).
• Dissent (Jackson): “This is entirely batshit crazy…”

d. ExxonMobil Corp. v. Corporacion CMEX (Suit Against Cuba)

(46:27 – 48:47)

• Court allows Exxon to sue Cuba for property expropriation under a statute that says nothing explicit about overruling foreign sovereign immunity.
• Observation: Corporations get broad private rights of action, but not prisoners. “It’s pretty good to be a corporation.”

e. Cisco Systems v. Do (Human Rights and Corporate Liability)

(51:15 – 53:09)

• Falun Gong practitioners can’t sue Cisco under the Alien Tort Statute for helping China persecute them.
• The Court holds that only Congress, not courts, can create such causes of action—despite past precedent to the contrary.

f. Monsanto v. Durrell (Failure to Warn and EPA Preemption)

(56:55 – 61:28)

• Court rules (7–2) that state-level lawsuits over Monsanto's glyphosate labeling are preempted by federal law—the EPA’s word is final.
• Justice Thomas (in his solo concurrence) airs classic anti–Commerce Clause and anti–administrative state grievances, signaling a return to Gilded Age, Lochner–era jurisprudence.

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5. Political & Legal News Round-Up

(65:40 – 74:31)

a. Federal Government Sues States Over Voter Rolls

• Trump administration is demanding unredacted voter rolls; courts are universally rebuffing these efforts, noting privacy and constitutional concerns (67:08–68:28).
• Feds threaten USPS non-delivery of ballots to non-complying states—implications for mail-in voting.

b. Executive Power, Congress, and the Art of the Deal

• President uses the threat of a veto or pocket veto to hold an affordable housing bill hostage, demanding the Senate pass the SAVE Act (voter ID bill), widely seen as disenfranchising (69:58–71:42).
• Discussion of constitutional options when a president refuses to sign legislation.

c. OLC Opinion on the ADA and Disability Institutionalization

• DOJ pivots toward more institutionalization of disabled individuals, claiming no federal integration mandate (72:40–74:18).
• Stephen Miller named as driver of this regressive stance.

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Notable Quotes & Memorable Moments

• On the Second Amendment Test:

  "He’s got so many feelings." — Leah Littman on Justice Alito (21:03)

• On Doctrinal Flexibility:

  "It just feels like the Court's analysis of historical analogues is a perpetual cycle of Lucy, Charlie Brown and the football." — Leah Littman (24:03)

• On Hypocrisy:

  "...This is another segment about the woke court doing woke history." — Melissa Murray (24:27)
  "He authored, and he read from the bench, another decision in which he maintained that the President's vile smears of Haiti and Haitians were not in fact racist, but merely the rough and tumble of politics." — Kate Shaw (26:07)

• Jackson’s Dissent (Wolford):

  “With this decision, the Court has now manipulated Bruen into a free for all that lets the judiciary thwart the will of legislatures by privileging access to firearms above all else.” — Justice Jackson (30:04)

• On Congressional Power:

  “Basically, parchment promises for victims of human rights abuses, lawful permanent residents, and the incarcerated.” — Leah Littman (54:27)

• On the "Rule of Law":

  "Kind of like how Trump can't be sued but can sue media companies, pollsters, and his own IRS. This is as always known as the rule of law." — Leah Littman (53:09)

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Timestamps for Important Segments

• Supreme Court’s End-of-Term Mood: 04:03–04:25
• TPS & Asylum Decisions Explained: 04:25–12:43
• Rewriting Second Amendment History (Wolford v. Lopez): 18:44–33:04
• Jackson Dissent Highlight (Wolford): 30:04
• Barrett Concurrence, Gun Rights vs. Property Rights: 31:28–33:04
• Green Card Holder Rights Hollowed (Blanche v. Lau): 37:28–38:56
• Strict Scrutiny on Tax Foreclosures (Peng v. Isabella): 38:56–40:31
• Religious Liberty Hollowed (Landor): 40:31–44:39
• Exxon v. Cuba (Corporations & Sovereign Immunity): 46:27–49:39
• Suppressing Corporate Human Rights Liability (Cisco): 51:15–53:09
• Pattern: "Pretty Good to Be a Corporation": 54:27
• Monsanto and Preemption (Big Ag wins over Cancer Victims): 56:55–61:28
• Thomas’s Gilded Age Kink: 59:40–61:28
• Voting Rights, Voter Roll Lawsuits: 65:41–69:58
• Veto Powers and Legislation Hostage: 69:58–71:42
• Disability Rights “Integration” Setback: 71:47–74:18
• Closing Favorite Things & Social Media Moments: 74:31–82:29

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Tone, Style, and Speaker Dynamics

• Irreverent, incisive, and dense with legal references and snark.
• Hosts repeatedly call out hypocrisy, especially in how race and history are used to justify contradictory outcomes.
• Express deep frustration and exhaustion with the term’s outcomes ("it is bleak this week… pretty bleak is a menace" — Kate Shaw, 74:18), but close with reminders that connection, community, and legal resistance still matter.

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Closing: The Big Picture

This week’s decisions evidence a Supreme Court determined to rewrite American law in the image of its conservative majority—limiting Congressional power, downgrading vulnerable individuals’ protections, supercharging gun rights, and privileging corporations and executive power. All, the hosts note, through a disingenuously flexible use of “history and tradition.” The show closes on a bleak but resolute note: “We really need each other.”

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For more in-depth, moment-by-moment legal breakdowns and snarky commentary, listen to the full Strict Scrutiny episode.

Transcript

[Melissa Murray]

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[Kate Shaw]

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[Kate Shaw]

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[Kate Shaw]

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[Kate Shaw]

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[Leah Littman]

Mr. Chief justice, please, the court.

[Commercial Narrator]

It's an old joke, but when I argue, man argues against two beautiful ladies

[Kate Shaw]

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

[Melissa Murray]

She spoke not elegantly, but with unmistakable, 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. We're your hosts. I'm Melissa Murray.

[Leah Littman]

I'm Leah Littman.

[Kate Shaw]

And I'm Kate Shaw. And we are in the home stretch of this Supreme Court term with opinions in argued cases coming fast and furious. So we're going to spend today's episode mostly breaking those opinions down for you. There will be even more opinions released the day this episode drops. That's Monday. So who knows? We might be in your ear holes again soon, and either way, it's going to be a busy and probably terrible week for all of us. So buckle up.

[Melissa Murray]

Awesome, Kate. What a way to start. All right, so last week we got 10 opinions from the court and nine were in argued cases. On Thursday, we did a same day emergency episode covering two immigration decisions. So we'll briefly discuss those here, but we'll spend more time covering the decisions we didn't talk about in that emergency episode. The first decision that we covered in the emergency episode was Mullen v. Doe, which is a decision from the court decision that allows the President to cancel temporary protected status protections for Haitian and Syrian nationals. There were two questions in this case. One was a statutory question, whether the administration had complied with the required statutory procedures for rescinding temporary Protected Status, or tps. And the second question, which was a constitutional question, whether the administration had acted with unconstitutional animus in rescinding those statuses. As Justice Alito, who wrote for the majority, explained, courts cannot review whether the executive branch has complied with the statutory procedures that Congress imposed for the rescission of those protected statuses. And with regard to the constitutional question of Racial animus. Our favorite WOKE warrior, Samuel Alito, reminded us all that the only way to stop discrimination on the basis of race is to ignore discrimination on the basis of race and instead allow the administration to engage in rank xenophobia. Actually, the court specifically said that the cancellation of TPS for Haitian nationals was not racist, despite the President's many, many racist and targeted remarks about Haiti and its people.

[Leah Littman]

WOKE Lido so many takes. When we covered the TBS cases in our emergency episode, we had just digested them. Since taping the episode, we have some additional thoughts which we wanted to highlight. First, we should discuss the practical implications of the decision, which will likely bring about the largest delegalization of immigrants in our history. It will affect more than 300,000 Haitian nationals and 6,000 Syrian nationals, and the delegalization isn't going to be confined to those groups. The administration has sought to cancel TPS for many other countries as well. Note, not really majority white countries, but when Trump took office in 2025, there were over a million people with TPS, and many TPS holders have been in this country for decades. I think it's easy for American citizens to think this won't affect affect them, but it's going to. Many people who work in the healthcare industry, whether it's physicians, nurses, orderlies, EMTs, are immigrants who are TPS holders. Many childcare workers and others in care industries are TPS holders. People who work in construction trades, basically every industry. This will be massive and we will all be impacted in ways both profound and banal. And this is to say nothing about the law enforcement practices that the administration might undertake to effectuate these mass removals and deportations, which are likely to sweep in citizens as part of racial profiling and more.

[Kate Shaw]

And if the administration actually does kick that mass deportation into high gear and returns TBS holders to their home countries, they will face horrific conditions. The conditions in Haiti are particularly egregious, a fact that Justice Barrett is likely acutely aware of, given that two of her children were adopted from Haiti. Okay, should we play a clip from the administration's reaction to this decision? Let's play a clip of Stephen Miller. I don't know what the. He is Deputy Chief of Staff. Is that what he is? Anyway, let's play a quick white wing

[Leah Littman]

chief of staff now. Again, I'm so angry already. I apologize to our listeners.

[Kate Shaw]

Yeah, no, I. Especially on tbs. I feel like I've been that my rage level has been increasing basically by the hour since the opinion came down on Thursday. Okay. Anyway. Yeah, so. So this is Miller's reaction to the

[Commercial Narrator]

opinion in the first Trump administration. President Trump ended TPS for Haitian illegals and was frozen by the courts. The Biden administration came in, they flew Haitians right over the border by airplane, dumped them into American towns all over the country, particularly in Springfield, Ohio, destroying these tight knit communities, and gave them all, again, this TPS temporary protected Status, which gives them unfettered access to welfare and other benefits in the United States. Trump ended that benefit again here in the second term, even though the statute says that it is judicially unreviewable, meaning Congress said the courts can't review it. A rogue radical judges stymied that for the last 16 months. And again, now here we are because of the Supreme Court and we can finally remove these Haitian illegal migrants from the United States.

[Melissa Murray]

I'm going to say something incredibly pessimistic that you probably don't want to hear, and it is this. We were feeling kind of optimistic about where things were headed in the birthright citizenship case. After the oral arguments, I'm not so sure anymore.

[Kate Shaw]

I had the same thought.

[Leah Littman]

So can I tell you something else along those lines? As we talked about, when we talked about these cases, the dissents said respectfully. All of the dissents have said respectfully. What are they saving? They're not respectfully for.

[Kate Shaw]

There was a way to, I mean, there was no remotely reasonable way to decide this case. But you could have said judicial review exists and somehow, like, they did enough, they consulted by asking, and that's like a ridiculous statutory argument, but like they did something, they being, you know, the administration to satisfy the statutory criteria. The decision to find that there is literally no judicial review of these determinations, except maybe for some future Democratic presidents, TPS decisions. That is the maximalist disposition of this case. And I, Melissa, had the same thought. The tenor of these cases is so scary. On an immigration question, I still think that most likely the birthright order goes down, but I would say I'm far from 100% certain.

[Leah Littman]

Yeah. Again, I just feel like whether it's absentee ballots or birthright, there's gotta be that case that they are.

[Melissa Murray]

It would be birthright, right?

[Leah Littman]

Yeah. And it's just nauseating. But there was a second immigration case that we covered on our Thursday episode, and that was Mullen versus Al Otolato, where in another six to three opinion authored by Samuel Alito, the Republican supermajority allowed the administration to circumvent all of the required procedures and protections for asylum seekers arriving in the United States. So long as a U. S. Border official manages to stop the asylum seeker at the border and prevent their entry across the border.

[Kate Shaw]

So on both of these cases, if you want to hear more about how the court has enabled the Trump administration's aggressive and inhumane immigration policies, including policies designed to exclude or expel black and brown immigrants, listen to that emergency episode from last week. Also, if you want to read more, I and also friend of the show Elora Mukherjee have pieces in the Times on various aspects of the first case, the TPS one. And Leah has a piece in the Atlantic touching on TPS and other cases and also one in the Contrarian on the TPS and asylum cases.

[Leah Littman]

Yeah, so we played a clip of Miller on the TBS cases. Also wanted to play a clip of him talking about asylum protections in the wake of Al Otolato, which you can hear here.

[Commercial Narrator]

I think the most important point is that this administration on the asylum point is we've implemented international agreements all over the world to take in our asylum seekers. So America's doors are closed fully to asylum seekers.

[Leah Littman]

And I guess what I wanted to flag about this is he seems to be saying there's just no asylum, period. And in El Otolato, Justice Alito basically dismisses the discussions about how this ruling might generate extreme, egregious, callous takes on asylum policy as just hypotheticals that weren't worth his too precious time. Much like the Chief Justice's immunity opinion dismissed the fears of the Democratic dissenters as fear mongering and far fetched when many of them have come to pass. And within the same day of Justice Alito's opinion in the asylum case, Stephen Miller is already maxing it to its most white nationalist extent.

[Kate Shaw]

Excellent work. John Roberts assigning that opinion to Sam Alito joining it in full. Goodbye, sir.

[Melissa Murray]

I mean, it felt like Thursday was Alito day at the court, which we

[Kate Shaw]

will get into, which is the worst kind of day, the worst kind of day in any timeline. Okay, before we move on to the other opinions we want to discuss, I just wanted to quickly correct something we said in our emergency episode. So we were talking about Alito issuing from the bench, a rebuttal to Sotomayor's bench statement. And we thought that, we speculated that that might have been unprecedented. But commentators have now identified a couple of other examples of that. So Mark Walsh noted that actually I didn't remember this, but in 2015, in the lethal injection case Glossop vs Gross, Justice Scalia responded from the bench to Justice Breyer's bench statement. That was his dissent and then also really, really sort of dialing the clock back. Rory Lilly, in the archive. Right, in the archive, noted that in 1961 there was an exchange between Warren and Frankfurter about a criminal justice case. So, anyway, Alito's conduct, though peevish and very much on brand, was actually not unprecedented, but it was definitely unusual. We don't typically see that sort of thing with the court, but obviously this is not your typical court.

[Melissa Murray]

I appreciate your commitment to errata, but I like, seriously, 2015, okay, that's reasonable. But like, 1961. Jesus Christ.

[Kate Shaw]

Like, come on.

[Melissa Murray]

Anyway, doesn't happen a lot.

[Kate Shaw]

Sure doesn't.

[Melissa Murray]

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That's 15% off OneSkin Co with the code strict. And after you purchase, they'll ask you, where'd you hear about us? Please support strict scrutiny by letting them know that the ladies at Strict scrutiny helped you in your skincare journey. So listeners, I don't know how else to tell you this. We are in the thick of bad decisions season, which means that we now have to focus on the other decisions that were handed down last week. Although we've got lots to say about these TPS cases, and they may continue to filter through our discussion of these cases, but we're going to focus on these other cases because guess what? They suck too. All right, first up was a Second Amendment case, Wolford vs. Lopez. And this was a 6 to 3 opinion authored by, you guessed it, Samuel Alito, in which the Court invalidated a Hawaii law that created a default presumption prohibiting guns on private property that is otherwise open to the public unless the private owner consents to the carrying of guns on the property. Writing for the conservative supermajority, Justice Alito concluded that the challenge law violated the Second Amendment because it hobbles what the Second Amendment protects the right of Americans to carry arms for self defense as they go about their daily lives.

[Leah Littman]

And.

[Melissa Murray]

And at this point you should insert the meme of Arthur the aardvark clenching his fists. Now, if that seems a little overstated to you because the law does little more than require the private property owner's consent before allowing firearm possession on the private property, I'm just here to tell you that this case probably created a real conundrum for the Court's amisexuals because it pits the history and tradition of bearing arms against the equally long history and tradition of protecting private property rights. Something that conservatives have always been really into, but now they seem less into it because the real property interest that this Court seems willing to protect is the property interest in a Glock. So there we are.

[Leah Littman]

William Blackstone paraphrased, guns are the true private property.

[Melissa Murray]

Black block.

[Commercial Narrator]

Right? Exactly.

[Melissa Murray]

Blackacre.

[Leah Littman]

Black Acre.

[Kate Shaw]

No, exactly.

[Melissa Murray]

Black block. Black Uzi. Right.

[Leah Littman]

This, I have to say, I just found it to be a kind of weird take to think that the founders would have said property owners can't keep dangerous stuff off their property, or at least that the state couldn't require you to ask a property owner and get their affirmative explicit consent before bringing something dangerous onto their property. But always appreciate Sam Alito's historical fiction.

[Melissa Murray]

You know, so making black AR15 happen.

[Kate Shaw]

Exactly.

[Leah Littman]

And you know, because he's so great at history. This was, unsurprisingly an application of the Supreme Court's legal test from Nyserpa vs Bruen, the Second Amendment decision which said court should determine whether a gun control measure is constitutional by asking if it fits within the nation's historical tradition of firearm regulation. As an added bonus, however, Alito provided some additional gloss on the Bruin test, injected more squishiness more discretion, more opportunities for subjectivity. Like the vibes weren't vibing enough for him, so he had to make room for even more. He's got so many feelings.

[Kate Shaw]

It's like, wake up, babe. New Bruen factors just dropped. And these factors, I wish I could say I really understood them, but there's like, I gather you're not supposed to just ask whether there were historical analogues, but now how many, which we sort of knew, but also whether any analogous historical laws were well accepted. So I think that's new and also sounds super objective and determinate.

[Leah Littman]

We're making Second Amendment law a popularity contest.

[Kate Shaw]

So that's gonna go super well. Sure, why not? It did feel like for an originalist opinion, they definitely had some original takes on history. So again, as Leah said, under the Bruin test, to comply with the Second Amendment, the challenge gun safety law has to fit within the history and tradition of firearm regulation in the United States. Like that is what Bruen says. And now there's been all of this overlay atop it. So here Justice Alito basically made clear how the test is now going to work, at least for the kind of amosexually inclined. Hawaii defended its law by pointing to a common law tradition in defense of private property rights. Rights to exclude people for whatever reason the property owners dreamed up. Well, although that sounds like the sort of Ann Randian kind of fantasy that you'd think Alita would be drawn to. Actually, no, proletarialito. We haven't pulled that one out in a while. Was that from the first Nicerpa case

[Leah Littman]

or was it from Bruin member?

[Kate Shaw]

Yeah. In any event, so the opinion begins with a declaration of, quote, overwhelming evidence of, quote, an enduring American tradition permitting public carry. He somehow seems to be saying with a straight face that there was a common law rule about access to private property, carrying a gun, when it's not even clear what like private property open to the public meant at the founding. Given that here we are talking about like unenclosed or unimproved lands, are they

[Leah Littman]

carrying around muskets on private. I just don't understand.

[Kate Shaw]

None of this makes any sense. Yeah.

[Leah Littman]

Invoked the anti poaching laws from early U.S. and English history that prevented carrying guns onto private property. Justice Alito dismissed these historical analogs, saying, well, that was to prevent unauthorized hunting and poaching.

[Melissa Murray]

It wasn't hunting with guns. Poaching with guns.

[Leah Littman]

No, no, no, no, no, no. Guns don't kill animals. Hunting does. Melissa, I think that that was his

[Melissa Murray]

people kill animals,

[Leah Littman]

but he just said that was simply too different from Hawaii' not affect the second Amendment's central objective of protecting self defense. It just feels like the Court's analysis of historical analogues is a perpetual cycle of Lucy, Charlie Brown and the football. Like I'm sure, right, you'll be able to get it sometime. It just turns out the history is never quite on point.

[Melissa Murray]

Speaking of Bruin football, the Court, when doing history and tradition, seems a okay with saying that some history counts and some history doesn't. And the history that should not be able to count is really dependent on whether the Court thinks that history is. Wait for it, racist. Right. So this is another segment about the woke court doing woke history. So the Hawaii state government defended its gun control law by analogizing it to a Louisiana law from the 1860s that prevented gun possession on private property without the private property owner's consent. Hmm, seems on point. But if Bruin requires consistency with the nation's history and tradition in firearm regulation, and that regulation actually has to be consistent with being anti racist, as this Court has always been an anti racist court as well. So the problem with this law from the 1860s is that it is basically a law that was passed in Louisiana in the 1860s for the purpose of disarming African Americans. Because the law was intended to disarm newly freed African Americans, Justice Alito has surmised that it is racist and cannot be considered or should not be considered in the history and tradition calculus. So despite the fact that it is completely on point with the modern law that has been challenged, we can't even consider it as part of the nation's history and tradition of firearm regulation, because racism. Just a reminder that at the oral argument in Wolford, Justice Jackson made several pointed remarks about how the conservative Justices constantly cherry pick history and cherry pick whether or not they give a fuck about legalized racism.

[Kate Shaw]

And in addition to that reminder of Justice Jackson, also a reminder that on the very same day that Justice Alito issued this decision decrying consideration of a 19th century law because it was irredeemably tainted by racism, he issued, he authored, and he read from the bench another decision in which he maintained that the President's vile smears of Haiti and Haitians were not in fact racist, but merely the rough and tumble of politics merely stating the nature of affairs on the Caribbean island. I mean, I mean, it's not news that these guys are wildly hypocritical, but this I, I felt was a particularly galling example of that hypocrisy.

[Melissa Murray]

Trolito yes, woke Trolito. Okay, I want to take a few more beats on cherry picking history because we need to note that Woke warrior Sam Alito, who will not deign to consider a racist law from the 1860s, is also the author of Dobbs vs Jackson Women's Health Organization, which rescinded the constitutional right to an abortion on the view that in 1868 when the 14th Amendment was ratified, there were laws criminalizing abortion in existence. And notably many of the laws that Justice Alito cited were laws that were animated by, wait for it, nativist slash racist fears that native born white women were using contraception and abortion to limit the number of children that they had while their black and immigrant sisters were having large families, and that this birth disparity would inevitably shift the demographic character of the country, making the United States less white and less WASPy. All to say that Justice Alito seems to be someone who doesn't mind taking account of laws tainted by racism when the ultimate goal is to rescind a woman's right to choose an abortion.

[Kate Shaw]

No, but Melissa, he already told us racism, it's xenophobia, not racism. Ergo it is just fine.

[Leah Littman]

Well, and also I vaguely recall something in Dobbs about him saying, well, we the Court don't like to question legislatures motives and ignore laws based on conclusions that the legislature's motives were improper. Both. And, and Brnovich too.

[Kate Shaw]

Yeah, he's definitely, yeah, yeah, so on and so forth.

[Commercial Narrator]

You.

[Leah Littman]

Well, speaking of Louisiana versus Calais, despite Sam Alito being very triggered by considering the relevance of racist laws to constitutional analysis in Wolford, I remind him that he wrote the decision in Louisiana versus Calais nullifying section 2 of the Voting Rights act, the law that literally made the country a multiracial democracy, such that any laws passed before the Voting Rights act, particularly in the south, would be products of Jim Crow segregation. So should we be ignoring all of them? I just am so curious.

[Melissa Murray]

How do I do the history? Sir, please tell me exactly.

[Kate Shaw]

This is just like drunk history is the way he is doing it. Drunk and opportunistic history. And you know, we've sort of belabored this, but maybe just another example is that the conservative supermajority brushes away in addition to the other kinds of evidence that Hawaii marshals, evidence from before Hawaii actually became a state that limited the carrying of deadly weapons. Now I don't know that it's clear on Bruen's own terms, like what the actual weight of that evidence should be, but it is definitely meaningful and problematic that Alito doesn't really engage with how to weigh a state's pre statehood legal history, instead insisting in what felt to me like a pretty dismissive, contemptuous kind of way, this idea that the spirit of Aloha could somehow justify gun regulations. He says the spirit of aloha cannot shrink the rights guaranteed by the second Amendment.

[Leah Littman]

Thinking about making a T shirt. I am the spirit of Aloha.

[Kate Shaw]

Spirit of aloha. This Sam Alito would where, yeah, unsurprisingly,

[Melissa Murray]

Justice Jackson sharpened her pen in dissent to once again take aim at Bruin and how stupid and misguided the tests and maybe even her colleagues are. She also had this to say, quote, with this decision, the Court has now manipulated Bruin into a free for all that lets the judiciary thwart the will of legislatures by privileging access to firearms. Above all else, today's decision makes one thing clear. The Court's objective is protecting guns, not consistently preserving any principle of of law. Shorter, kbj this dumbass test is just another vehicle for my awful colleagues to continue aggrandizing power to themselves and the National Rifle Association. KBJ out.

[Leah Littman]

And I think she was pointedly on to something which is the Court is just all over the map on how Bruen works. And Wolford seems to gerrymander the test in ways that are designed to strike down gun control regulation and just view gun control regulation as just not a legitimate part of governance. So for example, in Bruen the Court had suggested in order to show a historical analog, you really need to focus on enacted laws. Rahimi said, no, that's not the test. Now Wolford comes back and actually says, well, the best evidence of historical tradition is enacted historical analogues. It also defines the arms that are protected under the Second Amendment somewhat more capaciously than some lower courts have. It's just all over the place.

[Commercial Narrator]

Yeah.

[Kate Shaw]

I just want to say briefly like a word or two about Justice Barrett's concurrence, which did feel to me like her gloves have kind of come off. I'm thinking particularly of her accusations.

[Melissa Murray]

The gloves were always velvet.

[Kate Shaw]

Well, there are no gloves at all at this point. But basically it's not the majority on Barrett's account that like smuggles things into the Bruin test, as we have just been suggesting, but actually it's like Hawaii and Justice Jackson in dissent. So she like three, I think, or maybe four times, like, calls out the principal dissent, which is Jackson's dissent by name, accuses the Jackson dissent of erroneously claiming that is that Bruen leaves judges free to insert any meaning they desire into the text of the Second Amendment. And she basically says, no, that's not true. Basically you're asking us you dissent in Hawaii to smuggle additional limits drawn from our regulatory tradition into the plaintext stage of the inquiry. So they're sort of fighting about both stage one and stage two of the Bruen test, such as they are, which I don't even really understand at this point. But one other Barrett point, she draws an analogy to a law that set the default that religious garb could not be worn on private property without the express consent of the owner. And she's like, aha, you wouldn't like that. And so you shouldn't like this default. And I do think that the kind of the troll equality to that example suggests that she is learning from her woke warrior colleagues. And I just. All I can say in response, not that it matters to these ghouls, is that in any sane world, the fact that hijabs are not instruments of injury and death would make a difference in assessing a state's regulatory interest in those two things. But alas, that is not Amy Coney Barrett's world, and it is not ours.

[Melissa Murray]

So I thought her concurrence was super interesting for all of the reasons you suggest, Kate, but also because she seems to be contesting the grounds of the debate. So one of the things that Justice Jackson did was to call out the majority for a decision that is not just inconsistent with a history of firearm regulation, but a history in which conservatives and the law have always prioritized private property rights. And Barrett seems to be suggesting that this case isn't about private property rights at all. It is first and foremost about gun rights. And therefore there is no inconsistency or lack of principle. And you know, as she explains, everyone knows that private property owners have the right to exclude people and guns from their property. But in this case, she writes, quote, unquote, quote, the second Amendment doesn't apply to private parties. It does apply to the states. And when a state enacts a property law that regulates arms bearing conduct, that law implicates the Second Amendment. So basically, she's saying, if you're going to plausibly limit gun possession on private property, the prohibition cannot come from a state enacted law. It has to be an individual prohibition from each private property owner, which is obviously untenable as a policy matter for gun safety. But this seems to be the future of Second Amendment jurisprudence. Anything that the government does to regulate guns is going to be presumptively unconstitutional. Everything would have to happen through private ordering. This episode is presented by Planned Parenthood Federation of America. If you listen to strict scrutiny, you already know this administration, this Congress and these courts have spent the last few years making it harder to get health care in this country and it's patients who are paying the price. Take the Supreme Court. The Supreme Court paved the way for states to exclude Planned Parenthood health centers from state Medicaid programs in Medina v. Planned Parenthood. This undoubtedly violates patients rights to get care from quality providers that they choose. And last year the Trump administration and Congress defunded Planned Parenthood trying to shut down Planned Parenthood and block patients with low incomes from accessing birth control, cancer screenings, STI testing and more. That's why Planned Parenthood is fighting back. But fights like these take resources and supporters just like you. No matter the size, your donation makes a real difference helping Planned Parenthood meet this moment and protect patients access to care when and where it matters the most. If you believe that all people should get health care no matter their income, donate [e-mail] defend strict scrutiny is brought to you by Lisa. My annual spring reset always starts with good intentions, but this year I actually followed through on something very important replacing my old mattress. I just switched to a Legend from LISA for a legend like me, and it's been a much needed change in my legendary life. I'd become so used to waking up with aches and pains every morning, I actually forgot what it felt like to get a good night night's sleep. Well, Lisa has reminded me LISA has a lineup of beautifully crafted mattresses that are tailored to how you sleep. From night one, you will feel the difference. Premium materials that deliver serious comfort and full body support no matter how you sleep. Just take the LISA Sleep Quiz and you'll find your perfect match in less than two minutes. And getting a Lisa couldn't be easier with free shipping, easy returns and a 120 night sleep trial. Plus, Leesa is a choice that you can actually feel good about. Leesa donates thousands of mattresses every year to families in need, and they partner with organizations like Clean Hub and Green Worms to help remove harmful plastic waste from the environment. So if you want to get a better night's sleep and make a difference, just head over to Leesa.com for 30% off select mattresses. Plus you can get an extra $50 off with promo code strip strict exclusive for strict scrutiny listeners. That's L E-E-S a.com promo code STRICT for 30% off select mattresses plus an extra $50 off for STRICT scrutiny. Listeners support strict scrutiny. And let Lisa know that we sent you for a good night's sleep after checkout. That's Lisa.com promo code strict.

[Leah Littman]

Now for the other decisions. So one decision from last Tuesday was Blanche versus Lau. So this case concerns legal protections for lawful permanent residents and in the hierarchy of immigrants, lawful permanent residents, green card holders are supposed to have the most rights, including the right to leave the country and return to the country. Federal immigration law carefully restricts when lawful permanent residents are not allowed to return to the United States with their immigration status. It allows immigration officials to refuse to allow a lawful permanent resident to return to the United States that is to be denied admission to the United States with their legal status as a lawful permanent resident if there is clear and convincing evidence that the lawful permanent resident committed a crime of moral turpitude. And in this case, the Supreme Court said said laws and decided that immigration officers can refuse to admit green card holders even if the government doesn't have clear and convincing evidence that the green card holder committed a crime of moral turpitude. Which kind of takes the whole, I don't know, lawful permanent and resident elements out of lawful permanent resident. The court made federal immigration law more of a suggestion than a rule. And I vaguely recall how this court really hates it when previous courts had, quote, unquote, made laws rather than interpreting them, and how they railed about how only Congress can change the meaning of statutes and their terms.

[Melissa Murray]

Hmm.

[Leah Littman]

Yeah.

[Melissa Murray]

All right, let's turn to Peng versus Isabella County. This case involved the problem of tax foreclosures. Side note for you listeners later this summer, we have on deck for you a terrific conversation with the University of Southern California's Professor Bernadette Atuahenney about her recent book, book Plundered, which considers tax foreclosures in Detroit and is very much on point with this case, so please stay tuned for that. In any event, in most tax foreclosures, homes are often sold below their fair market value in order to satisfy existing tax liens on the property. And in this case, the plaintiff's home was foreclosed and auctioned to recover about $2,200 in unpaid property taxes. The wrinkle, though, was that the home was assessed at $194,000 but sold at auction for just $76,000. The owner, Peng, received the difference between the sale price and the amount of taxes, but he sued, claiming that the state also owed him the difference between the assessed value and the sale price. Specifically, he argued that the failure to pay the difference amounted to an unconstitutional taking and a violation of the Eighth Amendment's prohibition on excessive fines. Predictably, in a 6 to 3 opinion authored by. Who else else? Justice Alito, the court foreclosed on Peng's argument by doing some history and tradition interleavened with some personal responsibility mogging. Basically, the foreclosure method, Justice Alito held, is consistent with the history and tradition of foreclosing on homes. And Peng should have refinanced and paid his property taxes like a responsible homeowner would. As for the Eighth Amendment's excessive fines claim, well, history and tradition rules that out too.

[Kate Shaw]

On to Lander vs. Louisiana Department of Corrections. And this is a big one. So you know how the Roberts court has a huge Jones for religion and religious practice?

[Melissa Murray]

Sure.

[Kate Shaw]

Weirdly, you think you do. And yet that was not on display, strangely in this religious liberty case, leaving the strong impression that said Jones is

[Melissa Murray]

only for white Christians and religions that they recognize.

[Kate Shaw]

Yeah, that's.

[Commercial Narrator]

That.

[Kate Shaw]

That's fair. So. So maybe we learned that. And we may also have learned that this Jones in general plays, or maybe just in a case like this, plays second fiddle to the right wing project of clipping Congress's wings and attacking public benefits programs and the social safety net. Lander involves a Rastafarian prisoner whose dreadlocks were cut off by prison officials in violation of his religious convictions and religious practices. It's worth noting that when he was transferred from one facility to another, he was afraid that he would have his locks cut. So he provided prison officials with a printed document that explained that they could not cut his hair because free exercise. And what did they do? They threw that printed judicial opinion in the garbage and held him down and forcibly cut his hair, shaved his head.

[Melissa Murray]

Because, Kate, who cares about free exercise unless you're a trad wife or a trad dad, right?

[Kate Shaw]

Not the matter for you. Clearly.

[Melissa Murray]

That's right. To be clear, this case, despite the religious overtones, is not a straight up free exercise claim claim. Instead, the prisoner Landor sued the prison officials for damages under the Religious Land Use and Institutionalized Persons act, or also known as rlua. RLUPA was enacted to ensure that prisons and other state institutions protected the religious practices of those who are in their charge. And the statute was enacted under Congress's authority under the spending clause, and its terms apply to any local prison that accepts federal funding. Those terms from the statute require state prisons to protect inmates religious liberty and explicitly permits prisoners to sue for quote, unquote appropriate relief when their rights under RLUIPA have been violated. Yet despite these very clear provisions, the prison officials that Mr. Landor sued argued that they could not be sued in their individual capacities under rluipa.

[Leah Littman]

And the Supreme Court agreed again because laws, at least Spending clause laws, those aren't real. They're just guidelines, not. Not actual laws. They're more law. Ish. So in a decision authored by Neil Mild Gummy Gorsuch, a 6 to 3 majority held that our loopa itself is basically a mild gummy and does not authorize lawsuits seeking damages from prison officials in their individual capacity. The court bifurcated the idea of obligations on one hand from liability on the other and said, well, the Spending Clause can impose an obligation, but no liability unless they specifically consent. So Justice Gorsuch explained pedantically, quote, congress's power to spend money does not include the power to regulate Spending Clause statutes can bind only those who voluntarily and knowingly undertake obligations by agreement with the federal government. Here the individual prison officials didn't agree to be bound by our LUPA's terms, so they can't be sued for violating them, even though the Court maintained they are still subject to and bound by them.

[Commercial Narrator]

It's just.

[Melissa Murray]

So Justice Jackson issued a vigorous dissent here, and the dissent basically boiled down to this. This is entirely batshit crazy and effectively renders all Spending Clause statutes as unenforceable against individual officers who are charged with carrying out the terms of the statute. And that is to say, that's a lot of statutes. In the last 30 years, as this court has foreclosed Congress's authority to pass legislation under the Commerce clause and Section 5 of the 14th Amendment really narrow those heads of congressional authority. It is the Spending Clause that's emerged as a crucial means by which Congress can continue to enact legislation, or at least could continue to enact legislation. This is not to say that Congress can't do that under the Spending Clause, but now it seems like whatever they do under the Spending Clause is really more legislation. Ish, a suggestion, not necessarily binding law.

[Kate Shaw]

And I'm not even totally sure. So back to the immigration cases for a moment. Like with the TPS case case, I mean, an administration, you know, willing to completely defy the law is going to be hard for Congress to respond to. But Congress could legislate and explicitly extend protections to individuals who are current TPS recipients. And I mean, there are legislative responses that are possible. It's not even totally clear to me like what Congress is supposed to do here if it's acting under the spending clause that would have produced a different result. I mean, maybe creates a mechanism by which like individual state and local prison officials, like consent to the terms of like federal monies. But I honestly don't even know how that would work. And it just, it this, the kind of breadth of this opinion and also like its foreclosing of kind of democratic avenues for response is like really pretty stunning. Okay, on that note, onto the next case, ExxonMobil Corp. Vs. Corporacion CMEX. Let me give a little bit of background before delving into what's at issue in this case. So after the Cuban revolution, Castro's government seized a lot of property, including, including property owned by American businesses. Then in the mid-1990s, to afford what this statute called victims of quote, Castro's wrongful seizures, a quote, judicial remedy in the courts of the United States, Congress passed a law, the Helms Burton act, which created a private right of action for u. S. Nationals, including u. S. Corporations whose property had been unlawfully confiscated by the Cuban government. Well, you might be thinking in light of the conversation we just wrapped, didn't our loop also create a private right of action for prisoners whose religious liberty was violated? Well, you'd be right. But one critical difference, I mean, there are others, but this is one important one, is that prisoners aren't oil companies. When the party seeking to enforce a right is a wealthy U. S. Corporation, the analysis and the outcome is of course different.

[Melissa Murray]

Anyway, said wealthy corporation Exxon brought this suit against cemex, a company that is controlled in part by the Cuban government. Again, this case is kind of a right wing fever dream in some ways. It involves oil corporations and a communist country that America is determined to starve into supplication location. But notably, it wasn't all smooth sailing for Exxon in enforcing its judicial remedy against CMEX for expropriating its property. Exxon did have to get over the hurdle of what is known as foreign sovereign immunity, which means that foreign sovereigns like Cuba are presumptively immune from suits in United States courts. The principle of foreign sovereign immunity is codified in the foreign sovereign immunity act which says that foreign sovereigns can't be sued in the United States States courts unless one of the act statutory exceptions is satisfied. Accordingly, the question for the court here is whether the Helms Burton act abrogates foreign sovereign immunity or whether plaintiffs like Exxon satisfy one of those statutory exceptions in the foreign sovereign immunities act that allows it to abrogate foreign sovereign immunity

[Leah Littman]

here in a 6 to 3 opinion authored by Coach Kavanaugh. The court held that the Helms Burton act abrogated abrogates the Cuban government's sovereign immunity, meaning that plaintiffs who rely on the Helms Burton act to sue the Cuban government or its instrumentalities are not required to satisfy an exception to the Foreign Sovereign Immunities Act. As Coach Kavanaugh wrote, quote, stacking an FSIA requirement on top of the Helms Burton act would thwart Congress's design and directly contravene the President's foreign policy judgments. End quote. Sounds like textualism to me. A few things to note about about this decision. First, for a self identified textualist, Brett Kavanaugh had to engage in some pretty tortured statutory interpretation to arrive at this outcome because inconveniently the Helms Burden act doesn't say that it abrogates sovereign immunity. Obviously, the lack of an explicit text abrogating Cuba's sovereign immunity was not going to pose an obstacle to this court having a good time. So TLDR Exxon wins, Cuba loses. 6 3. This is a ruling that will likely accrue to the benefit of Marco Rubio and any oil companies who want to sue Cuba for appropriating and expropriating their oil. It seems that foreign sovereign immunity, like stare decisis, is also for suckers.

[Melissa Murray]

I just want to chime in here to say that I think this decision benefits more than just Exxon and Marco Rubio. And I think Coach K tips his hand a bit when he says that requiring compliance with with the FSIA would, quote, directly contravene the President's foreign policy judgments. It seems to me that Coach Kavanaugh is trying hard to make Curtis Wright happen again. And Curtis Wright vs United States is a 1936 decision written by Justice George Sutherland that is widely credited with advancing the view that the President enjoys wide, even plenary authority in the conduct of foreign affairs. And although the decision hasn't been entirely discredited, many commentators have rightly noted that it is somehow a historical in its account of how the President came to be the primary mover in the field of foreign affairs and that it substantially discounts Congress's own congressional power in the arena of foreign affairs.

[Kate Shaw]

And can we say Chief Justice Roberts in his Ibitosky opinion basically says that? So it's not even just like once upon a time Roberts kind of agreed that Curtis Wright should not be overread in exactly the way it sounds. You're, you're, you're suggesting Kavanaugh seems eager to do sorry to Jump in, Melissa.

[Melissa Murray]

No, no, no. Like that's exactly right. I think, though, you should read this Exxon opinion in tandem with Kavanaugh's 63 page dissent in the tariffs case, where he seems to be aggrandizing the President's authority in foreign affairs policymaking and shrinking the judiciary's ability to review and check that authority. So it's not even that Curtis Wright limits the authority that Congress might have. Now Kavanaugh is also trying to limit the authority that the courts might have to check the President in this area. And he's basically advocating for the executive to be a monarch in foreign affairs at a time when I think it's increasingly difficult to draw the boundary between what is domestic and what is foreign affairs. And the tariffs case are a perfect example of that. Like the majority in the tariffs case treat the question of the tariffs as though they are a domestic affairs question and they apply the major questions doctrine. But Kavanaugh in dissent talks about this as a foreign policy kind of question. And, you know, I think they're both right. It is a foreign policy question that obviously has domestic implications and a domestic question that has foreign policy implications because we live in an increasingly globalized economy and society where foreign affairs and domestic affairs are often inextricably intertwined. And I just think this is a really dangerous take. And he's making it happen totally.

[Leah Littman]

We also got the decision in Cisco Systems vs Do, which considered corporate liability for human rights abuses. Here the plaintiffs, Falun Gong practitioners, alleged that the Chinese government persecuted them for their religious beliefs and that Cisco enabled the persecution by developing surveillance technology that the Chinese government used to identify and apprehend them. At issue was whether the plaintiffs could bring lawsuits against Cisco to hold the company liable under the Alien Tort statute. There is also a secondary question as to whether two of Cisco's executives could be liable under the Torture Victim Protection Act.

[Kate Shaw]

And the court held again 6, 3 that courts may not create new causes of action, I.e. authorization to file suit for violations of international norms under the Alien Tort statute. The court reasoned that Congress rather than courts, is in the best position to weigh the implications and policy trade offs of creating liability under the statute. The TLDR is that this court won't allow plaintiffs to sue for human rights abuses that in recent years have come to be understood as violations of international law. The ats, like spending clause statutes and some parts of federal immigration law is evidently more of a vibe than hard law. And we should say this was not the first time the court considered this issue of private causes of action under these statutes and specifically the ats. For years, then Chief Justice Rehnquist and Justices Thomas and Scalia had a bee in their collective bonnet about this question. So they had a lot of kind of righteous indignation over court created causes of action. But one thing they did not have was a majority. So back in 2004, in a case called Sosa, a majority of the court actually held that courts could recognize international law violations under the ats. But when you have six, they let you do what you want no matter what five Justices said previously. So stare decisis, respect for precedent and international human rights. The list is long. All for suckers.

[Leah Littman]

So Kate and I did a same day rapid reaction video on YouTube when Lau, Landor, Cisco and Exxon came down. Not going to repeat everything here, including the profanities I directed at Neil Gorsuch over Landor, but you can check it out if you'd like. Did, however, want to underscore or just highlight a few themes that emerge from that set of cases. In particular, one is that it's pretty good to be a corporation. We are in the re Gilded Age. Think about the combined effect of these decisions. Corporations can sue foreign governments, or at least Cuba and Cuban government entities, for expropriation of oil. But corporations can't be sued for assisting foreign governments in human rights abuses. Beneficiaries of public benefits programs and victims of human rights abuses can't sue because some statute don't say explicitly they have a cause of action. But corporations can sue a foreign government Cuba, under a statute that says nothing about foreign sovereign immunity. Kind of like how Trump can't be sued but can sue media companies, pollsters, and his own irs. This is as always known as the rule of law. And these decisions also render legal protections for the less powerful unenforceable. Basically, parchment promises for victims of human rights abuses, lawful permanent residents, and the incarcerated.

[Melissa Murray]

These cases are also an attack on the government's capacity just to do government, and specifically Congress's ability to legislate. When Congress exercises its spending power and allocates funds to government entities, it often makes receipt of those funds contingent on compliance with other laws or certain laws or other conditions. And now the Court is saying that those conditions on spending can only be enforced against individual state officers if they first consented to be bound by those conditions. Spoiler alert, who would do that? In a similar vein, when Congress enacts statutes like those creating protections for particular groups like lawful permanent residents, the Court is basically stepping in and saying that those protections aren't binding when they're being executed at the border. It's kind of a big giant fuck you to Congress and its ability to create protections for certain groups and know. Side note question. Wasn't there a book, Leah, that you recommended that argued that all of the court's BS was really just a secret plot to empower Congress to step up? I didn't read it because I don't read science.

[Leah Littman]

Was that a book I recommended or was it an op ed that maybe is kind of recited in some form in a book? Maybe both and. But I'm just waiting for. Or that, I don't know, punchline or moment when the court finally reveals itself and does that. Oh yeah, Congress gets to be empowered. Final act.

[Kate Shaw]

That'll probably be this weekly.

[Leah Littman]

Okay.

[Kate Shaw]

I'm almost sure it's gonna happen today or tomorrow.

[Melissa Murray]

I think it's. Yeah, it's coming. It's coming.

[Leah Littman]

Cannot wait.

[Kate Shaw]

I can feel it.

[Melissa Murray]

The apotheosis of Congress is imminent. The rapture.

[Kate Shaw]

Okay, so bottom line, from that group of cases, this is a 63 court. It will decide in its infinite wisdom, benevolence, discretion, when it wants to be a full blown 63 right wing, ideologically captured court. Occasionally we'll deviate from that. Apparently the justices decided to lean fully into it on Tuesday, June 23rd when that group of opinions was released and I think double down in many ways on Thursday the 25th. But across last week, they really seem to want to fulfill some long running goals of the right wing legal movement. And they did. Basically all the Republican appointees got on board with Justice Thomas's I would go further mantra and some kind of real right wing legal movement maxing of the law occurred.

[Melissa Murray]

We got one other opinion in an argued case. The case was called Monsanto versus Durrell. It was an unusual case in which the Court displayed conveyed real empathy for the Environmental Protection Agency. But only because doing so allowed the court to rule for a huge corporation, one for which Justice Thomas worked from 1977 to 1979 while also sticking it to cancer victims. Not Justice Thomas, but the court. In any event, the case concerned a federal law fira, the Federal Insecticide, Fungicide and Rotundicide Act. I love saying that. Which authorizes the EPA to regulate the sale, use, distribution and labeling of pesticides, herbicides. The statute contains a uniformity requirement that prohibits states from imposing any requirement for product labeling that differs from the requirements that are imposed by the federal government.

[Kate Shaw]

For decades there has been debate and litigation over the safety of GLYPHOSATE a very popular herbicide that is the main active ingredient in Monsanto's Roundup weed killer. Concerns about safety accelerated in 2015 when an arm of the World Health Organization issued a report classifying the herbicide as probably carcinogenic eugenic to humans. The report led to tens of thousands of lawsuits at the state level against Monsanto over the labeling of Roundup products and specifically the company's failure to warn about the potential harm. Monsanto argues that fifra, this federal law, preempts state level failure to warn claims. It also argues that if these lawsuits are not preempted by fifra, the future of the domestic agricultural industry is imperiled. So the Justices, who are obviously great friends of the American farmer or or more accurately of Big Ag, took this case and on Thursday issued a 72 opinion authored by Coach Kavanaugh holding the FIFA expressly preempts these state level failure to warrant claims and people who argue that they have had or have cancer because of their exposure to Roundup products and Monsanto's failure to warn of the potential harms cannot sue in state court.

[Melissa Murray]

As Coach Kavanaugh explains in this opinion, the EPA undertakes an extensive review of pesticides and the proposed labeling and determines whether the proposed label includes all of the warnings necessary and adequate to protect human health and the environment. Once the pesticide is registered, the company is required to use the approved label until it receives EPA approval for a labeling change or the EPA orders a change to the label. And since the EPA here has consistently studied glyciphate and has not determined it to be a cancer risk and has not required months to Monsanto to change its label. Monsanto is therefore under no obligation to provide additional warnings and any state level claims regarding failure to warn are expressly preempted by the statute because they would effectively violate the statute's uniformity requirement.

[Leah Littman]

Now, it wouldn't be an episode of strict scrutiny if we didn't feature our Evergreen segment We need to Talk about Justice Thomas in our live show in New York we mentioned that I mentioned that Justice Thomas might be jonesing for a Commerce Clause freak off because he's been going through a dry spell. Seems he really has a hankering for some Commerce Clause kink because in a concurrence in Monsanto, which per usual no one joined, Justice Thomas identified what he called fifra's quote underlying constitutional infirmities. Chief among them was that FIFRA quote likely exceeds Congress's authority under the Commerce Clause because why agriculture and manufacturing are entirely Separate from Commerce.

[Melissa Murray]

I just want to note here that this is exactly the kind of formalistic reasoning and argument that the Gilded Age Court used to invalidate parts of the Sherman act and other economic regulations that were enacted under the Commerce Clause in the late 19th and early 20th century. Literally. There are no new ideas at all.

[Kate Shaw]

Just make the Lochner court jurisprudence great. Again, like entirely. He is on board with that project. Yes, yes. So it actually also though, seems as though Justice Thomas may not just be down for Commerce Clause kink, but also non delegation doctrine kink because he argues that FIFRA also, quote, raises questions about Congress's ability to delegate core legislative power to the epa. Once again make Lochner era jurisprudence great again. He is very concerned that FIFRA and the modern administrative state presents important separation of powers questions. Which is to say, all in good time, young Jedis, we will get to all of this and bring down this whole government thing in the process, but

[Leah Littman]

then finally reveal that we are empowering Congress.

[Melissa Murray]

I mean, genuine question, why didn't Neil Gorsuch join parts of this opinion? Like this is part of his villain origin story?

[Kate Shaw]

I think it's, you can't protect Big AG without something of a shell of an EPA that has some delegated authority. So you may want to be able to keep it around just for these moments. Thomas, to his credit, like has a courage of his convictions. He's like, all right, I will be okay to throw Monsanto to the wolves. And I just don't know if they all are.

[Melissa Murray]

Well, is he actually throwing Monsanto to the wolves? I mean, just Congress can't do any of this stuff.

[Kate Shaw]

Yeah. When it's Congress can't pass this law that preempts these state level claims, then yeah, I mean I think that the,

[Melissa Murray]

the kind of like, yeah, okay, yeah,

[Kate Shaw]

they're cross bridge, but yeah. But for him, I do think the kind of deconstructing all of it is the major preference that he's willing to subordinate all minor preferences to.

[Melissa Murray]

You know who I think really loved this decision? Soybean farmer Scott Besant.

[Kate Shaw]

That's one for him.

[Melissa Murray]

This one's for him. All right. Finally, the court also issued a procurement opinion in a case that was not argued. This was McCarthy v. Hernandez. This was a GVR grant fee vacate and remand in a case that involved the individual who'd been convicted of the murder of six year old Etan Patz, who disappeared on his way to school in New York City in 1979. Many years later, Hernandez confessed to the murder, but only after hours of police interrogation without a Miranda warning. He was ultimately convicted by a jury, but the Second Circuit later granted his habeas petition on the ground the jury had been incorrectly instructed about the confession, and the court ordered a new trial. The Supreme Court here said that the Second Circuit was wrong, since they think habeas should basically never be granted, and they reinstated the conviction. Strict Scrutiny is brought to you by Slow Burn Slow Burn, the award winning narrative series from Slate, is back with a new season, and it feels like one that was literally manifested by the ladies of Strix scrutiny becoming Justice Gorsuch. That's right. In this season, host and Slate executive producer Susan Matthews traces Neil Gorsuch's formative years, from his mother's rocky tenure in the Reagan administration to his coming of age as a young conservative in the 1980s. She'll lead you through his legal philosophies and his controversial nomination to a stolen seat on the high court, and she'll shed light on a man who many Americans can't even identify in a life lineup, but who has nonetheless played a major role in ending affirmative action, limiting abortion access and upending voting rights. Featured in this season are friends of our podcast Dahlia Lithwick and Mark Joseph Stern, the hosts of Amicus, Slate's podcast about the courts. They break down how Gorsuch fits into the current court, where he's going next, and why he never took his job on the courts cafeteria committee very seriously. As you all know, the Supreme Court's end of term is upon us, and this is the perfect podcast to learn why Justice Gorsuch is such an unpredictable vote. And to round out your understanding of this Supreme Court. Listen to the entire season of Slow Burn Becoming Justice Gorsuch now on Apple Podcasts, Spotify or your favorite podcast app at Press Appliance. We know that real life is piles of never ending laundry, especially during fourth of July. But real relief can happen for those who shop at Fred's Appliance. We don't do gimmicks, just clean laundry and everyday low prices. Right now all laundry is on sale from ge, lg, Maytag and more. Save big on top load and front load washers and dryers plus save up to $800 in rebate when you buy more save more. Shop the largest supply of in stock get it today inventory in the region this fourth of July only at Fred's Appliance.

[Kate Shaw]

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[Leah Littman]

7 support.

[Kate Shaw]

Call 1-800-GRAINGER click grainger.com or just stop by Grainger for the ones who get it done. Done. All right, we are going to briefly take through some legal news before we go and the first one involves voting roles. Okay, so listeners, as we've discussed, the president is on one about the upcoming midterm elections. It is almost like he's worried that his party might lose control of Congress and he might be impeached again, there might be oversight, who knows. All of this may explain why he seems determined to around with the upcoming election. There is obviously the spate of mid cycle redistricting that he requested and largely received thanks to Texas and the Supreme Court. But the administration is not done there because they've also been demanding that states turn over voter rolls to the federal government so that the feds ostensibly can compile some kind of nationwide voter registration database to ensure the integrity of future elections. Obviously, that is just the claim. We are not suggesting that is the true motivation. And we also can't help but wonder whether anyone has told them that the Constitution comm its election administration to the states. So those requests were made and the federal government has now sued around 30 states to compel them to turn over voter rolls, which often contain sensitive voter information. And last week, a Trump appointed federal judge in Maryland dismissed a DOJ lawsuit against Maryland seeking access to that state's voter records.

[Melissa Murray]

In that opinion, the court wrote that its decision accords with, quote, every court to have addressed this issue in concluding that the unredacted voter registration file is, quote, not a record or paper that the state must produce to the United States. Just to be clear, that district court dismissal brings the DOJ to a 0 to 9 record in lawsuits in which they have tried to compel the states to turn over this kind of data, which includes dates of birth, addresses, driver's licenses numbers and partial Social Security numbers. So very sensitive information that I guess could be used to verify eligibility to vote, but also could be used to do other things like maybe be round up people you think shouldn't be in this country. I don't know, just riffing here, spitballing.

[Leah Littman]

So part of this streak was that on Wednesday, a panel of the 6th Circuit rejected DOJ's efforts to force Michigan to turn over its voter rolls, including sensitive voter information. I was a little worried the decision wasn't unanimous, but I'll just try to put a pin in that. Last Monday, in a different lawsuit, a federal judge in the District of the District of Columbia ruled that the DHS program not known as save, which aims to verify citizenship and eligibility for voting, violated federal privacy laws and was wrongly identifying eligible voters as non citizens. And she ruled that the system could no longer be used.

[Kate Shaw]

So despite this unbroken losing streak, the administration continues to pursue its efforts to get this kind of data. According to reporting from multiple outlets, the US Postal Service has been instructed not to deliver mail in ballots in states that refuse to provide this voter information to the federal government. And if the that stands, it will have obvious implications in states like Oregon, where mailed ballots are the default way to vote.

[Melissa Murray]

Some other related voting News Some of you may have heard that in a rare case of bipartisanship, both houses of Congress managed to pass an affordable housing bill. This is likely because soaring housing costs and the increasing inaccessibility of home ownership is a major problem for legislators on both sides of the aisle, but is perhaps a particular problem for the GOP, which in 2024 campaigned on an affordability platform. Well folks, again, sometimes it be your own people. Just hours before the public signing ceremony was to take place at the White House, the President announced via Truth Social, where else, that he would not be signing the affordable housing bill into law unless the Senate moved to enact the SAVE act, which is the voter ID bill that experts argue you will likely result in the disenfranchisement of millions of eligible voters, including those Americans who are not in possession of their birth certificate or do not have a passport, as well as married women whose married names are not reflected on their identity documents.

[Leah Littman]

So several of you have written in to ask what happens if the President refuses to sign a bill into law. The Constitution provides a few avenues. One is that if the President ignores the bill for 10 days, excluding Sundays, while Congress is actively in session, then the bill will automatically become law even without the President's signature. A second option is a formal Presidential veto, which is the President returns the bill to Congress with the statement of objections within 10 days. Congress can either override the veto if both the House and the Senate vote to pass the bill again with super majority. If the override succeeds, the bill becomes law. If not, it fails. This typically is a procedure if the President has has substantive objections to the bill, which doesn't really seem to be the Case here, here. The President just seems to be holding affordable housing hostage to disenfranchising the electorate. And I guess that brings us to the third option, which is the pocket veto. So if before the 10 day period expires, Congress adjourns and the President takes no action, then the bill dies. And that can't be overridden by Congress via the super majority. So that option will puts the ball in the hands of the party in control of Congress to call for an adjournment to facilitate the President's tantrum. This is not the first time the President has held legislation hostage to his whims. Earlier this year, the President derailed a bipartisan deal on intelligence and surveillance legislation while pressing lawmakers to adopt that controversial voting bill known as the SAVE Act. Now he's using a housing package that many lawmakers expected to be signed into law today as a new point of leverage.

[Melissa Murray]

The art of the deal, the art of the steel.

[Commercial Narrator]

Yeah.

[Melissa Murray]

In addition, there are other things going on in the Executive branch that we should make note of. The Office of Legal Counsel recently released an opinion detailing its take on obligations under the Americans with Disabilities act and the Rehabilitation act as interpreted by the Supreme Court's 1999 decision in Olmstead vs. Ziering. Olmstead is a hugely significant case case for disability rights because it restricts the unnecessary institutionalization of those with disabilities. Olmstead held that, quote, unjustified institutional isolation of persons with disabilities is a form of discrimination that is prohibited under Title 2 of the ADA. And the prohibition on unjustified institutionalization you would think would require entities to move toward deinstitutionalization and the integration of individuals who are living in with disabilities.

[Kate Shaw]

But the Executive Branch has said you would be wrong to think that the Trump DOJ seems to want to institutionalize more people, that is to take them out of homes and communities where they can receive at home care and put them into institutions. So it is basically trying to do to Olmstead what segregationists did with Brown, say that while the decisions might prohibit discrimination, they don't actually require integration. Think about that for one second. OLC's opinion says, quote, we conclude that Congress has not imposed an integration mandate on states. And think about where you might have heard similar logic before.

[Melissa Murray]

Well, you know what, Kate, All Congress has to do is pass a law making clear that when they enacted the ada, they meant to emphasize integration. I know Congress is definitely going to do that.

[Kate Shaw]

Well, Congress is obviously going to do that and then the court will surely give it Full expression.

[Melissa Murray]

This is a court that's about empowering Congress.

[Kate Shaw]

Like, let's be real.

[Commercial Narrator]

Yep.

[Kate Shaw]

Okay. So the opinion might unsurprisingly raises significant concerns given that it effectively says people with disabilities don't have a right to live in their communities. Communities. It is a recipe for institutionalization of persons with disabilities when states and the federal government refuse to offer services and support and accommodations.

[Leah Littman]

And who do you think might have had a hand in pushing for this legal slash policy change? Pee wee German. That would be correct. So Bloomberg reports that, quote, White House advisor Stephen Miller was the driving force behind the Justice Department recent memo authorizing states to institutionalize people with disabilities rather than fund community based care. Absolute goals.

[Kate Shaw]

There is no bright note to end the substantive portion of the show on. It is. It is bleak this week. Pretty bleak is a menace.

[Leah Littman]

Yeah.

[Kate Shaw]

And we have eight more cases for them to hand down this week.

[Melissa Murray]

Okay. Should we do favorite things? Things?

[Leah Littman]

Yes.

[Melissa Murray]

Okay, I'll start. I went to an MSNow America 250 event in Philadelphia and I met a number of stricties there. It was really great to see you all. Also really great to be in community there. One of the speakers, Sherilyn Eiffel, noted friend of the pot, absolutely fantastic, mentioned that, you know, it's really good to be in community with people who support the same things that you support. Not to be in an echo chamber necessarily, but in these moments where things look bleak, we really need each other. And this was an enormous auditorium, a beautiful opera house, literally filled with people who cheered every time a photo of Barack Obama was displayed. And, you know, I didn't realize how much I needed that, but I kind of did need that. My second favorite thing this week comes from Jordan Thomas, AKA Jordan the intern. Our Jordan was invited to deliver the commencement address at his alma mater, the University High School in Newark, New Jersey, and he delivered a banger of an address to those graduates in the class of 2026. It was inspiring. It was sweet, it was thoughtful. Classic Jordan. And he urged all of these students to really engage with this whole question of the American experiment and government. And Jordan is not just brilliant and wonderful and a great intern. He's incredibly generous. He went and bought each of these graduates a copy of my book, the Constitution, and he gave one to each of them. So thank you for supporting the Constitution, my book, Jordan. And thank you for being such an inspiring figure to these young people. I know they got so much out of this graduation speech. And once again, we're just really lucky to have Jordan. I Don't know how we got so lucky.

[Leah Littman]

I don't know.

[Kate Shaw]

Jordan is the best. Truly.

[Leah Littman]

Okay, so my favorite things are kind of social media stuff. One is, Kate, you're on. Hasan Minhaj doesn't know. For people who might not realize, I run the podcast social media accounts. So basically, anytime there's a collab request and whatnot, I get to see them.

[Kate Shaw]

Wait, doesn't Michael do the YouTube collab request? Yes, that's true. One exception. Leah does almost everything. Yes.

[Leah Littman]

Sorry, I should have given you a

[Kate Shaw]

heads up about all those requests. No, no, no, no, no.

[Leah Littman]

I enjoy receiving them, but yeah, no, I had fun with those. And then second is another thing on social media, which is JD Vance just let his whole fucking ass hang out. Making explicit. Something we have kind of joked about before was implicit. But you can hear him.

[Melissa Murray]

He.

[Commercial Narrator]

I'm actually fascinated by Nixon as a character in history. I think that his historical legacy is enjoying a bit of a renaissance, but I think deservedly so. As I joked with Robert backstage, if Watergate happened tomorrow, it would be like a 12 hour news story. The idea that it would have taken down a presidency is crazy. And by the way, if you look at the story of how the Deep State took down Richard Nixon, it's not all that different from what the same groups of people, the same institutions tried to do to Donald Trump and the first Trump administration. There is a parallel. I also, just at a personal level, you know, okay, young senators, senator, vice president, writes some best selling books, is hated by the media. It kind of sounds like J.D. vance. So I'm a little, you know, I've always liked, I've always liked Richard Nixon.

[Leah Littman]

He's just straight up saying they want to make Tricky Dick great again.

[Kate Shaw]

Yes. Which we knew.

[Melissa Murray]

I really thought you were going to talk about the knee slap heard around the world.

[Kate Shaw]

Oh, in, in. Okay. So for people who didn't hear the knee slap. So. Oh, go on. Second Lady Usha Vance. I learned this week, why does everybody need a goddamn podcast? So she apparently has a podcast where she like, has people read books to kids.

[Melissa Murray]

Okay, that's awesome. The people with a podcast asking, why

[Kate Shaw]

the fuck does everyone need a podcast?

[Leah Littman]

Not everyone needs a podcast. We had one for seven years.

[Kate Shaw]

I mean, look, fine, you're welcome to say the same thing about us, but I, I really do think that the second lady. I'm not quite sure what value the second Lady's reading books to people podcast is adding. But I guess she has guests. I mean, I learned about the podcast because she had her Husband on. And anyway, so wait, tell the knee. That was just the context, Melissa. Now, what was the knee slap?

[Melissa Murray]

She introduces him as her guest, and I think in what is supposed to be a moment of conjugal familiarity, he reaches over to say hello to her by slapping her on the knee. And

[Kate Shaw]

so embarrassed.

[Melissa Murray]

I mean, if my husband greeted me like this in front of people, he would be a wuzband, not a husband. Like, he would be.

[Kate Shaw]

This is. Was whatever the opposite of chemistry is. That was what appeared on display in that knee slap. It was really visible to all to listen.

[Melissa Murray]

Listen. I mean, who knows? Like, the only people who know what happened in a marriage are the two people in it. But I was like, this is a visual medium and you might wanna make it look a little more convincing.

[Kate Shaw]

Yes. Anyway. But then after I became aware, after the knee slap sort of turned me onto the existence of this podcast, I saw somebody put together a bunch of clips of her, like, opening remarks for each of the, I don't know, six or seven episodes, I guess. And I'm not sure she's a natural at the medium. It's not quite working, not just in the knee slap exchange, but kind of more broadly, but.

[Melissa Murray]

Okay, so it's not for everyone, Kate.

[Kate Shaw]

It's not for everyone. And to be there was definitely. I definitely meant it somewhat selfish, aware that not everyone needs a podcast, but yes. Anyway, obviously, Second lady, it's. This is not. There's no scarcity. Everyone is welcome to join the podcasting world in any event. Okay, last favorite thing. Busy end of term. So I haven't, like, been really reading fiction or anything like that, but I did want to just mention a district court opinion that I don't think we've had a chance to mention yet on the pod, which is won by the Chief Judge of the District of Minnesota, Judge Schiltz, quashing the subpoenas that the federal government issued to state and local officials, including Governor Tim Waltz, Attorney General Keith Ellison, and a bunch of other Minnesota officials. This order was so unsparing and so blistering. I just want to quote a couple of lines from it. The dominant purpose of the challenge subpoenas is to coerce Minnesota officials into assisting the federal government with enforcing civil immigration law to harass and retaliate against them for failing to do so. The judge calls it a blatantly unlawful and unethical use of the grand jury process. And it just was really satisfying to see yet another district court, like, hand the administration its ass. And in the kind of midst of the Supreme Court doing everything it can to shore up the administration. It's just like an important reminder that district courts remain the bulwark against the worst excesses and lawlessness. And also on a less serious note, I will say I've really loved how often the word quashal, like I am engaging in quashal. I guess I don't really know how to use it properly. But when district courts quash things, the thing they are issuing, I guess, is quashal. And so I have heard that more than ever before in just the last few months.

[Leah Littman]

So can I add a quashal to things? We should maybe have a question. Okay. The Southern District of New York's quashal of the Justice Department's efforts to seek or obtain invasive patient information about trans minors who receive gender affirming medical care in New York City. In the bench ruling, the judge indicated that the request shocked the conscience. And so, yeah, that. That's in my favorites.

[Kate Shaw]

All right, well, that was our effort at ending on a high note.

[Melissa Murray]

We tried.

[Kate Shaw]

All right, I guess we will see and talk to all of you probably a bunch of times the next few days. So once again, buckle up.

[Leah Littman]

I promise to be in a better mood, but no promises.

[Kate Shaw]

You can't do that. Yeah.

[Leah Littman]

Strict scrutiny is a crooked media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt de Groat, Ben Hethcote, Johanna Case, Kenny Moffitt, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America.

[Melissa Murray]

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