Supreme Court Declares Racism Over

Summary

Strict Scrutiny: "Supreme Court Declares Racism Over"
Released: May 4, 2026

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Episode Overview

In this thought-provoking episode, hosts Melissa Murray, Kate Shaw, and Leah Litman deliver a spirited analysis of the Supreme Court’s latest decisions and oral arguments—focusing centrally on the Court's momentous ruling in Louisiana v. Calais, a Voting Rights Act case with sweeping implications for minority representation and multiracial democracy in the U.S. They dissect how the opinion—spearheaded by Justice Sam Alito—essentially nullifies longstanding protections for minority voters, “declaring racism over” for the purposes of electoral rights. The episode also recaps recent oral arguments on Temporary Protected Status (TPS) for Haitian and Syrian nationals, dives into geofence warrants under the Fourth Amendment, and highlights ongoing skirmishes in administrative law, federal jurisdiction, and novel ‘unitary executive’ battles.

Throughout, the hosts emphasize how current court decisions echo Reconstruction's demise and lay groundwork for new frontiers in judicial overreach, minority disenfranchisement, and executive power. Their discussion is laced with righteous outrage, trenchant historical insights, and a healthy dose of irreverent lawyerly banter.

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Key Discussion Points & Insights

1. The Fifth Circuit’s Attack on Medication Abortion ([03:00]-[16:55])

• Fifth Circuit Decision: A late-breaking decision restricts telemed prescriptions of mifepristone—the key drug in medication abortion—reinstating in-person pick-up requirements, making access much harder, especially for women in states with abortion bans.
• Judicial Overreach: Litman calls out the “judicial order to impose restrictions that the FDA deemed unwarranted,” noting the court's reliance on unproven fetal personhood theories and its “IV dripping” that idea into the opinion.
• Collusive Litigation: Murray and Litman flag what they see as a potential coordination between the Trump administration’s regulatory moves and the litigation pathway pre-seeding court rationales for aggressive abortion restrictions.
• Fetal Personhood: The ruling is seen as a bold step toward declaring fetuses people under constitutional law—a move that could force nationwide abortion bans.
• Impact: The consequences will be dire, disproportionately harming people of color and those with few resources:

  “Medication abortion is many times more safe than actual childbirth... but now the Fifth Circuit has made it a lot harder for individuals who want to control their reproductive capacity to have access to it.” – Melissa Murray [05:28]

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2. In-Depth: Louisiana v. Calais and the Effective Nullification of the Voting Rights Act ([24:52]-[39:39])

• What the Case Did: The Supreme Court’s majority hollowed out the Voting Rights Act (VRA), ending effective federal protections for minority voter representation in redistricting.
• Historical Parallels: The hosts draw strong connections to the end of Reconstruction and the resegregation of American political institutions, calling this ruling “a way of resegregating our institutions and politics.”

  “This decision will, in Justice Kagan's words, ‘lay the groundwork for the largest reduction in minority representation since the era following Reconstruction.’” – Leah Litman [25:35]

• Practical Fallout: States are already moving to erase Black and Latino opportunity districts. Hosts provide real-time examples from Florida, Louisiana, Tennessee, and Alabama.
• Judicial Cynicism: The hosts lambast Alito’s claim that Black voters’ turnout in two Obama elections is evidence racism has been defeated—pointing out both the absurdity and historical selectiveness.

  “They are preserving [Section 2 of the VRA] so it can be used against Democratic gerrymanders... so they can bring intentional discrimination claims against majority Black districts.” – Leah Litman [35:11]

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3. Oral Arguments: TPS Cancellations for Haiti & Syria ([44:17]-[62:14])

• Cases Covered: Mullen v. Doe and Trump v. PIO, challenging Trump-era revocations of TPS.
• Core Issue: Department of Justice argues executive power here is essentially unchecked, advancing monarchic, unitary executive logic.
• Racist Animus: The oral argument was marked by scrutiny of Trump’s anti-immigrant statements (“shithole countries”, “poisoning the blood of America”), with Justices Sotomayor and Jackson pressing the government to reckon with racial motivations.

  “All those statements in context refer to problems like crime, poverty, welfare, dependence, drug importation... again, problems that have been emphasized by not just President Trump…” – Government’s lawyer [50:23] “Just say welfare question. Right... Do you think you're saying things that indicate you don't have racist views? The president doesn't have racist views if he's saying people from those countries are more likely to commit crime and be poor?” – Leah Litman [51:24]

• Constitutional Gaps: Clarence Thomas floats the idea that equal protection doesn’t bind the federal government—a direct invitation to challenge the entire modern civil rights regime.

  “The Equal Protection Clause appears Only in the 14th Amendment, which applies only against states. It doesn't apply against the federal government...” – Recap of Thomas’s questioning [57:04]

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4. Supreme & Lower Court News Roundup ([64:16]-[72:33])

Ballrooms & National Security

• Absurdism at Work: In the wake of a White House Correspondents Dinner shooting, the Trump administration argues that a taxpayer-funded White House ballroom is a “national security” imperative—backed up by a “Truth Social”-style legal brief.

  “On top of everything else, this project is a gift to our country... Who could ever object to that?” – DOJ motion, mock reading [68:09]

Unitary Executive Theory Backfire

• Judicial Irony: Federal judges are weaponizing the administration’s own unitary executive arguments to dispose of (or allow) claims:
  • In Trump’s IRS lawsuit, a judge says if the president’s entities are so unitary, he can’t sue his own government.
  • In the Comey firing case, a judge finds Article II arguments mean the case stays in federal court, not preempted by civil service law.

  “If it's so unitary, it can't be adverse. Bitches, I don't make the rules.” – Melissa Murray [70:47]

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5. Argument Recaps: Geofence Warrants and More ([72:33]-[81:48])

• Chatri v. U.S. (Geofence Warrants):

  • The Court is poised to possibly break up Fourth Amendment analysis by the steps of a digital search—geofence location, extended tracking, and user identification.
  • Justices press skepticism about “voluntary” data sharing/consent via Google services.
  • Crime-fighting vs. civil liberties tension is vivid; Kavanaugh foregrounds crime-solving, while others stress privacy at “sensitive locations” (e.g., churches, abortion clinics).

• Other Notable Cases:

  • Monsanto v. Durnell: Preemption and product liability
  • Cisco v. Doe: Liability under the Torture Victim Protection Act
  • HCMA Pharmaceuticals v. Ameren: Patent law complexities

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6. Key Quotes & Memorable Moments

On the Voting Rights Act

• “Jim Crow. Or as I just sputtered out with Melissa on Ms. Now: Jim Crow Leto.” – Leah Litman [30:01]
• “They hollowed out Roe so that it was a nub of itself. Same kind of thing is going on here.” – Melissa Murray [36:42]

On the Court’s Reasoning

• “This is a lot of recycled logic from Shelby County, but it’s Sam. And so it’s somehow infinitely worse because everything he does is.” – Kate Shaw [34:32]

On Defending Racist Animus

• “We have a president saying at one point that Haiti is a, quote, filthy, dirty and disgusting s‑hole country...” – Melissa Murray [49:55]

On Judicial Irony

• “If it’s so unitary, it can’t be adverse. Bitches, I don’t make the rules.” – Melissa Murray [70:47]

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Notable Segment Timestamps

• Medication Abortion (Fifth Circuit): [03:00]–[16:55]
• Calais (Voting Rights Act): [24:52]–[39:39]
• TPS Oral Argument: [44:17]–[62:14]
• Administrative Law/Unitary Executive: [64:16]–[72:33]
• Geofence + Other Arguments: [72:33]–[81:48]
• Court Opinions: [81:16]–[83:20]
• Favorite Things/Closing: [84:37]–end

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Episode Tone & Language

The hosts blend sharp legal analysis with caustic humor and unapologetic, progressive outrage. Their tone is irreverent (“Let them eat disco balls”), deeply informed, and driven by a sense of history and urgency. They mock official pretenses, call bullshit on judicial gaslighting, and are unsparing in their critique of both conservative legal doctrine and liberal inertia.

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Closing Thoughts & Calls to Action

• The hosts urge engagement, support for organizations like the NAACP Legal Defense Fund, and emphasize the need for sustained advocacy and attention to the ongoing backsliding of civil rights and democracy.
• Favorite readings and moments include several recommended op-eds and commentaries dissecting the VRA decision, as well as celebrating Melissa Murray’s new book on the Constitution.
• They encourage listeners to “not put your plow down,” echoing Sherrilyn Ifill’s call to do the work for future generations.

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For Further Listening & Reading

• Emergency Louisiana v. Calais Episode
• Sherrilyn Ifill’s Substack & Rick Hasen’s Slate piece
• Melissa Murray, The US Constitution: A Comprehensive and Annotated Guide for the Modern Reader (book plug throughout—release week!)

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This episode is essential listening for anyone seeking to understand the contemporary Supreme Court’s impact on voting rights, abortion access, and the fragile state of multiracial democracy in America. The hosts’ analysis is incisive, grounded in history, and unsparing of judicial and political hypocrisy.

Transcript

[Leah Lippman]

Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You're not alone. If it feels like Groundhog Day every morning when you read the news or even listen to what we're talking about here on Strict Scrutiny. And while it's overwhelming seeing the trajectory our country is on, we all show up every day trying to find ways to make it better, to educate our neighbors and to fight for democracy. Our friends at Americans United have been doing the same thing day in and day out for almost 80 years. This year alone, they filed three separate lawsuits against Trump's anti Christian bias task force, which, spoiler alert is anything but unbiased. Americans United has been tracking every mention of Christian nationalist rhetoric from this administration and partnering with many allied organizations to sue and protect our constitutional right of Church State separation, the right that protects all of our abilities to be who we are and live as we choose, so long as we don't harm others. It's easy to get apathetic as we're all seeing and hearing these attacks on our freedoms every single day and watching a religion be weaponized for a power grab. Now isn't the time to give up though. Now is the time to fight back against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. Learn more by visiting au.org crooked because Church State separation protects us all Looking

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[Kate Shaw]

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[Leah Lippman]

That makes sense.

[Kate Shaw]

Sorry, book with support, not surprises. Verbocare and 24. 7 life support if you know you Vrbo terms apply. See vrbo.com trust for details.

[Leah Lippman]

Mr. Chief justice, may it please support. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have last word.

[Kate Shaw]

She spoke not elegantly, but with unmistakable clarity.

[Melissa Murray]

She said, I ask no favor for my sex.

[Kate Shaw]

All I ask of our brethren is that they take their feet off our necks.

[Melissa Murray]

Struck scrutiny listeners after we finished recording late on a Friday evening, the fifth Circuit decided it was time for slapping some additional restrictions on mifepristone, one of the two drugs used in the current medication abortion protocol. Because what gives separation of powers more than lower courts second guessing expert agency determinations? Why not?

[Leah Lippman]

Why not that separation of powers to me? So in a breezy 18 page opinion released after 5pm Eastern, which is how you know they were trying to sneak one past the country not going to work on us, Stanford Stormtrooper Kyle Duncan wrote for that Stuart Kyle Duncan, my apologies, wrote for a unanimous panel of judges, two of whom, including himself were Trump appointees, that the Food and Drug Administration was wrong to allow telehealth telemedicine prescriptions of mifepristone, one of the two drugs used again in the current protocol for medication abortion.

[Melissa Murray]

Every time you say Stuart Kyle Duncan, I think of Dunkin Donuts.

[Leah Lippman]

I do that every time I say Stuart Kyle Duncan, my uterus shudders. But this latest decision reinstates the in person pickup requirement for mifepristone, which forces women to go in person to a doctor or licensed nurse practitioner in order to get mifepristone, which of course makes medication abortion way more difficult to access for people in states with abortion bans because now they have to travel out of state just as they would if they obtained a procedural abortion.

[Melissa Murray]

The fifth Circuit purported to issue this ruling such that it has nationwide applicability. That is to say, the court issued what is called a vacator or a stay of the entire telemedicine determination. This is a procedural maneuver that blocks the FDA's decision on a nationwide basis. That procedural machination makes it as if the FDA's telemedicine decision didn't even exist.

[Leah Lippman]

So this decision will have devastating consequences for women, especially women in states with abortion bans. In 2023, 65% of abortions were medication abortions. Medication abortion accounted for the majority of abortions that were provided in most of the states without total abortion bans in 2023. And again, if you can't obtain mifepristone via telemedicine, you have to do so in person. And many women just are not going to be in a position to undertake the out of state travel if they live in a state with an AB ban, whether that's because they lack transportation, time off, resources, support, or any other number of reasons.

[Melissa Murray]

And to be very clear, medication abortion is many times more safe than actual childbirth. The risk of maternal death associated with childbirth is approximately 14 times higher than the risk associated with medication abortion. And that number goes up even higher for women of color and black women in particular. But there's no racism. Remember that from this week. There's no racism. Medication abortion is basically about as safe as title Tylenol. But now the Fifth Circuit has made it a lot harder for individuals who want to control their reproductive capacity to have access to it.

[Leah Lippman]

The Fifth Circuit's decision is stunning for a number of reasons. It is a judicial order to impose restrictions that the fda, the Food and Drug Administration, deemed unwarranted. The decision also uses the Trump administration's abandonment of reproductive rights, the Trump FDA's baseless suggestions that it just wasn't totally sure that telemedicine was safe for medication abortion and as a reason to issue this nationwide stay. And the decision leans into something we have talked about before called fetal personhood, the idea that fetuses are people entitled to rights. That theory would mean that abortion has to be banned nationwide by order of the courts, because if fetuses are people, then abortions would deny the fetuses their constitutional rights.

[Melissa Murray]

We'll obviously have more to say about this late Friday night ruling in our next episode, but for now, we just want to emphasize a couple of points. First, we want to emphasize how there are so many aspects of this particular decision that make all of this look a lot like collusive litigation, as if the Trump administration took certain actions and made certain statements in order to lay a pathway for this judicial decision imposing nationwide restrictions on mifepristone. So that's one point. We're not saying that there's actual collaboration going on here between the Fifth Circuit and the Trump administration, but we are certainly saying that the Trump administration made it infinitely easier for the Fifth Circuit to have a glide path into this decision. And basically, they gave them a rationale like supplied a rationale for this court to do this.

[Leah Lippman]

And that's pretty useful to the administration because it means they got the abortion restrictions that they may have wanted without having to announce that they were imposing them on their own initiative rather than having the courts do it. So the second point we will emphasize is how there are aspects of the decision that are just IV dripping fetal personhood into their veins. Like these guys are leaning wholeheartedly, saying it with their whole chests that under the law, fetuses are people in ways that alter the court's legal analysis.

[Melissa Murray]

And again, if fetuses are people under federal law, and in particular under the Constitution, then the Constitution itself imposes an abortion ban, or so federal courts might be obliged to announce. So there's that aspect of it as well. Let's tick through some of the collusive aspects, or what we think look like collusive aspects of this litigation, the parts where the Trump administration basically facilitated the court doing this. Maybe not in fact, but certainly they laid a pathway for the court to do this. In justifying their decision, the Fifth Circuit relies on the fact that, quote, in September 2025, the FDA began a comprehensive review of mifepristone, including the 2023 REMs. And the court notes that, quote, when announcing the review, the FDA conceded the, quote, lack of adequate consideration underlying the prior rems approvals. In other words, the Trump administration, in that 2025 announcement was posturing and making statements about the 2023 REMs that actually would then make it easier for the limitations on abortion that the fifth Circuit is imposing. Now, it's absolutely bonkers that the government made that kind of concession on the eve of this litigation, but here we are.

[Leah Lippman]

And it's somehow even worse than that because the Fifth Circuit also notes that, quote, FDA's response, that is their response to the court does not address the merits. That is whether the FDA's removal of mifepristone's in person dispensing requirement was arbitrary and capricious. That is, the FDA effectively conceded that the district court was right to say that the challengers were likely to succeed on the merits in challenging the ability to get mifepristone via telemedicine. Now, the district court had nonetheless denied a stay because it concluded that the balance of the equities and public interests counseled against judicially imposed nationwide restrictions on mifepristone.

[Melissa Murray]

The court also relied on the FDA in explaining why the, quote, unquote, public interest weighed in favor of imposing these new restrictions. So the court notes that, quote, the FDA itself now concedes the regulations were marred by procedural deficits and a lack of adequate consideration.

[Leah Lippman]

So on the second point, we wanted to emphasize, and that's fetal personhood, it's all over this opinion. So explaining why the public interest favors this stay, the court writes, quote, dankos, that's a manufacturer's potential financial losses pale beside Louis, Louisiana's sovereign interests in its laws protecting the unborn and explaining why Louisiana would be irreparably harmed without. This day, the court writes that the FDA's policy, quote, undermines its. That's Louisiana's laws protecting unborn life and, quote, once lost, that sovereign prerogative of protecting unborn life cannot be regained by legal remedy.

[Melissa Murray]

It's almost like these judges read the Jodi Kantor, Adam Liptak article from last week and was like, you know what? When the government brings something and requests to stay, they're always irreparably harmed if they don't get it. And they're like, you know what? That might apply to Louisiana, too, right? Yeah.

[Leah Lippman]

Not the federal government, but Louisiana.

[Melissa Murray]

Right.

[Leah Lippman]

Like, just. Just think about it.

[Melissa Murray]

Yeah, think about it. Think about it. All of this is incredibly very fetal personhood forward. It's kind of terrifying. In many ways, the next frontier in abortion restrictions is really going to be about courts ordering states and the federal government to ban abortion, either on this theory of fetal personhood entirely or some combination of fetal personhood in tandem with, like, weird questions about the safety of these particular medications. The other thing I want to note about all of this is this is so much of a departure from what the court was saying in Dobbs when they just said they were going to settle this abortion question once and for all. And I'm just staring in Rachel Rubiche, David Cohen, and Greer Donnelly, who wrote that brilliant paper, the New Abortion Battlegrounds, and said, this is not settled. This is going to be. There's going to be new stuff. And they predicted all of these fights over abortion pills and telemedicine. So there's that. You might also be wondering, listeners, this nationwide ban on mifepristone, that sounds a little bit like a nationwide injunction. I thought the Supreme Court put a halt to the practice of lower federal courts issuing nationwide injunctions in Trump versus casa. Well, that's a very fair question, but the court issued a stay here under 5 USC section 705, which is a federal statute governing judicial review of agency actions. And so the 5th Circuit says that CASA was different because it was about federal court's equitable authority under the Judiciary act of 1789. And in their defense in CASA, the Supreme Court dropped a footnote, saying the no nationwide injunction rule didn't necessarily apply to decisions vacating an administrative agency's rule under the apa. I love when they're little loopholes that are intended to make you feel better about things. They're closing off, actually work the opposite way to really fuck you.

[Leah Lippman]

As ever. As ever. So a few other Quick reactions to this opinion, which came out an hour before we recorded this one is in some ways the math wasn't mathing, or at least not in the way the fifth Circuit suggested it did. So the fifth Circuit wrote that, quote, the record shows that the policy that is telemedicine now facilitates nearly 1,000 illegal abortions in Louisiana per month. Now the Fifth Circuit treats that as an injury, but that kind of captures just how consequential this ruling might be affecting potentially 1,000 Louisiana women per month. And that's just in Louisiana. Additionally, consider that statistic, the 1,000 women per month against part of the court's standing analysis where the court suggested Louisiana was injured because it paid Medicaid costs for two women who needed emergency care caused by mifepristone complications. Let's see, two women needed emergency care, 1,000 abortions per month since 2023. You think that shows a significant risk of injury? I'm not so sure. Also, we have no idea if those injuries were even caused by the telemedicine aspect of mifepristone or whether they would have been prevented by an in person pickup.

[Melissa Murray]

Yep, don't let that kind of logic stop you though.

[Leah Lippman]

Exactly what is standing to get in the way of a good time. There was also just something super grating about the court talking about Louisiana's sovereign injury and not being able to enforce its abortion ban like its sovereign injury and not being able to control and subjugate women. In other parts of the opinion, including on exhaustion, that is whether the plaintiffs had raised this argument to the agency. The court relied on its previous decision in alliance for Hippocratic Medicine where it notes, true, those decisions were reversed on standing, but their reasoning on exhaustion was persuasive, end quote. Not to say we told you so, but this was part of the danger when the Supreme Court punted on medication abortion in the alliance for Hippocratic Medicine decision. Remember in that case the court said that the anti abortion doctors and dentists did not have standing to challenge the relaxation of restrictions on mifepristone or the overall availability of mifepristone. But it left on the table all of these crazy merits rulings that the lower court and the fifth Circuit had issued and they were just waiting to be brought back with a vengeance after the 2024 election and Republican controlled states stepped into the breach.

[Melissa Murray]

They're kind of like trigger laws, like trigger precedents that just like lay there in waiting. There are no new ideas, they just keep farming them to different contexts. Indeed, we should note that just because this nationwide ban on mifepristone has been issued, that doesn't mean that medication abortion is entirely off the T. As we have noted on this podcast before, the second drug in the two drug medication abortion protocol, misoprostol, is also available. Obviously, mifepristone is the preferred method. The two drug protocol together is the preferred method. But misoprostol by itself would also suffice, although there are different responses and reactions to that that doctors have noted. But this is a devastating decision, even if there are available alternatives. And it makes very clear that the war on abortion, the war on women's reproductive rights continues apace. This hasn't been settled. Dobbs has not ended this. In fact, I think it's only accelerated it in a lot of ways. And this very, very safe method of reproductive care, which is used not only for those seeking to terminate pregnancies, but those who need it for miscarriage management. And literally one in three women suffers a miscarriage and loses a pregnancy and requires this kind of medical care. All of that is on the table right now with this new nationwide ban imposed by America's worst circuit court.

[Leah Lippman]

Now there's a chance that the Supreme Court will stay. The fifth circuit stay. I mean, we are all, after all, getting ready for the midterms. Probably not super convenient to have abortion put back into the spotlight, but I

[Melissa Murray]

don't know, when you don't have all those black people voting, you might as well like yolo.

[Leah Lippman]

Yeah. No, we shall see. We shall see.

[Melissa Murray]

I think Clarence is like, let's go for it.

[Leah Lippman]

Let's let it ride. He's always like, let's go for it. Let's let it ride, indeed. Thanks for listening as always. And now back to our regularly recorded episode. This episode is sponsored by BetterHelp. May is mental health awareness month. A reminder that whatever you're going through, you don't have to go through it alone. Perfect timing, since we are awaiting the end of the Supreme Court releasing opinions in argued cases, which means we're gearing up for bad decision season. Life is a journey. Following the Supreme Court is a journey. Some days feel good and others feel overwhelming. Those would be SCOTUS days. Whatever's keeping you up at night? Cough. Sam Alito's replacement. It's easy to feel like you have to figure it all out on your own. But the truth is, no one has all the answers. And no journey should be alone. Having someone with you to listen, to understand, and to support you can make all the difference. What are the things keeping me up at night these days. Honestly, where to start? I'm becoming an associate dean in July. I have a bunch of writing projects I don't want to let go. Oh, there's also this thing called the midterms which is on my mind and BetterHelp can help BetterHelp offers quality therapists BetterHelp therapists work according to a strict code of conduct and they're fully licensed in the United States. BetterHelp also provides a therapist match commitment. BetterHelp does the initial matching work for you so you can focus on your therapy goals. A short questionnaire helps identify by your needs and preferences and their more than 12 years of experience and industry leading match fulfillment rate means they typically get it right the first time. If you aren't happy with your match, you can switch to a different therapist at any time from their tailored recommendations and their client reviews underscore that it's working with over 30,000 therapists, BetterHelp is the world's largest online therapy platform Having served over 6 million people globally and it works with an average rating of 4.9 out of 5 for a live session based on over 1.7 million client reviews. Have to be on this journey alone. Find support and have someone with you in therapy sign up and get 10% off at betterhelp.com strict that's better h lp.com strict strict scrutiny is brought to you by Mint Mobile. I don't know about you, but I like keeping my money where I can see it. That way. I know crypto bros aren't stealing it. Unfortunately, traditional big wireless carriers also seem to like keeping my money as well. And that's where Mint Mobile is there to help. You can stop overpaying for wireless just because that's how it's always been. Mint exists to fix that. Mint Mobile is here to rescue you with premium wireless plans starting at $15 a month. All plans come with high speed data and unlimited talk and text delivered on the nation's largest 5G network. You can bring your own phone and number, activate with ESIM in minutes and start saving immediately. No long term contracts, no hassle. Mint allows you to ditch overpriced wireless and get three months of premium wireless service from Mint Mobile for $15 a month with of quality. If I needed to make a switch, I'd switch to Mint. If you like your money, Mint Mobile is for you. Shop [e-mail] strict that's mintmobile.com strict. Upfront payment of $45 for 3 month 5 gigabyte plan is required equivalent to $15 a month new customer offer for first 3 months only. Then full price plan options are available. Taxes and fees are extra. See Mint Mobile for details.

[Melissa Murray]

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.

[Kate Shaw]

I'm Kate Shaw.

[Leah Lippman]

And I'm Leah Lippman. It's a very special day, really very special week because happy early book release to Melissa Murray. Her book is officially out tomorrow. If you are watching this on YouTube you can see Melissa displaying her book, me proudly wearing the merch that I made, Kate also displaying the and it's

[Kate Shaw]

the Constitutional AF merch. If you are not seeing it with your eyes, it's really nice.

[Melissa Murray]

So

[Leah Lippman]

the perfect time to get your copy of the A comprehensive and annotated guide for the modern reader, not for the unmodern reader.

[Melissa Murray]

Some people don't need it.

[Leah Lippman]

You can show your least favorite Supreme Court justice how to read.

[Kate Shaw]

And don't worry, we have a very special episode for you next week that focuses more on Melissa's new book. But in the meantime, what a perfect occasion to help democratize the Constitution and empower more people to make constitutional claims as part of an effort to correct the constitutional claims being made by the people in power. And part of what Melissa's book, again out tomorrow, gets into is the real and rich and radical history and vision behind the Reconstruction Amendments that Sam Alito basically wrote out of the Constitution in the Voting Rights act opinion last week.

[Leah Lippman]

Additional great timing. Last week, six justices, no points for guessing which six, the Republican appointees, the ones in the majority in the immunity decision, attended the state dinner for King Charles, making no secret of their insatiable thirst for kings. Melissa's book, by contrast, has more no Kings energy, which these guys really need.

[Kate Shaw]

Yeah, I do want to just like, just drop an asterisk though, which is to remind our listeners, especially those who like book for television and radio, that Melissa should be everyone's go to expert on all things royal because she knows literally everything about them. And I think that is just one of the many reasons she understands and can so eloquently explicate why we should not be ruled by them.

[Melissa Murray]

Nicole Wallace knows now. Thank you for that very generous introduction. I will just say I love that this book is coming out on May 5, Cinco de Mayo, so you can just pour some salt on it, lick it, and do body shots, whatever you want. Not wow. Anyway, let's get to hello. I missed you Guys, last week. I'm back. Likewise, girl.

[Kate Shaw]

Well, we can throw it into the blender and make margaritas. That's another. That's another way you could possibly.

[Leah Lippman]

A lot of ways you like.

[Melissa Murray]

You inject it, do whatever you want,

[Leah Lippman]

ingest it in any form, but use

[Melissa Murray]

your pre alcohol first. Okay, let's get down to business in this episode. Listeners, we are going to recap last week's oral arguments with a focus on the challenge to the administration's cancellation of temporary protected status for Haiti and Syria. We'll also touch on some legal news, including what we learned about ballrooms and national security. I did not know about this apparent relationship, so, you know, news to me. But obviously I'm here to learn. Whatever. It's huge. Just gonna put that out there. We are also going to discuss how some intrepid federal judges are turning the unitary executive theory against the administration that is apparently obsessed with it. And I just want to say master's tools, y'. All. You'll love to see it. It's great. Obviously, the thing we really do need to talk about is the fact that last week the court issued the huge voting Rights act opinion in Louisiana versus Calais. Leah and Kate, you did an amazing, excellent emergency episode on the case Louisiana vs. Kelly, with special guest and friend of the pod, Mark Elias. Listeners, if you have not downloaded that yet, what are you doing with your life? If you don't say, I'm fighting for a multiracial democracy, that is the wrong answer. Get it together. Download this. It is absolutely excellent.

[Kate Shaw]

If you're still burying your head under your pillow, I think that that's okay, actually. But it's time to come out and don't despair.

[Leah Lippman]

Democracy Hive rise.

[Kate Shaw]

Yes, this is the time. Right.

[Melissa Murray]

Obviously, there's still a lot more to say about the Kallay decision. So, listeners, if you'll indulge us, we are going to say a little bit more about why this. This opinion is so catastrophic. We will also note how the decision in Calais literally set the stage for the court's bonkers argument in the TPS cases, which were heard on literally the same day that the court announced the Calais decision. And that is not all, listeners. We are also going to go over the court's opinion on administrative subpoenas in First Choice Women's Resource Centers, Inc. Versus Davenport. You may remember that it used to be called First Choice Women's Resource center versus Plotkin. Same bullshit, though. Don't worry. And same court. So there we are.

[Leah Lippman]

But first, I have some more thoughts on Kalei I think Kate has more thoughts on Kalei and Melissa. Since you couldn't join us for the emergency episode, we wanted to make sure you had a chance to share yours as well. I want to talk more about this decision. In some ways feel like we should always be talking about it just because it is so significant and so warping our democracy at light speed in real time. And the decision that effectively nullified the Voting Rights act and its redistricting protections that ensure political opportunities for minority voters is, as we attempted to convey, really bad for democracy. Also multiracial democracy, also voters of color. But it's bad for democracy and I think people need to realize that because it allows white elected officials to protect themselves from electoral competition that is anti democratic, effectively turning the House of Representatives into the Senate where states just send one party delegation to the House replicating Senate malapportionment and in my fury on the emergency episode, I am worried a few points didn't come through clearly enough and since this is our podcast I am allowing myself to make them more clear. This might be a recurring segment, honestly for like the next two years, so brace yourselves. One is just the extent to which this decision will, in Justice Kagan's words, quote, lay the groundwork for the largest reduction in minority representation since the era following Reconstruction. That is because the political opportunity majority minority districts that stand to lose their protection are many of the districts that elect black and brown political officials. The decision is a way of resegregating our institutions and politics. Although, you know, the percentage of black voters, you know, increased markedly after the initial passage of the Voting Rights Act. It wasn't until the 1982amendments that Sam Alito read out of the Voting Rights act that but the percentage of black and brown representatives really increased. And the second is the extent to which this decision parallels the aftermath of Reconstruction, which led to the election of black political officials to state and federal offices. But the demise of Reconstruction, which the Supreme Court aided and abetted, meant the number of black officials in Congress was never above single digits and was most frequently somewhere between 0 to 2, including in states like Mississippi, where the Black population was 35 never sent a black representative to Congress during that period. And it was the Voting Rights act that changed that.

[Melissa Murray]

Can I take a beat on that? I know you're talking mostly about the House of Representatives. I think it's even as stark more stark when you think about the Senate. Immediately after Reconstruction, there were two black senators serving in the upper chamber of Congress. So the first was Hiram Revels, who was chosen by Mississippi lawmakers to serve the remainder of a Senate term. This was the term that had gone on while Mississippi had seceded from the Union. And so by the time they decided to let Hiram Revels be the senator, there's like a year left on this term. So they're like, yeah, why don't you take that year and be a senator from Mississippi? And so Hiram Revels went to the Senate and served from 1870-71, faced fierce opposition to his seat. They challenged his citizenship status, adverting to Dred Scott. I mean, make it make sense. He took the oath of office to serve in the Senate 22 after the ratification of the 15th Amendment. And abolitionist Wendell Phillips said that Rebels was, quote, the 15th amendment in flesh and blood. I mean, literally, this is what this amendment was made to do. The second senator was also from Mississippi. This was Blanche K. Bruce, who represented the Magnolia State in the Senate and was the first African American to serve a full term in the U.S. senate. He served from 1875 to 1881. Notably, reconstruction ended in 1877 with the Hayes Tilden Compromise. And obviously he leaves the Senate in 1881, and there isn't another black senator in Congress until 1967, two years after the Voting Rights Act. And again, even with the VRA. In that period, from 1965 to today, there have only been 12 black senators in the Senate. I mean, so this is progress, but they. But it's slow, it's incremental. And the Supreme Court basically put the kibosh on that. Limited progress.

[Kate Shaw]

Right. Unless there's massive change. What the Supreme Court has set in motion is a period of retrenchment that is going to parallel the post Reconstruction period of retrenchment. And it feels like that's by design.

[Leah Lippman]

Yeah, resegregation, you know, Jim Crow. Or as I just sputtered out with Melissa on Ms. Now, Jim Crow Leto,

[Melissa Murray]

Sam Crow, if you're from the Van Archie fan.

[Leah Lippman]

If. Yeah, exactly. Either any works. And still, I just don't know if those numbers adequately convey how consequential and awful this decision is. And it's been frustrating for me, feeling like the world and the country is just like, not sufficiently outraged. The New York Times has an excellent series of articles on this with graphics, if you're more of a visual person that I'd encourage everyone to check out, illustrating again the significance of the Voting Rights act to making Congress representative.

[Melissa Murray]

And.

[Leah Lippman]

And of course, in the wake of the decision, as they knew would happen, states are already clamoring to erase Political opportunity, districts and political representation. Totally.

[Melissa Murray]

The Florida legislature approved a new congressional map intended to maximize Republican advantage in the state. As part of this broader national redistricting battle, Louisiana's Republican governor Jeff Landry issued an executive order that delayed House primaries, though not Senate primaries, until July 15 or until such time as determined by the legislature. The elections in Louisiana had originally been scheduled for May 16 with a June 27 runoff date. So you know, that is happening. I think your favorite senator, Kate Marsha Blackburn of Tennessee made some.

[Leah Lippman]

She wants to get in on this.

[Melissa Murray]

She sure did. She was like, you know, like this is this decision is going to happen. Help Tennessee stay red. I mean, was that the point? I think it might be saying the quiet part out loud.

[Kate Shaw]

Marcia, Marcia, Marcia, Marcia. There's a movement and possibility in Alabama as well. So I think we honestly don't know what the full fallout is going to be. And it could be the speed with

[Leah Lippman]

which they are doing this.

[Kate Shaw]

Just, just like Shelby County.

[Leah Lippman]

It's just like, just like Shelby County. But it also Justice Alito just declared racism is over. Right. And of course they knew this was going to happen. It's such a cowardly, craven decision. And again, this is happening.

[Kate Shaw]

And just to remind folks, right like in 2013 when the first time the Supreme Court declared racism over in Shelby county, literally later the day the opinion was issued, states started moving to implement restrictive voting laws. They would have had to get pre cleared under the pre Shelby regime but had carte blanche to kind of move forward with after Shelby County. We are seeing that replay right now. And I also think, you know, it is a mistake to think just about what the impact on the 2026 map will be like. Obviously, you know, Liam, Alyssa, are talking about kind of Democratic impact more broadly. It may be that a handful of states decide that because the 2026 map is already going to be really tough for Republicans, redistricting might actually backfire if they're going to make more districts that are more competitive. So I don't actually know at the end of the day how many new legislative districts they're going to be in 2026. But I do think between 26 and 28, there's no question that they are going to draw out to the maximum extent possible black and Latino representation in Congress and access to meaningful Democratic participation. And it just might take a few cycles for that to fully play out. But again, absent some major course correction, that is the path that we are on. Let me just maybe mention a couple of other things about the opinion. If that's okay, because the kind of emergency episode was like, you know, in the heat of speed reading and hyperventilating and then podcasting. And like, I at least did not read the opinion as carefully as I subsequently have. So I just like wanted to flag a couple things. One is something that others have mentioned but we haven't on this show, which is that Sam makes this insane claim, like black voters now participate in elections at similar rates as the rest of the electorate. Okay, that's not the insane part of the claim. This is turning out at higher rates than white voters in two of the five most recent presidential elections nationwide. Okay, so he says that obviously, if you listen and sort of think about it for 30 seconds, the two elections in which black turnout exceeded white turnout were the two elections in which Barack Obama, the first black president, was at the top of the ticket. And those two elections also occurred before the court's decision in Shelby County. So to suggest that that is this kind of silver bullet evidence that racism is done and racism and voting is definitely done is so unhinged. I kind of can't believe that his law clerks and colleagues let him get away with keeping that statement without explication in his opinion.

[Melissa Murray]

You know, this is standard for this court because In Shelby county vs. Holder, the chief justice did the same fucking thing and was like, you know, like, there have been massive numbers of black people voting. I'm like, yeah, because there's like a of bunch black dude on the ticket. And everyone got super excited. Like there are no new ideas. So no new clerks, no new ideas.

[Kate Shaw]

No. This is a lot of recycled logic from Shelby County. But it's Sam. And so it's somehow infinitely worse because everything he does is. And sneakier. Like Shelby county at least had the decency to, you know, not justify itself in conventional legal reasoning, but say we are invalidating part of the Voting Rights Act. Sam is much sneakier. So he says we're not.

[Melissa Murray]

But of course I'm not going to give you that. Like, I thought Shelby county was sneaky. Well, as too. Right? I mean, so yes, they're like, we're just invalidating the pre. Covered formula.

[Kate Shaw]

As opposed to formula. Yeah, the formula.

[Melissa Murray]

But like, I mean like we know Congress isn't going to write a new formula, so we basically fucked up Section five anyway. So you're right. They tried.

[Kate Shaw]

They tried to be sneaky there too as well. Okay, that's fair.

[Melissa Murray]

What are you trying to say?

[Leah Lippman]

In addition to being sneaky, he preserves it so it can be used against Democratic gerrymanders. Right. So they can bring intentional discrimination claims against majority black districts.

[Kate Shaw]

Right.

[Leah Lippman]

That's why he doesn't kill.

[Kate Shaw]

Yeah, yeah, yeah.

[Melissa Murray]

This is like the due process. Like, we're going to keep the due process and not kill it entirely. So when we get to fetal personhood, we can use the due process.

[Kate Shaw]

Totally. Yeah. Which is a point we've obviously made about Dobbs, like, Clarence.

[Melissa Murray]

Keep it down. Keep it down.

[Leah Lippman]

Let's.

[Melissa Murray]

Yeah. Anyway, I don't even know what to add to this other than I told you so. Like, did I not say after Allan versus Milligan that.

[Leah Lippman]

Yeah.

[Melissa Murray]

I mean, I caught so many straights when I said that. Just like reminding you. I caught so many stories. And I said Allen vs. Milligan was not the last word, that they were just like, they couldn't do it 10 years after Shelby county, so they'd wait a while. Here we are. These schools will stop at nothing to fully decimate the legislation that people literally were beaten and killed in order to enact. I mean, just absolutely insane. And I think the thing that is most stunning to me is the absolute cravenness of it. Not just the insistence that they are preserving Section two, when we know that they are not, but that, you know, they are preserving it so it can be used in this way against minority voters, against Democratic voters going forward, and because they know they're gonna catch a whole bunch of flack for killing the Voting Rights Act. I mean, this is like Casey, where they said, you know, we're preserving the central tenets of Roe, and then they really just.

[Leah Lippman]

They.

[Melissa Murray]

They hollowed out Roe so that it was a nub of itself. Same kind of thing is going on here. Like, they are trying to preserve themselves, and they've done, I guess, a good job of it. Unless people stay on their necks and keep saying, you killed the Voting Rights act, you just killed Section two. And I think we have to say that I'm stunned by the cravenness of the Chief justice who is in the majority in Allen vs. Milligan, where he lauded the remaining shards of the Voting Rights act that he deigned to allow to exist after Shelby County. And now he's fully on board with the majority in this case. Like, you know, it was only a few years ago, like, why the difference, sir? And also stunned by the cravenness of allowing Sam Alito to write this opinion.

[Leah Lippman]

Shout out to the colleague who told me Shelby county was justified because of Allen vs. Milligan and that it was only possible to write a decision like Allen v. Milligan in light of Shelby County. And I was like, what just beat

[Melissa Murray]

your head against a wall? Anyway, I'm also disgusted with Congress, including the Democrats, because for years, civil rights advocates, black people have been saying that this was coming, that the Supreme Court was intent on dismantling voting rights and that they would stop at nothing to do it. And nobody did anything. Right. When I sat on MSNow and asked a member of the Congressional Black Caucus how the Congressional Black Caucus planned to respond to this particular lawsuit, the answer was to file litigation.

[Leah Lippman]

I was like, I was on there with you, and I almost lost my rocker.

[Melissa Murray]

It's like litigation that will go up to this court to say.

[Kate Shaw]

I'm like, is that the plan?

[Melissa Murray]

That can't be the plan. But that apparently is the plan. And, you know, I just. I can't. Last night, we're recording on Friday. So Thursday night I was at an event celebrating the centennial of the Schomburg center for Black Research in Harlem. And the Schomburg center is an arm of the New York Public Library, and it's devoted to the preservation of black writing, art, research and culture. And Senate Minority Leader Chuck Schumer was there and he spoke. And it was literally all I could do not to stand up, turn my back and walk out. He spent nine minutes lauding the contributions of black people to this country and this culture after he spent the last nine years letting this court chip away at a law that Congress enacted and reauthorized for years and years and years. And. And in addition to that insult, he pronounced the name of Edwige Danticat, the award winning Haitian American novelist who was honored at the event. He pronounced it Edwidge Dentiket. I was just like, sir, read a book. Read any books. And so I'm just mad at everyone. That's fair. Me too. I'm a bipartisan rager right now.

[Leah Lippman]

Deservedly so. It was so clear that this was gonna happen. I literally wrote it into the version of my book that came out last year. Right. And then updated it with more confidence for the paperback version coming out in June. Like, it was. It was obvious, Right. They were going to do this anyways. Okay, that went over. Should we move on to argument?

[Kate Shaw]

We should. But I do think that let's put a pin in the idea of, like, just five ranting minutes about Kalay at the beginning of every episode, at least for the next few weeks.

[Leah Lippman]

I think that's at some point in an episode.

[Kate Shaw]

It doesn't have to be the beginning. Okay. Just a recurring segment.

[Melissa Murray]

Do you remember when we were talking about, like, how would we revamp after Trump 2.0. Like, what we would he do? And like, I suggested maybe a recurring segment called Douche of the Week where we just talk about someone we hated and you were like, that's kind of a downer. So instead we decided to do favorite things. Maybe it's time for Douche of the Week.

[Leah Lippman]

I like the direction. I just. I also like the focus on Calais.

[Melissa Murray]

I just think Douchey decision of the century.

[Leah Lippman]

Exactly like that decision needs to become part of the lexicon as we were suggesting.

[Melissa Murray]

Like, we got a bad decisions tour coming out. Let's just put it on the shirt. Put it on the shirt.

[Leah Lippman]

That's fair.

[Melissa Murray]

Update the shirt. Okay, okay, okay.

[Kate Shaw]

All right. So stay tuned for the next installment of that whatever it turns out to be.

[Leah Lippman]

Strict Scrutiny is brought to you by Aura Frames. Aura Frames is here to help you put together a magical Mother's Day that allows you to capture and relive Mom's magic every day. I'm a dog mom, which means I love looking at photos of me and my baby girl. Some of them are photos my partner took, usually where I I'm manhandling or mom handling her into a pose. But I also love some of the selfies I've been able to capture with her where she's even doing an ear toss or a hair toss. And Aura Frames ensures those memories aren't just in my head. They're there for me every day when I need them. Aura Frames has so much to offer as a way of preserving and reliving memories. Aura Frames offers free unlimited storage, so you can add as many photos and videos as you want. And you can preload photos before your Aura Frames shift ships. And you can keep adding them from anywhere, anytime. So make Mother's Day special with Aura Frames named number one by Wirecutter. You can save on the gifts moms love by visiting auraframes.com for a limited time. Listeners can get 25 off their best selling Carver mat frame with code strict. That's a U R A frames.com promo code strict. Support the show by mentioning us at checkout. Terms and conditions apply. Apply. Strict Scrutiny is brought to you by cookunity. I'm a foodie, but that doesn't always mean the fancy schmancy stuff. I'm basically obsessed with kava. Yes, that's the fast, casual chain and always crave their hot harissa chicken and lamb meatballs and garlic sauce and harissa sauce. But here's the thing. There's no kava in Ann Arbor, so I'M left to attempt to create it on my own with fairly mixed results. Or better yet, I can turn to CookUnity. Cook Unity is the first chef led meal delivery service that makes your meals in small batches inside local micro kitchens across the United States. States, not factories. So every dish arrives with the kind of freshness you'd get at the restaurant itself. You can get meals from Michelin starred chefs, James Beard Award winners and Food Network stars. Go to cookunity.com strict or use code STRICT before checkout for 50% off your first week. Here's a list of what I ordered in my most recent batch from CookUnity. There were Mediterranean zucchini fritters. I really wasn't joking when I said I'm trying to recreate restaurant level Mediterranean cuisine. But there were also a host of other dishes including Maryland style crab cakes because you know what Maryland does? Crab cakes and football. So I got the crab cakes. I also got the mushroom and potato taco suizos. And if you noticed anything about that list, you'd know they're totally different flavor profiles, which is one of my favorite things about cookunity. I really liked all of the dishes, maybe the zucchini fritters best, just because that's what I was craving. But I also like the other dishes I ordered like the tofu and mushroom sisin. I love enjoying the meals knowing that every cookunity meal is handcrafted by chefs in local micro kitchens, not mass produced in large facilities. It's fresh, never frozen, and can be refrigerated for up to seven days. And the food tastes like someone just made it for you because someone did in a small batch that morning. Taste what happens when real award winning chefs make fresh, small batched meals just for you? Go to cookunity.com strict or enter code strict before checkout to get 50% off your first order. That's 50% off your first order by using code strict strict or going to cookunity.com strict. Now we're going to shift to argument recaps. So the day the Supreme Court announced that racism is over so that the Voting Rights act would no longer prohibit legislatures from discriminating against black voters so long as black voters tend to vote together for Democrats, the Court also got to noodle over whether the President's statements about excluding people from shithole countries, making horrific lies about how Haitian immigrants are eating cats and dogs, and general talk about the blood of the nation were racist. The Solicitor General says no.

[Kate Shaw]

So yes, the court heard argument in Mullen vs Doe and Trump vs PIO. As a reminder, these are the challenges to the revocation of temporary protected status for Haitian and Syrian nationals. As we mentioned in the last episode, and as Leah just alluded to, the President and senior administration officials have maligned and vilified Haitian immigrants in particular, and apparently decided to cancel TPS for Syrian nationals. Based on extensive analysis reflected in a single email. And, oh, maybe Brett Kavanaugh's musings about sort of the geopolitics of the new regime in Syria. Seems like that is what drove the administration. So the question is, can they do that?

[Melissa Murray]

The government is arguing that it can. The argument proceeds as follows. First, that the revocations are unreviewable, meaning that the executive branch can do whatever it wants and any congressional limitations on revocation and protections for TPS holders are. Are absolutely unenforceable. Do you know what that's giving monarchy?

[Kate Shaw]

Yeah.

[Melissa Murray]

Yes. The government is also arguing that the President definitely, totally had reasonable, rational, and unbelievably race neutral reasons for ending these programs. So nothing to see here, folks. Top lines on this argument, especially coming right after the announcement in Calais. This was rich. This was rich.

[Kate Shaw]

Wednesday was a lot.

[Leah Lippman]

It was in this case, the TPS cases. It's possible the Solicitor General may have overstepped just by advancing extremely broad theories about the bar of judicial review, which might provoke the court to preserve a narrow, albeit limited and deferential category of claims that can be reviewed. The plaintiffs are arguing procedural claims and constitutional claims can be. Add to that, there were a few questions for the lawyer challenging the revocation of TPS for Haitian nationals. At the same time, I wasn't exactly sure who the five would come from. You know, at times the chief and Barrett sounded skeptical, but they've done this before, only to go full throttle on what the federal government is selling.

[Kate Shaw]

Yeah, so I actually felt modestly optimistic about the Chief and Barrett. I mean, they were both mixed, but out of the gate, the Chief pounced on the government for, like, overreading or seeking to extend, without copying to it, Trump versus Hawaii. And I did think Barrett was reasonably sympathetic, though uneven. I heard nothing in her questions that, like, alluded to this, obviously explicitly, but I did wonder whether the fact that she has two adopted kids from Haiti might make her somewhat less likely to just dismiss the President's vile words about Haitians. But, you know, hard to know the challenger.

[Melissa Murray]

Is that the same President to whom she introduced her kids when she was nominated to the Supreme Court?

[Kate Shaw]

Very same. Yeah.

[Melissa Murray]

Very same.

[Kate Shaw]

And I mean, I Mean, I think she probably hung out with at the state dinner last week. I don't know, but probably did. Yeah. So yeah, she hasn't shown that much interest in distancing herself from him. But hope springs eternal. There's also the fact that the challengers were like I thought, very cautious and kind of measured in their asks. They were very insistent that executive branch gets tons of deference here. No one is asking the courts to decide whether to keep or terminate tbs, just that there is some minimal process beyond the non existent process that was followed here that the law requires. But then there was this weird thing where at moments the fact that, that the asks were like pretty small were for Barrett and Kavanaugh maybe reasons to rule against the challengers. Like if you're not asking for much then like why bother? Which I found maybe put my head through a window. Constitution.

[Leah Lippman]

Why should we bother if they get

[Kate Shaw]

to the same outcome Anyway. No, completely. Anyway, I did sort of feel like, heads I win, tails you lose. But again, I felt like hopeful that there may be a narrow but obviously meaningful loss for the administration here. Anyway, that's my top line.

[Melissa Murray]

Yeah, they were basically like, go big or go home. Home either.

[Kate Shaw]

Right. And we know you're going to, you're going to send you home if you go big. So like again, that's go big and go home. Right, Right.

[Leah Lippman]

Yeah.

[Melissa Murray]

You know, so obviously one of the arguments that the challengers are making here is a procedural argument that, you know, yes, the executive branch can do this. They just have to follow these specific procedures. This is a species of the kind of argument they made in the DACA recision cases that were heard back in Trump 1.0. I think it was around 2020 when this podcast was getting going for the first time time. Those arguments were obviously availing in that context back in 2020. I just wonder if they're going to be as deferential to this administration as they have been more recently or whether we're going to go back to that 1.0 where they're just like, listen, just do government. Right? Like you got, you've got shitty instincts, but just do it. Right. And who knows? Another ongoing theme that was sort of surfacing there was, you know, what the fuck is Congress? Congress for? What the fuck are courts for? Do you need Congress or courts when you are the unitary executive? I mean, they genuinely seem to be grappling with the fact of their own obsolescence, which was interesting. Another observation was that the race talk in this case was so off putting and especially so given that the argument occurred right after the court declared racism dead and buried in the announcement of the Killay opinion. So I very much appreciated both Justices Sotomayor and Jackson staying on the administration's neck about its arguably racist statements regarding immigrants and the countries from which they arrive to the United States. I mean, just a lot to go on here. And I know we should talk about this and play some tape, I think.

[Leah Lippman]

Yeah. So we wanted to share the exchanges between those two justices and the lawyer for the federal government just because they were otherworldly. So let's play those clips.

[Melissa Murray]

We have a president saying at one point that Haiti is a, quote, filthy, dirty and disgusting s hole country. I'm quoting him.

[Kate Shaw]

And where he complained that the United

[Melissa Murray]

States takes people from such countries instead

[Kate Shaw]

of people from Norway, Sweden or Denmark.

[Melissa Murray]

Where he declared illegal immigrants, which he

[Leah Lippman]

associated with TPS as poisoning the blood of America.

[Kate Shaw]

All the statements that they cite as to the secretary and asked the president, obviously there's an issue there about which one you're going to weigh more heavily. None of them, not a single one of them mentions race or relates to race anyway. All those statements in context refer to problems like crime, poverty, welfare, dependence, drug importation. Harlington. What about poisoning the blood of Americans? If you, if you look at those statements in context, again, they're clearly talking about problems like what about bad genes?

[Leah Lippman]

Bad genes, quote, unquote.

[Kate Shaw]

Again, also, not, not.

[Leah Lippman]

They presented them wrenched from context.

[Kate Shaw]

You can look at each one of those statements. They're talking about problems of crime, poverty, welfare, dependency, again, problems that have been emphasized again and again by not just President Trump, not just the Secretary of State, at many others who favor a tough immigration policy. And if the position of the district court position of the United States is that we have to have an actual

[Leah Lippman]

racial epithet that we don't, we aren't allowed to look at all the context.

[Melissa Murray]

Wow, that was quite a super cut. What a mashup.

[Leah Lippman]

I mean, this is about welfare and poverty and. Yeah, just say welfare.

[Melissa Murray]

Just say welfare question. Right.

[Leah Lippman]

Like you do you think you're saying things that indicate you don't have racist views? The president doesn't have racist views if he's saying people from those countries are more likely to commit crime and be poor. Like, I don't understand.

[Kate Shaw]

Yeah, I mean, I think he had to take that position and it was horrifying and almost laughable. Two observations about that. One, we'll talk just briefly about a case involving the Alien Tort statute and the Torture Victim Protection Act. But Jackson And Sotomayor and their kind of continued insistence on, on saying what the case is about, like, even when their colleagues want to retreat to like abstract legalism, like their colleagues want to talk a little bit about the APA and you know, kind of deference to the president and the executive, and they're like, here are the words he said with his mouth or on truth social, like, let's listen to them. And in the same way, in the case involving this alien Tort statute, there's all this sort of abstraction about third party and secondary liability. And Sotomayor at one point is like, like, we're talking about allegations that a government with the help of this US Corporation designed a torture scheme and like tortured people. And you can just hear in the room, they hate when these, when Sotomayor and Jackson like, remind them what these cases are about. And like, I love it so much. It's so important.

[Melissa Murray]

I hate it when women of color bring up all of the quasi racist statements.

[Kate Shaw]

I mean, yeah, completely. Like, I, I wasn't in the room, but I am sure that they were all like, why do you keep saying this stuff? It's like, that's what the case is literally about.

[Leah Lippman]

So rude. So.

[Kate Shaw]

Exactly. Yeah. Anyway. And you know, the federal government, to

[Melissa Murray]

say them discrimination on the basis of race is to stop talking about discrimination.

[Kate Shaw]

Donald Trump quoting.

[Leah Lippman]

Exactly.

[Kate Shaw]

In these hallowed halls, basically, anyway. And yeah, it was just sort of especially galling that the federal government tried to defend all of this on the same day that Justice Alito announced that racism is over in Calais. From the bench. And I don't think we've said this, but Kagan dissented from the bench and it was apparently pretty epic.

[Melissa Murray]

Can we go back and take a few beats on the shamelessness or the lack of virgonia of one Samuel Alito? There was this very extended disquisition with the lawyer who is representing the Haitian nationals in which Justice Alito mused about whether he would view certain immigration policies as directed against white or non white individuals. And he asked about, in addition to Syrians and Turks, whether Greeks and Italians might be considered white or non white. And the lawyer basically said, sir, I don't know who needs to hear this, but there was a time when Italians were not considered white. And then Justice Alito responded with this, a really large, really broad definition of who's white and who's not white.

[Leah Lippman]

As I said, I don't like dividing

[Kate Shaw]

the people of the world into the these groups.

[Leah Lippman]

That is the man who says it's racist racial discrimination. To comply with the Voting Rights act and not racist. To discriminate against black voters. If you're discriminating against Democrats. Saying he doesn't like dividing the people of the world into racial groups.

[Melissa Murray]

Like, so much easier to divide them by partisan affiliation, Leah. It's race neutral and, you know, much better that way.

[Leah Lippman]

Whatever. Just insane, insane.

[Melissa Murray]

The other one that I loved, John Sauer, had some real bangers in this argument, I have to say, but this is the one I really loved. He said with a straight face, this is the Solicitor General of the United States. John Sauer said with a straight face to Justice Brett Kavanaugh that the President of the United States revoked TPS for Haitian nationals in order to reverse the brain drain from Haiti. So sour said, quote, unquote, there's this kind of talent drain out of Haiti that what? That's the Trump administration, folks. Like, the Trump administration is literally revoking tps, a policy that was created to help the people in this earthquake ravaged society come to the United States and live better lives. They are revoking it in order to help Haiti retain its natural, natural pool of native talent. That's, that's foreign policy. That is presidential, folks.

[Kate Shaw]

The, the sort of bad faith continues apace. So in an argument of many notable exchanges, and I did think the kind of Justice Alito asking about Italians and the attorney from the podium, I thought did a very nice job basically saying, yeah, 120 years ago, Southern Italians weren't considered white. And you would think that would give Sam Alito a little pause. And yet instead he was just, just like, I'm annoyed by this whole thing.

[Melissa Murray]

That's the second time he's been called on the history of Italians in America and their relationship.

[Leah Lippman]

Last month, citizenship.

[Kate Shaw]

Yeah, yeah, yeah. And yet it's not really penetrating, is it?

[Melissa Murray]

But you know what, guys? It's time to talk about Clarence Thomas.

[Kate Shaw]

Okay? So. Right.

[Melissa Murray]

So because he would go further, he would go further.

[Kate Shaw]

So, you know, he always wants to go further than his colleagues. And with the lawyer representing the Haitian national, these plaintiffs are unsurprisingly challenging the revocation on the ground that it was motivated by racial animus. Right. See all the statements that we were just adverting to and also like a desire to discriminate on the basis of race. And Clarence Thomas seemed to take issue with the idea that the federal government might be prohibited from discriminating on the basis of race. Right. Like just to say that again, not sure Thomas isn't so sure that there's anything unconstitutional about government Discriminating on the basis of racism, race. If it's the feds, just sit with that.

[Melissa Murray]

During the seriatum portion of the argument, Justice Thomas repeatedly asked the lawyer how the lawyer's equal protection race discrimination claim worked, or rather whether it made any sense. And the gist of Thomas's question was essentially that the Equal Protection Clause appears Only in the 14th Amendment, which applies only against states. It doesn't apply against the federal government. There isn't an explicit guarantee of equal protection in any part of the Constitution that is applicable to the federal government. However, as I note in the US Constitution, a comprehensive and annotated guide for the modern reader, on the very same day the Supreme Court announced its decision in Brown vs Board of Education, it also announced a decision in Bolling vs Sharpe, a companion case. And it struck down segregated schools in Washington D.C. a federal territory. And it did so on the view that the Fifth Amendment, which applies to the federal government, contains an implicit guarantee of equal protection. And this is all discussed here. Weird that Justice Thomas doesn't know this, or if he does know it, whether it is an invitation to other people to challenge or question the status of Bolling vs Shaw and this implicit guarantee of equal protection in the Fifth Amendment.

[Kate Shaw]

You know what's so pesky? Precedent.

[Melissa Murray]

Precedent is and books and the Constitution,

[Leah Lippman]

as we keep saying, buy the book. The US Constitution Comprehensive and annotated guide for the modern reader.

[Melissa Murray]

Send one to one first read. I know a friend who could use one.

[Leah Lippman]

Send like six exact.

[Kate Shaw]

Not like, but exactly six, it turns out. So at one point during the oral argument in the TPS cases, Justice Kagan's voice, voice like kind of cracked. She sort of started to cough and she said, I'm sorry, I'm losing my voice. And it was like a couple. It was sort of an extended like kind of period where she's trying to talk and then just kind of keeps sort of losing it. So that might have been the result of her extended filleting of the kalay majority by reading portions or kind of summarizing her kallay descent from the bench. I mean, I don't actually know if she read portions of or summarized her descent from the bench since for reasons. And by that I mean like just reasons they haven't told us. They don't broadcast the audio of the opinion announcements despite now, you know, real time broadcasting the arguments themselves. It's insane. It's just a thing they, they do because they can but just not share that audio with us. Anyway, we know she read her dissent But I am really eager to actually get that recording, and it's just insane that they make us wait. So there was another exchange I wanted to highlight. So one important precedent for the challengers is New York vs Commerce, the case involving the challenge to the addition of a citizenship question on the 2020 session census. The lawyer for the challenger, by the

[Leah Lippman]

way, the Trump administration said they needed the information to enforce the Voting Rights Act. Right. Which I just argued in favor of dismantling and nullifying. Just reminders, reminders all around.

[Kate Shaw]

Oh, my.

[Melissa Murray]

Receipts, receipts.

[Kate Shaw]

I just. Yeah, yeah. Sort of infinite regress. So anyway, here is that exchange with the attorney for the challengers.

[Leah Lippman]

I wouldn't change a word of commerce, your honor.

[Melissa Murray]

I wouldn't either. Yes. Okay.

[Kate Shaw]

So I just. I don't know what you guys made of this. Ilan is a wonderful lawyer. We've had him on the pod before, and I thought he did a great job in this argument. I will just say that I personally would change lots of words in New York vs Commerce in that it's a kind of incoherent opinion that both says it's not arbitrary and capricious for the government to add this question, but then because the reasons given were pretextual or contrived, the addition has to fall sort of of separate from a traditional arbitrary and capricious kind of analysis. Anyway, it's a puzzling opinion I've spent a lot of time with, but I understand when you're arguing in front of them, you have to say that their opinions are perfect and you wouldn't change.

[Leah Lippman]

Perfect. You're beautiful. You're doing amazing, sweetie.

[Kate Shaw]

I mean, look. But this goes back to what Melissa was saying at the outset, which is we really will find out whether these were just entire one offs, both the census case, which the first Trump administration lost, and the DHS recision, you know, the. The DACA recision case, which the first Trump administration also lost. You know, either those cases, like, stand for a principle about government has to do things or they don't. And I think we're going to find out here.

[Melissa Murray]

One final note. I think this is bubbling up in the lower federal courts for sure, but we definitely saw a glimmer of it here at the court in this argument, and that is judges here, Justice Sotomayor using the unitary executive theory against the administration, which, as we know, is obsessed with the unitary executive theory when it suits them. So let's hear this tape. I'm not quite sure in not so long ago, you came in and said that every executive Officer has to be answerable to the President. So the President's statements have to be attributable to its executive officers to the Secretary. I don't see how you can take both positions.

[Kate Shaw]

Either an executive follows the President's orders or it doesn't. That was great. So we will briefly touch on the rest. Well, not that whole thing was great, just Sotomayor was great.

[Leah Lippman]

Not.

[Kate Shaw]

Not the argument. Although as I said, I am optimistic. Modestly. But once again. So to my room. Great question.

[Leah Lippman]

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[Kate Shaw]

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[Leah Lippman]

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[Melissa Murray]

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[Leah Lippman]

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[Melissa Murray]

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[Kate Shaw]

But that's weird.

[Melissa Murray]

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[Kate Shaw]

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[Leah Lippman]

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[Melissa Murray]

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[Leah Lippman]

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[Kate Shaw]

So we will briefly touch on the rest of the SCOTUS arguments from last week. At the end of the show. But we wanted first to touch on some more legal developments because there have been a lot of them.

[Melissa Murray]

First, I know you guys did not have this on your bingo card for 2026, but it's time to talk about ballrooms and their implications for security. I know you weren't expecting it, but ballrooms and national security are actually co extensive. And that is because on Saturday, April 26, there was a terrifying incident in which a gunman appeared at the White House Correspondents association dinner at the Washington Hilton and shots were fired. Thankfully, it seems that no one other than the gunman was injured. This was a dinner where, for inexplicable reasons, given their disdain for the First Amendment, the President and members of his administration were invited. And so the fact of, of this gun violence episode obviously had real implications for the safety of those officials.

[Kate Shaw]

Right. But the last thing Melissa said, that they were invited and not the hosts of this dinner is actually important for sort of what comes next. Because in the aftermath of the shooting, the administration began making the truly absurd claim that the shooting supplied evidence for why the President needed this 90,000 square foot ballroom whose construction is underway at the White House. Because national security demanded it. Right. So this is what they immediately jumped to. Here is Carolyn Levitt making this claim.

[Melissa Murray]

The White House ballroom project is not just a fun project for President Trump.

[Leah Lippman]

Like you will read in the media, it is actually critical for our national security.

[Kate Shaw]

Here is Lindsey Graham echoing it. If you don't think $400 million of taxpayer money is a good investment to

[Melissa Murray]

create a secure facility at the White

[Kate Shaw]

House where the President, United States, the Vice President, the Cabinet, and people from the public can come and, and, you know, have a meal and gather without

[Melissa Murray]

what happens Saturday then.

[Kate Shaw]

I disagree. This is the number one job of the federal government is national security. The number one job of national security, I think, would be to protect the Commander in Chief and to have infrastructure under the ballroom that is very national security centric. So, Lindsey.

[Leah Lippman]

And apparently the President thought those comments just slapped because the Department of Justice filed a motion to this effect. You should read the entire nine pages. We will just provide you some excerpts. Quote, the National Trust for Historic Preservation is a beautiful name, but even their name is fake. That's all caps. Because when they add the words in the United States to the National Trust, it makes it sound like a government agency, which it is not. They are very bad for our country.

[Kate Shaw]

Read Melissa's book. The National Trust for Historic Preservation isn't even in the Constitution. So, like, what even are they okay, wait, let me read another. Another quote. This did not deter them, the National Trust, because they suffer from capital T, Trump capital D, derangement, capital S syndrome, commonly referred to as tds, as noted by Democrat Senator John Fetterman of Pennsylvania. And as are represented the challengers, that is by the lawyer for Barack Hussein Obama, Gregory Craig, who I'll note, is now at the law firm Foley and Lardner. One more quote. In the long and storied history of the White House dating back to 1791, Congress has never dictated or tampered with the zoning, permitting or architectural aspects of any Capital P project, especially one being all caps free of charge as a gift to the country. This insane brief was signed by the Acting Attorney General, Todd Blanche. It just feels like this. Performative. Objection. It's like, I will literally do anything for you.

[Melissa Murray]

Performative is the exact word. This is your audition for American.

[Kate Shaw]

I have no shame. I will literally do anything for you. And honestly, having read that, I believe it.

[Leah Lippman]

Sorry.

[Kate Shaw]

Wait, there's more. Wait, do you want to.

[Melissa Murray]

Okay, I'm ready. This is my time to shine.

[Kate Shaw]

Oh, actually, this is.

[Melissa Murray]

This is my audition. All right. If any other president had the ability, foresight, or talents necessary to build this ballroom, which will be one of the greatest, safest and most secure structures of its kind anywhere in the world, there would never have been a lawsuit. But because it is Donald J. Trump, a highly successful real estate developer who has abilities that others don't, especially those who assume the opposite office of the president, this frivolous and meritless lawsuit was filed again. It's called All Caps Trump Derangement Syndrome. On top of everything else, this project is a gift to our country from President Trump and other donors. It is free of charge to the American taxpayer. Who could ever object to that? What do you have to say? Who can object to that? Yeah, this is longer,

[Kate Shaw]

so it reads like a Truth Social post. It was actually posted verbatim by Trump on Truth Social. As opposed, which, I mean, why bother with the interim step of the filing in at all? I don't even know.

[Melissa Murray]

I mean, the real derangement syndrome, like, wow.

[Leah Lippman]

Reflecting on this, one wonders, would Louis XVI and Marie Antoinette have died if they had had a ballroom? Folks are asking this question more and more.

[Melissa Murray]

Let them eat disco balls, said Marie Antoinette.

[Leah Lippman]

Exactly. More fucking around and finding out. Dispatches we wanted to talk about were the other federal courts holding the unitary executive theory against the administration and what we're calling fuck around and find out, Unitary Executive Edition.

[Kate Shaw]

Okay, so let's Tick through a few pretty kind of interesting developments here. So one development came from the district judge in Florida, Judge Kathleen Williams, who was overseeing Donald Trump's case against the auction IRS. This case seeks 10 billion with a B dollars from the IRS and Treasury related to the disclosure of Trump's tax forms. And the judge questioned if she had jurisdiction over the case or whether it would have to be dismissed.

[Melissa Murray]

And if you're a constitutional law professor, you kind of loved this opinion because it was like jurisdiction 101. The judge wrote, quote, a key characteristic of the case or controversy requirement is the existence of adverseness or a dispute between parties who face each other in an adversary proceeding. Typically, adverseness is found in a situation where one party is asserting its right and the other party is resisting. But she continued in the instant case, although President Trump appears that he is bringing this lawsuit in his personal capacity, he is the sitting president and his named adversaries are entities whose decisions are subject to his direction. Oh, snap. And the court then cites some of the executive orders invoking the unitary executive theory. If it's so unitary, it can't be adverse. Bitches, I don't make the rules.

[Kate Shaw]

It was great. Short, like very punchy. Yeah, it was great. And sort of another development, kind of related came from a district judge in New York, Judge Furman, who was overseeing Maureen Comey's case challenging her removal from the U.S. attorney's office. This. She's a long time very respected federal prosecutor. Her father is Jim Comey. Judge Furman found in Maureen Comey's case that he did have jurisdiction. This is a case challenging her firing. And he says that it did not have to be filed as the federal government claimed before the Marriage Systems Protection Board, the agency overseeing the civil service that Trump has hobbled and asserted control over. The judge found that federal court, not the mspb, had jurisdiction over the case because, get this, the President invoked his Article 2 power as the basis for firing her. Quote, comey's case does not fall within the purview of the Civil Service Reform Act's scheme because she was fired pursuant to Article 2 of the Constitution, not pursuant to the CSRA itself. Defendants sole reliance on the Constitution, rather than the removal provisions of the CSRA places Comey's case outside the universe of cases that Congress intended the MSPB to resolve.

[Melissa Murray]

Sometimes you gotta read it.

[Leah Lippman]

Too legit to quit. You do read that for the articles. Read the Constitution for the article with that. Yeah, but you live by the unitary executive, you die by the unitary executive. I'm not even sure if I am allowed to say die in the same sentence as executive or if I will be indicted. You have.

[Kate Shaw]

You're not writing it in seashells.

[Leah Lippman]

No seashells. Okay. Okay, great. Thanks. Good to know. Great tip. Also, the opinion by Judge Furman has a nice cite to Kate's partisanship Creep article in there. Always read the footnotes in addition to the articles. So I don't want to characterize these judicial opinions as trolling. They're much more dignified, reasoned and elegant than that. But I do love the energy.

[Kate Shaw]

Okay, as promised, let's briefly do the other argument recaps. And let's start with Chatri versus United States, which is the Fourth Amendment geofence warrants case that we briefly previewed last week. So as we said to the kind of fourth Amendment stands, this is a really important fourth Amendment case involving the constitutionality of this novel type of warrant called geofence warrants.

[Melissa Murray]

A geofence warrant lets law enforcement get the identities of cell phone users in particular areas or locations at particular they basically draw a kind of virtual fence around an area and then they seek a warrant to require a tech company to search its data to ID users within the geofence at the time of the crime. But then, as is the case here, the government sometimes conducts additional information gathering about the people it identifies. So here, after identifying some individuals, the government then requested location data over a longer period of time.

[Leah Lippman]

So in this case, after there was a robbery of a federal credit union during which a robber apparently was talking on his cell phone, law enforcement asked Google for cell phone records of everyone in the vicinity within one hour of the robbery. And Google has this data because millions of people have a feature called location history turned on in Google Maps, whether or not they realize it.

[Kate Shaw]

So after Google returned an initial list of people within 150 meters for 30 minutes before and 30 minutes after the robbery, law enforcement sought and didn't get an additional warrant for this step information about the movements of certain devices for a longer two hour period period, and Google complied with that request.

[Melissa Murray]

Then again, without seeking an additional warrant, law enforcement asked for subscriber information for three devices. One of those devices belonged to the petitioner. Based on the evidence derived from the geofence warrant, the petitioner was charged with armed robbery and firearms possession.

[Leah Lippman]

I think it might be helpful, and the court seems inclined to go in this direction, to think about this case as involving a few different steps or actions. One is the geofence that is seeking information just about who is in A given space at a given time time. The second is the subsequent information collection, seeking the location movements for some number of people for a period of two hours. And the third is the request for subscriber information.

[Kate Shaw]

Yeah, and it seemed like the court was not inclined to say there was a reasonable expectation of privacy at step one, sort of of the kind of the geofence warrant. So the company is asked, send us all the people in this area at the time, and maybe you, as one of the people who is in the area, don't actually have a constitutionally cognizable interest in not having that information that you were there around this time. Disclose closed. So maybe the court is going to go or sort of kind of focus its attention on the second and third step of the process that we just walked through.

[Leah Lippman]

Which is interesting, because requiring more particularity at different steps of the process would not necessarily be an insignificant change in Fourth Amendment doctrine. least, you know, once you cross a certain threshold of probable cause, reasonable suspicion, there's kind of no variation within there maybe not an unwarranted change, but still a change.

[Melissa Murray]

There is a real discomfort, though, with the government's argument that there was consent or voluntary disclosure of the location information here. You know, the idea was that the people didn't turn off the location tracking information, and therefore they had consented to this kind of treatment. As the justices noted, a lot of people find that useful to use the location tracking, like find your phone, whatever. The justices were also reluctant, it seemed, to rely on the terms of service, that is where Google tells users that it complies with government requests for information. And the point was that even if they said that it mattered, that could potentially allow the government to get access to email and whatnot. And as we mentioned, it seemed like the justices were interested in the idea that at different steps of the process, the inquiry here might change for purposes of the Fourth Amendment. And Justice Jackson was really keyed in on this early on in the argument.

[Kate Shaw]

Something that came up a bunch of times in the argument was this analogy that the petitioner had offered that the. These warrants are like directions to go through everyone's storage locker. So you have like a big storage site and like tons of storage lockers. Could the police just ask the owner to search everybody's storage locker for, like a gun? And Justice Kagan likened the steps in the geofence process to the idea that first the government looks at a bunch of glass front lockers to see if they have bags. So, right. Imagine not an opaque, but like a See through door to the locker and then the government feels the outside of the bags and then they open the bag and like those are distinct steps in the process.

[Melissa Murray]

Process, yeah.

[Leah Lippman]

So the federal government again here, as in the TPS case, really did itself no favors in the argument. They poo pooed several Justices concerns that geofence warrants might allow the government to surveil people at sensitive locations such as churches or homes, which are supposed to be entitled to special protection under the fourth Amendment. And this seemed to potentially peel off both the Chief justice and Justice Barrett.

[Kate Shaw]

It was interesting. So you had the kind of valence of the examples given. So right, you had churches at homes, abortion clinics came up a couple of times as well. So different Justices might have been differently moved by imagining the invasion of privacy that might occur at different kinds of locations. Kavanaugh seemed to be kind of on the other side with his like but crime logic which is ever present. And you can sort of hear that

[Leah Lippman]

in this clip, the local government amicus

[Kate Shaw]

brief and the 31 states amicus brief,

[Leah Lippman]

which has a huge spectrum of attorneys general on that amicus. Brave for I think Warren's note talk

[Kate Shaw]

about the practical consequences, not being able to solve murders.

[Melissa Murray]

A lot of, you know, a huge

[Kate Shaw]

percentage of murders are never solved, for

[Melissa Murray]

example, in violent crimes. You know, who also seemed to be on one, Justice Alito seemed to be very triggered that the court might rule for a criminal defendant. And so he was putting in work to find a way to avoid that unpalatable outcome. Take a listen.

[Kate Shaw]

Well, we can affirm on any ground that would support the judgment and was raised below.

[Melissa Murray]

And the good, good faith exception qualifies on all those points. So the fact that the court did not grant certiorari on the good faith exception does not preclude any of us from relying on that.

[Kate Shaw]

I'm not sure I agree. We would. I mean the court specifically declined certiorari on that question.

[Leah Lippman]

So we didn't brief it.

[Kate Shaw]

And we raised in our cert petition that we'd like the chance to argue that the questions are intertwined. And in view of a holding on the fourth Amendment issue, we'd like to, you know, litigate the good faith issue. The court didn't grant certiorari. We didn't brief it. The government did have a section of the respondents brief addressing the good faith

[Leah Lippman]

exception, but adhering to the Court's decision

[Kate Shaw]

not to grant certiorari, we didn't respond in the reply brief except to ask for a remand. So well, that Was your choice. The court did not grant certaria. We were reluctant to brief a question on which the court specifically.

[Melissa Murray]

Well, you're an experienced advocate. You understand that we can affirm on an issue that was raised below and

[Kate Shaw]

would support the judgment.

[Leah Lippman]

This is not how Supreme Court practice works. Like, a party can't just decide. We're gonna brief and argue this separate question. You didn't actually grant cert on. It's just not how it works. Like, they would go nuts if someone did that. They dismiss cases for that completely.

[Kate Shaw]

I couldn't believe just how craven it was. It was like, I want to find a way to get to the outcome that I want. And so I'm gonna say something I would never in other circumstances say, which is you should have ignored. Ignored our decision to take but not take, like, certain parts of this case and just, like, briefed everything anyway. Yeah. So Adam Yunakowski definitely won that exchange, I thought.

[Leah Lippman]

Yeah. So the court heard several other arguments that we're not going to fully recap in the interest of time. This is just a crazy week. We're also not able to cover Pete Kegseth. Kegsbreath, whatever his testimony. I did a short YouTube reaction video on the Comey indictment. Like, there was just so much going on this week. But at the court, the court heard Monsanto vs. Durnell, which is about preemption of state tort suits for failure to warn claims about when and whether under the federal Insecticide, Fungicide, and Rodenticide act precludes.

[Kate Shaw]

I'm sorry. FIFRA is my favorite federal statute.

[Leah Lippman]

I mean, it's a nice one. It's a nice one.

[Kate Shaw]

Yes.

[Leah Lippman]

The oral argument in the case was hard to read. It could end up being an anti administrator administrative screed for the plaintiffs, or it could be a ruling for corporate defendants whose products allegedly cause cancer. Really difficult for this court to choose between those two.

[Kate Shaw]

This is a hard one to know

[Melissa Murray]

where to root it, really.

[Leah Lippman]

Cross pressure. Cross pressure. As Kate alluded to, there was also Cisco versus Doe there. The court appears inclined to limit the scope of liability under the Torture Victim Protection act and alien Tort statute. Because why allow torture victims the opportunity to allege US Companies aided and abetted torture? Why not? The court also heard the first patent case it's heard in a few years, HCMA Pharmaceuticals versus Amer and Pharma, where just based on my read of the oral argument, it sounded like the court was going to reject one theory of liability for induced infringement against certain generic drug manufacturers whose products are approved for both patented and unpatented uses.

[Kate Shaw]

All right, so finally, let's turn to opinions. We've obviously covered Calais, although we're going to return to it again and again. But we also got the court's opinion in First Choice Women's Resource center vs. Davenport, the case about whether the plaintiff, a crisis pregnancy center, had standing to challenge an administrative subpoena issued to them by the state of New Jersey, where the state sought information that would help the state determine whether the organization was in compliance with state consumer protection laws. And, you know, included in that information that would have been produced pursuant to the subpoena was identifying information about donors.

[Melissa Murray]

The court held that the organization had standing to challenge the administrative subpoena in federal court. The state had argued that there was no risk of injury because the subpoenas didn't generate any legal penalties unless and until the state convinced a state court to enforce them. The court thankfully did not second guess the state's reading of state law that those subpoenas are not self executing. The court instead said the risk or prospect of enforcement was sufficient to cause injury. The opinion was written by Justice Gorsuch, and it was unanimous.

[Leah Lippman]

This result was not surprising given how the oral argument went, although as we talked about with the New Jersey attorney general in our episode recapping the argument, the ruling does really open up the ability to challenge thousands and thousands of administrative subpoenas that are routinely issued by state and federal governments all the time, which has the potential to overwhelm federal courts and jail, jam up legal enforcement. But as we suggested, this outcome might reflect a new reality of the intense politicization, weaponization of law enforcement in the Trump administration, where the justices may have been kind of forced to recognize the extent to which the government uses its investigative powers, including administrative subpoenas, for abusive ends, and therefore may have wanted to open up a path to challenging them earlier on in federal court. I mean, this last week we got the indictment of Jim Comey. We learned that maybe the investigation into federal research serve chair Jerome Powell had ended, although Carolyn Levitt suggested maybe it hadn't. And there were, you know, has been reporting about how the Trump administration has issued administrative subpoenas to people who criticize the administration or question them.

[Kate Shaw]

So it's been a lot and I think the pace is probably going to continue. So let's leave you. Well, we'll get to favorite things, but first we've got two clips without context we're going to play for you. Here is the first one from Chatri, the geofence Fourth Amendment case counsel.

[Melissa Murray]

So I'm sorry, are you Ron, I want to go back to Justice Barrett's if you're not through, Sam, I thought you were through. Go ahead. To go back to Justice Barrett's question.

[Leah Lippman]

If you're not through, Sam, this was, you know, please be Calais. Please, please, please just pipe down.

[Kate Shaw]

Through. But that was probably just wishful thinking. Yeah.

[Leah Lippman]

And here's the second clip without context, this one from Cisco.

[Kate Shaw]

Justice Barrett, if I could just pause for a moment. I've been notified that there will be

[Melissa Murray]

a flyover of four planes at 11:22,

[Leah Lippman]

and I just want to announce that so people aren't alarmed or told the noise. Might be. Might be big.

[Kate Shaw]

I don't know why they didn't check with me.

[Leah Lippman]

But Justice Barrett, this caught my attention because we've joked about them using the shadow docket to intercept missiles that would destroy an asteroid headed for Earth, and it sounded like the Chief justice was maybe potentially opening that door. Door. Or leaving it ajar. Okay, so favorite things?

[Melissa Murray]

All right, let's do it. You start.

[Leah Lippman]

Okay. So Melissa's book, the US Constitution, comprehensive and annotated guide for the modern reader. Also, Ariana Grande announced a new album. I'm so excited. End of July, and I'm going to see the Noah Khan concert. I got tickets, so those are good things. Also, two Voting Rights act pieces on the opinion I wanted to flag here. Sherrilyn Ifill's post on her substance Act SCOTUS drops the other shoe on the Voting Rights act was phenomenal, as was Rick Hossen's the Slaying of the Voting Rights act by the coward Samuel Alito at Slate. Yes, that's the actual title. And then a YouTube over at Jamelle Bouie's channel takes. This one was, I think, inspired by the Voting Rights act decision. And this one is entitled the Supreme Court is Corrupt. This is what we can do about It. And it really walks through the options of Supreme Court reform.

[Kate Shaw]

Oh, that's great. Yeah. I want a second Melissa's book. And also the merch. Again, I'm not wearing the T shirt, but I got a great mug. At some point, I'll have the actual physical book and then I will flash it for you. I'm finally reading the Loneliness of Sonia and Sunny, which many, many people have read and loving it. Most people did. But I think I've heard somewhat mixed reviews, but so far, really love it. And I recently read Ben Lerner's new novel Transcription, which I'm thinking about a lot. I felt Differently about it at different points as I was reading it, but highly recommend it, although I didn't always like it. And. And I'm really glad I read it. Uh, yeah, that's all I got.

[Melissa Murray]

All right. It was kind of a week. It's a big week. And I just want to thank all of my mom friends who we came to. We had a big kid event this last weekend and we all came together and I just want to shout out those ladies, they are absolute bosses. And we did that. So thank you, ladies. I am reading Yesteryear by Carol Claire Burke and it is so fucking satisfying to read this. So the premise is about, like, one of these trad wife influencers who has like, you know, like a ballerina farm, I guess, and then suddenly finds themselves transported back in time to the actual frontier. And I just kind of love it. Like, you want to be an anti vaxxer. Okay, have some measles. Try that. See how it works. So I'm actually kind of enjoying it.

[Leah Lippman]

It's fucking around and finding out.

[Melissa Murray]

I love it. So, really enjoying that book. I also really loved many of the thought pieces that came out in the last two days around the decision in Calais. You mentioned Sherrilyn Ifill's fantastic substack. I will also say, last week the Studio Museum honored Sherrilyn Ifill, and she just gave one of the most amazing and inspiring speeches, basically telling us, like, this is not gonna change in our lifetime, but that doesn't mean we don't do the work like we do the work so that our children and grandchildren can sit in the shade of trees they did not plant. And, you know, I don't know who needs to hear that right now, but it's not the time to put your plow down. You gotta keep going. And I appreciated that. I also loved Adam Serwer's piece, voters can be disenfranchised because, yeah, we're gonna see that. And I'm glad he's speaking truth to power. I also wanna say, just in terms of my favorite things I'm trying to think about, about what I can do in this moment as a black person, a black woman, watching these gains that my ancestors, people I love, fought for, watching them just be rolled back. One of the things that seemed clear to me is that people are not going down without a fight. There's redistricting that is happening in Louisiana and Florida, and the NAACP Legal Defense Fund and our friend of the pod, Janae Nelson, are suing the fuck out of them.

[Leah Lippman]

Yeah.

[Melissa Murray]

And I love that. I Love that they're taking the fight to them and they need our help. So someone asked me, like, what can we do? We can contribute to that. They need resources to be able to launch that litigation. That is something tangible you can do right now. So if you can support that work, that's amazing. That's, you know, don't despair. Help the people who are fighting prepare for the next leg of this fight. Amen.

[Leah Lippman]

In one other just note about K, we're going to sandwich this. If you control left that decision for Purcell, you will not find a single mention, even though, of course, who dat, right? Who dat new phone? Who dis? Because that case says federal court's not supposed to change the rules too close to an election, they did so, causing states to literally suspend and cancel elections quite close to the election.

[Melissa Murray]

There's going to be a Neil Gorsuch decision a couple years from now. It's like everyone knows Purcell has been abandoned for lack of use.

[Leah Lippman]

Only when, again, certain people are invoking it.

[Melissa Murray]

That's true. That's true.

[Kate Shaw]

All right, on that note, spring is all about fresh starts, new T shirts, and terrifying new reasons to call your representatives. The crooked stores call Congress line has been a bestseller since it launched years ago, and now it's available in new spring colors like butter yellow and chocolate brown. Plus, all the pieces got a quality upgrade, so your favorites can stay in rotation even longer. So can I just say gray quickly? I was in Japan for my kids spring break a couple weeks ago, and I have the in navy blue, the call Congress hat with, like, the number on it. And it's a great hat. And my kids are like, what if people in Japan start calling Congress? And I was like, that's fine. They can. Nobody can call Congress. And actually, the number is just the number of the Congressional switchboard, so it will direct your call to whatever representative you want to talk to, cajole, or yell at. So, anyway, it's Chuck Schumer.

[Melissa Murray]

It's Edwin. Right.

[Kate Shaw]

That you can call about. That you can call about new voting legislation and anything else your heart desires. Anyway, honestly, it's, like, hard to do the first time and actually a lot easier and then kind of fun to do subsequently. So get the muscle memory of calling. Super fun.

[Leah Lippman]

I love to call and just be like, so, what's your plan about Sam Alito? Like, what are you gonna do?

[Kate Shaw]

I've never called with that query, but I think I should. What's your plan?

[Leah Lippman]

I do whenever I, like, have some rage.

[Kate Shaw]

I, like, need to catch up. Yeah, yeah. No, I. I'll usually call if there's like something specific, but never just like a general Samuelita rage call. That's interesting. Okay, well, anyway, whatever motivates you to actually take the step. Calling your representatives has never been more important. So you can make spreading the word easier if you throw on the hat, the T shirt, the crew neck, like all of that again, I guess in. In New Colors is [e-mail] store. So go there, shop now, and you yourself make three calls this weekend.

[Melissa Murray]

All right, heads up, New York and the greater tri state area. Because you know what? Your favorite lovely ladies dissing the court, they're coming your way. That's right. You can catch strict scrutiny live at the historic gramercy theater on June 20 as part of the Bad Decisions tour. And it's only May, which means there's gonna be a lot of bad decisions that we can talk about. Tickets are on sale right now. You can grab [e-mail] events. I will just say they are going fast. So if you wanna hang out with with us, you got to do this. Like, get on it. It's going to be so hype. Like, our live show in New York every year is always really dope.

[Leah Lippman]

Yes, it is.

[Kate Shaw]

It's gonna be really fun. I'm excited.

[Melissa Murray]

I mean, you know, we're not gonna be in a stage set piece like Lily Allen, but it is going to be pretty badass. Not gonna lie.

[Kate Shaw]

We don't know that for sure. We haven't even had. We haven't even had the design meetings yet.

[Leah Lippman]

Walking out on stage with a swam read.

[Kate Shaw]

Batman long.

[Leah Lippman]

Well, no, maybe a Duane read bag. I was going to say a long drape of receipts with Sam Alito opinions printed on them that I can just like.

[Kate Shaw]

But you'd wrap around yourself like a ribbon the way she does. No, I would shred it.

[Leah Lippman]

I would shred it.

[Melissa Murray]

I love that.

[Kate Shaw]

Cool.

[Leah Lippman]

Okay.

[Kate Shaw]

Anyway, so we're working on the props, stagecraft, all of that tbd, but you want to find out, get a ticket.

[Melissa Murray]

Struck Scrutiny is a crooked media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrienne Hill. Matt De Groat is our head of production, and we are really grateful for our digital team. Johanna Case, Kenny Moffitt, and Eric Schutt. Our production staff is proudly unionized with the Writers Guild of America. East. And if you haven't already, be sure to subscribe to Strix Club Scrutiny in your favorite podcast app and on YouTube at strict scrutiny Podcast so you never miss an episode. And if you really want to help other people find the show, please rate and review us. It really helps.

[Kate Shaw]

With Verbal's last minute deals, you can

[Leah Lippman]

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[Kate Shaw]

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[Leah Lippman]

still time to get great discounts.

[Kate Shaw]

Book your next day now. Average savings $72.00 select homes only.