Loading summary
Transcript330 lines
- [00:00]
Melissa Murray
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 to see 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 continue fighting for democracy. And our friends at Americans United have been doing the very same thing day in and day out for almost every 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. AU 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 and 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. But now isn't the time to give up. It's the time to fight back against the growing authoritarianism in our country. Consider joining Americans United for Separation of Church and State. You can learn more by visiting au.org crooked because Church State separation protects us all.
- [01:23]
Crooked Media Host
Hey Crooked listeners, if you haven't become a friend of the POD yet, you are missing out on exclusive bonus content that drops every single week. If you do join. You're helping us, you know, grow Crooked Media, which is one of the few independent, proudly pro democracy media companies left in Trump's America. If you join, you also get ad free episodes of all your favorite pods. Ad free episodes of POD Save America. Love it or leave it offline. Pod Save the world. You also get bonus bonus content like our new extra episode of Pod Save America called Pod Save America. Only Friends, Dan Pfeiffer's Polar Coaster. You also get access to all of our excellent substack newsletters like Pod Save America, open tabs, and tons more great content. So stop what you're doing right now and go ahead and subscribe@crooked.com friends check it out.
- [02:19]
Kate Shaw
If you're into tech, you'll love this. TikTok is a live lab where users post instant reviews of the latest trends. Download TikTok and check it out.
- [02:35]
Leah Littman
Mr. Chief justice, please report. It's an old joke, but when I
- [02:41]
Nancy Northup
argue, man argues against two beautiful ladies
- [02:43]
Melissa Murray
like this, they're going to have the last word. She spoke not elegantly, but with unmistakable clarity.
- [02:52]
Nancy Northup
She said, I ask no favor for my sex.
- [02:58]
Melissa Murray
All I ask of our brethren is
- [03:00]
Nancy Northup
that they take their feet off our necks.
- [03:17]
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.
- [03:26]
Leah Littman
I'm Leah Littman.
- [03:27]
Kate Shaw
And I'm Kate Shaw. And we have a very special episode in store for you today. The highs are high, the lows are low. First, the highs to mark the release of Melissa's book, the U.S. constitution, a comprehensive and annotated guide for the modern user in your users right now.
- [03:43]
Melissa Murray
This is not a book you can snore.
- [03:46]
Nancy Northup
It is.
- [03:47]
Kate Shaw
No, it's a. It's a manual. And so for the modern reader user
- [03:51]
Melissa Murray
guy, we'd like you to read the title as opposed to are you a
- [03:54]
Leah Littman
reader or are you a user? Because you might have tuned yourself
- [03:59]
Kate Shaw
snorted
- [04:00]
Melissa Murray
off of toilet seats.
- [04:01]
Kate Shaw
Okay. When the RF Kate, as we call her, not above it. Wow, thank you. I think rfk. If it's the Constitution, I guess I'll proudly snort it. Anyway. Sorry, I.
- [04:13]
Leah Littman
Those will be the highlights. As she was saying, we are way
- [04:17]
Kate Shaw
off the rails and it's like 60 seconds in. But that I think, dear reader, slash listener, slash uterus.
- [04:25]
Leah Littman
Didn't you just say uter?
- [04:26]
Kate Shaw
Kate Uter.
- [04:29]
Melissa Murray
I don't know her.
- [04:30]
Kate Shaw
So we are just pressing on. Anyway, we have a wonderful discussion of Melissa's book that we recorded earlier in a soberer moment on deck. So stay tuned for that.
- [04:41]
Leah Littman
And then we'll get to the lows. And that means the legal news, including an unfortunately long segment on voting wrongs where we'll talk about the Virginia Supreme Court decision invalidating the legislative map that was selected by Virginia voters. We'll also talk about how the Supreme Court, the United States Supreme Court, made its anti Voting Rights and anti Voting Rights act decision in Louisiana versus Calais. Somehow, even worse, these guys are making it super easy for us to continue our recently launched recurring segment, the Calais Catastrophe. And then we'll talk with the president of the center for Reproductive Rights, Nancy Northup, about what's going on with mifepristone.
- [05:16]
Kate Shaw
But first up, Melissa explains the Constitution.
- [05:19]
Leah Littman
We get to have a little fun and turn the tables on our very own Melissa Murray. As you all know, she's usually on this side of the mic asking the questions with us, but today we're putting her in the hot seat to talk about her new book, the US Constitution a Comprehensive and Annotated Guide for the Modern Reader, which was out Tuesday, May 5th. Melissa, thanks for letting us do this to you. Congratulations on the book and welcome to your own podcast.
- [05:46]
Melissa Murray
Well, thanks for having me.
- [05:47]
Kate Shaw
You didn't say you were going to
- [05:48]
Melissa Murray
do anything to me, so this is a little alarming.
- [05:51]
Kate Shaw
Well, we're just getting started.
- [05:53]
Melissa Murray
I feel like I'm at the Supreme Court. People are doing things to me.
- [05:57]
Kate Shaw
This is going to be much more fun. Don't worry. I'm sorry. I still don't have a physical book, else I would hold it on my shoulder for this. I know I don't, but I'm going to just sip from my Constitutional AF mug. And I do have actually by the time the episode drops, my multiple copies I've ordered should arrive. And if you listeners haven't yet ordered your own copies.
- [06:17]
Leah Littman
And Sam Alito, if you also got one that may or may not be for me.
- [06:21]
Kate Shaw
Yeah, at least one.
- [06:22]
Melissa Murray
It's not unconstitutional. Give gifts.
- [06:25]
Leah Littman
Exactly.
- [06:26]
Kate Shaw
To your very favorite Supreme Court justice.
- [06:28]
Leah Littman
And you would know since you wrote the book.
- [06:31]
Kate Shaw
All right, so good segue to Melissa's book. And let's start at the very beginning of the book. And you open it with a very astute observation, which is that Americans frequently invoke the language of the Constitution, phrases like it's in the Constitution or that's a violation of my constitutional rights. And you remind us that this abiding faith in the Constitution I'm quoting here and constitutionalism was not inevitable. It was built over time through institutions and through norms. And here editorializing whether you think that relationship with the Constitution, this kind of abiding faith and constitutionalism as our sort of shared civic religion is good or problematic or some combination of both, it seems uncontroversial to observe that the institutions and norms that have created this relationship with the Constitution are under increasing threat. Okay, so with that wind up, when and why did you realize you wanted to write this annotated Constitution with your co author James Madison? And at what point did it stop feeling like a kind of a traditional book project slash collab and start feeling like different and also like something, you know, maybe more urgent?
- [07:34]
Melissa Murray
So it's a really good question. I also say the first thing the book starts off with is a dedication. And I dedicate it to my parents who were Jamaican immigrants and to my children who are the descendants of those Jamaican immigrants, as well as individuals whose own grandparents were enslaved people. And I thought that was actually important to note because we are just living in A moment when this country feels sort of riven by anti immigrant fervor. There are real questions about whether minorities have a place in this society. And I felt it was really important to make a claim for my parents, for myself, for my kids, that this land is ours too. And so I just. Let me start there. Where did the project come from? Honestly, it was born in these Twitter streets. So as you know, there was a period prior to January 2025 when everyone was in the Twitter streets and I was too. And I was on Twitter and Ellie Mostall, I think, texted me and said, you've got to see what Luke Campbell is posting. And if you don't know, if you're not from Florida and you didn't grow up in the 19. Luke Campbell is the lead rapper for 2 Live Crew Uncle Luke Luther Campbell, and he's pretty storied rapper, but he was in these Twitter streets being wild about what Joe Biden should do and what Joe Biden shouldn't do and what Joe Biden needed to do. And I was reading all of his prescriptions for Joe Biden and it occurred to me that the President couldn't do any of the things that Uncle Luke wanted him to do. And I was like, wow, Uncle Luke knows surprisingly little about executive power. Maybe he's a Republican. And I thought, if someone like Uncle Luke doesn't know, imagine who else doesn't know what the scope of executive power is. And then Simone Sanders Townsend and I did that special for Ms. Now, where we talked to millennials about all of the things they were concerned about with the 2024 election. And when I talked to a lot of those younger people, it occurred to me that they were of the generation post no Child Left behind, where public school curricula were really divested of lots of things, art, music, but most crucially, civics, education. And they, you know, through no fault of their own, had a really thin understanding of how the American government works. And so I thought, maybe there's something to this. Like, you know, maybe we should be engaging with the Constitution. It was written to be read by the people. And more importantly, maybe someone should try and explain why we have the provisions we have, why we have the Constitution we have, and what's the of this whole thing in the first place. But yes, it all started with two life crews, Luke Campbell and his very lengthy list of things Joe Biden should do. I really hope he has read the book because he's running for Congress right now and I at least want him to know what Article 1 says if
- [10:30]
Kate Shaw
your publisher has not sent him a copy, they need to get on that. You really need to get on it for him. I had no idea this story traced back to the crew on Twitter and
- [10:39]
Melissa Murray
the old Twitter, I feel like, doesn't everything really?
- [10:44]
Kate Shaw
I guess maybe many great stories. Okay, so one follow up and then I'll give Leah the mic, which is to take us out of the Joe Biden moment and into the present moment. And near the end of the preface, you write, quote, as we face the prospect of military presence in our cities, questions about the debt ceiling, birthright citizenship, and impositions on freedom of speech and freedom of the press, it is more important than ever to understand the document that has scaffolded our government and indirectly our lives. Melissa Murray, you're such a good writer. So those are all highly salient and alarming ways that the Constitution is being pressure tested right here and right right now. And so will you just talk a little bit about sort of beyond Uncle Luke, who the modern reader referenced in the book's title, really is in your imagination. Like, somebody who already follows this stuff and knows a little bit of constitutional law enough to be dangerous. Someone who is just now realizing they need to set a foundation. Like, talk about your modern reader.
- [11:35]
Melissa Murray
I think the modern reader is meant to be aspirational. It's sort of anybody right now who is looking around going like, can they do that? Is that okay? And I think there are a lot of people right now who are looking around asking, can they do that? And is that okay? And, you know, this book is for you. I did not write this for law professors. I did not write it necessarily for law students. I wanted this to be a book that could be accessible to people without law degrees, people who are in high school just kind of wondering again, like, the absence of civics education, I think is really pernicious. And this is one way maybe to fill that gap. Could also be for people who think they know something about the Constitution. I bet they don't know what they think they know, and I bet their knowledge is probably incomplete in some ways. I know mine was, and it was really a learning experience to do this. I mean, like, there are so many parts of the Constitution that, yes, we engage with as law professors, but so many parts that we don't. And they're all kind of interesting. And there are all of these really amazing stories around the various parts of the Constitution and how they came into being. And so, you know, part of it was just kind of this really fun treasure hunt trying to figure out, like, how do we get this, what does it do and what is it for?
- [12:48]
Leah Littman
Just with respect to the people who are asking, can they do this or can this happen? You know, Making this book available now reminded me of an episode we did earlier this year with Kim Shepley, who talked about protesting authoritarianism and autocracy in Hungary. And people did so just by quoting laws and their Constitution. And so making this information accessible to people is a way of empowering them and also to enable what academics call popular constitutionalism, where people can make claims about the Constitution and in so doing, influence what the Constitution means. Right, like shape its meaning.
- [13:31]
Melissa Murray
No, I think that's exactly right. And, you know, it's not just like reading the text. I mean, you could get one of those free constitutions and read the text. But I think what this does in providing sort of a clause by clause annotation and also history around how some of these various provisions came into being, it reminds us that we're not the first to make claims on the Constitution. Like, this isn't an unprecedented enterprise. Lots of members of the public have made claims on the Constitution before and have shaped constitutional meaning. We talk about, I think the Founding is very overdetermined in constitutional law and theory. The Reconstruction Amendments less over determined. But we rarely talk about the amendments from the Gilded Age. So this is the 16th, 17th, 18th and 19th amendments. And they're literally born in this fervor of populist unrest. People are mad at the turn of the century about the fact that oligarchs are running amok and there's this huge consolidation of wealth and the American government is raising revenue by imposing tariffs, and the working class hates it because it's regressive and they bear the burden of it disproportionately. They want an income tax to make the wealthy pay their fair share. They can't because Article 1 prohibits it. So they start agitating, and there's a Supreme Court decision that makes it impossible to have an income tax, and they start agitating against that. And ultimately they get the 16th Amendment, which changes Article 1 in order to allow for Congress to levy an income tax and to do progressive taxation. And that is borne by the people. The 17th Amendment is the popular election of senators. They get screwed up a little with the 18th amendment and prohibition, but then they come back with the 19th amendment where they literally double the size of the electorate by enfranchising women. And that's all through popular agitation and activism.
- [15:21]
Leah Littman
And just on that 17th amendment in particular, you Know, you mentioned this as a kind of underappreciated space of constitutional change and empowering people. You know, imagine if people knew more about the 17th amendment and the history behind it. Because the 17th amendment said state legislatures aren't going to pick senators, people are. I think that understanding that history and what it was getting at provides yet another angle for gerrymandering.
- [15:46]
Nancy Northup
Why?
- [15:46]
Leah Littman
Yeah, to understand why Calais is so problematic. Right. Because the idea that, okay, state legislatures can't pick senators, but they get to pick, effectively your House delegation by extreme gerrymandering.
- [15:57]
Melissa Murray
Right.
- [15:57]
Leah Littman
Like, you are allowing people to, say, see connections and understand and to create, like, our story as a people. And that's just super important.
- [16:06]
Melissa Murray
It's exactly right. Like I. I said gerrymandering because I view Calais as sort of the confluence of this interest in partisan gerrymandering, this new entitlement to partisan gerrymandering, with the longstanding effort to disenfranchise minority voters. And, you know, there is this period at the turn of the century where people are just like, no, we want to do it. And it actually starts at the state level. Like, they actually get what is effectively popular election of senators in many states before there's this formal amendment. And that's a lesson, too. Like, this happens at the 19th Amendment, where they enfranchise at the state level, women, even before there's national enfranchisement. These things can happen incrementally. Some change is better than none.
- [16:46]
Kate Shaw
Yeah, and this is. That's literally exactly what I was gonna say, that the story, the state level sort of origin story about the 17th and the 19th amendments, I think, just like, is kind of an important reminder right now, big national change often, and maybe more often than not, starts with small local and state level change. And to a point you made on our last episode, Melissa quoting Sherrilyn Ifill, like, this is a very long game we are playing right now, but making small incremental change against state and local change to our electoral system and sort of otherwise. Those are the building blocks of federal change and constitutional change, and that's where we have to be working right now.
- [17:23]
Melissa Murray
Yeah, I think I said something like, you know, our children and grandchildren will rest under the shade of trees they did not plant and drink from wells they did not dig. Like, I have no illusions about whether or not we are going to see this kind of change in our lifetimes, but I'm perfectly happy to be committed to doing the work now, because this book shows, like, there were people who didn't live to see the fruits of their labor, but we are living with the fruits of those labors now. And, you know, that's okay, too.
- [17:52]
Kate Shaw
Yeah.
- [17:53]
Leah Littman
Yeah. Okay. So here's trick scrutiny. As you may know, we've always been up front that we're not coming at the law from a place of neutrality. It was really, you know, one of the founding premises of the podcast. And we think it's important to have honest, irreverent, sometimes bleak, hopefully still engaging and fun conversations about the Supreme Court and the Constitution. And the book seems to be doing something similar, but in a very different format and register. So how did you find it balancing historical narration with your own commentary in an annotated guide like this? And how did that tension shape the way you structured the book?
- [18:31]
Melissa Murray
So I actually. I did another podcast interview about the book, and the person was like, this isn't, like, strict scrutiny in a lot of ways. Like, you know, there are no cuss words here. And I was like, that's true.
- [18:43]
Kate Shaw
True.
- [18:44]
Melissa Murray
That's very fair. I did think I tried to be a little more straight down the middle. Like, you know, here's what one person says, here's what another person says, in part, because while I would love for more modern readers to be of our view, I just actually like more modern readers to recognize that we are really going off the rails in terms of how we think about constitutional culture and just, like, actually get engaged. And so, however you choose to enter this space, like, I'm just happy to be the conduit. But there were some things that I think I couldn't be neutral about. And, you know, one of them was that I was very forthright about the way in which slavery is never explicitly mentioned in the original Constitution. But it is literally all over the page. It's almost like a palimpset. And the compromises they make. I mean, we talk about this in constitutional law to some degree, but I don't even think we even scratch the surface of how durable the compromises over slavery really are and how, like, transformative. I mean, the whole idea that they're, like, making this bargain, like, you get 20 years to keep importing slaves. Are you good with that? Southerners, like, is that going to be enough? And then we're gonna have Congress pass a law in 1808, and we're gonna make it so no one can come and amend the Constitution before 1808 to keep you from enslaving people. We're gonna do that for you. And then we're gonna stop the enslaving Right, Right. And they're like, no, we're just gonna shift from importing the slaves to making them ourselves. And I mean, just like the perniciousness with which this institution survives and the compromises they strike to appease the various enslavers in their myths, and how we kind of live with that in our national DNA without ever talking about it, and how it carries over into the rest of the Constitution in lots of different ways. And we can't shake the residue of that. We should just be honest about it.
- [20:36]
Kate Shaw
Yeah
- [20:39]
Melissa Murray
Strict scrutiny is brought to you by Zbiotics Pre Alcohol. This year I'm focusing on a small shift that makes a huge difference. Effortless presence. I know it sounds counterintuitive, but for me it means planning ahead so I can truly live in the moment, especially when I'm enjoying a few cocktails with friends. My simple trick for staying balanced and in the moment is taking Zebiotics Pre Alcohol before my night out. Zebiotics Pre Alcohol Probiotic Drink is the world's first first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after a night of drinking. Here's how it works. When you drink, alcohol gets converted into a toxic byproduct in your gut. It's the buildup of that product, not dehydration, that's to blame for your rough day after drinking. Pre Alcohol produces an enzyme to break down that byproduct. So if you just remember to take pre alcohol and make it your first drink of the night, drink responsibly. You'll feel your best the next day. Every time I have Pre Alcohol before drinks, I notice a difference the next day. Even after a night out, I can effortlessly get back to my real job doing this podcast, writing, taking care of my kids, all the things without worry. From the first outdoor brunch of the year to the start of wedding season to celebrating your new favorite. Read my book. May's social calendar is officially nonstop, so don't let one long night keep you from enjoying the rest of your weekend. Drink Pre Alcohol to stay on your game and make the most of every sunny Saturday. Remember to head to zbiotics.com strict and use the code STRICT at checkout for 15% off. Strict scrutiny is brought to you by Wild Alaskan Company. I love eating well, and I love when I can take the guesswork out of eating well by buying things that have healthy, easily accessible ingredients that are easy and filling and genuinely enjoyable in a way that makes it easy to stay consistent with your clean eating plans. Wild Alaskan Company offers me the best way to get Wild caught high quality seafood delivered right to my door on my schedule. Each Wild Alaskan box comes with individually portioned filets that are vacuum sealed, easy to prep and great for any meal, no matter how quick or how elevated. All of the fish is quick frozen fresh from Alaskan waters, which helps lock in its freshness, texture, flavor and key nutrients like omega 3s. This is fish you can trust with no GMOs, antibiotics or other additives. And every order supports sustainable harvesting practices and Alaskan fishermen whose history is tied to the region and the practice of fishing. My favorite fish from Wild Alaskan Company is the Pacific Cod, which I like to do with a little soy sauce miso glaze. Trying to kind of do a little high end New York restaurant kind of thing. If you know, you know. And it's absolutely delicious. And I'm saying this as someone who's not the best cook, even I can't mess this up. Wild Alaskan Company is so confident that their fish is the best that they offer a 100% satisfaction and money back guarantee. So you can try your first box risk free. Just head over to wildalaskan.com forward/strix for $35 off your first order. Of premium wild caught seafood. That's wildalaskan.com strict for $35 off your first order. Many thanks to Wild Alaskan Company for sponsoring this episode.
- [24:11]
Kate Shaw
So in terms of that's the original Constitution. And obviously there are, you know, there's both the incredibly important Reconstruction Amendments, which we'll maybe talk about again in a couple of minutes, but just kind of a lot of attention in the book rightly paid to changing the Constitution and both constitutional amendment and constitutional change through other routes. And you sort of talk about kind of the book's working theory of constitutional change as running through, you know, three kind of distinct channels. So you have the court, Congress and then what we've already alluded to just ordinary people working at the grassroots level who can read and interpret the Constitution. And here I'm quoting you as importantly, find it wanting and agitate for change. Change. So I think it's fair to say that most constitutional law books focus on the first two. And really on the first one, it's mostly the courts. There's a bit of Congress and there's not that much about kind of the people working to change the Constitution. So what changes for a reader of the book who has been kind of handed this sort of like equal weight or stature in Terms of being an active participant in constitutional change. And sort of where in the book would you say you most focus this kind of like popular constitutionalist vision?
- [25:17]
Melissa Murray
I think there are lots of different discussions of various amendments and articles where you do see that kind of popular influence and the promise of popular engagement. Certainly those amendments that are passed during the Gilded age, so the 16th through 19th, also some of the. More the later amendments, you know, the 25th Amendment, which deals with the whole question of presidential secession and presidential incapacity, is literally born of the national trauma of the Kennedy assassination. That's a moment that obviously is led by Congress, but it gets buy in because everyone is like, oh my God, what happens if the President is in a coma? Like that could have happened. And I think people are really thinking about all of those possibilities. There's also, I think, the kind of hilarious story behind the 27th Amendment. It was initially proposed as part of the 12 prospective amendments that were going into the Bill of Rights. Two of them ultimately don't get passed. And they sort of linger and, you know, back in the Gilded Age, Ohio becomes a vote for what will be the 27th amendment. But it lingers for a while. And then this intrepid college student has to write a paper and he decides to write about constitutional amendments that never happened. And he writes about this compensation amendment and he gets a C on the paper. The professor is like, do better. And he's like, okay, I can do better. And he starts trying to get this amendment ratified. So he starts calling state legislatures and then circumstances happen. Congress has this big scandal involving check kiting and the House bank. And suddenly there's all of this interest in passing this amendment that limits Congress from giving itself a pay raise. And this kid, Gregory Watson of the University of Texas at Austin winds up getting the last amendment into the Constitution over 200 years after it's first proposed. And happily for him, the University of Texas Austin thought this was a herculean task. And they changed his grade from a C to an A.
- [27:20]
Leah Littman
Students, if this doesn't inspire you, I'm not sure what will. Right. You don't like that grade, Right. You changed the Constitution and Melissa has provided you the building blocks to do so.
- [27:30]
Melissa Murray
I mean, like, if you can change the Constitution, I might rethink your grade.
- [27:35]
Kate Shaw
Sure. Okay.
- [27:37]
Leah Littman
So the book is often aspirational, sometimes even Kate Shaw. Ish, optimistic.
- [27:42]
Melissa Murray
I know. I know what this is like. Wicked. I've changed for the better because of you.
- [27:51]
Leah Littman
Well, on the other hand. On the other hand, Elphaba, I am Alphabet, I will enthusiastically, enthusiastically embrace my Elphaba status. You also don't pull any punches when it comes to its flaws. You know, as you were kind of alluding to previously, you're very clear about the roles that slavery, sexism, elitism and other forces played in shaping the document and its legacy. You know, do you think those influences are still understated in how we talk about the Constitution? And how did you approach incorporating that into the book?
- [28:21]
Melissa Murray
One, we don't talk about the slavery in the original Constitution at all. Like, it's perfect. That's fantastic, James Madison. You're doing great, sweetie. I think we should grapple with the fact that they are making compromises in order to keep people enslaved and full stop that. It's all over the original document. And we should talk about that and talk about where and how and why. And it's beyond just simply representation in the House of Representatives. We should also talk about their deep seated fear of people like non wealthy, non slave owning, non property holding men. Like they're deeply concerned. I mean, the Constitution as originally written is a document that is a lot about minority rule, like the electoral college, the way the Senate is initially elected. All of that is about a fear of the people. And we are constantly, I think, working toward dismantling the kind of elitism and racism that undergird the document. And that's the point of Congress and getting the authority from the Reconstruction Amendments to pass legislation like the Voting Rights Act. I mean, it's why I think so many people are alarmed by the decision decision in Louisiana versus Calais, because we specifically authorized Congress to be able to do certain things to like work within the confines of the Constitution to create a more perfect union. And now we have, you know, six people on the Supreme Court rolling that back in a way that's inconsistent with the idea of democratic rule and taking cues not just from the President but also from Congress.
- [29:53]
Kate Shaw
So next question. We started off by talking about kind of popular invocation of the Constitution. And I think those kinds of invocations are largely kind of about the rights provisions in the Constitution. Right. Like my fourth Amendment rights, my First Amendment rights. So I think that those are the parts of the Constitution or at least the principles in the Constitution that people are the most familiar with or sort of reach for the most easily. But I think that we are these days, Americans sort of seem to be getting a weekly refresher on the more structural provisions of the Constitution. Right. Like you mentioned Uncle Luke and Article 1. Right. That the Congress creating Article of The Constitution Article 1, 2, 3, you know, kind of as we are all faced with the latest developments from the executive branch, the, you know, relative inaction in Congress, and obviously the Supreme Court. So I guess how should a better understanding of those articles of the Constitution change the way we think and talk about the separation of powers? And sort of how do you hope it changes the way kind of public discourse and public understanding sort of looks in terms of what is happening right now?
- [30:57]
Melissa Murray
I think one major point of the book is that the question of structure is not divorced from the issue of rights and certainly not among those who framed the Constitution. Like, you know, they created this original document without many explicit protections for individual rights. And they did so because they really did believe that if you divided governmental power, you would be protecting rights. Like they believed that the states would protect the rights of citizens. They believe that if you did not allow power to be consolidated in any particular branch, you would be protecting the rights of the people. And, you know, they had good reasons to settle on that kind of structural fix. Because, you know, one thing I say about this is the Constitution is kind of a trauma, informed document. Like they are working through shit. You know, they had the whole colonial period where they have the British Parliament passing these laws that make their lives unbearable, intolerable. They have the mad king who's doing all of this stuff. So, you know, they really fear the prospect of a too powerful federal government. So when they sit down, but they also recognize that you have to have a relatively powerful federal government because they have the trauma of trying to fight this revolutionary war with this Articles of Confederation that's basically like a friendship bracelet between 13 states. And so they want something that will bind them together, that will enable them to have a government that works, but they don't want anything that will allow power to be consolidated in a way that can be used, used against the people. So they see structure and rights going hand in hand. Maybe not as perfectly as some people would have liked them to, but they get that. And you know, they're journaling through it in this Constitution. And I think that is something we should understand in real time. Separation of powers, questions like whether the president has the power to do X or Y. It's not just about the President's relationship to a coordinate branch of government. It's about the broader relationship around the idea of limited government as a means of preserving the rights of the people.
- [32:55]
Leah Littman
So have writing the book changed how you think about teaching con law or how you think con law should be taught?
- [33:01]
Melissa Murray
Not just writing the book I mean, you know, I think the work that Kate and I did earlier this year in that Supreme Court review piece on Scarmetti really focused me in thinking, you know, maybe I should do more with executive constitutionalism. In my con law class, I taught a pretty traditional con law class is which. Which focused a lot on the court. I think that's a mistake right now. And I'm happy to admit that my course will be updated to reflect the changes in our landscape. And I will be talking more about how the administration is advancing a particular vision of sex equality using these executive orders. I think the work that the three of us did in what we are calling the juridical presidency, which is forthcoming in Northwestern, Maybe it'll happen a new title. But this whole idea of. Of presidential settlements being a workaround and being a separate kind of separation of powers problem is something that I'll talk about in Structure. So, you know, just the work that we've done together I think, has really illuminated for me how I might change the course. But, you know, one of the things I always do in my course is the first assignment is to read the Constitution. And, you know, I don't ever assign my own work. I don't think I'll ask students to buy or read this book, although I'm sure my publisher is like, what? Definitely buy this book. But I do think I might just assign the preface just as a reminder to them that it's not academic. Like, what we're doing. Like, it is academic. Obviously, you're in law school, but this is a bigger enterprise than just getting to the end of the semester.
- [34:28]
Kate Shaw
It definitely is. Okay. One more question on the book, which is you could obviously have written an entire book and people have about any one article or one amendment. And I'm curious, you know, you had to make choices about what to include and what to cut. Were there any particular annotations or, you know, stories or characters or anything else that you ended up kind of like, leaving on the cutting room floor or just, like, ideas or debates that you wish you had had more time or space to explore?
- [34:53]
Melissa Murray
So the 19th Amendment. I wanted to talk more about some of the women who are involved there. Not just, you know, the Crystal Eastmans and Inez Mulhollands and Elizabeth Cady Stanton and all of those people, but, you know, people like Mary Church Terrell, like, some of the black women who were involved in the Black Women's Club movement that did a lot of this work around the 19th amendment and weren't really included by the traditional suffragist crowd. I think we had to take out some of that. There was a lot of effort, I think, to deal with some of the more technical parts of the Constitution and make it more digestible and reader friendly. I mean, like, some of it is just like the decapitation parts of article one. I'm just like. Like, I spent a lot of time just trying to make that user friendly. But there are a lot. There are just a lot of really good stories. I mean, I think we forget. Like, they're just really amazing and inspiring stories. Like, I love the story about how the 19th Amendment finally gets passed because this Tennessee legislator, he was prepared to vote against the amendment and then his mother writes him and is like, I think the fuck not. You will vote for this. And he does it because he's a good boy. We need more good boys.
- [36:04]
Kate Shaw
And it's that that scene is dramatized in the stuffs, the musical stuffs very, very well.
- [36:09]
Melissa Murray
Be a good boy.
- [36:10]
Leah Littman
Okay, so quick lightning round. We are going to put you on the spot with four questions. Maybe we will chime in as well. First, what's one constitutional provision you jettison?
- [36:22]
Kate Shaw
Electoral college. Oh, I was gonna say the same.
- [36:25]
Nancy Northup
Okay.
- [36:25]
Melissa Murray
Yeah.
- [36:26]
Leah Littman
If I can't do that one, I
- [36:26]
Kate Shaw
would just send a second Amendment.
- [36:29]
Leah Littman
Okay. Yeah.
- [36:29]
Kate Shaw
Okay.
- [36:29]
Leah Littman
Okay.
- [36:30]
Kate Shaw
Okay.
- [36:30]
Melissa Murray
All right, we got three.
- [36:31]
Kate Shaw
That's a good new Constitution. I like it better already.
- [36:33]
Melissa Murray
All right.
- [36:34]
Leah Littman
Oh, second, what's one you'd add if a contemporary populist movement were to take shape?
- [36:40]
Melissa Murray
That's a good one. Maybe a right to education.
- [36:43]
Kate Shaw
I always think, just making it easier to amend, like as a.
- [36:46]
Melissa Murray
That's true too.
- [36:46]
Leah Littman
Yeah.
- [36:47]
Kate Shaw
It's sort of the kind of cheating. Like if you had a genie and you wish for like a thousand wishes, like, you know what I mean? Like, maybe that's a cop out, but it just does feel like an elemental problem is that Article 5 makes it so hard to amend the damn thing. So it's hard to choose one thing. But one thing you could choose that would facilitate a lot of other things would be making it easier to amend.
- [37:02]
Melissa Murray
Well, you know, an amendment that address partisan gerrymandering or any kind of gerrymandering would help get around.
- [37:07]
Leah Littman
I was going to say, like personal representation.
- [37:09]
Kate Shaw
You could do portional representation or an amendment that. That told states they had to set up independent redistricting commission.
- [37:14]
Leah Littman
Exactly.
- [37:15]
Kate Shaw
You could do that. That's. I think those are all D.C. statehood. Like just. I mean, you don't need to do it in the Constitution. You can do it by legislation. But if you. But you make D.C. in the Constitution, why not make it a state in there, too? Or give it, you know, actual meaningful representation in Congress.
- [37:28]
Melissa Murray
The amendments dealing with DC Are so fascinating because it's so clear how much it's about race. It's just. And Puerto Rico doesn't make it in because there's no amendment dealing with Puerto Rico. But you could imagine it's likely the same reason.
- [37:43]
Kate Shaw
Totally.
- [37:44]
Leah Littman
Okay, what is a provision you leave exactly as written and just tell people to actually read it or interpret it differently?
- [37:53]
Melissa Murray
The privileges or immunities clause of the 14th Amendment, which could be doing so much more work. And no, Justice Thomas, I'm not looking at you as a means of incorporation. Like it could have done more. It could go further. Justice Thomas, if, you know. If you know, you know, I'll just
- [38:09]
Kate Shaw
say it's the week after Calais. It just feels like 15th is right there, and we're not actually interpreting or enforcing it properly.
- [38:15]
Leah Littman
So I would say Section 5 or Section 2, the enforcement clauses of the Reconstruction Amendments. Yeah, yeah.
- [38:20]
Melissa Murray
Okay. Yeah, those are. Those are. You know, you had that Section 2 of the 19th Amendment. Leah, I think we don't do enough about. And you and Rick Hassan wrote a terrific piece in the Georgetown Law Journal about this, which I cited here.
- [38:34]
Leah Littman
Enforcement clauses for the win.
- [38:36]
Kate Shaw
All right, wait. Last question. Better co author slash collaborator. Andrew Weissman or James Madison.
- [38:42]
Melissa Murray
What if I. Okay, this is no shade to Andrew. I love Andrew. I don't know James Madison. So obviously I would say Andrew Weissman. But if I had to pick, the best, best co authors and collaborators would be you guys. No. Hands down.
- [38:56]
Kate Shaw
Oh.
- [38:58]
Melissa Murray
So, yeah, Andrew was great. James Madison. Well, you know, we worked fairly well mid. I don't know.
- [39:07]
Nancy Northup
I don't know him.
- [39:09]
Melissa Murray
I did go to his house.
- [39:10]
Leah Littman
Okay, Mariah.
- [39:10]
Melissa Murray
I did go to. I did go to his house once. Had me over. Took the tour.
- [39:16]
Kate Shaw
Was great.
- [39:19]
Leah Littman
Well, this is a probably perfect place to end.
- [39:24]
Melissa Murray
Well, okay, we gotta end on a much happier note.
- [39:27]
Leah Littman
I was gonna make it happy.
- [39:29]
Melissa Murray
Okay.
- [39:29]
Leah Littman
I was gonna say some happy things, but Kate gets to follow because she's even happier. So wanted to thank our intern, Jordan Thomas, for helping us with this episode. And also just to thank you, Melissa, you know, you said Kate and I were your favorite collaborators. Like, I cannot believe we have been doing this podcast for seven years. I count myself as lucky every single day to get to work with you and just getting to cheer you on and see all that you are doing is incredible.
- [39:58]
Melissa Murray
I know this is saying to each other at 1 1st Street. I know. Jess is so nervous. Like, Sam, you are my.
- [40:04]
Leah Littman
You're doing amazing.
- [40:08]
Kate Shaw
I love that. Yes. I will, at the risk of being saccharine, say yes, the same.
- [40:12]
Crooked Media Host
Wow.
- [40:12]
Kate Shaw
We're coming up on seven years in June. We're gonna have a seven year anniversary. We have to throw a party, ladies.
- [40:16]
Melissa Murray
We have to throw a party.
- [40:17]
Kate Shaw
But I will say no. It is also fun. We are also there.
- [40:20]
Melissa Murray
Be square.
- [40:21]
Kate Shaw
Yes. Oh, that's true. We kind of are. We just need like a good after party. But it is, I mean, it's a total privilege to get to collaborate extremely closely with both of you. And then it is also kind of fun to sort of step back and then see, like, if you're doing a solo project like this. Melissa, it's like incredibly impressive. Really important contribution. Loved reading it. Love getting to talk to you about it and have both ordered multiple copies and will tell everyone. And I love pitching it for a non. We spend a lot of time with lawyers and law students and they could use this book too. But like, that is really not who you are targeting. Many, many, many more people are not in those two categories and need to know and understand more about the Constitution and they should all buy and read this book.
- [40:58]
Melissa Murray
I. I agree with that wholeheartedly. I think definitely buy and read this book. The U.S. constitution. If you're looking for a great gift bundle for anyone graduating from high school, I would say the U.S. constitution plus lawless. This, like, that's a two.
- [41:13]
Leah Littman
Hey, first edition coming out in June.
- [41:16]
Melissa Murray
Neutral take and then some snark like, yeah, why not? Let's do it.
- [41:21]
Leah Littman
And then we either it. Then we light it up.
- [41:22]
Reporter/Interviewer
Right?
- [41:23]
Leah Littman
You get the neutral take.
- [41:24]
Melissa Murray
Right.
- [41:24]
Leah Littman
You get to see the Constitution. Then you get to read about what the Supreme Court has done to it.
- [41:27]
Melissa Murray
It's a diss track, right?
- [41:29]
Kate Shaw
Roll it up and smoke it. Yeah, exactly, exactly.
- [41:32]
Melissa Murray
First you pour salt on it, lick it,
- [41:37]
Kate Shaw
which is the shot, which is the chaser.
- [41:39]
Leah Littman
Back to the beginning.
- [41:42]
Kate Shaw
We landed this plane, ladies. Well, so thanks for joining us on your own podcast.
- [41:46]
Melissa Murray
Thank you for having me on my own podcast. It's great. It's great.
- [41:51]
Leah Littman
Anytime, girl. Anytime.
- [41:54]
Melissa Murray
Please come people with their own publicity outlets. Great authors, really great.
- [41:59]
Kate Shaw
I mean, we really do work very hard on this podcast. So I think it's a okay to use the platform to flog the books that we also pour our blood, sweat and tears into.
- [42:10]
Melissa Murray
But people don't get that. Like, we spent a lot of time doing that.
- [42:13]
Kate Shaw
This. Yes.
- [42:14]
Melissa Murray
A lot of times.
- [42:14]
Kate Shaw
And again, it's cathartic it's gratifying. We think we put something valuable out into the world, but it's a lot of work and so damned if we're not going to also use it to tell you all about the books.
- [42:24]
Leah Littman
Exactly.
- [42:25]
Kate Shaw
There we go.
- [42:26]
Leah Littman
The US Constitution A Comprehensive and Annotated Guide for the Modern Reader
- [42:33]
Melissa Murray
Strict Scrutiny is brought to you by bookshop.org would you be surprised to learn that we are living in the resurgence, a renaissance, some might say, of independent bookstores? More than 1,000 new bookstores have opened in the last five years. And I love this because independent bookstores do more than just sell books they take care of and pour back into their communities. They create safe spaces that foster culture, curiosity and a love of reading. And when you purchase from bookshop.org, you're supporting more than 3,000 local independent bookstores so they can continue their essential work in their community. And if you go to bookshop.org right now, you can get one of my favorite reads, the U.S. constitution a comprehensive and Annotated Guide for the Modern Reader by yours truly, Melissa Murray. This is such a fabulous gift for Mother's Day, Father's Day graduation gifts everyone in your life who wants to support democracy and be more up to speed on the Constitution than even those on our highest court. And you can do it by shopping@bookshop.org, supporting democracy and supporting independent bookstores all at the same time. What's not to love? Head over to bookshop.org and use our code strict26 to get 10% off your next order@bookshop.org that's 10% off at bookshop.org with code strict26. Strict scrutiny is brought to you by Fast Growing Trees. Did you know that Fast Growing Trees is America's largest and most trusted online nursery with thousands of trees and plants and over 2 million happy customers? They have all the plants your yard or home needs, including fruit trees, privacy trees, flowering trees, shrubs and houseplants. All of these plants are grown with care and they're guaranteed to arrive healthy because that's the Fast Growing Trees guarantee. Whatever you're looking for, Fast Growing Trees helps you find options that actually work for your climate, space and lifestyle. Just click, order, grow and get healthy, thriving plants delivered directly to your door. Their Alive and Thrive guarantee promises that your plants arrive happy and healthy. Plus you get ongoing support from trained plant experts who can help you plan your landscape, choose the right plants, and learn how to care for them every step of the way. Spring is here and that means it's planting season.
- [44:51]
Leah Littman
So what am I doing?
- [44:52]
Melissa Murray
I'm trying to get my fiddle fig situation in good order. I want more fiddle figs in my life and so I'm going to Fast Growing Trees so I can get more for not just my office, but my hallway, my living room, all the places where I want to liven things up with some nice greenery. It's so reassuring to order plants knowing that they're guaranteed to arrive exactly as I would like them and that I'm later going to be supported by experts who are available seven days a week via email, chat or phone to help me keep these plants alive and thriving. Right now, Fast Growing Trees has great deals on spring planting essentials, up to half off on select select plants and strict scrutiny. Listeners get 20% off their first purchase when using the Code Strict at checkout. That's an additional 20% off better plans and better growing at fastgrowingtrees.com using the code STRICT at checkout. Fast growingtrees.com code STRICT Now's the perfect time to get to planting. Let's grow something together. Use Strict to save today Offers valid for a limited time. Terms and conditions may apply.
- [46:05]
Leah Littman
That was a fun conversation about an awesome book Unconstitutional Rights and Now onto Voting Wrongs On Friday, the Virginia supreme court, in a 4, 3 decision, ruled that the legislative maps that Virginia voters approved in the recent election cannot go into effect for the upcoming midterms. Virginia voters had approved a set of maps that would counteract Republican gerrymanders in Texas, Tennessee, Louisiana and elsewhere. The decision rests on something of a debatable and I'd say dubious technicality. Virginia voters had previously banned partisan gerrymandering in their state constitution. So to make the new set of legislative maps and carry out the partisan gerrymander that the voters wanted, they had to amend their state constitution.
- [46:48]
Kate Shaw
Now, the Virginia Constitution has a complex process for amendment. Amendments have to first be proposed by the legislature, then there has to be a general election, and then the amendment can be submitted to the voters to be approved. That process requires there to be an intervening general election. So in between the legislature's proposal of an amendment and the voters approving the amendment, in this case, Virginia said it complied with that requirement for amending the Constitution because the legislature proposed the amendment four days before Election Day.
- [47:18]
Melissa Murray
However, in a 4, 2, 3 decision, the Virginia Supreme Court said that that that process didn't count because by the time the legislature proposed the amendment, voting had already started in the Commonwealth. Therefore, the amendment didn't go through the constitutionally required process According to the court, there wasn't an entire election between the proposal and the adoption of the proposal, and therefore the amendment couldn't go into effect. This wipes away the four possible additional seats in Congress that the new map might have given Democrats and again would have given Democrats a shot of winning back the House. In case you're wondering, a majority of the justices on the Virginia Supreme Court were effectively chosen by the Republican party. Justices in Virginia are selected by the state legislature. And a majority of justices on the Virginia Supreme Court were selected when the state legislature was controlled by the Republican Party and Republicans controlled at least one of those legislatures because of their extreme partisan gerrymander. So do you see how it all works together? It's like think about that meme of the guy smoking cigarettes furiously while pointing at a board filled with like strings tied together. That's the conspiracy theory. Here it is in action.
- [48:31]
Leah Littman
Well, I mean, reading this opinion, I felt like the picture of Ben Affleck smoking the cigarette outside the Dunkin Donuts because it's super rich reading the justices in the majority complaining about partisan gerrymandering when they're decision effectively locks in Republican partisan gerrymandering. The decision is obviously hugely disappointing and it's a voting wrong because it nullifies an election after the fact. And that's a pretty scary development. If you Remember, in the 2020 presidential election and the litigation after that election, the Stop the Steal movement and the efforts to undo the election via litigation in courts were met with firm opposition precisely because courts aren't supposed to invalidate elections after the fact. And no court in the 2020 presidential election was willing to actually throw out votes that had been cast. And this Virginia decision is a scary step in that direction. I know it's not a decision about a candidate, and yes, it's about the process for submitting an amendment, but still the Virginia Supreme Court refused to rule on this issue before the vote. I understand the legislature was arguing that they couldn't, but the court still had the option to. Then there's the fact that other Republican controlled states are being allowed to do exactly what the Virginia legislature and Virginia people attempted to do. Change election rules after an election got started in Louisiana. Louisiana is attempting to suspend the election in which more than 40,000 Louisianans already voted. And I will wait for a court, ideally, let's say the United States Supreme Court, to tell them that they can't do that.
- [50:02]
Kate Shaw
Oh wait, they're waiting a while.
- [50:04]
Leah Littman
Oh wait, the Supreme Court just encouraged Louisiana to do it?
- [50:07]
Kate Shaw
Yeah, this after the Fact point is so important. So remember we talked a lot on this podcast about, about unsuccessful North Carolina Supreme Court candidate Jefferson Griffith, who tried and came kind of close to succeeding to throw out the results of an election that he had lost. Asking courts to change the rules surrounding voting months after the election had, you know, not broken in his favor. He was not successful there. But this does feel like a kind of seal breaking moment in the invalidation of an election. Like you said, Leah, not a candidate election, but still a really important one that has been invalidated on the narrowest of margins after the fact. And as you said, it's especially rich in sort of contrast to other states that in the wake of Calais, are scrambling to change their legislative districts after voting has already begun. And you know, that's not the only double standard that is being applied in the gerrymandering wars. The Virginia Supreme Court, remember, said this provision was procedurally invalid and it ran afoul of the state's ban on partisan gerrymandering. So ladies, guess what other state also has a state constitution that bans. Let me guess, partisan gerrymander.
- [51:10]
Melissa Murray
Let me guess, is it say with that the Sunshine State? Is it my state?
- [51:14]
Kate Shaw
If it's Florida? If it's Florida, Melissa is ding, ding, ding. She has its number. Yes. The Republican controlled and Republican stacked Florida Supreme Court has already chosen not to enforce that state span on partisan gerrymandering against Florida's gerrymandering. You know, different kind of gerrymander, Republican favoring rather than Democratic favoring. So clearly that's the principled basis on which to distinguish Virginia from Florida.
- [51:38]
Melissa Murray
I'll just say I've had Florida's number since 1983.
- [51:42]
Kate Shaw
Indeed, the year you were born.
- [51:44]
Melissa Murray
The year I was.
- [51:45]
Nancy Northup
Yeah.
- [51:46]
Melissa Murray
Correct. All right. The Virginia Supreme Court decision leaves the Democratic Party with basically no options to try and counteract the ongoing Republican gerrymandering that has occurred in the way wake of Calais. Certainly not in time to impact the upcoming 2026 midterms. Although there is more that they might do to impact the 2028 elections and thereafter. Republicans seem to be targeting around two to four congressional seats in Alabama and Louisiana and perhaps additional seats in Mississippi and South Carolina as well. Which is all to say that this entire landscape seen seems entirely anti Democratic and extremely, extremely effed up. And let's just put blame where blame is due. This kind of anti Democratic asymmetry is only possible because of the United States Supreme Court. So let's go to the Calais catastrophe. The ongoing impact of Louisiana versus Calais. Let's get started.
- [52:50]
Kate Shaw
Right. So last episode, we floated the idea of a recurring segment about Louisiana vs Calais and its fallout, just to keep kind of everyone up to speed on how momentously awful this decision was and is. Calais took out what remained of the Voting Rights act, allowing white Republicans to gerrymander and lock themselves into power by locking out of power voters of color and voters of different parties.
- [53:11]
Melissa Murray
Last week, the court decided that its decision in Calais was. Was so awesome. More on how awesome it is in a moment. But so awesome that the decision had to go into effect immediately. Can't wait. Typically, after the court issues an opinion by its rules, it usually waits 32 days to issue what is called the judgment or the mandate. And what exactly is the judgment or the mandate? Well, you can think about it as the court making its decision official. Like, for real. For real. So something that has the force of law and that lower courts have to abide by. So certifying the judgment returns the case to the lower federal court and issues a directive to the parties to take action in the case.
- [53:55]
Leah Littman
So here, the court had already released its opinion, saying that Louisiana need not and could not create a second black opportunity district as a way of complying with the Voting Rights Act. But issuing the judgment in the case, effectively 10, tells Louisiana, you would be in violation of this if you had a second black opportunity district. So do something to change that. Releasing the judgment in Calais is a way of accelerating Louisiana's already hurried efforts to draw new districts that erase political opportunities for black voters. It effectively eliminates the lower court injunctions that had required them to do so.
- [54:28]
Kate Shaw
And that's exactly what the court did. Rather than wait the usual 32 days to certify the judgment and issue directives to lower federal courts and to the parties, the court certified the judgment in Calais in a matter of days. So less than one week after the case was decided.
- [54:41]
Melissa Murray
But why? Why so speedy, fellas? What's going on here? Is there, like, I don't know, an election looming or something? Could it be that in some places, including Louisiana, there is an election that is already underway, so if you really want to stick it to black voters, you better get to. To step in to immediately ensure that the election is conducted under a set of maps where black voters are basically locked out of political opportunity? Could that be what it is?
- [55:11]
Leah Littman
No, I'm sure it's neutral principles. Passive virtues. Exactly. But Justice Jackson was not going to let this go, as she shouldn't, and we shouldn't, and you all shouldn't. So she dissented from the court releasing or certifying the judgment and noted that the court has granted an application to issue a judgment over a losing party's objection twice in the last 25 years and that doing so here gives the appearance of partiality. As she writes, quote, the court's decision to buck our usual practice is tantamount to an approval of Louisiana's rush to pause the ongoing election in order to pass a new map. The court unshackles itself from both constraints today and dives into the fray. And just like that, those principles give way to power. End quote. So Sam Alito, the whining little bitch from New Jersey, could not handle someone at King accurately describing what he had done. Saying the truth out loud is, as ever, the meanest thing you can possibly do to Sam Alito.
- [56:04]
Melissa Murray
And here's what Justice Alito had to say in response to this stinging rebuke from Justice Jackson. First of all, he called it baseless and insulting. And I imagine Justice Jackson sat at her desk and thought, yes, exactly. That's what I was trying to do. I'm glad you picked up on it. But here's what he really had to say. Quote, quote, the dissent would require that the 2026 congressional elections in Louisiana be held under a map that has been held to be unconstitutional. This is me staring in Allen vs. Milligan, where the Supreme Court allowed the 2022 midterm elections, the elections where Democrats lost the House, to be conducted under a map that the court would later invalidate. I will also note that requiring states to hold elections under gaps that courts had found unconstitutional is exactly what the Supreme Court required when it stayed lower court decisions out of Wisconsin during COVID and also out of Texas way back in the olden days of checks notes December 2025. In those cases, lower courts found that the state's election rules were likely unconstitutional. And in each case, the Supreme Court said the court's decision had come too close, close to the election to do anything about the possible illegality. But I guess now we're going to fix all of that. We're going to get on it, and we're going to move quickly, nimbly, agilely to make these elections happen under really good maps.
- [57:33]
Leah Littman
So just to cap it all off, Alito also tone police. Justice Jackson closing out his statement by saying, quote, the dissent's rhetoric lacks restraint. His statement was joined by justices Thomas and Gorse. So in addition to the developments in Louisiana, other states are also hot to trot on erasing black electoral power. The Tennessee legislature as expected and as encouraged by Marsha Blackburn and Sam Alito adopted a map that breaks up the only minority opportunity district in that state by breaking up the city of Memphis into multiple districts.
- [58:05]
Kate Shaw
And Memphis, as friend of the show Ari Berman has pointed out in the past week, has been a single legislative district since 1923. So for over a century the city of Memphis has been a single legislative district. As makes perfect sense, this new map erases that. It also effectively prevents Memphis from sending the incomparable Justin Pearson to Congress, which I am quite sure was not an accident in the mind of these state legislators.
- [58:32]
Melissa Murray
Justin Pearson was one of the state legislators who was kicked out one of the three state legislators who was kicked out of the town Tennessee chamber in response to his protest over gun rights. So I guess he's too much of a rabble rouser to go to Congress in any event. Also making moves is Alabama. Alabama has requested to lift the injunction from Merrill vs. Milligan. Again, Merrill vs. Milligan was the case in which the Supreme Court said that the Voting Rights act required Alabama decrees two minority opportunity districts. Merrill vs. Milligan is also known as Allen vs. Milligan is also the case that's pretty much identical to Louisiana vs. Kelly that the court decided in 20 no, totally different.
- [59:17]
Kate Shaw
Melissa, John Roberts tells us that, as
- [59:19]
Melissa Murray
he tells us, because yes, John Roberts was for Merrill versus Milligan and he's against it in Louisiana versus Kelly, but they're effectively the same cases. It's just that it happens that Merrill vs. Milligan had to be decided in 2023, a year after Dobbs and 10 years after Shelby county. And that seemed just maybe a little too on the nose even for this court. In any event, in Merrill vs. Milligan, Alabama tried to create only a single minority opportunity district, and now its request to lift that injunction is kind of awkward given that in Calais, Justice Alito said that the Milligan case was totally different. Right. Again, all these guys just keep telling on themselves. It's not totally different. It's the same thing. This is awkward as hell. Super anti Democratic and super anti black voter.
- [60:07]
Leah Littman
Yeah, we're fascism maxing now. And if you're wondering, could anyone have guessed that Alabama would be foaming at the mouth to erase minority opportunity districts? We give you this exchange from the oral argument in Merrill vs. Milligan between Justice Kagan and the Solicitor General of Alabama.
- [60:26]
Reporter/Interviewer
General, some of your arguments, I think not all of them, but some of your arguments would strongly indicate that Alabama could enact a plan with no majority minority districts. Do you think Alabama could do that
- [60:44]
Kate Shaw
under the current guidelines, I don't think we would be able to because core retention is.
- [60:48]
Reporter/Interviewer
But what do you mean under the current guidelines? I'm interested in whether you think as a matter of federal law, as a matter of the vote of Voting Rights act, you are prohibited from enacting a plan that has zero majority minority districts.
- [61:05]
Kate Shaw
I think it would depend on the guidelines that are being proposed there and the motivation.
- [61:10]
Reporter/Interviewer
So you think that there are circumstances. I mean, this is important to me because some of your arguments sweep extremely widely, maybe most of them, that there are circumstances and which a population that is 27% of the state's population could essentially be foreclosed from electing a candidate of their choice anywhere.
- [61:36]
Kate Shaw
Your Honor, there's always going to be that intensely local appraisal to see what was going on there.
- [61:42]
Reporter/Interviewer
So it all depends on, you know, just it all depends.
- [61:46]
Kate Shaw
You will note that in that exchange, Alabama refused to rule out the possibility of drawing zero political opportunity districts in a state where 1/3 of the population is black and more than 1/3 of the state votes Democratic. Indeed, the Alabama governor posted a proposed map with zero opportunity districts in addition
- [62:04]
Leah Littman
to all of the boy law of Calais, the Guardian found there was even more boy math in the decision than we thought. So last episode, Kate noted that Alito had said, hey, there's no racial turnout gap in Louisiana anymore. Look at the numbers for these elections, which just so happened to be elections when Barack Obama was at the top of the ticket and Voting Rights act pre clearance was still in effect. Well, in addition to those boy maths, the Guardian found that Alito measured the turnout gap on the basis of what it called an unusual methodology, one that measured voter turnout with reference to the total population. When the widely accepted approach is to consider voter turnout as a proportion of citizen voting age population or voter eligible population, which would exclude non citizens and people who can't vote. Only time Sam Alito wants to count citizens. Because the problem is, had Alito used the acceptable or accepted method, then black voter turnout wouldn't have exceeded white voter turnout in the 2016 presidential election, whereas it did under Alito's boy methodology.
- [63:06]
Melissa Murray
But under his methodology, wasn't he basically counting fetuses? Be honest.
- [63:11]
Leah Littman
You know, why not? Why not?
- [63:14]
Melissa Murray
Anyway, two other notes on Kelly Democracy docket reported that the local lead plaintiff in Calais, one Bert Kelly, was at the Stop the Steal rally at the US Capitol on January 6, 2021, because that's where all the freedom fighters who want safe and fair elections were in
- [63:34]
Kate Shaw
retrospect Wasn't that the shocking revelation? Like, just.
- [63:37]
Melissa Murray
I mean, it's almost like all of this was an attack on the vra, the Stop the Steal movement. All of this is a war on democracy. Who said that? That? I think we said it many, many moons ago. Anyway.
- [63:50]
Kate Shaw
But did they listen?
- [63:51]
Leah Littman
I recall something similar. So other note about Calais, friend of the pod. Sherrilyn Ifill made an appearance on the Daily show where she spoke with Jon Stewart about the Supreme Court nuking the Voting Rights act in Louisiana versus Calais. And during that conversation, John came up with a way of describing Sam Alito's take on racism and racial discrimination. That needs to happen. Like, everyone needs to make this happen. So here it is.
- [64:16]
Melissa Murray
Is the idea now that to try and address that is in itself racist, that it's literally he who smelt it, dealt it racism? Is that. Is that what we're dealing with?
- [64:29]
Kate Shaw
I hate that that's what it is.
- [64:31]
Melissa Murray
But. But that is what it is.
- [64:34]
Leah Littman
Yes, it is. The whoever smelt it, dealt it theory of racism.
- [64:38]
Melissa Murray
I like it.
- [64:39]
Leah Littman
Yes. It's great.
- [64:40]
Melissa Murray
The fart theory of racism.
- [64:43]
Leah Littman
Yeah.
- [64:44]
Kate Shaw
Link it to Sam Alito forever.
- [64:46]
Leah Littman
Yeah. The supremacist court, Right.
- [64:47]
Melissa Murray
Brett Kavanaugh's like, what's me?
- [64:49]
Leah Littman
What's me? Right, exactly, exactly. Brett Kavanaugh's like, I know how to play this game.
- [64:54]
Kate Shaw
He sure does.
- [64:56]
Melissa Murray
We can call these Alito districts now, right?
- [65:00]
Kate Shaw
Yeah. That's good. That's good. All right. So the same week that the court decided to make an exception to the usual rule we were talking about earlier about when a judgment issues in a case where the exception just so happened to facilitate Republican redistricting, racial minorities and Democrats totally out of power. The Chief justice gave a speech at a judicial conference where he said, quote,
- [65:23]
Melissa Murray
I think they view us as truly political actors, which I don't think is an accurate understanding of what we do. He also had this to say, quote, we're not simply part of the political process, and there's a reason for that, and I'm not sure people really grasp that.
- [65:42]
Leah Littman
So they view us as political actors. Says the guy who repeatedly behaves like a political actor and not simply part of the political process as the guy who's literally remaking the political process. Also, sir, have the courage to make these remarks on camera so that we can do a YouTube rapid reaction video to your remarks.
- [66:00]
Melissa Murray
We can still do it. I'm happy.
- [66:02]
Kate Shaw
I'm happy to do it.
- [66:03]
Leah Littman
Not even more. Okay. We should make like a little, you know, blow up face of John Roberts. That you can hold in front of yourself while you recite it to simulate it as best we can.
- [66:13]
Melissa Murray
I also have to say, it takes real cheek to say something like this, maybe two weeks after Jodi Kanter and Adam Liptow put your ass on blast, where you literally were being a political actor, taking statements that weren't even in the court record because there was no record in the Clean Power plan. But you're watching Fox News, and you're really pissed about what EPA administrators are saying. They will not play in your face, sir. And so you.
- [66:43]
Leah Littman
Then nobody bites John Roberts in the corner.
- [66:45]
Melissa Murray
Nobody puts, John Roberts, I'm the captain now. I'm the Chief justice now. And then you literally depart from decades of precedent governing the shadow docket. And then you want to say that you're not a political actor or you don't understand why the public thinks you're a political actor. Be so for real.
- [67:06]
Leah Littman
John Roberts is not for real.
- [67:07]
Melissa Murray
No.
- [67:08]
Kate Shaw
Can I just come back to something we said earlier in the episode? We were quoting Justice Jackson's dissent from the mandate issuance order principles give way to power. Like, I just think that actually is as good a summation of, like, what we are seeing on display. And they don't like being called out on that. And this is the temper tantrum that we see when they are.
- [67:25]
Melissa Murray
The chief also had this to say, quote, one of the things we have to do is issue decisions that are unpopular. I don't know that I would call it unpopular to completely eviscerate a statute that had broad bipartisan support and had been reauthorized multiple times by a Democratically elected Congress. Like, maybe our understanding of popular and the vox populi are just completely different, but I would not call that just unpopular.
- [67:58]
Leah Littman
Also, I'm sure it was so hard for you, John, to nullify the Voting Rights Act. It's not like you haven't wanted to do that for, like, four years. Decades.
- [68:05]
Melissa Murray
I mean, I was working on it for so long when I was in the White House, but then I stopped. I mean, I did try and do it when I was in the doj, but, I mean, like, no one thought it would really happen. So now I'm just kind of like, wow, look at me.
- [68:18]
Kate Shaw
Just the brave truth teller, John Roberts. Okay, so speaking of doj, where a young John Roberts cut his teeth, like, learned the skills that we are now all living under. There is good news from the Department of Justice, which is that if you are looking for a job, the civil division of the DoJ, once one of the most Prestigious places a young lawyer could work is apparently so desperate to hire people, it is now handing out signing bonuses of up to $25,000 to hire lawyers who can work out of non DC offices, including new York, San Francisco, Dallas and Raleigh. Make DOJ great again, I guess.
- [68:57]
Leah Littman
It actually turns out that the federal government is offering all sorts of job perks these days. So let's open up the liquor cabinet and see what these guys have in store for us this episode.
- [69:08]
Kate Shaw
Okay, so more reporting from the Atlantic, which has reported since we last recorded that quote, FBI Director Cash Patel, and that's Cash with like a dollar sign instead of an S, has given out bottles of his personalized whiskey to FBI staff as well as civilians he encounters in his duties. The Atlantic describes the bottles as being engraved with the words quote, cash Patel, FBI Director, and a rendering of an FBI shield. Surrounding the shield is a band of text featuring Patel's director title and his favorite spelling of his name. As I said, cash with the dollar sign. An eagle holds the shield and its talons along with the number nine, presumably a reference to Patel's place in the history of FBI directors.
- [69:48]
Melissa Murray
J. Edgar Hoover would be so impressed.
- [69:51]
Leah Littman
It's J. Edgar boozer.
- [69:53]
Kate Shaw
Yeah, I heard the guys on Pod save using that term. I don't know who coined it, but
- [69:57]
Leah Littman
I really credit them for. But in any case, I mean, that
- [70:01]
Melissa Murray
might be the most significant thing that Cash Patel has ever done, like make you look fondly on J. Edgar Hoover.
- [70:06]
Kate Shaw
On J. Edgar Hoover.
- [70:08]
Leah Littman
You know, his I don't have a drinking problem line of personal bourbon is answering questions raised by his I don't have a drinking problem line of personal bourbon.
- [70:19]
Melissa Murray
This report from the Atlantic came from the same reporter, Sarah Fitzpatrick, who reported the story about Cash Patel allegedly being hungover and inebriated while on on the job. This is the same reporter that Cash Patel has sued. This time, according to Fitzpatrick's reporting, quote, the FBI did not dispute that Patel gives out bottles of whiskey inscribed with his name, but a spokesperson portrayed the gifts as routine within the FBI and the broader government.
- [70:51]
Leah Littman
Side note, unconstitutional to give gifts.
- [70:53]
Melissa Murray
I was going to say the government,
- [70:54]
Kate Shaw
according to Hart and crowd. In my day, Cash is going to
- [70:59]
Melissa Murray
have to game up. It's just personal bottles of bourbon. Like, where's your private jets?
- [71:04]
Kate Shaw
Or anyway, he's a humble FBI director is all he got. Wait, finish, finish reading this quote though,
- [71:09]
Leah Littman
because he does read the FBI jet as his personal jet. So there's that.
- [71:14]
Kate Shaw
Why not both?
- [71:15]
Melissa Murray
Well, okay, so back to the story. The story continues, quote, when I reached a former longtime senior FBI official to act ask whether he'd ever seen personally branded liquor bottles distributed by a previous FBI director. He burst out laughing. And that is the right reaction because no one has ever burned out.
- [71:35]
Kate Shaw
You don't think Jim Comey was doing this? Can you imagine? I mean, the whole episode is horrifying and also somewhat amusing.
- [71:46]
Melissa Murray
Gone, gone, the dollar side. I'm just like, sir, what?
- [71:51]
Leah Littman
I mean, it's giving. It's so wag culture. No, it's giving loser incel culture. Like these guys trying to fulfill all of their dreams and their ideas about what it means to be a man that they could never actually achieve outside of this grift. It's just embarrassing. It's pathetic.
- [72:11]
Kate Shaw
So it's all those things, embarrassing, pathetic, horrifying, kind of funny. But I mean, I mean, really not at all funny. Is reporting from last week also involving the reporter we were just talking about, Sarah Fitzpatrick at the Atlantic, who has broken now these two stories about Patel and she is being targeted by the FBI with a criminal leak probe, according to reporting from last week. So I guess again, it's not surprising that that is the kind of misuse of power that these guys are engaging in, targeting critics.
- [72:41]
Melissa Murray
It gets worse.
- [72:42]
Kate Shaw
It feels like a very alarming escalade.
- [72:43]
Melissa Murray
It gets worse. Ms. Now has reporting from Carol Lennig and Ken Delaney and saying that Kaj Patel has ordered polygraphs of people close to him in the FBI to try and determine the leaker. And I'm just saying John Roberts is right there. If you want to find a leaker, go to John Rob. Oh, wait, wrong guy.
- [73:05]
Kate Shaw
Never mind.
- [73:06]
Leah Littman
You go to the marshal and you have the marshal just ask people, are you the leaker? Are you the leaker?
- [73:12]
Melissa Murray
There's a way to get them to Notorious.
- [73:14]
Kate Shaw
No, but can't you get them to notarize a document saying Right with their little stamp and then you know for sure.
- [73:19]
Leah Littman
Yeah.
- [73:21]
Kate Shaw
Okay, so quick lightning round with a few more pieces of news. First, we have to talk briefly about the fact that the EEOC has filed a quote, like huge scare quotes civil rights lawsuit against the New York Times on the theory that the Times discriminated against a white man by not giving him a promotion because that's who gets to file civil rights lawsuits in Donald Trump's America. Melissa, you had a great thread about this lawsuit. Do you want to repurpose any of it on the pod?
- [73:45]
Melissa Murray
I'm just going to say straight up. One, there's also reporting from New York Magazine and the cut, I think that may actually identify who this person is. So if you want to know, I guess go there. I will say I don't think the point of this lawsuit is to prevail in court. As I note in the thread, there has been no legal determination that efforts to remedy rampant underrepresentation in certain employment sectors is impermissible, whether under the Constitution or under statutes. So that's not what the EEOC is after here. I think what is really happening is that this is an effort to cow newsrooms into basically thinking twice when they might hire a woman or a person of color and to cement the underrepresentation of those groups that has long persisted in newspapers and other legacy media for generations. And to the extent this shapes coverage of certain issues and shapes the way people understand the issues and how it relates to a democracy, I think all of that is the point. Indeed, this is this administration's M.O. like intimidation, deterrence, basically stopping people from doing things that they can do, like basically making them obey in advance them. One thing they couldn't do is keep E. Jean Carroll from spending Donald Trump's money. So the DOJ has now stepped in into the appeal of Eugene Carroll and the verdict against Donald Trump and they've basically said the President wants a freeze of the payments being made to her. So we will see where that goes. But I'm pretty sure Eugene Carroll was just going to tear it up with that money. I wonder if he just doesn't have it.
- [75:32]
Leah Littman
They've also asked, asked for the federal government to basically stand in for Donald Trump rather than having the litigation against him.
- [75:40]
Melissa Murray
We have talked about this before in our paper forthcoming in Northwestern about personal litigation that takes on a very public import and Persona and profile.
- [75:49]
Kate Shaw
Yeah. And this is the kind of like most literal expression of that, seeking to have the government step in in this lawsuit to say Trump was somehow acting in his official capacity, at least in terms of some of the remarks he made against about E. Jean Carroll that were what led to the 80 plus million dollar verdict that she obtained against him. We will see how that effort to
- [76:08]
Melissa Murray
substitute fares another decision. The Court of International Trade ruled on Thursday, last Thursday that the President's new theory about tariffs is also wrongheaded and fucked up. The President apparently does not have the authority to impose tariffs under section 122 of the Trade act of 1974. That's the latest statute that he's invok to underwrite these tariffs. Those tariffs that he imposed in the wake of the Court's tariff decisions impose 10% tariffs on various imports. Notably, the Court of International Trade's ruling not only invalidated those tariffs under section 122, they also ordered the administration to refund the money collected, something that the Supreme Court's decision did not do.
- [76:54]
Leah Littman
Yeah, and a district court ruled for the American Historical association and other groups that had challenged the grant terminations by the National Endowment for the Humanities. This was the case that generated the Dogebro depositions. It's a remarkable opinion that details just the stunning carelessness and hubris of Doge and utterly predictable, I would say, but
- [77:18]
Kate Shaw
utterly good to know.
- [77:20]
Leah Littman
Utterly predictable. And that is the news. But stay tuned now for our conversation with Nancy Northup and then for our favorite things.
- [77:32]
Melissa Murray
Strict scrutiny is brought to you by Smart Credit. Here's something most people aren't told about their credit score. It's not just whether you pay your credit cards, it's when you pay your credit cards. Yes, most people don't realize the timing is everything. But Smart Credits data experts understand how credit bureaus operate. So they have created something called the Best Pay Down Date, which is built around how credit reporting actually works. So instead of guessing, you get a personalized strategy that shows you what to do and when to do it, all to help you maximize your credit score. And that matters because better credit can mean lower payments and more money in your pocket. And this is where it gets really interesting. You can see your full credit picture in one page. Place your score, what's affecting it, and if something needs your attention, you can take care of it right there. So before you apply for anything, a car loan, an apartment, refinancing your mortgage, it makes sense to start with Smart credit. Go to smartcredit.com strict and try it for just $1. You may be surprised to see how many points Smart Credit estimates you can gain on your credit score. That's smartcredit.com strict. Results may vary. Cancel anytime.
- [78:47]
Crooked Media Host
Hey crooked listeners. If you haven't become a friend of the POD yet, you are missing out on exclusive bonus content that drops every single week. If you do join, you're helping us, you know, grow Crooked Media, which is one of the few independent, proudly pro democracy media companies left in Trump's America. If you join, you also get get ad free episodes of all your favorite pods. Ad free episodes of POD Save America. Love it or leave it offline. Pod Save the world. You also get bonus content like our new extra episode of Pod Save America called Pod Save America. Only Friends, Dan Pfeiffer's Polar Coaster. You also get access to all of our excellent substack newsletters like Pod Save America, open tabs and tons more great content. So stop what you're doing right now and go ahead and and subscribe@qriket.com friends check it out.
- [79:43]
Melissa Murray
Craving something specific? From global flavors to viral snacks, TikTok has it all. If you can dream it, you can make it right at home. Find your next favorite dish on TikTok.
- [80:03]
Kate Shaw
And now to help us break down what the fuck is going on with mifepristone is Nancy Northup. Nancy is the president and CEO of the center for Reproductive Rights, the organization that represented the clinics in Dobbs vs Jackson Women's Health Organization. The decision which our listeners of course will know is What Overruled Roe vs. Wade. The center for Reproductive Rights also represents the many women in several different states who are seeking decisions clarifying the scope of medical exemptions under state abortion bans, including cases in Texas and Tennessee. Welcome to the show Nancy. We are so appreciative of you taking the time.
- [80:35]
Nancy Northup
Thank you. It's good to be here.
- [80:37]
Kate Shaw
Let's just sort of get right to it. Why are anti abortion forces targeting mifepristone the way they are right now? And why is that such a big deal?
- [80:45]
Nancy Northup
Well, they're targeting mifepristone because abortion pills have been a lifeline in post Roe America. Currently in The United States, 2/3 of people getting abortions are doing so via abortion pills. And specifically since the FDA has allowed telehealth to be used that you can have a visit on your computer with your provider and then receive the pills by mail or pick them up in a local pharmacy. Now one in four people are having their abortions that way. So it's a big deal. They don't like the fact that people want to get abortion care and they are getting abortion care in a way that is safe and effective according to to the US Food and Drug Administration.
- [81:32]
Kate Shaw
And can you talk a little more Nancy, just sort of before we go deeper? So you talked about just how common and kind of widespread this particular use of mifepristone is and you said safe and effective. At the end, can you just talk a little bit more about kind of what we know about the safety and efficacy of abortion pills, which include mifepristone.
- [81:49]
Nancy Northup
Certainly. I mean, going back over 25 years, the FDA approved medication abortion, a regime that involves two different pills, mifepristone and misoprostol, as safe and effective for being on the US Market. It had been approved years before in France but the US finally caught up 25 plus years ago. And so it's been on the market. There were initially restrictions that the FDA put on it, unnecessary restrictions from a health perspective, but there were restrictions put on it for years. And one of those restrictions was that you had to go in person. But the FDA first during COVID and then afterwards approved it also by telehealth. But there have been hundreds of studies that have shown it to be safe and effective. There have been millions of women in the United States and even more millions around the world who have ended their pregnancy safely and effectively with this two drug regime.
- [82:55]
Melissa Murray
So, Nancy, our listeners will remember that in the FDA versus Alliance for Hippocratic Medicine, which the Supreme Court dealt with a few terms ago, there was another attack on mifepristone. That challenge was initially filed in Amarillo, Texas, in the courtroom of one Matthew Kaczmarek. He's a judge, but he's also America's leading scientist on this issue. That is a joke as well. In that lower court ruling, Judge Kaczmarek purported to revoke the FDA's approval of mifepristone. And then the Fifth Circuit rescinded some of the FDA's guidance for how mifepristone can be used, including guidance about what point in a pregnancy that mifepristone can be prescribed and whether mifepristone could be prescribed via telehealth. The Supreme Court unanimously reversed that decision, saying that the plaintiffs in the case, this was a group of anti abortion doctors and dentists, didn't have standing because they hadn't established that the availability of mifepristone or the FDA's guidance on mifepristone had harmed them or was likely to harm them going forward. And that was because their theory of the case depended on a set of absolutely implausible events that were incredibly attenuated. But as we've noted before on this podcast, by reversing the decision on standing, the Supreme Court didn't address whether the Fifth Circuit was correct that the FDA was wrong to allow mifepristone to be prescribed via telemedicine. So now the 5th Circuit has picked up the mantle in this new case that's been filed by a different plaintiff here, Louisiana. But Louisiana's theory of standing seems pretty attenuated, too. So can you explain how the jurisdictional questions in this case are different from the case that the court threw out in 2024?
- [84:37]
Nancy Northup
Well, they're not. Louisiana doesn't have standing.
- [84:40]
Leah Littman
I mean, they analytical reasoning very hard in the fifth Circuit, it turns out
- [84:45]
Nancy Northup
they try to establish it in two different ways. The first is super, you know, attenuated. The claim that because they say two women who had complications from allegedly having an abortion with medication abortion appeared in hospital emergency rooms and were treated at some expense to the state. I think $92,000 was their claim. She tells you a little bit about how expensive healthcare is, but that is a very attenuated claim. We don't know where they got medication abortion. We don't have any idea whether they got medication abortion through telehealth and why that even matters. And so that's very attenuated. Then Louisiana comes in and says, you know what? Actually, here's the real rub. We can't effectively enforce our criminal ban on abortion because people are accessing medication abortion through telehealth visits and receiving pills through the mail. You know, the fact that Louisiana can't enforce its criminal statute is not a reason for standing to stop the entire nation from getting abortion pills safely and effectively. I mean, I was a Prosecutor in the U.S. attorney's office in the Southern District of New York. I couldn't go to court and say, you know, I'm having problems, you know, enforcing this law and bringing this criminal prosecution. So I'd like you to knock down a few things in other states and make that a little bit easier for me. So, you know, it's an absurd position that they've taken and a very dangerous one. I mean, we have a lot of states in this country that support access to reproductive health care, access to abortion care. Their voters have, you know, put it on the ballot and said, hell, yes, this is what we want. And in states where people would be surprised, like Missouri and Arizona and Michigan and Montana, and the voters in those states should not have their desires to have their state constitutional right to abortion overridden by Louisiana's problem with enforcing its abortion crime.
- [87:00]
Leah Littman
I was also under the impression that federal law, not state law, was supreme, such that if federal law was making it more difficult to admit enforced state law, not exactly a constitutional injury, even though the reverse might be true. But again, just a humble constitutional law professor here. So what, Nancy, did the fifth Circuit do in this Louisiana case, and what effect would their ruling have if it's allowed to go into effect? What effect did it have when it was in effect for that weekend?
- [87:32]
Nancy Northup
Yeah. So the 5th Circuit Circuit issued, the district court said, no, we're not going to block the telehealth provision that the FDA has approved. And the fifth Circuit made this Ruling that not only said we disagree with the way the district court judged who would be harmed if an injunction was put in place. And we think that Louisiana should prevail here. We're putting in an injunction. We're doing it right now, immediately. And came out five o'clock on Friday night. And that meant, you know, across, we represent, you know, clients across the nation, those that do telehealth had to scramble and figure out what they were going to do. They had to have, you know, patients come in if they were scheduled for that weekend. And you can't, if you live hundreds of miles from the clinic, you can't just come in the next day, day you might have to work, you have childcare, you may not be able to afford that trip. So it created absolute chaos and upending. And not just, I want to point out, and I was talking to a friend of mine in California over the weekend and she said, well, this doesn't apply like in California. I'm like, this applies in California, okay. You cannot get a telehealth visit for medication abortion and pick it up at the pharmacy or have it mailed to you in California. Did not understand that was the consequence of it. So if this is not a wake up call to people across the nation that it does not matter if your state protects abortion rights in your constitution, if your legislature protects it, if you have a shield law in your state that protects your doctors, doesn't matter if this kind of, you know, ill founded ruling is allowed to go forward.
- [89:18]
Leah Littman
Yeah. So I guess just want to specifically follow up on this because although the ruling was unsubstantiated, had no basis in law or fact, and you know, is hugely consequential, mifepristone is still going to be accessible, you know, with this ruling, if it's allowed to go into effect, as is medication abortion, even by telemedicine, even if it's not the currently approved protocol. So could you just talk a little bit about how this would affect the accessibility and availability of mifepristone and medication abortion?
- [89:57]
Nancy Northup
Well, I mean, to begin with, as I've been saying, it requires that you have to go to your provider in person to get the medication. And as we know, abortion clinics have closed in recent years. I think about a state like Maine, again protects the right to abortion. But main Family Planning, which used to have 18 clinics throughout the state providing abortion care, they had to close some of their clinics because of the defund Planned Parenthood provision that Congress passed. So if you have to drive a long distance and take time off at work and be able to get into that schedule scheduled, you know, appointment. It's going to make it harder to get care. So that's why it's a big deal. That's why it's important. And again, it's nationwide. Nationwide.
- [90:47]
Melissa Murray
So Nancy, I know that you know that our friend of the pod, Samuel Alito, really issued a win for abortion rights last week when he issued an administrative stay that provided a week for briefing and whatnot for the court get its ducks in a row about this. But it also allowed mifepristone to be distributed via telehealth for this period of one week while the court decided what it's going to do going forward. This means he's pro choice, right?
- [91:19]
Nancy Northup
Well, Professor, I know you know that
- [91:23]
Melissa Murray
so many people have asked me like what should we make of this Sam Alito doing this? That must, he must know how wrong this is. Can you help us work through this? Help us teach the kids?
- [91:33]
Nancy Northup
Yeah, it's an administrative stay. It's just a procedural move to say, you know what, we will let parties file their briefs. We will at a very short schedule, but we will let the parties file the briefs. We will read and think about the briefs. And you know, Monday night at 5pm the stay will be in effect. So it's just a procedural move. It's what one would expect a court to do when considering something as upending as a nationwide invalidation of an agency determination about a drug's health and safety.
- [92:15]
Melissa Murray
And as our friend of the pod, a real friend of the pod this time Steve Vladek has reminded us, just as Alita has as the circuit justice for the Fifth Circuit issued administrative stays before, when emergency petitions have come before him in many of those cases, in circumstances where I think he's inclined to agree with the litigants requesting the stay, he often doesn't put a deadline on this day. But this particular ruling came with a quite short leash, which we should also remember.
- [92:42]
Leah Littman
So don't worry for Sam just yet is what I'm not.
- [92:47]
Melissa Murray
That's yes, yes, yes.
- [92:49]
Kate Shaw
But that makes me sort of want to get ahead of maybe another round of commentary along the lines that you were just kind of alluding to, Melissa. So this stay will expire. We're going to get a decision. So this is again an administrative stay. We're likely to get a decision on an actual stay, you know, within a day or two after this episode airs on Monday morning. So it's entirely possible that the court will order a longer term stay of the 5th Circuit ruling. Nancy, what should we make of the court doing that? Should, if we are not celebrating Sam yet, should we be celebrating him if that comes to pass on Monday or Tuesday?
- [93:25]
Nancy Northup
No. We should understand that there is a further procedural completely proper and should be expected. I mean, injunctions against federal agency decisions should not be quickly granted. And so it just means there's going to be more time for the court to consider it or hopefully that this will go back and go through a normal decision process and the court will consider it on the merits. But yeah, no one should read anything and go back to their business as usual. They should read all of this as deeply troubling.
- [94:07]
Melissa Murray
So listen to that. Legacy media, do not give Sam Alito credit for doing the absolute least.
- [94:14]
Leah Littman
This is literally no cookie for Sam.
- [94:16]
Kate Shaw
No cookie for Sam.
- [94:17]
Melissa Murray
Yeah.
- [94:18]
Kate Shaw
Okay. So Nancy, another question. So can you maybe talk in general terms about what you know. So we don't know exactly if another stay will hopefully be granted if this case gets argued in the fall when the court is sitting again and you know, the drug remains available over the course of the summer on the existing FDA approved terms. But of course there's a lot of uncertainty both in terms of what the courts will do, but also the FDA itself says it is undertaking this internal review of mifepristone. So I think there's just like a lot that we don't know sort of about what the next few months will hold. So can you talk a little bit about how people can and should support abortion access during this like deeply uncertain time? And, and maybe I don't think we've really explicitly talked about this. So can you also talk a little bit about if mifepristone again becomes unavailable, at least in terms of telehealth, how people might be able to get a different protocol for medication abortion? Because medication abortion is of course possible without using mifepristone. So could you talk a little bit about all of that?
- [95:15]
Nancy Northup
Yes, and I'm actually going to go in reverse order to say that no matter what happens, if you are a person who is seeking abortion care, call a trusted provider. Don't assume because you heard a podcast and you thought you understood that you just can't even get it or there's no way to get it via telemedicine, call a trusted provider, find out what the situation is before making any assumptions. So that's number one in terms of help. Well, I will start with that. Support your providers. They're very important. They're on the front lines of Providing care under incredible stress. Support local abortion funds. You know, in this post, they've always been important because so many states don't cover abortion care under their Medicaid programs or people are otherwise low income. There are abortion funds that help people get the care they need, help them travel. In this post, Roe America if they need to get that care. And there are usually ones in locales in every place in the country or there's the National Network of abortion Funds. Talk about the issue. People are so misinformed. You're getting people calling you, saying what's happening to, you know, Justice Alito seems like he's being great on abortion. You know, I'm talking to people who are pretty knowledgeable but still say, wait, what do you mean it's going to be banned here in California too? Talk about it, don't let it. You know, it's been very hard to push through in this media environment around this crisis that we still have. We live in a country in which in some states people are free to control their reproductive lives and in other places they are not free to do so. So we gotta remind people of that every single day. We have the free and the unfree. And this case, LA versus FDA, is the unfree trying to come after the rest of the state. So talk about it, get educated about it. And you do need to, you know, pick up that phone or send that text or send that email to your office holders whether they support abortion rights or not. If they don't, they need to know there's people out there who do support it. And if they do, they always say to us, we don't hear enough. We don't hear enough. They gotta, you know, you gotta buck em up. You gotta let them know we're out there and we want them to keep on going. So all those things are important. But talk, talk, talk, talk, talk about it because you know it's gonna happen over the next months. We're going to hear a lot in the media about, you know, no one cares about abortion rights anymore. We hear it every single cycle.
- [97:47]
Leah Littman
Well, on that note, listeners make sure to make caring about abortion a thing in the upcoming election cycle and thereafter. Thank you so much, Nancy, for taking time out of your schedule to educate our listeners and explain what's going on and what we should do about it.
- [98:03]
Nancy Northup
Right. Thank you for having me.
- [98:04]
Kate Shaw
Thank you for covering it.
- [98:06]
Leah Littman
Okay, so some favorite things. Two new great albums released in the last week. Casey Musgrave's Middle of Nowhere and Muna's Dancing on the Wall. Also two New York Times pieces also related to Voting Rights act and what the Supreme Court did to it. Nico Bowie and Daphne Renan, who will stand up to Supreme Court justices and Jamelle Bouie's John Roberts beliefs in an America that does not exist.
- [98:30]
Kate Shaw
Okay, I will go next. Melissa, you recommended Yesteryear, I think last week and I read it and I devoured it. I felt differently at different places about it. It's actually not what I thought. It's not quite about what I thought it was about or isn't quite what I thought it was.
- [98:42]
Melissa Murray
What do you think it was?
- [98:44]
Kate Shaw
Well, it just, it's just much darker. I mean it's the, the, the, it's not anyway, it's more. The premise is very straightforward. Trad wife gets like, you know, like time traveled back in time and like it's shitty back there. It's just much more complicated than that surface description suggests. But it's I, I, I really enjoyed it. Okay, couple other things. New York City Mayor Zoran Mamdani doing the Five Borough bike ride and all the video that emerged from him doing that. And then also skipping the Met Gala to hang out with fashion industry workers. I loved both of those. Friend of the pod roadie. Occasional erstwhile roadie of the pod, Chris Hayes had a wonderful conversation on his podcast with Molly Crabapple about her book here where we Live is our country. Really recommend that. And another podcast to recommend the Daily did an episode filled with kids questions for the Artemis 2 crew and the four of them are like the most amazing, charming, like spiritually elevated people. Like they are so impressive and I love the questions and I love the conversation. So really recommend that. And then tonight I'm going so I think it'll be one of my favorite things but I haven't done it yet. To the WNBA team in New York, the Liberties home opener and I'm taking three 12 year old boys who are enormous Liberty fans and I just like more fans of all stripes for the WNBA is like a thing I'm super excited about. I'm super excited. The players have a much better deal this season. We've talked a little bit about the bargaining around that. So psyched for the opener and I will pass the mic to you Melissa.
- [100:11]
Melissa Murray
Okay. Mine are going to be super shallow. So I did not attend the Met Gala. Didn't get my invitation. Just waiting. But I did watch and I did have thoughts on some of the fashion. The theme this year was basically fashion as art and, and I, I don't know if I loved it or I loved to hate it. Probably the latter. But Lauren Sanchez Bezos deciding to dress up as the John Singer Sargent painting Madame X for which she spent a shit ton of money on a Schiaparelli dress that honestly made her look like she was going to the 11th grade prom. Like it was just basic. I mean I don't even know what else. I also enjoyed the video of her and her friends watching Joshua Henry sing on the steps of the Met and nobody could clap on the beat. I I I am going to relate this directly to the decimation of the Voting Rights Act. I will also say I was very impressed and I loved loved loved the artist Amy Sherrild. She was the one who did Michelle Obama's official portrait. She wore a custom look by Thom Browne that was was inspired by her painting Miss Everything Unsuppressed Deliverance and it was everything just I love the whole idea. Like I just love the whole fashionist art and people referencing these works of art. I wish some of them weren't so basic, but Amy Sherrills was absolutely a plus. I will also plus one to Jamelle Bouie's John Roberts believes in an America that does not exist in the New York Times, in part because he exhausted exhorts the American public to reclaim the Constitution as their own and to start making the same kinds of constitutional claims that the Supreme Court seems to do without any reference to the document itself. But you can reference the document because I wrote this book. So I like that Jamelle Bouie and I are on the same page. Works for me. All right.
- [102:12]
Leah Littman
Okay, so some housekeeping. Why does it seem like the Supreme Court always saves its worst decisions for June? Maybe the first gentle breezes of summer fill them with inexplicable rage? We cannot say for sure. Some of the rulings that may transpire include mail in ballots, deportation protections, rules governing whether transgender athletes get to participate in sports, birthright citizenship, and more. So this June, the three of us at strict scrutiny are headed to New York City to break down all of the cases in question and whatever horrors the Roberts court has has in store for us with judicial expertise and petty jokes at Sam Alito's expense in equal measure catch strict scrutiny live at the historic gramercy theater on June 20 as part of the Bad Decisions Tour. Tickets are on sale now. You can grab them@crooked.com events.
- [103:00]
Kate Shaw
And in the latest episode of Runaway Country, I got to join my friend Alex Wagner to discuss a lot the outrageous selective indictment of Jim Comey. Not not for his off brand whiskey production, but for Moonshining Jim documenting some art made with seashells on a beach. Maybe not by him, probably not. Seems ostensibly not by him. No matter, right? He is being charged for it anyway. We talked about Trump's insane $10 billion lawsuit against the IRS and kind of generally why it matters when the Department of Justice is weaponized against the perceived political enemies and deployed to help the friends of those already in power.
- [103:43]
Leah Littman
Yeah, I mean like this week Feds raided the office of the black woman who led the Virginia redistricting effort.
- [103:48]
Kate Shaw
We didn't even get a chance to cover that. Like there is just so much so tune in to Runaway Country. Wherever you get your podcast, you can hear me this week and you can hear Alex's great other guests other weeks. And you can also watch us anytime on YouTube.
- [104:06]
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 Our production staff is proudly unionized with the Writers Guild of America East. And if you haven't already, be sure to subscribe to Strict 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.
- [105:01]
Crooked Media Host
Hey Crooked listeners, if you haven't become a friend of the POD yet, you are missing out on exclusive bonus content that drops every single week if you do join. You're helping us, you know, grow Crooked Media, which is one of the few independent, proudly pro democracy media companies left in Trump's America. If you join, you also get ad free episodes of all your favorite pods. Ad free episodes of Pod Save America. Love it or leave it offline. Pod Save the World. You also get bonus content like our new extra episode of Pod Save America called Pod Save America. Only Friends Dan Pfeiffer's Polar Coaster. You also get access to all of our excellent substack newsletters like Pod Save America, Open Tabs and tons more great content. So stop what you're doing right now and go ahead and subscribe. Subscribe@qriket.com friends check it out.
- [105:58]
Melissa Murray
Discover top rated Stays loved by guests Rated highest by real guests through authentic
- [106:05]
Kate Shaw
reviews Verbo Book a vacation rental loved
- [106:09]
Melissa Murray
by guests when you manage procurement for multiple facilities, every order matters. But when it's for a hospital system,
- [106:17]
Kate Shaw
they matter even more.
- [106:18]
Melissa Murray
Grainger gets it and knows there's no
- [106:20]
Kate Shaw
time for managing multiple suppliers and no
- [106:23]
Melissa Murray
room for shipping delays. That's why Grainger offers millions of products in fast, dependable delivery so you can keep your facility stocked, safe, and running smoothly. Call 1-800-GRAINGER Click grainger.com or just stop
- [106:36]
Kate Shaw
by Grainger for the ones who get it done.