Why is SCOTUS Hoarding Opinions?

Summary

Strict Scrutiny Podcast Summary

Episode: "Why is SCOTUS Hoarding Opinions?"
Air Date: June 22, 2026
Hosts: Leah Litman, Kate Shaw, Melissa (Alyssa) Murray
Special Guest: Elie Mystal
Location: Live in New York City

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Overview

This episode unpacks the Supreme Court’s agonizingly slow release of decisions as the term nears its end, speculates irreverently and insightfully on why the Court may be “hoarding opinions,” and examines the actual opinions released last week. The hosts (all constitutional law professors) and guest Elie Mystal bring humor, accessible analysis, and energetic critique to the Court’s workflow, recent Second Amendment jurisprudence, and ongoing right-wing fissures. They close with calls for Supreme Court reform, drawing historical analogies to underscore its urgent necessity.

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Main Themes and Key Segments

1. Why is SCOTUS Hoarding Opinions?

[04:40] – [07:15]

• The Court still has a backlog of 17 major undecided cases heading into July—high-profile issues like birthright citizenship, independent agencies, trans athlete bans, absentee ballots.
• Alyssa Murray: “These folks are literally quiet quitting. And they had the nerve to quiet quit the week that we had a live show in New York. The absolute audacity of them.” [04:57]
• Roundtable of speculation:
  • Is the delay about controlling the media narrative around the Court (i.e., saving the most controversial rulings for the term’s end)?
  • Are they hoping to “starve” critics and make it harder for outsiders to mobilize in response to their decisions?
  • Leah offers: “Why do they refuse to go away? Just get it over with. Release the opinions. No one needs this insane ritual of frantically refreshing our web browsers to figure out what constitutional rights we still have.” [15:25]

Memorable Moment

• Kate’s optimistic theory: the Court is delaying to “allow all of us to experience just a few more days of unfettered Knicks-induced joy.” Shot down by her co-hosts. [05:37]

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2. Temporary Protected Status (TPS) Cases and the Court’s Workflow

[16:27] – [23:24]

• The hosts speculate that new blockbuster reporting (NYT) on the government’s faulty consultation record led the Court to pull the TPS opinions last week.
• Recap: TPS case revolves around whether the Trump administration improperly revoked protection from Haitian and Syrian nationals.
• Revealed emails suggest that purported agency “consultations” never really happened.
• Likelihood the SCOTUS may punt (remand) rather than rule, to avoid embarrassment post-exposure of administrative pretext.
• Leah & Kate draw parallels to Dept. of Commerce v. New York (the 2020 census/citizenship question case), where the Court was reluctant to rubber-stamp blatant administrative dishonesty.

Notable Quote

• “Is it consultation if you ask for the consult but then don’t wait for the consultation?” —Alyssa Murray [19:39]
• “Will that complicate the court’s consideration? Right. As the Times put it, these newly obtained DHS emails make clear there was no such consultation.” —Kate Shaw [19:42]
• “There was a limit in the first Trump administration. That is what we saw in the census case. The court was not willing to go along with that pretextual justification. The vibes feel different now.” —Kate Shaw [23:01]

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3. This Term’s First Batch of Opinions: Second Amendment & “Drunk History”

[31:24] – [53:26]

United States v. Rahimi (aka “Hamani”): Drugs and Guns

[31:24] – [53:26]

• Holding: SCOTUS (unanimously) held that the federal government cannot disarm people merely for using drugs in violation of federal law; opinion by Neil Gorsuch.
• Methodology: Relied on the “history and tradition” test from NYSRPA v. Bruen—scrutinizing if modern gun laws have a Founding-era analogue.
• Host Critique: Right outcome for mostly the wrong (and silly) originalist reasons; the opinion is a comical dive into colonial drinking culture and gun use.
• Elie Mystal’s Take: Excoriates the absurdity of relying on Founding-era norms to address today’s weaponry and drug laws ("It’s incredibly stupid that in 2026 we have to go back to habitual drunkenness laws around the Founding to figure out if somebody can have an Uzi.") [34:44]

Founders as Frat Bros

• “The Founders were totally frat bros energy. Neil Gorsuch at oral argument: ‘We have to remember the founding era... to be a habitual drunkard you had to do double that.’” —Elie Mystal embodying Gorsuch [37:25]

Concurrences Breakdown

• Clarence Thomas: In a solo concurrence, he signals openness to gutting the Commerce Clause basis for almost all federal gun and civil rights laws—a radical, long-term threat. [45:12]
  • “How could you possibly say that being in interstate commerce does not trigger the interstate commerce clause?” —Elie Mystal [46:48]
• Samuel Alito: Concurrence (joined by Kagan) notes marijuana use is “widespread and increasingly considered socially acceptable,” using this as support for the result. Hands-off on gun prohibition for “mild” drug use.
• Ketanji Brown Jackson (KBJ), joined by Sotomayor: Separate concurrence slams the Bruen "history and tradition" test, calls for common-sense judicial balancing instead (“means and ends”).
  • “The drunk history and tradition test.” —Kate Shaw [52:40]
• Intra-right fights: Substantial disagreement among conservatives about how far to push gun deregulation and diminish federal lawmaking power.

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4. Other Opinions Recap

[59:23] – [61:13]

• Hunter v. United States: Defendants can appeal plea deals if substantial miscarriages of justice are alleged. More intra-right fights—especially around procedural doctrines.
• TM v. University of Maryland Medical System: Rooker-Feldman doctrine applies to state appellate and trial courts—further evidence of right-wing justices disagreeing on fundamental doctrines.

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5. The Need for Supreme Court Reform

[64:03] – [69:19]

• Elie Mystal delivers a powerful mini-lecture drawing a historical parallel: real democratic change (Civil Rights Act, Voting Rights Act) only possible after changing the Court—then via Brown v. Board overturning Plessy.
• “Changing the court doesn’t fix the problem, it opens the door so the problem can be fixed... None of this can happen unless you take control of the Supreme Court first.” [65:25]
• The left must prioritize this issue—otherwise any legislated reforms (abortion, voting rights, climate) are DOA.

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6. Legal News Lightning Round

[69:39] – [79:55]

Topics:

• SLUSH FUND SHENANIGANS: Blame placed on John Roberts & co. for emboldening executive defiance and funding pipelines for January 6th insurrectionists (via shadow docket, immunity decisions).
• Kennedy Center Removes Trump’s Name: Celebratory and symbolic victory illustrating that courts and lower-level litigation do matter.
• Trump’s Green Algae Reflecting Pool Fiasco: Funneling of no-bid contracts to unqualified cronies—resulting in disaster—used as a parable for why merit-based government and administrative law matter (and would be threatened by a Supreme Court undermining agency independence).

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7. Reflections, Uplifting Moments, and Closing

[79:56] – End

• Hosts’ Favorite Things: Obama Center opening speeches, especially shoutouts to Minnesota activists and the resilience of collective civic action; importance of women working together in legal academia and podcasting.
  • “Professional networks of women, female friends are the best... creating this space where we could do our own thing was just a wonderful opportunity and I am just very grateful for all of the things that have come from it.” —Leah Littman [81:16]
• Advice: If you’re outraged by anti-Obama rhetoric, channel it positively, e.g., boost “Becoming” on Netflix.
• Shout-outs: Alyssa’s new annotated Constitution audiobook wins awards; gratitude for live-audience energy.

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Notable Quotes & Moments

• “Quiet quitting” Supreme Court [04:57, Alyssa]
• “Release the opinions. No one needs this insane ritual of frantically refreshing our web browsers to figure out what constitutional rights we still have.” [15:25, Leah]
• “It’s incredibly stupid that in the year 2026 we have to go back to habitual drunkenness laws around the Founding to figure out if somebody can have an Uzi.” [34:44, Elie]
• “The drunk history and tradition test.” [52:40, Kate & Alyssa]
• “Changing the court doesn’t fix the problem, it opens the door so the problem can be fixed.... None of this can happen unless you take control of the Supreme Court first.” [65:25, Elie]
• “If you really want to get them where they live... put ‘Becoming’ on loop for the whole weekend... That is how you clear a bitch, okay? By being elegant, unbothered, successful, moisturized, and on top of the Netflix character charts.” [84:16, Alyssa]

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Timestamps for Major Segments

• [04:40] — Why hasn’t SCOTUS released opinions? Court workflow and pacing
• [16:27] — TPS cases / impact of new information and possible Court remand
• [31:24] — United States v. Rahimi (Hamani): ‘Drunk history’ Second Amendment decision
• [45:12] — Intra-right disputes: Clarence Thomas and the Commerce Clause
• [64:03] — SCOTUS reform (Elie Mystal’s historical analogy and plea)
• [69:39] — Slush fund, Kennedy Center, reflecting pool grift
• [79:56] — Reflections, hosts’ favorite things, closing gratitude

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Tone & Style

Irreverent, witty, but deeply informed; they blend academic clarity with political insight and occasional “chaotic agent” energy, especially when Elie is present. The banter is sharp, but their engagement with hard constitutional questions and their alarm at the antidemocratic trajectory of the Court is sincere.

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For Listeners Who Missed It

This episode is an essential listen (or read) for anyone concerned about the Supreme Court’s legitimacy and current workflow—why they’re slow-walking cases, the consequences for democracy, and what’s at stake in the doctrines being quietly contested inside the marble palace. The hosts’ approach is not just critique but a call to action to prioritize court reform as the sine qua non of meaningful legislative progress. Their humor and camaraderie make even the nerdiest legal debates feel electric.

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Key Takeaway: To protect democracy and enact meaningful reforms, changing the Supreme Court is not just desirable, but essential. Pay attention. Get involved. And don’t take constitutional “drunk history” too seriously—unless you’re the current Supreme Court.

Transcript

[Kate Shaw]

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[Ellie Mistahl]

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

[Kate Shaw]

She spoke not elegantly, but with unmistakable clarity.

[Alyssa Murray]

She said, I ask no favor for myself.

[Leah Littman]

Sex.

[Alyssa Murray]

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

[Leah Littman]

My court captured my rights, shattered my democracy.

[Kate Shaw]

Still alive. Nicks in five.

[Alyssa Murray]

Hello, new york city. Happy Juneteenth to all who celebrate. And a very special Juneteenth to all who do not celebrate. And yes, I am looking at you, Pete, Sam, Clarence, Marco, J.D. mark, Wayne. No spaces.

[Kate Shaw]

Okay, okay, I'm going to stop you there, Melissa, because we cannot name the entire cabinet and the entire Supreme Court. We celebrate Juneteenth and we are Strict scrutiny. Your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts. I'm Kate Shaw.

[Alyssa Murray]

I'm Alyssa Murray.

[Leah Littman]

And I'm Leah Littman. And we are delighted to be here and so appreciative of the big parade you threw for us two days ago. We hear a million people showed up.

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So thanks.

[Alyssa Murray]

Really.

[Kate Shaw]

We are so excited to be here in New York for another live show. It is going to be a great one. No thanks to the Supreme Court listeners, audience members. We had to work to wring a show out of the pittance that the Supreme Court gave us last week.

[Alyssa Murray]

Yes, that's right, folks. We are literally a week away from July and this court still has 17 cases that it has not yet issued. And these are not little cases. These are big cases. The birthright citizenship case, the TPS case, the independent agencies cases, the ban on trans athletes cases. Absentee ballots are so much more. These folks are literally quiet quitting. And they had the nerve to quiet quit the week that we had a live show in New York. The absolute audacity of them.

[Kate Shaw]

I am going to float a theory. As the eternal optimist in our trio. Is it possible that the Court held off on dropping the biggest and the worst decisions of the term to allow all of us to experience just a few more days of unfettered nix induced joy?

[Leah Littman]

I think it's possible.

[Alyssa Murray]

No, no, Kate.

[Leah Littman]

No, Kate. Not possible.

[Alyssa Murray]

Wrong answer, Kate.

[Kate Shaw]

Yeah, just asking.

[Leah Littman]

Yeah, as the non optimist, I will float another theory. Maybe issuing consequential terrible bad decisions within a week of a White House cage match and an unconditional surrender and humiliation on the world stage at Versailles, of all places, would be just a little too much.

[Alyssa Murray]

I'm gonna go with, they are trying to starve us of content. That's what they're doing. And that's just one way to silence your critics. But you know what? We will not be silenced.

[Leah Littman]

It would take a lot more than that to silence us. So even though the court has yet to fully let its freak flag fly, whether right side up or upside down preferred, we still have a lot to talk about. We are going to cover the opinions we did get.

[Kate Shaw]

We will also be joined by a very special guest. And not just any special guest. This is a repeat player who we can always count on to help us liven things up, even when the court is doing its level best to give us no material to work with for this live show.

[Alyssa Murray]

All right, so after we do that, we are going to begin with some of the legal news from last week. But before we get started with all of that, we have some real business to attend to. We are recording this episode the day before the official start of summer. Right. And you know what summer means at strict scrutiny. It would not be summer at strict scrutiny without the official summer cocktail. Yes, yes. I'm going to need more than that. It's time to unveil the official cocktail of the strict scrutiny summer. All right, so let's recap what we've had on deck in years past.

[Kate Shaw]

Okay, so, you know, we've been in this game for a minute. We have had some epic summer cocktails in years past. There was the Ginnie tonic, OG listeners will recall, premium gin, lots of bitters, very bitter, possibly a fax machine, unconfirmed.

[Alyssa Murray]

There was also the Martha Rita extra salty, not regular salt. This was road salt that you put on the rim. And whenever you had it, you were free to let your freak flag fly upside down per usual.

[Leah Littman]

Yes, we did try a fall cocktail once. That was the secretary build a bear raw milk and whale juice cocktail. It never quite caught on. But we've got Jordan the intern working

[Alyssa Murray]

on it this summer. The strict scrutiny mixology team, that's Jordan the intern, decided that we were going to give you something very special. Not court focused, but politics forward. Right. So this is something that we came up with for you as we speed into the midterm election cycle. So this is the cocktail for you when you're out canvassing for your favorite candidates, when you're getting out the vote, and take your strict scrutiny emergency relief flask and fill it with summer's signature cocktail. Wait for it. The Susan Collins. You don't need a lot of persuading for this one. Okay. A Susan Collins is a little like a Tom Collins. It is a refreshing cocktail made with gin, lemon juice, sugar and club soda, served in a very tall glass. Usually is garnished with a lemon wedge or a maraschino cherries. But I think to truly make this a Susan Collins, we're going to skip those traditional garnishes and instead garnish this drink with concerns and absolutely no regrets. Yes. Okay.

[Kate Shaw]

Drink that.

[Alyssa Murray]

Cheers.

[Leah Littman]

Delightful.

[Alyssa Murray]

Very good.

[Kate Shaw]

I can taste the concerns. Obviously, this summer cocktail is an homage to Maine Senator Susan Collins, who is of course up for re election in November and who wants all of us to know she has no regrets about her decision to put aside her concerns about Roe vs. Wade and its future and cast her vote for Brett Kavanaugh's confirmation. It's part of our villain origin story as a podcast, actually. Indeed. But since we're talking midterm elections and elections generally, and we are in New York, reminder for everyone here tonight and listening on Monday morning, that Tuesday is primary day in New York. Thank you, listeners. There are a lot of contested primaries, so get out there. If you have not voted, you have to show up at every election, including this one, because the vibes right now in New York make clear that democracy can actually deliver joy. But it takes a lot of work and participation and committing to every single election. So let's drink to that, shall we?

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All right, we're going to dig into the opinions the court did give us, such as they are. But before we do, we kind of want to Talk a little bit about the court's workflow and pacing, or lack thereof.

[Alyssa Murray]

Correct.

[Kate Shaw]

They're bad.

[Alyssa Murray]

It's bad.

[Kate Shaw]

The pacing is bad. The workflow is not flowing particularly so, as also sucks. But, you know, we've noted previously that the Court typically issues all of the opinions in argued cases by the end of June and before the week of the July 4th holiday. Right now, as we've already said, we are still awaiting decisions in 17 cases likely to produce 16 opinions, and that number includes several massively important cases.

[Leah Littman]

This is all to say that there is almost no freaking way that the Court will release all 16 opinions in a single week, which means that this bad decision season and godforsaken term is going to be even longer than we thought. Which leads me to the question, why are these guys cockroaching us? Why do they refuse to go away? Just get it over with. Release the opinions. No one needs this insane ritual of frantically refreshing our web browsers to figure out what constitutional rights we still have. No need to dilly dally on completely reconstituting the entire constitutional order. Just get it over with, for fuck's sake. So we can start dragging you.

[Alyssa Murray]

Start dragging you.

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When did we.

[Alyssa Murray]

When did we stop dragging?

[Kate Shaw]

That's fair.

[Alyssa Murray]

That's fair.

[Leah Littman]

I'm at a 10. I'm going to be up to like a 50.

[Alyssa Murray]

Maybe they're taking their time because their emotional support billionaires are not inviting them on the yacht this summer. I think it's time for a little rank speculation about. Yeah, rank speculation. That would be a good drink, too. Ranked speculation. Let's put on our tinfoil hats and do some conspiracy theorizing for a moment about why the corporate court is doing all of this. And I want to focus on a particular set of opinions that we're waiting for. Those TPS cases. Right. We are working under the theory that maybe last Thursday the court actually did have an additional set of opinions that it wanted to issue in the TPS cases, but they held off because of some blockbuster reporting that surfaced at the last minute. Are you intrigued? Okay, lean in closer. Are you intrigued? I thought so. Let's dish. Okay, let's go.

[Kate Shaw]

All right, first, as a refresher, the TPS cases are about whether the administration can pull the rug out from under Haitian and Syrian nationals in the United States by canceling Temporary Protected Status, or TPS under the TPS regime. Again, Haitian and Syrian nationals who underwent a rigorous vetting process have been permitted to stay and work and build lives and have families and pay taxes and contribute to their communities in the United States because of conditions in their home countries.

So here's a theory.

[Leah Littman]

And again, this is just rank speculation, but we're all squirrel friends here. So maybe the court opted to pull the TPS opinions because of some new reporting that suggests, and you're not going to believe this, but hear me out. The administration may not have been completely transparent or honest in describing its decision making process about whether to cancel tps.

[Alyssa Murray]

I'm shocked.

[Leah Littman]

Leah.

[Alyssa Murray]

This is so shocking. Oh my God. So shocking. Here's the quick and dirty. The relevant statues here require the Department of Homeland Security. It was then under the domain of one critical crispy gnome. Haven't heard that name in a while. But it requires DHS to consult with other agencies about whether to cancel tps. And the plaintiffs in these cases say that this required consultation did not actually occur. And the government responded by saying, aha, it totally did occur. We totally consulted with everyone we needed to consult with. And anyway, it's totally not reviewable by a federal court whether or not we consulted. So it kind of doesn't matter. Anyway, DHS out.

[Kate Shaw]

That was sort of the tldr of the administration's argument. Well, twist or maybe entirely predictably, the New York Times now reports that new emails show that although DHS asked the State Department to weigh in, DHS then went ahead and canceled TPS for Haitian nationals without waiting to hear from the State Department or getting its input. Remember, the statute requires consultation.

[Alyssa Murray]

Is it consultation if you ask for the consult but then don't wait for the consultation?

[Kate Shaw]

The administration says yes, but that can't be right. So this, I think, is the question. Will that complicate the court's consideration? Right. As the Times put it, these newly obtained DHS emails make clear there was no such consultation. Now compare that reporting to what Solicitor General John Sauer said during the oral argument. Quote, they initially said she and that she is, you know, again, then Secretary Chris Binom didn't consult at all, but it turns out she did. There is an exchange with the Department of State. So this interesting.

[Alyssa Murray]

Well, it's not just interesting. This brings up for me the man with the butterfly meme. Is this perjury?

[Kate Shaw]

Well, what is consultation, Melissa?

[Alyssa Murray]

It's probably not perjury, but it is proof positive that these people love to cut corners and make their paid lawyers look like absolute morons in court. Here's the question. Like there's all of this new additional evidence that the New York Times reporting has surfaced that this consultation did not actually occur. Is this going to be a situation where John Roberts, noted institutionalist, decides that maybe we can't go forward and decide this case because the record below is kind of all jacked up now. I mean, so maybe they decide that they're not going to decide this and they just kick it back to the lower courts to actually build a record based on the new factual evidence that's surfaced. Possible.

[Leah Littman]

That is what the plaintiffs in the TPS case involving the Haitian nationals have asked for. And it is kind of giving me flavors of one of my previous favorite cases.

[Kate Shaw]

And this, I think we were thinking of the same case, which is Department of Commerce versus New York, another hometown case.

[Leah Littman]

Yeah. So listeners, here's a quick refresher of that case. If you have not been with the POD since the beginning. Back in Trump 1.0, the administration wanted to add a citizenship question to the 2020 census. And Wilbur Ross, then the Secretary of Commerce, justified this unorthodox change on the ground that it was necessary to enforce the Voting Rights Act. Yes, that would be the same Voting Rights act that the administration just encouraged the court to nullify. The rationale was obviously bullshit. As several civil rights groups noted, adding a citizenship question would likely suppress census participation in certain communities. And after some pretty masterful lawyering by then ACLU attorney and now federal judge Dale Hoffman, a New York District Court. Yeah, New York District Court agreed that the Voting Rights act rationale was pretextual.

[Alyssa Murray]

And so then the administration ran directly to the Supreme Court and said, oh my God, a district court judge has totally had the nerve to call me out for my completely nefarious and pretextual rationale. And so I just want to note, it's so weird to be talking about this, this thing that happened back in 2018, because then it seems seem to us so novel and innovative. But now this is what they do every single day. Right. So they're always making stuff up. Courts are always shooting them down. Then they run to the Supreme Court and say, I can't believe they did this. They don't believe my pretext. And here we are. Same circus, different clowns.

[Leah Littman]

Yeah.

[Kate Shaw]

Anyway, we will see what the court does with this TPS case, especially in light of this new information. It raises, I think, the question, how much egg is the court willing to have on its face because of this administration? There was a limit in the first Trump administration. That is what we saw in the census case. The court was not willing to go along with that pretextual justification. The vibes feel different now. And we will see how different.

[Alyssa Murray]

Well, as the immortal Katie Heron would say, the limit does not exist.

[Leah Littman]

I mean, Donald Trump does now say there are no limits on his power hours, so this would track

[Kate Shaw]

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[Leah Littman]

Enough rank speculation though. It's time to dive headfirst into bad decisions season.

[Alyssa Murray]

We're about to drag em. Let's go.

[Leah Littman]

And to help with the dragging, we are so delighted to welcome to the stage one of our favorite friends of the pod, the one, the only, the Ellie Mistahl.

[Ellie Mistahl]

What's up, New York? Can I just quickly say, because you mentioned primary day already and I just want to remind everybody here and everybody listening to the show that in New York, there are candidates who care about the Supreme Court. Okay? There are candidates, they are running in a primary on Tuesday. They are not named Chuck Schumer and you can vote for them. And if you do vote for them and you say that you're voting for them because they care about the Supreme Court, that is a huge way to start to turn the ship of state that is the Democratic Party towards the kinds of reforms that I think a lot of people here agree with.

[Alyssa Murray]

All right, you just cut into your intro.

[Ellie Mistahl]

Sorry.

[Alyssa Murray]

Okay. This is my friend Ellie. I'm kidding. Ellie needs no introduction, but I'm gonna give you some because it's Juneteenth. All right, here we go. Ellie is the justice correspondent for the Nation and he is also the author of two New York Times bestsellers, Allow Me to Retort and Bad Law, both of which we've covered extensively on this podcast. He joined us at our live show at the Tribeca Film Festival two years ago. And the energy was honestly so, so chaotic. He was filling in for Leah who was recovering from her bike accident. But it was so chaotic that we were like, what would it be like if Leah and Ellie were on stage at the same time? And so here we are. Welcome, Ellie.

[Ellie Mistahl]

Thank you so much for having me. Yes. The principal at my kids school says that I am an agent of chaos of 70. There's that.

[Kate Shaw]

So let the wild rumpus begin.

[Ellie Mistahl]

This cocktail is. This cocktail is pretty good, but I can't help feeling a little. What's a little disappointed.

[Alyssa Murray]

Have some concerns.

[Ellie Mistahl]

Have some concerns when I drink it.

[Kate Shaw]

We are going to dive into the opinions as we just mentioned. But before we do, Ellie, wondering if you have any theories. We floated a couple about what on earth is taking these guys so long and why they want to go into the holiday week as they seem to want to.

[Ellie Mistahl]

Yeah. I think it comes down to two words. Birthright citizenship. If we win birthright. And when I say we, I mean we who agree in a multiracial, multi ethnic democracy where bigotry is not part of the constitutional right. Right. When I say them, I mean mouth breathing racists who got their asses kicked to Gettysburg and haven't gotten over. Right. So that's not, that's the distinction. Right. If the we win birthright, what does that do to the media on the way out the door? Right. So the court can put themselves in a position where they can win on birthright, uphold birthright citizenship and then run out of town. And then you got three months of mainstream idiot media being like, oh my God, the court is so impartial. They mean sometimes they do Republican things, sometimes they do democratic things, but really they're just trying to do the law. Like you get three months of that ridiculously bad narrative.

[Kate Shaw]

Well, and it's three months and they leave. And then it's the fourth of July. And so that dominates the kind of coverage of the fourth of July. I think that's a good theory.

[Alyssa Murray]

John Roberts in his office stroking a hairless cat. I did it, right.

[Ellie Mistahl]

I did it in the alternative. If we lose birthright, one of the things you have to remember is that these people are cowards. And if you're gonna, if you're going to take away a constitutional right, taking it away and then skedaddling out of town before anybody can. Right, right. And just, and just going to, as you were calling them, your, their emotional support billionaires and getting out of town before the, the reaction to that happens. And then by the time they come back to work in October, people will be all into the election cycle. They'll kind of get away with it. So whether or not we win or lose Birthright. I think dropping birthright and then leaving is their idea.

[Leah Littman]

Yeah. Okay, so let's go into the opinions we got. We got three last Thursday. One was in the case that we actually focused on during our live shows in California. Yes, ladies and gentlemen and non binary listeners, this is your Supreme Court and this is your Supreme Court on drugs. Because we got the opinion in United States vs Himani where the court held that the Second Amendment does not allow the federal government to disarm people just because they use drugs in violation of federal drug laws. The intro was something of a joke. The outcome here is pretty sane and in my opinion, probably correct. But of course, the court gave all of the wrong reasons for reaching said right result.

[Kate Shaw]

So the result in the case was unanimous and Neil Gorsuch had the opinion for the court, which probably gives you a clue about how the opinion read. As Leah said, right outcome, wrong reasons. And importantly, the majority emphasized that it was a very narrow ruling. All the court did was reject the Trump administration's view that the federal law could prohibit unlawful users of controlled substances from possessing firearms. The court emphasized it wasn't addressing questions about firearm possession by people who are addicted to drugs or firearm possession by people who are proud, presently intoxicated.

[Leah Littman]

Brett Kavanaugh.

[Alyssa Murray]

I will say that in rejecting the Trump administration's arguments here, the court made clear that, yes, it is actually more amosexual than the Trump administration, which is saying something right. The Trump administration had argued that the government could ban unlawful controlled substances users from having guns. And this wasn't the first time that the Supreme Court actually was more ammo forward than the Trump administration. This also happened a few terms ago in Garland vs. Cargill. That was the case where the Trump administration argued that federal gun laws allowed them to ban bump stocks. And the court said, nope, nope, not at all. Because amosexuality right?

[Leah Littman]

Yes, Love wins.

[Kate Shaw]

So because this is a Gorsuch opinion in a Second Amendment case, the court applied its ridiculous history and tradition Test from Nyserpa vs Bruin. Under Bruin, the court asks whether federal law at issue in the case is sufficiently similar to and consistent with the nation's historic tradition of firearms regulation. That's right. No matter how many times you say it or hear it, it just never makes any sense. Gun laws today have to look like ye olde gun laws, no matter how different everything else looks today or the laws get struck down. That is the test that's what the court applied here. The administration argued that historical laws that disarmed habitual drunkards and vagrants and the like were sufficiently similar to the federal law at issue in Hamani to satisfy the Bruin test. But the court said no, these laws, those laws, were all different. Although the reason that the majority gave for why those analogues were not analoguing were pretty unconvincing. Okay, Ellie, how much credit does Neil Gorsuch get here, especially for rejecting a view that should have been rejected, but for using these wildly unconvincing reasons and a really damaging and destructive method to get there?

[Ellie Mistahl]

Look, I fundamentally agree with Neil here. When you go back and look at Richard the Longshanks and whether or not he could have his sword on, it's incredibly stupid, right? Like, it's incredibly stupid that in the year 2026 we have to go back to habitual drunkenness laws around the Founding to figure out if somebody can have an Uzi. Like, that's just dumb. Now the problem is that when you make that dumb argument, yes, Gorsuch is totally capable of ripping it to shreds, as he should, right? Because there's no way that you can argue realistically that the Americans at the Founding were not completely sauced when they were like, hey, let's take on the British, we'll kick your ass. Like, that's not a sober decision, right? Nobody's stone cold sober being like this. Tea overboard.

[Safeway/Albertsons Advertiser]

Yeah, take.

[Ellie Mistahl]

That's not. That doesn't make no sense.

[Leah Littman]

Right?

[Ellie Mistahl]

So of course, of course the people at the Founding were drunk while armed like that. That's a thing that happened. And if you're gonna say that, because that's a thing that happened literally 250 years ago, then that's a thing that has to happen now. Well, then you're done. Right? And so I think Gorsuch was right to rip up the analogy where I'll give him a little bit of extra credit. And I can't believe I'm saying this about the Last justice of the Mohicans, but

[Alyssa Murray]

I manifested this.

[Ellie Mistahl]

But he didn't get tripped up on the difference between alcohol and weed, right? He didn't get tripped up on the difference between intoxication. He knew, I don't know if he's had some Colorado candies in his past, I don't know. But he didn't let that stop his analysis. He analogized correctly the modern day use of marijuana to the historical use of alcohol and just kept on going. So I'll give him a little Bit of credit for not having the hangar like lodged so far up his ass that he couldn't see that.

[Leah Littman]

So Ellie already gestured to the founding Fathers being sauced. And it turns out Neil Gorsuch really agreed with that. So this opinion is basically a callback to Neil Gorsuch's greatest hits from the oral argument in Hamani, which if you recall, was basically giving what if Pete Kegsbreath were a Supreme Court justice vibes. The Founders were totally frat bros energy. So here is chapter social chair Neil Gorsuch at the oral argument.

[Ellie Mistahl]

Habitual drunkard. The American Temperance Society back in the day said eight shots of whiskey a day only made you an occasional drunkard. We have to remember the founding era. If you want to invoke the founding era to be a habitual drunkard, you had to do double that.

[Grainger Advertiser]

Okay.

[Ellie Mistahl]

John Adams took a tankard of hard cider with his breakfast every day. James Madison reportedly drank a pint of whiskey every day. Thomas Jefferson said he wasn't much of an user of alcohol. He only had three or four glasses of wine a night.

[Alyssa Murray]

Neil Gorsuch was a theater kid, right?

[Kate Shaw]

100%.

[Ellie Mistahl]

Look, he's right, of course, but he. But you notice how he doesn't finish the sentence, Right?

[Alyssa Murray]

But he wasn't the only one who's really bought into this. So Chief Justice John Roberts, noted institutionalist, allowed Neil Gorsuch to write this opinion and to memorialize this episode of drunk history in the annals of the United States reports. And to be very clear, Gorsuch takes this opportunity to go on and on and on about this culture of copious drinking that existed at the Founding, including all of these anecdotes about how Madison and Jefferson and Adams were just chugging and chugging and chugging, which happened to be a lot. It does prompt me to ask though, when this court is taking up the 14th amendment, are they also willing to talk about how many people these folks owned at the time? Because it was also a lot like, why won't we talk about that?

[Kate Shaw]

No, it's actually illegal to talk about that, Melissa.

[Leah Littman]

Neil Gorsuch's personal episode of drunk history was just focused on how the law protects America's history and tradition of getting hammered. Ellie, do you think Brett Kavanaugh had any qualms about joining this opinion that basically normalized being shit faced?

[Ellie Mistahl]

I do not. Brett Kavanaugh likes to join opinions that justify his own behavior. He does. You know, there was the opinion earlier a couple terms ago where he legalized bribery because we believe that he's probably kind of into that as well. So I don't think Kavanaugh had a problem with that. I think what the conservatives in the majority did that was really a disservice, and you saw it even in that clip that you played, is that they never finished the second half of the sentence. Yes. The founders were a sauce. They were also using rifled muskets. Right. I would love to take the Pepsi Challenge with that. Bring me Snoop Dogg. Put him right here. Give him a whole bong and then let's see how long it takes him to reload a musket. Just let's see. Right. And let's see how many like innocent people he can mow down while he has to reload the musket one ball at a time every time before he takes another shot. Right. Like that's the other part of the sentence that these guys never got to. Yeah.

[Leah Littman]

Yes.

[Kate Shaw]

No, absolutely. Yeah. And also, you know, we're not going to re litigate now. Two decades of Supreme Court second amendment jurisprudence. But they're not keeping guns at home for personal self defense anyway. Right. Like firearm possession was in conjunction with militia service or potential militia service at the founding anyway. But obviously all water under the bridge at this point. But I do think their disinterest in the difference in firearms between the founding era and today is conspicuous in all of these second amendment cases.

[Alyssa Murray]

Did James Madison have a bump stock?

[Grainger Advertiser]

Yes.

[Ellie Mistahl]

Yes.

[Kate Shaw]

You're not allowed to ask. That is the problem. So the history of these heavy drinking, fratty founding fathers was not the only aspect of the oral argument in the case that then surfaced in the opinion. In fact, Justice Gorsuch included a number of callbacks to the oral argument. And just to refresh your memories, here's a snippet from one of the other memorable moments in the Hamani oral argument.

[Leah Littman]

Justice Sotomayor asked you about someone who takes Ambien to sleep. So let's, let's assume that someone takes their spouse's Ambien prescription.

[Kate Shaw]

The spouse takes it too lawfully with the prescription.

[Leah Littman]

But then, you know, you take it unlawfully because you break into your spouse's Ambien jar. Yes. That is Amy Barrett asking a hypothetical about when a hypothetical spouse pilfers from the other spouse's hypothetical jar of Ambien. Well, guess what? Although he hangs with the originalists, Neil Gorsuch is not very original. He hepeeded Amy Coney Barrett and included an Ambien hypothetical in the opinion.

[Alyssa Murray]

Sir. Sir.

[Ellie Mistahl]

It's so oddly specific. Right.

[Grainger Advertiser]

It Is

[Leah Littman]

also Ambien doesn't come in a jar.

[Alyssa Murray]

So you have a jar of Ambien. You have a jar of Ambien. You've got bigger problems.

[Leah Littman]

Yeah. It was obviously an Amy Barrett Easter egg. It did make me wonder, was it intended for us? Does he hate listen and does he know how much mileage we got out of that Ambien hypothetical on the pod, or is he also Ambien maxing now? Maybe out of a jar?

[Alyssa Murray]

All right, there were also some concurrences in the Hamani case that were absolutely wild, and we really have to talk about them. But before we get to them, we want to play a little game with you, the audience. Are you ready? Okay, so it's just like law school. We're going to ask the questions and you're going to shout out answers. Okay? Are you ready?

[Kate Shaw]

Just a teaser to the longer game. We're going to play later to warm you up.

[Alyssa Murray]

These are warm ups. Okay.

[Kate Shaw]

All right, so Hamani, and if you

[Ellie Mistahl]

get it wrong, they'll make you cry. Sorry, maybe that was just me and Russell.

[Kate Shaw]

No. Yeah. I think Elena Kagan is a tougher user of the Socratic method at least than I am.

[Alyssa Murray]

Speak for yourself.

[Kate Shaw]

Okay. Right. I'm sure Melissa has made students cry in her day. I would not be surprised. Okay, question. Which justice used his concurrence in Hamani to normalize weed usage?

[Leah Littman]

Shout it out.

[Kate Shaw]

Yes. You guys read the concurrences. Justice Samuel Alito. Stay tuned. We are going to come back to this.

[Leah Littman]

Which justice wrote about taking a mild gummy? It was Neil Gorsuch, or as we're now calling him, Neil Mild Gummy Gorsuch.

[Alyssa Murray]

That was too easy because he actually discussed that at oral arguments. He talked about gummy bears.

[Kate Shaw]

He said gummy, and then he quickly added bears. So it didn't sound like he was too comfortable with just references to gummies. In addition to the mild gummy reference, the opinion noted the proliferation of state laws obviously decriminalizing marijuana and federal downgrading of some marijuana from Schedule 1 to Schedule 3. It also observed correctly, that millions of Americans regularly use marijuana and that all of those users are certainly not unusually dangerous. Which prompts me again to reference the butterfly meme that Melissa already referred to and to ask is the kind of discussion of the millions of contemporary marijuana users. Is this originalism? Is this history and traditional no? I think the answer is no. But. Okay, back to the concurrences because it is time for an evergreen segment, which is we need to talk about Clarence Thomas,

[Alyssa Murray]

I'll begin. So in Hamani, Justice Thomas wrote a concurrence where per usual, he said that he would go further. And for context, four years Justice Thomas has had a B in his bonnet about the Commerce Clause. So the Commerce Clause is part of Article 1, Section 8, and it authorizes Congress to regulate interstate commerce. And it has been a major head of congressional authority for enacting legislation, including major civil rights legislation. Now obviously Justice Thomas has a problem with the people's elected representatives enacting laws to protect the the said people from rampant discrimination. Right? So for years he has argued that the Commerce Clause should be limited. And in this concurrence, which nobody joined in Hamani, Justice Thomas decided to hard launch his view that the Commerce Clause does not allow or authorize Congress to enact federal gun legislation solely because it is not enough for guns to travel in interstate commerce. That's not enough to trigger the Commerce Clause. I will just say that if this theory is accepted, it would not only invalidate the law in question here, but maybe other federal gun laws. It likely would also invalidate other civil rights laws that are enacted under the Commerce Clause. So this is another one of those cases where Justice Thomas decides to sow a few seeds for the future.

[Ellie Mistahl]

I can't emphasize how insane his argument is. Again, as Professor Murray just explained, the interstate Commerce Clause is not something that you need to go through three years of law school to understand. If something is going from one state to another, that means the government has the right to regulate that. And Thomas is saying no. Just because something is going from one state to. To another, that's not enough to regulate from. Like what the is he talking about? It makes absolutely no sense. It's like the. I'm trying to think of an analogy for exactly how stupid this is, and I'm falling short because it's the dumbest thing that I've ever heard. Like, you can't. How could you possibly say that being in interstate commerce does not trigger the interstate commerce clause, Right? It says, like, it's like saying being pregnant does not trigger you being pregnant. No, you, you are pregnant. It's there. We can all see it. Right? And so, and so when you. So then what you have to start to think through is like, what kind of insane person writes this down? Like, what kind of addled person, like, puts pen to paper to write this down and explain to the entire world how insane he is? And then you remember his billionaire support friends, right? And then you remember that Clarence's Thomas entire almost now 30 year history on the bench has been as the troll under the bridge, the poison pill. You know, I like to say the shit in your ice cream, right? Like you know, you can, you can have the beautiful Sundays, just little, a little corner of shit just right there and you can't unsee it. You can't not know that it's there. And he's been incredibly effective because he will make the argument that is ridiculous in his time, but then over the course of years or decades, the rest of the conservatives can rally around and push his insane idea forward, right? So the reason why this concurrence is here, insane though it may be, is that he's telling the Wayne lapierre of the world this is the next front. Like the next front is to fight the government's ability to regulate guns at all. That's what he's giving out. And he knows he's gonna lose now because it's stupid. But just. But he has shown over the course of his career that just because he's stupid doesn't mean he doesn't win.

[Kate Shaw]

So I think it's important to underscore this is the theory would invalidate all federal gun laws and as Melissa alluded to maybe all federal civil rights laws because the commerce clause is the constitutional foundation for those laws too. And maybe that actually is the long game that Clarence Thomas.

[Alyssa Murray]

Happy Juneteenth.

[Kate Shaw]

Exactly. One other small detail about the concurrence that I just have to mention at the end. Thomas says, hey, it's been 26 years since we struck down a law under the commerce clause and. And I'm just jonesing for a little commerce clause action. That's an actual argument he kind of makes.

[Leah Littman]

He thinks the court is going through a commerce clause dry spell and Clarence Thomas is horny as fuck for a commerce clause. Freak off. Here's my actual hot take. The theme for last week's opinions was that the girls are fighting. There were a ton of intra right wing fights about what the right wing dogma is. So in Hamani there's this intro right wing fight about the commerce clause. Should we use the commerce clause to take us back to the stone age? Clarence Thomas says yes. Sam Alito says no. Then there was another intra right wing fight about whether the right cares about the second amendment or prosecutors more here Justice Thomas is suggesting maybe let's take down all gun control law. Sam Alito writes separately to say say no. I actually like laws that prohibit felons from possessing firearms. And that's going to lead to a divide between him, Thomas Gorsuch, et cetera.

[Ellie Mistahl]

Can you guys explain to me why my former professor Elena Kagan joined Alito's concurrence?

[Leah Littman]

Yeah, because she wants to capitalize on the intra right wing fights and basically ensure that the court doesn't strike down felon and possession laws.

[Kate Shaw]

And.

[Leah Littman]

And so my guess is she was encouraging Sam Alito along and thought, okay, I'll like sign on to this and kind of make him own it.

[Alyssa Murray]

Yeah, yeah, that's the ticket, right?

[Leah Littman]

You're doing amazing, sweetie. Sam, you're doing smart.

[Alyssa Murray]

Such a big strong man.

[Grainger Advertiser]

Okay.

[Alyssa Murray]

All right.

[Ellie Mistahl]

God,

[Alyssa Murray]

Susan K. Collins made me do it.

[Ellie Mistahl]

No, I'm laughing because it's just.

[Leah Littman]

Zero regrets, Melissa. Zero regrets.

[Kate Shaw]

So many.

[Ellie Mistahl]

I'm laughing just cuz like it's embarrassing how easily it is to handle men. Right? Like that would work on me.

[Alyssa Murray]

That does work. Right.

[Ellie Mistahl]

Like that does work on me. I was used car shopping with my wife yesterday and I mean, she was literally just like, no. I was like, that car's too big. And she was like, no, honey, I think you can handle that kind of. I was like, yes, I can. In fact, you're right.

[Alyssa Murray]

All right, there are two other concurrences that we should mention. The first concurrence was by Justice Jackson, who is joined. Who is joined by Justice Sotomayor. And per usual, Justice Jackson continued her righteous crusade against the incredibly fakacta and terrible Bruin history and tradition test. And she argued.

[Kate Shaw]

The drunk history and tradition test.

[Alyssa Murray]

The drunk history and tradition test. So she argued that the court should abandon Bruen's drunk history and tradition test and instead return to the test that had been in place before, which is basically a means and ends test, where effectively those considering and reviewing firearms regulation have to think about why the law was passed in the first place and then consider whether the imposition on the second amendment right is justified given what the legislature is trying to achieve. Seems very normal and reasonable. Definitely not going to get five votes, right? Nope. Nope. All right, Ellie, what did you think of KBJ's concurrent? You're vibrating, so I know you've got ideas.

[Ellie Mistahl]

I love this concurrence. I love it on two levels, Right. One, it is Juneteenth. That's the blackest ass concurrence you're gonna see. Right? Because it's, it's a little. It's a little bit of like she's saying, you know what? I. I do not truck with Bruin as a staff label or motherfucking Crew like, she is gonna object to Bruin for the rest of her fucking life, and she's never gonna let you forget it. And I just. I love. I love that aspect of it. To just object and object and object every single time. So that's really cool. But the other thing that. The reason why that concurrence is great is that it gives you the other answer for how to reach this conclusion that everybody up here agrees was the right conclusion. Right? And so one of the way the originalists sometimes try to get people, try to trick people is that, well, if we don't do originalism, what else can we do? There's no other way. No, idiot, there's always another way. And Jackson lays it right out. As she says in her concurrence, we could have decided this case by asking familiar questions that we used to ask before we did this dumbass Bruin thing. And one of those questions in this case would have been really simple. Does smoking weed make you a greater risk to misuse handguns? Does anybody think that it does? I mean, like, does anybody in their right mind think that smoking weed makes you more of a danger to have a gun?

[Alyssa Murray]

Okay, so I'm gonna interject right here because not only did KBJ say this, it's also something that Alito said in his concurrence, like, so maybe the girls aren't all fighting, Right? So Justice Alito also wrote a concurrence in which he was joined by Elena Kagan for the reasons that Leah has to. And basically, in this concurrence, Justice Alito talked about how marijuana use has basically become normal. Lots of people smoke a doobie, and sometimes a doobie is just a doobie, said Justice Alito. I'm paraphrasing. Obviously, that shouldn't stop them from having guns. Obviously.

[Leah Littman]

I read this concurrence and I seriously thought he was fucking with us. Like, I mean, this was wild to me. I just did not have Sam Alito writing a concurrence that rested on the normalization of pot on my October term 2025 bingo card. And yet he wrote, quote, marijuana consumption is increasingly common in this country. It is widespread and increasingly considered socially acceptable in many quarters. Is this the rapture, or is this just what working with Neil Gorsuch does?

[Alyssa Murray]

Okay, but wait, wait, no, no, wait a minute. Like, imagine being so exercise, having a wife who is so exercised about the pride flag, but you're totally cool with marijuana.

[Leah Littman]

Hot.

[Alyssa Murray]

It also.

[Kate Shaw]

Everything is so personal with him. And it does feel like there just must be some people in his life who are recreational marijuana users, I don't think, like in his immediate household like he and Martha Ann, although I guess you never know. But it felt like maybe that was it.

[Ellie Mistahl]

See, I'm not going to give a leader. I'll give Gorsuch credit. I'm not going to give a leader credit. And the reason why is because I think he writes that concurrent specifically because he still wants to put brothers in jail. Like, people need to remember what the law is actually used for. You know, I saw a lot of the media saying this is this. This is the Hunter Biden statute. A little bit. Not quite as. A little bit different. I don't want to get into the weeds with that. But the way this law is used most often, let's say, right, is the cops stop somebody, they think that they're a drug dealer, they think they're a gang banger, they think that they're a bad guy, but they don't got anything on them. Right. They don't have any crime that person committed. They stop somebody for driving while black and the tail light was just out. Right. But what they do find is a gun. All right, we're gonna get you on a gun charge. Wait, wait, your gun is licensed. Damn. All right, well, you have a dime bag, we're gonna get you on the drug charge. I mean, it's just a misdemeanor. You know, it's two ounces of pot. Oh, but you got the pot and you have the gun. Now you can go away for 15 years and the carceral state starts going, right? Because you've got a little. You got a drug offense with the gun. Even though it's a legal handgun now you can get the carceral state rolling on a person. Right? And this opinion takes a big chunk out of that carceral state because weed is so ubiquitous. But there are other drugs that Alito is still trying to leave space to be like, all right, we're going to let you off on the weed because it's habitual, because it's like alcohol, because what. But the crackhead. No, no, your ass is still going to jail for 15 years. Right? That's. That's what he's trying to still leave space for. With this concurrence, they still want to be able to stop people for minor infractions and then ratchet up that infraction fraction to 15 years in jail, which starts an entire carceral process.

[Kate Shaw]

One other possible theory, which that all sounds very plausible, is that there were echoes I thought in the Alito concurrence of this dissenting opinion from Justice John Paul Stevens in the case that is colloquially known as the bong hits for Jesus case, which some people might know, that was a banner that some high school students held up and then were punished for doing so. And they raised a First Amendment claim and the court ruled against them. But Stevens dissented and just wrote this amazing dissent that was like talked about his own childhood in Prohibition because he had lived through it as a kid and basically said essentially, you know, our war on, on marijuana now is a lot like our experiment with outlawing alcohol when I was a boy. And we're going to kind of come around. And anyway, my very charitable view of the Alito concurrence is that he's come around to the Stevens position. So it's at least possible, I think

[Alyssa Murray]

Ellie's take back Ellie's take or just

[Leah Littman]

vote who's with Ellie? Okay.

[Kate Shaw]

For those listening at home, the audience is with Ellie too.

[Alyssa Murray]

Who's here for Kate's. Justice Stevens advocating for term limits.

[Kate Shaw]

Thank you. I see a few hands in the crowd. Real ones. Thank you.

[Leah Littman]

So we did get two other opinions. Just going to quickly summarize them. This was kind of a Fed Courts fest. In one case, Hunter v. United States, the court said 8 to 1 that even though a plea deal with the government agrees that the defendant won't appeal their sentence, that doesn't prevent a defendant from appealing a claim that would result in a miscarriage of justice. This case involves some intra right wing fights between Justices Barrett and Thomas, in particular about supervisory power and procedural common law. Again, stuff that really matters to the right. Then the second opinion was the Rooker Feldman opinion. I know you all wanted us to spend the entire episode on this. I apologize. This case, TM versus University of Maryland Medical System, the court held 5 to 4 that the so called Rooker Feldman doctrine applies to state court trial and intermediate appellate decision. So Rooker Feldman had said you can't appeal or effectively ask a federal court to invalidate a state supreme court opinion. And TM said that applies to state trial and state intermediate appellate court decisions as well. This too involved the intra right wing fight between Justice Thomas and other Republican appointees. Since Justice Thomas wanted to take the position that Rooker Feldman is correct, which

[Alyssa Murray]

that tracks because everybody hates Rooker Feldman.

[Leah Littman]

Exactly, exactly. Exactly.

[Kate Shaw]

So the intra right wing fights are this kind of theme that Leah has identified as linking the three cases we got last week, we're talking about today. There is also like a lower brow through line, which is these are all cases about drugs.

[Leah Littman]

Different okay, rfk,

[Ellie Mistahl]

we all went to

[Kate Shaw]

the White Castle Hunter is a case about the individual wanted to appeal a condition of a sentence which involved taking medication he didn't want to take. And actually the Rooker Feldman case also had to do with involuntary confinement and the administration of antipsychotic medication. So that is another potential through line for cases.

[Leah Littman]

Potential, yeah.

[Kate Shaw]

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[Kate Shaw]

So we have one more topic that we want to cover before we let Ellie off the hook for the rest of the night, and that is SCOTUS reform. Okay, so you all in the audience are here on a Saturday night to talk scotus.

[Ellie Mistahl]

Why?

[Kate Shaw]

Because.

[Safeway/Albertsons Advertiser]

Because.

[Kate Shaw]

Melissa.

[Ellie Mistahl]

Oh, thank you.

[Kate Shaw]

We love you, too. Thank you. But also, I think, because you understand that something has gone very, very wrong at the Supreme Court. And yet, although you all know this, too many people still don't realize it. And there are definitely going to be a lot of end of term stories praising the court for slowing the pace of these insane pro Trump decisions on the shadow docket, likely for rejecting the flagrantly unconstitutional birthright citizenship executive order and the lawless attempt to fire Fed Governor Lisa Cook. So it'll be great if those predictions just there come to pass. But this court will still be an enormous problem in need of a solution. And you all can be key messengers in helping push for a solution and in helping to bring people about to understanding that this court is a genuine threat to a functioning democracy.

[Alyssa Murray]

May I allow you to retort?

[Ellie Mistahl]

Obviously. Obviously, I think court reform is the most important issue facing our country, and it's the most important issue in the 2026 election, the 2028 election, the 2030. Like it is, it is the thing and the reason why. And I'll take it back to Louisiana vs Calais, the decision that, as you've all talked about, killed the Voting Rights Act. The historical doppelganger for Louisiana vs Calais is Plessy B. Ferguson. Right. It's the, that's the case that affirmed segregation. Right. How do you get over Plessy? Right. How do you, how do you overcome the segregation in Plessy? Well, you have to have the 1964 civil rights act. You have to have the 1965 voting rights act. You have to have, 1968 fair housing act. But none of that happens before you have the 1954 decision in Brown v. Board of Ed. You change the court first, and then you have the ability to pass all the legislation that you want to fix the problem. Changing the court doesn't fix the problem, it opens the door so the problem can be fixed. If you don't control the court, if you had in 1964 the same court that you had in 1896 when Plessy was decided, guess what happens to the Civil Rights Act? It gets ruled unconstitutional. Guess what happens to the Voting Rights Act? It gets John Roberts. Guess what happens to the Fair Housing Act? It gets Clarence Thomas. Like, you don't get these laws, these pieces of legislation unless you change the court first. And that is the message that I try to give to every person, especially young people. I say this all the time. I can go to a bar in Texas. I mean, I don't like to go to Texas, but like when I do I go to Austin, but I can go and then like just fly out. Like, I'm not trying to stay, but I can go to, to a random conservative person in Texas and talk to them about the Supreme Court. And they will tell me, well, I don't know about no franchise, but I know I gotta get my guns. I'm gonna keep my guns. I gotta keep my court. They know that, right? You go to a Denver, I can go to Brooklyn and I can find the crunchiest hippie, hippiest Birkenstock wearing guy at a beer garden throwing axes, right? And he can be like, oh my God, dude, are you using a prop plastic straw? You know, that's so bad, man. Like, microplastics are terrible for the environment. I'm like, yeah, I know. We have to have like a Green New Deal. Yeah. So we have to do court reform, right? Like, what court? What? No, man, we just need a Green New Deal. Like, you don't get a Green New Deal if you don't reform the court first. Because if you don't do it first, then the Green New Deal gets overturned before breakfast by these people. Gorsuch and Alito fight over who gets to write the opinion. But punting the Green New Deal into the sun. So if you care about any of the brilliant, wonderful legislative fixes that you can think of to restore abortion rights, to restore the Voting Rights act, to do, to end gerryman, none of that matters if you don't take control of the Supreme Court first.

[Leah Littman]

Preach.

[Alyssa Murray]

You preached a whole word. That's a whole. That was the whole word. Do you hear this, Ellie, is tell your friends. Tell your friends. Like, seriously, we remember that time we went to the White House and we were like, are you guys going to talk about Lee is having, having ptsd?

[Leah Littman]

Yeah. I just cannot.

[Alyssa Murray]

We were at the White House. And we were like, are you guys going to talk about court reform in the upcoming election? This was after Dobbs. They're like, we don't think people can understand it.

[Leah Littman]

I'm like, you know what?

[Alyssa Murray]

They can understand not having rights.

[Kate Shaw]

Yeah, yeah. We have a ways to go in kind of getting people on the legal and political left to understand how central the Supreme Court is. But I do think that Ellie is going to help make hot Supreme Court reform summer happen, and so can all of you.

[Leah Littman]

Thank you. Nothing but respect for my Chief Justice, Justice Ellie Mistahl. That is the Supreme Court reform that we need.

[Alyssa Murray]

I mean, Kelly Mistahl replacing Clarence Thomas.

[Leah Littman]

Manifest it.

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[Alyssa Murray]

You heard it here, folks. All right, let's go very quickly through some legal news. We are going to start first with some legal news made possible by John Roberts and Company. So, first of all, we're going to begin by laying the blame for the return of the insurrectionist slush fund right at the feet of John Roberts and Company. Hear us out. All right, so in the immunity decision issued a few terms ago, the court told President Donald Trump that he had unfettered plenary authority over investigations, prosecutions, and the doj. What could go wrong? The slush fund for January Sixers is how the president, in tandem with his auditioning Attorney General, Todd Carte Blanche, have wielded that power.

[Leah Littman]

Yeah. And then second, in a bunch of shadow docket orders, the court turned its cheek to very substantial allegations that the Trump administration had defied lower court orders, even going so far as to grant the administration administration extraordinary and discretionary relief from orders it had very likely defied. So what did Todd Blanche do this week? He said fuck you to the federal courts, just as Emile Bovet, now the Dark lord of the 3rd Circuit, but previously a high ranking official at DOJ, had allegedly encouraged the administration to do if and when courts tried to stop them.

[Kate Shaw]

And in one of the cases challenging the slush fund, the Eastern District of Virginia concluded the case was not moot and enjoined the administration from moving forward with the slush fund unless Blanche submitted a declaration saying the slush fund was indeed dead. Well, guess what Carte Blanche decided not to do to submit that declaration. Instead, the department submitted a filing stating that such a declaration was unnecessary. It was frankly rude for the court to even ask, quote, literally from the pen of John Roberts in the immunity decision, quote, such declarations are unnecessary, and the compelled testimony of senior officials from the executive branch implicates serious separation of powers questions.

[Alyssa Murray]

Oh, really? These are the separation of Powers questions you have. I mean, this is giving a ton of Cherie Whitfield, who gon check me boo vibes, right? Yes. If you've been to this pod before, you know, it does make you wonder. Why would Todd Blanche not want to submit to a federal court, in writing, under penalty of perjury, a statement saying that the insurrectionist slush fund had been dropped off at a local fire station in a lockbox and was now abandoned? Why wouldn't he do that? Why would he be afraid to do so? Is it possible that maybe the insurrectionist slush fund is going to make a comeback, like Jason in Friday the 13th?

[Kate Shaw]

Is this possible?

[Leah Littman]

Yeah. It also does make me wonder, though, why is he writing things in briefs that he won't swear to under penalty of perhaps perjury? Like, what are these legal briefs to you? Glorified blog posts? It's just bananas.

[Kate Shaw]

Okay, a little bit more legal news to cover. And one is, I think, maybe complicated, but mostly happy news, which is we did get the restoration of the John F. Kennedy center for the Performing Arts.

[Ellie Mistahl]

Let's go.

[Kate Shaw]

I mean, there was something quite profound about kind of getting to see the removal of Trump's name from the Kennedy Center. This kind of ruling and then its implementation was honestly a concrete reminder that the courts, and in particular the lower courts, do matter. And it did feel like this kind of tiny taste of what it could be like post Trump, as we try to undo the damage, physical, structural, and constitutional that this administration has wrought, and also how hard they're going to fight to prevent that, as evidenced by the fact that they put tarps up to cover the removal of the name. And it's still not entirely clear that all of the letters are gone because we haven't been able to confirm it with our own eyes.

[Alyssa Murray]

All right. There's so much news to cover, and we don't have all night in this theater. Let's just be honest. We've got to let you guys go home at some point, but we could not let you leave without covering the fact that our president, the commander in chief, lost a big old war this week. You think? I'm talking about the war with Iran and the memorandum of Understanding that basically gives Iran money to rebuild, allows them to continue operating the Strait of Hormuz and maybe eventually charging fees for it, and maybe continuing to have nuclear capabilities, abilities, all things that we said we got into this war to stop. I'm not talking about that war. I am talking about the president's war with Mother Nature and possibly the Color wheel, right? Yes, listeners, this is a reflecting pool subtweet.

[Kate Shaw]

Yes, we cannot get enough of this story, can you? Like, it's just too good. So, as we have obviously talked about, and I'm sure you're all aware, Donald Trump undertook a $14 million renovation, slash defacing defilement of the reflecting pool this spring, only for said reflecting pool to be immediately overtaken with algae.

[Alyssa Murray]

Sometimes nature is healing.

[Kate Shaw]

Yes, but obviously the swamp story got even swampier this past week when the Times reported that a contract to purify this algae ridden reflecting pool was awarded outside of the competitive bid process that is standard for most national park services contracts to a company held in trust by a Trump friend and donor who also happens to be the president's neighbor at Mar a Lago.

[Leah Littman]

And because it always gets worse, said recipient of the million dollar no bid contract had previously been convicted for bribery. And the piece de resistance is that the name of this company is, and I'm not making this up, Green Water Services.

[Alyssa Murray]

They tried to tell you. All right, so to close out this segment, I think it's time to offer some unfiltered thoughts about the reflecting pool. Leah, why don't you go first?

[Leah Littman]

I love this. This is the new maga Make Algae Great again. I did wonder, did Green Water Services sign a memorandum of understanding with the algae in Versailles? Right. Like unconditional surrender to the algae. Just like the memorandum of understanding is a worse version of the deal that Barack Obama made with Iran, this Green Water Services is a worse version of a Green New Deal. This is their Green New Deal. Yeah, that's all I've got.

[Alyssa Murray]

So in addition to turning the reflecting pool Shrek green, there's also the fact that Greenwater Services was also charged with refacing the pool, so they had to repaint it, and now it seems like the paint is peeling. Like, the reflecting pool was fine. There was nothing wrong with the reflecting pool. Right. I mean, this again, is the president's edifice complex writ large. It's like, sir, we didn't need this, but if you're gonna pick someone to do it, maybe pick someone who's good at his job. But you could say that about the whole Cabinet, right? You're gonna do it. Pick somebody who's good at his job.

[Kate Shaw]

And I mean, you know, just a sort of prosaic observation, but I think an important one is that we do have, you know, as like, uninteresting or unsexy as it is. Like, we have processes in place for a good reason. Like there's a bid process to make sure that people who get these contracts know what they're doing. And if there is a silver lining here, I think that government processes and government workers can get a bad rap, I think in a cross ideological fashion. But like maybe the complete hash that these unqualified like lackeys have made of the reflecting pool and owed the federal government writ large will remind everyone before it is too late of the value of a federal government that is merit based and it actually does the work of the laws and the people. So again Kate, that is my hope for the Reflecting Pool.

[Alyssa Murray]

What we're going to do from this. I honestly didn't think you could do it, but you have managed to wring a silver lining out of the reflecting pool. And can I? Let's go.

[Kate Shaw]

And then if we can all get a little piece of the blue paint peeling from the bottom just as a souvenir, I think we'll be doing all right.

[Leah Littman]

This was a DEI contract, A true Dick's ex husband's imbeciles contract. Absolutely.

[Kate Shaw]

And we are seeing the effects.

[Leah Littman]

Yes. And just to take it back to the Supreme Court for a second, you know Kate, you were talking about how government can and should be full of experts based on merit when not if the Supreme Court overrules or just limits Humphrey's executor and gives Donald Trump the power to control who heads all of these agencies. He they are going to be making it possible for him to install people at these agencies who will engage in this kind of grift and make government just a spoil system rather than a meritocracy run by experts.

[Alyssa Murray]

So I love the Gilded Age.

[Leah Littman]

Yeah, the re Gilded Age.

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Good news.

[Kate Shaw]

It's coming back.

[Leah Littman]

Yeah.

[Kate Shaw]

Okay.

[Leah Littman]

So as we always do at the end of our episodes, we will offer our favorite things and then we will have one favor to ask of you. So I will start with the favorites. My favorite, one of my favorites was Barack Obama's speech at the opening of the Presidential center, specifically the part where he shouted out quote, those ordinary people in the Twin Cities who braved frigid temperatures, risked their own safety standing shoulder to shoulder to look out for their neighbors and sometimes for strangers because they knew they that was the right thing to do. We actually have some people in the audience tonight from Minnesota so wanted to shout them out as well. One other just small thing, sappy note. So this past week, week the three of us learned that an article that we have co written that we've referenced on the podcast but haven't actually released into the wild was a recipient of the American Constitution Society Kadehi Prize for Regulatory and Administrative Law and in like a very rare against type silver lining positive message for me. I just wanted to encourage everyone to find their own people like women. Working together is incredible. Professional networks of women, female friends are the best. And I feel like. One of the reasons why I wanted to we wanted to start the podcast, I'll just speak for myself, is like this persistent feeling that women are just undervalued in the legal profession, the legal academy. And so creating this space where we could do our own thing and do it for ourselves was just a wonderful opportunity and I am just very grateful for all of the things that have come from it.

[Kate Shaw]

Amen. Second, everything Leah just said and she mentioned President Obama's speech at the opening of the Presidential Center, I will also mention Michelle Obama's speech there and it was extraordinary. Watch it, you'll cry. I am sure it'll get both joy and trauma that we have come so far from sort of what we saw on display in the opening of that center. And just on a quick personal note, so all of the former administration staffers from the Obama administration were invited to go to the opening last week. And I was a lawyer in the administration and I got an invitation and I had all of these like end of school year obligations with my kids and I didn't think I could swing it and so I didn't go. And so I've watched with a heavy dose of FOMO all of the incredible videos and images from the center. But I mean, I'm kind of glad I just got to experience it the way everybody else did. And I have to say that in the same way we started with the Knicks, we'll end the show with the Knicks. But the victory and the kind of ensuing joy felt like it restored some balance in the universe. It did feel like the opening of the Obama Presidential center in Chicago was like the real 250th anniversary the country deserves. Like we have been better before. There's no guarantee, but we can be again. It's going to take a lot of work, but I did feel a lot of optimism in the last week. And even though I probably feel more than my co host at times, it was much more than even I have felt in a long time. And I'm grateful to the Obamas and the folks who put all that work into making that center such an extraordinary place. Go see it if you haven't.

[Alyssa Murray]

That's all.

[Kate Shaw]

Maybe one related piece, I'll say since the end of our show is often a Jamel Bowie appreciation space. He had a recent column, Obama and Mamdani Show How It's Done, which I think just sort of encapsulated a lot of the themes I just shared. So those are my favorite things.

[Alyssa Murray]

So going last means that you're pretty much plus one ing much of what was said before. So I will plus one. I really enjoyed the Obama speeches at the opening of the Obama Presidential Center. I loved seeing seeing Malia and Sasha all grown up. So cute. All of this, I thought was an antidote to the nonsense that we saw on the White House lawn earlier this week. And I don't want to bring down the vibe, but it's Juneteenth so I'm going to call it out. I know a lot of people were really incensed about Josh Hokut's vile remarks about Mrs. Obama and I'm just going to implore you to let it go right? That man has a painted on beard and looks like a thumb, right? He's got bigger problems. He got bigger problems. Forget him if it really makes you mad. And again, this is not me doing a Michelle Obama. When they go low, we go high. Because I firmly believe when they go low we go to hell. But it just shows how the Obamas, who are classy and elegant and brilliant, just live rent free in these people's heads because they know they will never be like the Obamas. They will never be like the Obamas. And it kills them. And it kills them. So if you really want to get them where they live, instead of talking about what he said, go to Netflix, Download Becoming and put it on a perpetual loop for the whole weekend, which I may or may not have done, and allow it to go to number one on the Netflix chart, right? Because that listeners, is how you clear a bitch, okay? By being elegant, unbothered, successful, moisturized, and on top of the Netflix character charts. And I just want to shout out some folks who worked with me recently the audiobook for my recent book the US Constitution. A comprehensive and annotated guide for the modern reader, the audiobook was recently recognized by Kirkus Reviews and Audiophile Magazine with an Earphone Award for outstanding contributions to the audiobook medium. And thank you. So I read the annotations, but I really want to shout out the great Dionne Graham, who actually read the text of the Constitution, was my co narrator on the audiobook. And I especially want to thank Karen Perlman and the rest of the audiobook team at Simon and Schuster, who are here tonight for their outstanding, outstanding work. I could not have done this without you. You are fantastic.

[Leah Littman]

Thank you.

[Alyssa Murray]

And of course, New York, we couldn't have done all of this without you. So this is the greatest city in the world. Stricties are the greatest audience in the world. And we have one last favor. We have one last favor to ask in addition to downloading us on all of your favorite podcast mediums and giving us a five star rating. Because if you don't, we are going to assume you are not a modern reader.

[Kate Shaw]

And also the next live show. We gotta shout out the next live show.

[Alyssa Murray]

And buying tickets for the next live show, which is going to be in November in Washington D.C. at CrookedCon. It's gonna be so fabulous. But before you do all of those things, can we take a selfie with you?

[Grainger Advertiser]

Yay. Okay.

[Alyssa Murray]

All right. Thank you, New York.

[Kate Shaw]

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

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[Kate Shaw]

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[Alyssa Murray]

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[Ellie Mistahl]

METV is America's number one classic TV entertainment network, airing over 60 of the greatest TV series every week. Now METV presents the Golden Girls of Summer, showcasing the best of the Golden Girls. Watch Dorothy, Blanche, Rose and sophia weeknights on MeTV at 10pM 9 Central. Log on to metv.com now to find out where to watch MeTV. Free over the air and on cable, satellite and select streaming services, MeTV is memorable entertainment Television.