← Strict Scrutiny
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- [00:00]
Melissa Murray
Strict scrutiny is brought to you by Americans United for Separation of Church and State. We're all legal nerds here and we know that precedent set in any area of the law ripples out across our lives in so many ways. And our right to religious freedom is one of the most sacred areas of the law. It protects almost every aspect of our daily lives. Rights we all hold dear, like LGBTQ rights, freedom to choose the type of health care you need, and ensuring a well funded and inclusive public school system. Protecting the separation of church and state is in fact protecting the very foundation of our democracy. If you're looking for ways to more deeply understand the connection of and from religion to so many of the civil justice issues we see today, you should check out the Summit for Religious Freedom or Surf, an annual conference held in D.C. and virtually April 25th through 27th. In 2026 at Surf, advocates, organizers, faith leaders, atheists and everyone in between will come together to take on the growing threats of Christian nationalism and the efforts to impose one narrow religious belief on all of us. This is a movement for big change and collaboration across the entire spectrum of religious belief and non belief. It strengthens our democracy. It will protect public schools and reproductive and LGBTQ rights and so much more. So be a part of the movement that's pushing back and standing up for freedom. You can register to attend today at thesurf.org that's T-H-E-SRF.org USAA knows dynamic duos.
- [01:26]
Leah Litman
Can save the day like superheroes and sidekicks or auto and home insurance.
- [01:30]
Melissa Murray
With USAA you can bundle your and.
- [01:32]
Leah Litman
Home and save up to 10%. Tap the banner to learn more and get a'@usaa.com bundle restrictions apply.
- [01:40]
Melissa Murray
Hi everyone, it's Leah and Melissa. After we originally recorded today's episode, ICE Officers, more than one of them shot and killed another American citizen in Minnesota. The victim this time is Alex Jeffrey Preddy. This is the second killing this month. We wanted to talk briefly about what happened in Minnesota in part because those are the wishes of Alex Preddy's parents who survive him. We also wanted to do so to just talk about what is happening and to briefly answer some common questions that we receive from listeners and then we'll share today's regularly recorded episode with you.
- [02:17]
Kate Shaw
So Alex Preddy was a 37 year old intensive care unit nurse at a Veterans affairs medical center in Minnesota. On Saturday morning he along with other Minneapolis residents was observing and monitoring ICE officers patrolling and terror the neighborhood. We are going to describe what happened based on the videos we watched and the witness declarations that have been filed in several cases. We're not going to tell you to go and watch the videos they are gutting, but DHS and the federal government are once again lying about what happened and smearing the memory of the person they killed. Last week it was reported that DOJ attempted to get a warrant to investigate Renee Goode, the last person they shot and killed, only to be told by a judge that no, the dead woman probably isn't a proper subject subject of this investigation. Even if you don't watch the videos of what happened to Alex Preddy, you owe it to Alex Preddy and the many other Minnesotans who are putting their lives on the line every day to find out what happened. So find a source you trust to describe the video or watch it. New York Times, cnn, many other outlets have breakdowns.
- [03:24]
Melissa Murray
The videos show that mere minutes before he was killed, Alex Preddy was holding up a phone filming officers as they, quote, unquote, enforced the law. Again, we cannot emphasize enough that was within Alex Preddy's rights to do you have a right to be able to observe law enforcement and even to film them while they are doing their jobs? A witness declaration describes Preddy as directing traffic as people gathered and blew whistles to alert the neighborhood to the presence of ICE officers. Witnesses then note that officers confronted Preddy and another observer. And in the videos you can see multiple officers dragging Preddy to the ground where they appear to beat or pistol whip him. You can also see the officers or an officer disarm Alex Preddy. Alex Preddy was carrying, not brandishing a gun. According to his family, he had a concealed carry permit and was lawfully authorized to carry a weapon on his person. And it is important to note that the Supreme Court confirmed this facet of the second Amendment a few years ago in NYSERPA versus Bruen. We'll have more on the second Amendment in this topper but also later in the episode. But I will just say, apparently the second Amendment is only a second class right if you are protesting the government. More on that in a bit. According to the witnesses testimony and the videos, Preddy was not brandishing his weapon or threatening anyone with it. He was just carrying it on his person as he was legally authorized to do. You can also see in the videos that Preddy puts up an arm which again is not holding any weapon in part to protect a woman who is being pepper sprayed alongside him. And Preddy's last words to the woman he was trying to protect were, quote, are you okay? He was then shot multiple times and died from his wounds.
- [05:16]
Kate Shaw
So a witness declaration was filed in a case I will describe in a second by a, quote, children's entertainer who specializes in face painting who took one of the videos. She recalled, quote, it didn't look like Preddy was trying to resist. Just trying to help the woman up. 4 or 5 agen him on the ground and they just started shooting him. I don't know why they shot him. He was only helping. I was five feet from him. I have read the statement from DHS about what happened and it is wrong. I feel afraid. I don't feel like I can go home because I heard agents were looking for me. I've heard that other witnesses might have been arrested and taken to a federal building. A second declaration was filed by a medical resident who also observed the shooting and then attempted to check on Preddy after initially being refused access. He found Preddy lying on his side after agents said they didn't. Preddy had a pulse. The agents were not administering CPR but were counting bullet wounds on Preddy. The doctor observed three gunshot wounds in Preddy's back. What case were these declarations filed in? Some Minnesota residents had sought and obtained an injunction that prevented ICE officers from using tear gas and pepper spray on people who were merely observing the officers. The injunction also barred ICE from using non lethal munitions in various scenarios. A district court granted that injunction. Then the U.S. court of Appeals for the ACE Circuit stayed the injunction allowing the ICE officers to go back to tear gassing pepper spraying amor. A few days later, this incident happens. The doctor who tended to Preddy and observed the shooting describes being basically unable to shelter in the doctor's own apartment as the tear gas stepped in. These declarations were filed by the plaintiff's lawyers in an effort to get the A circuit to reinstate the district court's injunction. And there is yet another pending case with a hearing previously scheduled for Monday. Today, the day this episode airs, and the case that has been brought by Minnesota that seeks to enjoin entire mass ICE deployment Operation Metro Surge on several grounds.
- [07:11]
Melissa Murray
A few observations we hope might inform or contextualize the commentary that you may be hearing at this time. First, we've heard an awful lot from the Republican Party and this court about people's right to possess a firearm. Indeed, in this episode you will hear advocates and Republican appointees talking about how the Second Amendment gives you a right to enter private property with your gun, regardless of whether the owner of that property wants you to do so. We just Want to suggest the radical idea that it cannot be that everyone is allowed to carry a gun for their safety, but the government can still murder you in the streets if you lawfully possess a gun. Having a gun, we are told, does not make you a criminal. Except apparently, when you are protesting the government. Even more maddening is that the Republican Party and the court have attempted to justify the Second amendment right to carry and possess a firearm by saying that people have a right to defend themselves. Wait for it. From the government. We have been told for decades that America must tolerate mass shootings because the broad availability of guns would help us defend ourselves in the event that the government took a turn and became tyrannical. Hmm.
- [08:29]
Kate Shaw
I thought that happened when Joe Biden canceled student debt.
- [08:32]
Melissa Murray
Apparently, that was it.
- [08:34]
Kate Shaw
Okay, you can't.
- [08:34]
Melissa Murray
I mean, literally, you cannot make this stuff up.
- [08:39]
Sarah Harris
No.
- [08:40]
Melissa Murray
Anyway, just to reiterate and put a finer point on it, Alex Preddy was the lawful owner of the firearm that he was legally carrying. It wouldn't matter if he wasn't carrying it legally. Officer still wouldn't be permitted to shoot him simply for having the weapon. They can only use lethal force where they reasonably feel that they are in imminent danger, which they could not have felt given that he had already been disarmed. They were prepper spraying him, and multiple agents were restraining him. So, again, the gun rhetoric around Alex Preddy and what he was or wasn't doing doesn't add up, given what the agents did in advance of the fatal shooting.
- [09:21]
Kate Shaw
The administration. I mean, they unleashed untrained zealots and masks with guns. They ramped up rhetoric about the awful terrorists in Minnesota, told the officers they have absolute immunity, even though the officers do not have absolute immunity. They refuse to investigate officers who shoot and kill citizens and instead smear the people who are killed, all while insisting that the federal officers are the victims. Here is Greg Bovino making the media rounds yesterday.
- [09:45]
Melissa Murray
With respect, it feels as though in some ways, you're blaming the victim here.
- [09:52]
Leah Litman
The victim? The victims are the border patrol agents. I'm not blaming the border patrol agents. The victim are the border patrol agents.
- [09:58]
Kate Shaw
Their position, as you were saying, Melissa, seems to be something like this man who was exercising his First Amendment rights was therefore violating ours. He aggressively attacked. A canister of pepper spray was laying on the ground, which is obviously very dangerous, when he had a firearm that we'd already taken from him. This is basically like a Pearl harbor on ice agents. Oh, and the firearm is a model that accidentally might go off, something we could definitely see while forcing him to the ground. And again, we're so concerned that the firearm we had taken from him might go off that we had to shoot him in the back like that. That is the narrative.
- [10:31]
Melissa Murray
I've got nothing. So we got a couple of listener questions that we should tick through. So one question we received from a listener is, why won't state officers prosecute the federal officers here? And the short answer is that the state can prosecute these federal officers, but there are several obstacles to doing so. One, the state of Minnesota has to be able to investigate what happened here. And there are reports that the federal government is and was obstructing any state attempt to investigate the situation. They are arresting and detaining witnesses. They won't give the state of Minnesota the names of the officers who were involved. They are blocking state officers from accessing the crime scene. And this has been so robust, the federal obstruction into the state investigating this, that the state government has already obtained an order from a judge, a Trump appointee, no less, who has ordered the federal government not to destroy evidence. Like, get that A Trump appointee worries that what the federal government is doing in this moment is literally destroying evidence. Minnesota is, in our view, trying to investigate and possibly bring a prosecution against the officers. The state officers who were on the scene did not just go away after ICE directed them to do so. And now the state is suing to get ICE out of the state and to stop ICE from obstructing any investigation that the state might launch. So Minnesota is doing stuff again. This is a really volatile and, I think, unprecedented situation. I don't know that we've ever seen any situation where the federal government has been this vehement about prohibiting the state from being involved in an investigation.
- [12:15]
Kate Shaw
And after the state investigates, the state could launch a prosecution. But federal officers have a right to remove their case to a federal court. And I just told you what the 8th Circuit, which handles cases from Minnesota, did with an injunction that had been issued against ICE enforcement practices. Federal officers can also raise what's called Supremacy Clause immunity as a defense. They can argue they are immune from criminal charges on the ground that they were acting pursuant to federal duties and doing what is reasonably necessary to carry out those duties. Now, the video suggests that defense shouldn't apply here, but the reality is there's very little case law on this topic. As Melissa notes, this is unprecedented. And this is part of what makes the investigation so important.
- [12:59]
Melissa Murray
Other listeners have asked, what about federal prosecutions? And we just want to say, think about it. You know, who's in charge of launching federal prosecutions here. And I have to say we have seen the federal government just jump into the moral void of not even pretending to wait for information about the shooting. They have immediately issued blatant lies about the victims in these shootings. They've suggested that Alex Preddy somehow deserved what happened to him on Saturday morning. Really, the government's message seems to be, if you disagree with us, we can kill you. The end the country's leading law enforcement officer, one Pamela Joe Bondi, made clear in an absolutely ghoulish letter that the federal government is essentially extorting the state of Minnesota. The letter, which Senator Chris Murphy of Connecticut also discussed on cable news this weekend, suggests that ICE would withdraw from Minnesota if the state turned over to the Trump administration its voter rolls, which is definitely not about enforcing immigration laws. May be necessary to enforce the Voting Rights Act. Wilbur Ross would like a word. But not necessary to enforce immigration laws. The letter also notes that the federal government would like additional information on Medicaid and SNAP benefits, which we should note are also not about immigration enforcement. So again, this campaign of terror seems to be about a lot of things. I don't know if it's necessarily about making sure that immigration laws are properly enforced against the people that this administration campaigned on enforcing those laws against.
- [14:44]
Kate Shaw
No. So another common question we get is, well, what about civil suits that might be filed by the family? Well, this is part of why We Are a Supreme Court podcast. In order to sue anyone, you need what is called a cause of action, a legal authorization to bring suit. Congress has not passed a law that says you have a cause of action to sue federal officers for damages who violate your constitutional rights. Congress has a law that says you can sue state and local officers. That's section 1983. But it doesn't apply to federal officers.
- [15:17]
Melissa Murray
Obviously, this gap means that some people are left without recourse and without a remedy when their rights are violated by federal officers. The Supreme Court, back when it was still into this odd concept called the rule of law, decided a case that is known as Bivens versus six unknown agents of the Federal Bureau of Narcotics. In Bivens, the court said that where federal officers violate your constitutional rights and you don't have a remedy unless you could sue them for damages, then you are permitted to sue the officers for damages. That is to keep the federal government within the bounds of the law and to vindicate your rights, including your Fourth Amendment rights.
- [15:55]
Kate Shaw
Well, guess what? This court hates Bivens. Several justices have called for it to be overruled. And the court's Republican appointees have said you can't sue federal officers for damages for violating your constitutional rights unless your case is basically exactly like the three cases where the Supreme Court had recognized a Bivens cause of action. None of those cases involve ICE officers being deployed in this way and using lethal force against people, observing them and trying to protect others.
- [16:25]
Melissa Murray
And that basically the lack of a cause of action for individuals to bring a civil suit against the officers would essentially extinguish the prospect of civil litigation even before you got to the question of whether the officers would be entitled to qualified immunity. And if you don't know what qualified immunity is, go back into the strict scrutiny archives. We have an amazing episode with Joanna Schwartz of UCLA Law about her book Shielded, which is all about how the Supreme Court has essentially immunized federal officers and state and local officers from any kind of responsibility or accountability because of qualified immunity. It's a terrific episode.
- [17:05]
Kate Shaw
Yeah. And we say all of this in discussing these questions, not to make you resigned to there being no consequences, but instead to underscore the bravery and the importance of what Minnesotans are doing, including Alex Preddy. They are documenting what is happening and risking their lives when they do so to get people to care, to stand up, you know, to stand with them and to do, to enable justice to be done. Perhaps eventually, if you get enough people, including people in power, to say no more. I mean, imagine what the federal government, DHS, might think they could get away with if there were not videos, you know, if Minnesota was not attempting to engage in investigations.
- [17:42]
Melissa Murray
And to be clear, that's kind of the point of what is happening here. The fact that you could wind up dead if you go out to film officers, if you are killed, that you would be smeared and your family would basically have to recuperate your reputation in the face of what the federal government says about you. That's all meant to be a deterrent to ordinary people going out, exercising their First Amendment rights, observing what the government is doing and essentially making their displeasure, making their objections to what is happening in their name known. So this is not just about a show of force. It's truly about deterring this from happening in other places. So, folks, if that's not your bag, if you don't like the federal government cowing you into silence, if you're looking for something to do, some action item, one thing you can do is call your congressional representatives, tell them not to fund DHS or ICE while they are terrorizing Minnesota and preparing to terrorize other cities. Tell them to add a provision to federal law allowing individuals to sue federal officers, or at least these officers who violate their constitutional rights. As always, think about how you can help your community and keep people safe. And if you want more reading on this, we recommend M. Gessen. State terror has already arrived. That was a piece in the New York Times. It describes how the Trump regime, quote, seeks to reduce us all to a state of constant fear, a fear of violence from which some people may at a given moment be spared, but from which no one will ever truly be safe.
- [19:15]
Kate Shaw
So we mentioned up top that we are doing this episode, Topper, in part because Alex Preddy's family has asked people to, quote, get the truth out, end quote, about their son. We are not going to read their statement in full in part because I will just start sobbing again if we do. But you should. It begins with quote, we are heartbroken, but also very angry. Alex was a kind hearted soul, sir. His last thought and act was to protect a woman. The sickening lies told about our son by the administration are reprehensible and disgusting. Please get the truth out about our son. He was a good man.
- [19:49]
Melissa Murray
On that note, we wanted to end by playing a clip that was posted to social media by the son of one of the veteran patients that Alex Pardi attended to as part of his work at the VA hospital. It is Alex Preddy reading out the final salute of a veteran he'd cared for until the end of his life in the intensive care unit. This was posted to Facebook by the veteran's son with a note of gratitude to Alex.
- [20:11]
Leah Litman
Terrence Lee Randolph. March 30, 1947, December 10, 2024. Today we remember that freedom is not free. We have to work at it, nurture it, protect it, and even sacrifice, sacrifice for it. May we never forget and always remember our brothers and sisters who have served so that we may enjoy the gift of freedom. So in this moment, we remember and give thanks for their dedication and selfless service to our nation in the cause of our freedom. In this solemn hour, we render our honor and our gratitude.
- [20:45]
Melissa Murray
And now to our originally scheduled episode.
- [20:49]
Leah Litman
Mr. Chief justice, please report. It's an old joke, but when I argue man argues against two beautiful ladies like this, they're going to have the last word.
- [21:01]
Kate Shaw
She spoke not elegantly, but with unmistakable clarity.
- [21:06]
Melissa Murray
She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
- [21:21]
Kate Shaw
Foreign. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your host today. I'm Leah Litman.
- [21:38]
Sarah Harris
I'm Kate Shaw.
- [21:39]
Melissa Murray
And I'm Melissa Murray. And we have a jam packed episode for you. We are going to start off with some legal news and there is a lot of legal news. And then we are going to pivot to cover the oral arguments that the court heard last week. And then we will close it out with, with opinions, some happenings around the country in the various courts. And then of course, we will end with our favorite things, which per usual, are not opinions of the United States Supreme Court. First up, the legal news. We learned this week that Vice President of The United States, J.D. vance and his wife, the second lady Usha Vance, are expecting a baby. Congrats to them. They are expecting a boy who will arrive in July. Now, this has prompted some Internet chatter that I feel we have to reckon with in some way. So first of all, some people on the Internet, Leah and Kate, are calling this a Band Aid baby. And I did not know what that meant. So in the spirit of just the tip, I'm going to ask you to gently tell me what this means.
- [22:40]
Kate Shaw
Seriously, A Band Aid baby?
- [22:42]
Melissa Murray
What is a Band Aid baby? I did not know. What, what does it mean?
- [22:44]
Kate Shaw
A fix the relationship baby?
- [22:46]
Sarah Harris
I didn't either, but did you not know either?
- [22:48]
Melissa Murray
Okay, I was like, like, it's a bab got a boo boo. Like, like what is happening in utero that the baby needs a band aid. Okay.
- [22:56]
Sarah Harris
A wound.
- [22:57]
Melissa Murray
Oh, so this is like related to. Okay, so this explains why peop. The other people that I was noticing on the Internets were doing some calculations to determine the time that the Vance baby was conceived. And they were talking about the proximity to that moment when ERICA Kirk rubbed J.D. vance's head on stage. And so maybe this is all related.
- [23:19]
Sarah Harris
That is how pregnancy happens.
- [23:20]
Kate Shaw
Are you saying it was an immaculate conception by.
- [23:24]
Melissa Murray
Rub his head. There you are. That's how we're going to solve the birth rate problem, the birds and bees. That's how we're going to solve it. Anyway, congrats to them. Great. Okay. In other news.
- [23:38]
Kate Shaw
So we also learned last week the Associated Press reported the existence of an internal Immigration and Customs enforcement memo dated May 2025 from ICE Acting Director Todd Lyons, in which he advised ICE officers and agents that they can forcibly enter homes of people subject to deportation orders without warrants that are signed by judges. Whistleblowers shared the memo with members of Congress. The group Whistleblower Aid, which is representing the Whistleblowers said this policy flies in the face of long standing federal law enforcement training material and policies all rooted in constitutional assessments. Fact check, true right, Definitely inconsistent with the fourth Amendment. You know, the executive branch, executive officers, you know, they have these administrative warrants. They are not just allowed to declare, oh, by the way, we can enter homes without warrants. Not how any of this works. We would really like to see what possible legal arguments some geniuses have produced to justify this apparent conclusion. My guess, it has something to do with the black codes.
- [24:41]
Melissa Murray
In other news, we also learned this week that ICE detained a five year old. It was the photo listeners that gave words to the horror that so many are feeling about ice's presence in Minnesota. The picture was of five year old Liam Conejo Ramos, who is standing by while ICE arrested his father. Father and son are apparently asylum seekers from Ecuador and the facts of the child's detention by ICE are very much in dispute. So some maintain that Liam was separated from his father and then was used as bait by the ICE officers to try and get other immigrants who were living in this home to open the door so that they in turn could be apprehended by ice. The administration maintains, however, that Liam's father fled from the ICE agents, leaving the child on his own. Both Liam and his father were taken to Dilley, Texas, which is just outside of San Antonio, where they are being held at an immigration detention center. According to Mark Prokosh, who is a lawyer working with the family, this is.
- [25:45]
Kate Shaw
Not the first five year old at this particular school that ICE has detained and trafficked to another state. And if you have not seen the image of this little boy bundled in a blue hat and it's like a.
- [25:59]
Melissa Murray
Pokemon hat with a Spider man backpack.
- [26:01]
Kate Shaw
You need to look at it and just stare it in the face to see what is happening.
- [26:06]
Sarah Harris
Yeah, it's a devastating image and I think has rightly produced additional horror at ice's tactics. And the horrors are just compounding because we also learned last week that a Cuban detainee in ICE detention has died in a death that has been ruled a homicide. So this is Geraldo Lunas Campos, who was 55 years old, who died under January 3rd in ICE custody at East Camp Montana. This is according to dhs. And his death, according to an autopsy report from El Paso county, has been ruled a homicide. So the officials determined that Campos died from asphyxia due to neck and torso compression. Attorneys for Campos family filed an emergency petition last week on Tuesday to prevent those who may have witnessed the death from being deported. This petition was granted by a federal judge and Campos is already the third detainee to die at this particular facility, East Camp Montana, which only opened last year.
- [27:03]
Kate Shaw
And in case you didn't realize, we were really living through the horrors that some people, you know, projected another Trump administration would be when they envisioned what the headlines and whatnot would look like. Former CNN anchor Don Lemon found himself in the administration's crosshairs last week. Lemon, a journalist, attended a broadcast, a protest at a St. Paul church. The church was the site of the protest, apparently because a pastor at the church serves as the acting field a local ICE office. Videos of the protests and Lemon's coverage of it went viral. And the Trump administration, of course, went after him. You know, they tried to bring criminal charges against Lemon, but a federal magistrate judge refused to sign off on the charges, a move that reportedly enraged Attorney General Pamela Joe Bondi. Generally, federal prosecutors can go before a magistrate judge for a determination that there's probable cause to initiate criminal charges. A grand jury must then return an indictment. While there are other ways the DOJ could move to charge Lemon, a magistrate judge's refusal to sign off on the case, case, extremely rare, is not a good sign for the government. And I hope it suggests a grand jury would be quite skeptical, too. Abby Lowell, who is representing Lemon, called the administration's actions another attempt to deter negative coverage and to cow the media.
- [28:13]
Sarah Harris
And that seems clearly true. And because, as Melissa said, this was a very, very busy week. We have yet more legal news to bring you. Last week, former special counsel Jack Smith testified publicly before the House Judiciary Committee. This was an all day hearing on Thursday and parts of it were pretty wild. It's clear hear why the hearing was called. Jack Smith is continuing to live rent free in Donald Trump's head. And the Republicans in Congress still haven't figured out to whom they should pledge their allegiance in this lame duck season other than Trump. And so at his behest, whether explicitly or not, they convened this hearing. They used the hearing to flog claims that Trump has been the victim of lawfare, that the legal system has been weaponized against, against him, Donald Trump. They also wanted clearly to discredit Jack Smith and paint him as some kind of lackey for the Biden administration. They droned on incessantly about Smith subpoenaing congressional toll records. This was like probably the biggest topic in the hearing. Toll records are just phone records here at issue, the toll records were records from the phones of members of Congress. But these toll records are Basically, just like metadata, they contain numbers called and length of time of phone call, but not like the words exchange. There's no substantive content. Smith and his team asked for those records so they could piece together the timeline from January 6, who was calling whom and when. And Republicans tried to act as though this was Watergate 2.0, though way, way, way worse. And Smith was bugging all of their phones. For his part, Smith was really disciplined. He gave measured answers about how he came to be the special counsel charged with investigating, prosecuting a former president for election fraud and improper document retention. And he was uncouth and unapologetic about the choices that he made as special prosecutor. And, you know, the choices he made were to charge someone who clearly, to him, had committed crimes with those crimes. Sort of end of story.
- [30:04]
Melissa Murray
I will say, I thought the Democrats on the Judiciary Committee acquitted themselves reasonably well. Many of them, I think, properly viewed the hearing as an opportunity, in fact, maybe the only opportunity, for Jack Smith to ventilate the case that he had amassed against Donald Trump. The kind of. Kind of information that would have been aired at a public trial if not for the Supreme Court. Foot dragging for months and months and months and preventing the prospect of a trial and then giving Donald Trump immunity toward the end. So many of these Democratic representatives actually just let Jack Smith cook. They just gave him a question, just let him go, and he told his story about how he had amassed this evidence, what the evidence was, and his very firm belief, belief that he could have successfully prosecuted the case against Donald Trump to a conviction beyond a reasonable doubt. But not all Democrats were as disciplined in doing this. So there were many who I think, tried to be very helpful clarifying the whole toll records issue. Jamie Raskin did this, and that made sense because the Republicans were flogging it to death. But a couple of Democratic members, and I'm looking at you, Chewy Garcia and Jared Moss Moskowitz, decided to follow Jamie Raskin's lead by doing a little this, you Internet trolling by this. I mean, at one point, Jamie Raskin noted that one of the Republicans who had just very strenuously questioned Jack Smith had actually been someone who, in the immediate aftermath of January 6, had denounced the activities and the conduct that had happened on that day. And now here that person was in the chamber denouncing Jack Smith and basically big upping Donald Trump. We all got it. We get it, that these folks are feckless hypocrites who are nothing but obedient to Donald Trump. But Chewy Garcia and Jared Moskowitz, I thought, wasted a lot of precious time simply going through the list of all of the Republicans who had kind of done an about face on January 6th. And it just, I, it wasn't necessary, I get it. But I think more time spent letting just Jack Smith cook would have been great.
- [32:14]
Kate Shaw
So the hearing brought out many individuals who witnessed the January 6 assault on the Capitol. Capitol Police officers Harry Dunn and Michael Fanone were in the gallery, as was E. Stewart Rhodes, the founder of the Proud Boys, who had been convicted of seditious conspiracy in conjunction with his actions on January 6th, Trump commuted Rhodes 18 year sentence. On the very first day of Trump's second term. Other thoughts on the hearing?
- [32:40]
Melissa Murray
Well, I loved that the hearing had a little scuffle, some fisticuffs. That was interesting. So at one point, Michael Fanon, who was in the gallery along with Harry Dunn and two other former Capitol officers, was seated in front of Ivan Raichlen, who is apparently a conservative provocateur. And they kind of got into a little argument altercation and, and the whole chamber had to basically be gaveled back into order. So that was a little raucous, I thought. There was also a very unnecessary and unfortunate moment where Texas Representative Neils lectured the members of the Capitol Police who were in the chamber on who exactly was responsible for the violence that took place on January 6th. And here's a hint, it was not Donald J. Trump. And his, his statement that it was really the fault of the head of the Capitol Police prompted some incredulity and also a little profanity from the Capitol officers in the gallery. And so I thought that was interesting. You know, at one point Michael Fanon was shown giving the representative the finger. Don't we all wish we could do that sometimes?
- [33:51]
Kate Shaw
I appreciated it.
- [33:52]
Melissa Murray
Another time he coughed into his hand and apparently he was like, go fuck. Basically he was wearing a T shirt that said hunting Nazis since 1996. I mean, Michael Fanon had zero fucks left in the tank. So there we are.
- [34:08]
Sarah Harris
One just kind of final broad thought in the hearing. I did think that in the age of Pamela, Joe Bondi and Todd Blanche and Hermit Dylan and until last week, Lindsay Halligan, I actually think there is some real utility in reminding the public of what an actual federal prosecutor sounds like. And that is not the list of people I just offered. But in fact, Jack Smith, I love.
- [34:28]
Melissa Murray
That your takeaway from this was a high minded thing about the importance of federal prosecutors being independent. And we're like, and then this guy said yourself.
- [34:38]
Sarah Harris
Well, you use the fuck yourself draws in the listeners and then maybe they are the, you know, the viewers of the, the hearing, and then maybe they actually listen to Jack Smith. So I think both are important to the larger, you know, restoration of democracy.
- [34:48]
Melissa Murray
Ladies, why not both, you know, high and low.
- [34:51]
Kate Shaw
Other goings on. Other goings on. In Article 1, the House Oversight Committee voted on January 21st to hold former president President Clinton and former Secretary of State Clinton in criminal contempt of Congress after the couple defied a congressional subpoena by refusing to testify in connection with the panel's investigation into the Jeffrey Epstein case. The panel's Republican members said they gave the Clintons plenty of chances to appear, but they refused to show for their scheduled closed door depositions. The Clintons have called the subpoenas legally invalid and said they have already shared with the committee what little information they know.
- [35:23]
Sarah Harris
Now, to be clear, the Clintons have turned over information to the committee. They have offered alternatives to testifying under a different, different format. Democrats have urged the committee to try to negotiate an interview with former President Clinton, who apparently is willing to cooperate. We should say contempt of Congress is a rare charge, but not unheard of during the Biden administration. Steve Bannon and Peter Navaro each actually served time in prison after failing to cooperate with the investigation into the January 6 attack on the Capitol and then being held in contempt and criminally prosecuted for contempt of Congress.
- [35:52]
Melissa Murray
So I will say one thing about this. Say what you want about whether the Clintons are being defiant or whether they're trying to cooperate. They're keeping the epine files in the new news, even though there's so much other stuff going on that could overshadow the fact that Goj has been absolutely recalcitrant in releasing those files as they are required to do by law. So I think that is the silver lining of all of this. Speaking of documents, internal DHS documents that were unsealed by a federal judge last week have revealed new details about how the Trump administration decided to target student activists for deportation. The tranche of documents, which were part of the record in AAUP v. Rubio, contained memos that were prepared by the Department of Homeland Security and sent to the State Department. The memos recommended the deportation of five students, Mahmoud Khalil, Ramesa Osterk, Mohsen Badwadi, Badar Khansouri and Yunsao Chung. And the memos detailed that the five students had participated in pro Palestinian protests and had written things in their respective school publications about the war in Gaza. All five were in the United States lawfully, but were arrested and threatened with deportation last spring. All of these documents were part of the record that Reagan appointee Judge William G. Young relied on in ruling that the administration had violated the students constitutional rights. However, per the administration's request, they had remained sealed because they contained information regarding some other investigations. That said, the New York Times petitioned to unseal the documents and that request was granted by Young last week, making these documents public.
- [37:30]
Kate Shaw
So in a recent episode, we mentioned that the U.S. court of Appeals for the Third Circuit had actually overturned the district judge's decision that he had jurisdiction to release Mahmoud Khalil, you know, from immigration detention and, you know, defer or block his removal. In light of that decision, the administration has announced that it is threatening or will be attempting to carry out an arrest and deportation of Khalil to Algeria. This administration is definitely ramping up the abusive punitive deportations. It has also announced on the heels of mass protests in Iran in which the regime responded by killing thousands of people, that it has planned to restart deportation flights to Iran.
- [38:14]
Sarah Harris
Okay, last piece of legal news up front. Last Wednesday, in a court filing, the Department of Education still exists, right? Albeit in a skeletal format move to dismiss its appeal, leaving in place a federal judge's August decision finding that DOE guidance telling schools and colleges that they would lose federal money if they maintained a wide range of practices that the administration labeled unlawful dei violated the First Amendment and federal laws regarding agency policy making. So just to break that down, DOE lost in the district court administration was initially appealing and has now moved to dismiss its appeal, letting its loss, the administration's law loss stand. DOE didn't immediately comment when it decided to withdraw its appeal. But Democracy Forward, the legal advocacy firm whose head, Sky Perryman we've had on the show several times, calls the dismissal a welcome relief and a meaningful win for public education. So a little bit of good news.
- [39:07]
Kate Shaw
This is why you stand up and fight back, right? Sometimes they fold. Do not obey in advance or consent.
- [39:13]
Melissa Murray
So good on diprocy forward for bringing that case too.
- [39:16]
Sarah Harris
Yes.
- [39:20]
Melissa Murray
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- [43:03]
Kate Shaw
So let's move on to the argument recaps. The Supreme Court has just finished two weeks of argument arguments. We covered the first week of the sitting in our last episode. We will now focus on the second week of the sitting and it was a real doozy of amosexuality and muscular executive power.
- [43:19]
Melissa Murray
Let's start first with Trump versus Cook. For those of you who have been living under a rock, damn, bring me with you. I want to live under a rock too, and forget all of this. This case concerns whether the President can remove Lisa Cook, the first black woman to serve as a governor of the Federal Reserve Board Board. To be very clear, this is not exactly the same kind of challenge as the one that the court recently heard in Trump versus Slaughter. That case involves the removal of FTC Commissioner Rebecca Slaughter, and it is a direct challenge to the law that creates the FTC and insulates its commissioners from executive removal. Here, the administration is not challenging the law that structures the Fed and insulates its governors from removal. Instead. Instead, the president is arguing that he is complying with that law and operating within its strictures because he contends that he has ample cause to remove Lisa Cook. Specifically, he claims that prior to her appointment to the Fed, Cook falsified a mortgage application by characterizing the property in question as her primary residence when in fact it was going to be a second home. This information about the mortgage application came from Trump official Bill Pulte, who has made similar similar claims regarding mortgage fraud against New York AG Letitia James and California Senator Adam Schiff. Just reminding you that There are no new ideas.
- [44:42]
Sarah Harris
So Cook, in addition to forcefully refuting the factual allegations against her, argue that these allegations do not meet the standard for removal for cause, which, although is not explicitly defined in the statute, has long been understood as requiring inefficiency, neglect of duty, or malfeasance. She also maintains that she was never given an opportunity to present her evidence that that is due process, which the Constitution requires she be given to defend herself and her position against these charges.
- [45:08]
Kate Shaw
The President in this case, for his part, says that the mortgage fraud allegations are sufficient to remove Cook, and they're totally not a pretext for removing a governor and installing your own lackey who will vote to lower interest rates so you and your cronies can enjoy a bustling economy advance of the midterm elections. He also claims that his decision that there is ample cause to remove Cook is. Is unreviewable by any court. Sounds weirdly autocratic and monarchical and like a death sentence for Fed independence. Which is kind of the point. I think Paul Clement, the former Solicitor General in the George Bush administration, who was arguing the case on behalf of Lisa Cook, made this very point.
- [45:48]
Leah Litman
I think there needs to be judicial review of that question for all the reasons that were alluded to in the various colloquies. Because if there's no judicial review, then this is all kind of a joke. I mean, we can. We can sit here and posit that, well, this would be for cause, and that would be for cause, but none of it would be matter because there'd be no judicial review.
- [46:05]
Sarah Harris
Okay, so the case comes to the court in a pretty weird procedural posture. The President removed Cook via Truth Social. Like, really he did. As you do in this cursed timeline, Cook filed a lawsuit that challenged her removal. The Federal District Court issued a preliminary injunction blocking her removal. The administration then suddenly sought a stay of the District Court's order at the intermediate appellate court. So the D.C. circuit, that request was denied. And now the administration is before SCOTUS seeking a stay of the preliminary injunction on a very limited record. And that limited record was actually a pretty significant issue in the argument last week. At one point, Justice Alito, of all people, asked Sauer whether the mortgage documents at issue were in the record. To which Sour basically said, yeah, they're in the Truth social post, which is basically the same thing. So let's roll that tape.
- [46:53]
Leah Litman
Here are the mortgage applications even in the record in this case. I know that the text of the social media post that screenshots to the mortgage applications is in the record, but I don't recall if the. The paperwork itself is in the record, in the district court's record.
- [47:11]
Kate Shaw
In addition to taking aggressive positions about the limited availability and limited scope of any judicial review of the President's grounds for cause, the opted for several other go big or go home approaches. For example, it said that while federal courts generally have the authority to remedy wrongful removals by ordering reinstatement of a wrongfully fired official, the federal courts can only do so via a writ of mandamus.
- [47:36]
Melissa Murray
But wait.
- [47:36]
Kate Shaw
And oh, oh, by the way, the administration added, a writ of mandamus just isn't available against the President, which means there is no way to reinstate an officer who has been wrongfully fired by the President in violation of federal law. As Justice Kagan pointedly remarked, if the only available remedy doesn't apply, what does this cause requirement even do? The answer seems to be decorative wallpaper.
- [48:00]
Sarah Harris
Extremely overpriced decorative wallpaper. Or wait, is that a different pretextual effort to discredit a Fed Governor? I can't remember.
- [48:07]
Kate Shaw
Yeah, speaking of pretext, wait until we get to the Second Amendment. But back to Lisa Cook's case. The administration also resisted the claim that Lisa Cook was entitled to, to any process or procedures related to her removal. No real notice, no real hearing, no real opportunity to contest the charges against her. John Sauer would not even agree that an in person meeting in the White House might be required, which was the suggestion floated by Justices Gorsuch and Barrett. At one point, Justice Gorsuch asked whether a meeting across a table in which the President says you're fired would suffice.
- [48:37]
Melissa Murray
I actually thought he was trying to be funny. Justice Gorsuch. And there was a reference to the Apprentice, but no. Seemed to be picking up what he was putting down. But Justice Gorsuch, I see you. I was around.
- [48:48]
Kate Shaw
He actually was.
- [48:49]
Sarah Harris
Gorsuch is usually not as funny as he thinks he is, but he was a little funny there. But yeah, nobody really got it, which is itself funny.
- [48:55]
Melissa Murray
Like I, I mean I was like, oh, I remember, I remember that show. Like that's, that show brought us to where we are today.
- [49:00]
Sarah Harris
That.
- [49:01]
Melissa Murray
That show is literally the reason we're in this.
- [49:03]
Sarah Harris
The reason that this timeline is, is as cursed as it is very true.
- [49:07]
Melissa Murray
If we just not had a writer strike and we unscripted television.
- [49:13]
Sarah Harris
Damn it all different. Okay, so sour. Representing the administration did not seem interested in the prospect. Whatever the origins of Gorsuch's hypo, he wasn't interested in the prospect of any kind of Meaningful hearing in which Cook might defend herself. He instead took the, I thought, pretty unorthodox position that a Truth Social post is the process that is due under the Constitution. So let's play that exchange.
- [49:36]
John Sauer
Ms. Cook, given the opportunity in some sort of formal proceeding to contest that evidence or explain it.
- [49:41]
Leah Litman
Not a formal proceeding. She was given an opportunity in public.
- [49:44]
Melissa Murray
Because in the world, like, she was.
- [49:46]
John Sauer
Supposed to post about it. And that was the opportunity to be heard that you're saying is. Was afforded to her in this case?
- [49:53]
Leah Litman
Yes.
- [49:54]
Melissa Murray
Gotta say, I think the drafters of the 14th Amendment were like, Truth Social. That might be enough.
- [50:01]
Sarah Harris
That might disagree. Yeah, they. And you know who else wasn't that excited about it? It was Justice Jackson, who at one point asked, but what if she doesn't have a Truth Social account? How is she to know and respond? Yeah, it was pretty surreal that this administration would be defending essentially shitposting as constitutional due process. But that is where we are. And I actually found it especially difficult to swallow the administration insisting that none of the many unhinged things that the President says on Truth Social are remotely relevant or proper to kind of speak to the president's intent in all kinds of other contexts. But here, they literally constantly institute constitutionally adequate due process.
- [50:40]
Melissa Murray
I will say that clip that you just played, Kate, the idea of the first black woman to sit on the United States Supreme Court having to articulate what kind of process is due to the first black woman to sit on the board of governors of the Federal Reserve was just kind of wild to me. And she really pressed the point, I think much more strenuously than maybe some of the other justices did. Like, just like, what the fuck are you talking about? Like, you can just move people out of their job and they have, like, absolute no recourse. They can't say anything about it. Like, be so for real. And I was really glad in that moment that she was there.
- [51:17]
Sarah Harris
Sarah was like, well, it's her fault for not having a Truth Social account, because that's how that's a lot done these days.
- [51:23]
Melissa Murray
Get yourself a Truth Social account. All right, so that was some of the minutiae of the oral argument. Let's step back a bit, though, and kind of take the big picture view. It seems. Seems pretty clear, at least to me. I don't know what you all think, but I think the court is going to reject the president's request to remove Lisa Cook while this litigation is pending. So it's not to say that they are never going to say the president cannot Remove Lisa Cook. They're just for the pendency of this litigation. She has to remain in her position. And I want to just emphasize I don't think that means that this court is suddenly interested in constraining a law lawless president. And again, if you've been listening to this podcast, you know that this is merely just another ploy on the part of the court to appear independent, to burnish their independent laurels. But I think this is actually about something else because the court was really, really concerned that anything that might prompt volatility around the Fed would in turn prompt volatility volatility in the global economy. And that might provoke, I don't know, a massive recession that would really hit a lot of people, including the justices, where it hurt.
- [52:38]
Kate Shaw
And that gave them a little pause.
- [52:39]
Melissa Murray
It turned out in real politic. Right.
- [52:43]
Sarah Harris
It was so wild that the kind of but the stock market mode of reasoning was as integral as it was to the justice's thinking. And also that there wasn't really any effort to even try to manufacture any principled explanation for this coming out differently from the way slaughter is likely to be decided. They're not trying to hide the centrality of but the stock market. It may even factor explicitly into the reasoning in the opinion. They might put it we'll talk about this. But under the guise of the stay factors. But this is really just naked consequentialism. And even if you're maybe happy the president is going to, you know, get a loss in this case if you care remotely about principle and reason, I found it one of the most disheartening arguments I remember hearing before this Court. Truly.
- [53:25]
Kate Shaw
Yeah. So let's talk about the evidence of the but the stock market approach to this case here was part of Justice Kavanaugh's first intervention in the case during the seriatim period of questioning when the justices take turns asking advocates questions. So here is America's favorite Fourth Amendment expert questioning Solicitor General John Sauer.
- [53:42]
Leah Litman
Let's talk about the real world downstream effects of this because if this were set as a precedent, it seems to me just thinking big picture, what goes around comes around. All of the current president's appointees would likely be removed for cause on January 20, 2029, if there's a Democratic president or January 20, 2033. And then we're really at will removal. So what are we doing here?
- [54:18]
Melissa Murray
If only the folks being detained by ICE were stockbrokers. Oh my gosh. Yeah.
- [54:25]
Kate Shaw
I wanted to pause on this particular remark for a second. You know, at other points, Coach Kavanaugh explicitly invoked and quoted from a brief filed by former Fed chairs and treasury secretaries which said a ruling for Trump would incentivize presidents to raise trivial old allegations that are impossible to disprove. And in the clip we just played for you, Coach Kavanaugh also quoted from something that he said in his Senate confirmation hearing. You know, recall that when the Senate reconvened, not commonly to consider the allegations that he had sexually assaulted Christine Blasey Ford, Kavanaugh delivered, you know, the extremely emotional, angry, inappropriate tirade about how the allegations were part of a smear campaign and revenge on behalf of the Clintons. And in it, he warned what goes around comes around. And I just wanted to, I'm sorry to do this, but play that clip here, even if it forces you to relive the moment just because it was so striking.
- [55:15]
Leah Litman
To me, this whole two week effort has been a calculated and orchestrated political hit. Hit fueled with apparent pent up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons, and millions of dollars in money from outside left wing opposition groups. This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country. And as we all know, in the United States political system, system of the early 2000s, what goes around comes around.
- [56:17]
Melissa Murray
He really cares about retribution.
- [56:21]
Sarah Harris
He thinks a lot about it. Yeah, he does. And I had the same. My memory also went right back to the confirmation hearing when I heard that monologue. But back to the president's efforts, which this case really affords, to merge his desire for low interest rates with his antipathy for people of color holding positions of authority party Justice Barrett reiterated Justice Kavanaugh suggestion that the importance of independent monetary policy would be central to the court's analysis. She basically asked, don't we have to consider the risk of a recession when we're thinking about whether to grant your application? So that is again, folding the naked consequentialism into the state factors. Let's roll that tape sour.
- [56:57]
Melissa Murray
Can I ask you a question that's also related to the state factors? Justice Sotomayor brought up the public interest here. And we have amicus briefs from economists who tell us that if Governor Cook is, if we grant you your stay, that it could trigger a recession. How should we think about the public interest in a case like this, okay, if but the stock market or really but our investment portfolios is driving the analysis here. It seemed like a lot of the argument was devoted to the Justices looking for ways to rule against the administration. Administration, but without having to say that the President of the United States is a liar and that the grounds that he gave for removing Lisa Cook are absolutely pretextual. It's not even clear to me though that they even want to go that far and say that much. They didn't give any indication that they wanted to elaborate what for cause would mean, what would constitute cause under this statute, or how courts should review the asserted grounds for cause. Instead, they just kind of floated a of bunch, bunch of different possibilities about why Lisa Cook could stay in her position while the case was being litigated. And one possibility that the Chief justice floated early on in the argument was that they could simply say something about the nature of the allegations in this case and how the allegations of wrongdoing, which might entail negligent or inadvertent actions, are such that the public interest doesn't weigh in favor of removing Cook immediately, but instead allows allowing her to continue serving while the case is being litigated. Another way to put this, the Chief justice, but shorter, inadvertently filling out a mortgage application is not a reason to take my 401k.
- [58:36]
Kate Shaw
Right? Yes.
- [58:36]
Melissa Murray
Right.
- [58:37]
Kate Shaw
Yes.
- [58:38]
Sarah Harris
Maybe they can just write that as the opinion procure them.
- [58:42]
Melissa Murray
People make mistakes, right? Let's not make another.
- [58:49]
Sarah Harris
Okay, so that's one. One possibility. Another possibility, just to develop, something I said before from the Barrett quote, is that the Justices might just focus on the stay factor that is about where the public interest lies. So if there's a risk of recession from allowing the President to easily remove a Fed governor, maybe the public interest weighs against allowing immediate removal. Justice Jackson also kind of emphasized and drew out this point asking really like what is the public harm from allowing a Fed governor to continue to serve when no president has attempted to remove a governor in more than 100 years and both the presidency and the Fed have been functioning, you know, relatively smoothly. And then another possibility would be they might actually say something about process, right? Like whether it was adequate for a removal. The due process laden truth social post that we were talking about, some of the Justices actually did seem skeptical, despite Sauer's efforts, about whether the process that was due was in fact provided. Asking questions such as, like, what is the removal order?
- [59:44]
Melissa Murray
Right.
- [59:44]
Sarah Harris
The truth social post itself, they were dubious.
- [59:50]
Melissa Murray
Now I'd like to tell you all about a brand new podcast The Briefing with Michael Waldman Michael is a former White House speechwriter, lawyer and constitutional scholar, and he leads the Brennan center for justice, which works to repair and strengthen American democracy across a range of issues, from gerrymandering to abuse of presidential power, from reforming the Supreme Court to corruption and so much more. We've all worked with Michael and his team of experts, and we can tell you that no one understands these challenges challenges better than they do. What makes the Brennan center unique is that it's more than a think tank. It's focused on turning ideas into policy. And that's what I love about the Briefing podcast. You're going to hear new ideas and you're going to learn about the strategies, the political fights, the deal making that will shape the next phase of American democracy. So if you care about American democracy, this is the podcast for you. You can subscribe and listen to the Briefing with Michael Waldman wherever you get your podcast. And full disclosure, I am a board member of the Bren Center, a proud board member, and I think this podcast is one two star and favorite. Strict scrutiny is brought to you by One Skin. Guess what folks? I'm totally over New Year, New Me. Short term fads never deliver long term results and those are the only results that I'm looking for. But guess what does? Science. Especially when it comes to skin care. And that is why I love when skin their formulas are powered by the OS1 peptide, a patented peptide built on longevity science that is proven to target aging at the cellular level. It's not about adding extra steps to your routine, it's about swapping those routines for smarter ones. I love the moisturizer. It's really light, but it feels like it's really penetrating and your skin is moisturized afterwards. I hate when I put on moisturizer and then I hop into bed and like literally 20 minutes later my skin skin feels parched. That's not the way it goes. With One Skin. I wake up feeling luminous and dewy. And if you can't feel luminous and doing are you even living? One Skin is known for cult favorite formulas like OS one Body, OS one Face and OS one Eye. And it stands out for its science first approach to aging validated in five separate clinical studies delivering hydration, barrier strengthening and visible improvements to the skin with every product, every formula is certified safe for sensitive skin. It is dermatologist tested free from over 1500 irritating ingredients and awarded the National Eczema association seal of Acceptance. You get powerful results without irritation or harsh side effects. Born from over 10 years of longevity research, One Skin's OS1 peptide is proven to target the cells that cause the visible signs of aging, helping you unlock your healthiest skin now. And as you you age. And for a limited time, Oneskin is making it even easier to stay consistent with 15% off when you use code strict at one skin co strict that's 15% off with code strict. After you purchase they are going to ask you where you heard about them. Please support the POD and tell them that the ladies of strict scrutiny sent you.
- [62:55]
Kate Shaw
So a few other notes on the argument and what a ridiculous farce it was and also indicated indicates the Court is so both Paul Clement and John Sauer fairly early on in their remarks invoked the Supreme Court's gibberish in Trump vs. Wilcox about how the President can fire basically the head of any agency except the Fed because the Fed is a quote, uniquely structured quasi private entity that follows in the distinct historical tradition of the first and second banks of the United States. End quote. That is word salad. Which again, the advocates just recycled and pretended like it's the law. And to my mind, this was just an incredible indictment of this court and the legal system that we're just recycling this gibberish because that word salad and bespoke unprincipled exception make clear what a hackish joke the unitary executive theory is. And like this entire charade. And yeah, can I also just say.
- [63:45]
Sarah Harris
Like they're doing the same thing, like they're in slaughter. They're also going to just recite the empty words from Sayla Law. Like they just, they say stuff and then they just decide, they report, repeat it often enough that they believe it's legal reasoning, it is turtles all the.
- [63:59]
Kate Shaw
Way down the way down. And yet on that the Fed is a uniquely structured quasi private entity. It seemed like Justice Barrett basically floated that the Court would take that double down on it and maybe just put it into the public interest factor into the stay analysis and just say things just cash out differently. When the Court has decided the unitary executive theory applies, then when it has decided the theory does not. As you can hear here, when the.
- [64:25]
Melissa Murray
President, if you're thinking about the unitary executive, when the President has untrammeled authority to fire a subordinate, keeping that subordinate in office, I think inflicts maybe a different kind of irreparable harm than the argument that the government would be able to make here because the President doesn't have the same control over the Fed, at least based on the assumptions we have in this case. What do you think about that this.
- [64:52]
Kate Shaw
Question was just, hey, I'm just spitballing here. What if we just put our made up standard about presidential power into the state standard and the factor of the public interest and just called it a day.
- [65:02]
Sarah Harris
Well, it was a little bit like in the slaughter argument when she was.
- [65:04]
Melissa Murray
Like, well, is it.
- [65:04]
Sarah Harris
What clause of the Constitution do we think the unitary executive really comes from? Does it have to be taken care? Could it be the vesting clause? It doesn't really matter. So it sort of had that kind of feel to it. And because arguments these days are basically always fed sock mad libs and efforts to prostrate oneself before the legacy of the great man himself, one Antonin Scalia. Yep, Wolves came up again. Let's play that clip that leads.
- [65:26]
Leah Litman
I mean the, the, that brief, that amicus brief cites Justice Scalia's descent in Morrison, which is always a good place to look for wisdom.
- [65:33]
Kate Shaw
Leave the wolves out of this.
- [65:36]
Melissa Murray
Some of them are endangered, damn it.
- [65:38]
Sarah Harris
Like let them live. Anyway, I will say that I actually thought the reference to Morrison was very cleverly used in the amicus brief that Kavanaugh was citing in this question. That was the one that we were talking about a couple minutes ago by the former Fed chairs and treasury secretaries. And yet for Kavanaugh's part, it was pretty rich to rely on Scalia's dissent in Morrison, which is the writing that is supposed to be the godfather of this entire unitary executive theory, as support for concluding that the President should not be able to fire Fed chairs at will when the dissent is all about.
- [66:09]
Melissa Murray
How the President must have the power.
- [66:11]
Sarah Harris
To fire everyone at will.
- [66:13]
Melissa Murray
Listen to her, Brett. Kevin has even read it tell you you can't use that dissent for whatever you want. You just do it. You do it.
- [66:20]
Kate Shaw
This guy is truly a champion of citing cases for the exact opposite of what they actually say. Whether it is Wren for the proposition that you can't stab people based on race, or boom, again for the proposition that non citizens abroad like constitutional rights. Just performance.
- [66:37]
Sarah Harris
The President has to lose here because.
- [66:38]
Melissa Murray
Morrison, don't you guys, you're being hard on Brett Kavanaugh. Brett Kavanaugh, don't let them.
- [66:43]
Sarah Harris
He just hasn't read past this. Wolf comes as a wolf. That's it. That's the whole thing. There was more in there. Bread.
- [66:50]
Melissa Murray
He just hasn't read. Okay, all right. In other signs of the rapture, the end of times, the Chief justice actually told John Sauer to stop being ridiculous and stop interrupting the female justices. Let's roll that tape.
- [67:10]
Leah Litman
The Federal Reserve governor who sets interest rates for the entire country appears to have engaged in improper behavior.
- [67:15]
Melissa Murray
No, no, no, I understand.
- [67:18]
Leah Litman
Council, you're repeating.
- [67:20]
John Sauer
You're repeating the allegation.
- [67:22]
Melissa Murray
I want to just be very clear here. John Sauer was interrupting Justice Jackson like this was going on, but he had been interrupting almost all of the female justices who had spoken thus far. So I thought it was nice that feminist John G. Roberts stepped in here to be an ally and to tell John Sauer to get it together.
- [67:44]
Kate Shaw
Taking a page from the father of daughters Coach Kavanaugh.
- [67:47]
Sarah Harris
Well, we salute them both.
- [67:49]
Melissa Murray
ERA Now, John.
- [67:55]
Kate Shaw
I'm going to send him a.
- [68:00]
Melissa Murray
Feminist podcast T shirt coming your way, John G. Robert.
- [68:03]
Sarah Harris
That's right. Angry, angry feminist. See the people, the whole thing. Exactly.
- [68:09]
Melissa Murray
Okay.
- [68:09]
Sarah Harris
Returning for a minute to the question of the procedural posture of the case, it did actually feel to me as though the justices were kind of realizing, and I guess better late than never, that it was kind of insane to be considering a case this important in this posture. We already played the clip of Alito asking whether the actual applications were even in the record here. Is Kavanaugh also making the point? I mean, and the thinness of the record wasn't actually even his point here. But that aspect of the case is pretty hard to miss in these questions.
- [68:35]
Leah Litman
Again, I'm not talking about the facts of this case. I'm taking. I don't know the facts of this case, so I'm taking no position on that. And again, none of my questions or comments are about the facts of this case. I don't know the facts of this case, but thank you.
- [68:46]
Sarah Harris
Facts, schmax. This is just somebody's livelihood and the meaning of Article 2 of the Constitution.
- [68:51]
Kate Shaw
But just invent a citation, it'll all be good. You didn't need facts in that cabinet. Stop. Concurrence. You just declared them to be do.
- [68:59]
Sarah Harris
Know how to do this, but all of a sudden you're getting cold feet.
- [69:01]
Kate Shaw
Come on.
- [69:02]
Sarah Harris
But they, you know, truly only have themselves to blame for incentivizing and rewarding the administration running to them seeking relief in all these cases in which they suffered lower court losses. And you would hope they'll learn the lesson at least a little bit here and stop doing that. But we are not holding our breath. Truly a dispiriting again argument. If you care at all about law. But maybe some glimmers of hope from the perspective of constraints on executive power.
- [69:25]
Melissa Murray
It'S a great argument. If you care about the stock market.
- [69:27]
Sarah Harris
Shadow docket, if you care about the.
- [69:29]
Melissa Murray
Stock market, it's all good.
- [69:31]
Sarah Harris
Yeah.
- [69:32]
Melissa Murray
Get yourself a quarter zip and a fleece. You're going to be okay. All right. The court also heard oral argument in Wolford vs Lopez. This was the case challenging the Hawaii law that prohibits concealed carry on private property that is open to the public unless the property owner first consents. And as predicted on this podcast, this is shaping up to be another effort to clarify the scope and substance of the Faku to Bruin test. I'll just say maybe you wouldn't have to clarify the test so often if the test actually made sense in the first instance. But who am I anyway?
- [70:11]
Kate Shaw
Just insert a but the stock market into Bruin.
- [70:13]
Melissa Murray
Right? That'll fix it. I mean. So those who were defending the Hawaii law tried to take the Bruin test seriously by pointing to anti poaching laws that prevented hunting hunters from entering private property without the owner's consent. They also pointed to the post bellum black codes which prohibited newly freed African Americans from entering private property with firearms. These historic laws, they maintain, show that there is a national tradition of regulating firearms in a way that would allow private property owners to restrict the carrying of firearms on their private property, even if that property is open to the public. And I'm just going to say the invocation of the black codes seem to strike a very personal note with some of the justices. Let's take a listen to friend of the Pod woke Leto.
- [71:07]
Leah Litman
They wanted to disarm the black population in order to help the Klan terrorize them and other and law enforcement officers in that period in the that region. They wanted to put them at the mercy of racist law enforcement officers. So is it not the height of irony to cite a law that wasn't enacted for exactly the purpose of preventing someone from exercising the second amendment right? To cite this as an example of what the second amendment protects, can I.
- [71:38]
Melissa Murray
Just say, did I not predict? Did I not call this? I called it 100%. I'm just so glad that I didn't actually get specific and say if you hear the term black codes, then drink. I just said very generally racial justice. If I had said black codes drink, everyone would have had alcohol poisoning. Like this came up like 27 times in the oral argument so much.
- [72:04]
Kate Shaw
I mean, social justice warrior Sam Alito truly cares.
- [72:08]
Melissa Murray
Did you hear him thumping the desk? Listeners roll it back.
- [72:12]
Kate Shaw
He's enraged.
- [72:12]
Melissa Murray
Enraged and thumping the desk for emphasis. Like he cared. I wish a gun had tried to get into Harvard in SFFA versus Harvard. I really do. Like affirmative action would be secure. Right now if a rifle had just.
- [72:27]
Kate Shaw
Tried to get into Harvard, right? Yeah. I mean, who knows, maybe people should be writing their application essays about how they would like to bring their gun to Harvard. And Sam Alito would say, you have a first amendment right to enter that campus, sir. But you know, for better or for worse. It was for worse. It was not just Sam Alito who decided to be all over the black codes. Neil Gorsuch on this topic was so gross, suggesting that people who want to restrict guns love to invoke the black codes, which would otherwise be like garlic to a vampire for them. I mean, just disgusting.
- [73:03]
Melissa Murray
I will be clear. Neil Gorsuch is not new to this. This, he's true to this. He is the author of Ramos where the supreme Court basically overruled. I think it was Louisiana. He mentioned Louisiana again. So someone has gotten him all of the Louisiana racist laws and he knows them all. But he. Someone in Ramos. The court invalidated Louisiana's law that allowed jury verdicts to proceed even if they were non unanimous. And it was invalidated on the view that this had been a reconstruction of era policy intended to disenfranchise or to diminish the authority of black jurors. And he was all over this. He was woke, Neil Gorsuch in this case. And, and he's still woke, apparently. And he's still on this Black Codes. I will say, you know who was not having any of this invocation of the black codes as a means of expanding the second amendment one just lovely one, Ketanji Brown, Jackson. She was having none of this selective historicizing. So let's roll that clip.
- [74:05]
John Sauer
Let me just ask you about the black codes. Justice Gorsuch raised it and I guess what I'm wondering, your answer to him was they can't be and shouldn't be used. And I guess I'm wondering whether that doesn't signal a problem with the Bruin test. That to the extent that we have a test that relates to historical regulation, but all of the history of regulation is not taken into account, I think there might be something wrong with the test. So can you speak to that?
- [74:37]
Leah Litman
There's nothing wrong with the broom test, your honor. Just on a fundamental level, the black codes can't be used because they dealt to discriminate against a small.
- [74:45]
John Sauer
No, I understand why you're saying they can't be used, but it's because we've moved away from that history, not by. Because that history didn't exist. And so to the extent that the test today is tying us to historical circumstances, it would seem to me that all of history should be on the table. And if we start taking pieces off, whether it's because we've moved away from it or we don't agree with it anymore, I think there's gonna be a problem with respect to the accuracy of our test.
- [75:13]
Melissa Murray
Right, Correct. Yes, right, correct. Like, you can't start talking about the Black Codes here and then just like, forget about reconstruction when you're dealing with affirmative action.
- [75:24]
Kate Shaw
No, you cannot. Or voting rights. Yet they managed to do it. So there was a big disagreement over what this Hawaii statute actually regulates or what it might implicate, whether it was the Second Amendment or the rights of property holders in here. Justice Jackson, I think, was also really excellent. She suggested there is a difference between a law that infringes a right or implicates a right and a law that merely affects something we associate with a right. So, you know, as she said, quote, I'm suggesting, you know, it might affect a right. And the United States was here just last term or sitting talking about how you could have rights and regulations that affect someone's interest, but they actually don't implicate their constitutional rights. And so here I'm saying, yes, gun owners are going to be affected, but that doesn't mean it implicates their Second Amendment rights, end quote. I took this to be a reference to, to the Supreme Court disputing whether laws that ban gender affirming care for minors or laws that exclude trans athletes from participating in sports discriminate on the basis of gender identity or sex. And to my mind, her interjection of the Court's different approach to these different rights called to mind something we've talked about before on the podcast abortion Distortion. Just as the Supreme Court used to accuse the the previous majority of the court of warping law and doctrine to protect abortion, and now they are warping law to chip away at reproductive freedom. They used to chastise courts for treating the Second Amendment as a disfavored right. Now they are insisting on treating the Second Amendment as a better, you know, favored right that gets differential treatment, but in the opposite direction. Another example of this for me was during the argument time for the lawyer for the federal government. Government. The federal government asked the court to strike down the law by doing a pretext analysis, basically saying the law was an effort to manipulate property law to stick it to the Second Amendment. To which Elena Kagan said, that is not how constitutional law works. The Court usually shies away from asking about whether every State has acted pretextually and P S I would know since I wrote a fucking law review article about this.
- [77:33]
Melissa Murray
Whoops, like so. I think this is such an important point. Another thing came out that I think is related to it that, that you actually predicted in the preview of this case is just the tension for the justices, especially the conservative justices, between their embiggening of the second amendment and their traditional concern for the rights of property owners. So I mean, if you were around in the 2000s for kilo versus new London, like you'll remember how much they're really into private property ownership, except here when the. The property right is also somehow intersecting with the second amendment. And there was, I think, a very frustrating exchange with Sarah Harris who argued on behalf of the Solicitor General's office about whether this was really about the second amendment or if it wasn't really about property ownership. And Justice Jackson and Sarah Harris kind of got into it on that. And again, I mean, I think Justice Jackson got the better of the argument, but I also don't think it matters here. And I also don't think the previous interest in property rights is going to hold up against the amosexuality that was very much on display here.
- [78:42]
Kate Shaw
And in case you wanted more evidence of the tension between second amendment and property rights in this case, or more evidence that the second amendment is about to cannibalize all other law here, just listen to these exchanges between the advocate who is arguing to challenge Hawaii's law and some of the justices.
- [79:01]
Leah Litman
You say that there is a.
- [79:05]
Melissa Murray
Constitutional right to carry a gun on private property.
- [79:11]
Leah Litman
Yes, Justice.
- [79:13]
Melissa Murray
I've never seen that right.
- [79:15]
John Sauer
Do you concede that there is no second amendment right to carry a gun into someone else's house?
- [79:21]
Leah Litman
I do not, your honor.
- [79:23]
John Sauer
You do not?
- [79:23]
Kate Shaw
I do not. So one other exchange stood out to me and it was another moment during the argument time for the federal government when the lawyer for the Solicitor General's office, which is usually, I think, fairly circumspect, I mean not in this administration, but usually cautious in the positions they take, decided to just let it loose and throw out a pretty hot take on what the second amendment says, which was so aggressive it even made amisexual Sam Alito pause.
- [79:48]
Melissa Murray
The purpose of the second amendment right.
- [79:50]
Sarah Harris
Is to allow citizen to allow citizens to bear arms for self defense and other lawful purposes.
- [79:57]
Leah Litman
And off other lawful purposes?
- [80:03]
Sarah Harris
Yes.
- [80:03]
Leah Litman
Not just self defense. Did Heller say that?
- [80:07]
Sarah Harris
I don't think Heller excludes it.
- [80:09]
Melissa Murray
Do I want that kind of second amendment? I don't know.
- [80:12]
Kate Shaw
Yeah.
- [80:12]
Sarah Harris
Well, maybe I went back to Heller and Heller a few times says lawful purposes like self defense. So she is really reading a lot into it. Oh, they must have had a lot of others in mind. But Heller doesn't really talk talk about others. So yeah, that was aggressive for sure.
- [80:26]
Melissa Murray
Don't let text get in the way.
- [80:28]
Kate Shaw
No, just cite Heller for the opposite of what it says. Right.
- [80:33]
Sarah Harris
Like Kavanaugh will love it.
- [80:35]
Melissa Murray
That's constitutional law with a K.
- [80:42]
Sarah Harris
There were also just like a few points when I wanted to pull my hair out as the conservative justices. So we mentioned Heller already, but Post Heller and McDonald and Bruen Somehow, with this court's just bear hug of the second Amendment is somehow still trying to convince everyone that the second Amendment is really the victim here. It is a disfavored and second class right. They said this repeatedly. John Roberts in a long passage said.
- [81:08]
Melissa Murray
That it's another species of the conservative grievance. Like just, yeah, you hate us, you hate our rights. Yeah, I want to hear the sort.
- [81:17]
Sarah Harris
Of like practice of Christianity. Okay, yeah, so, so let's play that clip here.
- [81:21]
Leah Litman
It strikes me that one of the things that your side of the case has to come to grips with is that it is a very clear constitutional right under the First Amendment. If I, for example, as a candidate for office want to walk up to your door on private property and knock on the door and say, here, give me your vote, that's exercising the First Amendment right. But you say that it's different when it comes to the second Amendment, that you can walk up when the candidates wants to walk up and he's carrying a gun is what exactly is the basis for the distinction?
- [81:57]
Melissa Murray
Can we just talk about how fucking wild it is to compare walking up to someone's door to ask them to vote for a candidate and walking up to someone's front door with a fucking gun. Like what?
- [82:08]
Sarah Harris
I mean, gosh, guys, like what could be the basis for the distinction between the first and second Amendments? What possible differences for the state and the population at large have in regulating politicians asking for your vote on the one hand and literal weapons of death on the other. In terms of the pulling my hair out though, like I kind of expect it from the bench at this point. But the fact that like no one, like even Neil Katiel who's representing the state of Hawaii said anything about like there may be a actually being kind of some principled reasons for treating the first and second somewhat differently here, I just found kind of crazy making. I get that it is like political Kryptonite to even say like, oh yeah, second amendment might be a bit different, but like it just is. And I don't understand why no one can say that, like if you're losing this case anyway, like, please speak some sense while you do it.
- [82:56]
Kate Shaw
Yeah, you know, from your lips. So one other case the court heard M and K Employee Solutions versus trustees of the IAM pension fund. This is an ERISA statutory interpretation case that involves a type of pension plan in which a group of employers in the same industry band together to form a multi employer pension plan, often under the auspices of a collective bargaining agreement that requires them to provide specifically defined benefits. This is different from the more common defined contribution plan, largely because it involves less risk for the employer. So multi employer pensions spread the risk among a bunch of employers, but they can also be complicated to administer, especially when an employer leaves the fund and the remaining employers are on on the hook. Congress has responded by requiring the departing employer to pay what an actuary calculates as the departing employer's share of any shortfall calculated quote as of the last day of the year before an employer withdraws.
- [83:50]
Sarah Harris
So here the dispute between the departing company and the pension fund arose because after the valuation date the actuaries changed their views as to the assumptions they were using about the future performance and obligations of the plan. So the departing employer liked the assumptions the actuary had used the previous previous year. The fund liked the new assumptions. The question is which assumption should prevail.
- [84:09]
Melissa Murray
And the justices seem pretty skeptical of the departing company's argument that calculating the withdrawal liability, quote unquote as of the valuation date requires the actuary to use out of date assumptions. And in particular, they seem concerned that the company's approach would require actuaries to ignore market realities that were happening in real time, like major accident economic events. The justices brought up Covid, Pearl Harbor. All of these were mentioned in favor of a set of outdated assumptions that were not rooted in real time conditions. And I don't know how this is going to go. I'm not an ERISA head. I know some of you out there are. So maybe you have better ideas. But I thought it was incredibly telling that the argument was very short. It was under an hour. Most of the questions from the Justices were directed almost exclusively at the lawyer who was representing the departing company and his name was Michael Chamele. They had very few questions for John E. Roberts, although the chief was clear that they were not related. Thank you, sir. That was a concern. He was representing the fund. Nor did they have a lot of Questions for Kevin Barber, who appeared on behalf of the federal government in support of the fund. But if I were a betting person, I would put my money on or in the fund.
- [85:30]
Kate Shaw
Get it.
- [85:32]
Melissa Murray
I'll be here all week on our pension plans. I'll be right.
- [85:35]
Kate Shaw
Like it's the theme. It's the theme.
- [85:37]
John Sauer
It was.
- [85:37]
Melissa Murray
He's like, get that pension together. Strict scrutiny is brought to you by stamps.com in 2026. Here are some things I don't have time for. Getting roughed around by ice, Being sent to SEOT and waiting in line to buy stamps or mail packages. That's where stamps.com comes in. With stamps.com you can send from your computer or phone 24. 7. There are no long lines, no low supplies. It's open anytime. And you can print postage on demand and get up to 90% off carrier rates, including 90% off rates from carriers like FedEx, UPS and USPS. You can schedule carrier pickups right from your door. You can get carrier compliant labels every time. There are no errors, no rejected mail, and best of all, no wasted trips. Stamps.com is perfect for your life and your business. You can send certified mail. You can get document tracking to confirm delivery and analytics to make sure you know exactly what you sent and spent. And for almost 30 years, millions of customers have relied on stamps.com to make mailing and shipping faster. And so simple. Here's what stamps.com users have to say about this incredible service. Quote I used to block out time every week just for post office runs. Now I handle everything from my desk in a fraction of the time. Sam's.com has genuinely changed how I run my business. I'm not exaggerating when I say it saved me hours every single week. I would love to save hours every single week. Who wants to waste time standing in line trying to buy mailing supplies? Stamps.com is an easy way to cross something that you hate doing off your to do list. And right now you can try stamps on.com risk free for 60 days. Go to stamps.com and use code strict to get 60 days risk free. 60 days gives you plenty of time to see exactly how much time and money you're saving on every shipment. That's stamps.com code strict. Stamps.com code strict. Choose to lean into it. Every Mazda is engineered to give you effortless control. I wake up. All right, so that was a week of oral arguments. Very sorry that Arissa got overshadowed by a muscular vision of executive power and the probability that the President might be be able to ask for your vote while also holding a gun. We got a couple of opinions this week that we should mention. To be clear, none of them were about tariffs or the continued vitality of Section 2 of the Voting Rights Act. I'll talk about the first one. Burke vs Choi this was the case that concerned a conflict between a state evidentiary law and the Federal Rules of Civil Procedure. Under Delaware law, a plaintiff suing for medical malpractice is required to provide an affidavit from a medical professional that attests to the suit's merit. However, in a unanimous opinion written by Justice Barrett, the Court held that the Delaware law conflicts with Rule 8 of the Federal Rules of Civil Procedure and per Airy versus Tompkins, does not apply in Federal court. The Court reversed the decision below and remanded it back to the District Court should also note that Justice Jackson filed a concurrence in which she joined the judgment, but noted that in her purview, the conflict between the Delaware law and the Federal Rules of Civil Procedure was not between Rule 8 and the Delaware law, but between Rule 3 and Rule 12.
- [89:10]
Kate Shaw
So we also got the opinion in Ellenberg versus United States. This is a case about whether restitution under the Mandatory Victims Restitution act of 1996 is considered criminal punishment for purposes of the Ex Post Facto Clause. The Ex Post Facto clause of Article 1 prohibits Congress from enacting laws that impose penalties on or criminalize conduct after the conduct has already occurred. The petitioner, Ellenberg, committed his crime before the MVRA was enacted, but was nonetheless sentenced under the NVRA in order to pay restitution. He argued that the restitution obligation violated the Ex Post Facto Clause. The ACE Circuit concluded that restitution is not considered criminal punishment subject to the expos facto laws. But the Court, in a brisk six page unanimous opinion written by Justice Kavanaugh, in ink no less, held that the terms of the MVRA make plain that restitution is considered a species of criminal punishment for its purposes. Also, stay tuned to hear about that A Circuit but back to Ellingberg. Justice Thomas penned a lengthy concurrence almost four times as long as Justice Kavanaugh's opinion, arguing that the Court should apply the Ex Post Facto Clause even more broadly than it did in Ellenberg.
- [90:16]
Melissa Murray
That's just classic Justice Thomas and a Justice Thomas concurrence. I would go further, right?
- [90:21]
Kate Shaw
Yeah.
- [90:22]
Melissa Murray
I would go all the way back to 1692 anyway.
- [90:25]
Kate Shaw
Yeah.
- [90:25]
Melissa Murray
All right. We also got an opinion in Coney Island Auto Parts Unlimited Inc. Vs. Burton. This was another unanimous opinion. I guess the Court found its consensus. This case considered the amount of time that litigants have to challenge judgments as void. Writing for the Court, friend of the pod Sam Alito held that Federal Rule of Civil Procedure 60 c.1 places a reasonable time limit on motions seeking relief from an allegedly void judgment. Justice Sotomayor stepped in to file a separate concurrence, noting her agreement with the judgment but not the majority's reasoning. As she explained, the majority quote, unnecessarily opines on the potential validity of a constitutional challenge to the reasonable time limit under the Due Process Clause. Coney island did not make this argument below, and the 6th Circuit did not pass upon it, end quote. Where have we also.
- [91:16]
Kate Shaw
I mean, just do it.
- [91:18]
Melissa Murray
Just do. Why not?
- [91:19]
Kate Shaw
Anyway, yeah, so we also wanted to highlight a writing that we got on the orders list, which was a descent from just Justice Jackson. So the orders list specifies the cases on which the Supreme Court has denied review or, as was the case here, denied, what's called informa pauperis, or IFP status. IFP status is granted when a litigant is indigent. It results in the Court waiving the usual filing fees and printing costs associated with seeking Supreme Court review. The Court will generally grant IFP status unless, as the Court's rules indicate, it deems the filing for frivolous. But the Court then started the practice of adopting a policy of denying IFP status across the board if a litigant had filed a certain number of petitions or requests for relief that the Court deemed frivolous. It partially formalized this practice in an opinion, Martin v. District of Columbia Court of Appeals, such that the practice of denying IFP status across the board is now called Martinizing.
- [92:17]
Melissa Murray
The Court's decisions denying IFP status don't usually get a lot of attention, but the this week, Justice Jackson decided that she had something to say about it. As she wrote, quote, the Court has steadily expanded the reach of Martin, transforming what was once an extraordinary measure into a routine order. In this particular case, we should note the petitioner was subject to a bar because he filed six petitions over the span of 14 years, with the last one in 2018 being eight years ago, Justice Jackson announced in her writing that she will not impose the filing bar, which again prohibits people from filing IFP papers ever again. As she notes, the bar applies even if the indigent litigant might be raising new claims based on favorable changes in the law or to challenge the ongoing conditions of their confinement. The future she noted, is famously hard to predict.
- [93:08]
Kate Shaw
So, as promised, some developments in the lower courts. It has been a while since we have had an entry in who can beat the 5th Circuit and be crowned America's worst circuit circuit court. Until now, America meet the 8th Circuit. So this particular entry involves the case brought by Minnesota activists who sued the Trump administration in December on the grounds that the administration's tactics as part of, you know, their mass deployment of ICE against protesters violated their constitutional rights to protest and to observe the enforcement actions. A Minnesota district judge issued a preliminary injunction barring federal immigration agents from retaliating against non, nonviolent unobstructed protesters and explicitly prohibiting federal agents from using pepper spray, tear gas, or other crowd control munitions against peaceful demonstrators or bystanders who were observing or recording immigration enforcement operations in the Twin Cities. The injunction was to remain in effect while the merits of the lawsuit would be litigated. But predictably, the Department of Homeland Security appealed that ruling. And last Wednesday, the Court of Appeals for the 8th Circuit litigated, lifted the lower courts order that had restrained federal officers from arresting or tear gassing peaceful protesters when thousands of immigration control agents had been deployed over the wishes of state and local leaders and their citizens. Literally Hours after the 8th Circuit's ruling, video surfaced showing DHS's Greg Bovino deploying tear gas against protesters. There were also photos of ICE officers holding down people's faces while directly pepper spraying them in the face. So, thank you, 8th Circuit.
- [94:42]
Sarah Harris
I just, I don't know if you've ever had like, pepper spray or tear gas or mace sprayed in or near your face. I just don't know if people realize, like, how insane an experience and sensation that is at any distance. Seeing these people pepper sprayed in the face, in the eyes and the nose and the mouth, from like inches away, which we've now seen on a number of occasions, is just so, so horrifying.
- [95:06]
Melissa Murray
Well, wasn't there a pepper spraying of.
- [95:08]
Sarah Harris
A baby in the. In through a car window? It's. And now, now not like directly in the face of a baby, but yeah, they, they are spraying inside cars, including ones with children and infants in them. Absolutely. Yeah. It's just a reminder that, you know, obviously lethal violence is the thing that is attracting the most attention, and rightly so. But the kind of casual but very serious violence that we are seeing perpetrated against dozens and hundreds of protesters in Minnesota and elsewhere is also something that people should be paying an enormous amount of attention to. So final piece of news to kind of wrap on in A case out of Chicago Judge Sarah Ellis, who people might remember from, you know, another challenge to dhs. In that case, CBP Tactics in Chicago dismissed a Jonathan Mitchell backed lawsuit accusing Northwestern Law School of discriminating in its hiring against white men. The suit makes its case in part through truly odious smears of some of the amazing black professors at Northwestern or recruited by Northwestern. There's no opinion yet in the case and the dismissal was without prejudice. So this is unfortunately not the last word, but there is a hearing scheduled for mid February and I expect that we will know more then.
- [96:20]
Melissa Murray
Can I just say something about this lawsuit? First of all, I was looking forward to the discovery where we would parse the records of the individuals who are allegedly discriminated against in the same way the complaint parsed the records of the people of color that it smeared so liberally. In drafting whatever you want to call this lawsuit, I'll also say that the lawsuit, regardless of whether it's thrown out, dismissed with or without prejudice, has likely had the intended impact. And the intended impact was to say, smear these professors of color to make them unappealing prospects for lateral hires, for entry level hires, for students who are doing law review selection. I mean, and that was kind of the point, to paint all of them with the broad brush of inferiority. And I hope that people understand that and resist that characterization. So I'm glad that Judge Ellis got rid of this. I'm really sad for the people whose careers were smeared by this. It was unfortunate and unnecessary.
- [97:23]
Sarah Harris
I don't know all the individuals in the complaint that. Well, Miriam Gillis is a relatively recent hire at Northwestern who was at Cardoza for many, many years with me for a lot of those years and is like an unbelievable, extraordinary scholar. And, you know, it was despicable for the complaint to smear her and others the way that it did. And I hear you, Melissa, on discovery actually would have been. Been helpful in rebutting the smears. But also, this case should not be allowed to proceed. And so I'm glad, at least for now.
- [97:53]
Melissa Murray
It's like, again, like, you can just say whatever you want about someone at a complaint and sort of make this point that these other people were passed over. Like, tell me about their records. What's going on? Yeah, I want to know.
- [98:04]
Sarah Harris
Absolutely. Yeah.
- [98:06]
Melissa Murray
All right, let's turn to happier things, favorite things, in fact.
- [98:11]
Kate Shaw
Melissa, do you have anything to share?
- [98:13]
Sarah Harris
Melissa's up first.
- [98:16]
Melissa Murray
Well, folks, I wrote a thing.
- [98:20]
Sarah Harris
It's in. It's physical. It's in your hands.
- [98:22]
Melissa Murray
It's in my hands. I wrote a thing.
- [98:24]
Kate Shaw
It's real.
- [98:26]
Sarah Harris
Okay, tell our audio listeners what you're holding exactly.
- [98:29]
Melissa Murray
I am holding my forthcoming publication. Wait for it. It's called the US Constitution.
- [98:35]
Sarah Harris
No, Melissa wrote the Constitution.
- [98:37]
Melissa Murray
She did a better one.
- [98:40]
Sarah Harris
We do need a better one.
- [98:41]
Melissa Murray
True, but I didn't really.
- [98:42]
Sarah Harris
I would take yours.
- [98:43]
Melissa Murray
So this is basically a guide to the Constitution, so replicates the entire Constitution. And then clause by clause, I explain the history, the origin story of the various parts of the Constitution and give folks a sense of what the framers are trying to do. And by framers, I also mean people in the 19th century and even in the century, 20th, 20th century with some of these amendments. So I'm not just talking about James Madison and where he went to summer camp, but a broader range of people for purposes of originalism. So it's forthcoming from Simon and Schuster. It will be out in May of 2026, but you can pre order it now. And I actually think it's kind of fun reading. I tried to make it very accessible. It's not pitched at you ladies, not for a law professor crowd. It's literally for people who are just wandering around wanting to know what's going on with this. Yeah.
- [99:35]
Kate Shaw
So two things about this US Constitution as annotated by Melissa. First, as this court insists on warping history and inverting constitutional protections, I feel like this is a very necessary corrective where you can get the real story and understand, you know, what they are doing with the Constitution. And then second. Second, you know, as ICE is asking all of us for our papers, I feel like everyone should really be carrying around a Constitution annotated by Melissa Murray to present ICE officers and say, these are the only fucking papers I need, bitch.
- [100:14]
Melissa Murray
But can they read them?
- [100:16]
Kate Shaw
They don't have to.
- [100:17]
Melissa Murray
True, true. I will note that the section on the Fourth Amendment is dedicated to Brett Kavanaugh. It's not.
- [100:27]
Kate Shaw
And Greg.
- [100:29]
Melissa Murray
It's not. It's not.
- [100:30]
Kate Shaw
Okay.
- [100:33]
Melissa Murray
That's all I got.
- [100:33]
Sarah Harris
Carrying it around in your. In the protest bags you're packing, I think is actually a really good idea. Leah.
- [100:39]
Melissa Murray
Yeah, hop to it. Hop to it, folks.
- [100:43]
Sarah Harris
Yeah. So more to come. But I also do think, on a serious note, like, they are in real time trying to refashion the Constitution into something that is very different from what we have long understood it to be. For all of its shortcomings, it's got lots of very good things in it. And they want. Want to remove the last sort of good provision standing. And so actually arm yourself with the knowledge of what these provisions actually do mean and do. So a Favorite Thing obviously forthcoming in May. Your book, what other Favorite things do you want to share?
- [101:11]
Melissa Murray
I have one more Favorite thing. I loved Robin Givon's New York Times op ed titled Valentino Was the Last of Fashion's Old Guard, which considers the impact of Valentino Garavani, the fashion designer who passed away last week at the age of 93. I love Robin Givon's writing. She used to be the fashion editor for the Washington Post, and she is not just an observer of fashion, but if she was, that would be fine. But she's someone who thinks about fashion in the larger context of culture and society and this piece makes clear why she is the first fashion writer to win the Pulitzer Prize for criticism because it puts Valentino's career as a designer in conversation with evolving standards of beauty, the changing role of women's society, the retreat to traditionalism that is embodied in the current moment. So I think it's a really great profile and I love it. We should also note friend of the Pod, Ellie Mistal has a great piece in the Nation on the arguments in the trans ban cases. That's Hecox and bjp. The piece is titled the Supreme Court Just Held an Anti Trans Hate Fest. I think that pretty much encapsulates it.
- [102:15]
Sarah Harris
I saw the Robin Givhan piece and I was like, Melissa would want me to read this. I should read it. And I haven't. But now I will with that pitch. Just a couple things for me. One, there was a great piece in the Atlantic by Franklin Foer, the Purged, that has, I think a great opening, just about what has already been lost in the kind of decimation of the civil service in the first year of the Trump administration. And then there are some great profiles with fired or in some cases resigned federal workers. Just enormous loss incapacity and expertise that is going to affect all of us and society writ large for years or decades to come. Grim stuff. Lev Menand had a great piece in the Times, an opinion piece about, you know, not just the kind of like unitary executive stuff that we've been talking about with the Trump vs Cook case, but also like the potential for corruption and self dealing not just again in interest rate manipulation, but in all these other ways that presidential control of the Fed would invite that were even more chilling than I had sort of realized. And two, more kind of like reading recommendations. I finished God of the Woods. I really recommend it and I'm currently reading Broken country and I'm not sure yet how I feel about it.
- [103:25]
Kate Shaw
I liked it, but it's not on God of the woods level.
- [103:28]
Sarah Harris
No.
- [103:28]
Melissa Murray
Just.
- [103:29]
Kate Shaw
No.
- [103:29]
Sarah Harris
Yeah. Okay. All right.
- [103:30]
Melissa Murray
I'm going to finish it.
- [103:31]
Sarah Harris
But God of the woods really was great.
- [103:32]
Kate Shaw
Yeah. So my favorite things. There was an order last week telling Lindsay Halligan that she's such a shitty lawyer and her briefs fall so below standards she can't side them as US Attorney. And by the way, she's not US Attorney, so she needs to stop representing herself that way. That order was amazing. And then Halligan decided to just out and say, I'm no longer going to be whatever I was acting or pretending to be in the U.S. attorney's office for the Eastern District of Virginia. So that was a happy kind of storyline. If you didn't catch it, highly recommend Prime Minister Mark Carney's speech at the World Economic Forum. Just a very powerful and clear articulation of the changing world order and what Donald Trump is doing by way of self destruction of the United States and its position in the global state of affairs.
- [104:27]
Melissa Murray
The world.
- [104:28]
Kate Shaw
Yeah. Two Minnesota things. So for those of you who might not have heard, at the end of last week, on Friday, Minnesota business, businesses and schools basically announced a collective strike in which everyone shut down for a day in order to protest the continued presence of ice. And if you are looking for ways to help support Minnesota groups businesses, there is a website, standwithminnesota stand with M I N-N-E-S-O-T A.com that you can check out. There was also a piece in New York magazine by Kerry Howley, the People versus Versus ice that details, you know, communities banding together, organizing and standing up to ice. That is very much worth checking out.
- [105:10]
Melissa Murray
All right, some housekeeping before we go. Listen up, stricties. We're bringing this show to the beautiful west coast. And it's not just the great show. We're going to have giveaways, we're going to have games, we're going to have all the things. And as you may already know, our San Francisco show is already sold out because it's going to be awesome. But you can still join us in LA on March 7th at the Palace Theater. LA is going to be absolutely amazing because we love LA and we are bringing our A game, our LA game to LA. L A face Oakland Booty. All the stuff is coming for you. La. Be ready. Be so ready.
- [105:53]
Leah Litman
And.
- [105:53]
Melissa Murray
And we have some pretty clutch guests.
- [105:57]
Kate Shaw
We do.
- [105:57]
Melissa Murray
Should we tell them?
- [105:58]
Kate Shaw
We do. We do.
- [105:59]
Melissa Murray
I don't know.
- [105:59]
Kate Shaw
I don't know just yet. We'll just say they really span the law culture. Kind of divide.
- [106:06]
Melissa Murray
And for you la, only for you.
- [106:10]
Kate Shaw
Exactly. So grab your tickets before they are gone@crooked.com events.
- [106:26]
Melissa Murray
Strict 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. Our music is by Eddie Cooper and we get production support from Katie Long and Adrienne Hill. Matt de Groat is our head of production and we're really grateful for our video team, Ben Hethcote and Johanna Case. 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 want to help other people find the show, please rate and review us. It really helps.
- [107:16]
Sarah Harris
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- [107:41]
Melissa Murray
And it works.
- [107:42]
Sarah Harris
Crispy chicken nuggets from Taco Bell, a brand new classic at participating US Taco Bell locations for a limited time only while supplies last.
- [107:50]
Leah Litman
A KFC tale in the pursuit of flavor. The colonel made his $10 Tuesday bucket so full with eight pieces of juicy crispy chicken or tenders that it might just last you till Wednesday if you've got that kind of self control. I mean some people want leftovers, others are more into right nowers. The Colonel lived so we could chicken 10 bucks 8 pieces. One big deal with KFC $10 Tuesdays.
- [108:17]
Sarah Harris
Prices and participation may vary. Taxes, tips and fees, extra.