Leah Littman (18:05)

What are you guys doing?

Alison Gill (18:06)

Getting into trouble. Spy. Get me into trouble. All right. This is for From a listener Hi Beans, tired park ranger with the USFWS here. I'm reaching out to boost awareness of what's happening with the Endangered Species Act. They're planning to change the definition of harm to exclude habitat loss so that regulations can be rescinded and companies have more access to lands that keep our at risk and endangered species alive. The USFWS and the NMFS are accepting public comments on these ESA changes. If people are able, please leave a response. The comments are public, so be aware. Names may be displayed with each comment. Thanks for keeping me as sane as reasonable through all of this. I feel like you're keeping my nose above the Waves. I'll keep it up if y' all keep it up. Deal? Yes, deal. And we will have a link in the show notes to leave a comment on the Endangered Species Act. All right, we'll be right back with the amazing Leah Littman after this quick break. Stick around after these messages. We'll be right back. Hey, everybody, it's ag. DeleteMe makes it easy, quick and safe to remove your personal data online at a time when surveillance and data breaches are common enough to make everyone vulnerable. Today's episode is brought to you by Delete Me Online. Privacy has never been more fragile. With just a few clicks, anyone can dig up your address, your phone number, even information about your relatives and family members. That is data you never agreed to share. Being sold and traded like a product. And unfortunately, there is no mere inconvenience here. It can become a threat. I've watched friends get harassed and doxxed, and I've even experienced that creeping anxiety that comes with being too visible. That's what pushed me to find a better way to protect myself and my data. Deleteme works by actively removing your personal information from hundreds of data broker websites. It's not just one single sweep. They keep monitoring it throughout the year so your information stays off the grid as much as possible. Every quarter, I get a detailed report showing what they fil found and what they removed and how much time they have saved me by having to not do it myself. It's a relief to see the results spelled out like that and to know that I don't have to track down these listings myself. So if you're someone who shares content online, works in a sensitive field, or just wants more control over your digital footprint, Delete Me is worth checking out. It will not make you invisible, but it does reduce your exposure and that makes a real difference. So take control of your data and keep your private life private by signing up for Delete me now at a special discount for listeners. And get 20% off your delete me plan when you go to JoinDeleteMe.com DailyBeans and use promo code DailyBeans at checkout. That is the only way to get 20% off is to go to JoinDeleteMe.comDailyBeans and enter code DailyBeans at checkout. Again, JoinDeleteMe.com DailyBeANS code DailyBeans hey everybody, welcome back. I am super excited. I'm joined by a friend of mine going back to like the old Mueller investigation. Friend of mine, she's a professor of law at the University of Michigan, former Supreme Court clerk. She co hosts the Strict Scrutiny podcast on Crooked Media. She writes a lot about the Supreme Court for the Washington Post, Slate, the Atlantic, and she appears as a commentator on npr, msnbc. I'm sure you know her. Her new book is called how the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Please welcome Leah Littman. Hi, Leah.

Leah Littman (21:27)

Thank you so much for having me. I'm so excited to be here.

Alison Gill (21:30)

Thank you. I feel like we rarely get to talk. And then when I saw this book come out, you know, Cause as soon as lady justice came out, I was like, ooh, this is gonna be good. And now we've got this book, Lawless, which is like, that meets the irreverence of Elie Mestall and all the brilliance of somebody who's clerked for the court and knows the court inside out and does a whole podcast about it. And so I'm really, really excited for everybody to read this book and I'm excited to talk to you about it. What prompted you to write it? Because the whole idea that the Supreme Court is running on vibes is like, so real and frightening.

Leah Littman (22:09)

Yeah. So this book has been long simmering in my mind basically ever since the time I was clerking on the Supreme Court. I was at the court when they heard the initial constitutional challenge to the Affordable Care act, where they almost blew up the entire Affordable Care act, missed it by one vote based on this insane anxiety that the government might one day force us to buy our broccoli. And everyone's liberty was being infringed because so many people want to go out and about and not have health insurance. And so seeing the court come so close to the cliff was very eye opening for me. And then everything that has happened since has just made me more concerned. I felt like I was terrified about the court before other people started being nervous about the court. And I still think people are not even scared enough of these guys. So that's really where it came from.

Alison Gill (23:06)

Yeah. And something I've noticed is that a lot of the, you know, dissents in the cases that go the way we want them to go, particularly with Alito or Thomas. When you talk about vibes, I mean, he. He bases his law, his understanding of the law on commentators. And not just commentators, but cherry picked things that commentators say. Like in this recent ruling on. Not the Alien Enemies act, they didn't touch the Alien Enemies act yet, but in this recent ruling, 7 to 2 about the northern District of Texas detainees, where Alito was like, yeah, this one commentator said that, you know, we can't do civil class actions in habeas stuff. But the very next sentence in that law article says, but yes, you can. But he left that decidedly out. So, I mean, we see this all the time from a certain group of folks on the Supreme Court where they're just kind of going on, well, my best friend's brother one time said that this should be this way. And so, you know, I kind of agree with that. But it's all kind of pointing at a unitary executive. And it boggles my mind that the chief justice, John Roberts, would go out and say the rule of law is in danger when he himself is part.

Leah Littman (24:21)

Of the reason why there's so much going on there. But yes, this is a court that in my view is really captured by far right conspiracy theories. If you think about some of the cases they were hearing just in April about whether school districts can include LGBTQ instructional material in the classroom or whether a state has to charter religious public charter schools, the questions from Justice Alito and the other justices were reflecting Fox News talking points like your weird fringe theorist uncle. He was going on about how well state you would allow schools to teach the 1619 Project and CRT and you would allow schools to tell students they have to be trans, but you won't allow a religious public school. And schools aren't doing that, of course. But that atmosphere, that ecosystem has a real audience at the Supreme Court. And you're right, this completely cannibalizes the law, including in the immunity decision or in the decision from last term where they said states couldn't disqualify Donald Trump from the ballot because of his participation in January 6 or stop the Steal. You know, during that oral argument, Justice Clarence Thomas projected this view of the entire project of reconstruction, according to which it was driven by, according to him, a strong desire to retaliate against the south rather than enforce civil rights. And again, it's that worldview that is driving and swallowing so much of the law and facts and reality.

Alison Gill (26:01)

Yeah. And it kind of smacks of the old, well, if you let gay people get married, what's next? People are going to marry animals and then people will marry gardening tools and et cetera, et cetera. All sort of this bad vibe conspiracy theory right wing talking points who oftentimes these justices actually quote in their dissents or their majority opinions. It's wild. It's like when, when Donald Trump was arguing that he should have immunity and quoting Marbury v. Madison to do so it's. It's like. It's like that. And they're buying it. Like, some of them are buying it.

Leah Littman (26:38)

Oh, yeah. I mean, they completely twist the law as well as the facts. I mean, if you think about the immunity decision, for example, it's not just Donald Trump perverting Marbury versus Madison. The Chief justice really, in my view, twisted the foundational canonical case on presidential power, Youngstown. In that case, the court said, you know, Harry Truman, the president cannot order the seizure of steel mills without Congress authorizing them. And what the controlling opinion. What became the controlling opinion in that case, Justice Jackson said, is, look, when the President is asserting the power to do something in violation of federal law, we courts have to carefully, closely scrutinize those assertions of power because they are so conclusive and preclusive. What did the Chief justice do with that line? He just started describing broad swaths of the President's powers as conclusive and preclusive without carefully scrutinizing whether they were in fact so. And they are very good at taking errant phrases out of context from earlier opinions or wherever else in order to make the law what they would like it to be.

Alison Gill (27:54)

Yeah. And can you briefly just talk about. Because I know you go over this in the book, kind of the overview of scrutiny, strict scrutiny, et cetera, as it applies to justices trying to, you know, take apart Reconstruction Amendments or gut civil rights, Voting Rights act, et cetera. Because there are levels of scrutiny. Right. That the. I think at one point the Supreme Court just sort of made up to determine what they can look at. Right?

Leah Littman (28:19)

Yeah. So all of the chapters goes into different areas of law and kind of traces their evolution, where they came from, where they might go next. In the chapter on voting rights, you know, there's a part of constitutional law that's known as the tiers of scrutiny in there. The justices basically decide, well, we're gonna review certain kinds of laws very carefully. Right. That's called strict scrutiny. We're going to view another category of laws less carefully, but still fairly rigorously. That's intermediate scrutiny. And then there's the default standard of review, rational basis review, which is basically just courts, judges slobbering all over the legislature, letting them do whatever it is they would like. And yes, the tiers of scrutiny aren't anywhere in the Constitution, of course, they're a court's way of implementing different constitutional provisions, basically placing a thumb on the scale, saying, well, these kinds of laws, they're kind of raising alarm bells. And so we're going to look at them more closely. Whereas these other kinds of laws, not so concerning. So we are going to review it super quickly and give the legislature the primary hand here. And the laws that the court is now looking at most closely are of course laws that burden religious and social conservatives and laws that they think unfairly discriminate against white people. So those are the kinds of laws. The court has said those ones, those are problematic.

Alison Gill (29:45)

Yeah. And a lot of your book is. Is focused on how we got here. Right. How we got to the bad vibes. Conspiracy theorists, you know, supported opinions from. From certain members of the Supreme Court. And that's one of the aspects of it. Right. Is the applying strict scrutiny to certain kinds of cases and certain kinds of laws. But how else did we get here?

Leah Littman (30:08)

How did we get here? I think it is a story of several different moving parts that put us on this collision course. One is of course a story about the Republican Party and how that party became comfortable catering to an increasingly narrow segment of the country that required them to lean into minority rule. And, and that also meant they really needed to control the Supreme Court. Add to that the story of the conservative legal movement which developed this extremely well funded alternative ecosystem that would encourage the Republican appointees to continue doing Republican things on the Court, also designed a brutally effective screening mechanism where they could identify nominees who would more reliably reflect the Republican Parties views. Add to that kind of the democratic decline of our institutions, which made it easier for a party that doesn't have majority support to win the presidency and to control the Senate and to use partisan gerrymandering to control the House. And all of these things coalesce together into this catastrophic situation where you have a minority rule, Supreme Court undermining our democracy because they're totally fine catering to fringe views.

Alison Gill (31:27)

Yeah. So every time I think about it, it kind of seems pretty hopeless because they have lifetime appointments and there might be things that we want to do to fix it that require amendments to the Constitution which are very unlikely in our current state here in the United States, in the body politic. But you know, there is hope. And I mean, how does this court retain its co. Equal branch status? And what can we do besides vote for people who will nominate proper justices to reform the Court?

Leah Littman (32:00)

Yeah. I mean, it is a difficult story to absorb because I do think one important take home is look, they spent almost five decades working to gain control of the Court and laid the groundwork to doing so. And that required a bunch of small steps. There were setbacks and, and I think today we want to imagine there are things we can do that will instantaneously fix this. You know, if we go out and vote in one election or if we sign a petition or if we go to a protest, like, things are going to get better. And that's just not how change works, especially at the federal level. So I think it is important to create goals and try to identify progress on a smaller scale. So I do think one important first step is just public information, public education and organizing. I don't think it's an accident that Donald Trump's public approval ratings are plummeting the more people know about, for example, his cruel immigration policies. So educating people, informing people about what is going on at the Supreme Court and what the Republican Party has done to the court, how the court has changed, how it's changing the country, I think that is an important step. I think that then will change the incentives of Democratic politicians to focus more on the courts and to meet their base where they are, so that the next time Democrats are in power, they are willing to use that power to actually democratize our institutions, including the Supreme Court, and we can stop some of the damage at the state and local level as well. So in the book, I talk about state supreme courts that have been able to make a lot of positive change. And also Wisconsin. Exactly. Including Wisconsin, including Michigan, including some races. Yes. Well, no, we still.

Alison Gill (33:52)

At least she got sworn in and he conceded six months later.

Leah Littman (33:55)

@ least a loser's effort to overrule and overturn the results of an election was rejected. And these days, we need to celebrate even avoiding catastrophic losses. So that is something, I guess. But, yeah, so it's all of the above, a combination. But I do think we need to reconcile ourselves to the fact that this is going to be a fight that happens over the longer term, and that is just reality.

Alison Gill (34:23)

Yeah. And that's why information and education is so important. That's why podcasts like Strict Scrutiny and books like Lawless are so important. The. The book Lawless came out May 13th. It's available everywhere. Do what I do. Get the audiobook, listen to the audiobook, and then buy 10 copies and go put them around in little libraries in your neighborhood and help with the very small step and the very, I think, tiny goal of helping educate people in your community and near you and around you. Talk about this with your friends and family so that they'll talk to their friends and family about this. But this book is available everywhere right now. And you should definitely also subscribe to the Strict Scrutiny podcast because the more we know, knowledge is the enemy of anxiety and of the lawlessness.

Leah Littman (35:11)

Exactly. And I wrote this book not just for, or even primarily for lawyers, law students, but for smart, interested people who just care to learn more about the relationship between law, politics and society and who can see and understand the mechanisms that the court has used to really push the law off a cliff.

Alison Gill (35:39)

Exactly. Well, I've long said the only reason I sound smart is because I read and listen to folks like Leah Lippman and, you know, I mean, any, any number of people, Steve Vladek and Ellie Mistahl. But this is an important. This is a quintessential book. I recommend everybody get it, everybody listen to it, and everybody sign up to listen to strict scrutiny on crooked media. Thank you so much for your time today. Leah Lippman.

Leah Littman (36:03)

Thank you so much. Very kind. I really appreciate your time.

Alison Gill (36:06)

Everybody stick around. We'll be right back with the good news. Hey, everybody. I'm the kind of person who loves reading nutrition blogs. I watch the Food Network, I like food documentaries. But somehow I still end up confused about what I should actually be eating. So every week there's a new trend. Intermittent fasting, low fodmap, who knows? But I finally decided to stop guessing and get actual help. And that's when I found Fay. This podcast is sponsored by Fay. You can go to faynutrition.com dailybeans to qualify to see a registered dietitian for as little as $0. Faye connects you one to one with a registered dietitian who helps you understand your unique nutritional needs. No generic advice. This is real evidence based guidance tailored specifically to you. My dietitian helped me figure out how to manage my energy dips and fill the gaps in my nutrition. She recommended walking every morning, maybe starting juicing, which I'm actually going to start doing to get some of the nutrients that I need. And the best part, all of Faye's dietitians take insurance. I didn't even realize this was covered. But 95% of people pay $0 for their sessions. You can even check your insurance before you sign up. So whether you're working through food sensitivities, managing conditions like pcos, or just trying to build healthier habits, Fay gives you the personalized help you need with board certified nutritionists. So that is what sets them apart from everyone else. It's expert support without the guesswork or the sticker shock. And that's why I'm so proud to partner with them. So if you're ready to stop guessing and start truly fueling your body for better health. Take control with personalized nutrition support from a Registered Dietitian through fay because you deserve to feel energized, healthy and confident in your health choices. Having a personalized nutritionist used to cost big bucks, but not anymore. Not with fay. Listeners of the Daily Beans can qualify to see a Registered Dietitian for as little as $0 by visiting faynutrition.comdailybeans that's Faye F A Y faynutrition.comdailybeans one last time faynutrition.com dailybeans all lowercase and make sure you use our URL so they know I sent you. Everybody, welcome back. It's time for the good news everyone. And if you have any good news confessions, corrections, pronunciation corrections especially and you want to give maybe a shout out to yourself or a loved one or a small business in your area or some sort of great community activism or protests or rallies that you want to share with us. Also shout out to government programs. We love shout outs to government programs whether it's Social Security, Medicare, Medicaid, Affordable Care act, the PACT act, right? The VA is getting rid of so many employees that they hired to help with the PACT act, but maybe the PACT act has helped you and we can use that information to send to our representatives to encourage them to not slash our earned benefits. Maybe you have a shout out to a program like WIC or head Start or Section 8 or some great VA healthcare you've received, or student debt relief. Anything. Send it to us DailyBeansPod.com, click on Contact to get your submission read on the air. You just got to pay your POD pet tariff, which means attach a photo of your pet. If you don't have a photo of a pet or you don't have a pet, you can attach an adoptable pet in your area. We'll see if we can find him a forever home. If you don't have that really any animal photo will do. And then of course we always accept bird watching photos, which is an actual photo of a bird or you and your family and friends flipping the bird to Trump and Musk Properties. We love those bird watching photos. A lot of us are birders these days in that respect. And of course if you don't have any of that baby photos always works. Again, send it to us dailybeanspod.com, click on contact. First up sea otter woman pronoun she and her love you Laguma Ladies, imagine my surprise while listening at work to hear you talking about my Hometown. Love cats on a couch. And Amanda will be a huge asset on our school board. And so slight pronunciation correction. Our town name is pronounced with an A. Like how? Falmouth. So not Falmouth. Falmouth. Come for a visit. Best weather in September. October and most of the summer crowds are gone. Here's a pic of my guy Jack after having a fish hook removed from his cheek. He's pretty doped up here. He's fine. Now, anglers, please pick up your tackle and broken lines. $400 vet bill. Yikes. Look at this baby. He's so stoned. Oh, hi, Jack. Good, a sweet puppy. Yes. Please, anglers, pick up your tackle and broken lines. Thank you so much. Great. Thank you for Falmouth. Okay, now I know. And October. Best time to travel there in the fall after the summer crowds have gone. All right, next up from David, pronouns he and him. You guys are a huge part of my morning. I love the news with swearing and empathy. However, please, please, please do not call it the big beautiful bill. The orange one is very good at shaping public narrative through word choice. The raid of Mar a Lago was legally executed. Search warrant. May I suggest referring it as the billionaire bailout bill? Yes, David. As you might have noticed earlier in the show, I called it the billionaire bill. Thanks for being part of my mornings for my pod pet tax. A picture of our three dogs, Boomer, Izzy and Rat. Oh my gosh, they're adorable. The ears on that hound dog are impressive, sir. Thank you, David. Next up, doctor for democracy. She her dear maidens of the magical fruit. I listen to all the pods every day. I learn so much from you. I appreciate your perspective and how seen I feel. And I wait all week for Feegle sang Friday rather than good news. I have an ask. Can we stop calling mifeprestone, the abortion pill Giving anti abortion groups wording because that is what the anti abortion groups call it. This drug is used to treat high blood sugars in people with Cushing's syndrome who don't have other options. It's used for dilation of the cervix and induction of labor in women who are not dilating naturally to help avoid C sections and vacuum extraction during birth. It's used in endometriosis to decrease pain. It is used in women who miscarry but do not pass all the products of conception or to induce expulsion following fetal death. Products of conception can be lethal if retained if used in ovarian cancer, resistant to chemo. Let's call mifepristone. Mifepristone and highlight that it has many safe and effective uses. The best I can do for good news is that the sun rose again today. But I'll make up for my lack of good news with a combo baby and puppy pic. That'll do it. Dr. For Democracy this photo is of me over 60 years ago when our dog's puppies crawled between the bars of my playpen and gnawed on my ears. No dogs or babies were injured when this photo was taken. Thank you, doctor for democracy. Yes, we will call it mifepristone from now on. Next up, Doc Adams pronoun she and her just joined your community. I really enjoy your podcast, the summary of the news with a bit of flavor, guests who are insightful and fun, and the good news stories. Your banter is contagious and so needed. Now here's a bird picture taken in Missouri. It's bluebirds as they rested near their nest. These birds are so shy and often hard to catch. They were one of my mom's favorites. She's gone now, yet when I catch a glimpse of a cardinal or a bluebird, she's telling me all is well. Keep up the good hard work. Your presence for an hour in my day is a joy. Thank you. Doc Adams. What a lovely submission. Look at these beautiful babies. Awesome. Hmm. So cute. Thank you for that. Next up, David F he him, but the cats call me faithful servant. A few years ago I lost two jobs at the same time. It was winter and I couldn't afford the natural gas to make my heater run, so I lived with space heaters. Food was scarce and I was just getting by. My car broke down so I sold it. I did find a job but had to walk to work. I worked with a Muslim man. Soon he was bringing food to me and he had a friend who had a car I could afford. It was a great favor and his help got me through the winter. When I hear about Muslims, my thoughts go to the generosity of that man and his community. He never asked for thanks nor any kind of reward. He helped me simply to show Allah's blessings. Muslims are good people. I hope these next few years do not bring repressions to them. My offering to the radio gods are pictures of Boing Boing the black cat and Finlay the white cat, who we believe is a Turkish van Mutt and Boing Boing is of unknown origin. Oh, they're beautiful babies. Oh, I love the black nose. So cute on the Turkish van. Yeah, it looks like a Turkish van to me. And the Void. Thank you so much for that. What a great story. Next up, Amy Pronoun. She and her hi AG and dg. Here are some awesome protest songs. Stars and Stripes by Julie Lavery, Life in America by Ro Capara. They Made a Pig, the Pilot by Billy Simmons Jr. And the poor by Jesse Wells. Just because corporate radio isn't playing current protest music, that doesn't mean it's not being made. It's out there. My pod pet tax is our 15 year old, tiny whiny baby guppy. Thank you for voicing our shared exasperation, frustration, fury and determination. We fight on. Amy thank you. This cat looks like he's really, really just over the Trump administration. Next up from Anonymous. Pronouns he and him Hi Leguminaries. I have two things. First, a listener recently asked for contemporary protest music. Hozier has a song called Nina Cried Power and in it he honors the great protest singers whose shoulders we stand on. Also, the band Flobots has a lot of political and social justice songs in their library. Second, for a Shit Kids say Submission, a couple years ago at a family event we had a charcuterie board and my niece could not pronounce it correctly, instead calling it a shark coochie board. We still call them shark coochie boards because that is gold. Anonymous yes it is, and I think I will adopt that name for them too. Lastly, for Podpet Tariff, I present Derperous, the one who guards the gates to heck. Seriously though, Rowan the smaller dog was stuck in Bentley's back and I had to untangle them myself. Oh my God. Can you guess what breed they are? Yes, these are corgis. I think I can get that one. How beautiful. Thank you for that. And thanks everybody for your good news. We'll have links to some of those songs in the show notes, plus a link to the Good Trouble thing where you can comment on the Endangered Species Act. And thanks to everyone for sending in your good news. We're going to need a lot of it. Again, all my love to the Biden family. Just so devastating. He was just such a great president and he's just such a good man. So all my thoughts to them. That's my final thought for today. I'll be back in your ears tomorrow. Don't forget to check out the Unjustified podcasts. Both of them. We got a free bonus for the public that came out this morning. I think you'll enjoy it until tomorrow. Please take care of yourselves, take care of each other, take care of the planet, take care of your mental health. And take care of your family. I've been ag and them's the Beans. The Daily Beans is written and executive produced by Allison Gill with additional research and reporting by Dana Goldberg. Sound design and editing is by Desiree McFarlane with art and web design by Joelle Reader with Moxie Design Studios. Music for the Daily Beans is written and performed by they Might Be Giants and the show is a proud member of the MSW Media Network, a collection of creator owned by podcasts dedicated to news, politics and justice. For more information Please visit msw media.com msw media.