Finding Inspiration and Joy Elsewhere

Strict scrertainty is brought to you by Americans United for separation of Church and state It's everywhere right now, the celebration of America's two hundred and fiftieth anniversary, and we're in the thick of it this month Christian nationalists are using this milestone not to unite, but to divide They're pushing the lie that America was founded to be a Christian nation where just one religious movement gets to decide who fully belongs, instead of the real truth that America was founded as a democracy committed to liberty and justice for all The idea that America was founded as a Christian nation is propaganda. 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Give it a try at midmobile dot com slash switch Upront pay forty five dollars for months ninety dollars for six months one hundredy dollars for twel month, reired fifteen dollars for a month equival to taxas bees extra. initial plan term only greater thanty gigabytes slow netork busy term Chief Justice, I please the forward It's an old joke, but when an argued man argues against two beautiful ladies like this, they're going to have the last word He spoke not elegantly, but with unmistakable clarity. said I ask no favor for my sex All I ask of our brethren is that they take their feet off our necks Hello, and welcome back to Strict scrutiny, Y your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts, I'm Leah Littman. I'm Melissa Murray. And I'm Kate Saw. And this is our term recap episode, which means we will look back at the court's term and take stock Technically, the october twenty twenty five term isn't over. It will not be over until October term twenty twenty six begins And given the shadow docket activity, which is always very, very significant over the summer, there will be plenty to keep the justices busy and probably us as well. I'll just say, I hope the emmotional supportu billionaires understand that this will be a working vacation. Yeah, John Roberts is going to be working to finally come up with a way to reconcile slaughter and cook or maybe even settle on what the legal standard for cause is bitch Bch That said, listeners, since the court has finished releasing opinions in argued cases, we think it's important to step back and analyze the bigger picture rather than focusing on particular opinions as we do during the regular term As always, the court made this so difficult for us to do because they didn't release the final opinions until the absolute last day in June. And indeed, they consolidated some of the biggest cases right at the end. The one exception, of course, was Louisiana versus Kell A, which it released at the end of April just in time to throw the midterm primaries into chaos, but all the other bangers, those came out right at the end. There was also the terrist decision. But all of that means that we are recording this recap only a few days after the court finally finished releasing opinions, which means this is just a first pass at surveying the wreckage of October term twenty twenty five ro probablyably going to be circling back to this bad decision season as we brace for October term, twenty twenty six But per usual on this term recaped episode, we will highlight some themes, offer some roses and thorns in the process, and do our level best to try and ring att least a little bit of levity out of the shitstorm that was this term. That's going to be hard. Honestly, things are pretty bleak. And we'll conclude by discussing our summer plans. or really rather the podcast plans for the break. All right, so listeners, I think it's time to pour yourself a stiff Susan Collins and buckle up for the term recap. and I'm just gonna say, this was such a doozy of the term. I don't think it's going to be a one cocktail kind of enterprise. We have something else for you beyond the standard Susan Collins. If they want to do drunk history, let's do drunk podcast listening. So when you finished your Susan Collins, we have another summer cocktail for you. In honor of our ever expanding executive, we offer this Reflecting Pool Thanks to the enterprising mixologists and listeners who came up with this one, the Reflecting pool is a refreshing mix of rum, blue Caco, and pineapple juice. Obviously you make this first by coating your glass with the blue Cacao. Make sure you procure this liquor through a no bid process to ensure the lowest quality possible, then add a dash of rum and a he dollop of pineapple juice to give it that green tint garnish the cocktail with a blue fruit roll up to mimic peeling paint. And if you're feeling especially adventurous, you might include a pinch of matcha and blue spirulina, because algae I'm not gonna to lie. that sounds delicious Ah, okay It does sound refreshing. And for those of you who think that a second summer cocktail is unnecessary, our only rejoinder and I think it's a very good one, is that if Scotis is going to do drunk history with the Constitution or at least the Second Amendment, we all should be reaping the benefits of the founding Fat Boy' rich history and tradition of getting hammered This is an invitation to you, listeners, Let your Freak flag fly. All right, bottoms up. And now that you have your preferred libations in hand, let's get started Before we lay out some themes that we thought emerged throughout the term, we wanted to first make a couple of points slash observations about just how bad things are. First, it struck me that none of us, literally no one, was surprised that the court overruled a near century old decision, a decision that multiple conongresses and presidents have relied on since it was announced in nineteen thirty five. And the fact that we weren't shocked, that it was of no moment to us and to much of the mainstream media suggests how broken this court actually is. That's where our expectations are This, of course, is a reference to Humphrey's executor, which the court may have overruled in a shadow docket decision earlier, or it definitely overruled in its final decision in Trump vers. Laughter. Slaughter wasn't just about overruling a decision, it was about invalidating almost one hundred and fifty years of practice in how our government is structured and functions. Slaughter held that because the president is the head of the executive branch and all executive power resides in his office He may remove the heads of independent agencies whenever he likes unless it's the Fed. As we said at various points in this term, the court was gunning for Humphrey's executor and the independence of administrative agencies, we knew this was going to happen. And the fact that this again was both predicted and predictable gives you a sense of just how broken things are I'll offer another point here. We really need to play out the implications of the fact that the Supreme Court divided five to four on the constitutionality of the Birthright citizenship exxecutive order. And I'm just going to say that again to four. I know that there are some people in the media and Supreme Court appellate lawyers who want to sanewash it and say that this was a six three decision and anyone who calls it a five to four decision is doing bad fear mongering. There are Four members of this court that believe that the Constitution does not say what it says, that reconstruction did not do what it did. And that's honestly a little too close for comfort, at least for me. This was a five to four decision. Don't let anyone tell you differently. yes, six to three that they can't do this with this executive order, but not that they can't do it at all and not that the Constitution means what it says in plain language. There are four people who are like think so Exactly, because four justices said the executive order was not unconstitutional in its entirety That is the five four split evenven though six justices concluded the order was illegal Not going to rehash everything here, but plain language of the fourteenth Amendment provides that persons born in the United States and subject to its jurisdiction are citizens. The challenged exxecutive orrder insists that some people born in the United States are not citizens, specifically. those born to undocumented immigrants or people with temporary legal status Executive order clearly and obviously contradicts the text of the fourourteenth Amendment, and also this country's history, precedent, and longstanding practice So the upshot of all of this is that this court divided five to four on whether the Constitution means what it actually says, and whether this president with an assist from the court, can su aponte wipe away a signature feature of the post Bellum American constitutional order. Again, the postbellum cononstitutional order to which I refer is evinced in the recconstruction amendments. These were intended to eradicate the racial caste system that the Supreme Court's decision in Dred Scott versus Sanford codified in the annals of the U S. reports The court in Dred Scott held despite the common law rule of Uil citizenship that had been the default in the United States since the colonial period, those born in the United States, but of African descent could never be citizens. That was the Dred Scott decision. It was one of the most infamous and infamously racist decisions in the history of the court earning pride of place in the court's anti cananon And yet, This five to four decision on the constitutionality of the EO suggests that some members of this court are okay with returning to the pre civil War status quo. So I guess we're making Dred Scott great again. Although we're pretending that we are the ones who actually are correctly interpreting the fourteenth Amendment and its relationship to Dred Skot We have to consider the fact that the court was one vote shy of erasing a foundational part of reconstruction in tandem with the court's already successful efforts to eviscerate many features of the post Civil War constitutional order. So consider Louisiana vvers. Calais, in which the court concluded that Congress's powers to enforce the Reconstruction amendments was pretty limited and that Congress could not enact a law prohibiting actions that disempowered bllack citizens by diluting their votes. Also side note is that Coach Kavanaugh's position seems to be that Congress cannot enforce the Reconstruction amendments by enacting the Voting Rights Act, but that Congress can enact laws that enable the executive but maybe Congress just outright can rescind birthright citizenship The incongruity is just mind boggling and is maybe actually the point. Allen versus Milligan is another example of this court's zeal to water down the Reconstruction amendments and more general postbellum constitutional order. In Allen, the court watered down the prohibition on intentional racial discrimination by allowing Alabama to use a set of maps the state had adopted in defiance of the Supreme Court's own decision, previously, in Allen versus Milligan Those were maps that in an earlier stage of the litigation had been deemed discriminatory because they diluted the political power and opportunities for black voters We should also mention in this vein, Mullen vs. Doe, where the court went to even greater lengths to blind itself to intentional racial discrimination and therefore apppparently to condone it In Mullin, a majority of the court concluded that the president's vile racist smears of Haitian nationals were not in fact resacist In doing so, it adopted a legal test that would render much of Jim Crow segregation legal. The court apparently now believes that plaintiffs and specifically racial minorities can only establish racial discrimination if First, it is intentional. and second, no other non racial motive might exist for the action they are challenging as racist. This test is virtually impossible to satisfy, which again, is, I guess the point. All right, so back to the fear mongering. If you are among the people who think that birthright citizenship is protected and sacrosanct and this was an unalloyed victory with the court standing up for the president and the rule of law You need to wake up. This is your wake up call. If you think that there is no danger of this court or some other government actor in the future suspending or nullifying birthright citizenship This is your wake up call This court has already erased essential parts of reconstruction. It has for years, decades hobbled the Reconstruction amendments by narrowing Congress's authority under Section five. In Trump versus Anderson, they basically rendered Sction three of no moment. And now they're doing it with the rest of the Reconstruction amendments and in particular, this bedrock principle of birthright citizenship that has literally been in place since the colonial period with the one interregnum of Dred Scott that section one of the fourourteenth Amendment was intended to repudiate. And all of that, the fact that they are repudiating recconstruction and that they are doing it with their whole chest That is what makes this five to four lineup in Trump versus Barbara so terrifying I also want to take a moment to analogize Barbara and the response to it with another decision, another five to four decision that reaffirmed a key settled constitutional principle That decision, Planned Parenthood versus Casey Casey by a five to four vote declined to overrule Roe versus Wade and end the constitutional protections for abortion, even though it did water it down. What happened in the wake of Casey? Progressives and the legal left celebrated. They treated the issue as settled. And Casey as a win, Casey definitively resolved this issue for all time. They slipped into the mindset that the court, as an institution, would always protect rights like the abortion right recognized in Roe. And for their part, conservatives used Roe and then Casey to galvanize and energize their movement. They doubled down, made their ideological litmus test harsher, and thirty years later Overruled Row. I just want to jump in and say, I did that Has and Minaj podcast. We recorded it like a month ago, but it came out last week, But he asked me in the podcast about like, do you think the birthright citizenship is going to become like a new litmus test for potential ScOotus nominees? And I was like, I hope This is the kind of thing where Trump takes a swing at this, loses big, and moves on to like another shiny object. And I honestly think there is a chance that if this decision had been nine z against him, that might have been the case seven two, maybe harder, but nine o, certainly and maybe even seven two, But absolutely five four, I now think he was completely right and it will be. And I also think that Judge Ho in the fifth Circuit, who we said,, I don't know if he's like aged out of consideration. He was like a very early adopter of this. despite himself being a naturalized citizen So I wonder whether that puts his odds better than we had assigned them the last time we had this conversation. To that point about you know this being the next row, there has been some commentary about we shouldn't worry about birthright citizenship becoming this next galvanizing issue because there isn't a bottom up grassroots movement to end or curtail birthright citizenship as there was with Casey and Roe. The movement to overrule Casey and Roe was engineered in large part by the Republican Party. It wasn't an organic grassroots animated movement. It was created and concocted in much the same way I think this can be created and concocted. And case in point, if you listen to Fox News, as I know all listeners of this podcast do You can already see this effort coalescing. So please take a listen to our Sofa King JD Vance This was only a five to four decision, Laura. How many times did we hear people say that this was going to go eight to one against the administration? We made some very compelling arguments. We had the better of the case. We've just got to keep fighting at this and this drives home, Laura, why the midterms are so important because it's the senators who ultimately vote on those Supreme Court justices Imagine if one of the five justices who made a bad call today, if they left the Supreme Court, we want to make sure we get somebody good on there in the future I mean, yeah, they certainly think the difference between ninez or eight one and five four is significant So do we? So yeah, there's no question they are going all in right now on birthright citizenship trying to turn it into what abortion was as kind of a political galvanizer in the nineties and two thousands, these discussions that have such prominent place Justice Alito's dissing opinion of so called birth tourism will I think pretty clearly fuel incremental immigration restrictions as this movement, like the abortion opposition movement, is rooted in anxieties about demographic change build slowly, but It is clearly going to be a decades long effort galvanize the end of birth fright citizenship and We know how the story ended in the courts when it came to abortion, and it's just really important that everyone learearn the lessons from that I will just add, I think this really reveals the impotency of John Roberts because in this moment John Roberts probably wanted to be the Regina George to Donald Trump's Gretch and Wiener. like stop trying to make birthright citizenship happen, It's not going to happen. But then you have his unruly conservative caucus of men of frat bros basically saying, no, I think we can totally make this happen. And here we are We should also say something about the speed of this. And Kate, I think you mentioned this in the emergency episode that we did on Trump versus Barbara They widened the oververton window on this Kakamimi theory of limited birthright citizenship, making this completely off the wall theory that was literally birthed by one rando law professor. They took this off the wall theory and made it mainstream in such an astonishing rate of speed part, I think is actually the most terrifying thing, like the quickness, the alacrity with which they did this And also for those people who are saying, well, it was only in dissent, the Supreme Court reaffirmed birthright citizenship. Have you seen how this Supreme Court treats dissents as the law. They have been using Justice Scalia's dissent in Morrison versus Olson as the law for decades. And this last term, they made a bunch of Scalia, Thomas Renquist dissents and whatnot the law And those were not even desents for four for the most part. So yeah, like the fact that this is a descent is very, very cold comfort Next Srney is brought to you by Armora Colostrum Are you feeling sluggish, bloated, not like yourself Life bombards us with silent threats, process food, artificial light, modern stressures that disrupt your gut, drain your energy, and weaken your immune health And that's all before they get to the teenagers living in your house. Guess what folks? Your body isn't broken. 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That is fish that didn't live up to my expectations for firmness, flakiness, and flavor. That's why I love Wild Alaskan Company. Wild Alaskan offers the best way for me to get wild caught high quality seafood delivered right to my door on my schedule Each wild Alaskan box comes with individually portioned fillets that are vacuum sealed, easy to prep, and great for any meal, no matter how quick or how elevated All of their fish is quick frozen, fresh from Alaskan waters, which helps lock in its freshness, texture, flavor, and key nutrients like Omega threees. It's fish you can trust with no GMO's, antibiotics, or other additives. And every order supports sustainable harvesting practices and the Alaskan fishermen whose history is literally tied to the region and the practice of sustainable fishing My favorite offering from Wild Alaskan is their Pacific Halibut, which comes in these perfectly proportioned fillets. You can throw them in some parchment paper with some herbs, white wine, a little butter., chehef's kiss. Even I look like a good cook with Wild Alaskan And you too can make Wild Alaskan a part of your routine the summer Just head over to wild Alaskan dot com forward slash strict for thirty five dollars off your first order of premium wild caght seafood. That's wild Alaskan dot com forward slash strict for thirty five dollars off your first order Thanks to Wild Alaskan Company for sponsoring this episode of strict scrutiny So let's move on to the third point that we wanted to start with. and this is probably more of an opening salvo for the terms themes, which we're going to transition to next, but you know, it's our podcast. we will take these things in the order that we want. So we need to highlight and remind people of the extent to which the Supreme Court is undermining our Democracy And we are not just referring to the chaos it has engendered in the upcoming midterms. That's significant, but that is a small piece of the larger picture is engaged in a sustained attack on the democratic leitimacy of institutions and elections and also the democratic capacity to govern. And I think our list of evidence in support of this broad thesis is very, very long. So let's takeick through some of what Scotus did along these lines So the Voting Rights Act decision, in tandem with the court's decisions on racial gerrymandering and intentional racial discrimination, nullified what remains of the nationwide ban on discrimination in voting. As a result, states, especially those in the former Confederacy, raced to redraw districts that would lock black voters out of political power by entrenching often white Republican incumbents and eliminating districts where black voters had the opportunity to elect their preferred candidates And that's not even all, right? So this is the same court that allowed Texas to proceed with what was perhaps one of the most transparent racial gerrymanders in recent memory. And I know listeners it's been a long term, so we'll catch you up again. This was when the Department of Justiceices Division of Civil wrongs in Harmet Dylan directed Texas to engage in mid cycle redistricting in order to eliminate majority minority districts in Texas. and specifically they wanted them to get rid of the minority coalition districts where different groups of racial minorities can band together to give themselves greater political opportunities judge district court panel, which included Trump appointees determined that DOJ had basically laid out on paper, taking notes on a conspiracy, a plan to target these minority coalition districts It seemed like a very cut and dried case of impermissible racial gerrymandering, but this court said Don't see say it at all seems partisan to me, and that's not bad. In fact, that's exactly what we should be doing. It's totally fine. Please proceed. And then, this court allowed Alabama to move forward with districts that were for all intents and purposes, exactly like the districts the court had invalidated three years earlier in Allen versus Milligan, which is to say that the districts as drawn only created a single majority minority district out of seven possible districts in the state, where black voters comprise twenty five percent of the electorate More troublingly, it was evident that the legislature in Alabama drew the districts to achieve that lopsighted result And the court was okay with it Then there is National Republican Senatorial Committee versus Federal Election Commission, the campaign finance decision that the court released on the last day, because it was released on the same day as birthright citizenship in the Tr athletes case It's kind of flown under the radar, but in this case, the court invalidated a federal campaign finance regulation that's what's known as a coordination limit. The coordination limit prevents individuals who are limited in the amount of money that they can give to candidates from circumventing that restriction by instead coordinating with political parties to donate money in much higher amounts to the parties that the parties then in turn funnel to the candidates. By invalidating that anti coordination regulation, individuals now are effectively freed from the seven thousand dollars limit on individual donations to candidates because they can instead coordinate with the party to channel more than five hundred fifty thousand dollars to candidates This will make elections less democratic by once again giving the super rich outsiz influence over candidates and officials. And it will benefit Republicans who are lagging behind Democrats in small dollar donations and would prefer if their big donors could simply pour more money into each campaign rather than being hamstrung by individual limits Under this account of the First Amendment, free speech isn't free. It's actually quite costly I just wantan to take a beat on the Hutzpa of the court. the massive amounts of outside money in politics that we sort of live under at this moment are because of their decisions from Citizens United onward. Those are what have led to the state of affairs. And then somehow, the court tries to suggest that that is a reason that this law must fall. I think that this is what Rickassam calls like deregulatory bootstrapping. It's like, we do a thing And then that creates some consequence, and that gives us an excuse to do another deregulatory thing and then another and then another. And yet they sort of want to tell us that they're just actually responding appropriately to the circumstances that they are encountering. This is race to the bottom Kate, but it's their race and they're running it. And they're winning it, unfortunately The case is just the latest in a string that actually like very tangibly undermine democracy by making our institutions more susceptible to corruption As to just this one, consider the combined effect of the case, this case, NRSC and slaughter, the case about the president's power to fire Now, the super rich can effectively funnel more than half a million dollars to individual candidates, and the president can fire any independent regulator who might potentially get in the way of the super rich, their corporations, and their interests cast your memory back to january twentieth, twenty twenty five, and the array of oligarchs that flanked Trump at his second inauguration, it really does seem like they are getting their money's worth Here's another piece of this, I think is actually worth commenting on because this part actually does seem genuinely insane to me This court acts like it is just sending these decisions out into a vacuum as opposed to the reality in which We have an administration that is or that appears to be rife with corruption and pay to play expectations. likeike that's the landscape in which they issued this decision on campaign finance. And again, to belabor the point, this week, the New York Times reported, quote President Trump reaped a stunning windfall his first year back in the White House, including about one point four billion doll from his family's cryptocurrency businesses. All told, the president pulled in at least two point two billion dollars. That compares to a minimum of six hundred twenty two million his enterprises pulled in for all of twenty twenty four before he returned to the presidency I don't think anyone has to be reminded that one of the things that has been incredibly deregulated since the second Trump administration started is cryptocurrency. So interesting. Is it illegal to be a successful businessman? No, I don't think. No. okay. Who's also the president? Right? No, no, exactly So with that out of the way, let's turn to some additional themes or what we're actually calling themes. One is the Supreme Court perpetually mimicking the guy with a butterfly meme. You know the one? It seems like the court and specifically the Republican supermajority is always asking itself, is this law But also the answer to that question seems to be utterly irrelevant, because they also apparently decide not to bother with law at all Unlike this court's shhadow Docket decisions, we are happy to show and tell. So we're going to provide some examples of what we're talking about. akesaughter. The court overruled Humphrey's execut and restructured the government, but did not bother to explain the new law of the land and how all of this would actually work. The court declared that all of the executive power is vested in the president, and therefore the president has to be able to remove anyone exercising significant executive power. No ifs ands or quases about it, Jehan Roberts wrote into the opinion But then, in slaughter itself, the court provided some ad hoc exceptions, suggesting that the broad new removal power doesn't apply to adjudicatory bodies within the executive such as the tax court The majority conspicuously said nothing, like nothing at all about whether the decision called into question the independence of the civil service. That is, does the president, who now has the authority to fire the heads of independent agencies, also have the authority to fire civil servants who are hired based on merit, who are permitted to keep their jobs if they perform competently, and who by statute are protected from being summarily removed at the presresident's whim These are the people who do the work of government that impacts all of our lives in countless ways from food safety to environmental protection to mail delivery, to weather The opinion says literally nothing about whether these members of the executive branch are also removable at the pleasure of the president Though the decision's logic suggests there's at least a very real chance that they are. In previous cases where the court made these overtures toward unitary executive theory, even if not the full embrace that was reflected in slaughter. itay. was yeah, I would say more foreplay than flirting. It was beyond flirting, but it wasn't the kind of full consummation that slaughter reflects earlier encounters. It would at least the court would at least adopt a conclusory sort of caveat that the Civil serervice wasn't implicated in its reasoning, didn't do that here, and I don't think it's because they didn't think about it. It was also this is, I think, to my mind, a little less important in terms of the impact, but also just in terms of the kind of responsible lawmaking or lack thereof the court is engaging in, it wouldn't even tell us whether Humper's executor had been overruled already or it was being overruled in slaughter, you know seemems pretty basic and yet they gave us no clarity Well, because Dah you're supposed to know read my mind. That's the Deon Warwick schoolch of originalism. Read my mind I didn't know what I meant There's also the fact, Kate that on the very same day that the court released slaughter, saying that there's no if and and quass about the president's executive power to remove individuals who are the heads of agencies It also released Trump versus Cook In which it said, everythingthing we said in slaughter except the Fed, not the Fed. The Fed, as we have talked about, ad nauseum on this podcast, not just this term, but in earlier terms, when they have tried to dismantle certain administrative agencies like the CFPB, for example, they've always made these feintts toward the distinctiveness, the uniqueness of the Federal Reserve And they reiterated these themes in Trump versus Cook, saying that the Fed is a uniquely structured quasy, private entity with a distinct historical tradition. And so again, this is me doing the guuy with the butterfly meme Is this quasi? I don't know. likeike is the Fed quasi? And if there are no ifs and and quasies about it, what does that mean for the Fed? And the Cook decision didn't really provide a great answer for it. The chief could not be bothered to explain why the Fed was different from every other independent agency besides gesturing with a kind of wor word salad that he had inserted and was now citing from an earlier opinion, Wilcox, that the Fed is just unique. It's a quasi private entity with a distinct historical tradition. What does that even mean? like how Explain it to me. like I mean, show, don't just tell, like show us how it is different and Tell us how it's torouce something, but not this Even Amy Coney Barrett, who I think ordinarily can get in line with some of these things, seem to be deeply, deeply disturbed about the incongruity between the sllaughter decision and the Cook decision. So she wrote in her dissent in Cook, quote The court's holding is in serious tension with Trump versus Laughter, which we also decide today. How can history support both a categorical rule and a carve out? It's a great question. These are the questions indeed. It is right up there as a question with, is it racist to describe Haiti as a shitole country where people are poisoning America's blood We a quick backack to Barrett and her descent in Cook. It's just part of what is so maddening about her is that she's so close, right? Like she's asking, she's saying, it seems like there's real tension here and the obvious next step is slaughter is crazy and wrong. And could if you could just look around that I think was like there's real tension here. Cook is crazy and wrong, getet rid of the black woman too Right, sure. That's where she comes down because she dessents. But it just feels like the question she's at least identifying suggests that she should be able to get to the right answer as opposed to the right In Cook, the court also could not be bothered to adopt an actual legal test to tell us under what circumstances a president can fire, a governor of the Federal Reserve Board under the statute. inststead, the chief declared, quote, We need not fully demarcate the contours of cause today, and followed it up again just by reciting this word salad, quote, It is sufficient to observe that any definition of cause must reflect the Federal Reserve's unique historical status and role And of course, the administration immediately seized on the court's failure to be clear on this point because it is suggesting that it may take another run at trying to fire Federal Reserve Governor Lisa Cook love to imperil functional government on the basis of some half baked and yet also very dumb ideas L Lah, this isn't just about a half baked dumb idea. This is when we return to Lisa Cook's firing. we'll get to decide if it's permissible or not. I mean, that's what that said to me. like it always in our discretion to whether it's going to be actual cause here And just kind of back to the word salad, which is like the key source of authority, like his own previous word salad on which Roberts relies in his cook opinion, it is we should say, to be fair, it is not just the chief who does this. So here is what passed for legal analysis in Justice Barret's majority opinion in Ciskco vers. Doe, which held that the alien tort statute does not allow victims of human rights abuses to sue the companies that allegedly abetted their torture Bar wrote, quote. Our starting point is SoOSA's key insight. The ATS is a jurisdictional statute creating no new causes of action Put differently, as enacted in seventeen eighty nine, the ATS gave the district courts cognizance of certain causes of action, which bespoke a grant of jurisdiction, not power to mold substantive law Justice Scalia would have stopped there. ose quote. That's the quote from Sosa. That seems to be the reasoning of the opinion. I feel like what we need to there's like, what are the justices in this sort of like whatever the version of originalism they claim to be practicing now is like text, history, tradition alsoso just like own like gibberish, word salad precedent. It's not even like the holdings of their previous cases. it's like the musings of their previous cases. Like that's what our law is made of right now and it is terrifying I we could also talk about this as a kind of sub theme. I mean, she talks about the sort of you know, adverting to history They were always talking about history this term. and the theme seemed to be like history is written by the winners and the winners, that's us. We're going to be the winners here And They often were just like doing history in the most insane way. L Is this history? Is this tradition? Is this originalism? So there was Hamani where we literally had drrunk history of the founding Frat bros, courtesy of Justice Gorsage And then the court apparently was just getting warmed up with Hamani because it really hit its stride with Wolford versus Lopez dropping new Brwin factors, including one, whether the proffered historical analog was antir racist and woke. And if it was racist and unwoke, we definitely can't consider it new Brwin factor And was the historical analog widely accepted and very popular? And if it wasn't, Other people did not cotton onto it. and it wasn't wildly popular and get five different prom dates. we can't accept it either It wasn't historical, but it definitely fell into the category of is this law kind of like the but the Fed thing? And that's Justice Kavanaugh's effort to think through the equal protection question in West Virginia versus BPJ, the challenge to a state trans sports ban It's not an exaggeration to say that his reasoning, such as it was, boiled down to because sports, the sports context, a phrase that is repeated ad nauseia so many in this opinion. L are you there law? It's me, Brett Kavanaugh Taken together, it seems that these justices think the laws, whatever they, the six God kings in robes, speak into existence. And I couldn't help but wonder I say, in my Crie Bradshaw voice, Am I the only one who cares about law I do wonder, is this laziness or is it a flex? It can be both. There's still three of them that do. 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So if you're looking for modern day makeup that's clean, strategic, multifunctional, for effortless routines, head over to Jones Road. And for a limited time, strict scrutin day listeners can get a free full sized mascara with their first purchase when they use the code strict at checkout. Just head over to Jonesrooadbeauty. com, usese the code strict at checkout After you purchase, Jones Road will ask you, Where'd you hear about our products? Please support strict scrutiny and let them know that we sent you Lets go on to a second theme and I think This theme is basically Let's cook Congress or Is Congress a cp? The answer is always yes. In an effort to complement its expansion of presidential authority, the court also made sure to completely emasculate Congress, although to be fair to the court. Congress was doing a pretty good job of emascalating itself This court effort to further emasculate Congress came across very clearly in the birthright citizenship case, with one exception, we'll get to it, as we discussed in our emergency episode As Leah noted in that episode, it wasn't enough for the court to say what the president can do It also said what Congress cannot do or sometimes and again, implausibly here, what Congress absolutely did not do. And That's important because at the same time, the court was empowering itself and the president, or at least this president, it is incapacitating Congress in a number of different ways. And empowering less Democratic branches is always a recipe for entrenched minority rule. Maybe it comes through oligarchy, maybe it comes through CCistocracy, maybe it comes through Kleptocracy, maybe it's through aristocracy Who knows? It's all unclear. but We do know that when those branches are empowered, nothing good happens All right, so let's take stock of some of the things that the court has said that Congress cannot do First, Congress can't make spending clause statutes enforceable against the officials who carry them out. The officials have to opt in the statutory scheme. sounds very efficient and normal, which is to say totally unworkable and just going to mean spending clause statutes like just actually can't be enforced. Okay, second, while Congress is permitted, right? They're allowed to pass laws, Court hasn't yet said they can't do that, but is permitted to enact legislation under the Reconstruction Amendments, when that legislation departs from the court's understanding of what the Reconstruction amendments require, Congress actually can't legislate. So for example, if Scota says the Reconstruction ammendments prohibit only intentional discrimination Congress can't bar unintentional discrimination, even though Congress in the ual text of the Reconstruction ammendments is given the power to enforce their provisions. just There's one exception to this, Kate, and that has to do with Sction three of the fourteenth Amendment, where the court's understanding of Section three was very different from everyone else, but it was actually a congressionally empowering understanding where Congress was empowered to enact legislation to disqualify Donald Trump Trump election and he they hadn't done that. So you know was that that's fair correction. Yes. yes. I want to say that was about handanding tons of authority to Congress. And as you said earlier, Kate, in fairness to Brett Kavanaugh, he also thinks Congress can rescind the first sentence of the fourourteenth Amendment So Congress actually, okay That was the exception I was referring to earlier. that the court actually did embrace this term And yet, there were many, many places where they seemed really to curtail congressional authority. Just to name the other big one, which I've already mentioned, but to make it explicit in this context, Congress can create agencies, but it cannot impose conditions of the removal of agency officials that might make these agencies independent really to any degree of the president. I just had a thought, which is we are being told over and over how this Supreme Court is actually empowering Congress. And I just wonder if they have adopted their approach to sex discrimination to Congress They are putting Congress on a pedestal, but actually a cage. They are destroying Congress in order to save it, et cetera, et ccetera. Does the analogy work? Protect lot about how to like Explain what is so insanely internally inconsistent about this sort of faux Congress empowering Congress disempowering Supreme Court. And I think Pedestal Cage actually is a very good candidate. This is the Mueer vision of conongressional authority. Yes.. That's a reference to Mueller versus. Oregon, the case that upheld a minimum wage law women But we're not even done listing all the things the court told Congress it can't do. When it comes to campaign finance, Congress can adopt anti evasion, anti circumvention laws to ensure the integrity of other limitations it did enact. And who could forget how earlier this year, the court in the United States Agency for International Development case also suggested that Congress couldn't really enforce at least some of its appropriations decisions against the president And so at the same time, the court is fashioning an unaccountable presidency, a president who can't be subject to criminal laws, at least for official acts, a president who can fire officials in violation of federal law. The court is also disabling the branch that could check the president. They simultaneously rendered various congressional laws, not real laws in the sense that the laws aren't enforceable against the executive branch In addition to the spepending cllause statutes that we just mentioned that Leah just ticked through, the court also rendered un enforceable various protections for immigrants that Congress had created. So these were protections that limited actions that the executive could undertake For example Congress passed laws requiring certain protocols when the executive seeks to rescind, say, temporary protected statuses Now, the court has concluded in Mullen vs. Doe, that those limits aren't actually reviewable by a court, which means that they aren't really enforceable in a court. So, w w. Another example is the court's treatment of the laws that protect lawful permanent residence entry and admission into the country. Despite the fact that Congress wrote a statute that included those protections, this court decided that those protections don't really apply at the border. and instead, what does apply is the discretion of executive officials to decide whether or not the LPR has engaged in a crime of moral turpitude. They not and not Other laws have giant truck size loopholes that We think are likely to be exploited going forward. I think it's pretty sure that they will be exploited going forward. So take for example, the asylum protections that Congress has enshrined in law. Apparently, those statutes don't apply when the executive decides to create workarounds to them like for example, a metering policy that effectively blocks people from crossing the border into the United States in those situations They're not really in the United States, therefore, those protections don't apply Another theme is the importance of timing, that is the time frame on which the court agrees to take up these issues and decide them. As with most things at One First Street, the decisions involving timing are often at the court's discretion where they make all the rules And one thing is it is a choice to empower presidents, especially now with this president. And it's also a choice to do so on an expedited schedule. They took Trump versus slaughter, where the court in a shadow docket ruling allowed the president to fire a federal trrade commission commissioner and then granted cert before judgment in the case so they could decide the issue before it made its way to the court in the normal appellate process after the Court of Aeals did so also granted cirert for judgment in the temporary prrotected status cases. And more generally, it's just curious that They seem unable to recognize that we have a problem right now with executive power, and they have justified reversing previous decisions and attacking previous theories on the ground that those theories produce horrible consequences. For example, when they explain why they have adopted Justice Scalia's dissenting opinion in Morrison vers. Olson, they talk about the fact T star was Justice Scalia's parade of horriles walking down sixteen hundred Pennsylvania Avenue And I just want to ask, do you not recognize that all of the parade of horribles about the Unitaire executive theory has been constantly on display for the last eighteen months There is no sign that they' recognizing it at That's the history and tradition parts. Pretty wild But back to timing, the court manipulates timing I think in a bunch of different directions. Consider CalA, where the court could have decided the case on narrower grounds when it first heard it argued back in twenty twenty five. Instead, it asked for briefing on the much broader question of whether the legislative districts at issue violated the Constitution and then heard arguments this past fall and waited until April of this year to decide the case when primary elections were just weeks away in many places. like that was a choice. Well, not just a choice. Nobody asked those questions ask those questions. So I mean, not just manipulating the timing, manipulating asking questions, Melissa. He's just asking questions In addition to the timing manipulation, there is also the problem of the court deciding issues that are not live That was, I think, the case in the asylum case where DHS had ended its policy of metering asylum seekers at the border, the policy change likely should have rendered the case moot, but the court wanted to get to it, was eager to announce that the administration could use this policy if it wanted to, and so it ruled anyway Another issue involves the court issuing rulings when the factual record below remains under developed or even undeveloped in some cases. This happened in West Virginia versus BPJ, the transrans athletes case The court decided the question of whether the West Virginia ban on trans athletes violated the equal Protection Clause of the fourourteenth Amendment while there was still an outstanding factual dispute in the litigation that had not yet been resolved I will say just one more thing about the court's timing. It's not just about when they decide cases. it also is about what cases they decide to grant cert on. So They move very quickly, I think, in granting cert on certain cases. I think this was more evident last term where We saw them take a bunch of cases and then dig some of them. There were a lot of digs last f. I think there's only one dig this term, but it is relevant. and I think it sort of is one of the consequences of this super majority. They only need four. They clearly have four for almost everything, but I don't know that they vet as closely the vehicles that they are accepting as they pursue their agenda such that it is The court also manipulates timing in ways that I think are designed to help it bolster its own agenda and standing. So it issued slaughter, a massive triumph for the president together with other decisions that were less favorable to Trump, including a denial of certiari in Trump's appeal of the Egene Carroll judgment The decision in Cook and the decision in Watson, where it refused to change the rules on counting of mail in absentee ballots. And on Cook itself, they put Cook on their oral argument calendar when it arrived at the court as an application of a stay. And in that decision, the justices didn't even prohibit the president from later firing Cook based on this bill Puli concocted mortgage fraud fraud theory also packed so many decisions into the final week. it is virtually impossible to cover the significance of all of them in any finite period. They issued birthright on the final day, going out with the bang, and of course, they were the ones. who created the circumstances necessitating birthright to be brought back to them by refusing to decide it in the case last year on nationwide injunctions, and who also, during that oral argument, demanded that the federal government bring the case back to them as you can hear here When you lose one of those, do you intend to seek carch? If we lose, yes, absolutely And just one more thought on timing, the extent to which they are so insistent on injecting all of their own views now and taking all of these issues now, they can't wait for litigation to unfold. It has to happen immediately. And they are just deciding so many of these big issues, it's wild. Let's move on to theme, I think it's four now. and that is trying to remedy racial discrimination and exclusion is the real racism. By contrast, real racism is not racism So this is enhination xenophobia. It could be xenophobia, it could be partisanship, it could be a few other things. But mean I do think that that this is the culmination of sort of developments we've seen in recent terms, but I also think that things went significantly further in this term than they ever had before. And I want to provideide a little bit of context, which is that once upon a time, There were justices on the Supreme Court who took the position, very explicitly that in evaluating race conscious government action It mattered a lot what the reason for that action was, and it should be scrutinized differently, depending on what the reason for that action was. So Justice Stevens has this pretty famous dissent in a case called Adorange in which she says explicitly, there's a world of difference between a government program that makes race conscious decisions to include members of a minority race that has long been excluded by discrimination and a program that makes race conscious decisions to exclude members of a disfavored race. Okaykay So we might look at those two things differently. Justice Thurgood Marshall wrote very similarly in the Bachi case, quote, It is because of a legacy of unequal treatment that we must now permit the institutions of this society to give consideration to race in making decisions about who will hold positions of influence, affluence, and prestige in America O obviously sounds This is like they're speaking from like some distant like galaxy end era. But that position did not carry the day, and this court, in recent terms, purported to embrace the idea of a colorblind constitution. It doesn't matter why you're taking race conscious action. It is all subject to equally searching scrutiny. Okay, that was apparently the rule until this term this term, I think the court basically went beyond race blind and fully embraced the inverse of the position that Justice Marshall and Justice Stevens had advocated in the quotes I just read. They seem to enshrine into the law basically the view that some government uses of race should be scrutinized more skeptically. On now, it is measures designed to facilitate the voting power of racial minorities that should be viewed more skeptically and actions taken to injure or disadvantage on the basis of race a very light form of scrutiny. Depending who the victims of said racism are. So I think that's an important caveat. But to your point, Kate, I think Louisiana vers. Kell A bears this out. So this is where the districts were drawn to facilitate minority participation and political power. The court decided to take a very skeptical look because must police the racism. and ultimately, the districts fall You know what That was a problem. That was the racism. The actual drawing of the maps in the first instance, that was just partisanship. That is just fine In a follow on case, Allen vers. Milligan Same thing. Ditto the Shadow Docket order in the New York case, Maliotakas, where the court struck down a New York map on the grounds that it was drawn to protect the political power of black voters But in cases where the government action is race conscious in ways that adversely impact racial minorities, the scrutiny is much, much lighter. So in the Texas gerrymandering case, for example, despite the fact that a three judge court which included Trump appointees, found that the new map was drawn on the basis of race specifically to eliminate minority coalition districts, The court said, I think it's just partisanship here And Justice Alito in that case wrote separately to say But actually, it was, quote, partisan advantage, pure and simple He knows, he knows because he can tell racism when he sees it O can he? Because in the TPS case, where the government action was one that would have a devastating effect on hundreds of thousands of Haitian nationals and in the face of the administration's rank racism around Haitian nationals and the country of Haiti, the court basically said This is just the rough and tumble of politics, or maybe it's xenophobia, but it definitely isn't racism N yearourney is brought to you by Life Pro Guess what, folks? You know what everyone's talking about these days? 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And after your purchase, they'll ask you where you heard about them. Let them know you support strict scrutiny and tell them that we sent you Question, Are you politically engaged and spiritually exhausted? If you said yes to both, welcome home. I'm Erin Ryan And I'm Alyssa Mastter Monaco And we're the host of hysteria, the podcast for women who care about democracy, culture and not losing their minds in the process. We break down the news, call out the nonsense, and spotlight the women actually fighting back on Capitol Hill, in classrooms, and everywhere the stakes are high. It's sharp, honest analysis featuring women's voices, with humor and zero hand holding Listen to hysteria wherever you get your podcasts and watch full episodes on YouTube Granger knows, when you're a procurement manager for an office park You're not managing one building. you're managing all of them And to stay ahead, you need to see through walls and around corners. Light's about to fail, filters ready to clog, H back on its last leg. If you wait until something breaks, you're already behind Count on Granger for quality products, easy reordering and twenty four seven support. Call one eight hundred Granger, click Granger. com or just stop by Granger For the ones who get it done theme which is going to overlap with some of what we have already said. the whole eence made in individual episodes, but still important to spend a few minutes on. and that is the galling hypocrisy on display this term. This is a non exhaustive list of the wild internal contradictions just involving opinions from this term. Justice Alito in Cala wrote for the court that drawing the seconde Black opppportunity district in Louisiana was race based discrimination that the Constitution forbids cononcurring the shaddocket case, Meliaakas, which Melissa just mentioned, he said it was super racist to draw congressional map for the express purpose of ensuring that minority voters are able to elect the candidate of their choice. even elaborated that that was unadorned racial discrimination and an inherently odious activity that violates the fourteenth Amendment's equal Potection Clause And then in Allen vers. Milligan, court overrode a lower court opinion that, quote, drawing every inference in the legislature's favor, found that the record compelled the conclusion that the state intentionally entrenched the racial discrimination in drawing its legislative districts. But again in the TPS cases, Alito held that the president's description of Haiti as a shitle country, which is filthy, dirty, and disgusting. and his accusations that Haitians, among other things, were poisoning the blood of our country We're according to Justice Alito, not overtly racial and all express policy views that could rest on race neutral justifications. So that's a new theory of constitutional interpretation. It's called saying the N word with a hard R. Once you do that, then you might be in the overtly racial category. Mbe, possibly. Maybe. he might try to find his way out of it there, you know? The list of examples of hypocrisy is long, but here's a few others firstirst also involving Justice Alito in the Hawaii case, Wolford . Lopez Alito really kind of like disdainfully dismissed the relevance of what he called the spirit of Aloha. too the Second Amendment. Heote local attitudes can neither shrink nor inflate the meaning of fundamental Bill of rightights guarantees that apply to the states through the fourteenth Amendment But of course, in Trump versus Barbara, the birthright citizenship case, he had no trouble telling us the advent of what he kept referring to as, quote, birth tourism changed the meaning of the fourourteenth Amendment Obviously, you know, we've already talked about this Robert's insistence in slaughter that the president has full ability to fire no ifs ands or quasies, but then his reliance on this bespoke exception that's all about the quasi to carve the Fed out from that OkayK, here's a Kavanagh sort of example. His learning resesources descent, which Melissa, I think you've rightly focused on in a couple of conversations, was largely about his view that there is a foreign affairs exception to the maj Qions doctrine, but also just took a pretty broad maybe unlimited view of presidential power, maybe only in the foreign affairs context, maybe broadly. But then he had no problem joining the Cook Majority opinion ruling against the president's power to fire. And then also on Kavanaugh, this is a terminological point, but I think an important one. Do you guys remember that during the BPJ oral argument, he used the terms transgender women, transgender girls to refer to those impacted by the Idaho and West Virginia banss at issue So fast forward to his authorship of the opinion in that case, and he uses biological males again and again. I felt like I was being stabbed in the ear as I read it. And I can only imagine how appalling that was to the plaintiffs in the case, to individuals who are themselves or are parents of trans athletes It was horrifying and it was a choice. He understood how to use like baseline level of respect in language and he chose not to do that in this opinion Well, I think the galling hypocrisy of Brett Kavanaugh relates directly to his unwavering need to be liked by all sides. So at oral argument where anyone could be listening, he's using preferred terminology, like maybe more progressive terminology. in the opinion, which is likely to be read only by Died in the wool people who may have real feelings about it, he uses these other terms. I will also say I am now thinking about his descent and learning resources in light of the concurrent slash descent and birthright citizenship. This is such a play to be the chief justustice, to be the next chief justustice. This is Brett Kavanaugh like, pick me, pick me. I will give you unlimited presidential power, not just in the domestic arena, but also in foreign affairs. I will give it all to you That's what this is. 're probably right. And then one last example is the chief going back and forth on whether Confederate sympathizer and virulent racist Andrew Johnson is a good guy and whether we should definitely model government around Johnson' views, Slaughter said one thing. Barbara suggested another Iim in, you know Six seven on Andrew Johnson. ye One last theme for me, this one I'm calling blinkering reality And it's kind of a doozy. The way this court and many court watchers blinker reality really sets my teeth on edge. I'm going to say that this blinkering of reality works in two ways. The first is the way that court watchers try to sainwash what the court is doing. So this, I think came across most clearly in the birthright citizenship case and the response to it. So many people, both in the media and court watchers who have podcasts and whatnot You know, work in court adjacent mils. We're all talking about how this was a six to three decision. It was a six to three decision. I was actually on a panel with someone who accused me of fearmongering because I kept insisting that it was a five to four decision. and she kept saying that it was six to three. So that's sainewashing. This was a five to four decision. It's a real problem. The six to three, whatever. That's a facade up aotemkin village the real step is behind that five four decision I also think this blinering of reality works in another way in a more invidious way, which is to say that both the court and some of these court watchers seem stubbornly blind to the environment in which these decisions So the transaththletes cases, for example, it is a relatively modest decision, all things considered it is going to have a maximal impact because it's going to be harnessed by this administration to prosecute the campaign against trans people. So The fact that the court can't see what is going to happen, especially when they're great exemplars. I mean, SFFA has been harnessed and ridden like sea biscuit to dismantle DEI, even though it says nothing about DEI in private conteacts. It would be great for the court to kind of acknowledge what the environment actually looks like. and I think we are in an environment where we can no longer take the court on its own terms. We have to understand their decisions in the context of a landscape, which is insane where there is no presumption of regularity. And I just wish the court and other court washers washers, not just washers, although they are washing. I wish they would grapple with that too C washers and the sain washers. Yes, yes,. The court washers who are sainwhing the court, exactly. Okay. This is getting a little bleak. Can I ask you two to play a quick game with me just to lighten it up a little? Absolutely. Okay I'm going to ask you to blind rank several explanations for what has happened to Sam Alito's brain besides being pickled by marinating in Fox News. So I'm going to give you a reason. I'm going to give you seven, and you have to pick What number it is before you know the others, okay? Okay. We games. Yes games. I wish I had a c so. One is most likely. seven is least likely. Okay. Okay veryery first explanation What has happened to Sam Alito's brain The same thing that happened to Mitch McConnell's chin I'm very specific. Six or seven, I would say. Okay. five six Okay. six o. So we'll slit exxactly. Okay. sameame things that happened to Mitch McConnell's chin, number six. nextext reason It was a failed experiment by the Heritage Foundation Three I' got w do four Okay failed experiment by Heritage Foundation. Don't worry. I'll read you the total list at the end. Next explanation. It was a successful experiment by the Heritage Foundation two more likely, ye two. Okay. You want that at two, okay, okay. three. We can do three. Let's either which one? What do you think Kate It seems like a pretty good theory to me. I'm good tot I don't know. We don't what the other theories are. There could be no. don't. That's why it's's always the danger. Okay. Yeah. We went with two. S successful experxperiment by the Heritage Foundation. Next one. flag induced homophobic dementia could be w one? I do like that one. I mean, I don't like it. I think it has potential explanatory power One, three, five and seven are what you have left. I say five U I'm good with either three or five. Okay, well we'll do five. Okay. Be I just don't know what else is coming. I know. Okay. so okay Next one. january seventh Mm that radicalized him When the coup didn't work One, three or seven. I want to say one, but I don't know, this's so hard. Three. What do you think Kate Yeah, well, let's save ourselves for potentially something better coming, But yeah, this is good. Okay. I love Sving yourself for something better coming is just like how we feel about this court generally. It keeps not coming Okay, secondcond to last reason to fill in. What happened to Sam Alito's brain? A wife swap with Clarence Thomas gone wrong Seven Sven. Okay. Be Clarence Thomas can see racism. That's That's it. Right. Final one This is what you've chosen to rank number one. Oh Nothing, he's always been like this. Yeah. Okay like that. I think we played our cards pretty well. Okay. so I will now read a list in order of the most likely explanations for what has happened to Sam Alito's brain besides being pickled by marinating in Fox News. Number one, nothing, he's always been that way Number two, a successful experiment by the Heritage Foundation. Number three, january seventh Number four, a failed experiment by the Heritage Foundation Number five, flag induced homophobic dementia Number six, whatever happened to Mitch McConnell's chin. and seven A wife swap with Clarence Thomas gone wrong? I would only change two of those on Relection. I would have put J on reflection, knowing what all the choices were, I would have put january seventh second and successful experiment third. and I would have swapped Mitch McConnell's chin six seven and seven. Yeah. yeah. But I think but I think for I think ited very well I think we did pretty much I think we did a great job. He's always been this way Yeah. He' regrettably A few other trends we just wanted to note now that we injected some levity. One is a trend that was raised by Pro Publica, which found that this term, quote, the Supreme Court passed an important milestone. For the first time, it decided more cases by secret ballot and with few signed opinions, that is on the shadder docket than it did for cases argued in open court We have a round of applause for the lack of transparency? Good. we have a round of applause for our friend, the Gace Steve Lot who just stays on this beat. The corps would like us to I do think that in the later part of the year, they have you know, in terms of the term, they have slowed down, they have done a lot less enormously destabilizing stuff on the shadow docket. but Over the course of the term, like this was a huge part of what they did and it's just important not to let them memory hold back Okay, the next sort of thing we wanted to mention was about this kind of subtle but important feature of Supreme Court opinions, which is whether they do or do not respectfully dissent,? Whether they modify their announcement of their dissent with the term respectfully. And our amazing intern, Jordan actually took a look at the use or lack thereof of respectfully in opinions this term and found that the Democratic appointees only omitted respectfully or with respect from their desents once all term, which is Kagan's emphatic descent in Ca. Meanwhile, Alito withheld his respects twice Once K kind of unexpectedly in Rico versus United States, which is a case we definitely haven't talked about on this term recap, because it wasn't one of the bigg cases of the term, but he solo dissented and ended simply with I would therefore affirm Whatas he like trying to make a point of howsety or did he just kind of forget? I have no idea. But he definitely didn't accidentally forget his respectfully in Chaty versus United States, which is this big fourourth Amendment case he was big, mad about. And he ended his introduction to his dissent with quote, I cannot support this irresponsible escapade. And he concluded his full opinion with today's decision all but guarantees that we will be cleaning up debris for the foreseeable future Both of those would be great t shirts. I too cannot support this irresponsible escapade, sir. Or we will be cleaning up debris for the foresee future. I mean, all so great. Listeners, if you are down for a shirt that says, I cannot support this irresponsible escapade with just a picture of the Supreme Court below Please let us know. Yeah. Yeah Yeah, yeah. I would wear that for what it's worth Let's do a lightning round. Very quickly Best disscent of the term, you first Leia Litman. I refuseed to just name one. so I will say Justice Jackson's in Landor on rendering public benefits, statutes, spending clause, statutes un enforceable, or FS credit, where she did a full throated defense of something other than textualism, Justice Kagan's dissents in Mullin versus Doe, the TPS case or Louisiana versus Cal A, and Justice Sucham Mayor's dissents in Allen versus Milligan or Alo Tlado I just think those were all phenomenal writings that really met the moment just in various ways I did want to insert another one just so people understood I was being fair and balanced. and I wanted to nominate for best Sparate writing. Justice Kavanaugh's concurrence in Cook Why It's because he admitted in Cook. We have joked about how the explanation in Cook is. the economy, but my stock portfolio, but my emotional sport billionaires. and he writes quote I agree with the court that we should not leave open the question whether the Federal Reserve can remain an independent agency in the wake of slaughter. Even temporary uncertainty about the status of the Federal Reserve could spark political upheaval, including confusion about whether the president could immediately remove multiple governors at will, as well as turmoil in the US and world economies, I would not risk destabilizing the U. S economy Thank you, Brett. Thank you I do think you have to give him credit for theandor, right?ike that is what is motivating another What he was doing? Unclear. R. veryery unclear. Okay, so those are all great picks. I am going mention sort of a deep cut, but Justice Jackson's dissent in Bost versus Illinois, which goes back to earlier in the term. and it was kind of this like random candidate standing case But it was excellent. I think it was for her and Sotomayor, but not Kagan. And it just had like some pretty profound meditation on whether rights to participate and sort of democracy is really something candidates or really the voters actually like should be able to invoke the jurisdiction the federal courts to protect. And I thought it was really profound and sort of connected to some of her writing actually in dissent in versus United States immunity case from two years ago. Anyway, so those, I thought I agree Sotomayer had a ton of really sort of banger dissents in particular in immigration cases that you already mentioned, Leah. I also thought she had a great dissent in slaughter, which I was very surprised honestly that Kagan did not. get that one or write separately. she has like dissented in the court's really big recent cases about presidential removal power and kind of institutional structure kinds of questions. But Sotamma was great. Yeah So my choice for the best Dcent is really actually, I think, technically, a concurrence. It was KBJ's concurrence in the birthright citizenship case, but it is a descent to Clarence Thomas, to his existence. And not to his writing, to him, I think ' onto something. I do. I mean, I do kind of love it when She sort of like makes clear to him like, no We're not going to do it this way. Like you're not the only black person on this court. We're going to H' some real diversity of thought and we're gonna do it this way. So I loved when she really took it to him like, hey, tell me more about the fourteenth Amendment being race conscious. Like let's talk about it again in some other contexts, shall we? Just banger, banger bang. And honestly, I read the concurrence in that kind of voice, like, Hey, playayboy, what are we doing here Oh Okay. All it totally reminded me of you, Melissa predicting when she joined the court that they were going to clash And it was like the kind of the most intense of their I mean, obviously as well in SFFA, but this was even kind of more pointed the sort of joining issue. and also just like Obviously, I guess this is what we're going to think, but like to my mind, it wasn't a close question, who prevailed? when you look at the full sweep of his jurisprudence? He looks insane and ridiculous to like to say this is we're going to you're sting my thunder. You're stealing my thunder him in the US. report. Yeah, that' great Okay, next category, under the radar, worst opinion could be majority, concurrence or dissent. Hm, okay So yeah, I actually did think that kind of the Kavanaugh in learearning resources, the tariffs case, Curtis right two point zero Yes. and he also brought that energy to his majority opinion in ExxonMobil, the Cuba expropriation case. But it was just a pretty, you know, I don't know where the rest of the court is going to be in like the kind of big future executive power cases, but it scares me that Kavanaugh is on the court with the vision of the presidency that he has, and I thought that it was really on display in his dissent in the tariffs case. And obviously Trump noticed it. He was like at a boy. and I don't think it was an accident that Kavanaugh wrote something that was going to get him noticed by Trump. And you know, as Missa already said, I think it is pretty clear he would like to be the chief someday. I don't know when he hopes that will materialize. But I really fear in the same way that watching Tod Blanche audition to to get the actual job of attorney Geral has been wildly corrosive to the rule of law, I worry that we're going to see something similar play out Bret Kavanagh get therapy, right? Like you do not need to turn your job as a Supreme Court justice into a popularity goddest for a picky. Okay. Just as Sam Alito cannot support the irresponsible escapade that is Fourth Amendment rights, I cannot support the irresponsible escapade of listing only w under the radar worst opinion, and so here are my nominees Justice Kavanaugh's writings in both Barbara, the birthright citizenship case and BPJ, the transrpance case. So in Barbara, this is gonna be a little in the weeds, but it was just so dumb, it blew my mind So he writes that the Constitution should be applied in ways where you apply the underlying principle to new factual circumstances. And it's like, okay, fair enough. Originalists do that by first identifying what's called the semantic substantive content the underlying provision. He never does that. He just says, and I'm going to go ahead and identify free floating exceptions without telling us what principle he is applying that is in the text thenen there's ByJ Both of these writings are both dumb and evil. and so I wanted to highlight one particular quote in BPJ, where toward the end of his opinion, he writes, quote, no student athlete on either side of the issue, whether a biological female or transgender deserves to be ostracized or vilified, endquote. This is peak there are good people on both sides. L you need to also consider the fact that people discriminating against trans people are being discriminated against and are being called out for discrimination. It just encapsulates that. Under the radar Trump versus Or the previous shadowdocket decision, where they allowed the Trump administration to move forward with requiring State Department to issue passports that reflect sex assigned at birth, circular logic, just horrific We talk about this in our Skireti paper Yes.. Yeah. ye. Yeah. so I won't go on there, but did want to recall that one And then Justice Thomas's separate writing in Altro Lato, where he hypothesizes that even if Congress hadn't authorized the president to decline to admit asylum seekers under certain circumstances by blocking them from crossing the border, maybe the president could just do that anyway Right Th those are all great So mine might be slightly surprising, maybe not, just depending on how well you know me. I really hated Justice Thomas's separate writing in Hermani where he's, again, as you said, in an earlier episode, Leah, Jonesing for some Commerce Clause kink In case you didn't know listeners This court and earlier courts, the Renquist courourt really did a number on the Comerce Clause. So we basically kind of whittled that down already, but not enough, it seems for Justice Thomas, who wants to take us all the way back to EC Knight whichich is a case from the Gilded age in which they took a very formalist understanding of commerce ively to eliminate any prospect of federal regulation of the economy and markets and production. So Justice Thomas, again, like He is so instrumental about just pursuing his own projects and There was no this was just not necessary here, but he put it out there so it'll get farmed off to the fifth circuit to be husbanded into some kind of usable theory to further dismantle the prospect of government regulation. So good on him. I will also say Neil Gorsuch's concurrence in the Learning resesources case, That's a good poll. Fucking banger, right? Well I will just say John Robertsworth the Majority opinion, It's actually a very spare majority opinion kind of gets through it. He does advert to the major Qestions doctrine. Note that Justice Kagan says that case could have been decided as a straightforward statutory interpretation question. No need to get into the major questestions doctrine. That is your tell that the real winner learning resources was the court, which got to double down on the Major Questions doctrine. But that win didn't seem to be enough for Neil Gorsuch, who had to write separately to explain why the Major Questions Doctrine was such a great idea. I'm not sure he succeeds in vindicating the major questestions doctrine. He does succeed in reminding me of why I don't like him I just want to remind our listeners that in a rejoinder to that separate writing, Kagan had one of the more savage footnotes where she accused him of suggesting that she was actually applying the Major questQestions doctrine and said something like, Given how strong he wants there to be converts to major questions, I almost regret to inform him that I am not one. It was just O, I can't believe that was this term. I know I feel like That was so long ago. It's been a lifetime. Yeah.. It was like what February So this recap is approaching a lifetime, so we should now switch to just discussing some summer plans for the podcast. just so you know what to expect. Obviously, we are still going to be in your earholes with a court not regularly hearing oral argument or releasing opinions and argued cases. The episodes will cover legal news, what's going on. A lot of it may involve the court And there will also be some additional special segments. We're not all necessarily going to be on all the episodes as is usual over the summer, so we get to do strict scrutiny and Friends, which we're always very excited about And and you should stay tuned for some bonus episodes in August and September. So not just one episode per week And we're super excited about these Are we allowed to tease that one set might be about hot Scotus reform summer slash September because we just tease that And then one other note just on summer plans, obviously there is this uncertainty and prospects that Sam Alito might retire. We scatter for the summer. We try to take some vacations, so you might not get something immediately from us and or something from all of us, but don't worry, you will hear from us all of us at some point So for now While we are waiting news about a potential Supreme Court retirement, we'll just highlight some of the ongoing discourse surrounding potential Supreme Court nominees. Here's one take on what to look for in a possible Supreme Court appointment. want Dumb justices who will who will fall in line, right? And not justices who think they're the smartest people in the room like Amy Coney Barrett or justice who care only about their image like John Roberts. Yes. That nugget is from former Cerk to Neil Gororsich, Mikeick Davis, current leader of the Article II proroject. Also just wanted to note the horrific, absolutely horrific vitriol that the right is directing at Justice Barrett over birthright citizenship. One example is Matt Walsh posted on the bad place that the worst Supreme Court justices of all time have all been women. That's just a fact. Republican presidents should take the hint. On thearret sort of taking incoming, this is, I can't remember if we said this in our emergency episode but we definitely talked about it offline. It's one of the many things that makes it so wild that Brett Kavaugh decided to include his idiotic concurce on the constitutional question. L he could have given her some cover Gart some cover and he chose not to. And I hope she remembers that she will Sh we do our favorite things? Yes, let's Okay, well, I think it's probably good to end on something of an uplifting note. This was a bleak conversation and a very bleak term. And unless there's a major change in the composition of the court, that's going to be the case for some time. So we got to find our inspiration and joy and comfort elsewhere. And for me that has been You both Leah and Melissa, in addition to our team, Melody and Michael, our incredible intern, Jordan, The live shows we got to do this year in California, in New York I guess DC was, I guess that was this turn Yeah DC Chicago for Cricut Con, Chicago. the amazing Sophie who coordinates All Th things Tour and then all the listeners we had a chance to meet. like that really was a source of great joy this year and I'm grateful for it and I found it sustaining and I also have found great peace in the last three days when I've been on the shores of Lake Michigan, going for long runs and searching for beach glass, which is sort of my meditative, happy place, and I am here for another couple days and so happy to do it. That's why I have this sort of tree house background. Lake Michigan is yonder right behind me. So those are my favorite things for now This is your own Tom Lake, Kate. Except it is, it is So I echo all of that. you know, working with all of you and our larger team is just one of the both ways of coping, but also genuinely positive things about this timeline. I also want you to note that we have kind of expanded our YouTube presence and video output So we've been working with Eric Shute, Johannna Case, and Kenny Moffitt just to help us get more video content out. And so that has also been great. And then I guess the other thing I would say is it genuinely feels to me like there is a possibility that the needle is truly moving on the Dmocratic officials and Democratic establishment understanding about what is needed to address some of what ails our constitutional democracy, including on suupreme Court reform, and getting to hear And see, right the evolution in some people's views, I think, has been very encouraging. So I will plus one, I guess it's plus two now for our incredible team, Melody, Michael, all of the folks at Crooked, Jordan, who has just been amazing. Jordan, we literally talk about how lucky we were that you cross paths with us. It was just truly fortuitous and amazing You all make doing this so much fun and make all of these trains and there are a lot of different trains. We got a lot of trains going on that you all manage to make it work out seamlessly. So that is one of my roses for all of this. I guess we all heard what the Thorns were because this term was a banger. I agree that the needle is moving on court reform. That is really exciting to see. I would like to see more of it in the actual discourse around the midterm elections that is coming. And I also want to shout out the folks I've met just this year traveling for the book. V very excited that the book is back on the New York Times Bestsellers list this week. Thank you to all of those who bought. The book in celebration of America's two hundred and fiftieth anniversary My favorite purchase though, came from a listener named John, no last name, who wrote to me to say this Thank you for writing this fine book and your contribution to strict scrutiny, to which I listen regularly.