Leah, Melissa and Kate join forces to dig through the Trump administration’s latest affronts to the law and the possibility that it could be held in criminal contempt. They also react in real time to the Court’s decision to take up the question of birthright citizenship and cheer Harvard’s stand against the administration. Finally, they take a look at what’s in front of SCOTUS this week, including a new opportunity for the conservative majority to use the EPA as a punching bag and its latest foray into the culture wars.

 

Hosts’ favorite things:

 

• Melissa: White Potus (SNL); Good Dirt, Charmaine Wilkerson; Hacks (Max); Confessions of a Female Founder (with Reshma Saujani)
• Kate: So You Want to be a Dissident Julia Angwin & Ami Fields-Meyer (New Yorker); Who Is Government? The Untold Story of Public Service, Michael Lewis; Just Security (Substack); Judge Wilkinson’s opinion for the 4th circuit on the Abrego Garcia case; Catalina, Karla Cornejo Villavicencio 
• Leah: Never Again Will I Visit Auschwitz: A Graphic Family Memoir of Trauma & Inheritance, Ari Richter; The Vibe Shifts Against The Right, Michelle Goldberg (NYT); Harvard’s new website
• Also mentioned this episode: The Supreme Court threatens to bring “Don’t Say Gay” to every classroom in America, Ian Millhiser (Vox); Five Questions About Domestic Use of the Military, Steve Vladek (One First)

 

Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 

• 5/31 – Washington DC
• 6/12 – NYC
• 10/4 – Chicago

Learn more: http://crooked.com/events

 

Pre-order your copy of Leah’s forthcoming book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes (out May 13th)

 

Follow us on Instagram, Threads, and Bluesky

 

TRANSCRIPT

 

 

Leah Litman [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Melissa Murray.

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. We have another jam-packed show for you today. First, we’re going to cover some of the ongoing shenanigans in the White House. That’s H-A-U-S, as in the German version. Then we’ll turn to the ongoing shenanigans at 1 1st Street and preview what the court has on deck this week. But first up, a segment.

 

Melissa Murray That we’re now calling fuckshit and other news. We got some major updates in the cases concerning the president’s use of the Alien Enemies Act, but let’s start by first setting the scene for all of this. As many of you listeners will know, the president of the United States met with El Salvador’s leader last Monday. Obviously, the two had a lot to talk about, including what the F is going on with regard to Kilmar Abrego Garcia. The US resident who was mistakenly rendered to an El Salvadoran mega prison because of a quote unquote paperwork error. Obviously, the two leaders spent some time discussing how to rectify this egregious mishap. Wrong. They spent absolutely no time trying to rectified that egregius mishapp. Instead, the leader of the free-ish world was caught on an El Salvadorean livestream crowing about how he needs to send the quote, Homegrown to El Salvador next. And he also noted that El Salvador should build up its prison network to accommodate all of the, quote unquote, home groans. Let’s have a listen.

 

Clip Home-growns are next. The home-grown’s built, you’ve got to build about five more places. Yeah, that’s fair. All right? All right.

 

Clip It’s not big enough.

 

Kate Shaw So that’s chilling, and so was Stephen Miller’s take during that same Oval Office meeting on the administration’s supposedly unanimous win at SCOTUS. So during that meeting, Miller, who of course is one of the president’s key advisors on immigration policy, offered his hot take on the Supreme Court’s disposition of the Abrego Garcia case. So you will recall, Listeners, as Melissa just said. Kilmar Abrego-Garcia was erroneously, the government admits erroneous, expelled to an El Salvadoran mega-prison. A district court ordered the administration to take steps to return Abrega Garcia to the United States. The government appealed, arguing that the district court’s order constituted an impermissible attempt by the judiciary to interfere with the president’s power to conduct foreign policy. As we discussed on last week’s The Supreme Court then weighed in to say that while the district court cannot dictate American foreign policy, it does have the authority to correct legal wrongs, including the erroneous rendition to El Salvador of an individual an earlier immigration court specifically said could not be deported to El Salvador because of the likelihood of the danger he would face there. So the Supreme Court, in a unanimous decision, ordered the administration to facilitate Abrego Garcia’s return, there were no noted descents.

 

Leah Litman Peewee German, however, had his own hot take of the court’s disposition of the case. I don’t know, maybe he translated it to German and things came up a little fuzzy, but you can take a listen to that here.

 

Clip There’s a 9-0 in our favor against the district court ruling saying that no district court has the power to compel the foreign policy function of the United States. As Pam said, the ruling solely stated that if this individual at El Salvador’s sole discretion was sent back to our country, that we could deport him a second time.

 

Leah Litman The guy literally alchemized defeat into victory. Incredible. For weeks, folks have been wondering whether the administration is going to openly defy the Supreme Court. I don’t think we’d anticipated that instead of open defiance, we’d get magical thinking instead, where they just declared the Supreme Court had said the opposite of what they did, and therefore they are in compliance with whatever they say the Supreme court did. So that’s kind of the scene, and now we want to go to the judges. So Judge Boasberg told the administration that he is not the one. Judge Boasberg went off on the administration. So pull up a chair. Recall that Judge Boasberg is a district court judge who presided over the original lawsuit, alleging that the administration, under the auspices of the Alien Enemies Act, was rendering Venezuelan migrants to El Salvador without any due process, on the view that the migrants were members of the Tren de Aragua gang. Judge Boasberg, not surprisingly, given this constitution thing we supposedly got. Was appalled that none of the migrants were given a hearing or any other process to challenge the administration’s claims. So he told the administration to return the planes that had departed for El Salvador. And the administration response was basically, make me bitch.

 

Melissa Murray And then Judge Boasberg was like, excuse you, the fuck you think you’re talking to? He would like to know why the administration thinks it doesn’t have to offer these migrants any kind of due process and why it believes it can give him or any other judge, for that matter, the middle finger. Now, ultimately, as we know, the Supreme Court got their hands on this case. And the court issued a very narrow procedural ruling that concluded that the case had been improperly filed in the district of the District of Columbia and that instead it ought to have been filed. In the district where the migrants were detained before their departure to El Salvador. So that is in Texas. And that the challenges then should have proceeded as habeas petitions in the Texas District Court. And so the administration was then like, so I guess we’re done here, right? And Judge Boasberg, who’s obviously been catching up on the last season of hacks, was like, no bitch, let’s begin.

 

Kate Shaw So, last Wednesday, Judge Boasberg issued a 46-page ruling in which he threatened to initiate criminal contempt proceedings unless the administration answered his questions about why it refused to provide due process to the migrants and why the administration ignored his order to turn the plane and the migrants around. And the cherry on top was that he laid out an entire plan for how this would proceed.

 

Leah Litman Stunt on these hoes, queen.

 

Melissa Murray I love that we are staning Brett Kavanaugh as a law school housemate.

 

Leah Litman These are bleak times, Melissa.

 

Melissa Murray Bleak times. Join our sorority.

 

Kate Shaw I have no idea what kind of relationship he has with Brett Kavanaugh, and I have no idea. I don’t know really anything about Judge Boasberg. I’ve never met him, but I do think he is rising to the moment. And he must know that they are going to fight him tooth and nail, and he is writing for history and not holding back about how egregious this conduct is, and he is acting as though the Constitution and the law still matter, and I think that matters a lot.

 

Melissa Murray But he obviously has masculine energy.

 

Kate Shaw The only one of these fools right now who does, who seems to, well, seems to.

 

Melissa Murray Stunt on these hoes, King. He’s actually a tall king, not a short king. He is pretty tall.

 

Kate Shaw That’s true. So, okay. Here is basically what he laid out. He wants sworn declarations from administration officials in order to determine who was responsible for making the decisions about due process and ignoring his early orders in the case. In terms of who was responsibility, I think we have a hunch. It was Pee Wee German in the study with whatever pen. So if that didn’t work, then he was going to refer the matter to the Department of justice, which could then file criminal charges.

 

Melissa Murray Spoiler alert, that’s not gonna happen. Pamela Jo Bondi is like, no. Absolutely not.

 

Leah Litman Well, another option the administration has is, as Judge Boasberg note, to basically cure any contempt by returning the individuals from El Salvador, acting as though they actually complied with his order and turned the planes around. But as Melissa noted, there is a possibility that Pamela Jo Bondi would elect not to prosecute any contempt.

 

Melissa Murray A very faint possibility, very, very faint.

 

Leah Litman Yeah, just being very generous here, that she would elect not to bring criminal charges for contempt of federal court order, in which case, Judge Boasberg noted, there was a possibility that he could exercise his authority under the relevant rules to appoint an outside prosecutor to prosecute the case. Now, this has been done before. Judges have appointed lawyers to prosecuted. Contempt cases. This happened in the Donsinger case that went up to the Supreme Court where there was a constitutional challenge to the lawfulness of having private attorneys appointed by a judge to prosecute these kinds of cases. The Supreme Court elected not to take up that case, although Justices Gorsuch and Kavanaugh indicated they would have done so. Should also note that even if that happened, that is, even if a private attorney. Launched a successful prosecution of criminal contempt of a court order. Criminal contempt of federal court orders is a pardonable offense and in fact Donald Trump has pardoned people who were convicted of contempt of Federal Court orders during the first Trump administration that individual who benefited from that

 

Kate Shaw Can I just say, you know, there are definitely constitutional questions, at least on this court’s sort of view of executive power about the permissibility of outside prosecutors. There’s certainly this pardon question. And to my mind, none of that is any reason for Boasberg not to proceed under the law as it currently stands and appoint an outside prosecutor. And if the Supreme Court wants to find that’s impermissible, let it be, or if the president wants to pardon, let him do that, but sort of don’t do their work for them.

 

Melissa Murray I totally agree. Let’s back up a second, though. And Kate, I think you’re sort of gesturing toward this in your comment. But we have a federal judge who is issuing an order finding probable cause that the government was in criminal contempt of that judge’s order and that they willfully disregarded it. And that is a big, huge deal, right? So I mean, we’re talking about practicalities now. What happens next? Predictably, the government has said that it’s going to appeal this. It’s my understanding that it is not appealable. But that. Might not stop the Supreme Court from intervening here. So put a pin in it. We will see. But Judge Boasberg gave the government the option to cure contempt by simply returning those individuals that it had expelled in violation of his order. He also instructed the government to identify the individual who gave the relevant directives to ignore his orders and not return the planes. There are things that the government can do and maybe they’re pretty easy to do. I mean, he’s not asking for a kidney here. It’s just like, let me know who put you up to this. Turn the planes around, fix it. Or we can play hardball. We can do this the easy way or we can do it the hard way. And that’s a big…

 

Leah Litman We said the fact that an order finding probable cause for contempt isn’t appealable might not stop the Supreme Court. And it certainly doesn’t seem like it’s going to stop the D.C. Circuit. A two-to-one D. C. Circuit panel, with the two being Trump appointees, issued an administrative stay of Judge Boasberg’s order finding probably cause for criminal contempt. Please note that Judge Boebsberg’s Order did not find anyone in particular in contempt, and it contemplated further proceedings before the court would actually do anything. That is not an appealable order, but that wasn’t going to stop the best lawyers this administration never had, Judge Rao and Judge Katsas. Now, some of you might be wondering, how is criminal contempt possible if the Supreme Court concluded that Judge Boasberg’s order halting the expulsions was invalid because the case had been filed in the wrong court via the wrong mechanism? There’s actually a prior Supreme Court decision that said you can still find an individual in contempt of a court order, even if the underlying order is invalid. And that is a pretty infamous decision, I think, of the Supreme Court, Walker v. City of Birmingham. And it’s infamous, of course, because there the Supreme Court upheld a criminal contempt finding against the Reverend Martin Luther King, Jr., who was denied permission to march, March anyway and then was held in content. Of the court order that denied permission to march. So that’s the law. And if you’re thinking that’s a Warren court precedent, Leah, I don’t know if the Supreme Court will abide by it. Fair, I hear you. But this is a bad Warren court president and one that upheld the conviction of Dr. King. So I think Sam Alito will be fine with it.

 

Kate Shaw He’ll be very cross-pressured, that’s for sure.

 

Leah Litman That’s true at least there’s cross-pressure

 

Melissa Murray Wow. I showed up today. You sure did. I’m just going to let you cook. Judge Paula Xinis, who is handling the Abrego Garcia case, also seems to be plumb out of patience with these goons. In a hearing last week, she read the government lawyers for absolute filth and told them to get their shit together and start answering her questions. There is no passing in this cold call bitches was basically the energy. And I’m not gonna lie. I have to say her energy was really something and it just sort of jumped off the pages of the transcript. I mean, she basically was like, Hey, bitches, have you read Laura Hillenbrand’s epic book about an underdog horse who comes back to beat war admiral? No, you haven’t. Well, you should because I’m about to ride you like Seabiscuit if you don’t answer these questions. That was basically the energy. Like, what the fuck do you mean? You don’t have answers for You better have some answers. I was a very black mom. I felt seen in a lot of ways. So we will say more about those proceedings in a second. But as the courts work through whether they can prod this administration along toward observing constitutional norms and returning someone who is wrongfully expelled because of a quote unquote paperwork error and who received no due process in the course of his rendition to a foreign gulag. We just wanted to note that this week we also got some very pointed reminders of why due process is, in fact, so important.

 

Leah Litman Yeah, so first, the administration is mistakenly, I hope mistakenly sending deportation notices to citizens. So Nicole Micheroni posted on Blue Sky that she had received a notice of deportation. She is a United States citizen. And like, are they seriously going to mistakenly deport US citizens, like air quotes mistakenly? Second, the Administration could not even spell Mr. Abrego-Garcia’s first or last name correctly in some of the district court filings over the last week. This is sloppy AF, which is why due process is important. That is how mistakes get made. And due process is how we identify those mistakes and rectify them.

 

Kate Shaw And that is why I think people actually are pretty exercised correctly about Abrego Garcia. But the fact that the claims they are making apply with full force to anyone. Lawful resident, unlawful resident. Naturalized citizen. Somebody born a citizen. Literally, if they say, once we have mistakenly sent you away, the law can’t help you, that applies to everyone. But you know who doesn’t agree with the claim I just made? Our esteemed vice president who took to X last week to basically whine about how due process makes a lot of work for the government and so we should dispense with it. I mean, this was a pretty stunning- I thought real men liked hard work. Put those men to work observing due process. Not this guy. I don’t know. I guess X has completely dispensed with character limits. I’m not on it anymore, so I will occasionally see, but he literally wrote a whole ass essay. I mean, a really bad one, but a whole ass essay on X that is essentially a claim that due process is expensive and inconvenient and so no longer required. And I just mostly you want to get let me just say one thing, which is that, first of all, if I had taught this guy constitutional law, I would hide my head in a bag to borrow a phrase from Justice Scalia. And I will just say I do hope that there is some soul searching happening at Yale Law School right now. And the last thing I’ll say is everything he says about due process being expensive and burdensome applies equally to potentially respecting First Amendment rights, the lawmaking process in which Congress has to agree on language and then pass the law, the president then signs it, also applies to the appointment and confirmation process for principal officers. I mean, essentially the whole Constitution is pretty inconvenient when you stop to think about it. And I welcome that that wisdom emanating from the mouth of JD Vance because I think that’s where this takes us. Melissa, sorry.

 

Melissa Murray No, no, no. I just wanted to note that there was a period around, I don’t know, 2017, when all of the men’s were crowing about how important due process was when people were posting on Twitter and making spreadsheets about whether or not there were men who had sexually harassed them or assaulted them or whatever and gotten away with it. And during those moments, I too agreed that due process is vitally important because these couldn’t be itinerant commitments. But here we are.

 

Leah Litman Well, I also think they are going to have renewed interest in due process during any contempt proceedings that may arise. My guess is there due process, maybe due process will be demanded and insisted upon.

 

Melissa Murray Speaking of substantive due process, Secretary of State Marco Rubio also announced that 10 additional individuals were sent to El Salvador as part of what he describes as a, quote unquote, alliance with El Salvadoran President Bukele and the President of the United States. And I just want to note, I don’t know who might be listening, but pro tip. If you’re a masculine administration with masculine energy and you are in an alliance with someone. That probably means that you have some kind of power parody with the other party, which means that you probably have the power to facilitate the return of any individual who is in that other party’s custody. I mean, that is my understanding of how masculinity works. I may be wrong about this, but that was my understanding of how it worked for men. Am I wrong? Wouldn’t know, also my understanding. Speaking of masculine energy, Senator Chris Van Hollen of Maryland, which is the state where Mr. Abrego Garcia resided before his erroneous expulsion to El Salvador, Senator Van Hollan went to El Salvatore in an effort to meet with President Bukele and see Mr. Abrigo Garcia. He was denied an opportunity to do either of those things. He did get the chance to meet with the El Salvadoran VP, who, he says, told him, quote. That the Trump administration is paying the government of El Salvador to keep Abrego Garcia at CCOT. That’s the El Salvadoran mega prison, which suggests, I’m just spitballing here, that the administration could just call Amex or Venmo or whatever payment system it is using at this point and just say, put a hold on my card and those payments to El Salvador until Abrega Garcia is safely returned to the United States. I mean, that could happen.

 

Kate Shaw Or literally Trump could just open his mouth and say to Bekele, send him back.

 

Leah Litman And that would work too.

 

Kate Shaw Yeah.

 

Leah Litman So in one of the more genuinely moving and hopeful moments of the last however many weeks and months, Senator Van Hollen, after initially being refused permission to see Kilmar Abrego-Garcia, refused to leave until Van Hollan saw him. And you know what? When Van Hollon took a stand and made these demands, Bukele gave in. Bukeli relented and produced Mr. Abrego-Garcia for a meeting with the senator. I’m going to try not to turn into a ball of goo, but it is hard to overstate the relief at just knowing Mr. Abrego Garcia is alive. What a comfort to his family in this horrible time. This is a huge testament to Senator Van Hollen and also to what can be done with moral clarity, a backbone, and sustained public attention and public pressure. It turns out real men can get Bukele to make it so that wrongfully expelled and wrongfully imprisoned people are no longer in prison. They could just put Mr. Abrego Garcia on a plane back to the country. An American plane did manage to land in El Salvador despite the federal government’s suggestion that it’s just impossible to order planes and people to a foreign sovereign. On a lighter note, Bukely reportedly staged the photos that emerged from this meeting. And that involved staging drinks in front of Van Hollen and Abrego Garcia. And if you zoom in, you see the drinks were in glasses with a salted rim and a maraschino cherry. As someone who consumes a lot of maraschino cherries and a lot drinks with maraschino cherries, I can report to you that there are zero recognized drinks with both a salted rim and maraschino cherry. Turns out these weak weenies cannot even make a proper drink. These weak weenies insist they are weak weenies with no masculine energy and that they cannot do anything that would even possibly get El Salvador to return Mr. Abrego Garcia or even consider returning Mr. Abrego Garcia nothing. They are completely powerless. This was a really bad week for alpha male vibes or masculine energy at the White House as Vice President JD Vance managed to drop the National Football Championship Trophy while the Ohio State University visited the White house. To be fair to our sofa king, the trophy is formulated such that it’s detachable from the base. But I don’t believe anyone has actually dropped it and detached it from its base before the press corps thus far. I could not. I watch that video 10 times easily. Oh, yeah. ASMR, right? I mean, there’s very little joy right now. This had to do it for me.

 

Melissa Murray Yup. They really are, like, they’re such beta boy energy. Oh, yeah. We’re going to find out in a week that they’re actually wife guys. I’m pretty sure.

 

Leah Litman Another part of this that is so calling to me is some of the things that the administration claims that they absolutely cannot do, include things like gassing up a plane and sending it to El Salvador or sending any individuals to a foreign sovereign. And I just note that Homeland Security Secretary Kristi Noem has managed to take, I think, at least one plane to El Salvatore and get into. The mega prison and take selfies there. So these things- Videos, she made content, content creation. Right, like these things do not seem insurmountable.

 

Kate Shaw At least one Republican member of Congress, right, also there last week.

 

Leah Litman And also the El Salvador president, Bukele, has sent people back who the United States sent to him. So he returned and did not accept several women that the Trump administration had put on planes to El Salvador. So that is masculine energy.

 

Melissa Murray We’re gonna make this prison like VMI, bitches.

 

Kate Shaw I just have to say, I would really love, I feel like we don’t know enough about the backstory there, how these women were mistakenly included on the plane, and what the sequence of events that led to their being returned was, and I just hope that the enterprising folks at ProPublica or elsewhere are looking into that, because I think it’s important.

 

Leah Litman Totally agree.

 

Kate Shaw So as the administration continues wildly implausibly, honestly kind of pathetically, to insist that it is powerless to say or do anything that might influence a foreign leader with whom they previously made an agreement to detain people, the proceedings back here in Maryland before Judge Xinis are ongoing. So the judge granted Abrego Garcia’s request for expedited discovery. Those requests are going to play out over the next week or so. So, unless the administration tries to mandamus her and block discovery… There isn’t going to be further action in that case beyond government filings in the district court. Although it actually does seem as though the administration is trying to appeal her modified order in the case in which she literally just modified her previous order to quote the language of the Supreme Court’s order, not typically a thing you can take to the appeals courts, and yet that’s not seeming to stop them.

 

Melissa Murray I love that she basically did a heap-heat of the court. They’re like, we’re going to appeal that. We’re going appeal it. And their filings thus far have actually been shocking in their bad faith. They have refused to answer the questions she’s asked. They’ve adopted insane and implausible readings of both her order and the Supreme Court order that sort of narrowed the scope of hers. And I mean, it’s like straight out of the Stephen Miller School of Law. And they’ve doubled down on their refusal to answer her questions. And the subsequent filings reiterate that they don’t have anything else to add, as though that were the end of the matter. It’s actually insane. So the force.

 

Leah Litman Circuit declined to stay. Judge Xinis’s order, which again just recited the Supreme Court’s order of the hepete, Judge Wilkinson wrote an opinion that came down hard on DOJ’s arguments, rightfully so. He described them as, quote, shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear,” end quote.

 

Kate Shaw He is really sounding all the alarms.

 

Melissa Murray Go off, King.

 

Kate Shaw Absolutely.

 

Leah Litman It seems as if Judge Wilkinson’s clarion call to action and Senator Van Hollen’s emphatic statements resonated because on Saturday morning, 1 a.m. On Saturday and morning specifically, we got a remarkable order from the Supreme Court. The order came about because the administration was allegedly making noises about subjecting even more people to the illegal renditions to El Salvador. As we’ve previously mentioned, an order from the Southern District of Texas, among other places, protected people in certain jurisdictions from being expelled to the foreign mega-prison. So the government allegedly moved people to the Northern District of Texas, handed them notices in English only, telling them they had to sign them and were about to be imminently deported, and the notices were Alien Enemies Act notifications. A nice reminder about when and why nationwide injunctions, while generally not necessary and often inappropriate, sometimes are warranted, like when the government is shuffling people around to summarily expel them without due process to a foreign mega prison and then insist they cannot get them back. Anyways, the ACLU immediately requested a temporary restraining order in the Northern District of Texas and sought to certify a class action. The temporary restrained order was denied and the class action request deferred, at which point the ACLU went to both the Fifth Circuit and the Supreme Court and back to the Northern district of Texas judge and back judge Boasberg. Trying to halt these imminent renditions. Judge Boasberg held a hearing during which it came out that the government had moved people to the Northern District of Texas and couldn’t really explain why it had done so, maybe putting them in a jurisdiction where summary expulsions weren’t prohibited. I’m sure that can’t be it. The government also said there wouldn’t be any flights Friday when the hearing was happening, but couldn’t rule out Saturday flights. And while it was willing to say that the named plaintiffs in the case wouldn’t expelled, it- slash couldn’t rule out expelling other individuals in the proposed class. So early Saturday morning, we got a Supreme Court order instructing the government not to remove anyone until further action by the Supreme Court. Justices Thomas and Alito noted their dissents and the order said that a statement by Alito would be forthcoming. This is a bad signal to Jodi Kantor and the New York Times to inspect the flags at House Alito. More on this in a bit. The Supreme Court also instructed the Solicitor General to quickly file an application after some action in the Fifth Circuit, which there was after the Supreme Court’s order. The Fifth Circuit perhaps unsurprisingly would not have granted the plaintiff’s relief. Look, I’m no optimist or SCOTUS fan, but the Supreme court’s order is actually encouraging. One, it seems like a majority of the court is willing to actually hold the administration to the law, at least in some cases. Was truly remarkable in that it issued before the Fifth Circuit had acted and before Alito had a statement ready to go. And I took this as another sign that public pressure works. Maybe this wasn’t just influenced by Judge Wilkinson’s powerful writings and Senator Van Hollen’s actions, but from what emerged in the emergency hearing, Judge Boasberg held. Specifically, the government’s unwillingness to say they wouldn’t deport other class members and the suggestion that the government had moved some people to the Northern District of Texas. In some respects, the most encouraging aspect of this action is that the court, or at least seven members of the court may finally be recognizing that maybe these guys in the Trump administration aren’t totally on the up and up and that maybe you can’t treat them like any other normal administration that acts in good faith. The court had ordered the administration to give detainees reasonable time and notice to allow challenges, but the government isn’t doing that. And it seems like seven justices just weren’t willing to assume the government is acting in good face. Back to House Alito flag watch. So Justice Alito eventually released his dissent, which was joined by Justice Thomas, and it seems as though this issue, whether to take the administration at its word, may have been the dividing line. So the five-page dissent rattles off a series of procedural irregularities with the court’s order, the timing, whether petitioners sought emergency relief in lower courts first, the Supreme Court not waiting for the Fifth Circuit’s decision, not waiting for the government’s response, etc. Justice Alito also specifically faulted the court for acting when, quote, an attorney representing the government informed the district court that no such deportations were then planned to occur either yesterday or today, end quote. That’s not what the government lawyer said. He just said he wasn’t aware of flights Saturday. Also Alito appears totally unfazed by the fact that there is now video of Ice busses with Venezuela nationals on the way to airports that then turned around in the chaotic days of this emergency litigation. The order is a typical grievance-laden Alito rant. It accuses the ACLU of providing little support for the suggestion that the applicants were in danger of removal. I guess the notices, which don’t mention the right to challenge their detentions, don’t count. The Alito hissy-rit, hissy fit, ends with, quote, both the executive and the judiciary have an obligation to follow the law. The executive must proceed under the terms of our order in Trump versus JGG, and this court should follow established procedures, end quote. Pause over this one for a second. Yes, the man whose house displayed not one, but two flags associated with January 6th while participating in at least three cases involving January 6, says we should just assume that the executive and the judiciary follow the law and take them at their word. And he’s joined of course by Clarence Thomas, the man who receives untold amounts of largesse from billionaires with interest before the Supreme Court. Tell me more about how we should assume officials comply with the law, my guys. Especially when the White House Twitter account is posting pictures of Mr. Abrego Garcia saying he’s never coming back. The 7 to 2 order also had some curious language in it. It said, quote, there is before the court an application, end quote, rather than the usual, the application presented to Justice Alito and referred by him to the court. The way these applications work is the applications are directed to a single justice, the circuit justice, who oversees the particular circuit where the application came from. Here, that’s Justice Alito. And then for significant applications like this, the justice usually refers the matter to the court for everyone to vote. So did Sam Alito not refer this application to the full court? Was he just sitting on it until it would be too late? Did his colleagues bypass him? Unclear. The docket says the matter was referred to the Court, but very curious listeners. Fingers crossed for some Jodi Kantor, Joan Biskupic story here.

 

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Leah Litman We have another entry in the what the fuck shit is this segment. This is some breaking news we got while recording. And that is that the Supreme Court has scheduled for argument the Trump administration’s requests to stay in significant respects, to put on hold in significant respect. The orders that prevent them from implementing their wildly unconstitutional plan to strip birthright citizenship from certain individuals. Now, I wanna quickly explain what issue is actually before the court because the administration did not ask the Supreme Court to review whether their efforts to strip-birthright citizenship are legal. Instead, the question they asked the court to take up. Is whether it was permissible for the lower courts in these cases to issue nationwide injunctions to prevent the administration from implementing this policy on a nationwide basis. But the practical effect of the court ruling against nationwide injunction here would give the administration ostensibly a green light to implement this policy in large swaths of the United States. And we are going to go off on this shit in a second, But. I just want to note at the outset that the idea that the court would take up the nationwide injunction issue in this case is utter garbage. One, they had numerous opportunities to do so when courts were enjoining Biden administration policies. They turned away those efforts. Apparently, no concern there. And second, if there is any case in which a nationwide injunction is appropriate, it would be an injunction against the birthright citizenship EO because. How are you going to implement an injunction against that policy on a state-by-state basis, determine where people are born and can they travel in the United States? It makes no effing sense. Thoughts?

 

Melissa Murray Who are the four? It took four people to grant cert here.

 

Leah Litman Yep.

 

Melissa Murray Who do you think they are?

 

Kate Shaw Gorsuch has been railing against these nationwide injunctions for a while, I am sure Gorsich.

 

Leah Litman My guess is Justice Thomas, I think he has indicated rather selective views on the propriety of nationwide injunctions.

 

Kate Shaw Alito because this could help the administration.

 

Leah Litman Right, only because this could help the administration. And then you probably get a J4 from one of Brett or Amy or even the Chiefie. And OK, so here is my goblin villain take on what is happening. I think there is a chance, and still a greater than 50% chance, that the court rules against the Trump administration on these birthright citizenship applications. So I think they’re going to reject the administration’s request and narrow the scope of the injunctions in this case. And I think the chief probably and other justices love the idea of buying themselves some goodwill, some credibility, and cover for when they inevitably give the administration a green light on a host of other atrocities, be it refusing to get Mr. Abrego Garcia back in the United States, be it allowing the administration to implement this insane AEA policy. Be it dismantling the administrative state, be it unconstitutionally coercing law firms, the media, educational institutions. Like, who knows what they’re going to do. But my guess is they saw this as kind of like a freebie for them.

 

Melissa Murray Hey, guess what, citizens? We’re going acknowledge that you’re citizens. You’re welcome.

 

That’s like the best case scenario to hope for here.

 

Kate Shaw I think that’s astute and very likely right. The thing that’s hard for me to figure is that I think that the credibility that they could buy is only going to come on.

 

Leah Litman But are people going to perceive that when the headlines are Trump administration gets ruled against, right? Supreme Court rules against Trump administration on birthright citizenship. That’s what the headlines aren’t going to say.

 

Kate Shaw The thing I’m worried about is what if that means they’re ultimately going to allow, they’re going to rule against it on this sort of injunction issue. And then next fall, they are going to have the actual substantive question and allow. I mean, they can’t possibly allow this order in its entirety. They can’t allow it to people who are lawfully here and have kids, as the order purports to do. And I also think there’s the statutory question, which is like whether or not the Constitution requires birthright citizenship, which it definitely does. Congress has passed laws conferring citizenship. So you can’t by executive order do this anyway, whatever the Constitution has to say about it.

 

Leah Litman Laws are for losers, Kate.

 

Kate Shaw Correct.

 

Melissa Murray Constitutions are for cucks.

 

Statutes are for suckers.

 

Kate Shaw Yeah, yeah, this is some good aliteration ladies.

 

Melissa Murray Kate, you and your reading, why do you keep reading the constitution as  if the words matter? It’s a vibe.

 

Kate Shaw We’re reading it and they’re reading, I guess.

 

Melissa Murray Leah, you make an excellent point, though, about the selectivity of this court’s antipathy for nationwide injunctions. And I also think it’s a really astute point and a clarion call to the media to think about how it chooses to cover this case, because the media will absolutely shape the narrative around what the ultimate disposition of this. And they really have to get it right here.

 

Leah Litman I’m going to take this moment to do a sua sponte, a spontaneous plug for my book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. Because I talk about how the justices try to cultivate this sense with the media and how the media goes along with it and how that enables them to do all of, a good amount of this horse shit. Sorry. It’s just so frustrating. Like, it’s happening right before our eyes.

 

Kate Shaw Wait, is this argument, I feel like this argument and your pub date are going to be very close

 

Melissa Murray Yeah. So the book is out May 13th. Maybe this is for you. Maybe this for you, Leah. Maybe Justice Alito is like, you know what? I’ve done so much to Leah Litman. I’m going to give her this one.

 

Leah Litman Is this giving me something? I kind of view this.

 

Melissa Murray Epic. This is going to be great. Your book is going be so relevant the week it comes out. Justice Alito was like, I’m a do Leah a solid. Thank you, sir.

 

Leah Litman If he wanted to do me a solid, he could have resigned like two years ago and let Elizabeth Prelogar replace him.

 

Melissa Murray Don’t put that resignation energy out there because there is an embryo somewhere in Idaho waiting to be appointed to the court.

 

Leah Litman A men’s rights embryo, you’re right.

 

Kate Shaw I can’t imagine anything worse so I don’t I’m fine with it with you putting the kind of retire now Sam energy out the ether personally

 

Melissa Murray See Kate, that’s because you’re an optimist.

 

Kate Shaw It can always get worse.

 

Melissa Murray That is peak Kate optimism. It can’t get worse!

 

Kate Shaw It can’t get worse than Sam Alito, yeah. The others I think it can get worse, but him I don’t think so. But in any event, so that’s May 15th is gonna be that oral argument. So we will be on this case.

 

Leah Litman I will actually be in DC then.

 

Kate Shaw Oh. You should go.

 

Leah Litman Hey Sam. What’s up?

 

Melissa Murray We should go to oral argument.

 

Kate Shaw Okay, so there is other immigration-related news we wanted to flag, and that is that last week ICE arrested another Columbia student and green card holder Mohsen Madhawi. Madhawi was arrested when he showed up for a naturalization interview, right, he’s a green cardholder, he was on the path to naturalize as a citizen, and instead he was picked up by ICE. Like the arrest and detention of Mahmood Khalil. This is an outrage. I don’t know about you guys, but I’ve spent a bunch of time in the last few days watching videos. He did a 60 Minutes appearance. He did another CBS interview. I crawled under my desk and cried, not even exaggerating, watching some of these interviews. This is a person who says things like, the fight for freedom of Palestine and the fight against anti-Semitism go hand in hand. Justice anywhere is a threat to justice everywhere. This person was a philosophy student and a peace activist, and the interviews with his friends and colleagues at Columbia are so wrenching. And his name, like the name of. Mr. Briego Garcia, like the name of Mahmood Khalil, is a name that people should know. This is just an outrageous what have we become moment.

 

Melissa Murray All right, I feel like with Kate taking on that kind of energy, it’s down to me to be the optimist here and bring this up a little. So we did get a little bit of positive news this week in that we learned that Harvard University has chosen to stand on business. So listeners, you have likely heard that the Trump administration has taken aim at Ivy League universities. This seems to be. Some kind of campaign to basically make the Ivy League Hillsdale College. And in order to do that, the administration has threatened to withdraw crucial federal funding for research and medical care, among other things, if the universities do not accede to the administration’s demands. And those demands include limiting faculty governance, taking action against student protesters, curbing DEI and hiring and admissions, and even placing certain academic departments into federal receivership. It is an unprecedented assault on academic freedom. Indeed, one individual characterized it as, quote, 10 or 100-fold worse than Joe McCarthy’s 1950s-era attack on universities in the name of curbing communism. So it’s real, and it’s terrible.

 

Leah Litman But notably, resistance in the academy seemed thin to date. So some institutions like Columbia capitulated quickly, which only seemed to embolden the administration to make more increasingly intrusive demands. But here’s the glimmer of good news. Now, one university, Harvard, has made clear that it will not go gently into that good night. It, quote, will not surrender its independence or relinquish its constitutional.

 

Kate Shaw Okay, this is a very big deal. Obviously, Harvard has a sizable endowment and is wealthy by any standard, but it is still dependent on federal funding for a wide range of its operations, which is to say it has a lot of skin in the game. And it is standing on business because it rightly believes the administration’s demands are a bridge too far. They have likely also surmised, as law firms have, I think, been learning, that when you try make a deal with a bully. The bully keeps coming back to bully you. It’s the thing about bullies is it’s not ordinarily they’re jammed to just shake you down once and then go on their way and never bother you again. It’s not really how bullies roll.

 

Melissa Murray I mean, bullies are basically like glitter, right? I mean you just can’t get rid of it. Yes. Right. All of this seems like it has been a very buoying moment for academia, which I want to just put a note under this, makes it very likely that the administration is going to continue to retaliate against Harvard. And I’m just going to say, I really hope that the university will continue to receive public support for its leadership in this crucial moment because it is. Out there in uncharted waters in an unprecedented time, and it is standing up for academic freedom. And I hope the public supports that.

 

Leah Litman If anyone can fight, it’s Harvard. But Harvard can’t fight alone. I have not given money to Harvard. I went there for undergrad. I gave money to them for the first time after this announcement. And as Melissa suggested, the administration is likely going to try to escalate. And their response has been to float the prospect of an all out, all government war against Harvard. So they suggested, The president did, that maybe they would take away Harvard’s tax exempt status. This would also be illegal. They also suggested that maybe they would rescind Harvard’s ability to matriculate students on certain visas. But these responses just seem to be proving that all of this is about retaliation and extortion and punishment for ideological views. And other schools are also now thinking about how they will respond to the administration’s demands. And I do think courage begets courage. So the Rutgers Faculty Senate has proposed a Big Ten Academic Alliance mutual defense pact. Which would facilitate collective action if the administration targeted any of the schools in the alliance. In a letter dated March 27th, we briefly mentioned this. The House Committee on Education and the Workforce had told Northwestern University that they had to turn over the budgets and the funders for the law school’s 20 plus legal clinics. As well as a personnel file of one professor, Professor Sheila Betti, director of Northwestern Law’s Community Justice and Civil Rights Clinic. And these demands came because the House did not like one of the clients, the clinic was representing.

 

Melissa Murray Professor Betty said, not today. Satan and she and another Northwestern clinic leader sued to prevent the turning over of those records to Congress. Their lawsuit claims that the House Committee on Education and the workforce is working, quote, in tandem with the Trump administration to target universities and perceived ideological enemies. And notably, the lawsuit names as defendants Northwestern and its president, Michael Schill. Because those are the individuals or entities that would have had to surrender the records to the House Committee. So they are sort of framed as nominal defendants here.

 

Kate Shaw So it turns out that when faced with a lawsuit from actual law professors arguing that the committee investigation and the attached request for records was a bunch of political bullshit that wastes the university’s time and your tax dollars and is unlawful in about six different ways to boot, the committee blinked. It withdrew its request for records on the day that there was a hearing scheduled in court. So the Center for Constitutional Rights, which together with the Chicago law firm Loevy & Loevy represented the two law professors described this as a, quote, victory for academic freedom, the rule of law, and bedrock constitutional principles. So really important lesson here, you can’t win if you don’t fight. And if you fight, you sometimes win.

 

Leah Litman And on that note, since we last recorded, another law firm decided to fight, not fold. So Sussman Godfrey, represented by the great Don Verrilli from Munger Tolls, Sussmann was targeted with an executive order and they decided that they would not capitulate. Instead, they filed suit challenging the executive order. District Judge Lauren Olleycon very quickly issued a temporary restraining order, the fourth of its kind, and had the following to say, quote. The executive order specifically targets lawyers because of the clients that they represented. The executive orders is based on a personal vendetta against a particular firm. And frankly, I think the framers of our constitution would view it as a shocking abuse of power,” end quote. During the hearing, she also observed that, quote, “‘Law firms across the country are entering into agreements with the government out of fear that they will be targeted next and that coercion is plain and simple.'” And while I wish other firms were not capitulating as readily, I admire firms like Sussman for standing up and challenging it when it does threaten the very existence of their business.” End quote.

 

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Kate Shaw Okay, so the court is returning this week from its spring break for a full two weeks of argument in its last regular sitting of the year, although as we just said, there will be this additional May sitting for the Birthright Citizenship case. This April sitting is the first sitting with the newly confirmed Solicitor General John Sauer on board. So I’m guessing we will hear from him, although we haven’t seen those day calls But in any event, we’re going to jump right in and preview the major cases on week because there are some big ones.

 

Leah Litman First up is Kennedy versus Braidwood management. This is an appeal from the Fifth Circuit, so naturally it will have major consequences for the future of the administrative state and executive power, as well as healthcare for marginalized groups. Here’s the background. Under the Affordable Care Act, the Department of Health and Human Services Preventative Services Task Force may direct private insurers to cover certain categories of preventative care. So it has decided to include within that list PREP, which is used to prevent HIV infection for at-risk individuals. A group of business owners has challenged the ACA’s coverage of PrEP on the ground that the medication encourages quote, homosexual behavior in violation of their religious beliefs. They are represented by Jonathan Mitchell, the conservative lawyer who was the architect of SB8, the Texas bounty hunter law that ended abortion access in the Lone Star State months before Dobbs did so on a national basis. He also successfully argued on behalf of Donald Trump in the Colorado Disqualification Challenge back in February, 2024.

 

Melissa Murray So to be clear, all of this sounds a lot like Hobby Lobby. That was the case in which business owners made a conscience exemption to the contraceptive mandate in the Affordable Care Act. That was back in 2014. This case is slightly different. The question that the litigants are pressing before the court and that the court has agreed to hear isn’t about conscience exemptions per se, but rather whether the structure of the Preventative Services Task Force violates the Appointments Clause. So they prevailed on this question in the district court and at the Fifth Circuit, which agreed that members of the task force are, quote unquote, principal officers and not inferior officers. And thus, their appointments have to be subject to the Appointments Clause. So this is more of an administrative law executive power question.

 

Kate Shaw And not just subject to the appointments clause, but if they’re principal officers, they have to be appointed by the president and confirmed by the Senate, and these are part-time task force members, and it’s preposterous to suggest that they are principal officers. So the Biden administration challenged the ruling when it came down from the Fifth Circuit, and notably the Trump administration has continued with that same position. So the administration argues that these task force numbers are inferior officers because they cannot make any legally binding final decisions without the secretary’s permission, and the secretary can remove them at will.

 

Leah Litman So, although the administration is arguing that the Preventative Services Task Force as structured as constitutional, they did slightly modify the position of the Biden administration in that their position is that the Secretary of Health and Human Services can modify the Prevenative Services task force decisions. So that would mean America’s new chief scientists slash vaccine skeptic and anti-fluoride crusader, RFK Jr. Would have the power to revise the task force determinations. Not great, like he may very well cross out PrEP and write in ketamine, heroin, or dead bear carcasses.

 

Melissa Murray Anything could happen. The government also argues here that even if there is an appointments clause violation, the appropriate remedy is to sever the offending statutory provision that insulates the task force from secretarial supervision, not to bar the task force prospectively from exercising significant government authority absent new legislation. So again, this is sort of a sale of law kind of argument. We just cut out the offening part.

 

Kate Shaw I mean, I have to say it’s hard to know what to root for here. The idea that these outside experts are principal officers, again, as I said before, pretty absurd to my mind. So I hope the court reverses that finding. But, you know, in terms of the practical impact is, as Leah just said, either the court is going to accept this argument that the HHS secretary can override task force recommendations, which means a shitshow for public health. But given who this administration, I would imagine, will want to have on the Preventative Services Task Force if it has the power to change the composition of it, I’m not sure things are going to be much better. So I guess I hope they don’t create any additional bad law regarding the Appointments Clause here, like literally everybody in the federal government is a principal officer and they all have to be confirmed by the Senate, or they can’t be in the government at all. Uh, you know, something along those lines. Um, and just to-

 

Melissa Murray You’re assuming we’re going to have a government.

 

Kate Shaw Right. With departments and agencies and heads of them. Just one other thing I’ll say is, like, obviously, Leah was joking about, or maybe not, about, you know, crossing up PrEP and adding in dead bear carcasses. I didn’t think that was a joke. But maybe not. Hard to know right now. But it would still be the case that the HHS secretary’s determination would be subject to, I know this sounds quaint, but legal constraints like the requirement that government not engage in arbitrary and capricious decision-making. So that would in theory be a constraint on the ability of kind of politicals to override the determinations or recommendations made by this task

 

Leah Litman How do you think that argument is gonna fair before America’s other chief scientist, Matthew Kacsmaryk?

 

Kate Shaw He is, he is all in on the bear carcasses. So he’ll be pretty excited about that.

 

Leah Litman Ladies, always choose the bear.

 

Kate Shaw Dead or alive.

 

Melissa Murray The court will also hear this week  Parrish versus the United States. This is a case that’s really about notice of appeals. So as a general matter, litigants must file a notice of appeal within 30 or 60 days of an adverse judgment. However, under a federal statute and federal rule of appellate procedure for district courts can reopen an expired appeal period when a party doesn’t receive timely notice of the judgment. But there is actually a circuit split as to whether a notice of appeal that is filed after the expiration of the ordinary appeal period but before the appeal period is reopened becomes effective once reopening is granted. So the court is going to take up and resolve that question. So a smaller, more discreet issue amidst some very important big cases this week.

 

Leah Litman The court is also going to hear Commissioner of Internal Revenue versus Zuck. This is a statutory interpretation case involving a provision of the tax code. Usually, when the IRS seeks to levy your property to secure a tax judgment, it has to provide you with a pre-levy hearing. The question here is whether that pre-Levy hearing is still required in circumstances where there is no longer a live dispute over the proposed levy that gave rise to the.

 

Melissa Murray Another case that the court’s going to hear this week is Diamond Alternative Energy LLC versus the EPA. Guess who’s gonna win? Exactly. So here’s the backstory. In 2021, the Biden administration announced that it was going to try to increase the number of zero emission vehicles on the road as part of its efforts to address climate change. To do this, the administration pursued multiple regulatory avenues, including regulation by the EPA Under Section 209 of the Clean Air Act, states are preempted from adopting their own motor vehicle emission standards. But that same provision provides an exception for California to obtain a narrow waiver from federal preemption if it can show that it, quote, needs its own emission standards to meet compelling and extraordinary conditions.

 

Leah Litman So in 2022, the Biden EPA granted the Golden State a waiver for its advanced clean cars program, which included a set of stringent greenhouse gas emission standards, as well as a mandate requiring automakers to meet a 22% zero emission vehicle target by model year 2025. As Governor Gavin Newsom explained, the measures were intended to, quote, end our on fossil fuels. And the petitioners who represent a range of oil and gas constituencies took that personally, immediately challenging the waiver on the ground that its approval of California standards is inconsistent with the major questions doctrine and the plain text of Section 209b, which allows for a special California exemption only for problems localized to and solvable in California, not for global issues like climate change.

 

Kate Shaw In order to establish their standing, the petitioners submitted 14 declarations explaining that California’s standards target their products and will result in lower sales. The Court of Appeals held that petitioners lacked Article 3 standing because they failed to show that the resolution they sought would provide redress for their injuries. Specifically, the court concluded that vacating EPA’s waiver and thus eliminating California’s coercive regulations might not have any effect on car manufacturers’ decisions about the composition of their fleets given things like market demand. So the case could become a really important standing case, either maybe negating or confirming that redressability is a separate requirement from causation, right? So these are technically two different prongs of the standing test. You need to show not only that you’re being injured by the thing that you are complaining about but that the remedy you seek will actually fix or at least partially redress your injury. But lots of students of constitutional law and maybe sometimes even teachers of constitutional And fed courts and other topics have sometimes struggled to really identify the relationship between the two. Speaking just for myself here, you guys maybe have not struggled with it, but I do think this case could be important on the concept of redressability.

 

Melissa Murray The next case that we’re going to cover is a biggie. This is Mahmoud versus Taylor. We briefly touched on some of these issues when we covered the oral argument in United States versus Skrmetti. That was the challenge to Tennessee’s law prohibiting gender-affirming care to minors. We noted there that the court at the Biden administration’s behest only granted certiorari as to one constitutional question, whether the Tennessee law made a distinction on the basis of sex, thereby triggering intermediate scrutiny under the Equal Protection Hierarchy. We noted this because in the lower courts, the case also presented another constitutional question, that is whether the law violated parents’ rights to make medical decisions for their children without undue state interference. The court did not have that question before it in Skrmetti, and that was a point that Justice Barrett noted in the Skrmetti oral argument. It’s also worth noting that just a mere six weeks after the oral argument in Skrmetti, The court took cert in this case, which, again, tees up this question of parental rights squarely, albeit in another very fraught context. And the court will hear this case tomorrow.

 

Leah Litman So it is a parental rights case, though not a substantive due process case, which was the alternative challenge in Skrmetti. Here it’s like a parent’s religious rights challenge. So it’s all related, but so OK. The case relates to a 2022 decision by the Montgomery County Public Schools, Maryland’s largest school district, efforts to select curricular material that better represented its students and families. So they selected a range of books that included characters, families, and historical figures. From a range of cultural, racial, ethnic, and religious backgrounds. And these books included storybooks such as Pride Puppy, which is about a puppy who gets lost at the pride parade. In selecting the books, the county engaged in what it describes as a, quote, careful public participatory selection process that welcomed and incorporated parent feedback.

 

Kate Shaw That’s where it went wrong, shouldn’t have done that. So having gone through this careful process resulted in the selection of this group of books. In 2023, the county announced that it was not going to allow parents to basically opt to have their children excused from instruction involving the storybooks. And that decision prompted a group of parents, I think it’s Muslim and Christian parents, to go to federal court to challenge this no opt-out policy. A district court, sided with the county and against the parents, declined to issue an order that would temporarily require the county to notify parents when the storybooks would be used and give them a chance to opt out of instruction. The Fourth Circuit upheld that order and noted that on the quote, threadbare record before it, the parents had failed to show that exposure to the story books compelled them to violate their religious beliefs.

 

Melissa Murray Now, to be very clear, there is no circuit split here. Every appellate court that has considered this braided issue of religious rights and parent rights has concluded that simply being exposed to certain issues in a public school curriculum does not actually burden the free exercise rights of either parents or students, which is why it’s really curious, interesting, shocking that the court decided to wade into what is essentially a culture war. To hear these intertwined religious freedom parental rights claims that these parents are asserting.

 

Kate Shaw And this is yet another one of these religion slash culture war issue cases that is totally premature for the court to have taken up. So I mentioned that the Fourth Circuit described the record in the case as threadbare. It also noted that we do not know, quote, how any teacher or school employee has actually used any of the storybooks in the parents’ children’s classrooms. How often the story books are being used. What any child has been taught in conjunction with their use. What conversations have ensued about their themes. This is one of these cases kind of like 303 Creative that involves wholly speculative harms that have not come to pass. And I just want to quote, if it’s okay, from a really good piece in Vox that Ian Milheiser had about just how inadministrable the plaintiff’s requested rule is, and also just kind of like how related that is to the fact that the court took this case up without any factual development at all. So Ian writes, quote, suppose, for example, that during a civics lesson on the structure of America’s executive branch, a student raises their hand and asks whether any members of President Donald Trump’s cabinet are gay. Is the teacher required to halt the lesson and immediately call every child’s parents to notify them that they might reveal the hidden knowledge that Treasury Secretary Scott Besant is a gay man? Or suppose a teacher asked their students to read a novel of their own choosing and deliver an oral report on the book to that entire class. Must that teacher also call a halt to a student’s book report if the student selects, say, a book that has a gay character or gay themes and the other students might hear about it? That kind of harm from exposure to LGBTQ content is the heart of the parent’s complaint. And what it might mean on the ground in classrooms is something that the court is gonna be deciding in the abstract in a vacuum because there is no factual development yet before it.

 

Melissa Murray Can I also make the point, and I think Justin Driver, who is a professor at Yale Law School, has made this point really well. I mean, it’s basically a kind of fly specking of curricula. Like, it just allows the parents to sort of come in and veto it. Or, I mean you might think of it in these terms, if you’re the Supreme Court. It’s like allowing one parent to issue a nationwide injunction on curricular content. I’m really not kidding. It’s an absolute veto. And it would just make it very hard, I think, for school boards to function and to generate and create curricula, given lots of people might disagree about lots of different things.

 

Leah Litman No, I mean, I think that this case should be understood as part of a broader attack on public education. Melissa, as you noted, and Kate, as you were indicating from Ian’s piece, the case could give parents the right to dictate what is taught in public schools, and that just cannot be. And, you know, as to the uncertainty in the record and the idea that the case is premature, part of me wonders if this is now an intentional strategy so that instead of waiting to see… That the school is likely going to implement the policy in a very reasonable way, the justices can instead speculate about the potential. Well, what if, you know, this horrible teacher, right, opens up Pride puppy and then tells the students that they are evil if they don’t like the Pride puppy, you know? And so, I don’t know, I just feel like it is created in parts to allow.

 

Kate Shaw Kind of speculation. Just to underscore, I think this is implicit in what we’ve been saying, but there just isn’t a limiting principle that the challengers and the Beckett lawyers have identified. So we’re just basically talking about teachers. This is how the Con Law scholars brief that I thought was really good framed it. Like the petitioner’s theory basically invites this result where teachers are going to be forced to create bespoke curricular plans for every student with a unique set of religious objections and making it completely impossible to conduct public school education. In a pluralistic society actually may be the goal here.

 

Leah Litman Great. Perfect. Right. So I wanted to flag an amicus brief that was filed by several law professors, including Professors Michael McConnell and Rick Garnett. This is an animus brief.

 

Kate Shaw Not the breed that I just met. To be clear, those are different con law professors than the ones I was just quoting from.

 

Leah Litman Yes, yeah, yeah. Other side of the case. Right. This amicus brief is in support of the challengers and it urges the court to say that the policy is invalid because the policy was motivated by animus toward certain religions and religious believers. And again, this just seems- Pride puppy? Right. Pride puppy. This seems to equate anything that certain religious believers or certain religions do not like with unconstitutional discrimination against them, where the mere presence of LGBT individuals and LGBT characters is an affront and discrimination against these religious believers. This is an attack on pluralism, right? And it is really galling.

 

Kate Shaw Yes

 

Melissa Murray It’s also your book, Leah, FYI.

 

Leah Litman I know. I had been intending to plug my book here. They’re literally fucking writing the sequel. In the final round of edits, I noted this case just because I was like, this is where they’re going next. And yes, it is where their going next, but in the case, Alan Schoenfeld is arguing on behalf of the schools from Wilmer Hale. I’m super excited to see that. I know he’s going to do a great job even in the face of all of this fuck shit.

 

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Melissa Murray Speaking of fuckshit…

 

Kate Shaw Are we though? I don’t know. I seriously don’t even, it doesn’t seem like fuck shit to me, but am I, have I completely lost all perspective?

 

Melissa Murray I’m just looking for transitions here. I’m trying to make it a segues, make this a tight little episode.

 

Leah Litman You are the transition queen.

 

Kate Shaw Well, all y’all ERISA stans can tell us if in fact this should be in the in the fuckshit part of the episode I don’t think it should  honestly but anyway.

 

Leah Litman I think it probably depends whether you are representing plaintiffs or defendants in ERISA cases.

 

Melissa Murray I’m just saying Justice Alito has a separate concurrence in which Justices Thomas and Kavanaugh joined and I’m like…

 

Kate Shaw Alright, well, it’s been a busy week. I have not looked closely at all.

 

Melissa Murray It just came out like we literally just got this this morning. We’re just recapping. We’ve got to dig in.

 

Kate Shaw Obviously. So briefly, the case we’re talking about is titled Cunningham vs. Cornell University. As we have said, it’s an ERISA case. It has to do with how plaintiffs can state a claim under this section of the law, section 1106, which prohibits planned fiduciaries, so people who administer a healthcare plan or a retirement plan, for example, from causing a plan to engage in certain transactions with interested parties. So while this section generally prohibits such transactions, there are exceptions elsewhere in the statute. For various things like contracting or making reasonable arrangements for office space or legal accounting or other services. So here, for example, Cornell is the administrator that is the fiduciary for retirement plans. Cornell retained Fidelity and TIAA to offer investment options for plan participants and then also served as a record keeper for those plans. And a group of plaintiffs sued saying that because Fidelity in TIAA are parties of interest, they could not be retained for these record keeping purposes.

 

Melissa Murray And the court unanimously held that to state a claim, plaintiffs only have to mount allegations that pertain to the elements of section 11.06 without also making allegations about why any exceptions don’t apply. Justice Sotomayor wrote the majority opinion for the unanimous court, but as briefly noted earlier, Justice Alito filed a short concurrence in which both Justices Thomas and Kavanaugh joined. So we should probably look into that.

 

Leah Litman So as we are waiting for whatever may come from the Supreme Court, one of the actions we are awaiting their decision on concerns the government’s request for stays of the lower court’s decisions that had blocked the president from firing the heads of multi-member commissions, including the National Labor Relations Board and the Equal Employment Opportunity Commission. While we are waiting for the Supreme Court to tell us on the shadow docket whether Humphrey’s executor and independent agencies are still a thing, the president of the United States conveniently decided to remind the country that he would like to fire the chair of the Federal Reserve Board so that he, Donald Trump, may dictate interest rates for the country. Makes me wonder, what are the interest rates? For a penguin’s going to be, pray tell. But yeah, no, his truth social posts, like while this application is pending, Quote, Powell’s termination cannot come fast enough. And again, this is relevant to the application because if the Supreme Court allows the president to fire the heads of multi-member commissions, well, the Fed is a multi-members commission. And so the question will be, can the president fire members of the Fed as well? Again, possible the Supreme court will distinguish this. Possible they won’t, and it will trigger another recession. We don’t know.

 

Melissa Murray If the tariffs won’t do it, the court will.

 

Leah Litman Exactly. The president has taken some baby steps toward attacking the Fed, so he fired two Democratic board members at the National Credit Union administration, once again, attacking the dependence of financial institutions and financial policy.

 

Kate Shaw But we’ll see. I mean, if the court tries to do something tortured and say whatever we’re saying about the NLRB and the EEOC doesn’t apply to the Fed, it could try that. Or it could write something really broad that obviously applies to the Fed or it could leave it ambiguous. And I think in the latter two scenarios, we are in for just potentially another round of incredible market shocks because if Trump tries to fire Powell, Powell has said he’s going to fight in court. And so we could be in for a period of protracted uncertainty about who is actually in charge of. Uh… Monetary policy interest rates for the united Oh, all right, so I mean, it feels like things have really gone off the rails pretty hard this past week, but it could get a lot crazier.

 

Melissa Murray Speaking of going off the rails, does anyone have an update from North Carolina?

 

Kate Shaw There are some updates. They’ll probably be overtaken by the time this episode drops. But as of Thursday afternoon, this is the case involving the effort by unsuccessful North Carolina Supreme Court candidate Jefferson Griffin to un-lose the election he lost using an insane legal theory that involves retroactively invalidating lots of valid votes that happen to have been cast for Allison Riggs, who is a sitting Supreme justice in the North Carolina Supreme Court and won another term. There was a ruling that we talked about in our last episode in which the Intermediate Appeals Court accepted some of Griffin’s insane arguments, and the Supreme Court declined to put that ruling on hold. So there is now ongoing litigation in the federal court. So Riggs has asked for either a temporary restraining order or a preliminary injunction. The district court denied that. She is now in front of the Fourth Circuit asking for day. At the same time, the state board of elections is proceeding with this process for letting people cure their ballots that they cast back in November and are now being told seven months later might not have been valid unless they produce some additional evidence of their eligibility. The whole thing is absolutely insane. Now some initial reporting suggests that Riggs actually might be on track to win again the thing she already won even if this challenge is ultimately successful and the court litigation doesn’t actually yield any change. Because it’s a small number of ballots that Griffin’s insane effort has even thrown into question. And that whatever happens with those ballots may not be enough to change the outcome, which was that Riggs won.

 

Melissa Murray Can I just note, the real point of all of this might be just a longer term play. I mean, I think, as you say, it’s very likely that Alison Rigg is going to win again. Can’t stop, won’t stop. Girls can do it. But I think maybe part of this is sort of normalizing the idea that we can, after the fact, go back and ask people to fix mistakes that they didn’t even know they were making at the time they voted. And you didn’t mention this, Kate, but I think it is worth noting that. The bulk of the ballots that need to be cured here are coming from Mecklenburg County. That is where Charlotte is located. Charlotte is a big blue dot in the middle of that purple state. And this Supreme Court election is a deal. And now this can just be extrapolated to other purple states or other states where they wanna do this as well.

 

Kate Shaw We should say that our friends at Vote Save America are helping sound the alarm on what is happening and that there are these efforts underway to do ballot curing, even though none of this should be necessary, it is. So if you are interested in getting involved in that, you can go to votesaveamerica.com.

 

Melissa Murray All right, while we’re putting a pin in anti-democratic things that we’re watching, I just want to note one final thing. And that is the Insurrection Act. Listeners, you likely won’t remember this, because literally, there was so much crap coming out of the administration after January 20 that this particular executive order might not actually have registered with you. But among the executive orders issued on January 20, Was an executive order that directed various administration officials to meet and then report back to the president about the propriety of invoking the Insurrection Act. We are taping on Thursday, April 17th. The report on the propriety of invocation of the Insurrections Act is due to the president on Sunday, April 20th. Notably, on April 11th, the president signed an ominous memorandum in which he authorized the military to take control of a swath of federal land along the US-Mexico border, which may be a move perhaps to facilitate military arrests of non-citizens who are trying to enter the country unlawfully on the ground that this now constitutes trespassing on military property. I’m saying all of this just because I just I want to flag that the prospect of invoking the Insurrection Act is really, really concerning. The Insurrection act is actually a series of five statutes that Congress enacted in the 18th century and then amended in 1861 and 1871 to delegate to the president domestic emergency authority that the constitution has actually given to Congress to quote, provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions. It is among the president’s most important and most controversial. Domestic emergency powers. And it has only been invoked a handful of times. Indeed, the last time the president invoked the Insurrection Act was in 1992 when President George H.W. Bush called in the National Guard to Los Angeles to quell the riots in the wake of the Rodney King verdict.

 

Leah Litman So using the military as domestic law enforcement is a really big deal, especially given how broad and capable state and local law enforcement is. You’re basically piling on in a way that might actually render civilian society a police state. And I think the president’s indications of the Insurrection Act or potential indications of the insurrection act in deploying the military to do domestic policing have to be understood in the context of several administration policies is that. Seem like there are ways to remake the military into some kind of white nationalist militia. And to use that group, those individuals, as the domestic police force is pretty terrifying. So we are putting a pin in this. It is something we should be watching and aware of. And if you want to learn more about the Insurrection Act and the dangers it might pose in reckless hands, we highly recommend Commander Steve Vladeck’s Substance, one first, which on April 14, did a deep dive on these questions. Speaking of great things we read last week,

 

Melissa Murray Red and saw, red and saw. Okay, so I wanna first start with the Saturday Night Live skit, White POTUS. And before you at me about Amy Lou Wood’s teeth, I agree, it was very mean as to Amy Lou Wood’s teeth. But as to everything else was spot on, absolutely fantastic, so creative. I mean, absolutely, like the part where the Donald Trump character is wearing a king shirt instead of a Duke shirt, chef’s kiss, loved it. Um, John Ham as RFK junior, about to, you know, literally inject people with active measles. Amazing. Um, just so, so good. Also the best, the best part was Kristi Gnome and Pam Bondi.

 

Leah Litman And Marco Rubio.Rubio, dissing Marco Rubio. That was incredible. I loved it.

 

Melissa Murray It was, the whole thing was so, it was so I mean, the Amy Lewood thing, I love Amy Lewwood from Sex Education and like her teeth are beautiful. She’s beautiful. So yes, I agree. It was mean to her, but everything else was spot on and fantastic. Loved it. The other thing that I love this week is the book Good Dirt by the author Shermaine Wilkerson. She’s also the author of Black Cake, which got made into a Hulu mini series. I love her writing. I love these sort of multi-generational stories and she’s an amazing storyteller. I also started watching season four of Hacks on Max. I love, love, Love Gene Smart and Hannah Icebinder. And it’s so good. If you haven’t seen Hacks, you have to get on this. And then finally, in the podcast version, when I’m not listening to Strict Scrutiny and all of the other fantastic fair in the crooked universe. I listened to my girl, the other M.M., Megan Sussex, whose new podcast, Confessions of a Female Founder, just dropped. And she interviewed one of my law school classmates, Reshma Sajjani, who’s doing all of this great work on how to make life, society better for working mothers. And I was like, plus one. I’m low-key jealous of Reshma that she got to meet my, in my head, best friend, Megan Markle, Sussex. But for a good cause, and it was worth listening to.

 

Kate Shaw Okay, we are also, we initially said we were gonna do three. It is hard to just do three, so I think we should all grant ourselves permission to shout out.

 

Melissa Murray Well, the court is doing this nationwide injunction stuff I think we get to have a little more because you need more good news.

 

Kate Shaw Okay, that’s great. I totally agree. I think it’s great you did more than three, I am also going to do more than three. I’m not even counting anymore, so whatever. Yeah, it’s fine. It’s great. So there was a great piece in The New Yorker last week by Julia Engwin and Amy Fields-Meyer called So You Want to Be a Dissident that just pulls together wisdom based on a lot of interviews with foreign dissidents and opposition leaders and movement strategists and domestic activists and scholars of non-violent movements and sort of just calls from all of those conversations and sources lessons to be learned, quote, from those who’ve challenged repressive regimes, a provisional guide for finding courage in Trump’s age of authoritarian fear. So that is a really good read. Last week I mentioned that I’d started, I have to say again because I finished it, Michael Lewis’s Who is Government? I’m sorry. I obviously did a lot of crying this week, but when I tell you I was. Like he crying, reading about the head of the National Veterans Cemetery Administration. I am not exaggerating. Here’s what I want to do. I want a Clockwork Orange style pry open the eyeballs and subject Elon Musk and Russell Vogt to the stories of the incredible accomplishments and like nobility of some of these government workers in this book. It is so moving and enraging. So anyway, that’s my second recommendation having finished it. Just security. Based at NYU out of the Rees Center for Law and Security is now on substack. And they have been, I think, keeping the best real time, like to the nanosecond running list of litigation against the Trump administration. And it is such an indispensable resource. And so I want to mention they are now on sub stack. Again, since we started recording this Fourth Circuit opinion in the Abrego Garcia case came down. And when we first talked about it, I just glanced at it. And I have now, while talking, while podcasting, read it. And you have to read the seven pages. I’m going to read two sentences which is We yet cling to the hope that it is not naive to believe our good brethren in the executive branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time. So dire and deservedly so, so read that. And finally, I am reading this book, the novel.

 

Leah Litman Wait, sorry, can I inject one more Wilkinson line, since I’m not going to name that independently? Facilitate is an active verb.

 

Kate Shaw That’s good. Yeah. You get to decide how, but not if, right? You have to do something. I think that’s right. And the last thing I’ll mention is a novel I’m reading this week called Catalina by Carla Cornejo Vila Vicencio, and I’m loving it. So, strong recommendation.

 

Melissa Murray Is that the novel about the um, she’s a student?

 

Kate Shaw She’s an undocumented Harvard student, and it’s a novel. It’s not a memoir. It reads like it could be a memoir, but it is a novel, and she is a great character, and I’m only maybe like 100 pages in, but really, really enjoying it.

 

Leah Litman So I did limit myself to three.

 

Kate Shaw A+ student Leah.

 

So after we recorded not this episode, but the.

 

Melissa Murray What do you want? A nationwide injunction for that? Okay.

 

Leah Litman I want the authority to issue nationwide injunctions. No, okay. So after we recorded not this episode, but the previous episode, it was the first night of Passover. And I wanted to highlight Ari Richter’s piece, I guess I’ll call it Never Again Will I Visit Auschwitz, a graphic family memoir of trauma and inheritance, just poignant, significant.

 

Kate Shaw Leah, can I tell you a weird mind meld thing? We were going upstate for the weekend and we did a Seder on Saturday night. And as I was loading up the car and like throwing the matzah meal and stuff, like into the car, I had this graphic novel, Ari’s Never Again Will I Visit, actually it’s on my bookshelf. And I was like, we’re gonna go upstate and do a little Seder and sit by the fire and I’m gonna bring this book up. And Chris stole it and sat and read the entire thing. So I didn’t get to crack it, but he also happened to read it last weekend after owning it for quite some time also sort of thinking it would be a good Passover read. So I feel like that is a weird mind melt thing.

 

Leah Litman Better late than ever.

 

Kate Shaw He too was like, this book is so good.

 

Leah Litman Yeah, it is.

 

Melissa Murray I told you Leah was a work wife.

 

Leah Litman Yeah, but you’re work wives.

 

Kate Shaw I mean, you can have many.

 

Melissa Murray We are doing a kind of polygamous thing here with all of our work wives.

 

Kate Shaw Indeed.

 

Leah Litman So the second piece I wanted to highlight is Michelle Goldberg’s piece in the New York Times, The Vibe Shifts Against the Right. And then finally, not really a piece, but Harvard’s new website that they trotted out that highlighted the many contributions that Harvard gives to the public and society. And yes, it focused on scientific research, medical research, and whatnot. But those are very tangible things to people’s lives. And so, of course, I also think humanities, law. Other disciplines provide huge public services as well, but I just, I love the fight energy because I truly think that like higher education, public education is something worth fighting for. And if people understood the benefits that these universities had for communities, for society, that’s the side they would pick.

 

Melissa Murray So can I say something about that? Because I’ve been thinking a lot about the assault on universities and why universities have had so few allies among the public. And what I’ve basically settled on is if for the last 10 years you’ve kind of made your name on being exclusive, like not admitting everyone, it’s going to be very hard to find friends when you need them. And I think one of the things that’s great about the Harvard website is that it makes clear that beyond educating some subset of the population. Harvard and other universities, whether they are elite Ivy League universities or land-grant universities or whatever, are actually in the public service. They are actually doing things that benefit the public every day, even if all members of the public do not attend those universities. And universities that are more accessible in their mission are going to be part of this shift as well. It hasn’t come for them yet, but it’s coming. And so. These universities are obviously first on the chopping block and they’re standing up and that’s good because the larger question is so much bigger than them and it goes to the heart of what it means to be a public institution in the public service, even if you are privately owned.

 

Leah Litman OK, before we go, we wanted to remind you all that we are going on tour, so in case you have not yet grabbed tickets for our Bad Decisions Tour, now is the time to do We are almost sold out of our DC show, which is on May 31st at the Capitol Turnaround, so be sure to get tickets for that. We are also going to be in New York City at Sony Hall on June 12th, and in at the Athenaeum Center on October 4th. Don’t miss out, head to crooked.com slash events for more information.

 

Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Madeleine Herringer, Katie Long, and Ari Schwartz, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast if you haven’t already be sure to subscribe to Strict Scrutiny in your favorite podcast app So you never miss an episode and if you want to help other people find the show, please rate and review us It really helps

 

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