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Leah, Melissa, and Kate are back in business, breaking down this term’s first week of arguments at SCOTUS, including a challenge to Colorado’s ban on conversion therapy for minors. Also covered: the indictment of New York’s Attorney General Letitia James, the continuing legal fights against Trump’s efforts to send the National Guard into Portland and Chicago, and Attorney General Pamela Jo Bondi’s pugnacious testimony before the Senate Judiciary Committee. Then, Kate and Leah speak with Yale Law Professor John Fabian Witt about his book The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America, which chronicles how philanthropist Charles Garland bankrolled progressive causes through his American Fund for Public Service.

• If you want to learn more about Buck v. Bell (the 1927 case Justice Alito referenced in the Chiles arguments), listen to our deep dive from 2020

 

Favorite things:

Leah: Protest videos from Portland and Chicago; The Sentimental Garbage podcast on The Life of a Showgirl

Kate: Writers & Lovers by Lily King, Creation Lake by Rachel Kushner; Red Clover Ranch in Wisconsin; wine and cider from Las Mujeres

Melissa: Vision & Justice; Miss Toy Poodle on Instagram

Leah will be in conversation with UCLA Law Professor Rick Hasen at the Hammer Museum in Los Angeles on Tuesday, Oct 14, 2025 at 7:30 PM. Details here.

Get tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.com

Buy Leah’s book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes

Follow us on Instagram, Threads, and Bluesky

 

TRANSCRIPT

Melissa Murray [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a argue, 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.

 

Kate Shaw Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts for the first segment of today’s show. I’m Kate Shaw.

 

Leah Litman I’m Leah Litman.

 

Melissa Murray And I’m Melissa Murray. And the court is back in session, which means we are back in session. However, Article 2 is not slowing down. So before we get into Article 3, we actually have a bunch of other legal developments that we have to talk about as well. So we’re going to start with this one. And that is the indictment of New York’s Attorney General, Letitia James. And this is part of a pattern of actions from the administration that we think is inextricably tied to Article III. So we’re going to discuss that. And after we discuss it, we will then recap the court’s first week of arguments before turning back to legal news, including developments in the challenges to Trump’s deployment of the National Guard to American cities and against Americans, as well as some developments with our girl, Pamela Joe Bondi showing up and showing out in her appearance before the Senate. It was truly chef’s kiss. 10 out of 10, no notes.

 

Leah Litman Actually, a lot of notes.

 

Kate Shaw And I think those will become clear if you stay tuned.

 

Melissa Murray No good notes.

 

Kate Shaw In this conversation.

 

Melissa Murray How about that?

 

Kate Shaw No, no good notes. So after all of that, we are going to bring you a great conversation that Leah and I recently had with Yale’s John Fabian Witt about his fantastic new book, which is out tomorrow, The Radical Fund. The book, just to give you a brief snapshot, is about how a group of organizers and lawyers and writers and public intellectuals, among others, capitalized on actually a relatively small inheritance to largely remake American democracy. And that sounds kind of overstated, but it’s honestly not. It is an amazing and genuinely inspiring story that is also set in a very dark time about a hundred years ago, following a pandemic involving massive economic inequality, political violence. I mean, this all feels very familiar, and yet somehow at the end of this story is a vastly improved American democracy. So given how dark everything is, including the start of this Supreme Court term, we could all use a little inspiration. So stay tuned for that conversation. And the news of the last week has also just kind of made the general darkness and the start of the Supreme Court term kind of all the more alarming and urgent. So we’re going to turn to the news of the week now.

 

Leah Litman So after firing federal prosecutors who refused to seek indictments against Donald Trump’s preferred targets, and after installing his former personal lawyer, who’s an insurance lawyer with no prosecutorial experience in the position, Trump’s handpicked U.S. Attorney for the Eastern District of Virginia obtained an indictment against New York Attorney General Tish James. I don’t know what’s going on with Virginia grand juries. Like, are they gobbling Tylenol? I don’t know.

 

Kate Shaw Because right, and the reason I think Leah’s saying this is because in both DC and Chicago, we have actually seen a really remarkable string of grand juries returning no bills, like refusing to return indictments, right LA as well on these like literally trumped up charges that federal prosecutors are bringing before them. And yet Virginia seems to be breaking differently. So

 

Melissa Murray Well, I I think that’s why they’re going there, right? To be very clear. DC would not do this. The Eastern District of Virginia is a really pretty big district that includes like parts of the state that include military bases. So I think they rightly assume that it’s going to trend a little more conservative. And apparently, you know, you can indict a ham sandwich and we have.

 

Kate Shaw Yeah, and New York’s fine attorney general Letitia James. So James, our listeners may recall, is responsible for New York’s state civil litigation against the Trump organization, among other things. And that seems to be pretty clearly why she is being targeted. So, like in the lead up to the indictment of Jim Comey in the same district of Virginia, there have been reports that Trump tried to pressure prosecutors to indict James. And then when career prosecutors were unwilling to do so, Trump installed Lindsay Halligan, his personal lackey, who is an insurance lawyer with zero prosecutorial experience. And she swooped in and actually sought and then obtained the indictment. Halligan’s is the only name that appears on the James indictment. It also, I mean, this is small, but also maybe so big, misdates James’s address as Brooklyn, New Jersey rather than Brooklyn, New York, which is basically like on par with the kind of error that is at the heart of this entire criminal indictment, but the very best people.

 

Melissa Murray Well, everything is legal in New Jersey, and she probably knew that. So it’s okay. So the indictment is based on allegations of mortgage fraud, aka the mortgage fraud fraud that the administration is perpetrating. And these allegations are related to James signing a writer to a loan that she used to purchase a home that she stated would not be subject to rental agreement. So she wasn’t planning to rent the property. But the writer does allow for short-term rentals. The indictment doesn’t specify how long James allegedly rented out the property, but her tax disclosure suggests that it wasn’t very long because that year she disclosed that she received between one to five thousand dollars in rent. And the following year she disclosed that she’d received nothing in rent. So there’s a lot of other exculpatory evidence that’s available here, which is probably why no self-respecting career lawyer would bring this case. But here we are. Attorney General James, for her part, has issued a statement, and we’re going to give you a quick excerpt right here.

 

Clip This is nothing more than a continuation of the president’s desperate weaponization of our justice system. He is forcing federal law enforcement agencies to do his bidding. All because I did my job as the New York State Attorney General. These charges are baseless, and the president’s own public statements make clear that his only goal is political retribution at any cost. The president’s actions are a grave violation of our constitutional order and have drawn sharp criticism from members of both parties.

 

Kate Shaw So to be clear, this is utterly terrifying stuff. It is fundamentally incompatible with the rule of law to have the president and chief law enforcement officers targeting people because of who they are, because they are the president’s critics and political opponents, rather than what they did. And honestly, like what they did here that clearly put James in the crosshairs is upholding the rule of law as attorney general. Federal criminal law is, to be clear, broad and sweeping. And if you look hard enough at anyone, you may be able to unearth a mistake on a loan document. And if you have prosecutors with zero ethics or principle seeking it, you may be able to get a grand jury to hand down an indictment, but none of that is how the rule of law is supposed to work.

 

Leah Litman And we should be able to recognize this, even if the president hadn’t accidentally publicly posted what was supposed to be a direct message to his attorney general demanding that she prosecute people that he listed as his political opponent. He should have used signal. Oh, wait. My bad. Or at least added me to the signal chat if he was going to do so. So there’s that. The fact that the administration is willing to use criminal law in this way is yet another reminder about the apostasy that is the Supreme Court’s immunity decision. Robert’s majority opinion in that case went out of its way to declare that investigative and prosecutorial decision making is the special province of the executive and the constitution thus the entirety of the executive power and the president, and quote, allegations that the requested investigations were shams or proposed for an improper purpose, do not divest the president of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. End quote. That is a direct quote. Like for all of the talk of Robert’s being an institutionalist, his vision of presidential power has enabled the most anti-institutionalist president just to destroy our institutions.

 

Melissa Murray And all of those were direct quotes from Trump versus United States. No editorializing necessary. Anyway, it may be the case that even if the Supreme Court had not stepped in with Trump versus United States, that this president would still try to use federal criminal law and its enforcement power against his critics. But we just want to put a line under this and make clear that the court’s decision in Trump versus United States made it a lot easier for him to do so. Because now he knows he faces zero liability for doing so because all of the investigative and prosecutorial functions of the Department of Justice are basically all in him and they’re all official presidential functions for which he is insulated. Anyway, with that, let’s go on to some other bad decisions. It’s bad decision seasons. It actually never ended. This is not like pumpkin spice season. It just goes and goes and goes. Bad decision. So let’s talk about some of the decisions that the court seems poised to issue.

 

Kate Shaw And these bad decisions will come with explanations. They might not be sound or convincing explanations, but unlike the Shadow Doc at bad decisions, I guess they have that to recommend them. Anyway, so we are back in the season of argument recaps. The court heard a lot of cases last week after starting its October term. And that means we’re not going to be able to go in depth on all of the recaps, but we will at least mention the cases that were argued and we will focus our conversation on Chiles versus Salazar, which is the challenge to the Colorado law that restricts licensed professional therapists’ ability to conduct conversion therapy on their patients.

 

Leah Litman Before the arguments even started, there was reporting that called to mind the lead up to the court’s previous decision in 303 Creative versus Allenis. That was the case about the wedding website designer who didn’t want to celebrate same-sex marriages. Specifically, some stories raised serious questions about whether the plaintiffs challenging a Colorado law had standing to do so, both in the lead up to 303 Creative and now this case Child’s as well.

 

Melissa Murray Here’s the gist of it. Colorado’s law restricts licensed therapists’ ability to offer conversion therapy, which the state defines to mean treatment that is provided in clinical settings that is aimed at altering an individual’s behavior. So this would be therapy that involves telling someone who’s gay that actually they’re attracted to people of the opposite sex, or telling someone who is trans that actually they are cis.

 

Leah Litman The plaintiff in Childs insists that she doesn’t want to change someone’s behavior or identity or orientation. At most, she wants to be able to talk about sexual orientation and gender identity, which she says might include counseling someone to cope with the sexual orientation or gender identity that is causing them stress. So it’s not clear that what she wants to do is even prohibited under the statute. That would mean the law wouldn’t and couldn’t be enforced against her, which would mean she doesn’t have standing to challenge the law.

 

Kate Shaw But all of that, of course, assumes that the law is real and the court honors and observes it. But really, why let jurisdiction get in the way of a good time if you are poised to ax some state law on an ostensible First Amendment theory? So the plaintiff’s lawyers here, the Alliance Defending Freedom, who are the same team behind 303 Creative versus Elenis, which we were just talking about, says that Colorado’s law hurts patients who come in wanting conversion therapy. Apparently, this is all based on anonymous Reddit posts. Much good evidence is based on anonymous Reddit post. Most of it, I would even say. But none of those posters actually challenge this law. So that leaves ADF with a therapist whose conduct probably isn’t prohibited by the statute, who’s challenging a statute that hasn’t been enforced for six years, as Justice Otamayor pointed out in the oral argument. And basically the plaintiff standing argument amounts to claiming she is afraid the law will be enforced and that this fear is chilling her conduct. The lawyers also say, but we think the statute does prohibit the conduct she wants to engage in, even though the state insists that it does not.

 

Leah Litman TLDR standing is also now for suckers. Because the justices apparently feel free to adjudicate any case seeking to vindicate right wing culture war grievances, the court barely engaged with these jurisdictional niceties, aside from justices Gorsuch and Barrett kind of poo pooing them.

 

Melissa Murray I have to say, I don’t know how I’m gonna teach standing anymore. I used to teach

 

Kate Shaw I totally agree. Yeah.

 

Melissa Murray Or an array of cases, including Poe versus Ullman, which was about a Connecticut contraception ban that wasn’t enforced and I like I don’t even know what to say anymore. Yeah. Thanks, guys.

 

Leah Litman Just give them Justice Jackson’s descent and diamond alternative energy.

 

Melissa Murray That will make it all clear. Yes.

 

Kate Shaw That is, yeah, that is an epic dissent. And it does sort of call it like she sees it. Like if they want to like do the substantive constitutional change they want to do, like they will just or advantage the parties they want to advantage, they will find standing. If not, they won’t. And we should say that Justice Otamayor definitely did underscore the lack of standing in this case, but it does not seem as though that’s going to be an obstacle to the majority. So they’re probably going to reach the merits of this question. And on the merits, it also seems pretty clear that there is going to be a majority and a supermajority and maybe even more than six votes to strike down the law. The justices are probably going to say the Colorado law regulates speech and as such is subject to strict scrutiny. At one point in the argument, it seemed like invalidating Colorado’s restriction on licensed professional therapist treatment wasn’t going to be enough for the right-wing majority on the court. So Justice Barrett floated the prospect of immunizing the therapist plaintiff from medical malpractice suits, too. That is, the court could at least in theory say that not only can this law not be enforced against the practice of this extremely damaging and destructive therapy, but therapists maybe can’t even be sued by patients for malpractice if they engage in conversion therapy. This had very strong echoes of Barrett’s scrometti concurrence, where she said, even if the Tennessee law in that case did discriminate against trans people, and the court majority actually said it didn’t, but even if it did, that would be okay too. Interestingly, Childs’ lawyer, at least as I read the responses, didn’t seem to be biting on this, seem to be saying we’re not really asking for that for you to extend this protection to the context of malpractice suits. But but maybe I’m wrong. Let’s at least pretend you’re just adjudicating cases here for a second. Totally. Yeah. And that’s how bad things have gotten.

 

Leah Litman Let me think this is a legitimate enterprise where I’m gonna win.

 

Kate Shaw Completely.

 

Melissa Murray Wait, I actually did not relate it to her skirmetti concurrence where she gratuitously kind of offered a new theory of equal protection and how we identify suspect classes. I actually thought the whole line of discussion around malpractice suits and the immunization of therapists was very similar to Trump versus United States. Like you can do whatever you wild out if you want to and it’ll be fine. Like say whatever you like. Free speech for everybody.

 

Leah Litman Go feral.

 

Kate Shaw But of course she didn’t want to go quite as far as the majority in Trump versus United States. And here she seemed to want to maybe go further.

 

Melissa Murray Christian. Christian therapist.

 

Kate Shaw Immunity for you.

 

Melissa Murray Yeah.

 

Kate Shaw Remember, I think it’s in Sotomara’s descent. She’s like, right, immune, immune, immune. So basically that’s what the court is doing now in all kinds of things.

 

Melissa Murray You get immunity. You get immunity.

 

Kate Shaw Exactly.

 

Melissa Murray Exactly. The other thing that I will note that I thought was very interesting about this oral argument was how much abortion jurisprudence is seeding all of this chaotic conservative grievance jurisprudence. So two cases came up, NIFLA versus Becerra, and then McCullen v. Coakley. I’m just gonna talk about NIFLA because it was the one that really occupied a lot of the airtime here and it framed much of the dispute. So NIFLA was a case decided by the court in 2018, and it was a challenge to a series of California consumer protection laws that required crisis pregnancy centers to inform patients about the availability of abortion care in the state and about state support for abortion care and to inform the patients that these crisis pregnancy centers were in fact unlicensed and didn’t offer certain services like abortion. And that part I think warrants some elaboration. The crisis pregnancy centers would often present themselves to the public as facilities where you could get an abortion. And then once a patient went in seeking an abortion, suddenly they would turn on all of these sort of tactics to try and convince the patient not to terminate the pregnancy and to continue it to term. So these laws were basically aimed at getting crisis pregnancy centers to be transparent about their anti-abortion purposes. And when the laws came before this court, the court’s Republican appointees all fell in line and concluded that a state’s efforts to require licensees to provide accurate information to consumers about the services they provide, wait for it, violates the first amendment.

 

Leah Litman I.e., the Republican appointees held that California could not require these professional businesses to inform consumers and customers of simple facts. This case is where the litigants in Trials versus Salazar begin because the jokes write themselves. And this is also the case that somewhat weakens some of Colorado’s defenses in trials because NIFLA limits the state’s ability to justify the Colorado law as a regulation of professional speech.

 

Kate Shaw In addition to NIFLA, there were also echoes of another case also involving both kind of abortion and speech, McCullough versus Coakley. So in that case, the Supreme Court said states can’t impose a buffer zone around clinics because doing so violates the First Amendment rights of quote sidewalk counselors who are trying to have this is actually the court’s description, quote, quiet conversations with clinic patients to convince them not to terminate their pregnancies. And if you’ve seen protests outside of abortion clinics, I am sorry. They are not having quiet conversations.

 

Melissa Murray You usually don’t have to get pardoned when you’re having a quiet conversation after .

 

Kate Shaw Not usually required.

 

Melissa Murray Not usually. Hmmm.

 

Leah Litman Anyways, remember how one Justice Antonin Scalia used to lecture us about how abortion was affecting and perverting other areas of law and how that was bad? Psych. Now apparently it’s great to frame everything around the court’s special jurisprudence created for abortion. And that’s exactly what NIFLA was, because in NIFLA the court said that First Amendment rules regarding mandatory disclosures couldn’t just be straightforwardly applied to the California laws in that case because the laws concerned abortion, which the court described as anything but an uncontroversial topic. So the court’s anti abortion vibes warped First Amendment law, and now that warped First Amendment law is being transported, smack dab into anti LGBT jurisprudence.

 

Melissa Murray I love it when a plan comes together.

 

Kate Shaw Okay, so to go back to the child’s argument, a lot of the discussion in the case centered on whether it mattered that the statute restricted medical treatment being offered by a licensed medical provider. So as Justice Jackson explained, if a state can tell a medical provider, hey, you can’t give someone a pill to do this, why can you offer therapy that is designed to do the same thing? And several justices throw out examples of other restrictions that seem perfectly permissible. Justice Sotomayor said, How about a law that tells dietitians don’t encourage anorexic patients to engage in restrictive eating? Or Kagan had an example of a doctor telling you to lower your cholesterol by going out and eating dessert for every meal.

 

Melissa Murray So the ADF lawyer and the federal government wanted to say that it doesn’t matter whether this was an in-treatment setting or not. So hold that thought for a moment. What matters here, according to the lawyer, is whether the law is regulating speech incidental to conduct or speech. But when Justice Jackson asked the lawyer for the federal government, hey, why isn’t this regulation like the one in Skrmetti,, which we upheld, it also restricts a medical treatment that the state says is harmful on the basis of conflicting evidence. The federal government’s lawyer said, Well, Skrmetti, was a law that regulated on the basis of age and medical treatment.

 

Leah Litman Huh? Why why is one regulating treatment and the other isn’t? Why does saying one law regulates treatment insulate it from constitutional challenge, but that doesn’t work for the other law? Very hmmm. The idea that any regulation of speech, like divorce from context and divorce from the reason it’s being regulated triggers strict scrutiny or other kind of scrutiny is just insane. Like, would the justices say courts can’t restrict hearsay testimony because that’s just speech? Like, would they say you can’t prohibit perjury? That’s just talking. How about prohibiting verbal agreements in restrative trade? How about allowing teachers or professors to penalize students who just shout fuck you in the class all class long? Why can the state even limit therapy and treatment to licensed therapists? Like some rando on the internet just wants to talk in that speech too. Like this theory is just nutso. And Sam Alito was very triggered in this argument by people pointing out that conversion therapy is inconsistent with professional standards of care. He went full-on woke Leto when people brought this up. He wanted to try it out all of the ways in which the medical profession might have been racist or ableist in the past, at one point referring to Oliver Wendell Holmes’ infamous line, you know, three generations of imbeciles are enough as a reason. He didn’t even get that right or he said idiots. I know, he he said idiots, but I I I think themselves adjust it for him. Exactly. And he used, you know, all of this history to intimate that the court should ignore medical experts and professional standards of care today.

 

Kate Shaw I am obsessed with Alito’s fixation on Buck versus Bell. That’s the case in which Holmes makes his infamous three generations of imbeciles line. He’s brought it up a number of times. He hates that decision. I think he has referred to it as one of the worst decisions the court has ever issued. But I want, I’m just like dying for someone to press him with the question of what exactly in the Constitution he thinks prevents states from enacting or enforcing compulsory sterilization laws like the one at issue in Buck versus Bell. Like the Constitution doesn’t explicitly, you know, you might say, well, we have the liberty to decide not to be sterilized against our will by states, but he doesn’t believe that there’s any content to that liberty except if history and tradition fills that constitutional term. And regrettably, we have a long history and tradition of compulsory sterilization laws. So on his own professed method, there is not really any basis for courts today to find that those kinds of laws violate the Constitution’s liberty guarantees. So I just want someone to demand an explanation from him.

 

Melissa Murray Leah?

 

Leah Litman Well, it’s it’s liberty for breeders and birthing and nothing else. That’s the explanation, I think.

 

Kate Shaw Only thing that squares.

 

Melissa Murray Well, I’m gonna introduce another aspect of this. Listeners, it’s time for our very special segment. We need to talk about Justice Clarence Thomas. There are no new ideas here because I am here to remind you that the invocation of Buck versus Bell is straight out of the Clarence Thomas playbook. I know that Alito loves it too, but I think he got it from Justice Thomas. So in the pre Dobbs salad days when women had rights, Justice Thomas used to trot out Buck versus Bell as evidence that earlier courts routinely used to sanction questionable practices that had since been discredited, like eugenic sterilization and abortion. And basically, this is Justice Alito heap heading Justice Thomas.

 

Leah Litman Several justices wanted to say that Colorado’s law amounted to viewpoint discrimination because the law would allow a therapist to help patients accept being gay but not offer to change them into being straight. But again, I come back to that’s not why they’re allowing one but not the other. One form of treatment is consistent with professional standards of care and medicine, the other is not. But throughout the argument, I thought you could kind of hear the disdain with which at least some of the Republican appointees talk about sexual orientation and gender identity. So here, for example, is one Samuel Alito.

 

Clip If you recall the example that I gave you, I’ll I’ll I’ll give it to you again because I want to contrast it with another situation. So in the first situation, an adolescent male comes to a licensed therapist and says he’s attracted to other males, but he feels uneasy and guilty about those feelings. He wants to end or lessen them and he asks for the therapist’s help in doing so. The other situation is similar adolescent male comes to a licensed therapist, says he’s attracted to other males, feels uneasy and guilty about those feelings, and he wants the therapist’s help so he will feel comfortable as a gay young man. It seems to me your interpret your statute dictates opposite results in those two situations based on the view based on the viewpoint expressed. One viewpoint is the viewpoint that a minor should be able to obtain talk therapy to overcome same-sex attraction if that’s what he or he or she wants, and the other is the viewpoint that the minor should not be able to obtain talk therapy to overcome same-sex attraction, even if that is what he or she wants. Looks like blatant viewpoint discrimination.

 

Leah Litman It’s the he says he’s attracted to other males and he feels guilty and references to same sex attraction rather than identity that are triggering this for me.

 

Kate Shaw Yeah. I didn’t make my skin not crawl.

 

Melissa Murray Can I I i I got some I think Justice Kagan was very much persuaded by this is viewpoint discrimination.

 

Kate Shaw This was my like could be more than six. I don’t think Jackson or Sotomayor were but I think it’s possible seven.

 

Leah Litman Yeah. Yeah, I know I think so. And I think like she was approaching the argument by trying to posit another kind of law that Colorado could enact that would do the same thing. So she was suggesting, for example, a prohibition on licensed medical practitioners doing things that diverge from the standard of care and saying, Well, that like wouldn’t be viewpoint discrimination. Now I don’t think any of her Republican colleagues or the lawyer for ADF or the federal government would be okay with that law either. But that seemed to be what she wanted to do and say.

 

Melissa Murray There are two ways this case could go. One is sort of the court just with a six to three or seven to two majority just invalidating the law too sweet, and you know, it’s all over, or alternatively, and this was sort of where Justice Sotomayor and Justice Jackson were, I think, trying to sort of salvage something from the shards of this oral argument, is focusing on the fact that the lower court didn’t apply the appropriate standard of review, the lower court applied rational basis review. You know, the court here seems to be leaning toward the fact that this is a First Amendment violation, viewpoint discrimination that requires strict scrutiny, even though these are licensed professionals, don’t let that bother you, but strict scrutiny anyway. And then the idea would be that they would have to send it back to the lower courts to do the strict scrutiny analysis. And Justice Jackson at one point said, you know, strict scrutiny isn’t always fatal in fact. I think I heard that from one of you all. And I don’t know that that’s the way this is going to go, but I mean, I think if the court is sort of reading the public, I think there are a lot of people who are just like, this feels very inconsistent with where you were in terms of Skrmetti. Yeah.

 

Kate Shaw Yeah, I think, you know, Mahmoud points in the other direction, right points to them just actually both announcing. That’s exactly what they did in Mahmoud. Yeah. To strike down the law. But I think that’s an astute observation. If they are reading the wins, which I don’t see a lot of evidence that they are, but if they are, they could potentially notch a kind of a victory in the court of public opinion by appearing to be somewhat restrained in what they do here and just send the case back to the lower court for application of strict scrutiny.

 

Melissa Murray A humble restrained court.

 

Kate Shaw Right. Exactly. The headlines write themselves.

 

Melissa Murray Yes. The jokes too.

 

Melissa Murray [AD]

 

Kate Shaw Let’s move on. The court also heard oral argument in a case called Bost versus Illinois Department of Elections. This is a case about whether a Republican political official can challenge an Illinois law that counts ballots that are received after election day. The official says that this law injures him because it means he has to pay campaign staff for an additional two weeks.

 

Melissa Murray So stepping back, the rationale here is that the candidate has to spend extra money. And that sounds like a pocketbook injury, if you will. And the candidate’s lawyer also tried to emphasize how great it would be to resolve questions about election rules well in advance of an election. Justice Kavanaugh picked up on this repeatedly, like a dog with a bone. Justice Kagan, however, responded to this by noting that the court’s existing rules seem to have worked just fine, which is true. But all of this might overlook the swath of completely nutty challenges to laws that allow voting and that expand the franchise that are waiting in the wings. And this seems to be just the first of many of those. And those challenges might get traction in the federal courts today in a way that they would not have before. They probably wouldn’t even have gotten to courts before because they would have been struck down on preclearance, at least pre 2013. But now that these challenges are moving forward and the changing composition of the courts, I think it’s very likely we’ll see more of them and more of these kinds of rationales.

 

Leah Litman And it also just seems strange to say that candidates or officials have a legally cognizable interest in restricting the availability of voting or limiting votes that can be counted. Like that just doesn’t seem like the kind of injury or interest the law would recognize or protect. Like, can Donald Trump walk into court and seek an injunction against the due process clause because it costs money to try his critics? Like that seems weird. And no, seriously, like this relates to a point Justice Kagan made in her foreign aid descent. You know, the fact that the president didn’t think some congressional appropriations were consistent with his view of American values, like that was not a cognizable harm. That is a frustration he has to bear in a system of laws. So too, right? This is a frustration in a system that is democratic and that wants to count people’s votes.

 

Kate Shaw A frustration that president has to bear in a system of laws is in the, you know, traditional equitable factors on the shadow docket. Always grounds for presidential victory at this point. I feel like we just have to.

 

Melissa Murray Or or a trade deficit is actually an emergency always.

 

Leah Litman Yes.

 

Melissa Murray And.

 

Kate Shaw That’s too. Okay. But again, back to this election case. So the candidate plaintiff actually did not want standing to depend on whether a particular candidate or official was likely to win in the election at issue, or, you know, whether or how these the late arriving ballots might make a difference. The focus was really on this like paying campaign staff for extra time issue. And that meant he actually didn’t focus on how Republicans might be the ones injured by counting late arriving ballots. And this, because you know it’s a week starting with a Monday, like also triggered Sam Alito, who was very piqued that there wasn’t a right wing grievance theory in the case. So you can honestly like really hear that here.

 

Clip You have several arguments, and I don’t want to get into most of them right now. But on the issue of competitive injury, it’s not clear to me why you couldn’t have done a lot better than you did in your complaint. And alleged what I think a lot of people believe to be true, which is that loosening the rules for counting votes like this generally hurts Republican candidates, generally helps Democratic candidates. Why didn’t you pursue that? Why didn’t you try to do something with that?

 

Leah Litman But getting back to the idea of why the candidate has an interest here, it was a little jarring hearing justices talk about mail in voting in terms of injuries related to counting more or less votes. Once again, I give you Samuel Alito.

 

Clip Legally, When we’re talking about injury in fact, isn’t a a a smaller margin of victory an injury in fact?

 

Kate Shaw Isn’t this like the sort of big he admit it like energy that we talked about at the live show? .

 

Melissa Murray Oh. Too much democracy is the injury.

 

Kate Shaw At least if you’re a Republican candidate.

 

Leah Litman He admitted energy, like this part of the case called to mind in exchange from a previous decision, Burnovich versus DNC, a Voting Rights Act case from a few years ago, where a question from Justice Barrett elicited a response that she didn’t really want to hear, namely the Republican Party signaling like it had an interest in not having votes counted, which you can hear here.

 

Clip So, you know, the DNC had standing and the district court said that it had the ch standing to challenge the out of precinct policy because the policy placed a greater imperative on democratic organizations to educate their voters and because the policy harmed its members who would have voted out of precinct. What’s the interest of the Arizona R and C here in keeping, say, the out of precinct voter dis ballot disqualification rules on the books?

 

Clip Because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero sum game. And every extra vote they get through unlawful interpretations of Section two hurts us. It’s the difference between winning an election fifty to forty nine and losing a election, my time is up to fifty.

 

Leah Litman So I’m not feeling great about this case. It is a standing matter in that context of Republican interest and expansively challenging laws and policies that allow people to vote, but we shall see.

 

Kate Shaw So let’s briefly mention the other cases that the court heard during the first week of the term. One was Villarreal versus Texas, which is a sixth amendment right to counsel case about whether a trial court can prohibit a defendant and his counsel from discussing the defendant’s testimony during an overnight recess of a trial.

 

Melissa Murray Some of the justices, including Justices Jackson and Kagan, focused on how the court’s prior cases seem to allow trial courts to prohibit discussions about the content of a defendant’s testimony, but don’t allow them to restrict discussions that might relate to or rely on inferences about the defendant’s testimony, such as whether to take a plea bargain or call another witness. And the defendant here was arguing for a rule that was rooted instead in time. That would say that courts can’t restrict overnight discussions about testimony, but can restrict discussions during daytime recesses, perhaps unless the recess is a certain length. I didn’t get the sense that a lot of the justices felt that the line that the defendant was trying to draw made a lot of sense. But I do want to play this one clip because I think it underscores how lawyering in the federal government is going these days. So, here we go

 

Clip Mr. Warthen, I appreciate the subtlety of Texas’s position as compared to the Solicitor General’s more absolute rule, and I just have a couple of questions about that distinction.

 

Leah Litman Dang, Gina, the state of Texas is taking more nuanced positions than the United States federal government. Ouch. I mean, in this particular case, like Texas is drawing a line between incidental and non-incidental discussions of testimony, saying that courts can tell lawyers and defendants they can’t discuss the testimony as such, but of course can discuss matters related to the testimony as we described. Whereas the federal government is saying you can’t even discuss downstream decisions, such as whether to take a plea deal that are based on or linked to testimony. You can only have those discussions in the abstract.

 

Melissa Murray Another argument that was heard last week was in Burke versus Choi. So hey there, civil procedure, Fed courts hive, it’s time to rise because this case is about the Erie doctrine. Ooh, that felt tingly. The Erie doctrine is about whether state or federal rules apply when litigants are raising state law claims in federal court. And the specific state rule here is a state rule that requires expert affidavits to be filed in medical malpractice cases.

 

Kate Shaw And the justices were very fixated on how states can address the problem of medical malpractice if the state rule didn’t apply.

 

Melissa Murray You know what was malpractice here? The number of times the men’s on this court interrupted or cut off Justice Jackson. Also malpractice the way Justice Barrett didn’t seem to come back to her earlier stance on immunizing everyone from malpractice suits.

 

Kate Shaw Both of those things were were the actual malpractice. Yes.

 

Leah Litman For sure.

 

Melissa Murray For sure.

 

Leah Litman So in Erie cases, the justices ask whether there’s a conflict between, you know, the state rule, the state affidavit requirement here and the federal rules of civil procedure. I think it came out that the justices felt like the vibes of the Delaware affidavit rule were just different than the vibes of the federal rules, since the federal rules create a regime of notice pleading where plaintiffs can file pretty bare bones complaints, whereas the Delaware rule requires more. Some of the justices, the ones with good reading skills, were able to identify more concrete conflicts. As Justice Jackson noted, the Delaware rule would change when a defendant’s answer is due, as Justice Kagan noted. Because if the state required you to include as an affidavit, a pleading that went beyond notice pleading, that would be a conflict. I’m not clear who will prevail here, but we will be following.

 

Melissa Murray There’s also a case called Barrett vs. United States. And I was honestly very surprised to learn that this dispute was not brought by Justice Barrett against American book lovers for refusing to purchase Listening to the Law. Just kidding. Don’t get mad. Listening to the Law is a bestseller. I should note, however, though, that the following books have recently ranked ahead of listening to the law on the New York Times bestsellers list. So History Matters by David McCullough, We the People by Jill Lapore, Black AF History by Michael Harriet, Why Fascists Hate Teachers by Randy Weingarten, The Book of Sheen by Charlie Sheen, and at number one last week, Poems and Prayers by Matthew McConaughey. Alright, alright, alright.

 

Leah Litman So Barrett versus United States actually concerns whether a defendant can receive sentences under two provisions of the Armed Career Criminal Act. This issue was previewed in the court’s previous decision in Laura versus United States when the court interpreted the sentencing provisions governing two firearms charges. One of the two sections is nine twenty four C, which prohibits using a firearm in connection with a crime of violence or serious drug offense, and nine twenty four J, which penalizes using a firearm in the course of violating nine twenty four C while causing the death of another person.

 

Kate Shaw Okay, so in Laura, the court held that the provision in nine twenty four C that requires sentences imposed under the section to be imposed consecutive consecutively rather than concurrently doesn’t apply to nine twenty four J. The question here in Barrett is whether the federal government can impose punishments under both provisions, so both C and J. The federal government in this case conceded that they can’t, so the court appointed an amicus, Texas attorney John Bash, to defend the position that imposing two punishments would be permissible.

 

Leah Litman So there were several moments early on in the oral argument where it seemed like Justices Jackson and Sotomayor were attempting to teach Brett Kavanaugh how double jeopardy works and how it’s different than concurrent sentencing. Like it was honestly kind of painful. Like the question in this case is related to double jeopardy, because the presumption that Congress doesn’t intend to impose two punishments for the same offense is probably rooted in part in the double jeopardy clause. And you apply double jeopardy decisions to ask if the two subsections are the same offense. But the question here is about the proper interpretation of the provisions in ACA. Like it’s a statutory interpretation case. And it was a little hard for me to count to five in this case. Justices Jackson and Sotomayor were clearly with petitioner in the federal government. I thought Justice Gorsuch probably was as well. It sounded like Justices Alito and Kavanaugh were whether the court appointed Amicus. If I had to guess, I would probably say ruling for petitioner and federal government that you can’t impose punishments under both provisions.

 

Melissa Murray And finally, the court heard US Postal Service versus Conan, which presents a question about the scope of the Federal Tort Claims Act, specifically the postal exception. Under the FTCA, you can sue the federal government for actions of federal officers unless an exception applies. And here there is an exception for cases related to the miscarriage or loss of mail. The question in this case is what that means and whether it covers what the plaintiff is suing over here, which includes intentionally not delivering the mail in a campaign of racial harassment that the plaintiff has alleged. Isha Anand from Stanford Supreme Court Clinic argued on behalf of the plaintiff respondent, and per usual, she did a terrific job.

 

Leah Litman Sam Alito wanted to ask about Christmas cards in this case.

 

Melissa Murray Black Santa Christmas list.

 

Kate Shaw But restrained himself. It was very unexpected.

 

Leah Litman You know that was on the tip of his tongue.

 

Melissa Murray What if Black Santa had a Christmas list.

 

Leah Litman Exactly.

 

Kate Shaw All right, so we are midway through the October sitting. During the sitting, there are a total of twenty nine argument slots. Eight of those, so we’re talking single digits, are women. So probably too many in the eyes of some. But alas, we have a lot of legal movies.

 

Melissa Murray Too many women, not enough Johns, Peters.

 

Kate Shaw Yes, whatever. But what else do we say? There was one, yeah, I guess there was a sitting last year with like more Richards than women or was it Peter? Who can recall? In any event. In addition to everything that’s happening at SCOTUS, Article II and the lower federal courts continue apace. They don’t just hit pause because SCOTUS is back for a new term. And since our live show in Chicago, we have had some developments in the case out of Oregon about whether Trump can deploy the National Guard to Portland. So an hour before we took the stage for that wonderful live show at the FAM in Chicago, we got the district court’s initial opinion restraining Trump’s deployment of those troops to Oregon. The opinion concluded that Trump didn’t have a factual basis for his claim that deploying the military in Portland was necessary to execute federal law. The judge, a Trump appointee, described the claims the administration was offering as untethered from facts.

 

Melissa Murray After the ruling and on a platform formerly known as Twitter, you know what? I’m never calling it X. Like his mama called him Twitter. I’ma call him Twitter. Stephen Miller accused the judge in the Oregon case, who again was appointed by Donald Trump, of engaging in what he called legal insurrection. And he stuck by that claim, said it with his whole chest as he did the rounds on TV. Let’s hear a clip.

 

Clip Called a legal ruling legal insurrection. Are you recommending the president take action against judges and if he wins the disagreement?

 

Clip No, it’s simply a faction accurate statement.

 

Melissa Murray After Miller accused the judge of legal insurrection, Secretary of War Pete Hegseth, a phrase that honestly is as at least as weird as Supreme Court Justice Brett Kavanaugh.

 

Kate Shaw Can I say one thing? So it’s it is so insane, but Secretary of Defense you would abbreviate sec def, which sounds kind of like tough. SAW is how you Exactly Secretary of War. So I guess.

 

Leah Litman SAW Pete Hegseth

 

Kate Shaw So SAW Pete Hegseth, I think there’s actually like a tiny sliver of joy in that abbreviation. Sorry, Melissa.

 

Melissa Murray I’ll take the joy where we can find it. SAW Pete Hegseth issued a memo that redeployed the Texas National Guard to Oregon. So now we’re sending one state’s military to invade another state against their will, which I don’t know, honestly is giving civil war vibes, but whatever. And it also seems to be a real inversion of section four of Article Four of the Constitution, which says, quote, the United States shall protect each of the states against invasion and on application of the legislature or of the executive against domestic violence.

 

Leah Litman Anyways, it turns out the misogyny probably a hell of a gateway drug to fascism, because this week Politico reported that Trump’s nominee to leave the office investigating Jack Smith is again reportedly, allegedly, recently been investigated for harassing a female subordinate, including by allegedly canceling the woman’s reservation at a hotel and then telling her she would be staying with him. Now, the Trump nominee has I guess denied this and threatened to sue Politico, but that is the story.

 

Kate Shaw All right, so back to the other sort of key domain of the kind of misogyny fascism crossover. The administration’s decision to redeploy the Texas National Guard to Oregon is really emblematic of this administration’s defiance of lower courts. This is what Leah and her co author Dan Deacon call in a forthcoming article legalistic noncompliance. Basically, the administration again and again loses in court, changes like one tiny little irrelevant fact about what it is doing, resumes doing the unlawful thing and insists, No, no, no, we’re doing something totally different, not defying the courts, basically forcing the lower federal courts and litigants to play whack-a-mole with the federal government.

 

Melissa Murray Sounds like the travel ban. Honestly.

 

Leah Litman Yes.

 

Kate Shaw Sure does.

 

Melissa Murray Right? I mean. There are no new ideas.

 

Kate Shaw Here is Stephen Miller talking about compliance or really defiance of the organ order.

 

Clip Does the administration still plan to abide by that ruling? Well, the administration filed an appeal this morning with the Ninth Circuit. I would note the administration won an identical case in the Ninth Circuit just a few months ago with respect to the federalizing of the California National Guard. Under Title Ten of the US Code, the president has plenary authority.

 

Clip Stephen. Stephen. Hey Stephen, can you hear me?

 

Melissa Murray Let’s just say the Oregon judge was not impressed with the government’s runaround here. The judge convened an emergency hearing on Sunday night to determine if the redeployment violated its order. And the judge concluded that the redeployment was also illegal for the very same reasons the initial deployment was unlawful, namely that the president had no reason for thinking the National Guard was actually necessary. So, didn’t matter if the National Guard was coming from Oregon or Texas, it was entirely superfluous.

 

Leah Litman The judge was really not happy with the government. You know, there was an exchange that went something like the court asking, You’re an officer of the court, do you believe this is an appropriate way to deal with my order? And the lawyer says, well, I’m not a policymaker. And the court says, You’re a lawyer. It’s like when the judge has to remind you that you’re a lawyer, things probably not going that well.

 

Kate Shaw Nope.

 

Leah Litman The administration has already appealed this to the Ninth Circuit. So we’ll see what happens there. And then probably after that, Supreme Court as well.

 

Kate Shaw And there is also ongoing litigation in Chicago/slash Illinois. So essentially, as we were leaving Chicago, the president announced, as he had been threatening to do really for like months, that he would be federalizing the Illinois National Guard over Governor Pritzker’s refusal and deploying it in the city. And this is happening against the backdrop of Trump more recently having threatened to have Governor Pritzker and the Chicago mayor Brandon Johnson arrested, which you shouldn’t write off because Jim Comey was arraigned last week. Tish James was just indicted. President Trump had threatened both of those things and very much has followed through on them. It is also happening against the backdrop of, as we talked about with Illinois’ Lieutenant Governor Juliana Stratton last week, the president’s statements that he wants to deploy the military against quote domestic enemies and have them use American cities like Chicago as training grounds.

 

Melissa Murray So there was this absolutely bonkers roundtable in air quotes that the administration hosted on Antifa. Yes. And Attorney General Pamela Joe Bondi spoke about what the administration wants to do with Antifa, which again, the administration defines so broadly that it includes almost anyone who has said anything critical about the administration. So here’s a clip.

 

Clip Just like we did with cartels, we’re going to take the same approach, President Trump, with Antifa. Destroy the entire organization from top to bottom. We’re going to take them apart.

 

Leah Litman To be clear, the administration has been summarily executing people they suspect or just say are part of cartels. And, you know, Kate listed off the context in which all of these events are playing out. It is also happening against the backdrop of the administration reportedly considering formally invoking the Insurrection Act, a law that, if properly invoked, would allow Donald Trump to use the military to enforce federal laws.

 

Melissa Murray I don’t know. I’m maybe I’m being hyperbolic here, but I think if you’re invoking the insurrection act, you’re probably thinking about how this also intersects with elections and whether you need to have the military around on election day to keep order, which would be a pretty good way, I think, to keep people at home.

 

Kate Shaw Yeah, I think the old voter suppression lawsuits to prevent election officials from counting late arriving ballots, new voter suppression military in the streets and around polling places.

 

Melissa Murray Tired. Wired.

 

Kate Shaw Yeah. Right. Exactly. And I mentioned this a minute ago, but want to say it again, the people in Chicago and their elected representatives are very much not just sitting back and taking this. They are pushing back in what are genuinely inspiring and brave ways. People are in the streets of Chicago peacefully demonstrating, signaling that this country is supposed to be a democracy where we have First Amendment rights to protest, to film ICE officers, to criticize the administration and its immigration enforcement tactics. And they are doing that, even though all of this is peaceful, very constitutionally protected activity, knowing that this is an administration that has not honored those values and could well, and in some instances has retaliated with violence. And they are doing it nevertheless.

 

Melissa Murray So these responses, I think are really meaningful and we should highlight them because they are a sign that one, people are not afraid. And that’s important because as scary as this administration is, and as tyrannical as the powers that the administration is claiming are, they’re still weak because people are unafraid. They don’t have public opinion on their side. It’s important to demonstrate that, in part to encourage others to speak out about their misgivings about what’s happening. And it’s also important, I think, because it’s an exercise in popular constitutionalism, defining what this country is supposed to be. Are we actually a country where the president can deploy the military against critics? I think the fuck not. Or are we a place that allows protest and criticism of the powerful? That seems to be what we have been. And we could just go on and on about it. But I like I really want to big up these folks who are standing up because I think it’s really important in this moment where people can just be sad and depressed about what’s happening, but these are real glimmers of hope, and we should treat them as such. And this is why they are absolutely bent on sending the military in to stop it.

 

Leah Litman Yeah. This is also happening in Portland and Oregon as well. You know, in Portland, demonstrators have taken to protesting in large animal costumes because the furries are going to help get us out from fashion They might. They might I know. I know. Like the Portland frog was pepper sprayed, and now there is a Portland chicken and cows. You know, the week has an absolutely incredible interview with one of the protesters, which is worth reading in full. I just want to highlight a few lines where the protester, the Portland chicken, says, quote, What they rely on is fear. So by coming out in an absurdist manner, it says that we’re actually not that afraid. It also dismantles their narrative a little bit when they try to describe the situation as war torn. And Christy Noam is up on the balcony staring over the Antifa army. And it’s like eight journalists and five protesters, and one of them is in a chicken suit, right? Kind of undermines the narrative.

 

Kate Shaw Yes. So amen. More animal suits of all stripes. Governor Pritzker also got in on the absurdity he made this appearance on Kimmel.

 

Clip We also got a very special report fr filed by JB Pritzker, the governor of Illinois. This is J.B. Pritzker reporting from war-torn Chicago. As you can see, there’s utter mayhem and chaos on the ground. It’s quite disturbing. The Milwaukee Brewers have come in to attack our Chicago Cubs. We’ve seen people being forced to eat hot dogs with ketchup on them. And and our deep dish pizza well has gone shallow. So it’s a challenge to survive here in the city of Chicago, but there’s no hellscape that I’d rather be in.

 

Melissa Murray Part of the fight in Oregon and Illinois is, as Lieutenant Governor Juliana Stratton talked about in our live show, is about taking the fight to the courts. And that includes a case challenging ICE’s treatment of protesters and journalists, which has included firing pepper balls, assaulting protesters and journalists, arresting them, shooting journalists with less lethal items in the head and the groin, and pointing assault rifles at civilians who are merely exercising their rights. And a federal court issued a temporary restraining order finding that ICE’s conduct likely violated the First Amendment. The judge highlighted ICE’s attacks against a reverend who is protesting at a detention facility through prayer, right? And concluded that ICE was in violation of basically the whole First Amendment. Tu suis.

 

Leah Litman Just want to briefly side note, the clergyman they pelted in the face, which was captured in photographs, is like straight out of season two of Fleabag, if you know what I mean. He’s a hottie.

 

Kate Shaw I did know what you meant.

 

Melissa Murray Is it Ralph de Bricassart kind of priest? That kind of priest?

 

Kate Shaw I couldn’t get a good enough look to say for sure. I will say that he did have kind of like hipster jeans on, which made me think that he like isn’t a real enough man of faith for them to actually respect by not pepper spraying in the face, which is what they did to him. So the judge in the Illinois case, brought by a bunch of private plaintiffs, there’s also a case brought by the attorney general, required ICE to stop dispersing and threatening or using force against people they should reasonably know, or journalists without probable cause of a crime. It also limits their ability to use riot control weapons on individuals who are not posing immediate threats. And it requires ICE, this is, I think, really important, to have visible identification.

 

Leah Litman And we should say that basically within twenty four, forty eight hours of that order, it already looks like they might be violating this. There’s a video now circulating of an arrest of a journalist in Chicago.

 

Melissa Murray Chicago and Illinois have also challenged Trump’s deployment of the National Guard. So a district court declined to issue a temporary restraining order at the initial hearing, but that was in part because of the volume of evidence that had been introduced, and because the court wanted to have the administration respond to that evidence. Then, at a subsequent hearing later last week, the judge did grant the TRO that the city and state had requested, finding that the deployment of the guard was in fact unlawful. And the judge said it came down to a credibility determination. So this is a judge with faced with voluminous evidence of the federal government’s wrongdoing, was like, yep, looks like wrongdoing, credibility determination.

 

Leah Litman At the hearing explaining the order, the judge said, quote, I simply cannot credit the Trump administration’s declarations to the extent they contradict state and local law enforcement. DHS’s perception of events are simply unreliable.

 

Kate Shaw And the judge continued, quote, deportations are up, arrests are up, the courthouse remains open and always has, federal laws are being executed, they’re also being broken, as they have been since the beginning of time. Just a refreshing breath of reason.

 

Leah Litman Seems like the DOJ could declare giant furries and inflatable animals like the Portland frog, which you if you haven’t watched the videos, you should, and the Portland chicken to be a rebellion.

 

Melissa Murray You will respect my authority.

 

Leah Litman Thanks Cartman.

 

Melissa Murray You’re welcome. One other piece of news out of the Windy City in Illinois. When we were there two weekends ago, there were initial reports of ICE agents shooting a woman. At the time, the story was developing and the facts were not clear, so we didn’t cover it. But ice initially said that the woman had boxed in ice agents with her car. Well, according to the Chicago Sun-Times, again, hooray for local journalism. There are now reports that the body cam video actually debunks this account and indicates that ICE lied. So, based on this body cam video evidence, the woman didn’t box ice in or drive at them with her car. And instead, the video shows an officer saying, “do something, bitch”, before pulling over and shooting the woman five times.

 

Leah Litman Her lawyer says that the woman who the federal government subsequently indicted had seven holes in her, and a judge denied the government’s request to detain her, along with one other individual the government has indicted. And the upshot here is ICE lies. And it is important for people to know that, especially as attempted prosecutions of people for allegedly assaulting ICE officers or obstructing ICE continue.

 

Kate Shaw So, in case you are not aware, this upcoming weekend on October 18th, there are no kings protests planned in a bunch of places. You can easily find yours in whatever city you live in or going to be in. I’m planning to be there. We definitely encourage you to be aware, be safe. Republican leadership already seems to be trying to gin up possible confrontations with peaceful protesters. Here is how Speaker of the House, Mike Johnson, spoke about the No Kings rally that is being planned for DC.

 

Clip We’re so angry about it. I mean, I I’ve you know, I’m a very patient guy, but I have had it with these people. They’re playing games with real people’s lives. The theory we have right now, they they have a Hate America rally that’s scheduled for October 18th on the National Mall. It’s all the pro Hamas wing and the, you know, the the Antifa people. They’re all coming out.

 

Kate Shaw As we have said, these kinds of protests are incredibly meaningful and important. It can be really empowering to realize there are a lot of people who, like all of us, recognize that we cannot continue to be on this path and be a country with democracy and the rule of law. And having the Speaker of the House tell Fox that peaceful demonstrations are gathering of organizations that the administration has described as violent terrorists is just another effort to escalate and another effort to thwart dissent.

 

Melissa Murray [AD].

 

Melissa Murray I think we should end this on a more lighthearted note, which is to call attention to the absolutely fantastic week that this administration has had because it really is bringing in only the best people. And that week featured this moment from one of our faves, Secretary Build-A-Bear, who we’re just going to provide to you right here without any context, because it is best that way.

 

Clip Somebody showed me a TikTok video of a pregnant woman at eight months pregnant. She is an associate professor at the Columbia Medical School, and she is saying F Trump and gobbling Tylenol with her baby in her placenta. And the level of Trump derangement syndrome has now left political landscapes and it is now in the realm of pathology.

 

Kate Shaw Can I just say I finally saw one battle after another this past week and one of the characters and I won’t say who had such RFK Junior energy, Leah, you’ve seen it you know what I’m talking about.

 

Leah Litman Yeah, yeah, yeah.

 

Kate Shaw Right? Did you feel it while you were watching it?

 

Leah Litman Yes, yeah.

 

Kate Shaw For sure. Melissa you haven’t seen it yet.

 

Melissa Murray I haven’t seen it yet.

 

Kate Shaw You gotta see it.

 

Melissa Murray Well, I I just need to find three hours where I am not sleepy to go.

 

Kate Shaw Easier said than done.

 

Leah Litman That’s fair. This clip did make me think that maybe I should dress up as a giant Tylenol bottle at one of the protests.

 

Kate Shaw Also takes some hours to actually construct out of cardboard, but maybe time well spent.

 

Leah Litman Yeah, yeah

 

Melissa Murray I mean, can we just talk about the words here? I mean, like who’s been gobbling Tylenol is the real question. Like baby in her placenta. Like, this is a man who has a lot of children and comes from a large family, but yet does not seem to know where the child is lodged.

 

Kate Shaw I I I really hesitate to say anything that could be construed as defending RFK Junior, but there is definitely a possibility that he was saying in her baby and her placenta that she’s getting all the Tylenol to both and he’s defending the placenta as well as the in utero.

 

Melissa Murray Well, I mean, the the placenta is the new fetal personhood. Okay.

 

Kate Shaw Correct.

 

Melissa Murray I don’t know what else to say. here we are, placental personhood. All right. As I also alluded, we were also treated to the appearance of one Pamela Joe Bondi before a Senate committee. And I thought maybe we shouldn’t do it, but no, since we heard Secretary Build-A-Bear, I’m just going to have to say something about it. So, Attorney General Pamela Joe Bondi introduced us to a whole new approach of Senate testimony. And Kate, I want you to take some notes here. Basically, instead of trying to respond to questions or to correct what may have been mistaken premises or claims, or just to inform the Senate and the public that might be watching, what if you treated your Senate testimony as an opportunity to behave like a very bad insult comic? Roll that tape.

 

Clip Do you believe that government officials like Greg Orbino are obligated to follow applicable court orders, whether they agree with them or not, yes or no?

 

Clip First, Senator Padilla, you have gone on for over five minutes, and I wish that you loved your state of California as much as you hate President Trump. We’d be in really good shape then. Information if I can finish answering the question, I’m not gonna yell over you, I’m I’m not gonna get in the gutter with you, but information information that the Biden administration told them not to investigate Hunter Biden’s involvement with Ukraine.

 

Clip And I’m not going to be lecture to have integrity by someone who lied about being in the military just to be elected a senator?

 

Clip You were asked by my colleague from Vermont whether you will support providing a video or audio tape if it exists, of Mr Mr. Holman taking fifty thousand in bribe money from the FBI. Will you support a request by this committee to provide that taper tapes to the committee? Yes or no?

 

Clip Senator Schiff, you can talk to Director Patel about that.

 

Clip Well I’m talking to you about it. You’re you’re the you’re the Attorney General. This will be your decision. Will you support to tell me what is my decision, what is not my decision. I said you’re not going to be able to do that. You can you think you’ve got a gotcha with the.

 

Clip You can you think you’ve got a gotcha with Tom Home in our border zone. Who’s been out there fighting for our country since Donald Trump took the country?

 

Clip Since Donald Trump took office. I’m trying to ask you a question. Will you support that request?

 

Clip Will you apologize to Donald Trump? So I guess trying to teach him Caroline Lovett is one of the most trustworthy human beings I know. So was she was she was she if you worked for me, you would have been fired.

 

Leah Litman Okay, here’s a summary of all of the questions she refused to answer from Senator Schiff.

 

Clip You were asked whether you consulted with Kerr ethics lawyers, as you promised you would do during your nomination hearing, when you approved the president receiving a $400 million gift from the Qataris. You refused to answer that question. You were asked what who or what role you may have played, or who played the role in asking that Trump’s name be flagged in any of the Epstein documents gathered by the FBI. You refuse to answer that question. You were asked whether Holman kept the $50,000 bribe money. You refused to answer that question. You were asked whether Holman paid taxes on the $50,000 bribe money, you refused to answer that question. You were asked, did career prosecutors find insufficient evidence to charge James Comey. You refused to answer that question. You were asked, how are military strikes on these boats in the Caribbean legal? And you refuse to even ask answer that question. You were asked law degree? Excuse me, excuse me. You were asked, did you discuss indicting James Comey with the president? You refused to answer that question. You were asked, did you approve the firing of antitrust lawyers who disagreed with the Hewlett-Packard merger? You refused to answer that question. You were asked whether you support a restoration fund for violent insurrections, insurrections to attack the Capitol on January 6th. You refused to answer that question. You were asked whether you were firing career professionals, career prosecutors, just because they worked on January 6th question, January 6th investigations. You refused to answer that question. You were asked by my California colleague whether you believe government officials like immigration officials have to abide by court orders. You wouldn’t even answer that question. This is supposed to be an oversight hearing. Over these, excuse me. You can attack me after my own. Oh, well, you’ve attacked all of us, including President Trump, for your head. Candid attacks on you? This is supposed to be a good thing. No one needs a canned attack on you. Regular order, Madam Chair. I’m trying to speak.

 

Leah Litman And when Senator Schiff said she brought canned attacks, he was right. The Daily Beast analyzed photos of Bondi, which included photos of her notes to herself, which said things like going after DJT and photographs of social media posts, and Bondi seemed to have an entire page devoted to one Senator Sheldon Whitehouse. Why you ask? Well, listen to this exchange.

 

Clip Let me ask you something else. There’s been public reporting that Jeffrey Epstein showed people photos of President Trump with half-naked young women. Do you know if the FBI found those photographs in their search of Jeffrey Epstein’s safe or premises or otherwise? Have you seen any such thing?

 

Clip You know, Senator Whitehouse, you sit here and make salacious remarks, once again trying to slander President Trump left and right, when you’re the one who was taking money from one of Epstein’s closest confidants, I believe. I could be wrong, correct me, Reed Hoffman, who was with Jeffrey Epstein on multiple occasions. And the senator sitting right next to you tried to block the flight logs from being released. Yet you’re grilling me on President Trump and some photograph with Epstein?

 

Clip The question is, did the FBI find those photographs that have been discussed publicly by a witness who claimed Jeffrey Epstein showed them to him? You don’t know anything about that.

 

Leah Litman That is, as we say in the business, not a no.

 

Melissa Murray I just love that she was like the macro attorney general. Like, if they are mean to DJT, shift F three, here’s my answer. If Sheldon Whitehouse asks me a question, shift F four, like oye.

 

Kate Shaw Macro, choose your own adventure. Yeah. Well, hopefully that brought you some kind of perverse joy to end this heavy episode. And with that, we are gonna wrap our new segment of today’s episode. But do stay tuned for our conversation with John Witt about his great new book about how a group of inspired and committed radicals helped move the country toward better labor policies, real democracy, and civil rights.

 

Melissa Murray Sounds like a fantasy novel, anyway.

 

Kate Shaw But it’s history, that’s the thing.

 

Melissa Murray Also fantasy.

 

[AD]

 

Leah Litman Welcome back. We are your hosts for this segment. I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. And we are delighted to be joined for this conversation by John Fabian Witt, the Duffy class of nineteen sixty professor of law at Yale Law School and a professor of history at Yale. John joins us today to talk about his fascinating new book, The Radical Fund How a Band of Visionaries and a Million Dollars Ubend America. John, welcome to Strict Scrutiny.

 

John Fabian Witt Thank you. It’s so nice to be here.

 

Kate Shaw Well, we’re delighted to have you to talk about this fascinating work of history. So it’s a historical book, but I really cannot overstate how directly and urgently it seems at every turn to somehow be about the current moment. And I think what I mean by that will become clearer, but maybe let’s start with some background.

 

Leah Litman Yes. It’s also relevant to the current moment, but also uplifting. And so that is a very unique combination. And again, this will become clear. Okay, so let’s start with the basics. What is the fund that’s referred to in your books?

 

John Fabian Witt So in 1922, a slightly confused Harvard undergrad inherited a million dollars. And he decided he didn’t want it and he refused it, which caused a huge uproar, and newspaper reporters came from all over the country. And that resulted eventually in Roger Baldwin, who just founded the ACLU, and Upton Sinclair, the novelist, author of the jungle writer, national figure, persuading this young man, Charles Garland, to give it to them and to let them decide how to use it. And they created a kind of extraordinary foundation, the American Fund for Public Service, sometimes known as the American Fund and sometimes known as the Garland Fund.

 

Leah Litman Or the radical fund. And so

 

John Fabian Witt Or the radical five. Yeah.

 

Leah Litman Yeah. So in establishing this fund, you know, as you know, Garland worked closely with Roger Baldwin, who was director of the ACLU and also a renowned champion of labor and civil rights. And together, the two men, you know, proposed to test new ideas for what they believed was the central question of the time. This is gonna sound relevant, quote, how to build democracy for an immense racially divided country in the age of inequality, mass production, and mass communications. End quote. So, John, could you tell us what was so unusual about Garland and Baldwin’s vision?

 

John Fabian Witt Well, Baldwin was emerged as the kingpin. That was what some of his friends jokingly called him, the kingpin of this fund. And what he did was he put together a kind of dream team of people from an array of organizations who, in the ashes of the progressive era, were trying to figure out how to do mass democracy. It was the era of the great migration, which meant mass democracy had to be cross-racial. It was the era of the emergence of new giant firms, General Motors, General Electric, that were tra US steel transforming the American economy. And it was a period of new mass communications. And so Walter Lippmann and John Dewey are talking about how do you do communications in a democ in a in a democracy? And it it really looks like ripped from the pages of our time. If you substitute AI and digitization and virtual work for mass production, if you add in social media and AI for for the communications problem, and you throw in immigration, heck, we we even just came out of a pandemic. It’s the same. I mean, they had a pandemic, we had a pandemic. It’s kind of astonishing.

 

Kate Shaw Yeah, it’s like largely a century ago and things all it all feels so so current. So I’m gonna ask you to follow up on on one aspect of Leah’s question, which was not just what was unusual about the kind of capaciousness of their vision and the different fronts on which they understood they needed to work, but also just more technically, what was distinct about the way they set about spending this initially just this million dollars, which is what, 18 or something in today’s dollars, 18 million. It’s compared to the just enormous foundations, both now and even of the time, things like the Rockefeller Foundation, this was obviously far smaller in scale. And they also just chose a distinct structure, right? They wanted to spend down rather than, you know, have create this perpetual foundation the way their larger peers were doing. So can you talk a little bit about the significance of that choice compared to other models and kind of paradigms of the time?

 

John Fabian Witt Yeah, it’s start it starts as a million dollars, but you know, it’s the stock market of the nineteen twenties. So they actually they make another million, they double their million, which they find kind of funny. And there’s lots of jokes about it because they can’t quite believe that they’re they’re in this critical position with respect to capitalism, but capitalism’s funding them. And so in the end, they give away two million dollars, call that thirty-six or forty today. It was thirty-four when I started, but inflation, you know. So now it’s a few years ago. The book took a few years to

 

Kate Shaw The book took a few years to finish.

 

John Fabian Witt Exactly. If you index it, you get to about 40. You know, if you if you recalculated it as a share of the American economy, you get to a much larger number, a couple hundred million dollars. And then now you can see the kind of impact it might have made. But I think more than the money, it was bringing certain people together around the table and occasioning conversations. I mean, the the bringing together the head, the first black head of the NAACP with the head of the ACLU, with the labor intellectuals and organizers who are creating the Congress of Industrial Organizations. I mean, that’s the that’s the magic of this thing, is putting those three movements, which are the three central social movements underlying New Deal liberalism and the civil rights age that followed. And there was no place where those kinds of people had talked to one another and argued with one another and fought with one another before. And it it it changed the way they thought about things.

 

Kate Shaw Obviously, the individual personalities and relationships are an enormous part of the book. Maybe before we talk about any of those, can you just talk a little bit in moderate, I would say, detail or depth about some of the fund’s premier achievements? And you know, you you say, and maybe this has come through already, that there’s this distinct kind of crossroads of not just the different kind of rights movements that are working together, but also this kind of unique intersection of radicalism and practicality that characterizes much of the work of the fund. And you say that this fund and the people who were stewarding it help lay the foundations of some of the signal achievements of the 20th century. So can you identify two or three examples?

 

John Fabian Witt Let’s let’s talk about two. And I think, you know, one interesting thing at the outset, I might not call them rights movements. They become rights movements after World War II, and which is a really interesting institutionalization of their successes. And I and that actually I think should maybe help us rethink what what the rights revolution was after World War II. But let’s talk about two examples. And the one, the core, the most important, is the invention of a new way of organizing working class Americans. The the the CIO brings together industrial organizations, trade unions were the old way, and unions organized around on an industrial scale, such that everybody working for a single firm is in the same bargaining unit, to use the language of the National Labor Relations Act, which comes out of much of their work. So the organizing the labor movement for the modern world for the modern mass production economy, that’s a crucial thing. And it comes out of the intellectual work of folks in the 1920s, like Sidney Hillman, who’s on the founding, the founding member of the Garland Fund board, and then his lieutenants who staff the board for the next decade and a half. So industrial unionism is is a conversation these people are in, helping to form. One of the things that mass production unions have to do is organize across race. That is to say, after once the great migration is going, if you’re organizing everybody at a company, you’re not just organizing the bricklayers or the or the carpenters. Now you’re dealing with people across race, across ethnicity, after the mass immigration of the early part of the 20th century. And so the second great accomplishment is putting together an architecture that attacked Jim Crow. And that’s something that came out of a decade of conversations internal to the fund, in which the the black members of the funds world pushed over and over again for the white CI future CIO, a future Congress of Industrial Organization folks to think about race and to bring race into their into their story. And so in 1929, 1930, and this is really the thing for which they’re known, it’s how it came to my attention, this foundation, they launched the NAACP’s litigation campaign. So industrial unions and the Brown Against Board of Education campaign come out of this. You can’t tell the story without this outfit. And it’s kind of astonishing.

 

Leah Litman So I’m so glad you just brought up the fund being a key early supporter of the NAACP, you know, that included financing Thurgood Marshalls for salary and fueling the litigation, you know, that led to landmark victories like Brown. But although the fund’s association with Brown is rightly celebrated, you note that the fund also supported litigation in another case, Steele versus Louisville and Nashville Railroad. And that in some ways, like that case was more significant. So can you elaborate on that point, like what the Supreme Court did in Steele and what it tells us about the fund?

 

John Fabian Witt Yes, Steele’s a 1944 case, so a full decade before Brown against Board of Education. And you know, the insider legal historians have been telling the story of Steele for a while. Great work by Sophia Lee at the University of Pennsylvania, Russi Galioboff, former Dean at Virginia, Rule Schiller out at UC San Francisco. But what Steele says is that labor unions, which are at this moment are mostly white, and some of them by charter exclusively white. So that the Jim Crow labor unions have an obligation of good faith representation for their black workers. That that that’s the steel case. A man named Bester Steele is a black railroad worker in the South. And he brings this case with Charles Hamilton Houston, who’d worked closely with the fund. And interestingly, the the fund and the NAACP don’t bring this case. It’s too difficult, internal to the coalition with labor to bring that case, to sue the labor unions. And so one of the things that this amazing Steele case brings out is the ways in which the coalition had fractures and had tensions in t inside it. It’s hard to to be in in in coalition with somebody and bring a lawsuit against them. And so the steel case, the reason the steel case is so important is that it focused on the economic side of civil rights. Civil rights quickly, as people like like like Professor Gollyboff have have identified, moved away from economic questions and property questions and wealth questions. And steel is all about employment. And that’s why I think it was really a crucial and now now too forgotten case. Why don’t we know about it? Teach it. Yeah, I well, it fractures the coalition. I mean, one thing that Steele did is it authorized lawsuits by any number of employees who felt poorly represented by their unions for decades to come. Unions hate steel. I mean, they may be okay with the the civil rights piece of steel, but it authorized actions by people who were against unions in favor of right to work. It it it really made union control of the shop floor more difficult rather than rather than easier. And that’s because unions were Jim Crow outfits for decades, even even a century. So

 

Kate Shaw Okay, so I want to shift and ask a different question, which is that we are recording this segment just a couple of days after the assassination of conservative activist Charlie Kirk. And there have understandably been a lot of conversations in the last couple of days about whether we are entering or living in an era of political violence. And there’s a lot of violence in the book. There is horrifying white supremacist violence. There is a lot of detail on a 1917 race massacre in East St. Louis that is a very difficult part of the book to read. There’s also violence by some of the more radical elements of the labor movement around the same time and into the 1920s. So can you talk about kind of the arc of the book when it comes to violence? Obviously, the two examples I gave are very different kinds of violence, but they’re both violent. So so so what is what is what story about violence does the book tell?

 

John Fabian Witt Well, you know, the 1900s, the first decade of the 20th century and then the 1910s are periods in which the left, certain segments of the left are just engaged in forms of political terrorism. I mean, there are any number of bombings and assassinations that come out of anarchist and labor union efforts. And it’s the 1920s that sees the first concerted self-conscious movement effort to reject violence and to move to various forms of nonviolent protest. And the fund is one of the sites for that conversation and that pivot. Elizabeth Gurley Flynn, who’s a member of the funds board through much of the 1920s, is someone who’d been in the industrial workers of the world. She’d been a wobbly, she’d been an articulator of the of the claim that violence is okay when necessary. And in the 20s, after the complete and utter failure of that catastrophic 1910s strategy, Flynn is persuaded and moves with others to a different kind of politics. The Brookwood Labor College is this amazing forgotten institution from Cotona, New York, which it trains a whole generation of labor movement organizers and activists and civil rights characters. It’s a forerunner to the Highlander Folk School in Tennessee, which is Rosa Parks, Martin Luther King Jr. And others. And that the Brookwood school’s training is all about nonviolent politics. AJ Musty, pacifist Dutch reformed minister, is the guy who runs it. And that’s a that’s one of what of the the Garland Fund’s major projects. So there’s that transition, and you can watch that arc. And I think we’ve just forgotten that story about the 1920s rejection of violence and the turn to to nonviolent protests and nonviolent movements, both as a matter of principle and as a matter of strategy, both ran together. And that was one of the parts of the story I did not expect to encounter. But it really was like a lightning rod through the through the material.

 

Leah Litman So staying on the parallels between the book and the present day in the epilog, you reflect on the truly remarkable scope of what the fund accomplished during its lifetime. You write, quote, for a generation for nearly the entirety of the time between the two world wars, the fund sustained experiments in industrial democracy for a racially divided nation. The fund had finance, publicity, and propaganda and mass organizing. It had sponsored innovation in the affirmative use of the state by liberals and the labor left. It had helped transform the laws of labor and free speech for a modern democracy. It had remade the project of racial liberation. It had financed dozens of fights to make a better world, end quote. Yet you also warned that much of what the fund’s beneficiaries accomplished is under siege today. So what parallels do you see between the battles over democracy and rights in the fund’s era and the crises we face in 2025?

 

John Fabian Witt Well, it’s really it’s what ended up driving the book. You know, it the book took a long time to write. And the thing that propelled me was just watching the parallels emerge. You know, I don’t think that the fund could have changed the world in all those ways on its own. It took a depression, it took the huge calamities of World War II to propel things along. But think calamities and catastrophes don’t determine their own outcome. Like we don’t know whether a calamity is going to produce fascism and autocracy or some kind of better order. And it’s the ideas and social movements that calamities find that direct history into the paths that that it takes. The the parallels for today are are really astonishing. And the thing that I’d say is that economic transformation, the complete reordering of our economic landscape, it undoes social movements, it undoes social formations, the kinds of liberalism that mid-20th century America managed in part to achieve, rested on a whole industrial structure. And what we’re seeing today is the undoing of that industrial structure. The undoing of the labor unions that once were membership for millions and millions of American workers and just don’t play the same role in the private sector anymore. So I’d say that the economic situation, it’s not that we’re going through the same transformation, it’s that we’re going through another transformation. You know, James Weldon Johnson, who was the fund board member on the NAACP, he had a New Haven conference in the 1930s, said, you know, the world keeps changing. And so no matter what strategy you develop to make a better world, the world’s gonna change, and you’re gonna need a new strategy. And I think one of the things we’re seeing is that the strategies they put in place were pretty well suited, astonishingly well suited to the world they were in. And what we’ve got to figure out today is a way to organize and connect working people across race and across ethnicity, across nationality for an economy that looks totally different and opposes new challenges and for an information economy that looks different. That’s that’s the way there are parallel systems and and and you know, the search is on again now to figure out ways to do what they did a century ago.

 

Leah Litman So over on Blue Sky, you know, in the lead up to the book, you have been posting a kind of character from the book of the day. And it’s a remarkable kind of sampling of the many different people, you know, that were related to and made use of the fun. So I was hoping maybe you could share with our listeners a favorite or lesser known one or two characters just to give them a sense of some of the people that are discussed in the book.

 

Kate Shaw It is unbelievable how many luminaries of legal, political, communication thought are jammed into this. I mean, the book’s not short, but it is still like page for page, like an incredible density of extraordinary characters who all intersected in ways that like most of us had no idea ever, you know, were kind of fellow travelers in the way that they were. So sorry to interrupt, but please choose.

 

John Fabian Witt No, no tell it it’s great, Kate. It tells you something about the small world that was nineteen twenties New York City. I mean, that is to say it I mean, of course Reinhold Nibor is hanging out with John Dewey and Walter Lippmann and Roger Baldwin. Like it just makes it just makes sense. And and James Weldon Johnson and W E B Du Bois are just a few blocks away.

 

Kate Shaw The boys are just a few boxes. Margaret Sanger, Frank Murphy, and the d when he’s a trial judge in Detroit. I mean, that’s a big thing.

 

Leah Litman It’s like six degrees or seven degrees of Kevin Bacon, but with literally all the progressive figures, right, of that era.

 

John Fabian Witt Right. And Roger Baldwin is the Kevin Bacon. I mean, he’s just, he’s just such an active person. He he has some number of phones on his desk at all times. I mean, he just he just can’t be contained by one telephone. It’s kind of a he’s like a he would have been an early social media adopter. Oh, he would have been a real poster. Yeah. Exactly right. Exactly right. One of the reasons for for the characters and and and to bring them out in in on Twitter and Blue Sky is you you know, some of them are known characters. You know, we just ran through a couple that some listeners might know of, although a lot of Americans aren’t gonna know any of those people, right? But a lot of these characters aren’t known at all. You know, John Brophy, the child laborer in the coal mines, who teaches himself and becomes a leader in the dissident side of the the the coal mine workers union, but plays a huge role in figuring out how to organize workers in the 1930s. Any number of of people, and I wanted to write a book that had characters because human agency is is helping to shape the story. It’s not just a war and and a and an economic cataclysm. It’s also people, but it’s people in social movements who aren’t necessarily the the presidents who drive certain kinds of history. So I love the characters. Here are here are two characters. Let’s go back to Sidney Hillman. I mean, this guy, you know, Lithuanian Jewish immigrant, chased by the czar in into the United States, starts in New York, ends up really in Chicago mostly. Starts off as an organizer in a textile strike in Chicago at Hart Shafter and Marx in 1910. And by the 1930s, Franklin Roosevelt is going to be calling him the central figure in the New Deal. Big questions come up, and Roosevelt says, go ask Sydney. So this is just an amazing arc for his for his life. And he’s on the on the founding board of the fund and helps to focus the fund on this centrist, pragmatic and yet energetic unionism that that really is the center of the fund’s work. I I went into this thinking the center of the fund’s work would be Brown against Board of Education. And the answer really is that it was industrial unionism and that the civil rights piece comes in because you can’t do unionism in the United States without organizing across race. So Sidney Hillman is a character, and just an astonishing biography of Hillman by Steve Fraser back in the I think early 1990s, highly recommended. So Sidney Hillman, second character, I I mean, James Weldon Johnson is maybe the person I came to love most in this in this book, you know, born in Reconstruction Jacksonville, Florida. At a time when Reconstruction has produced black control of Jacksonville. It’s a black middle class running the city, the Republican government running the state of Florida. And his childhood and teenage years watches the Jim Crow curtain fall on the American South. He watches white take over the so-called redemption of Florida. He watches the black middle class kicked out of Jacksonville. And he’s nearly lynched in a race riot in 1900 in Jacksonville, which was one of a number of things that leads him to head for New York. Where you know by 1920, he becomes the head of the NAACP, the first blackhead. These are just amazing human beings. And and one of the excuses for the book is this fun brings them all together. I mean, it’s not their their lives I follow in the book, because I just I just find them fascinating. And the reason it’s so long is is that is that I’m following these characters of who come together around this table.

 

Kate Shaw Will you actually talk a little bit about the process of researching and writing a book that has so many different characters and storylines?

 

John Fabian Witt Yeah, it it’s the it was the hardest book that I’ve done because just to figure out a narrative structure for it, the story of the fund, its internal organization is something that I wanted to have in there. But honestly, we don’t want to read about the internal corporate structure of the fund. There’s some tax law in this book. I did some tax law to figure out how it’s an early adopter of of special tax status. But what I really wanted to do is dive into the social movements that are the core of the fund’s world. Really, it’s a book about the world of the fund, a lost social world that we’ve forgotten about, and that I think holds lots of promise for thinking about how to make a future in the 21st century. And it meant going to archives all over the country. I mean, some of it’s in New York because the fund was in New York, and the New York Public Library got these materials in 1941 when the fund closed down. So all the fund’s papers are right in Midtown. But the the movements are organized all over the country. And so I was in California. I spent a lot of time in Detroit, where the amazing Walter Ruther Library has astonishing archives. There’s stuff in Boston since the Sacco and Vanzetti campaign is so central to this outfit. The National Archives, the Library of Congress, all over the place. And I was really lucky that right across the street from where I am right now is the Beinickee Library, where James Weldon Johnson’s materials are. So I, you know, it just took a Texas, the University of Texas somehow ended up with it, probably the second best collection on on the Garland Fund. You know, it a man named Morris Ernst, whom we haven’t talked about, but there’s there’s an interesting sub thread here about Jewish lawyers in this period and their contributions, and Morris Ernst is is is is one of those.

 

Leah Litman So are you hoping to inspire other Charles Garlands through this historical excavation and story?

 

John Fabian Witt You know, I I do I I reference that idea at the end of the book. And you know, it’s a different philanthropic landscape right now. You know, in 1922, if you created a liberal left foundation, you could get all of the players to come to your table because there was no there was nobody else in the game. I mean, today, the liberal left side of the philanthropic world is full of actors, energetic, lots of efforts. And it’s really hard to get a conversation that brings everybody to the table. So I, you know, I I I am hopeful about the prospect of identifying a 21st century organiz organizing principle, an organizing institution, you know, a CIO, an industrial union across race for the 21st century. I don’t know that it’s a union. I don’t I don’t I don’t know what form it takes. And for sure, whatever form it takes, resources are going to be required to make it go. I mean, that’s one of the lessons is you you you you can’t do the work of organizing. You can’t have people dedicate their lives to the project of trying to find new forms without the resources to to let them to let them do it.

 

Kate Shaw One of the many hopeful notes in the book is it actually doesn’t require resources to the tune of like billions of dollars. Like you actually you need resources obviously to start something like this, but but that was why I th I found it intriguing. Like there are there are it’s not impossible to imagine something comparable in sort of scope. Of course getting the kind of cast of hearts and minds together to actually do a version for the twenty first century of what was done by the fund is of course a tall order. But the book has a real hopeful feel to it.

 

John Fabian Witt Well that’s that’s why I wrote it. I mean it’s you know and and I started it at a different time in our politics. It was two thousand thirteen, two thousand twelve when I started. And you know, the transformations in our own time have been astonishing to watch. And well the book the book has helped sustain me. I’m I’m hopeful that it it might help sustain some readers along the way. And yeah, but the the the parallels are really kind of amazing.

 

Kate Shaw I think that’s a good place to leave it. The book, once again, is by John Fabian Witt. The title is The Radical Fund: How a Band of Visionaries and A Million Dollars Upended America. Again, it is both almost novelistic in the number of interconnected characters and storylines and profound in its meditation on our politics and organizing, and really does sort of leave you with a good deal of hope. So highly recommend it to our listeners. John, thank you so much for joining us.

 

John Fabian Witt Thanks. It was a fabulous conversation. Glad to be here.

 

Kate Shaw As promised, that was an inspiring and topical conversation, and on a similarly high note, we’re gonna leave you with our favorite things.

 

Leah Litman So videos of the Portland Frogs and Portland chicken protests, definitely recommend. Same with the videos of protests and demonstrations in Chicago. I also listened to an episode of the Sentimental Garbage podcast on Taylor Swift Life of a Showgirl. And honestly, it opened my eyes to the absolute right way of understanding the album. It’s hilarious. It’s smart.

 

Kate Shaw Well you give us like one like a tiny little sliver of it or do you have to just listen?

 

Leah Litman You just have to listen because yeah, it’s incredible. So also LA, I’m going to be at the Hammer Museum tomorrow. So October fourteenth at seven thirty PM. I’ll be discussing the Supreme Court and my recent book, Lawless. These things are basically synonyms at this point. Admission to the event is free, so come and join if you’re in the area. Again, that’s Tuesday, October fourteenth at seven thirty.

 

Kate Shaw So I have already recommended Lily King’s brand new novel, Heart the Lover, which I so loved and I really want you guys to read. I then read her kind of related novel, Writers and Lovers. The only thing of hers I’d ever read was Euphoria some years ago, which is incredible. And I think I’m just gonna become a Lily King completist. And by the next time we record, I’m gonna have read all her books because they’re all very short and just tear through them. And I’m also now listening to Rachel Kushner’s Creation Lake, which I never listened to and is great. And I want to shout out around our live show in Chicago, I spent some time in Wisconsin in the Driftless region, which is like west of Chicago, and is a beautiful kind of like hilly area, and spent part of the weekend at the Red Clover Ranch, which is an unbelievable little retreat destination, and drank a lot of amazing wine and cider from Las Mujeres Winery, which is near there. I’ve mentioned it on the pod before, but if you’re lucky enough to live somewhere you can get those beverages, and I can’t in New York, run, don’t walk to do that.

 

Melissa Murray Okay, my favorite things this week was that I got to attend this absolutely fantastic convening that our good friend of the pod, Sherrilyn Ifill, convened with Sarah Elizabeth Lewis of Harvard University at the Ford Foundation. It was called Vision and Justice Now, and it was absolutely remarkable bringing together lawyers, activists, and artists who imagine in this period that Sherilyn calls the nadir, the tools that we will need to create and cultivate in order to perfect democracy when we are ascendant again. And it was basically just kind of putting aside seed corn in this dark time for better times to come. And it was so inspiring and nurturing and just absolutely amazing. So many great people. The amazing Carla Hayden from the Library of Congress was there. Amazing artists like Mark Bradford and Carrie Mae Weems, and Amy Sherald, Ava DuVernay, the director was it was just like absolutely star-studded and fantastic and just so completely inspiring. And there were a number of strict scrutiny listeners in the audience, including Faith Savage. Faye, great to hang out with you. And Jane Smith, who is there. And not gonna lie, I was a little fangirling with Jody Foster, who I happened to actually sit next to, and it was like absolutely amazing. So totally, totally fun, absolutely fantastic. Great job, Sherylyn. You just it was amazing. Totally gag, 10 out of 10. No notes. The other thing I’m recommending is a little less highbrow. It is an Instagram account called Miss Toy Poodle. And it is about a beautiful man with lovely eyebrows who carries around his red toy poodle who looks a lot like Stevie, only he dresses her in amazing clothes. Not a criticism of you, Leah, just a noted fact. And he basically treats this dog like his daughter. And so he’s like, you know, don’t try and feed my daughter treats on the street. Like she doesn’t eat your street food. It’s the whole thing is hilarious. Please check it out. Miss Toy Poodle, absolutely fantastic. Not highbrow, but very funny and nourishing in its own way. All right, housekeeping. Guess what, strict listeners? You have been hearing us talk about CrookedCon for weeks now, but here’s the deal it is sold out, and it’s sold out faster than ever expected. By even more popular demand, it is getting an upgrade. CrookedCon is officially moving to a bigger location, and that means there are more tickets, more panels, and more guests. And the new venue is drumroll, please. The Ronald Reagan Building and International Trade Center, where all the liberal squishes come from. I can’t wait. Your favorite Crooked Podcast hosts will be there, plus Governor Andy Bashir, AndersonClayton, Ben Wickler of Wisconsin Dems, Senator Ruben Gallego, Maurice Mitchell, Hassan Piker, and more. And we are adding a Vote Save America Action Hub, a space where our partner orgs can hang out and focus on activism so you can leave with the tools that you need to fight for democracy. This event just keeps getting better and better. It’s not like the administration in that way. So don’t miss out on this last batch of tickets. And as a reminder, we, the ladies of Strict Scrutiny, will be closing out CrookedCon with our live show. Basically, all those people I just mentioned are just warm-up acts for this. That’s right. So get your CrookedCon tickets at CrookedCon.com. The ticket will give you access to the full day of conversations, panels, and workshops. So get your tickets before they sell out again at CrookedCon.com.

 

Leah Litman So in today’s attention economy, the only thing worse than being hated is being boring. That’s the world reality TV built in all its messy glory. And it’s probably one of the best ways to escape after mainlining the news every day. It’s becoming clear how reality TV hasn’t just changed TV. It’s changed culture, fame, everything, including politics. I escape to Bravo as my escapism. The real hospital Salt Lake City is incredible. Like Lisa Barlow was born for television. I aspire to be like Meredith Marks. You know what? I will not accept this Atlanta erasure. Okay, I was getting there. There’s not a day that goes by when I am not repeating lines from either Heather Gay, Nene Leeks, or Sheree Whitfield.

 

Melissa Murray Who gone check me boo?

 

Leah Litman Or fix your face. It’s all there.

 

Melissa Murray Or, she got a white refrigerator. Hi, Kate.

 

Leah Litman In. Well, Kate, this is for you. In a very special Love It or Leave It series, Bravo America, Jon Lovett dives into the reality TV universe, interviewing icons of the genre to explore how these shows blur the line between authenticity and performance. Be cool. Again, Kate, that’s for you. Don’t be all like uncool. You can find this series every Tuesday on the Lovett or Leave It feed and on YouTube.

 

Kate Shaw I’m literally like the target demographic.

 

Leah Litman Yes.

 

Melissa Murray You are. Just the tip though. Just the tip.

 

Leah Litman Melissa still hasn’t stopped saying that phrase.

 

Kate Shaw I love it. I never want her to.

 

Melissa Murray Every chance I get.

 

Kate Shaw All right. I’m gonna listen and I will report back.

 

Melissa Murray When you know when you know better, you do better.

 

Leah Litman Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Eddie Cooper. Production support comes from Madeline 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. You can 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 apps, you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.