A Very DC Saturday Night | Crooked Media
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June 24, 2024
Strict Scrutiny
A Very DC Saturday Night

In This Episode

As we wait for SCOTUS opinions in cases about presidential immunity, emergency abortions, the future of the administrative state, and more, we did a rowdy live show at the Howard Theatre in Washington, DC! It was  one for the books– The Second Gentleman, Doug Emhoff, joined us to reflect on the second anniversary of Dobbs. Friend of the pod Commander Steve Vladeck filled in as guest host. And former Attorney General Eric Holder joined us to talk about the Court’s decision in a case about domestic violence offenders obtaining guns, analyze possible paths for court reform, and lighten the mood with a game of This or That.






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


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


Kate Shaw And I’m Kate Shaw. And we are thrilled to be coming to you today live from the Howard Theater in Washington, DC.


Melissa Murray H-U


Kate Shaw So if you are here, you know that June is always an especially busy and high stakes time when it comes to the Supreme Court’s calendar. That is always true, but it feels especially almost agonizingly true this year, as we all wait on the edges of our seats to see what the justices will decide in cases involving presidential immunity, abortion emergencies, the future of the administrative state, and much, much more.


Melissa Murray Now, while we’re waiting, we will note that they haven’t been completely remiss. They did issue some decisions this week, and so we will talk about those decisions. But first, before we get to their work, we have some work of our own. We have for this live show at the Howard Theater, a very special guest. This guest needs no introduction. But let me say this. He is a lawyer. He is a law professor. But most importantly, he is a gentleman. In fact he is the second gentleman. The first second gentleman in the entire history of these United States. So please put your hands together and give a warm, Strict Scrutiny welcome to the one of one, the only one, the second gentleman, Doug Emhoff.


Doug Emhoff You all thought she was a special guest, right? Surprise!


Melissa Murray Is this your date night?


Doug Emhoff This is. This is how I get her to come out on a Saturday night. Hey, honey.


Does she know this is your date night?


Doug Emhoff Yeah. Come back to Howard, you know.


Kate Shaw Well, we will be our wing women any night. We love this. So we are so thrilled to have you on the stage with us. And we want to dive right in. This episode will be released on Monday, which is the two year anniversary of Dobbs versus Jackson Women’s Health Organization. The decision, as you all know, that overturned Roe versus Wade and ended constitutional protections for abortion. So, Dobbs, as a case, we spend a lot of time on this podcast talking about. And it’s also a case that you have spent a lot of time talking about in recent weeks and months all over the country. So can we start by asking you to tell us how the Dobbs decision landed with you and with some of the women in your life.


Doug Emhoff Not well, two years ago, and we had already had the leaked decision. So in some way we knew it was coming, but it was still hard to believe. And within seconds of the decision, the actual decision coming out, my wife, the vice president, I was right. Call me from Air Force Two.


Melissa Murray As you do.


Doug Emhoff And and literally. But again, this is like she said again, she we intellectually knew this might be coming, but it was still such a shock to her. And it was basically something like, Dougie, she can call me Dougie. They actually did it. They actually did it. And she was angry. She was furious. And you’ve seen these last two years how she’s just been such a leader on this issue and will continue to be. And then within, I think, mere seconds or minutes, our daughter Ella, who was then 23, who isn’t want to just text me out of the out of the blue because she was 23 and it was sent and I had it written down. It was something like, I am so angry. This is horrible. This is horrible. I’m so angry. You need to do something about this. But then my mother, Barb, who is was 81 at the time, now 83, I was now 25. She called literally within minutes to. And she’s someone back in the 60s and 70s a lot like a lot of women of her generation were out there fighting and marching and shouting for equal rights and abortion protection. And she’s so appalled. So for her to have her think about Ella, and how is it possible that Barb would have more reproductive freedom than Ella after they fought so hard to get there? And I just knew right away I had to do something about it, not only, as you know, Second Gentleman, but it’s just it was the right thing to do. So just from the get go, I think even within days, even maybe even that night, I just started speaking out about it. And I’m, I’ve been doing it for two years and just around the two year anniversary, I’ve been doing a lot of events, and I’ll be in Detroit on Monday. And I’ll all the white House principals and folks in the administration are going to be fanning out on Monday to just continue to spread the word about how egregious this Dobbs decision was.


Melissa Murray We concur. And again, we want to give a shout out to the vice president, who has been absolutely unbelievable in on this from the very beginning. But I want to talk about your role because it’s so important to have men talking about these questions about how this affects all of our lives, not just the lives of women or people who are capable of pregnancy. And one of the things I think that’s really great about having you on the stage is that the anti-choice movement has actually been very diverse in terms of their gender representation on this issue. They have men, they have women out there in front, and we’ve mostly had women on the front lines. We haven’t always had men out there making the push for greater access to reproductive freedom. How can we get more men involved in this fight, especially now when it is more urgent than ever?


Doug Emhoff Well, I’m going to keep speaking out with the microphone that I have and and just telling the stories. I think, you know, as a former trial lawyer, and now a second gentleman for almost four years, most effective communication is just telling the stories. And we’ve seen some just horrific stories out there that are well known, but many millions of stories that are not known. And I think we now realize, and men are starting to realize that this is not an issue that just impacts women. This is an issue that impacts everyone on so many different levels. So if you’re talking about, your family and say it’s your partner or wife who was trying to have a baby and there’s a complication, and that woman gets sick to the point of having sepsis and almost dying and not being able to have children after that. By the way, that will affect the man just as much as the woman. And so people need to understand that. And it’s also about other rights that are at issue here. And I and I’m know you’ve talked about this many, many times. It’s just, as Thomas said, the quiet part out loud in Dobbs. What’s next and what’s next is everything. Every single freedom that we think we enjoy is at risk right now. And they’re not hiding it. There’s literally saying it every, every day. So if you’re a man and you care about contraception, you care about same sex marriage, you care about loving who you want to be able to love. You care about being able to do what you want to do in the privacy of your own home, or in the privacy of your medicine cabinet. It’s all at risk right now. So we’ve got to let everyone know that everyone’s got to be on the field for this, not just for women, but but there’s also just a fundamental fairness. I always say to women should not be treated as less than. It’s just not fair. It’s just not fair. As a men, we need to step up.


Melissa Murray So revelatory statements, Doug.


Doug Emhoff And again I mean it should be obvious this is not rocket science. This is just obvious.


Kate Shaw It bears saying, though, and that Dobbs is not just a women’s issue, and that Dobbs is also not just about abortion, that it is about IVF, it’s about contraception, it’s about marriage. And it is absolutely the case that the constitutional liberties that the court has announced in previous eras are all vulnerable before this court. And Dobbs makes that crystal clear. It’s not just the Justice Thomas separate concurrence. I think everything in the Dobbs logic itself makes that crystal clear that if given the opportunity, all of these other rights are going to be at risk and vulnerable. I want to ask kind of a maybe a generational question, which is that a lot of your discussions about these issues, reproductive rights and other liberties have been directed at college students and young people. Right? So you’ve you social media, you’ve used in person events, you talked about sharing stories. And, you know, you’ve brought individuals who have gone through agonizing and heartbreaking experiences, into the white House and done events with them and really amplify those stories, I guess maybe. Could you just talk a little bit about how politicians and reproductive justice activists can work across generational divides and advocate for access to abortion together? Because this is something that is going to require a lot of participation from a lot of different constituencies.


Doug Emhoff Yeah. So I’ve been doing a lot of work, with men, but younger men in particular all over the country. And, a lot of it is just education, because I think a lot of young people, and maybe even a lot of Americans need to be reminded, about how the process works and remind them that Donald Trump ran one famously or infamously told Chris Matthews, women should be punished for getting abortions. He ran on a on a platform of overturning Roe v Wade, and as president, promised to appoint Supreme Court justices that would do that. They did that. And now these rights are being taken away. And so when I explain that sometimes to people, they look at me with, oh, really? I didn’t know that. So we need people to understand that this is how it works, that elections matter and that who’s president, who’s in the Senate dictates who’s on the Supreme Court and has such a massive impact on your lives. And as for younger people, I always ask them to what are the various things that you care about? And then it’s a long list of freedom. It’s I’m concerned about who I can love. I’m concerned about who, you know I can marry, what I can read. I’m concerned about all these other things. I say, well, great, because all that’s at risk right now. And so by you supporting this issue and sticking up not only for women but for freedom, this intersectionality, they get that because they’ve been doing that on these other issues. So they need to know that you need to be doing this on this issue too. Because if we let this issue of reproductive freedom go, all these other things that you care about as a young person and as a young person, you’re gonna have to live in this world many, many, many years. You want to do that with as much freedom, as much liberty as possible. And that that resonates. But I need young leaders. Then I tell them, you go. You have to go out and spread the word. I can only do so much. Not every 25 year olds going to listen to me. They’re going to listen to other 25 year olds. So we need to get them out there like. Like you. If only. And that’s true on a lot of issues. We need young folks who care about this stuff to help us get the word out to other young folks.


Melissa Murray So I was talking to my fellow kids, and they.


Doug Emhoff I saw that! That was you in that meme? Hey, fellow young people.


Melissa Murray Hey, fellow kids. A lot of them are really disaffected, and it’s not hard to understand why they’re disaffected. We live in a really distorted democracy with gerrymandering, with voter suppression. Even when you get out there and you get the vote out and you go to the ballot box, you don’t always see your preferences registered in the policies that the people you’ve elected actually produce. What would you say to young people who are facing this upcoming election cycle, and maybe are just a little defeated from not seeing everything they wanted to have happen, happen. And they’re going into this knowing that things have been taken away by the Supreme Court that they really wanted, like student loan relief, like reproductive rights. How do you get them energized to go and do it again, when the other side has made it so hard for them to actually win?


Doug Emhoff Well, that’s that’s why they’re doing it. They’re trying to beat people down. They’re trying to divide us. They’re trying to make you feel powerless. And we can’t have that. I mean, we just have to realize that literally, our way of life is is at stake right now in this upcoming election. And so many of the things that, can continue to, to go in the favor that they want will happen if Joe Biden and Kamala Harris are reelected. And. I mean, that’s just true. And back to my other point. When I talk and I travel all around the country talking to all kinds of folks, and when I’m talking to young people again, it’s the same conversation. What do you care about? Tell me all the things you care about and whether it’s the environment, reproductive freedom, and not having assault, weapons everywhere. Being able to vote, being able to love for you all the things we’ve been talking about, I say we all get every single one of those things is at risk right now. If you don’t get up and vote and participate in this incredible democracy that we have. Otherwise, it’s going to be gone. And and you just have to keep reminding people that I’m not even making this up. Just look what they’re saying. Look at the 2025 plan. Look at.


Melissa Murray Project 2025.


Doug Emhoff Yeah, look at all these things where they are saying it. They’re not pretending. There’s no wink, wink, nod, nod it is. We are going to take everything away that you should not be taking for granted. We got to keep working for it. And that’s what they all need to understand.


Kate Shaw When you’re talking to voters. Obviously there’s a presidential election in November that’s in front of mind, but Congress is also at stake, right? So when there are questions that prospective voters, young people are asking, well, you know, what can the president and vice president do when it comes to protecting reproductive freedom? You know, the answer is there is a limit, right? The executive alone cannot reinstitute a Roe versus Wade regime. It cannot reinstitute broad protections for reproductive freedom that requires either a different Supreme Court or, more immediately, a Congress that can actually do something. So I guess, is that part of the civic education you’re engaging in as well?


Doug Emhoff Yeah, absolutely. People need to, again, understand that the surest way to restore freedom and protect freedom is to have a Congress that will do that, and a president that will sign it. And we know you have a president and Joe Biden who will sign it. And now people need to vote in literally four months. We can change this all in four months if we get the right Congress in place. And by the way, this is not a minority issue. The vast majority of Americans believe in all these freedoms that we’re talking about. These aren’t fringe issues. 70, 80 plus percent of our fellow Americans want reproductive freedom. They want to be able to read what they can read, marry who they can marry, love who they want to love, have contraception. This is probably more on that issue. So because of the gerrymandering and because of the politicking and what you mentioned before of trying to make people feel powerless, they’re not vote in four months. We can get this thing done.


Melissa Murray Doug says we can get this done. I’m with him. You’ve got me fired up now. I’m ready to go. And I was.


Doug Emhoff Four months! C’mon. We can do anything for four months. C’mon.


Melissa Murray I was at an eight and now I’m out at 11. I’m ready to go. So let’s do this. Any final words for us? I mean, that was very inspiring, but I think you’ve got more in the tank. Any final words?


Doug Emhoff Well, what else you want to talk about?


Melissa Murray Well, what’s it like to be the second gentleman?


Doug Emhoff It’s awesome. You know why?


Melissa Murray You make it look good.


Doug Emhoff Why? I get to be married to Kamala Harris.


Audience Cheers.


Doug Emhoff Yeah. It’s it’s great. I. I mean, I love, I was a lawyer for a long time. I loved it. I, I miss it in a in a lot of ways. But to be able to step back from from that career to support the first woman vice president ever. Um, I did it very gladly. And, you know, and it’s it’s one of the other issues I’ve been working on is the gender equity. And and again, this should be a no brainer. And whether it’s pay equity, family leave, child care, leadership, it’s this this should not be controversial. This is a, something I spent a lot of time working on as well. So that’s what it’s like to be second to, I get to travel the country. The country that I love. I’m a patriot. I don’t take any of this for granted. And I get to meet people all over the place, and it’s a beautiful country. It’s worth fighting for. It really is. Our way of life is awesome. And by the way, things are great. They really are great out there. We have a beautiful system. It’s. Let’s fight for it. So for more months, let’s fight for it. Let’s reelect Joe Biden and my wife, Kamala Harris. And let’s let’s just. Just keep moving forward, not back. They want to drag us back. Let’s move forward.


Melissa Murray You really putting all the other husbands to shame tonight, really.


Kate Shaw Let me just say from our perspective, it is genuinely inspiring. You are charting a path no one has ever walked before. There’s never been a second gentleman. And you get to make this what I think. You think your time is best spent doing. And to focus on gender equity and reproductive justice on LGBTQ issues. Just enormous admiration for the way that you are using this precious platform to advocate for the issues that we all care so much about. So really, thank you.


Doug Emhoff It’s an honor.


Melissa Murray We are so glad to have you. Please give it up for the first and best second gentleman this country has ever seen. The incomparable gender equity patriot, Doug Emhoff.


Melissa Murray [AD]


Melissa Murray We have to cavil a little, we started this podcast with our writer Delia Littman in 2019, so just five years ago. So we’re coming up on our five year anniversary.


Kate Shaw A happier anniversary than the dog’s anniversary.


Melissa Murray Happier anniversary than the Dobbs anniversary we never imagined when we started doing the podcast, that one day we would be in front of a live audience with the first Second Gentleman of the United States.


Kate Shaw With the actual Vice President of the United States in the crowd.


Melissa Murray That too. I mean.


Kate Shaw This is totally surreal for us. Really quite amazing.


Melissa Murray That’s a good segue. Obviously there are just two of us here because, as you know, our writer, Delia Lippman, is still convalescing from her bicycle accident. So she’s still back in Ann Arbor recovering from her injuries. So she can’t be here tonight. And obviously we miss her immensely. And we love being out here on the road, but we miss having Leo, who would have really loved to be here with all of you. So please, let’s give a big shout out for Leah, whose home like. So go blue. Exactly. Go blue. We needed to find someone who could step in and fill in for us. Like, usually we are a complement of three, and we wanted to have three people for this live show. And the second gentleman was really keen to do it. But obviously they have other things to do tonight. It is date night and we are very pro marriage on this podcast. So as patriots, we told him he could take a bye, but that means we had to find another guest, right? Someone who could step in and fill Leah’s very big shoes. And it’s hard to fill Leah’s shoes, but I think you’ll agree. That our guest host that we found for tonight is the best person to that someone who really comes close to filling those shoes.


Kate Shaw And not only because he has very, very large, feet but he.


Melissa Murray Very large feet.


Kate Shaw Amazing.


Melissa Murray Very large feet.


Kate Shaw He is maybe that is.


Melissa Murray That’s a clue.


Kate Shaw But a dear friend of the pod, New York Times bestselling author of The Shadow Docket, which is now out in paperback. I think still for like another week, the Charles Allen Wright Professor of Federal courts at Austin. But as of July 1st, a professor of law here at Georgetown. Please give it up for DC’s newest resident and tonight’s guest host, commander, Professor Steve Vladeck. Enjoying being back in DC. It sounds like they are enjoying having you back.


Steve Vladeck I’m really sorry that we brought Texas’ weather with us. Our bad. But also, I just, you know, when I heard that you guys are doing a live show, I figured, well, good excuse to move.


Kate Shaw That’s actually the back story.


Steve Vladeck You know, cause effect. Who cares? I mean, it’s a all details, but it also gave me a chance to break out my strict scrutiny t shirt because, you know, you have to wear the band t shirt to the concert. Right.


Melissa Murray So this is your lucky merch that you’re wearing.


Steve Vladeck I’m an OG fan, so I think it fits.


Melissa Murray You’ve been our day one for sure.


Steve Vladeck I just I just remember the time that I think it was after the split decision where I was literally sitting behind a lactation pod in the Raleigh airport. You know, on my laptop, like trying to talk to you guys.


Kate Shaw That was allyship. That really was. Thank you.


Steve Vladeck It was.


Steve Vladeck Listen, I wasn’t sitting in the lactation pod.


Kate Shaw No, because somebody probably needed it to do some lactating. So I’m glad you weren’t there, but thank you. No.


Melissa Murray You’re a mensch. You really are.


Kate Shaw Truly.


Steve Vladeck The things we do for our friends, right?


Kate Shaw So the three of us are going to start off by breaking down a few of the recent opinions that we haven’t had a chance to cover on the show, and then we will be joined. Get excited. That’s the special guest. Just keep coming. So we will be joined a little later in the hour by another special guest, to discuss what was probably this.


Melissa Murray It’s the president. I’m kidding. It’s not.


Kate Shaw At this point they might believe it. Like, I mean, it’s not.


Melissa Murray We could say anything. It’s Martha Ann Alito.


Kate Shaw The tour you know, could be extended.


Steve Vladeck I think they know Taylor Swift is in London, so.


Kate Shaw And we would never do that without Leah. Ever, ever.


Melissa Murray Why do you keep bringing up. This is not what the guest host does.


Kate Shaw But when this to be disclosed, a third guest comes up. We will talk about United States versus Rahimi, a really important case involving the Second Amendment and domestic violence that the court issued last week. First, though, before we get to those opinions, we want to briefly cover a couple of Trump related news items in the courts. First, Trump adviser Steve Bannon filed an emergency application in the Supreme Court on Friday seeking to remain out of prison while pursuing further appeals for his 2022 conviction for defying subpoenas from the January 6th committee.


Melissa Murray Bannon has been. Yes, you can view. That seems right. Bannon has been sentenced to four months in prison, and after losing his most recent appeal in the DC circuit on Thursday night over the dissent of Trump appointee Judge Justin Walker, he is scheduled to begin serving that sentence on July 1st unless the Supreme Court intervenes. His filings position Bannon as a kind of political prisoner, if you will, sort of the Alexander Solzhenitsyn of the right. He claims that the United States government seeks to, quote, imprison him for the four month period immediately preceding the November presidential election. Okay.


Steve Vladeck Math.


Melissa Murray That’s what that is, Steve. Any action here would be an enormous development. As the high priest of the shadow docket. What say you about Bannon’s prospects?


Steve Vladeck You say high priest knight here, Thomas Becket and I start getting very worried.


Melissa Murray Who will rid me of this meddlesome priest.


Steve Vladeck That’s why I’m worried.


Melissa Murray You should be Verona. You should be.


Steve Vladeck So, I mean, I think the short version is, the chances that the court is actually going to grant what is basically an application for release pending appeal are pretty close to zero. That said, you know, pretty close to zero in this day and age mean something different than it used to. But we were in this movie about three months ago, so Peter Navarro tried a very similar tack. And he actually got Chief Justice Roberts in this capacity as circuit justice for the DC circuit to write a short opinion saying, go to jail, but go to jail because we can consider all of your arguments in the normal course while you’re in jail. And I think that if we get anything out of the court, it will be something like that, like, hey, Steve Bannon, maybe you have some interesting arguments, but you know, we’re not going to, you know, go back on. Well, we would never go back on 50 years of precedent. We’re not going to but this is not the court is not in the business of granting bail. And I think that this is not a precedent even this court would want to set.


Kate Shaw It’s I mean, it’s getting into new businesses. So, you know, but I think it sounds from what I’m hearing, as though this is not something you’re actively losing sleep over.


Steve Vladeck No, I mean, of all the things I’m losing sleep over, the Supreme Court granting an emergency application to Steve Bannon is is pretty low on the list, of course. You know, these days, that’s that that list is crowded.


Kate Shaw Yeah, it’s a long list. It’s long list. All right, so here’s another question. Sort of kind of how worried should we be question which is on Friday, Judge Aileen Cannon in the Southern District of Florida heard arguments about whether government as we know it. No, actually, it’s just the appointment of special Counsel Jack Smith. But, you know, with implications for government as we know it was unconstitutional. So that is the question. Was the entire edifice of the appointment of the special counsel and again, maybe some other aspects of government constitutionally suspect.


Melissa Murray Well, before you get to that question, I just want to say, as a Floridian. You don’t get a lot of claps for being a Floridian. So I appreciate you. I grew up in Port Saint Lucie, Florida, which is.


Steve Vladeck  Let’s go Mets.


Melissa Murray Yes. Yes, exactly.


Steve Vladeck Except today, which we won’t talk about.


Melissa Murray Except most days, really. I grew up in Port Saint Lucie, which is right next to Fort Pierce, which is where the courthouse that Judge Cannon sits in is located. And I’m just going to say that all of the Carl Hiaasen books are correct. You got to expect the unexpected when you head down to the Sunshine State. But even I, having grown up there, did not expect what happened on Friday in Judge Cannon’s courtroom. So first weird thing to note. Judge cannon held an oral argument to probe whether the appointment of a special counsel is, in fact, constitutional. This despite the fact that United States versus Nixon and a zillion other cases, including a recent case from the D.C. circuit that the Supreme Court declined to review, appear to have settled this issue, to which I can only say, ma’am, this is not a Wendy’s. No.


Kate Shaw Yeah. So it happens at all. That sort of weird thing one. And weird thing two is sort of how it happens, which is that Judge Cannon brought in outside lawyers who have nothing to do with the case other than they’d filed amicus briefs around this question of constitutionality. And it’s all pretty atypical. And I think we have to note that this is happening on a week when reporting for The New York Times has revealed that when Judge Cannon was assigned the Trump documents case, not one but two of her senior colleagues on the bench interceded strongly, urged her to step aside. In this case, she refused. And what we are seeing is the fallout.


Melissa Murray That was a weird thing, too, right?


Kate Shaw Like there’s there’s.


Melissa Murray When the chief judge is like, girl, I think you should sit this out and you’re like, no, I’ma do it like weird. I think the other weird thing, though, is the fact that she had these outside counsel were really just a monkey arguing in this oral argument. It was like an episode of The Love Boat with special guests. Like, am I dating myself? Yes, it’s fine.


Steve Vladeck It’s not that you’re dating yourself.


Melissa Murray I’m a young person.


Steve Vladeck I’m just. I just I’m just envisioning the amici as characters in The Love Boat.


Melissa Murray Isaac.


Steve Vladeck And I really, really wish that I hadn’t mine, so.


Melissa Murray It was weird.


Steve Vladeck It was weird. Always good when when a court invited amicus stands up and says, I just have seven points to make. It’s a good sign that things are going well. Listen, I think that the thing that we’ve always been wondering about, Judge Cannon’s involvement in this case is it seems like one of two things is true. Either she is totally over her head, or she’s not. And and I think that, you know, or both. Well, okay, fine. But, you know, what it comes down to is, you know, these are, plausible sounding on social media arguments that are completely contraindicated by precedent. The funding issue she’s hearing argument in on Monday is literally what the Supreme Court just resolved against this exact argument. So, you know, I think the question is if she’s just in over her head, she’ll come to her senses and say, okay, fine. It was nice to have this conversation, but I am persuaded that the law is this if she’s really trying to be malicious. There’s one problem with all of these arguments, which is if she accepts any of them, it triggers an appeal. And at that point, it’s no longer her case to control. So I, you know, I understand why folks are worried about these developments. I guess I’m I’m not yet convinced that they spelled doom for the future of this case.


Kate Shaw Right. So this is, of course, in some ways the most legally and factually straightforward of the Trump cases, which is why these, like interminable delays and roadblocks are so uniquely maddening in this case. But I gather what you’re saying, Steve, is that if the question is, should we be worried that this case gets thrown out, the fact that the 11th Circuit has already strongly rebuked her on substantive rulings might suggest that she might be disinclined to rule at all. And so, rather than an adverse ruling, just more slow walking and delay is what we are likely to see here.


Steve Vladeck Yeah. And I think I mean, the reality is that, you know, the 11th circuit, yes, it is fairly conservative, but it’s conservative in a way that I think speaks very well to the median of the current Supreme Court. And so in a way, the conservatives.


Kate Shaw Yes.


Steve Vladeck Yeah. But but the, the conservatives who are closer to the, you know, Democratic appointees than the other conservatives, you know, it happens.


Melissa Murray To be right for political.


Steve Vladeck I was avoiding that phrase. Okay. The upshot of which is just that I think, you know, the 11th circuit is not going to abide any super crazy nonsense and super crazy nonsense, I think would be a very plausible reason at this point to get the case reassigned to another judge. So, you know, again, it goes back to is it just that she’s over her head, or is it that she’s really trying to throw the game? Maybe it’s both. I think how she handles these specific arguments will tell us a lot more.


Kate Shaw Right. And as you mentioned, marathon argument on Friday over the appointment question, there’s this funding question that’s been teed up for argument on Monday. So, you know, things will be ready for her to substantively resolve after that. And we will see what she does. So now back to Scotus. We’re going to start with a couple of immigration cases that were handed down since our last episode. And then we will talk about a couple of criminal procedure cases. And then we will turn to Ricky.


Melissa Murray First up is Department of State versus Munoz. And this wasn’t under the radar, but very important due process case about whether United States citizens have a fundamental liberty interest in living in this country with their spouses that give rise to a procedural due process. Right. And this was a question that was left over in a 2015 case called Carrie versus din. And now the court has resolved that question, and it says that there is no fundamental liberty of U.S. citizens to live in this country with their undocumented spouses.


Kate Shaw Okay. So let me talk briefly through the facts of the case. So Sandra munoz is a U.S. citizen. She is married to an undocumented man from El Salvador. They have a child together. And when her husband tried to adjust his status, which is something you can of course, do if you’re married to a U.S. citizen, he was denied. And initially, the only reason he was given was that there was the consular officer evaluating his application decided he was likely to commit a crime in the future. That’s it. Subsequently, it came out during immigration proceedings that this officer had made a determination that he was likely affiliated with the Ms13 gang and denied him on that basis. This is something that Munoz vigorously disputes. So essentially, she is arguing that her fundamental right to marry again, they’re married, gives her a liberty interest in the marital relationship and in living with her spouse such that the government has to provide some process before depriving her of that liberty. And just to be clear, she is not saying she has an absolute right to live in the United States with her non-citizen spouse, or for him to live here. Just that there’s a liberty interest that the Constitution protects, which means that when the government deprives you of it, they have to produce some process, give some reasons before affecting that deprivation.


Steve Vladeck And it’s just I mean, it’s fascinating to think of how the court would have answered that question in 2015. Instead, right. What we got was A623 result with a five justice majority opinion by Justice Barrett, joined by the chief justice and Justices Thomas, Alito and Kavanaugh. Justice Gorsuch wrote a very narrow concurrence in the judgment. And the majority held that a citizen does not have a fundamental liberty interest in her non-citizen spouse being committed to the country. The court cited this doctrine of concealed or non review ability, the idea that in general, State Department visa determinations are not supposed to be subject to judicial review, and said that the narrow exception the court had previously recognized, including in Carrie versus did, didn’t apply. And that was, of course, obviously the sort of the scope of the fight, right, between the majority and the dissenters. Justice Gorsuch said, listen, you know, we don’t have to reach this question in this case because here there actually was due process, according to him. Right.


Kate Shaw He basically said that second set of explanations about supposed gang affiliation. That was a reason. So there was a process that satisfied the Constitution’s requirements.


Steve Vladeck Which at the very least would have left the question for another, they.


Kate Shaw Could have easily done like this is such an aggressive rejection of an argument about a fundamental liberty that never needed to be decided.


Steve Vladeck At all. Are you saying that the court is unnecessarily going out of its way to decide things on broader terms than it needs to?


Kate Shaw I think I think I might be.


Melissa Murray Well. Let’s probe that. This is a family law case. It is about the right to marriage. Steve mentioned 2015. That obviously was the year that the court decided Obergefell versus Hodges, which found that the right to marry includes a right to marry a person of the same sex, and that there are certain constellation of rights and privileges that flow from the marital relation. This is obviously a decision that was implicated in Justice Thomas’s concurrence to Dobbs, and he sort of called it into question and invited future litigation. I think this is the beginning of that future litigation, and I found it really notable in this decision that in trying to determine whether there was a fundamental liberty interest at stake, this court used the logic and analysis that was enunciated in Washington versus Clarksburg. Right. So a much earlier case, a case that later was reprised in the discussion of fundamental rights in Dobbs, but very different from the fundamental rights analysis that the court undertook in Obergefell, where it said determining whether there was a right to same sex marriage required thinking about how marriage had been dynamic and changed over time. Like women had once been subordinate to their husbands in marriage, but now they were equal partners. Marriage was once confined to people of the same race, but now it could be interracial. That marriage had changed over time, and so the right to marriage could change and still be fundamental. That’s not the logic of this decision. They’re instead going back to Blacksburg. And this idea that did this right exist before in our history. Is it part of the history and tradition? And that is discussed. And the court says, no, we’ve never had a history or tradition of recognizing some fundamental liberty to reside with your undocumented spouse. And when you frame the question like that, well, obviously, you know where this ends up. And in that sense, it really recalls the court’s disposition in 1986 of Bowers versus Hardwick, where Michael Bowers said, I have a right to privacy. And the court said, no, actually, what you’re seeking is a right to engage in same sex sex, which we don’t recognize.


Steve Vladeck And then it’s all sort of tying up, right? This question of how narrowly is the court going to look at these kinds of implied men rights going forward, all while the court is having this battle, even within the six conservative justices, about how they’re supposed to do history and tradition. Clarksburg sort of ratchets that that up to level nine.


Kate Shaw Yeah. And Justice Sotomayor’s dissent, like, blares the alarm about all of this. Right. So the fact that Clarksburg and this kind of Bowers esque logic are really what the court is being guided by the fact that the decision doesn’t mention Obergefell, right. Like this is a this is a the court’s most recent and really important pronouncement about marriage. It is not cited. And I think that.


Melissa Murray Because it’s going to be abandoned.


Kate Shaw I mean, that’s you know, Sotomayor really does seem to suggest that it is both the conspicuous omission of a citation to Obergefell, but also the conspicuously different methodology that the court uses to decide whether there’s a fundamental liberty interest here, that really you put that together with Dobbs. And even though Dobbs said, as we obviously just talked about with the second gentleman, Dobbs says it is not touching anything but abortion. It’s not about anything but abortion. That was never remotely persuasive, even on its own terms. But for any doubters, this opinion makes crystal clear that other liberties the Constitution has been understood to protect are in real danger. So I think that she is very much, again sounding the alarm about other rights that are now in the crosshairs. And she’s also specifically focused as to the impact of this case, about the fact that same sex couples are going to be the most hurt by this decision, and same sex binational couples, right. So if you have a U.S. citizen spouse and a non-U.S. citizen spouse, and there’s no right for the U.S. citizen spouse that the Constitution recognizes to live here with their spouse, their spouses home country may not recognize their marriage at all. And that might mean there is literally no country on this planet Earth they can lawfully reside as married couple in, and that is who is going to be harmed by this decision. So in, I think, classic Sotomayor fashion, she both is very focused on the on the ground impact of this ruling, but is also stepping back to say this is about much more than binational couples and immigration law. This is really about our most cherished constitutional liberties.


Melissa Murray Case in point. The bottom line in this case, is that Miss Munoz can either live in the United States with her child, but without her husband, or she and her child can return with her husband to El Salvador. So let’s give it up for the party of family values, folks. Great. All right. That’s that’s exactly right. Okay.


Steve Vladeck So that’s the party of national security, on the other hand.


Melissa Murray Yeah. Next up is a set of consolidated cases. Campos Chavez versus Garland and Garland versus Singh. So, Steve, why don’t you tell us about these two cases?


Steve Vladeck A rare win for the Fifth Circuit in the Supreme Court. So these were, two consolidated cases, actually involving three immigrants. That required the court to consider, in the context of removal proceedings, whether the government has failed to provide sufficient notice in circumstances where it doesn’t include all of the information about the hearing in the original notice to appear, the NTA, the big letter you get saying, hey, we’re deported from this country. Because what’s been happening is the government has not been providing that information to us to appear. And instead of sending like this follow up, you know, JV letter like, oh, hey, you’re hearing, by the way, is like tomorrow. And the question is whether the second letters notice suffices to cure the defect in the first letters. Notice so that the government can’t be, you know, when the removal proceeding happens in absentia, literally without the person there, can that person then object after the fact to the fact that they didn’t receive notice? So, you know, you would think that textualist and those who are interested in fundamental fairness and those are interested in notice and things like that would actually think that if the notice to appear is supposed to be a notice telling you when to appear, if it didn’t tell you when to appear, it would be defective in an opinion for a five justice majority, though, Justice Alito concluded that because the noncitizens received a proper secondary notice for the hearings they missed and at which they were ordered removed, they can’t seek rescission of their in absentia removal orders on the basis of the defective original notice. So even though the government totally screwed up, it’s filed.


Melissa Murray Alito has spoken. There it is. That’s the majority opinion. Justice Jackson wrote a dissenting opinion in which Justices Sotomayor, Kagan, and Gorsuch joined. Surprising me, too. In that dissent, Justice Jackson, unsurprisingly took issue with the majority’s thin understanding of textualism. You know, the whole point of Textualism is that you read.


Steve Vladeck I knew we forgot something.


Melissa Murray So she explained that the government had actually been failing to comply with these statutory requirements for some time. And indeed, in two cases near Chavez versus Garland from 2021 and Pereira versus sessions from 2018. The court actually told the government that they had to comply, and the government continued to stay on its books and now its Justice Jackson notes. The court is blessing that recalcitrance. And there we have it.


Kate Shaw All right. So we’re going to briefly now cover two criminal cases, the first of which is Airlink versus United States. That’s a case about the Armed Career Criminal Act. This is where.


Steve Vladeck Are we allowed to talk about?


Melissa Murray No.


Kate Shaw We can then we can say there was an opinion. This is Leah’s métier. And so we’re not going to steal her thunder. We will give her ample time in the term recap to talk about it. Maybe we will actually just. You’re right. Steve, I think you know what? We’re just gonna leave it there. This is an act case, and let’s let’s. Oh, the crowd wants ACCA.


Melissa Murray Whoa whoa whoa. Okay. All right.


Steve Vladeck ACCA-scuse me.


Melissa Murray Let’s just.


Nice. That was good.


Steve Vladeck The. C’mon I’m sorry.


Melissa Murray Okay. All right.


Kate Shaw Karen wasn’t sure about you making jokes, but I think that actually, that was actually funny. Yeah, I think you did. Well, Karen, he did good.


Melissa Murray All right, the question here is whether a jury has to determine whether the defendant’s prior conviction offenses were committed on different occasions, or whether that inquiry falls within what is known as the Armendariz Torres exception. Right. So there’s an exception for this. And interestingly, the United States here supported the petitioner’s argument that this was an inquiry for a jury. So the court appointed amicus defended the judgment below and argued that there, in fact, is no requirement that a jury determine that the ACA qualifying offenses were committed on different occasions and therefore the higher sentence was warranted. But in a 6 to 3 decision written by Justice Gorsuch in which the Chief Justice Thomas Sotomayor, Kagan, and Barrett joined, the court held that the Fifth and Sixth Amendments do require a unanimous jury to make the determination beyond a reasonable doubt, that a defendant’s past offenses were committed on separate occasions for purposes of the ACA escalation. So that’s where that stands.


Kate Shaw So there are some separate concurrence as that same kind of dissentee. And some.


Melissa Murray Some very consensus driven.


Kate Shaw Some internal splits within the conservative wing shaping up. We will leave the rest of this for Leah to dissect on a future.


Steve Vladeck And also Justice Jackson’s interest in. Yeah. Move toward taking Amanda towards this one.


Kate Shaw So she. So this is what would be sort of reinstituting the judge and disempowering the jury in this one way. That is potentially surprising. Although as a long term former district court judge, I’m sure she knows where of she speaks. And so so I do think that there are some, some interesting kind of lines developing on this issue. It’s kind of to be and the court always has a lot of active cases. So I’m sure there will be more opportunities for for these kind of lines to be further developed. Okay. Last case before we turn to Rahimi Smith versus Arizona. A case about the Sixth Amendment’s Confrontation Clause, which provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against them. So in a series of cases from really the 2000s, the court has made clear that the clause ensures prosecutors cannot use testimony against a defendant unless the defendant has an opportunity to subject that testimony to cross-examination, and that includes in the context of forensic evidence. So the question here is whether that principle applies in this case, in which you have an expert who testifies in a drug case using drug analysis performed by someone else, and that someone else did not testify and so was not subject to cross-examination. Court concludes here that the cross-examination right does apply in a case like this one, but sends this case back so that the state courts can determine whether the absent analyst’s statements are qualified as testimonial for purposes of the Confrontation Clause. This was a Kagan opinion. It was like a lot of recent opinions, kind of unanimous. It was unanimous and result, lots of concurrence and partial concurrence as to various aspects of the reasoning.


Steve Vladeck One really sort of interesting to note about Smith really quickly is, you might know this just from the caption, Smith versus Arizona. It’s a direct appeal in the criminal case. This is something that the court has stopped doing with regard to state courts. I mean, this is one of them, two, this term from state courts. There’s only one last term. And so just when we think about the court in not just six, three ideological lines, one of the things that’s really disappeared from the docket in the last few years is these kinds of bread and butter, crim pro constitutional procedure issues, where the court doesn’t necessarily split the way we would expect.


Melissa Murray That’s a really great observation because to layer on to that, most of the criminal cases are substantive criminal law cases like statutory interpretation, not these Fourth Amendment, Fifth Amendment crim pro cases. And that’s a real change on the docket.


Steve Vladeck It’s a huge change. And it’s one that’s not just sort of these cases disappear. It also means the court is making less law in the fourth, fifth and sixth moments spaces, which has massive implications for criminal defendants, for post-conviction relief, for civil rights. Plaintiffs.


Kate Shaw So that is most of not all of but most of the opinions that we have gotten in the last couple of weeks. Some bad, some good, not that much good. But there’s some good lines, less cases, less bad, some really bad, some less bad, some ugly. And there is obviously much, much more to come because the court is really just getting started, even though it’s almost the end of June. There are a ton of huge decisions left to come. Not a ton of time, but a lot of, you know, bad decisions that I think we will get between now and the beginning of July.




Melissa Murray So as we head into a bad decision season. Who better to discuss the court and its most recent decisions with us than someone who’s actually been on the receiving end of one of the worst decisions the court has ever made? We have another special guest here tonight. And like Doug Emhoff, he needs no introduction. He was the attorney general for President Barack Obama, serving as the first African-American attorney general. Oh, here he comes. I had a whole wind up for you.


Kate Shaw I know, but that was an entrance. Oh, my.


Melissa Murray Hold on. Okay. He’s the first black attorney general in this country’s history. And as attorney general, he was known for his stalwart defense of voting rights. And that commitment to voting rights endures to this day. He is also now the chairman of the National Democratic Redistricting Committee and the author of our Unfinished March The Violent Past and Imperiled Future of the vote A history, a crisis, a plan. Attorney General. Eric Holder.


Kate Shaw I love the sunglasses. You can keep on off. Whatever.


Melissa Murray You can wear them the whole time.


Kate Shaw However you’re most comfortable.


Eric Holder Well, you had that surprise with the Vice president. I thought, to come out and make people think Stevie Wonder is coming.


Kate Shaw They’re pretty excited about you. All right. So we just take through some recent cases, but we obviously saved a couple to discuss with you. And we’re going to start with those cases. We want your take on those. But then we’re going to ask you to talk a little bit about your recent work. And we were going to end on a lighter note, but we’ll.


Melissa Murray With a drinking game.


Kate Shaw That’s right. We just changed it up. It’s going to be a drinking game now.


Eric Holder Alright, alcohol?


Melissa Murray Yes.


Kate Shaw Is that all right?


Melissa Murray Obviously.


Eric Holder Yeah. All right. This is gonna be more fun than I thought.


Kate Shaw When we got in. And we were like, we got to do a drinking game.


Eric Holder We should probably drink first and then talk.


Steve Vladeck Some of us did.


Melissa Murray It was him, not me. You know, I’m on my own steam tonight. Okay. So, General Holder, I don’t know if you know this, but tomorrow, June 23rd, is Justice Clarence Thomas’ birthday? He will be 76 years old. And listeners, you will remember that two years ago, on June 23rd, 2022, Justice Thomas gave himself and the NRA the best birthday present ever an expanded Second Amendment right to keep and bear arms, specifically in nice. Cerpa versus Bruen. Justice Thomas, writing for a 6 to 3 court, struck down New York’s concealed carry permitting regime on the ground that it was inconsistent with the history and tradition of firearm regulation in the United States. Now, in the wake of Bruen, we learned that not every gift is as welcomed as a $2,000 photo album or an all expenses paid trip to the Bohemian Grove. Lower courts, in particular, have really struggled with what to do with this gift of Bruen and how to apply. Bruens history and tradition test, and many courts have actually struck down laws that have been on the books forever. On the view that Bruen requires those laws to be upheld only if they have a true founding era analog.


Kate Shaw So this week, just two years shy of Bruens second anniversary, an 8 to 1 majority of the court decided, I think, that it was time to return Justice Thomas’s gift to himself and the NRA. Or, you know, maybe to exchange it for something less kind of catastrophically destructive to a society that is ravaged by gun violence. Is that what happened?


Melissa Murray I’m not sure. It’s not a gift exchange or just a price adjustment.


Kate Shaw Okay, okay. Good point. Okay.


Melissa Murray I mean.


Steve Vladeck Store credit.


Melissa Murray Something it’s it’s not a total exchange.


Kate Shaw I don’t care what that credit gets spent on. God. All right. Well, whatever it is, John Roberts was the author of the opinion. Did seem to suggest that Bruen actually was a perfect gift. Like it was. There’s nothing wrong with Bruen, but the problem was that lower courts didn’t understand how to use the gift appropriately. So because of that, this led to decisions invalidating things like bans on guns at summer camps and the subway. And this case, that’s Roberts narrative in the Rahimi majority. Do not let that bait and switch fool you. The problem was not with the lower courts misunderstanding, but the fact that the decision in Bruen was actually outrageous and indefensible. It’s it’s not also just that it’s it was messy and hard to apply. It was fundamentally, deeply wrong. And one of the reasons it was so wrong was because the chief justice assigned it to Justice Thomas.


Melissa Murray Right. So that was a problem of his own making.


Kate Shaw He’s not a person known for judicial restraint.


Melissa Murray Don’t want chaos, don’t give the opinion to a chaos agent.


Kate Shaw Correct. And yet Roberts did. And, you know, as Jodi Kantor in The Times reported, also in the last couple of weeks, Roberts joined the Bruen opinion and he joined it in full only after a long delay, only after requesting some changes. But he did join it in full. So he did, you know, basically pick out the gift. And so there is the like broke it, own it I think kind of principle at work here. But so I just all this to say, the revisionist history in Rahimi, which is that Bruen was fine and that the lower courts of the problem, I think, do not buy that.


Melissa Murray Well, and this revisionist history is something of a tradition with this court. I’m just gonna say. All right, so back to the attempted gift exchange price adjustment. So the facts of this case are obviously rooted in this question from United States versus Rahimi, in which Zaki Rahimi, who, full disclosure, is not a nice guy, challenged a federal law 18 U.S.C. 920 2G8, which disarms those who are subject to domestic violence restraining order. And he challenged it on the view that it violated the Second Amendment. Initially, the Fifth Circuit had taken this case and, you know, had held that the law was fine. But once Bruen came out, they then re heard it. And the Fifth Circuit, like a bunch of goblins, gremlins who ate after midnight got wet, decided he was going to fuck shit up. And so they wrote this opinion in which they’re heard. Rahim’s case determined that he was right, the law was invalid, and it was invalid because it lacked a founding era historical twin violating the Second Amendment. And the case was appealed because, of course it is. And the court basically tried to put the brakes on this, like really tried to tack back from where they were just two years ago. And that by itself, I think is really meaningful.


Kate Shaw So we’re going to I want to get General Holder’s response to this movie. First, let’s just lay out how the court tried in this 8 to 1 decision to justify reversing the Fifth Circuit and sort of what it did to the ruin test. What, Steve, give us a little bit of a breakdown. What did what did Roberts say? And not that it was convincing, but how did he try to explain the disposition of the case? And then we want to get the general reaction.


Steve Vladeck I mean, we should note it’s never a good sign when there are eight justices in the majority, and between them they write six opinions. But so, so the majority opinion. But it has Roberts. It has this line that was clearly meant to be quoted by everyone, that the court Second Amendment cases were not meant to suggest, quote, a law trapped in amber, unquote. It’s like, no, but a firearm trapped in amber the second time. And it says permits more than just those regulations identical to ones that could be found in 1791, that really the question Bruen wants to ask is, quote, whether the challenged regulation is consistent with the principles that underpin our regulatory tradition, unquote. Oh, yes. Because that will be clearer to everyone. And it says using the proper test, it’s clear that the spatial challenge to 920 now, you know, we don’t decide any harder cases. And there’s one thing that drives me absolutely bananas about this. The whole sort of logic of Justice Scalia’s majority opinion in Heller was that the court could dispense with that, you know, prefatory clause in the Second Amendment because everything was so clear. And now you have the chief justice saying, well, you know, things aren’t always clear, but that’s okay. Right. So if anything, like, yes, the court has said we’re not actually committed to the suicide pact, that you might have thought we were in Bruen. But the problem is that the court hasn’t replaced Bruen with anything especially more objective or, you know, likely to actually lead to the upholding of common sense gun regulations.


Kate Shaw A very, very narrow opinion. Okay. So, General Holder, are you breathing a sigh of relief? Does it seem that sanity has returned to the Supreme Court’s Second Amendment jurisprudence? Is this a new and revamped test for assessing gun regulations, or is this just window dressing? And basically Bruen remains the the governing test?


Eric Holder Oh no. This is a definite sigh of relief case. But it doesn’t mean anything has fundamentally changed. I mean, we’re all focused on on Bruen, I think, which was just an abomination. But the Heller case was wrongly decided, you know, I mean, and so that’s. You know the prefatory language, you mean? Well, how do you deal with this well-regulated militia stuff? You know. What does that mean? You know.


Melissa Murray Surplusage. You know.


Eric Holder Yeah.


Melissa Murray Doesn’t mean anything.


Eric Holder The founders know everything. Why they put it in there, you know, Justice Scalia, but whatever. All right. So but I my my guess is that the facts in Rahimi are just so egregious, so egregious that they had to do something along the lines that they did. But I think it’s interesting, as you say. All right. Everybody agrees in the result 8 to 1. And we’ll get to Thomas in a minute there, 8 to 1 with six opinions. But that doesn’t mean, if you get another gun case, you know, next term, term after that, they will get closer to Bruen than they will to, and common sense gun legislation, is still very much at risk. Now, the question is it’s 8 to 1. It’s like, what planet is Thomas on? I mean, given given those facts, even as the author of Bruen, I would have been doing all that I could to come up with a way in which I could say Bruen is still a good law and try to harmonize a sane result with that insane decision. I mean, it’s, it’s it is breathtaking to me the lengths to which he will go for things that are, I think, factually wrong, legally wrong, morally repugnant and and dangerous, you know.


Melissa Murray I’ll say this for him. He’s committed. Right? He’s really committed.


Eric Holder Jack Nicholson was committed in One Flew Over the Cuckoo’s Nest.


Melissa Murray These millennials don’t know what that is.


Eric Holder Check it out. Good movie.


Melissa Murray So did you notice in this opinion that the majority seemed to be rebuking the Fifth Circuit? Like, you guys are really out there, and it warms my heart to see the chief justice right in here. Jim ho, please come to the principal’s office.


Steve Vladeck And well. And Corey Wilson, who now had two majority opinions reversed by, I think, a combined vote of I think what, 15 to 3. Right. So we still have a lot to come in the next week. And, you know, two of those are major Fifth Circuit cases, right? The net choice social media case, actually three of them as about the SEC. Also murthy versus Missouri about social media. Jawboning. You know, it’s possible the court actually sighs with the Fifth Circuit in one of them. But this is going to mean that, you know, the courts won’t have had 11 cases from the Fifth Circuit this term. That number itself is crazy. The court is reversing the Fifth Circuit in ideologically charged cases. And it’s reversed in the Fifth Circuit, not 5 to 4 or 6 to 3. And that was last term. Story two. And so for, you know, folks complain a lot about the Ninth Circuit is bad. The Ninth Circuit so far is five and five this term. I can’t do math, but I think that’s even the fifth Circuit is is now consistently getting reversed more than any other appeals court in the country and not in these random technical cases, but in cases where you would expect this kind of alignment. It’s nice to see the court say a little. I think the court probably needs to say some more, like, here’s what article three stand and doctrine is.


Eric Holder Well, but I mean, you know, you what you’ve got is an out of control Supreme Court telling a rogue fifth Circuit they’re going too far. I mean, think about that. This United States Supreme Court, a little out of control, way out of control is telling a circuit court you’re worse than we are.


Melissa Murray And the Fifth Circuit’s like I learned it from watching you Dad.


Kate Shaw Yeah, yeah. I want to quote Sherrilyn Ifill on cable news last night, said a version of this which I thought was so correct, which is what when the Supreme Court rebukes the Fifth Circuit. Like, that’s good and important in a case like this. But it is kind of like punishing the child that you spoiled, right? Like they’re acting out because of the way you have acted yourself. So it’s good that they’re now actually responding appropriately. But they created the conditions for many of these Fifth Circuit.


Steve Vladeck And it’s worse than that in one respect, which is then you get people who are inclined to defend the court in outlets like Politico, right, saying, look, the court is not this crazy six three conservative thing. And it’s like, well, if you’re not going to account for the court choosing the cases and choosing cases where the Fifth Circuit has gone totally off the reservation, then you can make the numbers, say whatever you want them to. I mean, the reality is, you know, this is a court that now for, I think, what, 7 or 8 times in the last two terms has had to say the Fifth Circuit. We spoiled you too much. Take back the lollipop.


Melissa Murray Yeah.


Kate Shaw We should talk about the concurrence, because there’s a lot of important concurrence as we don’t talk about all of them, but let’s take through a few of them. So Justice Sotomayor concurs just for herself and Justice Kagan, really powerful writing. She’s still obviously livid about Bruen and the history and tradition ties. She’s not going to let bygones be bygones. She agrees here, obviously, that the Fifth Circuit was wrong and that this domestic violence prohibition is perfectly constitutional under even under Bruen. But she is not over Bruen by any means. I will just read one quote, which is, she says, a rigid adherence to history, particularly history, predating the inclusion of women and people of color as full members of the polity. Impoverishes constitutional interpretation and hamstrings our democracy.


Melissa Murray Which I think is really important. I feel like we say that on this podcast.


Kate Shaw It did. It did sound like we have been striking a similar note. Yeah.


Melissa Murray Do you think she listens? I thought maybe I made.


Kate Shaw Some clerks too. I don’t know if she’s a podcast listener. It’s hard for me to.


Melissa Murray I don’t think she is. Okay, well, maybe it’s getting.


Kate Shaw It’s getting into chambers somehow.


Steve Vladeck If the over under. For how many justices have listened to strict scrutiny, a 0.5. I’m betting the over. I’m just saying that now.


Melissa Murray That’s why you’re here. Okay. All right.


Kate Shaw Okay. Briefly. Gorsuch and Barrett each submitted a separate concurrence. They sounded similar themes. They continue to profess fidelity to originalism as the one true method. There’s this introduction of this one, really, I think dumb new label, original. This is what Barrett offers. She says, maybe this is what we’re really doing, because this will be what helpful and clarifying original contours history.


Melissa Murray What is that.


Steve Vladeck Coming soon to law review articles near you. Original contours. Originalism.


Melissa Murray Anyway.


It’s like strip mall liposuction for your originalism.


Kate Shaw I work in the contours. All right. I was thinking more like, I don’t know, like or make up something, but yeah, some something contour.


Steve Vladeck But if you have to have like 37 different types of words in front of originalism, I think that tells you that originalism isn’t one thing.


Kate Shaw It definitely isn’t.


Eric Holder Right. They’re just making this shit up.


Kate Shaw Yes.


Eric Holder I  mean, come on. I mean, and we can’t. You know, we can’t give this more credence than it deserves. I mean, you know, as if they they create a doctrine that’s got no real basis in American history, and then they don’t follow it. I mean, they do whatever it is they want to do. They’re not they’re strict constructionist. They’re originalists when it suits them. That’s the cover that they use. But if originalism takes you in the wrong direction, well, we’ll do something else. You know, this is a court that’s not necessarily guided by by principle, by precedent, but by personnel. You know, that’s the that’s the deal. That’s the reality that I think we have to confront. And one of the reasons why the court’s got to be reformed.


Melissa Murray You speak in my love language? Okay.


Melissa Murray Speaking of personnel, let’s go to another concurrence, this time from our favorite basketball coach slash Justice Brett Kavanaugh. He began by extolling the virtues of history.


Melissa Murray Coach K tells us that history.


Melissa Murray Unlike policy preferences, is actually neutral and objective. Except it’s not right. So historians, actual historians who have trained and gotten PhDs will tell you that historians are making value judgments all the time about what facts to overlook, what facts to prioritize, what archives to look at. There’s a whole debate among historians about archival neutrality. But again, you would have to read to know this. And so it doesn’t make it in, so there’s that serious burn. Also, there’s a big part of the concurrence that seems to be a rehash of Kavanaugh’s 2019 concurrence and Ramos, where he sort of told us all about story decisis and seemed to rehash a lot of the factors from Planned Parenthood versus Casey, which he would then, a few years later, go on to overrule. Which is interesting this time, though, in this concurrence, he left out the bullet points and he actually wrote sentences, so that was good. But it is a bit odd to write a whole 20 pages about story decisis. After being one of the guys who overruled Roe versus Wade and Planned Parenthood.


Melissa Murray Yeah.


Eric Holder Super precedents. Don’t worry, Senator Collins, I got this. I hear you.


Melissa Murray Susan, Susan, Susan, Susan got tooken. She did, she did. Begonia for all.


Kate Shaw Okay. So there’s so as Melissa was saying, there is this long meditation on story decisis. There are no bullet points, but there is this weird list that I must mention. So this is again, back to the his separate re-uniting. So he has this weird point that he’s making, which is that the Constitution has a lot of things in it.


Melissa Murray And he has like along.


Eric Holder So many things. So many.


Melissa Murray Things literally. That’s what the everywhere you look, there’s things everywhere.


Kate Shaw Literally, I’m going to do a dramatic reading, which is not going to be as good as Melissa’s dramatic readings. But, you know, indulge me. It’s like weird data is poetry. Okay, here it goes. This is a literal quote. Two houses of Congress House elected every two years. Appropriations are made by law, by commercialism and presentment. The presidential veto, the presidential pardon. I mean, it goes on.


Melissa Murray TYou should have worn the sunglasses for this and gotten a bongo drum.


Kate Shaw I should have.


Melissa Murray That would have been great.


Kate Shaw Next time. You would have done this better. Sunglasses. I don’t know if the general will let me borrow his sunglasses. And I think we meant. All right. Here we go.Oh, I like this.


Eric Holder That’s what I’m talking about.


Kate Shaw I think I’m leaving here with these tonight, I like. All right, let me read two more. The president serves a four year term. A maximum of two elected terms for a president. I mean, he just, like, is reading, but they’re not actually sentences from the Constitution. So he is.


Melissa Murray Baby steps. Baby steps. Kate.


Kate Shaw It’s like, really strangely, like. I don’t know how to describe that. It’s like bro-ed out prose that is like his summation of the constitution. And he’s using this to say, like, text is important. But his version of the text isn’t actually anything that’s explicitly in the Constitution. It’s really weird. Okay, so there’s that. And then there is a footnote that Leah referred to in our group chat as a real sausage fest of a footnote, which is how the group chats typically go on decision days. But it’s like a string site of an array of respected scholars, all of whom are men.


Melissa Murray Very telling for America’s favorite father of daughters.


Kate Shaw So that’s that’s that’s Kavanaugh. Now I think we have to talk about the Thomas dissent.


Melissa Murray Thomas dissent. No wait. Do you want to say something?


Steve Vladeck I just want to say one thing about the footnote, which is I mean, it’s a footnote. It’s like, look, I can cite 22 law review articles just like a one. L like, I mean. I mean, Gorsuch, Justice Gorsuch did the same thing in West Virginia versus EPA. It’s like y’all like naming law review articles does not prove that you read them. Ask any law review editor.


Melissa Murray Can we do the Thomas.


Kate Shaw Let’s do Thomas descent? And then we get that.


Melissa Murray All right, all right. So this dissent is a lot. Right? So it reads like someone who invited all of his friends to enlist shrimp at Red lobster. And then the friends get there and the shrimp comes out and the friends are like, oh, I’m not eating. I’m on ozempic. And Thomas is totally like, bitch, I thought we were doing this.


Kate Shaw Right. I fell like thats. Yeah, I mean, I don’t. I feel like the general sort of said it all. As to the Thomas dissent. There’s not. I mean, it is a wild and unhinged argument. It suggests that surely laws where you, like, put up money to say you wouldn’t do something like fire a gun is like literally an analog to that is the only way to try to regulate the possession of firearms by individuals like Mr. Ricky. Me like that is a is an actual argument that is made in this dissent, and it’s not surprising that no one else is on board. And this, I think, is one place I don’t know. We talk a lot about how the lone Thomas dissents and concurrence is don’t stay lone for long. I actually think this might be the rare exception. I’m not sure anyone else is on board with this. Sure, these are all we can do to regulate dangerous guns.


Melissa Murray I don’t know, this is uncharacteristic. I’m going to defend Justice Thomas.


Kate Shaw Oh.


Melissa Murray Stop! Stop.


Melissa Murray So spicy. It’s so spicy right here. Like


Eric Holder For the record, I’m not a part of this part.


Melissa Murray I’m all right. General holder only joins in part one and two. Okay. Hear me out. He’s not wrong. Because if you were being faithful to what he wrote in Bruen, he’s actually right. It’s the majority who’s rewriting Bruen, but not calling it a rewriting or overruling of Bruen or whatever it is. And that’s what’s making him so pissed. Like you told me you were here to eat shrimp. Here is the shrimp. Eat the shrimp. So what did you make of this dissent?


Eric Holder I mean, when I was the United States Attorney here in Washington, DC, we started a domestic violence unit to deal with the problem of battered women, and women who were subject to all kinds of physical abuse and his opinion, whatever you want to call it. His tome doesn’t deal with the reality of the situation that people in those situations must confront. You know, this notion of you got to have due process, and it’s kind of like, I mean, hey, man, we’re talking about people who have been found to be a danger to other people. And domestic violence stuff is way worse than all kinds of other violent crimes that occur. The things that drive them, the consistency, the perseverance of people want to do harm to others. And he’s like, yeah, what? Give him a gun. What could possibly go? What could possibly go wrong? You know, now, I don’t think again that we should see in the majority opinions or whatever, you know, feel too good about that. I think it’s going to be a situational adherence to ruin. You know, this is one group can’t do it here. We don’t want the shrimp here next Thursday. That shrimp. Well, that shrimp looks good. Yeah. We’ll eat that shrimp then. Different case. We’ll take the shrimp.


Melissa Murray So the person who wants all the shrimp off the table is Justice Jackson. And. So she writes a concurrence here, and she begins by underscoring that her name’s Bennett and she’s not in it like she wasn’t here for this crazy stuff, and she’s just trying to clean up the mess. Like, I mean, this concurrence is basically reading brewin and indirectly, actually, directly. Justice Thomas for filth. So here’s one part, the message that lower courts are sending now in Second Amendment cases could not be clearer. They say there is little method to Bruens madness. Zing! She then goes on to say, and this is in reference to what preceded Bruen. This discourse is striking when compared to the relative harmony that had developed prior to Bruen. Like you, sir, are no Justice Scalia. Even he wasn’t this crazy. She then goes on to say, but it is becoming increasingly obvious there are miles to go. Meanwhile, the rule of law suffers. That ideal key to our democracy thrives on legal standards that fosters stability, facilitate consistency, and promote predictability. So far, Bruens history focus test ticks none of those boxes.


Kate Shaw All right. So let’s pivot at this point. We’ve covered a lot of we’ve covered a lot of Scotus news. We have both Rahimi which again sort of the rare piece of good news in narrow outcome. Still very ominous in terms of the court’s approach broadly speaking, to the Second Amendment. We also had the Cargill case, in which the Supreme Court, not in a Second Amendment case, but in a statutory interpretation case, struck down this ETF prohibition on bump stocks in another act. It felt like real judicial kind of nihilism, and suggested very clearly that the court is an enormous obstacle to meaningful gun regulation. So. So that is out there. And I don’t know, general, if you wanted to talk about Cargill.


Eric Holder And I think I’d say if y’all have not done it, get a video and look at how a bump stock works. You know, the court talked about you still have to move your finger or something that no, you don’t. You know, you don’t. You get yourself an AR 15, put a bump stock on it, put your finger like this. And the gun does all the work and what it can do. We saw in Las Vegas and that’s why we can’t get too excited about, you know Rahim you I mean that. Yep. Right. Result six opinions. But Cargill is really kind of an indicator, a greater indication of where this court’s going to be when it comes to to guns.


Melissa Murray So what did you think of all those drawings in Cargill? There were like, all those. You know, it was like gun porn, like textualism.


Kate Shaw I thought it was like an anatomical textbook. That’s how it looked to me.


Melissa Murray Like gun porn.


Kate Shaw Yeah, yeah. All right.


Melissa Murray Yeah.


Kate Shaw And a gif. There was a GIF in a footnote that took you to one of these videos about how these bump stocks operate, but but it was this hyper technical, right, like examination of the operation as opposed to what it actually means to interact with the gun. Right.


Eric Holder And what the gun can do. You know.


Melissa Murray Well so I’m bringing up the drawings because we recently learned that the drawings were basically lifted from an amicus brief that was filed by the Firearms Policy Coalition, which is a nonprofit that describes itself as the nation’s preeminent legal program focused on the right to keep and bear arms. And it seems like even though it’s relatively a newcomer, it’s more strident than the NRA. And what also seems interesting is that they have a beef with you, General Holder. You are living rent free in their heads because they have many blog posts.


Eric Holder And proud to be there.


Melissa Murray Put down your welcome mat. They’ve got blog post about you, they highlight press about you, and they’re basically touting this idea that there’s nothing the government can do about bump stocks under any administration. Certainly under the Obama administration where you were AG and now going forward.


Eric Holder No, I mean, you know, if you look at again, will you see what a bump stock can do? It really does convert a semiautomatic gun into basically a machine gun. I mean, that’s just the fact the drawings are by, you know, people who want to get to that result are not consistent. I’ve talked to folks at ATF, talk to lawyers who do this, and it’s kind of like, no, that those drawings are not necessarily accurate. All of the things that I think underpin the Cargill decision are simply inconsistent with the facts and the reality of what a bump stock does. So we’re going to have these nut cases, you know, who come out there and will basically lie basically. I mean they’re lying. It’s not different interpretations. They’re just lying about what, how these, these devices on semiautomatic weapons actually operate.


Kate Shaw And right now, we have a receptive court to the arguments that those kinds of interests are going to make. And so maybe this is a good place to pivot. You referenced reforming the court. Since you have been out of government, you have been one of the people doing on the ground work, repairing some of the damage the court has done, both from the perspective of the democratic process, but also the court as an institution. So we want to take a couple of minutes just to get you to talk about some of that right now and actually maybe to start with the court and then maybe we can talk more about kind of voting in democracy. Obviously, the two are connected. You tell a story in your book about deciding not to argue a case as attorney general before the United States Supreme Court. It’s not a story. I had noticed you didn’t do it, but I had no idea why. Can you tell that story that you tell in the book?


Eric Holder Yeah. I mean, there’s a tradition that the attorney general argued a case before the United States Supreme Court. You know, you get dressed up in tails. It’s the easiest case that, you know, there’s a case that the government can’t possibly lose. I mean, if you go up there and drool, you know, fall down, faint, whatever, you’re still going to win. And I was kind of, you know, I caught that, maybe second term, you know, do something like that. And then the Shelby County case came down and I said, you know what? That really since you said, I’m not going to do this because that presumes kind of like a regular order thing. And I don’t want this court to think that I’m going to come before them dressed in tails and argue some easy case. My silent protest I never shared with anybody until the book was that and I a couple people in the department, I said, no, I’m not. No, I’m not going to go before these folks and pretend as if, you know, after Shelby County, one of the worst decisions ever. And unfortunately, it’s got my name on it, but we never call it Shelby County versus holder. It’s just the Shelby County case.


Steve Vladeck Shelby County versus the attorney general of the United States. Whoever he was, that’s fine.


Eric Holder That’s fine. I mean, would you want you to be like Dred Scott versus holder? I don’t want my name associated with that case. No, no. Yeah. And so I said, you know, in spite of what the solicitor General and other folks want, I said, no, I’m not going to do it.


Steve Vladeck So I mean, in the book you write that it doesn’t really matter when the court became politicized. But, you know, since we can put you on the spot, let’s put you on the spot. I mean, if you had to pick a time in your professional career, is that is there a moment that really stands out to you? Was it earlier? I mean, what was the real turning point if there was one?


Eric Holder Well, it’s been so long now, it’s hard to kind of remember the origin story. But I mean, you know, one of the realities I think we have to understand is that the Supreme Court in its history is a pretty regressive institution. We tend to think of the Warren Court years as, you know, progressive. We think that’s the kind of Supreme Court that was a relatively limited amount of time. And then we get these little, you know, little dots and we get, you know, wins or we get overfilled. I mean, we get little, you know, little things that kind of make you think the court is not what in fact, it has been through its history and certainly not what it is. Today, with these sigh of relief, decisions. But I think, you know, for me, Citizens United, you know, around that point, that’s when you start to I, I start to think, wait, this is not on the up and up. And after that and the anti-democracy cases that follow it, you know, Citizens United. Shelby County roots show, you know, Alexander, now that these these are anti-democracy cases and I think really betray an ideological bent, if not a Partizan one. I think that’s one thing that people say, you know, these these are Republicans and I’m not sure these are these are ideologues. And that ideology happens to coincide with, you know, with Republican parties.


Melissa Murray Can we go back to Shelby County versus some guy?


Eric Holder Right.


Melissa Murray So that case is a monumental case from 2013. It strikes down section four of the Voting Rights Act, which was the preclearance coverage floor formula, and it kicked it to Congress. And like you can write a new pre coverage preclearance coverage formula.


Eric Holder But everyone kicked it to Congress after Congress had conducted hearings, thousands of exhibits, hundreds of pages of testimony signed by a pretty conservative Republican, president every time the Voting Rights Act has been reauthorized, it’s been by a Republican president. They just ignore that. I mean, you know, I did the Supreme Court conduct its own do its own research. I don’t think so. You know.


Melissa Murray I mean, I think we just called into question literacy on the court. So it’s hard to say.


Eric Holder Chief Justice Roberts, America has changed. Okay. How much has America changed? What’s your basis for saying that America has changed. And given what happened post Shelby County, I’d like to put some sodium pentothal him in. Say, do you still think America’s changed? You know, sodium pentothal is truth serum, I don’t know.


Melissa Murray In your post career, you’ve really been focused on this question of restoring voting rights and expanding voting rights. The court is obviously a huge impediment to that. So what are the avenues for doing that? And in addition to sort of working outside of the courts, should we also be thinking of court reform as a voting rights measure?


Eric Holder Yeah, I think there’s a whole bunch of that’s a really compound question here. I mean, so what we focused on is, all right, we can’t bring Partizan gerrymandering cases in the federal courts. Well, we brought cases like that in the state courts and been, you know, relatively successful there. But I think also we’ve got to understand that, you know, I understand the focus here is on the Supreme Court, but we got to get out there and get into the political process, and we got to win elections. And we’ve got to make sure that we focus on winning elections at the state level. That means state Supreme Court justices, you know, means state legislative races. There’s a whole range of things that we as progressives, I don’t think necessarily focus on. We think everything’s about the federal United States Supreme Court, the federal government. There’s a whole bunch of other stuff. And at the state level, you know, things are being done in state legislatures that have an impact on people’s day to day lives, to a far greater extent than what’s happening in the United States Congress.


Kate Shaw Yeah, I think that’s. I think that’s a mic drop moment on the serious stuff. And now we pivot briefly to the game.


Melissa Murray It’s time for the game.


Kate Shaw Is that all right? Can we play a quick game?


Melissa Murray Do you want the game?


Audience Applause


Melissa Murray All right. May I have a round of Martha Ritas for my friends, please? All right. Oh, here they come. Thank you.


Eric Holder All right.


Melissa Murray Cheers.


Eric Holder Cheers.


Melissa Murray Oh my gosh! Taste the hate. It’so good. Vergonia. Okay. So we end every episode with what we call court culture. So news and other items from the courts, the federal courts, the state courts, all the courts, so our listeners can get to know the courts and all of the issues there. But we’re going to dispense with court culture, because what we really want to get to know, or who we really want to get to know tonight is you, General Holder.


Eric Holder Ugh oh.


Melissa Murray So we’re going to play a game that’s designed to get to know General Holder. And the game is called This or That. Have you played this game before? I don’t actually know how the drinking will work. Just drink. Okay. All right.


Kate Shaw We just. We just decided it was a drinking game, like, an hour ago.


Melissa Murray Yeah, like decided as we came out.


Kate Shaw Like right before you came out so.


Melissa Murray So here’s how it’s going to work. We are going to present you with a category. And then there are two items in the category. And you tell us which one you prefer for that category. All right.


Eric Holder Okay.


Melissa Murray So if you were to say.


Kate Shaw Prefer is prefer right? You have to choose one.


Melissa Murray You have to choose one.


Kate Shaw You’re not going to like either of the choices in some of these categories. You have to choose.


Steve Vladeck No, no push no push.


Melissa Murray So here’s the first category: worst SCOTUS decision. I know. Dobbs versus Jackson Women’s Health Organization or Shelby County versus Holder.


Eric Holder Ooh. I’d say Shelby County because of the impact that it has had in a number of different places that really enabled states to do the kinds of things gerrymandered states, you know, there’s a whole range of things that the Shelby County case, took away from the federal government and enable state governments to do. And a lot of the things that we’re dealing with as result of Dobbs were generated by or prevented the government from getting involved in Shelby County. So I’d say I’d say, Shelby, that’s that’s close. That’s really close. When I say Shelby County.


Melissa Murray I didn’t say these would be easy.


Eric Holder Okay, okay.


Melissa Murray Okay,.


Eric Holder Okay.


Melissa Murray All right.


Kate Shaw It’s a really important point, right? Because Dobbs obviously takes away the constitutional protections for abortion, but states are the ones that enact the restrictive laws or the bans affirmatively. And in a lot of states, democracy is not working. Most of the population does not want an abortion ban. And yet these legislatures have enacted.


Eric Holder Got these gerrymandered state legislatures doing things inconsistent with the desires of the constituents of these folks. But because they’re gerrymandered, they can do whatever the hell they want and not worry about not being reelected a word.


Kate Shaw All right. So much lighter fare. Album of the Summer, the Tortured Poets Department or Cowboy. Carter.


Melissa Murray It’s a schism on the pod.


Eric Holder I got to go with Beyonce.


Melissa Murray Thank you, thank you, thank you.


Eric Holder And I say that I’m no country western person, but I listen to that and I’m like, well this is pretty good.


Kate Shaw Well, I wasn’t either. And then you listen. You’re like, maybe I actually am. Maybe I now am a country music person.


Melissa Murray I’m whatever Beyoncé tells me I am.


Steve Vladeck All right. I can’t believe you guys gave me this one. Best father of daughters, Barack Obama or Justice Kavanaugh.


Eric Holder Yeah, I’m going with 44 on that one.


Kate Shaw Some of these are softballs, obviously.


Melissa Murray Let’s make it trickier.


Kate Shaw Okay.


Melissa Murray Best father of daughters Barack Obama or Commander Steve Vladeck.


Eric Holder Or who?


Melissa Murray Him.


Eric Holder Oh. I didn’t hear the last name. I was like, okay.


Steve Vladeck I think he answered it. Yeah.


Melissa Murray Same answer.


Eric Holder You know Barack still has Secret Service protection people. You know, I’m so I’m going still with 44.


Melissa Murray Okay.


Eric Holder Stay on the good side of a man who can command folks with him.


Melissa Murray Sounds like a good plan. All right. Next category. Best college campus Columbia. Yeah. Thank you. That’s exactly right.


Kate Shaw A few fans in the crowd.


Melissa Murray And NYU.


Eric Holder NYU is kind of a sterile place, you know? Columbia has got activism. We got. You know, we throw down at Columbia.


Melissa Murray We do.


Eric Holder We take over buildings. We do all kinds of good stuff. I took over the naval ROTC office when I was a freshman at Columbia. So, you know.


Melissa Murray I you still got confirmed by the Senate.


Eric Holder You got they. I think they found out about that afterwards, you know.


Melissa Murray That’s how you do it.


Eric Holder That’s how you do it.


Melissa Murray Unfortunately, all these shows are taped, so.


Eric Holder I’m, I’m a Columbia graduate. So, I’m a homer here at Columbia.


Melissa Murray Okay.


Steve Vladeck Scariest would be Attorney General Ted Cruz or Josh Hawley.


Melissa Murray That’s why you vote.


Eric Holder Ooh.


Melissa Murray Got dark. It really did.


Eric Holder Everybody. Everybody, including all the other senators, hates Cruz. Bright. Everybody hates Cruz. I suspect most of them hate. I think Hawley might be a little a little more odious, a little more, but that’s like.


Melissa Murray Wow.


Eric Holder Yeah. So yeah, he he’d be the worst. Yeah, I’d go with it, but.


Melissa Murray So the gentleman from Cancun is our choice. I’m bringing up drink.


Eric Holder Don’t count that as an endorsement of Ted Cruz.


Kate Shaw No, no, no, I think that was clear.


Kate Shaw It’s just a drinking game.


Steve Vladeck Attorney General Holder said I was not the worst.


Kate Shaw I think I think he said slightly less odious, so I don’t I don’t think that’s going on any campaign slogans. Okay. Most batshit method of constitutional interpretation. Because they’re different. Although how exactly I think is a little bit still to be determined. But framers intent versus history and tradition.


Eric Holder All right. So they’re both BS.


Kate Shaw They’re both terrible.


Eric Holder All right. All right.


Kate Shaw Most batshit is the question.


Melissa Murray Least odious?


Eric Holder Probably framers intent. Probably. Ahhh. Right. I mean.It’s all nonsense. But, I mean, you know, you I gotta deal with what they gave me, folks.


Kate Shaw So at least it’s sort of more it’s more of a finite universe and less kind of subject to. Yeah, manipulation, gerrymandering, all of that potentially. Yeah. There is. Good. That’s that’s stipulated.


Eric Holder Let’s go to the next one. I’m just I’m not liking this game. You know.


Melissa Murray It gets better, it gets better. Best opinions sign off. I respectfully dissent or I dissent.


Eric Holder I mean, what, forget that respectfully stuff because, you know, you don’t.


Melissa Murray Yeah.


Eric Holder You know, it’s not respectfully. I mean, after you write this stuff that essentially says that stuff is just nuts. It’s inconsistent with the facts, the law. I can’t believe you wrote that. Then you write respectfully. No, no, no, I just.


Melissa Murray I said what I said.


Eric Holder Get rid of the adverb.


Kate Shaw All right, a serious one. Most promising court reform, term limits or court expansion.


Eric Holder You know, I think given the crisis that we face now, immediate court expansion is probably, I think, the thing that I would want to see. Yeah. I talk about the need for, you know, 18 year terms in my, in my book, and I think we should have that. But, given the crisis that we now have given the way in which this court was constructed with the theft of two seats, I think that expansion is something that ought to happen as soon as possible.


Melissa Murray All right.


Steve Vladeck Better for state level democracy, elected state supreme court judges or appointed state supreme court judges.


Eric Holder You know, given the results that we’ve had, I and I don’t like the notion of elected judges, but given the success that we’ve had, and the batshit crazy people who serve as governors in states where we have filed, suits, I think I’m okay with elected state court justices.


Melissa Murray A lighter note. Best Italian superlative. Fantastico or Vergonia.


Eric Holder Vergonia.


Melissa Murray Okay. Go ahead.


Steve Vladeck Best, ugh, summer beach reading. The Art of the deal. Or Promises to Keep.


Eric Holder Yeah. Well. Well. It depends. What do you want to laugh? I mean, just just want to have, like, a really fun time and say.


Melissa Murray You want to have a functioning democracy.


Eric Holder Promises to Keep.  If you’re going to actually read Art of the Deal, don’t let anybody see you. Don’t do it at the beach. Do it in the privacy of your room with the door closed.


Melissa Murray That’s a Kindle read. Kindle read.


Eric Holder Lights out and a flashlight, you know.


Kate Shaw All right. Two other actually, both excellent books, unlike the last pair. Shadow Docket by one Steve Vladeck.


Steve Vladeck Yeah, yeah, yeah.


Kate Shaw The Trump indictments. By Melissa Murray and Andrew Weissman.


Eric Holder Oh, that’s a push. That’s a push. These are both must reads.


Steve Vladeck Good answer.


Melissa Murray One more. This is the last one. Everything is on the line. Okay.


Melissa Murray The first is our unfinished march by Eric Holder. You might want to sit down. You might want to sit down.


Eric Holder What’s the second book?


Melissa Murray Grown Women Talk by Doctor Sharon Malone, also known as your wife.


Eric Holder Oh.


Melissa Murray So I’m going to urge you to take your time with this one because you might get divorced.


Eric Holder Well, here’s the deal. One’s a New York Times best seller, and the other one’s just a good book. So can I have that one go with the bestseller? And get it on Amazon right now. And leave a little note that I got this because Eric Holder told me to buy this book. Okay, everybody, tell Sharon I told you to buy the book.


Melissa Murray All right, so we’re over time, but we just want to say thank you so much to the great folks at the Howard Theater for this fantastic opportunity. Thanks to all of you for making this a sold out show. For coming out tonight. We’re so glad to see you. And extra special thanks to our special guests, the incomparable Commander Steve Vladeck. The best father of a daughter, Doug Emhoff. And Attorney General Eric Holder. The best player of this or that. A couple of housekeeping notes before we go.




Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by the one and only Melody Rowell, who has been. Who has been sending us increasingly agitated notes in the app and in the iPads because we are really over time. Sorry Melody, we were having so much fun. But we’re really done now. Our associate producer is Michael Goldsmith, our interns this summer are Hannah Saraf and Tess O’Donohue. Audio support from Kyle Seglin and Charlotte Landes. Music by Andy Cooper. Production support from Madeline Herringer and Ari Schwartz. Ari, thank you for these margarita’s. They’re so good. Matt DeGroot is our head of production thanks to our digital team, Phoebe Bradford and Joe Matosky. Subscribe to Strict Scrutiny on YouTube. Catch full episodes. Find us at youtube.com/StrictScrutinyPodcast if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want help other people find the show, please do rate and reviews. It really does help.


Melissa Murray And one last thank you to Doug Emhoff, Steve Vladeck, and Eric Holder. That’s three men we had in just one show like. Don’t let them tell you that DEI doesn’t work, okay? It works okay. And thank you DC, for venturing out in this heat and inferno on this night of all nights to be with us. We love you. Thank you so much.