All I Want For Christmas Is Democracy | Crooked Media
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December 19, 2022
Strict Scrutiny
All I Want For Christmas Is Democracy

In This Episode

Before we can really get into the holiday spirit, we have to deal with the lump of coal the Supreme Court heard on December 7th: Moore v. Harper. The case is about a fringe legal theory that says that when it comes to regulating elections, state legislatures can do anything they want– even violate the state constitution– and state courts can’t intervene to stop them. It’s bad, scary, foreboding, toxic, etc. Leah, Kate, and Melissa recap the arguments– and then take a refreshing walk in a winter wonderland with this year’s list of Our Favorite Things! If you’re still doing your holiday shopping, we’ve got lots of recs.

 

TRANSCRIPT

 

Leah Litman [AD]

 

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

 

Leah Litman Welcome back to Strict Scrutiny or podcast about the Supreme Court and the legal culture that surrounds it.

 

Melissa Murray And guess what, folks? Santa’s back because we all three of us asked him for one thing this holiday season, and that is democracy. It’s one of our favorite things. And that means we’re going to recap more versus Harper, which is argued last week before the court. But we know that this might be a lot for you as you go into the holidays. So we just want to let you know, if you just want to lighten the mood for the holidays and you want some levity in your life and you want to know what our real favorite things are, although democracy is definitely still one of them. You can just fast forward through this lump of coal that the court has waiting for you and just get to our favorite things, which will be later in this episode. So with that in mind, we’re your hosts. I’m Melissa >urray.

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. And we are still also recording this episode after I got off a red eye flight. So I am also not responsible for anything I say in this episode, just as it’s still off the record on background.

 

Melissa Murray Okay, so immediately on to Moore versus Harper. There’s no other breaking news that we need to cover. And if there is, we’ll get to it at another time. So this was the argument about the independent state legislature theory slash thingy, slash fanfiction, which interestingly, the person arguing for it did not characterize as a theory as its proponents are want to do. And I think that this public education campaign, of which we have been a small part, has worked really well here. And people know that calling this a theory or a doctrine is actually pretty toxic because it is neither good work.

 

Kate Shaw We should say, though, that even without the phrase itself or independent state legislature theory or thingy or fanfic, the theory, the idea on which the case is built remains incredibly dangerous. And I think the top line coming out of the argument for a lot of people seemed to be that unlike 303 creative, which we recapped last week, where the court is certainly going to burn it all down, they’re not going to do that in one fell swoop here in Moore versus Harper. But the court could still embrace some version of this theory. And it seems to me important that that not get overwhelmed by the relief that people are feeling that the court is not going to end democracy this year.

 

Leah Litman So like a little lump of coal that is going to turn into a big lump of coal that will topple democracy. But in 2024 or thereafter, this is the vibe I’m going.

 

Kate Shaw Through, like the classic John Roberts, like two or three step, right? Like that’s that’s the route they’re going to take as opposed to doing it all, you know, like bye bye, New Year’s Eve. So this is just like a little Christmas installation of.

 

Melissa Murray Coal is just going to get honed and honed and pressed and pressed and pressured and pressured until it becomes a beautiful, anti-democratic diamond.

 

Leah Litman Right? Or like a flint that’s going to stab democracy right in the heart or the back or something like that. Okay. Let’s.

 

Kate Shaw A fire a little fire. There’s a fire medical here, too. So any any of these things.

 

Leah Litman Let’s frame this a bit outside the metaphors so we don’t go into like the mall world of hypotheticals that the justices inhabited last week. So when the court agreed to hear this case more, which is Harper on the very last day of last term, it felt really, really ominous. You know, the independent state legislature fanfic is was a fringe theory like so fringe it might as well be MACRA made that the federal Constitution gives state legislatures alone and withholds from other state entities the power to regulate elections for federal offices that it says state legislatures can do anything they want, even violate the state constitution. And state courts can’t intervene to stop them. And it gives federal courts the power to protect the state legislature from state courts and state constitutions and really the law and democracy, by enforcing this idea.

 

Kate Shaw And the provision of the federal constitution that the proponents of this theory focus on in this case is the elections clause of Article one, which gives state legislatures the power to set the times and places and manner of holding federal elections. But there are also some advocates of this theory who argue that the idea that Leah was just describing it, that state legislatures have this special status, isn’t limited to congressional elections because there is another constitutional provision in Article two, which mentions state legislatures in the context of choosing presidential electors. And those advocates say, like legislatures, are also special when it comes to choosing presidential electors. And state courts and state constitutions can’t constrain them there either. And if the state legislature wants to say throughout the votes of the state citizens for president and appoint their own electors, the federal Constitution gives them the power to do that. So that’s the John Eastman theory, which the court is not directly considering in this case, but which very much lurks in the background.

 

Melissa Murray And just a reminder, this case comes out of North Carolina where the state court threw out an. Extremely gerrymandered map that would have made the congressional delegation of this 5050 pretty purple state, something like ten Republicans to four Democrats. And remember, this state court decision came after Russo versus Common Cause. That was the 2019 decision in which the federal courts were viewed as having no jurisdiction over claims of partizan gerrymandering because it was a political question. So they did concede in Rucho that state courts could adjudicate these questions based on state law and state constitutional provisions, which is what the North Carolina Supreme Court did hear. It interpreted the state constitution. And again, this is something state supreme courts do all the time. And it threw out that map as unconstitutional under the North Carolina state constitution. And so in addition to John Eastman and Donald Trump lurking in the background of this case, it is also a meaningful case in terms of realistic and meaningful checks on partizan, gerrymandering and the kind of democratic distortion and disruption that they create. So that’s also in the background of this case as well.

 

Leah Litman Okay. So let’s start with some of the justices who noted continuously how insane the ideas underlying this claim are. Justice Jackson and Justice Sotomayor. So here is a great distillation by Justice Jackson again about how the claim underlying this entire thingamajig or fanfiction just doesn’t really make sense.

 

Clip Can I ask you a question? Because you you suggest that there’s this thing called the legislature that the framers were familiar with. And I’m trying to understand why what counts as the legislature isn’t a creature of state constitutional law. In other words, if the state constitution tells us what the state legislature is and what it can do and who gets on it and what the scope of legislative authority is, then when the state Supreme Court is reviewing the actions of an entity that calls itself the legislature, why isn’t it just looking to the state constitution and doing exactly the kind of thing you say when you when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn’t it?

 

Kate Shaw So as that clip, I think, makes really clear, the idea at the heart of this case is that state courts can’t enforce state constitutions in the context of federal elections. Right. They have to stay on the sidelines and let the legislature regulate. But Justice Jackson’s point here is that this is completely conceptually incoherent. Right. Legislatures are not pre constitutional or extra constitutional. They are creatures of state constitutions. They are subject to state constitutional constraints and state judicial review. And to her, the case was simple, and the premise of the challenge was absurd. And I was glad she articulated that. But as became pretty quickly clear to most of the rest of the bench, like there was a lot of kind of, you know, interesting merit and appeal to some version of this.

 

Leah Litman There is still curious at a minimum. You know, we have talked ad nauseum about the utter lack of support for this theory and could go on and continue to do so. Justices Sotomayor and Kagan in particular kept hammering this home. And that’s in addition to the real conceptual flaw that Justice Jackson like pointedly illustrated in that previous clip. So let’s just play some clips of Justice Sotomayor and Kagan drilling the advocate with just how there just isn’t really any evidence supporting or substantiating this theory.

 

Clip It seems that every answer you give is to get you what you want, but it makes little sense. Yes, if you rewrite history, it’s very easy to do. Yeah, I guess what I’m saying is that in each of these three, we have very clear statements and I appreciate the fact that this issue was not the one before us in each of those three. Just as it wasn’t in the case that you mentioned to me that started off my quoting other things. If you’re going to quote one at me, I’m going to quote three at you.

 

Leah Litman And I have to make a weird reference about that last Kagan clip. Justice Kagan, like, if you cite me one line, I’m going to cite three back to you had real and no one’s going to get this except for like two people. But like that episode in RuPaul’s Drag Race where they do the puppets of the finalists real shaku a puppet.

 

Clip This is how we do it in Chicago bitch.

 

Leah Litman Vibes. No one’s going to get this, but in my mind, it’s perfect. And I just. I needed to share this with people.

 

Melissa Murray Okay. I really thought that both Justice Sotomayor and Justice Kagan were not only talking about how this was an absurd theory with enormous consequences for democracy, but again, that this whole idea of rewriting history and you can rewrite history to say whatever you want was sort of a sub tweet of their colleagues, like just all of them, like just every single one of them, which I also appreciated. But again, I want to come back to justice.

 

Leah Litman Ladies and gentlemen, the originalists.

 

Melissa Murray Playing for only one term. Anyway, I want to go back to this clip of Justice Kagan underscoring that this is a really absurd theory, but with really enormous consequences that are not absurd at all, actually really serious. So let’s hear that.

 

Clip If I could, Mr. Thompson, I’d like to step back a bit and just, you know, think about consequences, because this is a theory with big consequences. It it would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that. Even if the courts think that that’s a violation of the Constitution, it would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to insert themselves to give themselves a role in the certification of elections and and and and and the way election results are calculated. So and in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And and you might think that it gets rid of all those checks and balances at exactly the time when they are needed most.

 

Kate Shaw And Solicitor General Elizabeth Pilger, you know, kind of was making a similar point about the chaos, that embrace of this theory would. So so let’s play her here.

 

Clip Throughout our nation’s history, state legislatures enacting election laws have operated within the bounds of their state constitutions, enforced by state judicial review. This practice dates from the Articles of Confederation, and the Framers carried it forward by using parallel language in the elections clause to assign state legislatures a duty to make laws, text, longstanding practice and precedent to show that the elections clause did not displace this ordinary check on state lawmaking. Petitioner’s contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation. Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding that would sow chaos on the ground as state and federal elections would have to be administered under divergent rules. And federal courts, including this court, would be flooded with new claims. Often at the 11th hour, in the midst of hotly contested elections, the court should adhere to the consistent practice that has governed for more than two centuries and should reject petitioners a textual, ahistorical and destabilizing interpretation of the elections clause.

 

Leah Litman Okay, so at times the argument for some justices present at the argument seem to be inhabiting this weird, bizarro alternative universe where Chief Justice Rehnquist concurring opinion from Bush versus Gore is like somehow the controlling law rather than a minority view that couldn’t garner five votes because it’s just so utterly embarrassing. And part of this is, you know, when we talk about Justice Thomas’s concurring opinion like that is not the law, but that doesn’t prevent some future court from just being like, Well, there’s this writing in this case, so how does your theory make sense of this against effort opinion, which isn’t controlling, but we’re just going to act as if it somehow represents an authoritative account of the law. It’s just weird.

 

Kate Shaw Yeah. And you know, we’ve said this on previous episodes, but just to remind people, the kind of modern iteration of this is L.T. does flow directly from the Rehnquist concurrence in Bush versus Gore. And, you know, Justice Scalia, who’s obviously no longer on the court, but Justice Thomas, who of course, is on the court, joined him in that. But as you just said earlier, this was not a majority opinion. Folks familiar with the decisional history of Bush versus Gore, I think know well, this was written in unbelievably accelerated conditions. So this like tender examination of the Rehnquist concurring opinion in Bush versus Gore was just like so surreal to me. And in particular, like putting aside just like how fast the drafting history was and, you know, the. Lack of care that I think a lot of it reflected. There was also a time when literally no one even dared speak the name Bush versus Gore inside the Supreme Court, or even like when posing questions to justices like outside of court member like Justice Scalia would famously say, get over it, over it. When he was asked about Bush versus Gore, they were just like the uniform message from the justices was, we’re not citing this case. We’re not even talking about this case. This case never happened. Let us all pretend it never happened and in not only but it was like being invoked, like it had this totemic power. And honestly, actually, justices on the other side opposing the assault cited it not approvingly exactly. But like I just couldn’t believe how much play this Rehnquist concurrence.

 

Melissa Murray And I think it comes back to this right. It’s not about the power of the concurrence, but the power of the personnel. Right. I mean, so, yes, it was a concurrence of just three justices in 2000, and only one of those justices remains on the court. But there are other people who subscribe to this theory now and who have, like, you know, adopted the Rehnquist logic as their own. In fact, they may actually have had a hand in sort of developing and cultivating this idea that was then later translated by Chief Justice Rehnquist into this decision. So I want to just pull this clip from the archive of a very young lawyer on the George W Bush legal team who was especially enthusiastic about the independent state legislature theory that was later made totemic, as Kate says, by this court, from the Rehnquist opinion. So here is none other than your coach, Brett Kavanaugh, talking about the independent state legislature theory on CNN back in 2000.

 

Clip Well, I think you’re focusing on the wrong issue there. The real issue is what is Article two of the Constitution mean in the first instance? And it delegates authority directly to the state legislatures. And the textualist on the court, led by Justice Scalia, are paying close attention to that language. And I think what we’re seeing is more of a divide over how to interpret the Constitution and really political differences. I don’t think the justices care that it’s Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret the Constitution, what are the enduring values that are going to stand a generation from now?

 

Leah Litman And I know we’ve said this before, but there are now three members, three members of the current Supreme Court who were on the Bush campaign legal team, you know, Brett Kavanaugh, Amy Barrett, John Roberts. And so, yeah.

 

Melissa Murray I mean, to be clear, it wasn’t clear where the chief justice was. A he seemed a little skeptical about this. And I think Justice Barrett is really good at sort of keeping her cards close to the vest on this. But Neil Gorsuch, who was not included down in Palm Beach County and in Tallahassee, he was not part of the team, but he did seem like he wanted to be on the team at this oral argument. And Sam,.

 

Leah Litman There is serious FOMO. He had really definitely had serious FOMO.

 

Melissa Murray Sam Alito, not on the team, but definitely benefited from the team’s success, also seem to be there. I mean so there does seem to be at least for and the real question is where does the fifth vote come from? So that in mind onto the argument David Thompson.

 

Leah Litman Can I just step back for just 1/2. When you were saying that the chief justice, it’s not clear whether he’s going to go in for an assault. This reminds me when we were talking about Merril versus Milligan and how utterly fucking embarrassing it must be to find a theory that would restrict voting rights that is so implausible and baseless that even John Roberts, even John Roberts is unwilling to sign on to the theory when it actually gets to the court like, have you no shame, sirs and madams? And yet this is what they’re going to do.

 

Leah Litman [AD]

 

Melissa Murray On to the argument for the independent state legislature theory slash fan fiction. David Thompson argued for the North Carolina legislators here, and I have to say he took a pretty good drubbing on this first argument. And again, he was offering a really maximalist position that the elections clause completely disables state courts from interpreting state constitutions in the context of federal elections. And the justices seem to have a hard time with such a broad view of things.

 

Kate Shaw I think that’s totally right. The first argument does not have a lot of support. So when we’re talking about counting to four and where does the fifth come from? I actually don’t think that’s true. As to this maximalist version of the theory, I don’t think it even has four votes. And in some ways, the court’s precedents and, you know, the North Carolina legislators decision not to kind of like go full YOLO and ask the court to overturn all of them were kind of an insurmountable obstacle. Right, because the court has previously allowed things like gubernatorial vetoes in the context of state regulation of federal elections. And like the governor, isn’t the legislature any more than the courts are the legislature. So if it’s okay for a state legislative process to include the participation of a governor, it’s really hard to see how it is categorically impermissible for courts to have any role at all. And pretty early on, Chief Justice Roberts sort of seized on and responded to that. So let’s play that clip here. I mean.

 

Clip That’s a pretty significant exception. You have otherwise a very categorical case. And it’s sort of, well, with this one exception. But vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants.

 

Leah Litman So then the lawyer arguing for, you know, the ISLT. Thompson tried to work around these precedents by proposing a distinction between procedural involvement, which he suggested is okay, and substantive involvement by other state officers, which he suggested isn’t okay, and procedural involvement he characterized as a veto. Substantive involvement is like state court review under state constitutional provision. But this theory didn’t seem to have any takers, probably because it’s incoherent and absurd. Right. As a result of the veto. You were changing the substance here. The court review changes. The procedures of elections like the Constitution is all about the process and procedures by which laws are made. Anyways, so here’s one clip from Justice Barrett on this proposed distinction.

 

Clip I think substance and substance and procedure, as many of the questions that I’ve gotten indicate, are difficult to separate out. And so I’m saying you’re leaning pretty hard on the lack of judicially manageable standards for things like free and fair elections. So I’m saying why should we take solace in a substance procedure definition as a as a more manageable line?

 

Kate Shaw Okay. People were really skeptical of this procedure, substance distinction. And I just think as a general matter, this aggressive argument for totally ousting courts is pretty off the table. Although I do think asterisk. There is an interesting question about what would happen. I mean, interesting and, you know, terrifying about what would happen in a case in which the proponents of the ACLU actually did decide to kind of take direct aim at cases like Smiley. That’s the 1932 case about the governor having a veto. I mean, John Eastman in his brief in this case says that those cases are just wrong and the court should either limit or overrule them. And there was this one point where we don’t need to play the clip where Barrett asks a question about, you know, where this procedure substance distinction is coming from. And she sort of says, well, does it come from the Constitution or are you just kind of working with our precedents? And there was like something sort of like contemptuous in her voice the way she was, like our precedents. Like, why are you worried about those? And and I do wonder whether whether people will take that cue and sort of go because he said, yeah, well, we’ve crafted arguments that are responsive to precedents because normally that’s how this all works. But I’m just not sure that’s how this all works anymore. And if somebody wants to say all of those are wrong and, you know, actually you should overrule all of them, I’m not sure if.

 

Melissa Murray There’s a new sheriff in town. And she doesn’t know about precedent.

 

Leah Litman You know, what she really wanted was someone like Judd with two D Stones to stand up at the podium and be like, I’m just working from atmospherics, Your Honor. Or like, here’s my normative description of the law. And then she’s like, Okay, yeah, I’ll take that.

 

Melissa Murray I’ll take those vibes.

 

Kate Shaw Yeah. No. In a very weird and sort of counterintuitive way, the most aggressive version of the argument wasn’t aggressive enough at work, right? It was really aggressive. But still, like, you know, working in the ordinary paradigm of like law and precedent and in some ways like that was just completely incoherent.

 

Melissa Murray Passive aggressive will not work here. We need aggressive, aggressive Leave your precedents at the door.

 

Leah Litman Recognizing the binding nature of law is just fatal to the argument that that’s.

 

Melissa Murray Not where we are right now. We’re not there right now.

 

Kate Shaw Nope. No.

 

Melissa Murray The proponents other big argument was that even if courts could play some limited role, they couldn’t actually enforce, quote unquote, vague or abstract provisions of state constitutions, like, for example, the free elections clause of the North Carolina constitution, on which the state court largely relied upon here. And I’m not really sure what’s so vague or abstract about a free and fair election. But, you know, I also put democracy on my Christmas list. So what what a dolt. I am.

 

Leah Litman Right. I mean, the implications of this argument also just don’t line up. They don’t really make any sense. You know, as scholars like Jessica Bullmann, Posen and Myriam say after who we had on the podcast this summer, you know, have shown state courts have lots of democracy protecting and promoting provisions in their constitutions. State courts need to be able to and they routinely do enforce those, not just in the context of gerrymandering, but in other issues, too. And here it was a little hard to tell where the court was, despite the interminable argument on this theory. There just wasn’t a ton of direct discussion of this version of the argument in particular.

 

Kate Shaw Yeah, I had a hard time sort of figuring out it a little bit shaded into this argument that we’ll get to in a minute about whether, you know, if courts aren’t totally disabled from acting here, at least there is some amount of federal oversight of state courts that was still appropriate, but not just based on the kind of vagueness or, you know, generality of state constitutional provisions, but just as a kind of general federal constitutional backstop. So the two kind of ran together. But I really I couldn’t tell if there was much support for this kind of stand alone position that some state constitutional provisions just weren’t subject to enforcement by state courts. But maybe before we turn to.

 

Melissa Murray Only the ones about two weeks from today that are vague and abstract, that’s the principle.

 

Kate Shaw Isn’t that curious that that.

 

Melissa Murray Democracy is a vague and abstract kind of concept?

 

Kate Shaw That’s right. And related First Amendment, you know, state’s first amendment and equal protection principles like those two. I think the court would say like those are. Well, I suppose it depends on how the.

 

Leah Litman I was just about to say the First Amendment is very clear when it allows website designers to refuse to serve. Right.

 

Kate Shaw It can be enforced. It can be enforced in some analogous state proceedings. That’s right. But just kind of to return to precedents for a minute, there was this kind of interesting and sort of weird like shadowboxing with some of the court’s precedents. There was what I just mentioned, that smiley and other old cases that the proponents of the theory just sort of seemed to accept. But there was also kind of interesting discussion of some of the court’s newer cases, like the Arizona Independent Redistricting Commission case, in which Justice Ginsburg wrote the majority opinion, allowing Arizona to use an independent redistricting commission to draw its legislative districts over one of the maddest dissents that Chief Justice Roberts has ever penned. And they were just like the lawyer, you know, Thompson sort of seemed to accept, said he accepted the Arizona case, but then at a couple of points cited the dissent, which again, was a Roberts dissent. So it wasn’t, you know, totally clear what they were saying about the current status of Arizona, which, you know, looms very large, I think, in this argument. But there was also, I thought, pretty interesting debate about the language in Rucho. So, Melissa, you were referring earlier to the court’s decision declaring it challenges to partizan gerrymanders, non justiciable political questions. And in some ways it’s in the wake of Rucho that we’ve seen a lot of states and state courts sort of take up what felt like a pretty explicit permission in the Ruchon majority opinion that gerrymandering is a problem and that there are other kinds of recourse that still exist. Even a federal court recourse is now off the table. And so some state courts in the last few years have struck down excessive partizan gerrymanders. And that’s, of course, what happened here. I thought it was worth playing some kind of debate about what the language in Rucho about state courts and other avenues to challenge partizan gerrymanders really meant. So let’s play that here first. Thomson, the lawyer arguing for the ISLT talking about Rucho.

 

Clip And many of the policy proposals that were identified in Rucho are ones that are fully consistent with the line we are drawing. The Ruchon majority pointed to statutes in Iowa and Delaware that that banned partizan gerrymandering. The Ruchon majority pointed to a constitutional amendment in Missouri that designated and created the office of a state demographer to draw state lines. And essentially, that’s what we have here in North Carolina. Partizan gerrymandering has now been banned at the state level for the state races, and we’re not here challenging that. And that presumably will have a salutary influence. If the actual legislature itself is not gerrymandered, then when it comes to the role of doing congressional races and there were referendum independent commissions were referenced by the root show majority, and we’re not debating that in Congress.

 

Kate Shaw And then there was this colloquy between Chief Justice Roberts and Neal Katyal, one of the lawyers arguing in opposition to the ISLT also about the meaning of this language in Rucho.

 

Clip Mr. Katyal, you quote in your brief and we’ve heard it this morning as well, the language from. So let’s say it says provisions in state constitutions can provide standards and guidance for state courts to apply in redistricting. Do you think the phrase fair and free elections is providing standards and guidelines? I do. Let me say two things about that. Number one, Your Honor, just before you, I’ll let you go. But providing standards and guidelines in the context of an opinion that emphasized how unmanageable and indeterminate various proposals were, was respect to partizan gerrymandering. But you said that about the federal to the federal review. And I think it’s very different at the state level for two reasons. One is, of course, states don’t have the same type of justice ability concerns. And second, you anchored it in really a political legitimacy point about this court. At page 25 of seven, you said we can we’re one Supreme Court. These cases are inherently political. Everything’s going to wind up here and be seen and through a, you know, seen by the outsiders through a political lens. I think that point cuts the other way with respect to this case, because if you left it to the decentralized 50 states systems with their own traditions, and this is something that Judge Sutton’s work talks about, yes, you can have an abstract clause. Many state constitutions do. And for the most important of reasons that suggests actually, you know, those are sometimes the most fundamental provisions.

 

Kate Shaw I’m honestly not sure what to make of this kind of exchange, but it does suggest to me that some of the really clear sounding language in Rucho, I know there might be some real appetite on this differently constituted court for revisiting some of that.

 

Melissa Murray Okay. So we mentioned in our preview of more that there were three lawyers arguing against the independent state legislature theory slash fanfiction, and they all hailed from the solicitor general’s office, former acting Solicitor General Neal Katyal, former Solicitor General Donald Verrilli, and of course, the current solicitor general, Elizabeth Gallagher. And they were all pretty great and had some very evocative metaphors and imagery to sort of encapsulate what the impact of the independent state legislature theory was and what it would do. And so I think my favorite might have been Neil, Kate, y’all’s blast radius. Which was like you know, if you grew up in the 1980s fearing either a nuclear war or a nuclear power plant blowing up in your backyard. And full disclosure. I grew up in Port Saint Lucie, where there was a nuclear power plant that powered our city. So we talked about this endlessly in my school, but blast radius was something that just evoked childhood memories of going to a bomb shelter and doing drills. And I was just like, This is a lot, but it was a really good metaphor for this.

 

Leah Litman Yeah. Yeah, it was.

 

Kate Shaw It was good. It was evocative. I thought it might have been used like one too many times, but.

 

Melissa Murray No, never enough times for blast radius, like never enough time.

 

Kate Shaw I totally agree with you that all of those advocates were very strong. But I have to say, once it was, I thought, pretty clear that the court wasn’t going to go the sort of big, bold burn it all down route. They all seemed to my mind actually way too ready to agree that the federal constitution and like the elections clause in particular, did empower federal courts, or at least the Supreme Court, to second guess state courts in their interpretation of their own constitutions. Right. Like if they got it to wrong, if they the state courts got it to wrong, then SCOTUS could like swoop in. And I’m not sure that’s right and I’m not quite sure why everyone was so eager to concede it. But you know, you had a few different formulations on offer for kind of when this might be appropriate and what the standard should look like. So maybe we could just play them all here. Let’s start with Katyal.

 

Clip For us, Mr. Chief Justice, because this court has never really confronted the situation of saying a state court got it wrong on its own constitution. We think that standard has to be sky high. It is the, you know, ultimate affront to sovereignty of a state to say its own state court got things wrong.

 

Kate Shaw And then Verrilli, who really kind of explicitly invokes the Rehnquist concurrence.

 

Clip We think the standard is that you’d ask whether the state decision is such a sharp departure from the state’s ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law. We think that is actually the best distillation of the kinds of tests that were identified in the Bush v Gore concurrence as being potentially relevant.

 

Kate Shaw And finally, pre Lugar.

 

Clip With respect to this idea of whether there’s an outer federal constitutional standard that could apply here, we agree that that so and the court could recognize that kind of constitutional claim. Now, we also agree that that would have to be highly deferential. And I think that that stems from the recognition that to state this kind of claim. Under the elections clause, you would have to be identifying a situation where a state court isn’t actually engaged in the process of judicial review.

 

Melissa Murray So, Kate, do you think that there would appear to be a concession that federal courts could reign in state courts is really just sort of wishful thinking for a day. With maybe a different Supreme Court when you might actually have rogue state courts doing the most, and you might want the federal courts to weigh in and constrain state courts.

 

Kate Shaw I think it was more their kind of knowing their audience right now and just thinking of the chance that this audience, having decided to take the case up, was going to just completely repudiate this theory. Like think about that she outflow decision from 2020 which was do electors have a right to vote their conscience and ignore the popular vote in their state? And that was a case that if the court had decided to vindicate that argument, it would have been incredibly destabilizing. And I think that in the run up to it, we all talked about it. It seemed like it could be really consequential. And at the end of the day, the court basically said in a unanimous opinion, although there was a concurrence, no, we’re not going to embrace this novel theory. So like, I don’t know, there’s a universe in which something like that happens here. But I think that the fact that the advocates were kind of like so willing to sign on to this at least broadcast to me that they don’t really have any hope that there’s going to be a big, like, full throated rejection of the assault. Again, that was them, I think, speaking to their audience. But it just felt like it was a concession that this thing is a thing that I think is so frivolous is a thing. And I think one other theory is that they basically thought if they offered a standard that wasn’t really any different from an ordinary due process backstop that the Supreme Court can already use, if a state court is wildly overreaching, then it would look like they were, you know, offering a kind of a compromise position, but really just kind of recapitulating an idea that already exists in the context of due process. And so it was kind of no harm, no foul. But I just worry about handing a new tool to this Supreme Court to second guess the work of state courts is just a dangerous path to go down.

 

Leah Litman Yeah. And just to explain the due process backstop for listeners who may not be like as immersed into this as we all have been, you know, there is this well understood principle that if a state court manipulates a state rule to the detriment or a disadvantage of a federal right, then the Supreme Court can step in and review the state law question. But that is only going to potentially be implicated in these kind of ESL adjacent cases where a state court does so to the detriment of voting rights, say adopts a new interpretation of a state law, applies it retroactively disenfranchize people and no one’s really questioning that like that can happen. And that the Supreme Court has used some version of that theory. You know, most often in 1950s and 1960s, civil rights cases where state courts were playing fast and loose with state laws to the detriment of civil rights litigants, black litigants who were trying to enforce nondiscrimination principles, you know, in voting and elsewhere. But yeah, it was extremely dispiriting not to see a kind of just like broadside rejection of Islam during this argument, given how just bizarre and outlandish the theory is. But okay, so as was true when we were living in the weird Christmas village in the mall, there were a few. Are you serious moments in this argument, this time for democracy? So, you know, this I think Melissa was fodder for your follow on piece. Should you ever want to write it to Racing Row, where, you know, in the Harvard Law Review, you described how the justices were kind of co-opting the rhetoric of race and racial justice to question Roe versus Wade. And here you had both Justice Thomas and Justice Gorsuch using a very like inverted, perverse notion of racial justice and like commitment to racial justice and saying that that somehow required embracing the independent state legislature thing. So Justice Thomas worried that state legislatures would try to further equality and protect racial minorities, and state courts might stop them under state constitutions unless the court embraces the independent state legislature theory. Let’s play that clip.

 

Clip Let me ask you this just as maybe a bit unfair. If the state legislature had been very, very generous to minority voters in their redistricting and the state Supreme Court said under their state constitution that that this was it violated their own state constitution of North Carolina. Would you be making the same argument? So yeah, if yes, I mean, if you just and Justice Gorsuch said it, it seems as though it depends on who’s ox is being gored. So I’m changing which ox is being go. Yeah. No, we don’t think anything turns on the substance of the individual. All decisions, but you would still be there. Make the same point to you.

 

Kate Shaw Just. All right. So and then, not to be outdone, racial justice advocate Neil Gorsuch was on full display. He basically was arguing that states could and in one case, on one occasion had amended their constitution in a really odious and racially discriminatory way. So invoked a pre-Civil War episode in which Virginia enshrined a 3/5 clause into its state constitution. And he basically seemed to be arguing that the possibility the state could try to do something like that today meant that it was important that state courts not be allowed to enforce state constitutional provisions, so far as I could follow the logic. So let’s play that clip here first.

 

Clip And just a point of clarification, Scott, shall you? You take the position that Virginia correctly understood the Constitution when it adopted the 3/5 requirement for purposes of calculating African-American persons in its constitution? No, Your Honor. So there’s several different provisions being debated in 1831 is the 3/5 provision. We’re not talking about 3/5. We’re talking about the regulation of federal districts, which is what the elections clause violation. But you’re saying what Virginia did at that time was consistent with a proper understanding of the elections clause? Well, the elections clause. That’s what I’m asking. Okay. So you are defending that not. Yes, I’m surprised by that, given that when the elections clause issue was raised in that debate, as I understand it from the briefs before us, the convention attendees and others basically said, yeah, that might be so, but who cares? We have to protect our property interest in slavery. Yes. So that’s a different provision. Justice Gorsuch. So that’s why I’m saying, you know, it’s a nice smear of what happened in 1830 that has been levied by my friend on the other side. But but it’s a luxury that they were not attending to the elections clause. They were attending to their perceptions of what their property right now this was.

 

Melissa Murray He is really working this Ramos energy. This was the same vibe he was on in Ramos versus Louisiana when he made a lot of the fact that Louisiana had chosen to enshrine its non-unanimous jury conviction rule in the state constitution for the purpose of diluting the power of black jurors. And that’s why they overruled Apodaca. He’s very clear about that in the Ramos decision. But, I mean, this is the same energy and it’s the same move that he makes everywhere. So, again, woke warrior Neil Gorsuch. You know, on a broader point, it’s hard to miss how fixated some of the court’s conservatives are on state legislatures. That’s perhaps not surprising, given the degree to which conservative authority has been consolidated in state legislatures through gerrymandering and the like. But this interest in state legislatures really surfaced in many of the hypos and also was surfaced Justice Alito’s concern about state judges rather than the state legislatures being the real partizan hacks in this whole equation. So let’s hear that clip.

 

Clip Easier, remember? Well, that’s subtle, but that’s a little bit off the point. As far as popular accountability is concerned. We have seen examples of state where many state supreme courts are elected and some states allow partizan elections. So there’s been a lot of talk about the impact of this decision on democracy. And do you think that it furthers democracy to transfer the political controversy about distracting from the legislature to elected supreme courts, where the candidates are permitted by state law to campaign on the issue of districting?

 

Leah Litman This idea that the people are somehow going to perceive state judges rather than federal judges or federal courts, as the partizan hacks here just again displays a real galaxy brain take on this entire situation.

 

Kate Shaw Yeah. On that point about federal judges and political hackery, I thought that Justice Kagan had just a great and penetrating exchange with Don Verrilli about how these standards that were being offered, about how, you know, if a state court is acting in like a purely partizan or purely policymaking way, that might be a reason for the federal courts to have to intervene. And she was like, I don’t know. I think we sometimes, you know, when we’re in disagreement, accusing each other of being policy makers, if that’s the standard, that’s kind of in the eye of the beholder. So let’s play that clip here.

 

Clip Your colloquy with Justice Alito made me feel uneasy about it. And I think that the reason is because it shows how very good judges and very good courts can find it incredibly easy to disagree with each other. And so if Justice Alito asked you, can it be flunked? I think what I want to ask you after hearing that colloquy is, is there a danger it’s going to be satisfied too easily? And I’ll just you know, I think that every single one of us on this bench has written opinions at times, you know, saying that other judges, whether it’s other judges on this court or are lower court judges, you know, have engaged in policymaking rather than in law. And, I mean, that’s just sort of one of the things the judges say when they really disagree with another opinion. And and so how, you know, if you say acting as a legislature, not as a court, acting as a policymaker, not as a court, I mean, these really are things it’s not just this court. It’s every court. These are things that judges say to each other all the time. How is this going to be a check that’s used rarely?

 

Leah Litman Yeah. So this idea that these judges, the Supreme Court, are going to be the ones to decide when state courts so far depart from the norms of like judging that they have done something to subvert the will of the legislature is really concerning. Because, like, let’s think about all of the ways in which Justice Alito thinks the federal courts have say subverted the will of the legislature. Like he is still throwing a temper tantrum about Bostock versus Clayton County, the title seven case. Right. He thinks that probably like departed from the norms of judicial interpretation. And so this idea that well, all the Supreme Court would say in this case is there’s a narrow, quote, narrow role for federal courts to intervene where they believe state courts are doing something other than engaging in conventional modes of judicial interpretation, interpreting statutes really kind of allows them to decide that that is happening in their preferred cases. I mean, I just worry that Sam Alito will think that any Democratic majority, state Supreme Court or any state Supreme Court that is protecting voting rights is acting outside of the mainstream, ordinary course of judging, particularly when in this case, you know, Moore versus Harper, Neil Gorsuch and Sam Alito are pretending like they don’t know John Howard Ely’s theory of democracy and distrust. Right. Like when Don Verrilli is suggesting that, like, oh, well, all the state Supreme Court is doing here is suggesting that where the political process is skewed in such a way that the voters preferences are going to be meaningfully registered at the elections, they can intervene like and they’re like, what? What theory is that? And they’re like, Oh, only the most fucking famous theory of constitutional law.

 

Melissa Murray Yeah, I know. Knows John Ely is only famous for the wages of crying wolf Roe.

 

Leah Litman That’s right. That’s where, you know, Roe versus Wade. They literally cited his right in die. Right. Like last term.

 

Melissa Murray And still, I don’t know him.

 

Kate Shaw I only his earlier work actually. Sorry. The wages of crying wolf. Okay. Democracy in distress. Not so. Okay. Or Alito sort of seeming to disparage the North Carolina Supreme Court’s citation to the English Declaration of Rights like, no, no, it’s okay if I do it. If we do it, but it’s somehow lawless for them to do it like that was just really hard to stomach.

 

Melissa Murray Well, I mean, Clarence Thomas already told you people, not all constitutional history is created equal. He gets to say what the good constitutional history is like. I don’t know when you guys are going to understand this.

 

Leah Litman This does have all of the writings of let’s write a faux minimalist, right. Opinion that causes three, three meters. Yeah. That causes the press and commentators to be like, oh, we have a moderate institutionalist court. Nothing big happened here. And then blowing things up right later on down the road in the second or third opinion. I mean, it is just making me very anxious.

 

Kate Shaw Anything short of a complete repudiation of the result, I think is like an enormous loss for democracy, honestly.

 

Melissa Murray Well, let’s tee up our end of the term and just like put that into a show note for later. Anything that is not a complete repudiation of the independent state legislature theory slash fanfiction is a slight to democracy.

 

Kate Shaw That’s a good one.

 

Leah Litman [AD].

 

Leah Litman Now on two favorite things. What I would like to find in my stocking is a complete repudiation of ourselves and democracy.

 

Melissa Murray And some skin care.

 

Leah Litman So we did invite some listener questions about recommendations that you all were looking for. So maybe you can start with those. So one question we got was what is your favorite recommendations for favorite comfy work clothes?

 

Melissa Murray Ding, ding, ding. I have an answer. Okay. My favorite comfy work clothes. And again, I like it. It’s my favorite because it’s comfy, but it also looks pretty polished and dressed up and it’s Zuri dresses so you our eyes jury is this company it’s women owned they do a lot of their sourcing in Africa from women in Africa who make a lot of their textiles and do a lot of their sewing. But it’s basically just one dress and it’s a triangle. And weirdly, for many of us, the triangle actually is a universally flattering shape. And it’s just this one shape, just this triangle. But it comes in a million different fabrics. The fabrics are like gorgeous. They are batiks. Some of them are these sort of African prints, like deep wax, cotton, and they’re just gorgeous and the dress is fantastic. So you can wear it as a dress with like heels or whatever, or you can wear it as a jacket with a shirt underneath. Or as I do quite often, you can wear it as a tunic with pants, and if you’re really daring, you can put it around your waist, use the arms as a tie and wear it as a skirt. So it is super versatile. It’s great for travel. I have told Leah and Kate they really need to get on this tip. They’re fantastic. Shoppers are e-com or if you’re in New York City, they have a Bleecker Street store. And if you’re in San Francisco, there is a store on Fillmore Street.

 

Kate Shaw You know, you recommended three last year. And I did take your advice and order a dress and so did you. Dark blue. Light blue. Well, I don’t know if it’s a dress shirt.

 

Melissa Murray I guess it’s a tunic. Did you get half moon?

 

Kate Shaw That sounds right. I don’t know, I. I have a dress too.

 

Melissa Murray Be twins. I love this for us.

 

Kate Shaw So it’s beautiful. I’ve worn it several times.

 

Melissa Murray I went like a year to send me a picture and I’ll see if it’s the same one.

 

Kate Shaw I have a half moon. It might be, but yeah, they’re gorgeous and really very comfortable as well.

 

Melissa Murray I love this for us.

 

Leah Litman So hard to top that recommendation, but my personal favorite is Man LaFleur. That’s the letters. And then L-A f l e u r. It’s also a women owned business and they make machine washable clothes for work that are super long lasting. So I have like tops, dresses and pants that I got over a decade ago that I can still put in the wash and have lasted that long and I just love them. They’re basically the only work clothes that I wear.

 

Kate Shaw And only because earlier this week, Melissa and I were talking about the Woodbury Commons Outlet Mall outside of New York City. I have to recommend to shops. I’m like not really a go to for any kind of fashion advice, but I will say there is a very good both rag and bone and theory outlet. Now those are both lines that are pretty pricey if you just like get them full freight, but they’ll be like blazers that are like $600 that will actually be $150 and they’re really nice blazers, ragged bone in particular. So that is a recommendation if you can brave the crowds at the outlet mall would recommends check those out.

 

Leah Litman How is their Christmas village?

 

Kate Shaw I mean not racist as far as I can tell which is great so that’s another reason to visit it.

 

Leah Litman So next question is favorite fiction and nonfiction recommendations?

 

Kate Shaw This is fun.

 

Leah Litman So these aren’t necessarily books like in the last year or two years, but just books I happened to read in the last year or two years last year. So nonfiction. I recently read Claim of Privilege by Barry SIEGEL, which is the story behind the state secrets case, United States versus Reynolds. And it’s incredible. Definitely would recommend that. Also read the recent biography by Peter Canellos, the great dissenter about John Marshall Harlan. I also read Vanessa Abbey is Home Bound and would also recommend Lady Justice by Dahlia Lithwick, which we referenced before on the show. And we’ll have a forthcoming episode. That’s her and Melissa discussing the book for fiction. Melissa recommended Homegoing to me. I loved that. That is just, I think, like maybe the best book I’ve read in the last five years. If you are into kind of the format of polyphonic fiction, I also love Disappearing Earth by Julia Phillips and also extremely into romance fiction. So I read all the Bridgerton books and also got into Courtney Moulins. I liked the Duke who didn’t in particular. And I also recently read trespasses by Louise Kennedy. So those are my recommendations.

 

Kate Shaw Okay. Nonfiction. I also loved Homegoing. I can’t remember. I think I read it maybe two or three years ago, but really, really loved it. And in a similar vein, this, you know, for opening the kind of Category two things that really left an impression, but not just this year. I think I read Pachinko maybe two years ago, but it was just like incredible. I think homegoing a pachinko are probably yeah. Top couple books in the last five years at least. And the TV adaptation of Pachinko is also so far holding up amazingly well. I’m just a couple of episodes in, but it’s great. And then in terms of really recent fiction favorites, I loved The School for Good Mothers, although I recommend it to a friend who, after just like you, didn’t warn me about how hard a read this book is. And so I feel like I should warn our listeners. It’s amazing, but very, very wrenching. I really liked I Love You, But I’ve chosen Darkness and.

 

Melissa Murray By Sam Alito. He did not.

 

Kate Shaw Go to write this book, I assure you. Although, you know, the line works for him, too. And then Vladimir, which was really fun. I don’t know if you guys have read about or heard this.

 

Melissa Murray Vladimir like Lolita. From the students perspective.

 

Kate Shaw It is an infatuation by an older heroine and a younger object of affection, but not like Lolita. Young, like a grown person. They’re both professors at like a little college town in upstate New York. And it is just, like, weird and fascinating, both gender and sexual politics. And I just really, really loved it. It has like a very racy cover of, like, this kind of chest, you know, the shirtless man’s chest. So if you read on the subway, like, he might get some books, but maybe some of the romance novels that William mentioned do, too. I don’t know. And then a couple of nonfiction favorites. Dorothy Roberts, fantastic book Torn Apart, about, you know, what people refer to as the child welfare system, which she refers to as the family policing system. It pairs well, I would say in a lot of respects with the School for Good Mothers, we have shouted this out previously, but I realize we didn’t mention them when we talked about the Moore argument and both of Judge Jeff Sutton’s books on state constitutions and state systems are really excellent. And they got invoked, I think maybe just by Neal Katyal, but a bunch of times by Katyal during the more oral argument. Tamiko Brown, Nagin’s amazing biography of Constance Baker, Motley Civil Rights Queen. And we have an interview about that book that’ll be in your ear holes soon. I really liked Joey Fishkin and really for Barthes and Oligarchy Constitution, I’ve looked at it a lot as I’m prepping to teach Carla next semester, and I’m currently actually listening to Rachel Aviv’s Strangers to Ourselves, which is a bunch of sort of short chapters about sort of mental illness and a very sort and start to this like incredible autobiographical Prolog introduction. And so I’m still reading it, but it’s really fantastic.

 

Melissa Murray So my fiction selections are Homegoing, which I also adored. I think I agree with Leah. This is probably one of the best books I’ve read in my lifetime, and if you like, sort of epic literature and sort of not quite the style of James Michener, but sort of like canvasing in this really longitudinal way a family over multiple generations. Like it’s such an amazing and wrenching work and so I highly recommend it. Jackie Aziz, who is the author of Homecoming, has a second book called Transcendent Kingdom. And that’s also very good, not sweeping in the manner of homegoing, but very, very wrenching and beautifully written. I also did you did you.

 

Kate Shaw Were you put on the same? Because I also read it and I liked it but my my expectations were so sky high after Homegoing that I just couldn’t quite feel the same way about Transcendent Kingdom.

 

Melissa Murray It’s definitely a sophomore effort, right? I mean, it’s like a kind of classic sophomore slump. Like, I mean, Homegoing was just so powerful in that match yet. But I think if Transcendent Kingdom had come first, you be like, Oh yeah, this is great. She’s a really great supercop and you would like and I think you would like it. It just really suffers by comparison to homegoing, but it is by itself but like literally file squad. So yeah, I think that’s right. But independently it’s worthwhile. And I really do love the story of, you know, the siblings and this woman sort of wrestling with the past and her sibling and the way that their lives intersect. I also love it. And this is also a second effort, a sophomore effort, but it’s amazing and even better than the debut novel. So this is Brit Bennett’s The Vanishing Half, which is about two sisters who grow up in a black community where everyone can basically pass for white, and eventually one of the sisters does pass for white. And it’s about how this plays out over successive generations. So I thought it was amazing. Brit Bennett’s first book, The Mothers, is also good, but this is just absolutely riveting and fantastic. So highly recommend another book from a couple of years ago that I don’t think got the attention it deserved, but it’s just an amazing, amazing book, especially if you love Jane Austen is Jo Baker’s Along Born, which is basically Pride and Prejudice, but told entirely from the perspective of the servants and it spills all the tea on the Bennetts. And it’s just so, so good. It was supposed to be made into a movie. I think the pandemic kind of interrupted the development process for that, but I really hope it will get back on track in Hollywood because I was really excited about it. And then my final selection is the sequel to The Silence of the Girls by Pat Barker. This is called The Women of Troy, and it basically picks up the period of the Iliad where the Trojan women have been captured by the Greeks, and they’re basically about to leave Troy. This is after the death of Achilles, and they’re going to leave Troy and go back to Greece and basically about the spoils of war and what happens to the women who are caught up in it. So it’s just absolutely fantastic. I highly recommend my nonfiction picks are Ideas with Consequences by Amanda Hollis Persky, who’s a college professor at Pomona College. This is about the Federalist Society. Lots of tea here. Also loved the Mosquito Bowl. A game of life and death in World War Two, which is by Buzz Bissinger, the Pulitzer Prize winning author of Friday Night Lights. This is also about football but it’s about a football game played between these college athletes who are stationed in the Pacific just after Pearl Harbor. And basically, they are playing in this one last football game before they’re all going to go off to war in the battle of Okinawa. So it’s really fantastic. Really amazing. Another fantastic book by my former Berkeley colleague, Stephanie Jones. Rogers, this is called They Were Her Property. And it’s all about white women’s roles in perpetuating and cultivating the institution of slavery. And again, just amazing historical detail really debunks the idea that white women were sort of passive in the institution of slavery, which is sort of been the historical narrative that’s been inherited. She shows like they’re actually very active participants and like she has lots to say about it and she’s an amazing, amazing historian. And then, of course, my final pick, which I’m sure you guessed, is Spare by Prince Harry, which is obviously going to be a Pulitzer Prize winning memoir.

 

Kate Shaw Wade is one of your favorites. And it hasn’t even come out.

 

Melissa Murray It hasn’t. I know it’s my favorite. I actually know I’m going to get like five different copies of it because all of my friends are like, you’re so hard to buy for it. But I bought a spare and I’m like, I think everyone bought me spare, but that’s okay.

 

Kate Shaw But did anybody get you an autographed copy of Spare Me?

 

Melissa Murray And that’s the challenge. If someone can get me an autographed copy of Spare, that would be my best friend. I’m like, my husband. Better get that together.

 

Kate Shaw We can. On Amanda Hollis Bruschi Can I just say that she also has a more recent book that I think Leah you blurbed, right, called separate but faithful about kind of conservative Christian efforts to change the law. And so let’s put that on the list, too.

 

Leah Litman So next question was kind of about someone who’s difficult to buy for, and it was a request for functional gifts that you use every day that make your life easier, which is the only kind of gift that some people apparently accept.

 

Melissa Murray So this was hard for me, like like a gift that’s practical and functional, but one that might delight someone. I think they might be two different things. So in terms of like my practical recommendations, like I love finding and like a stocking, something like scissors. Like I used scissors for everything. Scissors are great for cutting herbs when you’re cooking, like, you know, instead of chopping them, like, with a knife, like, just snip them. Why would you use anything else? They’re great for cutting pizza for kids. They’re great for cutting French bread. Like, just buy a whole bunch of.

 

Kate Shaw Cutting french bread with scissors? I’ve never done that.

 

Melissa Murray Try it.

 

Leah Litman Am I missing something?

 

Melissa Murray You are. Its like very even.

 

Kate Shaw Totally on team cut the pizza with scissors, which some people think is weird.

 

Melissa Murray Honestly, I literally almost severed my finger trying to cut a loaf of French bread with a serrated knife. And that’s when I just got some really heavy duty scissors and like, it was just much, much easier. So I highly recommend that. My other thing, again, this is sort of a functional thing that I like and I wish I had around all the time as I hate not having wrapping paper when you need it. And wrapping paper is such a weird thing like Oh, here’s a roll of wrapping paper, but it’s for Christmas and you actually need a birthday party wrapping paper thing. So I just buy a roll of Brown Kraft paper and then you can just like change it up with ribbons or you can make your kid stamp it or write on it or whatever. And it just like keep it around. It is like something that makes my life easier all the time. So I don’t know if it’s a gift, but it definitely makes things easier. And the final thing, and this is actually a gift, this is something I did when my kids were really little. I would go to TJ Max where they would sell all of these Melissa and Doug like very high quality wooden toys, but they were all deeply, deeply discounted. And I would literally buy like 20 of them and like 20 of these little gift sets, like puzzles, whatever. And I would just wrap them, put a little sticker on them, like what age it was for and just leave them in a closet. So whenever I got stuck for a gift for a kid, for a birthday party, there it was. And that made my life a lot easier. And it was a gift for someone. So it qualifies for this.

 

Kate Shaw Yeah. Kid gift stockpile is really critical. I think it just stops you from a lot of, like, panic last minute runs to the dollar store, which, like, you know, that stuff. It’s not it’s never going to be the greatest.

 

Leah Litman So I’m not sure if my recommendations, like exactly fit the bill, but here are some ideas anyways. A Spotify premium subscription is something you might use. It’s not going to just going to like sit there and collect dust.

 

Melissa Murray To listen to archetypes or strict scrutiny.

 

Leah Litman Or midnights on repeat newsletters, subscriptions for some types of people. Like if you’re someone who really likes like reading up on like civil rights and law, you know, Sherrilyn Ifill has a newsletter, Steve Vladeck has a newsletter. So that might be, you know, something that people might be interested in on a recurring donation or just like a one time donation to. An organization in, you know, someone’s name I think will touch on possible organization ideas a little bit later, a thermos for, you know, a warm drink. And then this is an if you win. But something that was really helpful to me is like a physical therapy gift card or something because like some people, if they might not realize, like if they did some physical therapy, it could alleviate some kind of like long running pain. So like I had some like lower back pain and ended up like seeing a physical therapist and got like recommendations for, like, things to do at my desk or just like different exercises to do. And it like completely went away. And so I think even without kind of like a long term or serious injury, sometimes speedy can be helpful. So again, depending on who are getting a gift for that might be another idea.

 

Melissa Murray We’ve really run the gamut. Scissors in physical therapy.

 

Kate Shaw Let me throw just two more in. One is, I think a really good pair of headphones is something that everybody could use and that people don’t always buy for themselves. I was sort of late to realize that having headphones that did not, like, jam into my ears but actually sat atop them. Yeah. Melissa, this is what I need to get for you next year. So really good headphones, honestly, that have like, you know, like the air traffic control looking ones like that, you know, have a little.

 

Melissa Murray You look like you could land the plane, right? Yeah.

 

Kate Shaw Well, I’m not even wearing these are the ones that connect to my recording setup, but I have like this similar looking parrot’s this one and it, you know, just like has a mouthpiece you can walk around and it’s just really excellent sound quality and you’re not going to like drop one on the subway or lose it or in the court anyway. So then of course they get tangled. So that I think is actually always kind of welcome, but you don’t always think to buy that sort of thing for yourself. So one other idea, sort of in the same vein, I think as the physical therapy case certificate is a week of meals or a couple of days of meals from Sakara. So they’re one of our sponsors. And so you may have heard of them, but they make these vegetarian like, you know, plant based meals and they’re actually totally incredible. And I got us actually the week of the election, like the midterm election, I knew that both my husband and I were going to have like completely insane weeks. And I actually just ordered us a week of meals because I was like, we’re either not going to eat or we’re going to eat horribly because no one has time to cook this week and having like these, like, beautiful fruit parfaits and like salads and other things, just like in the fridge to put in my bag to take to like the office or the studio was actually totally incredible. So I feel like that is another potential gift idea.

 

Leah Litman So also received a question about Netflix or other streaming favorites.

 

Kate Shaw Melissa has some thoughts.

 

Melissa Murray I watch a lot of TV. I read a lot of books, watch a lot of TV, and I am watching a lot of Netflix and streaming right now. So here are the things I’m really loving. Obviously, Harry and Meghan, it is a riveting rom com that’s going to turn into what I think will be a thriller of epic proportions. And the second half I haven’t watched. The second half I just saw the first half. But I think it’s going to be huge and I can’t wait for the second half to come out. So I highly recommend. I also like the crown. I admit that season five was a little uneven, but such high production values. I just really fantastic to watch. Beautifully filmed, highly, highly recommend. And I have to say, I do think it’s really interesting that whenever I write something about The Crown or Harry and Meghan, I get more hate mail than when I write something. Supporting abortion rights is actually incredibly. While like I think I put something out about the crown, like, I can’t wait for this documentary. And all of these people from England wrote in like, it’s not a documentary. It is completely disrespectful to the Queen. And so it’s just, you know, it’s wild. People feel some kind of way about this. And I think that’s exactly what you want in your television, like something that really provokes feelings. Another show that I like, also a Netflix from the great mind of Mindy Kaling is Never Have I Ever. Relatedly, on HBO, Max Mindy has another show, The Sex Lives of College Girls. And.

 

Leah Litman I love that show. I love that show.

 

Melissa Murray I love it, too. It make like I have a 15 year old and I’m just like, oh my God, I don’t know if I’m ready for this, but it’s really funny and I love it. I also loved Sex Education, which is a Netflix show that’s filmed in the UK. It’s really fantastic and I binged White Lotus. I literally saved up all the White Lotus for one binge session. It took such restraint, but oh my God. And Jennifer Coolidge is a national treasure. We should protect her at all costs.

 

Leah Litman The final episode of Season two might be one of the best episodes of television ever.

 

Melissa Murray So, so amazing.

 

Kate Shaw Yeah. Wait, so we have meant we haven’t watched any of it. We’ve managed to basically protect ourselves from spoilers. So, yeah.

 

Melissa Murray All I’m going to say to you, Kate, is like, at the end, you explain to me why Portia needs yet another terrible outfit. That’s all they.

 

Kate Shaw And that wasn’t a spoiler, though.

 

Melissa Murray No, it’s not just okay. I mean, yeah.

 

Kate Shaw I did watch the first season, but I haven’t seen one minute of the second season. But I do think that’s like a winter break project.

 

Leah Litman Yeah.

 

Melissa Murray So good.

 

Kate Shaw Luck. Yes. Okay, I have a few. Fleishman is in trouble. I don’t know if you guys are watching that, but the book was great and it’s only maybe three episodes have been released. We watch them. It’s Jesse Eisenberg and Claire Danes. And it’s really good. Really been enjoying that. I already mentioned pachinko, which we’re watching and is amazing. Yellow jackets are. Do we know when the second season is dropping? I know. Sorry, Leah. This is plane crash drama. You can’t.

 

Leah Litman Watch games.

 

Kate Shaw Yeah, but it’s so good.

 

Melissa Murray It’s so good.

 

Kate Shaw They picked it up definitely for a second season, but I feel like, I don’t know, there’s been like, mixed messages about when we should expect the second season.

 

Melissa Murray I think Showtime is just plays everything a little closer to the vest than the other streaming platforms. So yes, but Yellowjackets was fantastic.

 

Kate Shaw Yes, it was.

 

Leah Litman And new season of RuPaul’s Drag Race coming out January 6th.

 

Kate Shaw Very nice. One more to mention, the other two. Have you guys watched the other two? So it’s great and hilarious and I think it’s like maybe two years old or something. It’s the second season, but they have a third season coming out as well. Yeah, it’s totally brilliant.

 

Melissa Murray I would watch all of that. That sounds amazing to me.

 

Kate Shaw Leah, you just have RuPaul. Yeah.

 

Leah Litman Just. Just RuPaul. Well, I also like sex lives of college girls and season two of White Lotus. I feel like I was plus running those, so.

 

Melissa Murray God, don’t you watch The Bachelor, too?

 

Leah Litman I do, but I can’t recommend that. It’s like, you know, a show that I would encourage other people to go start now.

 

Melissa Murray Fuck Boy Island. On the other hand.

 

Leah Litman Well, the HBO Max did not renew Foy Island for a season three, which is a travesty. Some other network needs to pick that up because Fboy Island season two was a work of art season.

 

Melissa Murray There are two seasons.

 

Leah Litman Yeah.

 

Melissa Murray Okay, I missed one. Why didn’t you tell me?

 

Leah Litman I didn’t. Okay.

 

Melissa Murray Okay, I got to go back and watch season two. Watch. What about in addition to streaming platforms into other platforms? So what are your favorite Twitter accounts?

 

Leah Litman I am kind of obsessed with the New York Times pitch bar, Jay Javelin. It’s so funny. I feel like that is the account that I have most frequently laugh out loud when I just like read a tweet from.

 

Melissa Murray I feel like he listens to us because he says things like sometimes like there was no law, just vibes. Like he’ll say something like that. And I’m like, Oh my God, is he is he listening. Is he a fan?

 

Leah Litman It’s a possibility.

 

Kate Shaw It’s a brilliant account. And I also like it when people sometimes kind of mistake it for like the official nerd.

 

Leah Litman Yes. It’s so funny

 

Kate Shaw And it reminds me a little bit of people trying to fight with this. Go to blog Twitter account when it announces Supreme Court opinions and people are like, What are you doing? Because like, I’m just reporting what the Supreme Court did. So people sometimes do respond. But I think that is evidence of just how pitch perfect many of the.

 

Leah Litman Exactly. He’s really good.

 

Melissa Murray In terms of celebrity gossip I really love at Kaiser at celibate she so it’s at Kaiser K ICR at CB and at celibate she and both of those ladies run the website blog celibacy dot com which is like my go to for all celebrity gossip pop culture. It’s where I go for my family lore hypotheticals. It’s just fantastic.

 

Kate Shaw Oh, don’t tell your students that.

 

Melissa Murray Are they now?

 

Kate Shaw I would probably do better on some of these references if I started following these accounts. So I am personally very grateful to whoever asked this question because I have never heard of either of these two accounts. I’m not going to be good go to. I think that both Leah and Melissa are fantastic Twitter followers. But I just I feel like this is like a hard question because I don’t know how long for this world. Yeah, the platform feels like it’s going to be. We’re all still there.

 

Melissa Murray I mean, it did there was a certain Titanic quality a couple of weeks ago. What it really did feel like everybody’s singing near my God to be rearranging deck chairs. And then it was fine.

 

Kate Shaw It was. But then now Twitter’s not paying rent as office space and firing all these lawyers. I don’t think it’s fine inside now how long they can continue to maintain this operation, who knows? But it sounds like things are not totally copacetic.

 

Melissa Murray I mean, I’m I’m completely sure the whole thing is run by a hamster in someone’s garage in Palo Alto. It’ll be fine. I’ll be fine.

 

Leah Litman Okay, so one final category. Just random grab bag, gift ideas.

 

Melissa Murray No favorite things list would be complete without some favorite skin care. Because, as you know, there is someone on the court who takes her skin care very seriously, which means we should take our skin care seriously as well. And my favorite skin care pick is True Botanicals, which is fantastic. I recommended it last year. I continue to recommend it, but this year I have a new recommendation and it was prompted by seeing Justice Alito’s photo when he was portrayed in the newspapers after attending the Phillies Astro World Series game. And I saw him there in that picture. And I have to say, we talked about this a little bit. He looked a little weathered. And when I saw that photo of him, I immediately thought to myself, Melissa murray, you have to start using eye cream. And so that is what I want to recommend. I got this great eye cream from one of our sponsors, Jenny Sell, but the eye cream is called immediate effects. And like if you’ve had a hard night, you’ve like just gone too hard, stayed up too late, done something, working on edits, I don’t know, raging whatever you do after you take away a constitutional right and you just. Rage for a whole summer and you want to correct things. Immediate effects do a little bit under your eyes. Completely clear you up. You look amazing. So highly recommend. Thank you to Justice Alito for prompting me to investigate that.

 

Kate Shaw I’m going to recommend, just as in terms of random gift ideas to other kind of activities, who I do. I think that’s a very good genre of random gift. And I’m sorry, they’re both quite New York City specific, but I’m sure that there are versions of these in other cities. So one is a studio in Dumbo, although there’s also a manhattan location and it is called Loop of the Loom. It is a Zen weaving studio. So you sit at this Zen loom for 2 hours and weave a beautiful, beautiful piece of fabric. And I literally have I’m holding up now. What do you do? This is what my ten year old made at our session a couple weeks ago. It’s so beautiful. Mine are in my office hanging like over things and it’s the most meditative and soothing activity. And you come away with a beautiful textile. So that I think is a great gift idea. And the other one is there’s an awesome new spa on Governors Island. This crazy old island.

 

Melissa Murray I’ll go with you to that.

 

Kate Shaw I would wear. We have to get you to New York and we have to go to this crazy spa. You take a boat for 5 minutes to this little island that, you know, was a military base and barracks and is like being slowly repurposed in various ways. And there is a brand new spa you can plunge into a pool and overlook the river and Manhattan and it’s just beautiful.

 

Leah Litman So I suggested we were going to come back to organizations later. I would just put in a plug for making a donation, like in someone’s name to one of the many organizations who are doing like wonderful work and needed work. You know, around this time a few I’d put it in a plug for REITs behind bars, you know, an organization that is trying to curate and lead litigation on behalf of people, you know, who are detained. Another is a second look project which, you know, helps resentencing in the District of Columbia, abortion funds extremely needed and then also political organizations. So whether that’s like sister district or organizations that are already looking ahead to 2024 or red, white and blue, there are just like so many different things that you could get involved in start to chip in.

 

Kate Shaw Now let me just jump in with a couple of other potential charitable giving ideas. So, one, I’m going to make a plug for the John Paul Stevens Foundation, which is a small foundation. I’m on the board of it does summer stipends for public interest fellowships. We just expanded last year to six HBCU’s and we are funding law students doing amazing summer work. So that’s one idea. Second, everything that Leah just said, let me just add global health. Go to organizations like Doctors Without Borders and Partners in Health and then a plug to support local media. Right. Like NPR just announced a bunch of cuts. If you listen to NPR and you haven’t pledged this year, kick them some cash in New York. The city is an organization doing local reporting, is a nonprofit. There’s an organization called the Institute for Nonprofit News I. And that you can go to to find a local news nonprofit in your area. The number of people employed by local news in the number of local newspapers is just plummeting and really has plummeted over the course of the last 15 years. And it’s unbelievably important and just does require money to survive. So please do support. Local news organizations.

 

Melissa Murray Also want to put in a plug for the Public Rights Project, which funds graduates as fellows and various city litigation departments so they can do affirmative litigation at the state and local level. They’re fantastic. Jill Hedberg, who started it, is just wonderful. Please take a look at them.

 

Leah Litman Since this is a holiday episode, I feel like we have to notes, you know, the Holiday Party from Hell, which was recently discussed in the news.

 

Melissa Murray Santa Con Santa Con.

 

Leah Litman Did Justice Alito show up at Santa Con?

 

Melissa Murray Do we know? How would we know? There were so many Santas.

 

Leah Litman Right? This is not the holiday party from hell that I was suggesting. Instead, Politico reported that Matt and Mercy Schwab’s annual Christmas party included the following guests Matt Gaetz, but.

 

Melissa Murray Also his wife came, which to me was a revelation that I hadn’t realized. He actually tied the knot with his fiancee, Ginger, and she’s now Ginger Gates, and she was listed as attending as well.

 

Leah Litman Sean Spicer, who it was a crime for him to appear on dancing with the stars. Alex Acosta, Steven and katie miller.

 

Kate Shaw You skipped sab gorka.

 

Leah Litman Oh, god, i was going to include him as well. Chad Wolf. Erik Prince. And who did I leave off? Oh, yeah, justice Brett Kavanaugh. They were just all partying together, ringing in the holiday, totally normal and fine, because if you’re not a partizan ideologue, you hang out with Stephen Miller, Sean Spicer, Matt Gaetz, Erik Prince.

 

Melissa Murray And John Gorka, who’s a nightmare.

 

Leah Litman FOX Yeah, yeah, yeah.

 

Melissa Murray Whose views were too extreme for the Trump administration.

 

Kate Shaw But I have a question, which is why wasn’t Sam Alito there? Do we think he was.

 

Leah Litman He was having a casual and purely social dinner with the riots, during which they were definitely not discussing the outcome of the voting rights cases and other things, too.

 

Melissa Murray He was at Meghan Kelly’s house, at her party. Yeah.

 

Leah Litman It’s I guess another holiday gift is we didn’t get any December go to SOPs so you know, delaying. Thank you, sir. Damage and gas. So things right.

 

Melissa Murray Up until the end of the year. Thanks, guys.

 

Leah Litman Strict Scrutiny is a Crooked Media production. Hosted and executive produced by me Leah Litman, Melissa Murray, and Kate Shaw produced and edited by Melody Rowell. Audio Engineering by Kyle Seglin Music by Eddie Cooper, production support from Michael Martinez, Sandy Girard and Ari Schwartz and digital support from Amelia Montooth.