Behind the Scenes of Overturning Roe v. Wade | Crooked Media
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December 18, 2023
Strict Scrutiny
Behind the Scenes of Overturning Roe v. Wade

In This Episode

Before we settle in for a long winter’s nap, we have a LOT to catch up on. First, Jodi Kantor joins the pod to talk about her reporting, with Adam Liptak, on what went down behind the scenes at SCOTUS as the conservative majority sought to overturn Roe. Then we go over some new grants of cases the Supreme Court will hear in the near future– including the mifepristone case, and a case about January 6th convictions. We also recap some bananas arguments in Wisconsin over a gerrymandering case. And then finally, we share our 2023 edition of our favorite things! Whether you’re still holiday shopping for loved ones or need ideas on how to spend your gift cards and cash, we’ve got you.






Show Intro 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 Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. Where are your hosts? I’m Melissa Murray.


Leah Litman I’m Leah Litman.


Kate Shaw And I’m Kate Shaw.


Melissa Murray We have our annual Favorite Things episode all queued up for you, so don’t worry. But in the brief period since we recorded that episode, some big things have happened at One First Street. And so we wanted to talk about all of that breaking news before we turn to our favorite things. First, we are going to do a deep dive into that bombshell New York Times reporting that was brought to us by Jodi Kantor and Adam Liptak about the Supreme Court and the lead up to the court’s historic decision in Dobbs versus Jackson Women’s Health Organization. And joining us today will be Jodi Kantor to talk all about how she and Adam got to the bottom or at least close to the bottom of that Dobbs story. And then we are going to turn to the myth of Preston Grant that the court took up last week. And we’ll talk a little bit about what that means going forward and what it could mean for medication, abortion, access throughout the country. And then finally, we will turn to our favorite things, all of the things that you can drop in our holiday stockings and perhaps in your holiday stocking as well. So basically, this is our least favorite things and most favorite things episode.


Kate Shaw Even this first segment is a combination because hard hitting journalism that exposes the inner workings of the Supreme Court actually is one of our favorite studies. So the first piece of news that we wanted to cover is The New York Times latest bombshell reporting on the behind the scenes maneuvers at the court regarding Dobbs and abortion rights. And with us today to discuss that story, which is coauthored with Adam Liptak is Jodi Kantor.


Melissa Murray Listeners, Jodi’s name should already be familiar to you. Not only did she, along with her new york times colleague Megan Tuohey  break the Harvey Weinstein metoo story. Just a year ago in November 2022, she, along with Joe Becker, broke the story about influence peddling at One First Street and the Hobby Lobby leak. So let’s just say that Jodi is really, really, really good at digging into stuff that people would prefer to keep secret. So welcome to the show, Truth seeker Jodi Kantor.


Jodi Kantor Thank you so much.


Leah Litman So honestly, where to start with the reporting? There are a lot of things we could cover from it. So let’s start with a bit. Before they took the case, or at least before they took the case publicly.


Melissa Murray A good caveat as a caveat. Jodi, can you talk us through what you learned about the timing of the court’s decision to hear Dobbs and its announcement of that decision? Because it seems like there’s a little mismatch here.


Jodi Kantor So one of the themes that Adam and I kept finding in our reporting is that Justice Ginsburg’s death really hung over the whole process. And you can see just from looking at the public docket that there is a very close relationship and timing between Justice Ginsburg dying and Dobbs moving into position for consideration by the justices. And what happens is that first it’s rescheduled, as you know, but these terms are a little arcane to the public. That essentially means the discussion is just pushed. It doesn’t really happen. The discussion is delayed by the court. We found out that behind the scenes it was Justice Alito who was doing some of that rescheduling in the fall of 2020. And, of course, Justice Barrett is just arriving at the court at that point. So some insiders had the impression that he was sort of giving her time to get settled. But then in January of 2021, the real discussion begins. And you’re right, the timing discussion is sort of the most interesting thing about it. First of all, the discussion takes place. It starts on January 8th, 2021. I thought a lot about that as I was working on this story. I just remember thinking, wow, two days after January 6th, right? So, you know, it’s a very scary time in Washington. There’s been this attack on democracy. But as you know, the justices follow their own agenda. There’s a kind of compartmentalization from the news, and they’re taking up the discussion of whether and when to hear. DOBBS And initially, there are five votes to grant. So that’s, as you know, smooth sailing. That is the case has more than cleared the bar to proceed.


Melissa Murray All you need is four to grant.


Jodi Kantor Exactly. The second discussion, though, is in a way more interesting because it’s about timing and that’s where there’s disagreement. Three justices, Justices Alito, Thomas and Gorsuch, they wanted to move pretty fast. They wanted to hear the case that term. So think about that. Justice Ginsburg, is the court’s sort of foremost protector of abortion rights has just died. They want to move ahead pretty much immediately now, as we know, not just from this reporting, but from the legal world, this is a sensitive issue in the. So there’s this timing discussion with some disagreement. Justice Kavanaugh makes this. My understanding is that it’s a pretty unorthodox proposal. It’s hard. What I’ve learned is that it’s hard to say what’s orthodox and unorthodox at the court, because nobody really knows what happens inside this.


Melissa Murray I think it’s safe to say that if it is unorthodox, it’s definitely from Brett Kavanaugh. So this checks out.


Jodi Kantor We believe that this is unusual. And what he says is that, listen, we can delay granting we can release this on the public docket through the spring. And he’s got a specific reason, which is that there are other abortion cases winding through the lower courts, and this will give them time to watch that. But it has another effect, which is it is going to distance taking the case from Justice Ginsburg’s death. It is also going to satisfy the concerns of or maybe satisfy the concerns of a very important person who is Justice Barrett. I think one of the most interesting things that Adam and I learned is that Justice Barrett was not somewhat contrary to her public image, an automatic yes to hear Dobbs. She had hesitations from the beginning. And in this discussion she said, if you hear the case this term, I’m going to change my vote from a grant to a deny. And she cites these timing reasons. She says, I’m brand new on the court. I haven’t even been here three months. She essentially communicates that she is not ready. So this relisting plan goes forward. There’s this delay. The public doesn’t know what’s happening for months and months. There’s a lot of agita on the outside about whether they’re going to take the case or not. And then the twist is that even though they are going to hear it the next term, she switches her vote and she’s a denier and it’s only four votes, the green light. DOBBS It’s all male justices.


Leah Litman I mean, you know, I guess what to think about this. You know, obviously, it underscores that Brett Kavanaugh cares a lot about what people think about him. And maybe also the court like we know this from his entire essence. Right. And like a general persona.


Melissa Murray This is really giving the Meredith Gray of the Supreme Court. I mean, this is very pick me, choose me, love me behavior.


Leah Litman Yes. Hands down. And it also has the effect of America’s favorite father of daughters gave the ladies of the United States an additional year of rights. Should we now think of him as the greatest feminist on the Supreme Court for all time?


Kate Shaw Not an actual question.


Jodi Kantor But but to be fair, what I think is also interesting is this window of persuasion that it opens. And listen, you know, what Adam and I talked about early in the process is we said we have to report the facts and other people are going to have their interpretations. And that’s the way we’re going to do this, because there are, I think, multiple ways to interpret this. And as you know, you can’t actually mind, right? The justices, Right. We we don’t know you know, we don’t know what many of them were thinking during this process. So it does create this situation where in this case it was Chief Justice Roberts and Justice Breyer, I think, really did not want the court to take the case. They made the case against it. Part of Justice Breyer’s case was public. You know, you heard it in that speech he gave at Harvard Law School. He was very open, I think, actually, about the way he felt. And the argument we know that he used inside the court was partially generational. I mean, think of Justice Barrett at this point. I believe she’s 48 years old. He’s 82. She was a justice when she was a clerk. So that’s the kind of generational transition you’re you’re seeing and he’s seeing as kind of a respected elder of the court. You don’t need to rush. You just got on this court. You don’t need to do this yet. So I appreciate that we’re kind of turning this over and over because I know what the facts that Adam and I can report are. But I’m actually not sure we 1,000% know the full meaning.


Kate Shaw I think this is wildly unorthodox. And I’m also not naive about I mean, there have been many, many politically motivated timing decisions, I think made by the court when it comes to cert grants. There was lots of speculation, you know, with still, I think, varying accounts of the decision making around when to take up Casey, for example. But there are lots of other historical examples, both distant and more recent, where I think people think that political judgment was brought to bear on the decision of when to take up a case. So that has happened before, but to my knowledge, an affirmative vote being taken and I think an affirmative misrepresentation to the public via the docket that no vote has been taken because a case is still being relisted for consideration and vote. That is an affirmative misrepresentation that to my mind we are at least not aware of any precedent for that. And that also strikes me as just fundamentally different from a kind of wink and nod decisions to wait before a formal vote has been taken. And so I do think that this feels new and it does feel like misrepresentation that also involves parties other than the justices. What were the clerks told the both the chambers clerks like the, you know, the recent law grads who help the justices, but also the clerk’s office within the Supreme Court that, you know, maintains the docket that is public. The public does have access to it, and it seems to have contained misrepresentations for this period between January and May. And all that does feel and feel actually really new and different to me.


Jodi Kantor Well, but then consider the fact that the votes do change. The result is functionally the same, but the score is different.


Kate Shaw Yeah.


Leah Litman And do you have a sense for like what change? That is why Justice Barrett changed her vote when they finally took the vote later in May. You know, again, deciding to grant the case that they had already decided to grant in January, but do it publicly. And also in your reporting, you suggest that the four men who stood firm on their vote to Grant did so because they were betting that Justice Barrett would still be with them on the vote to overrule Roe. And I guess I’m just curious to hear your thoughts on whether you got a sense for what changed from Justice Barrett. But also that reporting was so striking to me because it is about the justices confidence and how the others will rule on cases not yet before them that they haven’t discussed in detail. Again, kind of this misleading the public angle when Republican senators have been telling the public, we have no idea how this woman who has decried abortion on demand might rule on the future of Roe versus Wade and telling people it’s just wild to speculate. And here you have the justices doing it, and it sounds like they’re pretty sure.


Jodi Kantor So I wish I could answer your question about why Justice Barrett changed her vote. I mean, it’s a it’s the right question. It’s a fascinating question, in part because she’s such an interesting, I think, an important member of the court. And I think understanding her better is a really worthy goal for all of us. The biggest hint we found was in this law review article we cited in the piece, you know, she, like many of the other justices, she has written a kind of treatise on when it’s okay to overturn precedent and when it isn’t. And you saw the quote in the story. She says that, you know, she makes this point that if precedent is changed too quickly after a change in composition in the court, it could look like sheer power and politics prevailed instead of reason. So we thought it was worth pointing out that this was something she had thought about in the past. So anyway, I certainly wish we knew. I wish we knew. And it seemed from oral arguments that she seemed pretty firm in her vote on the merits. But but again, I mean, listen, we are not pretending to have complete omniscience with the story. There’s obviously a lot more we would love to learn. And, you know, that sort of brings us forward, I think, to the question of were these five votes 1,000% solid? We have reason to believe they were. I mean, this story starts with these really fast, joins, you know, where this coalition is coming together very quickly and without comment. Then again, we know that, you know, in the past, justices have sometimes changed their votes.


Kate Shaw Maybe one more beat on Barrett. And I think your point already, like it is really important to try to understand better what makes her tick, I think is correct. And reading your story was just a reminder. I have said before on this show it probably repeatedly that I just find it endlessly frustrating that she doesn’t write in her own name a short concurrence that explains anything in her voice about what she thinks of this question, especially in light of Thomas writes separately and Kavanaugh writes separately, and of course, Roberts writes separately. And of course there is a dissent. But but I desperately wanted to know at least a little bit in her voice, and not just with this silent but outcome determinative. Join what she thinks about all of this and the back story that you tell only heightened the urgency of that question to me. And so I think it’s so right that we we all like, just need to understand her. And right now she’s not really helping. I think let’s pivot to not the kind of pre-history, not the taking up of the question, but the actual opinion in. DOBBS So as you start your story by telling it is shockingly fast how quickly the circulated draft opinion picks up votes and memorably. Right. One of the most jaw dropping details in. The story is that Justice Gorsuch joins within 10 minutes of the circulation of the draft opinion by Justice Alito, which I think is, you know, 98 pages.


Melissa Murray He’s obviously a speed reader and an historian.


Kate Shaw Yeah, know that. These are the questions. How do we understand the join in 10 minutes and maybe I’ll just say one thing. You sort of allude to this. It’s not unprecedented nor, I think is it improper in all circumstances for there to be side conversations and potentially even side consultations about draft opinions. It happens sometimes. When I clerked there. A justice I think is not disabled from sending to one person in order to do some, you know, kicking of the tires of some reasoning as they’re working through an opinion. But is the suggestion that there was an entire side conversation that was happening between Alito and the other justices in the, you know, majority, the grand were including Barrett, who would initially have been a vote to grant such that they had all fully immersed themselves in the draft before the circulation. And I have my sort of suspicion that I’m not sure that even could be true. But is that your sense of how the votes likely came so fast that they’d all already read and endorsed all of it?


Jodi Kantor What we say in the story is that that’s apparently what happened, and I think that’s as far as I can go. But as you say, it’s not an unusual practice at the court to pre circulate an opinion. And also, you know, I think it raises a question, which is, again, how confident was Justice Alito in his ability to hold those five votes together? He had lost one of those people on cert. Now, granted, voting for cert is very different from voting on the merits. But, you know, this is the seesaw of the job story, right? On the one hand, the five votes looked really solid. You know, On the other hand, is there a possibility that there was some wobbling? Sure. And then, you know, what we can really say is that we know that the chief justice and Justice Breyer really wanted to change the picture during the merits phase. I mean, we tried very hard to explain to the reader because the math of the court is so arcane, but essentially through the way they count votes, the chief justice only needed one more vote to change the entire outcome. It couldn’t have come from a liberal. We learned that Justice Breyer was contemplating joining the chief’s 15 week position. That wouldn’t have made the difference because the vote couldn’t have come from the Liberal side. It had to come from from Alito’s coalition. But yeah, I mean, one more person and the entire outcome would have been different.


Leah Litman Can I just say something about like the ten minute join and the possibility of like pre circulating an opinion? Getting back to something you said earlier, Jodie, about kind of like the craft and the care of carefully constructed opinions or let’s say not so carefully constructed opinions. This case was argued in December. Justice Alito circulated a 98 page draft in February. 10 minutes later, Neil Gorsuch joins it. You’re telling me that, like Justice Alito, took all the care necessary to actually look through all of the history, right. Produce a draft with enough time to circulate among his colleagues to allow them to do all of the site checking and all of the passing through, all of the relevant sources that Neil Gorsuch was confident enough within 10 minutes to join it. I mean, like that just strikes me as so not judicious. And let’s say hypothetically, for whatever reason, I don’t know. Justice Alito had been pre writing this opinion, overruling Roe for like the last decade maybe, and had like circulated it the day after. Right. Like Dobbs is argued. And then maybe Gorsuch. Right. Like has two months with it before he like signs on still to join in 10 minutes strikes me as just a slap in the face to his colleagues and also to a like the American public and women, just the lack of care and concern for norms and judicious behavior. It’s like that. That just struck me as kind of appalling.


Kate Shaw On the timing thing. I totally agree. Even if there’s pre circulation, I suppose, unless he’s literally been writing it for years, which is not I would not discount the possibility. But either way to read it carefully if you care and actually to review the 16th century sources included, and to actually.


Melissa Murray And the statutes. All of those statutes.


Kate Shaw All the state statutes from like the 19th century and to take time with like the lines of doctrine, the equal protection, like analysis, the.


Melissa Murray Law review editors take more time with a law review article.


Kate Shaw Yes.


Melissa Murray Than they did with this opinion. Seriously.


Kate Shaw No, there’s no way. Yeah, there’s no way they could have done it. Even if he circulated it within days of the oral argument, There’s no way they could have done a careful review.


Melissa Murray I do think Leah is correct.


Kate Shaw Think this is perfect. No changes. Like what?


Leah Litman None of them requested any change.


Melissa Murray Yeah, but Leah’s right. I mean, like, I do think that this was. An opinion many years in the making. Like even if it was only in his own fevered mind, like they he’d been thinking about this for a while. But the point about the two months, like for the other chambers, there was no fact checking done at all.


Jodi Kantor We are always interested in learning more about this and more about the court. And I think especially in the places where this, you know, conversation is naturally passing into a little speculation as opposed to what we know for sure. If there’s anyone out there who wants to add information, I’m going to give you the best way to get to me. And Adam, which is actually through The New York Times tips line. You can Google it at slash tips. I mean, my job is to build people’s confidence in telling the truth. And I do think it’s important that, you know, the historical record on this is correct. So if there are people who hear this, who want to help or have other information about the court that they want out of an eye to understand, please do get in touch.


Leah Litman And that includes you. Justice Alito, if you would like to write an op ed explaining how you actually spent decades crafting this opinion and did thorough so checking, we know you have a soft spot for the opinion pages of flagship legacy media print.


Kate Shaw You know, he’s taken that to The Wall Street Journal. He writes that op ed.


Melissa Murray Can we tag back to Justice Breyer and the effort to broker a compromise? And I think it’s really important that you help to explain the math to the public. I think we saw some elements of that math at oral argument where the chief justice was trying to float this compromise position whereby the court would uphold the challenged Mississippi ban but would stop short of overruling Roe and Casey. And Justice Breyer, I think, joins the effort to try and get that compromise moving. And apparently it might actually have worked or at least have softened some of the people in the middle. And I imagine the ones in the middle are probably Brett Kavanaugh and or Amy Coney Barrett, or at least one of them. But then everything hits a wall because the draft opinion is leaked to Politico. So did you get a sense in your reporting about whether there had been any headway with these justices in the middle that were the targets of Justice Breyer’s and Chief Justice Roberts brokering? And in fact, did the leak just sort of stop this and kind of arrest that process of compromise as it was just beginning to gather steam?


Jodi Kantor We can be way more confident in talking about the effect of the leak than we can in seeing what might have happened if it didn’t happen. The effect of the leak was to render these efforts pretty much hopeless. I mean, there’s a reason why these votes are secret. They protect justices who may want to consider changing their votes. In our reporting, we didn’t find some dramatic moment in which, you know, one of the five yes votes is, you know, contemplating becoming a no. We would love more information. But I also think it’s it’s a very hard question to answer because it’s a hypothetical. Right? It’s a possibility that was cut off. And we’ll never know how things would have been different without the leak.


Leah Litman I don’t know. I got a sense that in that ninth minute, you know, before the 10th when he joined, Neil Gorsuch was really hesitating. But, I mean, I maybe that’s just me reading between the lines. So we should also say, like a lot of this story that you report is unfolding at the same time as the Supreme Court is handling. SB You know, the bounty hunter law that effectively nullified the protections of Roe versus Wade in Texas before the court formally overruled Roe. And your reporting contains some, again, just eye popping details about what happened in that case. One is Justice Sotomayor’s final memo or message to the conference, which was just kind of gut wrenching, you know, where she wrote to Alito and the rest of the conference. You know, what a pity that we cannot do the right thing. And then there was this other detail, which is during the negotiations over whether to stay this law before it went into effect September one. Justice Gorsuch was like out of touch and couldn’t be reached except by Sam Alito. So like with just a few hours until midnight, you say the court was split four four. Neil Gorsuch hadn’t written. He doesn’t check in that evening. Justice Alito reported to his colleagues. And then like he just says, yeah, I’ll decline to intervene as well. What was going on there? I mean, they knew this petition was coming to them and he just like, disappears.


Jodi Kantor I mean, for me, that episode is really about two things. One, it’s about. Just the portraiture of the moment when Roe really begins to fall. Because as you know, this Texas, it’s like the justices are preparing to hear. DOBBS Right. This couldn’t be a bigger deal. The attorneys on both sides are prepping. You know, this is getting all the treatment that a major case gets. And here this Texas law comes and races ahead. And it’s this extremely restrictive abortion bill at all that bans abortions in the state of Texas. As you know, it’s got this very unusual enforcement mechanism that makes it pretty much exempt from federal review. And when it goes into effect, ROE is basically going to be dead in the second largest state in the country before the Supreme Court has even really been able to hear the full question. And so part of that reporting for me was just about like in a way being present and being historical witness to this happening. And then the second part is the way it happened, which is this is a shadow docket case. And so this episode gives us a really rare look at what is happening inside the shadow docket and how chaotic it feels in contrast with the kind of orderly procedures of the court’s usual operations. And so, listen, I can’t tell you where Justice Gorsuch was or what the explanation was for his absence. As you can see in the story, we asked and didn’t get an answer. And also, it had no substantive effect on the law because the court declined to intervene. It went into effect. They made an announcement the next day. But I think the mystery of it is almost what’s compelling, because it’s this major moment when the law is changing and it’s happening in this kind of chaotic scramble to midnight with one justice having failed to vote.


Melissa Murray Well, Jodi, you have given us one of our favorite things this holiday season. And we were absolutely riveted. You had us with Justice Alito at the printer. I’ll just stop there. It was amazing. We loved it. Thank you so much for this really important and probing deep dive into the court’s inner workings. And thank you for showing the public that they can and should expect more in terms of transparency from the court. And some of what you have revealed through your reporting, I think presents real questions about whether the court has been truly transparent with the public. And I think that’s important for you to have put on the agenda.


Jodi Kantor Well, it’s a pleasure to join you. Thank you so much.


Melissa Murray [AD]


Kate Shaw Our second piece of breaking news is that the Supreme Court, to no one’s surprise, granted the government and the drug manufacturers certain petitions in the medication abortion case. So that means the court will be hearing that case this term. And we wanted to highlight a few notable things about that grant. So first reminder that Judge Matthew Kacsmaryk in the district court had actually revoked the FDA’s approval of mifepristone, which dates back to the year 2000. His ruling, had it gone into effect, would have rendered mifepristone an unapproved drug. Now, the Fifth Circuit reversed that ruling, basically finding that the challenge to the original 23-year-old approval wasn’t timely. But the Fifth Circuit also reinstated a bunch of restrictions on mifepristone that the FDA, the expert agency that has studied this question, had deemed unwarranted. And those restrictions, if they go into effect, would dramatically alter the availability of the drug. They would prohibit telemedicine. They would require in-person pickups and prevent distribution of the drug under current labeling. So those are incredibly consequential restrictions. And if the Supreme Court affirms the Fifth Circuit, all of those would go into effect.


Melissa Murray But it’s important to remember that at least as of now, the stay of the Fifth Circuit’s order remains in place and will remain in place until the Supreme Court decides this case. So nothing in the current landscape with the availability of mifepristone will change until the Supreme Court actually issues its decision. And interestingly, the court did not agree to hear the Alliance Defending Freedom Cross petition, which had asked the court to review the fifth Circuit’s holding that ADA could not challenge the initial approval of mifepristone, rendering it an unauthorized drug. So that is perhaps some good news as well.


Leah Litman It is. But I want to sound a note of caution. I think, you know, we have all kind of speculated that we think the most likely outcome in this case is that the court will dismiss the challenge, finding that the plaintiffs, you know, this group of anti-abortion doctors lacks standing. And, you know, that will be legally correct. That will be good in that it will do away with these additional restrictions on mifepristone. But that will leave open the possibility of a future Republican administrations revival of the Comstock Act, because it would mean the court would resolve whether the Comstock Act could be interpreted in a way to prevent the distribution of medication, abortion and potentially other drugs. And, you know, this ruling, if it is what I think it will be dismissing the case on standing, might blunt public concern on these issues in the lead up to the next presidential election. In fact, I assume if Brett Kavanaugh thought the court would actually go along with the Fifth Circuit’s ruling, he just would have delayed publicly granting this case until next term. And so it would be heard after the fucking presidential election. And we should say the federal government asks the court to take this case now. I think they should have. But there’s also the Republican led states motion to intervene in the district court. And so it’s possible, right, If the U.S. Supreme Court says these plaintiffs don’t have standing, the district court and Fifth Circuit will come back and say, well, this other group of plaintiffs might have standing and then just do the whole thing over again, again after the 2024 presidential election. So that’s my sour, sour note.


Melissa Murray I think that’s an important note of caution to sound. It’s also worth noting for our listeners that the Comstock Act is an 1873 statute that prohibits the distribution in interstate commerce of any articles that have a quote unquote immoral purpose. And historically, that was used to prevent the distribution and interstate commerce and through the federal mail service of anything like information about abortions or contraceptions. The articles themselves erotic that anything it’s been in a state of relative destitute for the last 50 years or so, but it could be revived to address the question of sending abortion pills through the mail. And so that is the note of caution that we have sounds, and it’s a good one. We should also note that the court took a bunch of other really important cases, cases that we’re going to spend a lot of time talking about in the new year. So if you’re excited about them like we are, and which is to say we’re excited about covering them, we’re not actually excited about them. Yeah, but please be sure to recommend this podcast to your friends, but to give you just a taste of what’s going to be on the docket for next year. The court granted certiorari in a case that will decide whether a bunch of January six related convictions will actually stand. The case is called Fisher versus the United States, and it asks the court to consider whether a conviction under a federal obstruction of justice statute that prohibits obstructing federal proceedings and investigations requires proof of evidence tampering or other impairments of evidence, or if it can be applied in the context of disrupting an official proceeding, like, for example, the certification of the Electoral College. A number of January six defendants have been convicted under this law on the theory that the statute applies broadly to. Any kind of effort to interfere with an official government proceeding. But this particular defendant, Mr. Fisher, argues that the law, which was passed in the wake of the Enron controversy is really only intended to apply to obstructions of federal investigations, where the obstruction involves evidence tampering, as was the case in Enron. So the question is going to really put it to the textualist on the court, because the broad text of the statute, I think, could apply in the context of obstructing a congressional proceeding. But these defendants are basically arguing for a purpose driven approach to the statute, which is to say that it was intended to deal with Enron, not to deal with January six. So that’s going to be huge. And it’s also going to have real consequences for the January six election interference indictment that Jack Smith has filed against Donald Trump, because one of the four charges against Donald Trump is that obstruction of an official proceeding?


Kate Shaw Well, it’s one of the obstruction. And the other, I think, is conspiracy to obstruct. So I think they’re both I think they’re who were before are kind of tied up in or at least connected to this petition that the court has granted. So there’s certainly Trump implications for this case. And separately, Jack Smith has attempted to leapfrog the D.C. Circuit and bring to the Supreme Court in a request for cert before judgment, the question of whether Trump is a hater. I have to say this like it’s a serious legal argument. But Trump says he’s absolutely immune from criminal prosecution because the court has had some cases in which it has said some kinds of immunity attaches to the president, but certainly never absolute immunity in criminal matters. It’s just a farfetched argument that.


Melissa Murray Kate, that’s more of a case of first impression, because we’ve never had a president who has been criminally indicted, least of all four times. But the really stupid argument is that.


Leah Litman The double jeopardy.


Melissa Murray The double jeopardy argument is the truly stupid, stupid, stupid argument. And they’ve got to hear that one, too.


Kate Shaw So that’s that’s true. But that one, I honestly think there’s no chance anybody on the Supreme Court will go for it. And I think that the absolute immunity from criminal prosecution argument is one that the court will consider seriously and should, if it has any integrity, dismiss without much, you know, with a step by seven people.


Melissa Murray At the very least. And that’s that’s a.


Kate Shaw Should and an F and all that. But in any event, I think there’s a real chance because Smith is asking for expedited consideration. And the court granted that expedited consideration hasn’t granted the petition. But this week, I think Wednesday, Trump’s team has to respond. And so if the court wanted to, it could grant this cert before judgment and schedule a special session the way remember it did two years ago in January, it’s scheduled very, very fast. Consideration of the test or vaccine mandate for large employers could do the same and schedule an early session in January before they take the normal bench again. And I really think they should, because otherwise Trump will drag this argument out until there is no way for a trial to happen before a judge Chuck in before the election.


Melissa Murray So this is, I think, a really important point. Just the court’s capacity for expedition like this court can move fast when it wants to go, and it has move fast like Bush v Gore is a paradigmatic example of the court moving very, very quickly. It needs to move quickly. I mean, I think he’s ultimately hoping to delay this until after the election and then he’ll win. If, you know, if that happens and he’ll just make all of this go away. So, I mean, the court really has an opportunity here to step in and make sure that the American people have a clear answer about whether a candidate for president is someone who actually should be wearing an orange jumpsuit.


Leah Litman One other petition that the court has already agreed to take, perhaps because this court’s shamelessness knows no bounds, the court, ostensibly with Justice Thomas participating, will also decide whether the federal bribery statute prohibits payments to state and local officials for actions the officials already took without requiring evidence of a quid pro quo. In that particular case, the petitioner, the defendant, received $13,000 from a government contractor to which he had successfully steered two contracts worth more than $1,000,000. Cannot wait to hear what Clarence and Sam think about your friends giving you stuff after the fact, after you’ve given them some pats on the back. Lisa Blatt is also the counsel of record for the defendant in this case. So, you know, this argument is going to be one hell of a good time.


Kate Shaw I just worry the court is running out of corruption statutes to completely decimate like there’s just not that many statutes left that they can.


Leah Litman They will decimate them further.


Melissa Murray Leah, if you weren’t going to steer these contracts to this defendant, they were going to be steered to someone else. So he might as well have taken that right.


Leah Litman And again, like if you just want to give tens of thousands of dollars to government officials, isn’t that basically your right?


Melissa Murray I mean, there’s it’s not unconstitutional to give a gift.


Leah Litman Exactly.


Kate Shaw All right. So we also wanted to take the opportunity to circle back on the story of Kate Cox. Kate Cox, as listeners will remember from the last episode as the mother of two who received a fatal fetal diagnosis, went to the E.R. multiple times with cramping and leakage and requested an order that she could receive an abortion. Under Texas medical exemption, a trial court granted her that order. The Texas Supreme Court stated. And after we recorded our last episode, Cox left the state in order to get an abortion.


Melissa Murray When Kate Cox left the state of Texas to seek an abortion elsewhere, that likely muted the case. But the Texas Supreme Court nonetheless released its decision, and in that decision, it explained why it was vacating the lower court’s order, allowing Kate to get an abortion. And in doing so, it basically ensured that Kate Cox would not be able to get an abortion in Texas. But I want to call out the opinion because it is one of the most gaslighting heavy judicial decisions I think I’ve seen of late. We’ve received several questions about it, and so we want to briefly note what it said and what it didn’t say. So first, the opinion says that Texas’s abortion restrictions allow doctors, but not courts, to determine whether a patient’s bodily functions are significant enough risk to warrant an abortion under the medical exemption provision. This is categorically insane and ignores the reality of what it is like to have a fetal diagnosis and then be in a position where you have to terminate the pregnancy in order to preserve your own fertility and the possibility of future children. So there’s that. And it’s not doctors who actually determine any of this. It’s actually law enforcement officers who are threatening prosecution, as they did in this very case. If the doctors were to perform the requested abortion on Kate Cox, recall that Attorney General Ken Paxton issued a threatening letter to three Houston area hospitals where Kate Cox’s physician had admitting privileges, warning the hospitals that if Kate Cox received an abortion there, there would be both civil and criminal liability for the physician and for the hospitals. And leaving that to the side for the moment in the event that there would be a prosecution. It’s up to courts to then decide whether the medical exemption was actually applicable. But that is all of no moment to the Texas Supreme Court because the court basically used this idea that it’s all in the doctor’s hands. And the only problem here was that this doctor didn’t say some set of magic words as an excuse not to grant any relief of any kind here. And also, notably, it didn’t have to say anything at all because she had already left the state and this was a moot issue. So this was just gaslighting. For gaslighting sake.


Leah Litman They thought about it for like 10 minutes and then fired this one off. Oh, on these.


Melissa Murray 10 minutes is the magic time frame for issuing huge decisions about women’s bodies.


Kate Shaw The opinion also said that maybe the doctor just didn’t use the right words here that would actually have brought the exemption into play. So the doctor did not say verbatim. Miss Cox has a life threatening physical condition or say that quote unquote, the doctor was exercising her reasonable medical judgment and that in that reasonable medical judgment, an abortion was necessary because Ms.. Cox had the type of condition the exception requires. But the doctor basically said all this did not say the exact sequence of words that the opinion suggests needed to be said. But reading the opinion, I don’t think it’s possible to conclude that the court would have allowed Cox to get an abortion, even if her doctor had said those words. And in part of because what Melissa just outlined.


Leah Litman Yeah, and also because the court went on to say, quote, A woman who meets the medical necessity exception need not seek a court order to obtain an abortion, end quote, as if to suggest again that a court will never grant a judgment saying an abortion falls within the exemption, you know, unless and until the abortion is performed and the doctor risk prosecution and crushing liability. And yet the court had the audacity to say our ruling does not block a life saving abortion in this very case. If a physician determines that one is needed under the appropriate legal standard. Again, while the state’s chief fucking law enforcement officer is threatening all of the hospitals with prosecutions and liability.


Kate Shaw Yeah, I mean, the opinion insists that the exception is predicated on a doctors acting within the zone of reasonable medical judgment, which is what doctors do every day. That was a quote from the opinion. But again, the chief law enforcement officer of the state is threatening prosecution. The exception does not give doctors the ability to exercise reasonable medical judgment, as this case lays bare, and even as the Texas Supreme Court insists that the opposite is true, there is absolutely no latitude. This law gives a doctor to exercise reasonable medical judgment and to do so secure in the knowledge that they are not going to face crushing civil liability and potential criminal prosecution with savagely long sentences and monetary penalties attached. So, yeah, like we said, like this is a one of the most gaslighting opinions I think that we can recall ever having read.


Melissa Murray [AD]


Kate Shaw We have some court culture updates, so we’re going to start with those. But then we will get into our gift giving guide, our favorite things for the holiday season.


Leah Litman Tis the damn season, so write this down. First up, our favorite things Court Culture edition. You know what? We love democracy. You know what we also love when progressives care enough about state supreme courts to make a difference. You know what? We also also love when state Supreme courts are about to do something to benefit democracy.


Kate Shaw We also love cheese. And this is the segment that really brings all those loves together. And that’s why it’s one of our favorite things. If it wasn’t already clear, we are going to start by talking about the Wisconsin Supreme Court and particularly the case that is pending before that court challenging the state’s legislative maps. So before Thanksgiving, the Wisconsin Supreme Court heard oral arguments in the case challenging the state legislators state legislative maps. Now, the maps are not being challenged on the ground that they are a partizan gerrymander. Though. They are.


Leah Litman Yeah.


Kate Shaw But that’s actually not the argument that the court is considering. The argument before the court is basically just that the districts in the maps are not contiguous as required by the state constitution. And that just basically means that they are drawn in ways that are logical and continuous as opposed to broken up. And that’s a requirement in state law in Wisconsin and in, I think, basically every other state. So the argument right now is just that the maps are unconstitutional on the grounds that they do not comply with that requirement, not because of the partizan gerrymandering issue.


Leah Litman And they don’t comply with that requirement because some districts have detached territories, which, as the advocates noted, is extremely uncommon in the United States, in districts.


Melissa Murray We know that this is a SCOTUS podcast, but as we’ve said many, many times, the courts writ large, state, federal, etc. are just so important and this case is super important since it has the potential to break Wisconsin’s extreme gerrymander that has locked in Republican control of the state legislature. Even when Republican candidates don’t get a majority of the votes and Wisconsin Republicans are so agitated, exercised about potentially losing this undemocratic, gerrymandered advantage that they actually thought about impeaching newly elected justice. Janet prior to say it’s so she couldn’t hear this case.


Leah Litman And the Republican affiliated or conservative justices, or at least some of them brought that same energy to the argument. We wanted to give you a sense for how things went. So here we go. Justice Rebecca Bradley Perhaps the biggest Karen on any bench, state or federal, was ready to go. Whatever it is she does right out of the gate. So let’s play literally the beginning of the advocates argument.


Clip Good morning and may it please the court. The Wisconsin Constitution’s redistricting requirements are not optional.


Clip Yes, Counsel, where were you? Where were your clients two years ago? Because we’ve already been through this. Redistricting happens once every ten years after the census. All of the issues that you’re bringing actually could have been brought before this court two years ago. So why did your clients sit on their rights? We granted intervention to basically anybody who wanted to participate in the litigation. I know your your law firm participated in the litigation in Johnson. Where were your clients? Why did they wait two years?


Clip Good morning. Justice Bradley The Court’s September 24th, 2021 order that granted the Johnson Original action petition set an October 6 deadline for intervention in that case. That was well before the legislature introduced publicly its map. It was well before any party in this, and the Johnson case submitted their map proposals and it was months before this court ordered the legislatures map into place. There was no possible way the Clarke petitioners could have known what their legal claims were. And on October 6, 2021.


Clip Good morning. Justice got good. Look, I don’t like.


Leah Litman Trying to be Midwestern nice in the face of whatever it is she was serving like a she really sprinkled on that Laura Ingram sugar onto her Wheaties that.


Melissa Murray Morning. No no. She had some bad cheese curds like that. That was bad cheese curd energy. Okay.


Kate Shaw And within the first 10 minutes of the argument, she was not just obliquely making reference to things, you know, related more to her colleagues than to the argument or the advocate before her. She was basically attacking her newest colleague outright. So let’s play that clip here.


Clip Everybody knows that. The reason we’re here is because there was a change in the membership of the court. You would not have brought this action, right, if the newest justice had lost her election?


Clip No, Your Honor, that’s not right. I reject the.


Clip Forward actually announced to the media in April after the justices election that they would be bringing this very case before the court. And wasn’t that based on that justice’s pronouncements about the maps being rigged?


Clip No, Your Honor, I don’t think anyone said that this case would not be brought, which is why I think the premise of your question. What I was going to say is that I reject the premise that the issue of whether or not contiguous means not contiguous. I don’t see that as a partizan issue. I don’t. It is just the plain text of the Constitution and this court’s decision and all of the opinions in the town of Wilson case suggest to me, I think rightfully, that this is not a controversial question.


Melissa Murray That’s also how she attempted to end this argument with the last advocate to appear before the court. So let’s play that extremely normal clip.


Clip Counsel, I didn’t get an opportunity to ask prior counsel about the due process issue that I think both of you have raised. So I’ll ask you if you consider this to be a fair tribunal that will independently and impartially consider your arguments in this case, when three justices on this court ruled against your clients and a fourth justice conveyed her predetermined position on the Johnson cases by campaigning on a mantra that the maps adopted in Johnson were rigged and saying she agreed with the dissent in the maps case. It’s interesting when only one justice on this court has in a legal writing on the excuse me justice appreciates the courtesy of you not interrupting me. And I would like to hear a response to my question consistent with the provisions of the attorney oath.


Clip Just a moment. You’ve been asked a question. Please answer. All right.


Clip Are you finished with the question?


Clip I am.


Clip All right. Well, we’ve reversed. We have reserved the question of what implications might flow from the disposition of the recusal motion. We’re not offering any additional argument on that because that’s been resolved at this level. And perhaps it will become the subject of appeal, perhaps.


Leah Litman Not Extremely normal is Justice Rebecca Bradley’s middle name. You know, a few notes on these clips. You know, it’s notable that the lawyer is basically like, I don’t want to go there, lady. Like, stop it. And you can hear Justices Jill Kraske and and good Bradley and Walsh Bradley trying to tone this down. We’ll come back to this in a little bit. Like they’re saying, Rebecca, you’re at a 12. We’re going to need you down to like a three girl a.s.a.p.


Kate Shaw So that’s kind of more tonal. The substance of what she was saying was also pretty out there. So at one point she and that’s Justice Rebecca Bradley again likened the challenge to the maps, including the fact that some of the challengers, but not all of them, are seeking new elections rather than just new maps for the next elections. Anyway, she likened those arguments to efforts to throw out the 2020 election, and that’s not a joke. So let’s run that tape.


Clip That’s an extraordinary remedy, which in the past, when it’s been requested and trump-biden this court rejected, it’s it’s an absolutely extraordinary remedy. And it sounds you know, there’s many intonations about democracy throughout the briefing. I can’t imagine something less democratic than unseating most of the legislature that was duly elected last year.


Melissa Murray A few thoughts here. Did she really reject that argument? The K. No, I’m.


Leah Litman Not so sure, Melissa.


Melissa Murray I mean, just to recap that case that she cited, Trump versus Biden was 4 to 3. And Justice Bradley girl, you were in dissent in that case. Like this is. This is not something that you should be rehashing. And again, just to note, Justice Bradley specifically talking about quo warranto remedy, not necessarily about the merits of this case, i.e. unseating versus requesting a map maker, help the court evaluate the proposed maps. But the Wisconsin court wouldn’t have to do that, wouldn’t have to unseat the representatives at all. It could just order nine maps for the upcoming Assembly elections when all Assembly members are up for reelection and the new maps for half the senators who have elections because Wisconsin Senate terms are every four years. So again, she’s like talking about stuff that doesn’t even need to be relevant here, which is, again, extremely, extremely normal.


Kate Shaw At some points, she seemed to take particular umbrage at the fact that the litigants were challenging the map, which is a map the court had been involved in. There was this kind of like, how dare you suggest we might have made an error quality to some of her questions and just remind people of the background, the state Supreme Court. So this court actually selected the map in previous litigation after the governor and the legislature reached an impasse. So here’s Bradley on that.


Clip Counsel We already told the parties what the Constitution means. You do understand that in selecting new maps, the Court was obligated to ensure that the new maps would comply with every provision of federal and state law, including the Constitution. So I understand your argument is that we didn’t spend enough time in the majority opinion in Johnson one addressing contiguity.


Leah Litman So we wanted to touch on some recurring themes in whatever it is Justice Bradley has going on. One is, you know, we mentioned the hostility she exhibited to her new colleague, Justice Pro, to say words. She was also a little aggro with her colleague, Justice Carrasquillo, at one point asking her when Justice Cross was participating in the argument. Are you arguing this case? So let’s play that clip.


Clip That’s okay. Well, if the legislature’s it’s okay to usurp the legislature’s constitutional mandate to redistrict, but it’s not okay for the court. I’m not following your argument. I’d like an answer to my question justice first. What I think is because the legislature was a party. Are you arguing the case?


Kate Shaw I mean, the state courts don’t have to be lockstep with the federal courts or the U.S. Supreme Court in any way. That’s definitely right. But I mean, Elena Kagan has, I think, really charted the course of arguing cases from the bench. And that is pretty uncontroversial at this point. So Justice Cross, you just do in the same great tradition.


Leah Litman Yeah. And you know, part of this, you know, as earlier clip suggested, seems to be that like Justice Cross she tries to get the argument to the merits rather than having Justice Bradley you know attacking her new colleague Justice Pro to say well so this was earlier in the argument. And since we are here today and since one of the issues is contiguity, I’d like to ask you a couple of questions regarding contiguity. And I think what you were saying, Kate, is that justice. Bradley seems to be irritated that Justice Cross is doing the kind of thing that happens at the Supreme Court, namely the Supreme Court justices do at arguments. When a justice asks a gotcha question that they think is a gotcha question but has an answer. Justice Cross He will sometimes interject to try to get the arguments to the harder stuff. And I guess they don’t like this. You know, another time that happened is when another justice asked the governor, you know, wasn’t the governor also trying to do partizan gerrymandering and secure a partizan advantage? And Justice Cross interjected like, no, not really, because we had directed the parties to abide by the lease change principle vis a vis the maps that were already gerrymandered for Republicans.


Melissa Murray Can we go back to that whole point about Justice Bradley basically attacking her newest colleague, Justice Janet, prior to say what some like Justice Janet were to say, where it was like, okay, that’s how you want to play this. And she got in some pretty good blows of her own.


Clip Do you know of any Wisconsin Supreme Court case that decided the original and I emphasize original meaning of contiguous and Article Four.


Clip Sections four and five? Your Honor, I as far as the original meaning, I think Johnson decided it not once, not twice, but three times. And I’m trying to get to get to that. Why Johnson was correct with respect to its approach to contiguity that what is important in the constitutional text, contiguous is an adjective and you still have to.


Clip Decide what it’s modifying and in that verbal phrase to consist of procedure. Stop you for a second. Can you tell me where and Johnson One, two or three. You found language addressing the original meaning? Your Honor, I don’t I don’t think the words original meaning appear in Johnson, but in accurate. Thank you.


Melissa Murray That’s a pretty sick burn from her. Yeah, I know, I know.


Leah Litman Respect. I like it. You know, from the justice who said a w and pro to say with and tools for losses and Kelly like I like this justice Janet I like it and just kind of want to offer a tip of the hat to her you know participating like this while her colleagues and the Republican legislature are just like relentlessly attacking her for the high crime of winning an election with progressive values.


Melissa Murray High crime and misdemeanor.


Leah Litman Well, right. Yes. Yes.


Kate Shaw Okay. So maybe one final clip, which is the Republican justices spend a lot of time caricaturing the argument the challengers were making. How many Republican seats are fair? How many are too many? And Sam Hersh, who was arguing the case, had a very nice rejoinder to that, that we wanted to play.


Clip What would be neutral, what’s the acceptable range of Republican or Democratic leaning Assembly districts or Senate districts that’s within the permissible range. The key question is which maps are most likely to support rather than thwart majority rule? So it’s not about the percentage, but is that is that can you can you be more specific? What what is what’s what does it mean to sort of how many Republicans are permissible? How many Democrats? I mean, what are you really I’m sorry, go ahead. To be really clear in a look, this is a very, very hyper competitive state. And which party’s candidates get more votes in a given year shifts from election cycle to election cycle in a year where Republican legislative candidates get more votes statewide than Democratic legislative candidates, they should control the legislature and vice versa. In a year where Democratic legislative candidates get more votes statewide, they should control the legislature. It’s that simple. It’s called majority rule, and I hope the court stands up for.


Melissa Murray Hey, dolts, that’s majority rule.


Leah Litman It’s called democracy. Look it up.


Melissa Murray All right. Now, we’ve done some court culture. We’ve talked about Wisconsin. We’ve vindicated our love of cheese. We’ve hailed Jarkesy, our favorite case. My stress slashed justice of the Wisconsin Supreme Court.


Kate Shaw Now it’s back to New Hampshire.


Melissa Murray You could have multiple or just there are a lot of castmates.


Leah Litman Multiple favorite things as we are about to say.


Melissa Murray Yeah, Wisconsin is literally replete with jazzy justices who are amazing. Overflowing cornucopia of amazing lady justices. But now let’s get to a cornucopia of gifts I’d like to see in my stocking. All right. So if you’re listening, family members, here we go. So I’m going to let you start because I want to warm up and get limber. Okay?


Leah Litman Okay. Sounds good. So these are, I think, more ideas for what to give to others. A Sorry, sorry. But like, one thing is personalized or unique stationary. I just think it’s amazing. Like I got some , no surprise Taylor Swift cards that I am using to, like, send out notes and I just I love them. They make me happy sending them out. I love getting like personalized stationery from others. A friend of mine who’s a public defender has stationery that says her name on it, as well as the case citation for Gideon versus Wainwright, the case establishing a right to counsel. Melissa, you have delightful personalized stationery. It’s just I love. That stuff. So that’s one of my ideas. Another maybe is a foot massager or like muscle massager. I just think that’s like really nice to put under your desk or to have for like after workouts when you’re like getting ready to fight the patriarchy physically, you know, it’s nice to have one of those like, muscle relaxers to help you recover after.


Kate Shaw Have you used a Theragun?


Leah Litman Yes, that’s what I’m talking about.


Kate Shaw It’s pretty great. Yeah.


Leah Litman Yeah.


Kate Shaw And they have like some of the price points are pretty high on like the big ones, but they have small ones.


Leah Litman They have smaller ones. Exactly


Kate Shaw Under $200 bucks and they really, really work. If you are like going to lift some very heavy weights to just channel your rage and you’re sore afterwards, they can be nice. I don’t know about a foot massager like the one that you can just put your feet on.


Leah Litman Yes. No, put your feet in. Yeah. Yeah, I yeah.


Melissa Murray Those are actually a lot less expensive than the theragun too.


Leah Litman Yes, they are. They’re much less expensive. A few other ideas. One is give yourself or help your significant other or partner have a weekend with friends. I just think that making time and space for that is just like really energizing for the rest of the year. I basically think back to like the amazing weekends. Like I had some with some of my friends this summer, mostly at the Aras tour, like for the rest of the year. And I don’t know, I just think that, like, that’s a good thing to give yourself and others. No surprise, law professor, I’m obsessed with books, so I’ll offer some of my favorite book recommendations of the last year. Emily Henry is happy Play is Sarah MacLaine’s Knockout. Heather Cox attends Democracy Awakening. Steve Vladeck, shadow docket captain and House of Odysseus. Marissa Meltzer’s Glossy Catcher Hoyer’s Beyond the Wall. Those are some of my favorite reads from the last year.


Melissa Murray I loved Glossy. That was a great one.


Leah Litman So good.


Melissa Murray I love Marissa Meltzer. I think she’s amazing.


Leah Litman Yes, I know.


Kate Shaw I haven’t read it. I should read it. This, I’m going to be on the beach for a week over the holidays.


Melissa Murray It’s about the rise of the Glossier empire. It’s really good.


Leah Litman Exactly. Some other ideas. More crossing over into law Territory Substack subscription. So we talk about Law Dork run by Chris Chris Geidner, One First run by Steve Vladeck.


Kate Shaw Abortion Every Day by Jessica Valenti. Another good one?


Leah Litman Yeah, Yeah. Yes.


Melissa Murray Thats a good one.


Leah Litman Yeah, for sure.


Melissa Murray Let’s shout out Karen’s Corner on one first Street.


Leah Litman It’s a delight.


Kate Shaw Yeah.


Melissa Murray It’s delightful.


Leah Litman It is if you have access to it and the know how making some custom musical beats of your favorite goddess clips we suggested or Kate suggested she wanted audio of this clip from the Jarkesy argument made. So let’s play the clip.


Clip Really have wide right now I know artsy and and others I’m EPA agriculture I mean it’s really all over for the first amicus brief.


Leah Litman And a Strict Scrutiny listener stepped up to the plate offering this listener made audio.


Clip Ugh. Um. Amicus Brief  *loop*.


Leah Litman That’s pretty great.


Kate Shaw I couldn’t love it more. It’s just delightful. I kind of want to just put it on as my soundtrack for all of my upcoming writing projects and just like, get excited.


Melissa Murray I mean, there is a kind of house music quality to it that I didn’t know. I didn’t realize this is your.


Kate Shaw My métier.


Melissa Murray Your genre. Yeah, you’re metier, as it were.


Kate Shaw For writing sometimes. Yeah.


Melissa Murray Yeah. I mean, it’s like it’s got a very jock jams kind of vibe.


Kate Shaw Well, it’s a Brett Kavanaugh. Isn’t that appropriate.


Leah Litman Ferc Ferc.


Melissa Murray Work, ferc


Kate Shaw Thank you. That was an amazing, amazing holiday gift from you to all of us.


Melissa Murray If she knew your name, she’d leave her husband for you. The marriage is safe. All right. Since you’re Shane, Malia, these are all gifts I would like to give other people. First stop. I think it’s nice to have a journal. I know people like to take notes on their iPad or their iPhone or whatever, but I like to write things down. And like my husband says, but I write down things and like, my handwriting is like, very precise. And he says, it looks like serial killer writing. But I like to, like, sometimes go back and look at like, all the things I’ve written, like I’ll write down, like ideas for articles and outline them in my serial killer handwriting. And so when I write these things down, I love a Shinola journal. They’re so nice. They come in our spiral bound or regular bound, and they have this beautiful linen cover, and when you buy them, you’re supporting Shinola, which is a Detroit company. And I love Detroit and I want to support Detroit. So I love those Shinola journals. They’re awesome. And again, my favorite thing to do for myself, but also for other people is to give them skin care. And my favorite favorite favorite skincare brand is True Botanicals, which I love so very, very much because it’s absolutely delightful. But I have recently gotten into a new skin care line called Biography, and in particular, I love their night and day duo of face oils. So fantastic. The nighttime oil is called petit grudges, which is like glow, I feel see, and I love that they are used by none other than the other. I’m Meghan Markle and I peep them watching Harry and Meghan on Netflix and I saw the bottle on her dresser at Frogmore Cottage and I zoomed in on my computer in order to find out what it was and it was biography, and I decided to try them and I love them. So that’s fantastic, highly recommended. And I think right now they’re doing some kind of promo where you can get 20% off the little trial set of the day and night face oils. My third favorite thing, which I think it’s very good for the lawyer set, is my remarkable tablet, which I use for taking notes and annotating law review articles. I love it. It’s fantastic. I like it because what I don’t want to write in my serial killer handwriting in my journal and I want to like, upload something into a word document. This is perfect for that. So I don’t have to take the extra step of typing it out. I got this tip from Awesome Judea James at the University of North Carolina. She had won. She’s doing all kinds of amazing things with that. I got one. I absolutely love it. But what I do most of the time on it is read Lava articles. So I really love that. And then my favorite thing that I did this year was I made the New Year’s resolution to read more fiction. Not lava articles, but actual fiction, like fun stuff where I can imagine an alternative world where judges adhere to precedent and don’t want women to bleed out in parking lots. And so I got a Book of the Month club membership that was a suggestion for Melody. She gave me her referral code, so she got some free books for it. So a win win for both of us. Every month I get to pick a new set of books, which I love. So I got Hester by Lorrie Leko Albany’s, which was a retelling of The Scarlet Letter, which was Fantastic Black Cake by Charmaine Wilkerson, which is now a Hulu series. That’s fantastic.


Leah Litman Read.


Melissa Murray That was really good. I also got DC Jones in the Six by Taylor Gingerbread.


Leah Litman Read that, which I love that.


Melissa Murray And I love the Amazon Prime series. Also, I love the album, The Daisy Jones. And the Yes album is a banger for a fake band like they sound.


Leah Litman It is a full media experience.


Melissa Murray It is amazing. It’s like if they came and played a concert, I would go, I don’t care that they’re a made up. And I. I bought a t shirt. I will go. I think it’s real life that it was there. And then I got into a whole Taylor Jenkins read like whole. I just jumped into the whole I read Carrie Soto is Back, which was amazing and a bunch of others. So I really like those. And then one of my favorites recommended by Melody was Lessons in Chemistry. Also now an Apple TV series. Fantastic, was polarizing, really liked.


Kate Shaw It. I liked it a lot.


Melissa Murray I loved it. I thought it was great. And then if you’re definitely into reproductive justice and you would like to imagine a more progressive future. I thought Take My Hand by Dolan Perkins Valdez was actually amazing. It’s basically a fictionalized account of the sterilization case. Ralph Horse’s Health and Human Services. Ralph Sisters? Yeah. The Ralph Sisters. And it was just so beautiful and moving and highly recommended. I also loved Demon Copperhead, which is basically a retelling of David Copperfield by Barbara Kingsolver, who won the Pulitzer Prize. Also read the guest by Emma Cline, which is all about like shady, weird stuff happening in the Hamptons. Definitely good, because I loved it so much. I thought Book of the Month Club is something we should share with our strict scrutiny listeners and Book of the Month Club has come through and offered us a promo code just for you all. So the Book of the Month club gave us a promo code scrutiny and they said that you could use it to get your first book for just $5. So head on over to Book of the Month icon and use code scrutiny to get your first book for just $5. So yeah, that’s what we’re going to do this year. We’re going to read books, we’re going to take care of our skin and we’re going to write things down in serial killer handwriting. And that is how we are going to dismantle the patriarchy.


Leah Litman Sounds like a plan.


Kate Shaw These are good Melissa tips. So I’m going to pick up with books first. A couple of the ones that I was going to mention. You already mentioned, Melissa, that Barbara Kingsolver is Demon Copperhead. I loved you know, we just talked about in one of our recent episodes, we talked about the case involving the Sackler and Purdue Pharma bankruptcy settlement. David Conrad is not only retelling of David Copperfield, but very elemental about the opioid crisis and an incredible book. And I feel like I’m a Barbara Kingsolver completist. I think I’ve read everything she’s written, and it was gratifying to see her get, I thought, the well-deserved Pulitzer for this book. Okay. I also loved just in terms of things this year, Abraham Verghese is The Covenant of Water, which was really beautiful. I really liked Rebecca Mkhize. I have some questions for you, which is one of the few novels that I’ve read that is largely about podcasting. It’s both. It’s got like making a podcast as like the profession of the lead character and also there’s a podcast that is at the heart of the narrative. So I enjoy that you don’t see.


Melissa Murray Much very manifesting.


Kate Shaw UK There was, so I recommend that Hernan Diaz’s trust was so weird and so great. I loved that Lauren Groff’s the Master while.


Leah Litman That was really good.


Kate Shaw Yeah, it’s like I’m such a sucker for a survival novel, no matter when it is said. I just love a person against the elements. I just do. And this was a reminder of that and like, sort of genre and patriots. Tom Lake, which I listen to on an audiobook read by Meryl Streep, which was phenomenal. And then I can’t actually remember if Rachel Survives Strangers to Ourselves is a book I read last year or the year before, but I really loved that as well. Okay, Skincare. I have a serum that I got as a gift this year that is Ursa major is mountain glow serum that I love. Although I now definitely want to try the biography outline that you mentioned, Melissa, and then two really decadent bath products that I also got as gifts and I would never have imagined buying, but I’m so glad I own. They’re both buy I don’t know if it’s OCR or OCR, you know that like skin care OCA Line makes what calls itself a pillow mist, which is just like a very pretty glass spray bottle that you can like spray on your pillow before bed. And it just creates this very soothing spa and in your bedroom. And it’s I find it like really conducive to like peaceful winding down. And they also make a shower mist that you can spray in your shower. And it also feels like you’re like at a fancy like spa or something in your shower. And they’re not like a super high price point.


Melissa Murray Because I get it from your Brett Kavanaugh.


Kate Shaw Yeah, I go into my shower, I put on a loop of the caviar-like an electronic music or listener made, and I spray some shower. Ms.. And I just like, that’s my happy place. No, I have not done that and I don’t think I will. I was just saying.


Melissa Murray The pillow mist is how you unwind after, like, you know, club dancing to Brett Kavanaugh.


Kate Shaw To more things. There’s a protein powder I’ve been using called cassava that is really good. If you mix it with like ice, water, milk, yogurt, whatever really good, you need more protein with age, turns out. And that is a really good protein. Many of them taste bad. This one tastes great. And then I drink a lot of chai. I drink tea and chai and not coffee. And Kolkata Chai is like a chai line that has a couple of shops in New York, but you can also now just order boxes and it’s like not super high sugar, but like really dense, awesome combination of spices. And I’ve gotten into that this year and this is like sort of related to Melissa’s like kind of a serial killer note taking enemies list making or related at least, which is it’s kind of like a productivity hack that I think is for me new this year, which is just listening, using a voice reader to a lot of content that is, you know, not podcasts or audiobooks, but articles and sometimes book manuscripts. So I use a reader called Voice Stream, but I’ve also heard one called Speech. If I is really good and I find it really, really helpful to just like be able to sometimes take in audio content of things I really need to read. I just don’t have time to sit down to read. And I’ve gotten very used to, like, the soothing sound of the robot reading to me. I mean, it’s no Meryl Streep reading. Ann Patchett But I recommend it. You guys don’t do that.


Leah Litman I have it, but don’t try that. I’m definitely open to trying. Yeah.


Melissa Murray Are you still platonic?


Kate Shaw So I did want to ask this. I so I have a bike and I. But we have it upstate and I just have not been there very much this fall and have also just been running much more. So yes, I’m using Peloton a lot, but I’m mostly doing the runs and then sometimes like the strength classes and stuff. So I feel like I’ve been like using a lot of different instructors than when I mostly in the bike. Here are the people I’m mostly running with these days. Hannah Franklin, who also does a lot of bike really or does great classes. I love her. I’m doing a lot of friends with Susie Chan.


Melissa Murray Oh, I do like The Apprentice ladies. Okay.


Kate Shaw Well, they’re the they’re the real like one. I guess that’s true, actually. I guess I do have a type. Those are the three I most run with. I also run with, like Robin Hirshon and Olivia Amato and sometimes Maddie and Giacomo. But. But I guess I.


Leah Litman Like Olivia’s tailor read Ride for sure.


Kate Shaw She has a really good at least one tailor read Run and I think another she’s got a couple of.


Leah Litman Taylor Yeah, Sorry. I meant the Taylor Red Run. Not right. Yes, I think she might have.


Kate Shaw Like she has rides as well.


Leah Litman Oh, okay. Okay. I ride more. I don’t run just because of, like, ankle problems, but I still really like Cody as a cycling instructor. I wish he would have just. Can we please.


Melissa Murray No he is not a runner.


Leah Litman He’s not a runner.


Kate Shaw You have to do like 75 minutes for a jog. It would be so fun.


Leah Litman And I just like, I love riding with him. It’s always a pick me up, always a pep talk. I also really like I’m a love. Well, as a cycling instructor, I always like PR on her rides. I think that’s like where I get my pictures. And then I’m also into their strength classes. I love Adrianna and strength stuff. Maddie Yeah, I really do.


Kate Shaw Yeah. Yeah.


Leah Litman Do you say Zac Yeah. I like Emma’s core program. I also like Rebecca Kennedy for starting classes as well. Those are definitely my favorite strength. I also do some plays. I like Jazz 1989. Taylor’s version plot is class, so that’s kind of my peloton’s.


Kate Shaw But Allie loves quality classes and our classes are great too.


Leah Litman I’m not as into bar, but I do like her bloody stuff.


Melissa Murray So I follow a little bit off the bike. Not literally, but I just haven’t been doing the bike as much. When I do do the bike, I think I do Cody the most and Hannah Franks and I like her Tabata rides, but we bought the peloton tread so I actually really. Oh yeah. Since I’ve been doing a bunch of stuff on the peloton tread, I love their hikes and their walks and power walks and they have this great learn to run program. That was I did and that was really fun. But I love Jocelyn Thompson. Rule like Stan, a Jamaican British queen. She’s amazing. I also really enjoy Jermaine. I forget what his last name is.


Leah Litman Yes, Josh Johnson. I like his strength.


Melissa Murray Yeah, He’s great on strength, too. I’ve been doing a bunch of strength training, too. And again, love Adria, and I’ve been doing Tally Gullickson. I don’t know if I meant to. Some people find her annoying. I think it’s just like. Like she doesn’t do squats that I don’t want to do, so I don’t mind doing squats. Oh, interesting. I actually actually look up. What are the exercises that you’re going to be doing before I even get in? And like, if it’s like some kind of weird, like lateral curtsy squat that’s going to mess up my ACL. I’m like, No, thank you. And I just move on. But I love their outdoor content. So Kate, I don’t know if you did their outdoor runs when you were training, but I think they’re great.


Kate Shaw They don’t have that many outdoor runs. So I think I’ve done all of their outdoor runs. So now I just do indoor runs and run them outside, but I wish they would.


Melissa Murray Do their outdoor right. So Robin Calzone did an outdoor run that had like Drake little Nas acts. It was like fantabulous.


Kate Shaw Is one just just Beyonce outdoor run.


Melissa Murray Oh, yeah, that was.


Kate Shaw Short 20 or 30 minutes. That is a fantastic run. They’ve done multiple times.


Melissa Murray Yeah. So I do those a lot. What I’m like walking in the city, like going places I like and I get there so much faster and I feel like, okay, I did something that’s great.


Kate Shaw That’s a good I’ve never. So they actually give you some coaching while you.


Melissa Murray Oh yeah, they’re like, Never faster, bitch. And I’m like, okay.


Leah Litman I think highly motivating. Such people like.


Melissa Murray Jess King is like if you’re able if you’re consenting, imagine my hand on the smile of your back urging you on. And I’m like, Okay, you’re allowed to do that. Sure.


Kate Shaw I love it. How do you like her? I don’t think she’s ever asked me for permission to put her hand in small my back, but I would grant it if she did.


Melissa Murray Well, it was an outdoor walk. It’s great.


Leah Litman You know, It’s also nice time of year. Give donations to organizations, you know, in your name or others names. And we’ve obviously been talking a lot about the work that the Center for Reproductive Rights has been doing. You know, their work and the work of abortion funds is really important right now. Some organizations that have been involved in the ballot initiatives to secure reproductive freedom are red, white and blue, as well as Rupert. To freedom for all. You know, there is also the Trevor Project, you know, super important in light of the wave of legislation targeting the queer community or crackheads. Leave trans kids alone fund and projects. There’s a National Women’s Law Center as well. Some, you know, organizations that are helping incarcerated persons like Rights Behind Bars or the Second Look project as well as, you know, organizations that we have had guests on the show before, like the MacArthur Foundation, MacArthur Justice Center, and, you know, the appellate project, too.


Kate Shaw So in addition to seconding everything we have just said, I’ll mention a couple of the big global public health organizations, Doctors Without Borders, Partners in Health, both really, really important organizations to support media. It’s been a brutal year, once again, enormous layoffs in all kinds of media outlets. So if you have, like forgotten to renew your pledge to your local NPR station, do that before the end of the year. New outlets that are cropping up because there are some that are covering local politics so critically important. The city is a new NYC based online magazine that is doing great reporting Bolts magazine, which we have featured on the show before, which is one of, if not the best sources of information about state and local politics, elections, democracy, also a great place to support. And so throw those into the mix as well.


Melissa Murray I would also like to shout out NPR. I still support KQED, which is my local NPR affiliate in the Bay Area. I suppose I should also branch out and support WNYC here.


Kate Shaw And yeah, I’ve switched to NYC after ABC, which is the Chicago affiliate for many years, and maybe I should just spread it out.


Melissa Murray A little bit.


Kate Shaw Wonderful.


Melissa Murray I just kind of grew up on KQED and so I really love that one. I would also encourage people to support the 19th, which has been doing absolutely amazing work covering reproductive rights. It’s a women run newsroom and it’s absolutely fantastic. I would also highlight some of the organizations that I work closely with as a board member of the Brennan Center for Justice, the Public Rights Project, which is doing amazing work around the country, bringing affirmative litigation to enforce rights at the state and local level. Also, the Guttmacher Institute’s his research right now is so important in this landscape where reproductive health is so precarious. Planned Parenthood Federation of America. If one how both great reproductive rights organizations. And then finally, the ACP Legal Defense Fund, which does so much amazing work, but in particular, I wanted to highlight the work of their Marshall Mottley scholarship program, which provides scholarships to law school for students who are committed to returning to the South to be civil rights advocates in that region of the country where civil rights lawyers are really in short supply. We talked about this on the podcast with Joanna Schwartz when we discussed her book shielded. But it’s just so important to have this next generation of advocates and they are really doing a great job, the LDF, to make that happen.


Kate Shaw And let me just throw one more in. In terms of you mentioned a few organizations on whose boards you serve. Melissa. I’ll throw in the Stephens Foundation, which makes summer grants to law students doing public interest work, in particular at law schools that don’t have subsidization or funding for public interest summer jobs. And it’s in a real growth period. And so that’s a great place to support as well. So we wanted to give a birthday shout out from Madeleine Peterson to her daughter Ariel, at UCLA, who is studying to take the LSAT in April.


Leah Litman And Ariel, I hear you’re interested in post-conviction and appeals work, so kudos to you. That is awesome. And that your golden birthday is coming up. So a very happy birthday to you.


Melissa Murray Happy birthday, Ariel.


Kate Shaw One quick programming note. The court is off for the holidays and we will be off next week. But we have a very special episode lined up for you, New Year’s Day, and you won’t want to miss it. That was just a little teaser, just really that Melissa cracked up kind of all we’re going to tell you right now. Clear your calendar. New Year’s Day.


Melissa Murray As we get ready to go into 2024, we just want to remind you, 2024 is a huge, super high stakes election year and there is so much to keep track of their important voting deadlines that you have to observe volunteer shifts that you should sign up for emergency therapy that you’re going to need. And apparently in the middle of all of that, they still expect you to show up for work and do the things that you are paid to do. So this is why Cricket and Vote Save America have created a 2024 planner to help you stay sane and organized all through 2024. It is filled with all of the important dates that you have to keep track of. It gives you much-needed motivation as well as fun stuff to help you keep from losing your mind. So head on over to the crooked dot com store right now to get your planner and then spend all of January 1st just writing in it in really meticulous serial killer writing.


Leah Litman Let’s do it. We will miss you next week, but please stay tuned for the New Year. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and Kate Shaw, produced and edited by Melody Rowell. Our associate producer is Ashley Mizuho. Audio Support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper, Production support from Madeleine Heringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.


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