Mifepristone Stays on the Market (live from Tribeca!) | Crooked Media
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June 17, 2024
Strict Scrutiny
Mifepristone Stays on the Market (live from Tribeca!)

In This Episode

Live from New York, it’s Strict Scrutiny! Elie Mystal guest hosts with Kate and Melissa in front of a sold-out crowd at the Tribeca Festival to break down opinions, perform dramatic readings of the secret Alito recordings, and imagine some end-of-year yearbook pages for the justices. Plus, New York Magazine’s Irin Carmon joins to talk about the practical effects of the Supreme Court’s ruling in the mifepristone case.

  • To watch the full episode, complete with Martha-ritas and yearbook superlatives, head to our YouTube channel






Show Intro Mister Chief Justice, may it please the court. It’s an old joke, 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.


Kate Shaw Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today, coming to you live from the Tribeca Festival in the great New York City, the greatest city in the world. *Applause* I’m Kate Shaw.


Melissa Murray And I’m Melissa Murray. And you know that we are without our beloved co-host, Leah Litman, who is back in Michigan recovering from a very bad bike accident. And we really wish she were here at Tribeca. She would have loved this, but we’re sending her lots of warm wishes for a quick recovery. And in the meantime, we have an absolutely amazing guest host. We needed someone who could really fill Leah’s big shoes, and we think this is the person to do it. He is a fantastic guest. Friend of the pod, and he’s going to be an even better guest host, even though he’s not a natural blond. Please join me in welcoming New York Times bestselling author and nation commentator Elie Mystal.


Elie Mystal Thanks for having me. Go blue.


Kate Shaw All right, so here’s what we’ve got in store for you today. We will start with the opinions that the court released this morning. We will then turn to a healthy segment of court culture, which includes a nostalgia trip back to Strict Scrutiny. High school.


Melissa Murray But before we go all the way back to high school, we’re going to start with what the court gave us on Thursday. So let’s start with opinions. And we have a big one to start with.


Kate Shaw And for the first opinion we’re going to break down. We have a very special guest to help us do that, the great Irin Carmon. Irin, welcome to Strict Scrutiny. Irin is a senior correspondent at New York Magazine. She covers gender and law and politics. She is the author of a book. I suspect you have heard of The Notorious RBG. And right now she’s working on a book due out next year will soon be a book you have heard of, and it’s called Unbearable Being Pregnant in America. Great title. Right? She’s also the perfect person to help us break down our first opinion.


Melissa Murray So you’ve probably guessed the first opinion that we’re going to break down is FDA versus hypocrite Hippocratic. FDA versus Alliance for Hippocratic Medicine. This case involves the future of the availability of mifepristone, one of the drugs in the two drug medication abortion protocol. Now, if a proton was approved by the FDA in 2000. So over a quarter century. Yeah, basically a quarter century, this drug has been available and the FDA has approved it. But some folks took that personally. And as we’ve discussed on the podcast, within weeks of the court’s decision in Dobbs back in 2022, a group of anti-abortion doctors filed a lawsuit in, you guessed it, Amarillo, Texas, to get a price down pulled from the market entirely, and also to challenge some of the regulations that the FDA issued during the pandemic to increase availability of Firestone, including allowing it to be dispensed through the males. And those activists had a really good time in Amarillo. They put on a great show, and America’s chief scientist cum jurist, Matthew Kacsmaryk, sided with them and declared mifepristone an unauthorized drug. Full stop. The end.


Kate Shaw The Fifth Circuit then took a look and in an act of sort of very infrequent judicial restraint, the Fifth Circuit actually did not go as far as Judge Kacsmaryk in the district court did did not side with the challengers in declaring Mephisto in a totally unauthorized drug, but did invalidate some of the more recent regulations that relaxed some of the restrictions on Never presume. So that decision was appealed to the Supreme Court. The Supreme Court actually put that decision on hold while it considered and then decided the case. Melissa, what did it do?


Melissa Murray Well, I hate to say I told you so.


Kate Shaw No you don’t.


Melissa Murray My husband is like, that’s not true at all. Like you always say. I told you though we did tell you so we called this from oral arguments. So this is a unanimous opinion from the court written by our favorite father of daughters.


Irin Carmon Our favorite basketball coach.


Melissa Murray And basketball coach.


Irin Carmon Yeah. Coach Cav.


Melissa Murray Coach Cav, Brett Kavanaugh wrote this unanimous opinion for the court. And he concluded, as we predicted, that the Alliance for Hippocratic Medicine lacked standing. They were not the proper plaintiffs to bring this suit in federal court. So that’s the opinion set up. Irin, we would love to talk with you about this decision, the law and how we even got here in the first place. So as a practical matter, what does this decision, which does not get into the substance of this challenge, like whether or not the FDA’s approval of Stone and the regulations that were later released around and whether or not they were invalid, it’s just a decision on jurisdictional grounds. What does this mean? As a practical matter for those seeking to end pregnancies in the United States?


Irin Carmon This shitty status quo remains.


Melissa Murray All right. Okay, so.


Elie Mystal Yeah.


Melissa Murray You’re right.


Irin Carmon As we as we learned, as we learned from Dobbs, it could always get worse since the Dobbs decision. Physicians, activists, people on the ground, abortion funds have been moving heaven and earth to get people the abortions that they need in band states. And even in blue states where clinics are overloaded. Abortion pills have been a lifeline for people who are seeking to end their pregnancies. It provides people a choice, and sometimes it is the best and only choice. So I think it’s also important to say that not everybody would choose medication abortion versus an in clinic abortion, but in the reality that we live in now, that is better than the proverbial coat hanger. And so whether that’s happening through telemedicine and someone’s driving across, a state line and they just have to be in a parking lot, they don’t need an appointment. They can just have telemedicine there. There’s been an enormous expansion of capacity. 6 in 10 abortions now take place through this method. And so that can continue to happen. And we have not heard all of the stories about how brutal it is out there for someone who is looking to no longer be pregnant. I am sure there are many, many I know for sure. There are many, many more stories that we have not heard yet. But to the extent that nobody is known to have died and there are some cases maybe that have been reported, but let’s just say an epidemic of death has not taken place due to self-managed abortion because of this safe option, because of telemedicine, and because of all the work that activists are doing on the ground to try to get, to an extent, not everybody, the abortions that they need. And by the way, can I just say, since you said the Alliance of Hypocritical Medicine.


Melissa Murray I said Hippocratic, I said Hippocratic.


Irin Carmon Okay. But I just I feel like this is the perfect form to tell the story that when I worked at MSNBC.com, I published a story about ADF, the Alliance Defending Freedom. The the.


Melissa Murray We’ve heard of them.


Irin Carmon Yes. You haven’t yet mentioned them, but they are. You know, they gave us both judge Matthew Kacsmaryk and this case and the the supposed alliance for Hippocratic medicine. They cooked all of this. And so usually I would not brag about my corrections, but I had a similar Freudian slip, which is that I referred to them in print. I got an email from their publicist politely telling me that I had called them the Alliance Against Freedom. Like, I swear to God I didn’t do it on purpose, but something in my brain.


Melissa Murray The heart wants with the heart wants.


Irin Carmon He was really nice about it. You know.


Elie Mystal What.


Melissa Murray I they always are.


Elie Mystal Not always are. The devil is a charismatic motherfucker.


Irin Carmon Yeah, he’s. You know what? He’s still he was still trying to convert this jew.


Kate Shaw So, you know, the question sort of answers itself in what you just said. Irin, you know, why the focus on never to own it has stepped into the breach in many ways. Right? Post Dobbs, it has provided the only realistic way of accessing abortion care in big swaths of the country. You know, even where, again, as you say, it might not be people’s first choice is more of a stone and other attacks on member precedent. So we know that we’ll talk about the standing in a couple of minutes. But we know that this is a jurisdictional decision. It doesn’t say anything on the merits of the challenge. Our EDF and other like minded entities, you know, right now, regrouping and figuring out what the next set of challenges are going to look like. And if so, what is that?


Irin Carmon So I think it’s really important to understand this lawsuit as part of we should be thinking about them as blue state abortion bans, because these medications are already not available in red states, at least not through the legal medical system, at least not to end a pregnancy while.


Kate Shaw We do so, at least not through the legal medical system. Right? But of course, people in red states do. There are ways to access abortion pills if you travel across state lines and in other ways through the mail. So certainly, I don’t know to tell you this, but there are ways to get abortion pills that people are availing themselves of, of course, in red states as well.


Irin Carmon Well, this is part of my answer to your question, because look at the interveners in the from the red states, from Kansas, Idaho and Missouri who are going to be the next phase of this, which is that they’re explicitly saying that they understand that activists are and this is happening, grassroots activists, of course, they are mailing pills through with instructions about how to safely end a pregnancy, because this is a matter of justice and harm reduction and because the science says and I think, you know, everyone in this room probably knows this, but it bears repeating because there’s so much propaganda. This is a highly studied, extremely safe medication. Any claim that there is harm is purely politicized and not based in any fact. It is just about wanting to keep people pregnant who don’t want to be pregnant. So as a result, yes, you have people who are in extralegal, grassroots activism mailing pills to red states. You also have what I described, which is that, abortion providers have been able to increase capacity. And there’s startups that are doing telemedicine. That make it much easier. Because even if you lived in a blue state, when Dobbs came down, you could not get an appointment at a clinic because everybody was coming in there from all of the other states. So they understand that the way in which to exert their will. Remember, I seem to remember somebody talking. Was it Brett Kavanaugh about the Democratic will and how important it was to defer to it? Well, this is an attempt to end run. The Democratic will, in states like the one we’re sitting in right now that have expanded access to abortion and, a backdoor national ban on abortion. Is the ultimate goal. Now, whether the court is going to give it to them or whether they’re going to get it through the next election. Perhaps that’s why we saw some strange message discipline today. I know you guys will have more to say about that, but I think where this is headed is okay. Something this flagrant has not been accepted, but they have many avenues that could follow this and the ultimate agenda they have made walking into an abortion clinic, even here in New York City. Unbearable. They have made it a gantlet. They would now like to invade your medicine cabinet. And that is much harder to do. So choking off the supply to cut off a private and less hard, less, criminal. Liable, if that’s a word. Method of ending a pregnancy is going to be something that they don’t give up on just because they lost today.


Elie Mystal Speaking of private, do you think that we win this case without Danko? And just to remember, this is not just about the abortion pill. This is about whether or not the FDA approval process is allowed to continue. And you know who cares about that? Pfizer, Eli Lilly, big pharma. Right. So is this do we think that?


Melissa Murray Wait, wait. Are you suggesting that the court’s antipathy for abortion might be overridden by its appetite for corporate interests?


Elie Mystal I’m just saying. I’m just saying, as much as I would like to think that this is a victory for abortion rights. I can’t help but notice this is also a huge victory for Big Pharma. So do you think for your.


Melissa Murray Emotional support billionaire?


Elie Mystal Yeah, I mean, I.


Irin Carmon Think I think it’s true in as much as it’s like the let’s the standing stuff that you are going to explain a lot better than I will. But to be honest, I think that my faith in sort of the ultimate win ability of the big Pharma guys was undermined during Covid. I mean, Pfizer suddenly became their villain. You know, pro-business interests were shelved, because of the supposed autocracy of getting people vaccinated. And then obviously the court had a couple of cases like that. So I think that there are limits to it. I think that if you’re Brett Kavanaugh, he seems to really worry about being liked.


Melissa Murray We’ve talked about this. Yeah.


Elie Mystal Every, every.


Irin Carmon Decision that I read of his, it’s always like, ladies, ladies.


Melissa Murray Pick me.


Irin Carmon Don’t be mad at me. I’m such a nice guy. And so I don’t know to me. But if you’re him, you have so much time to do this. Why not wait until Trump wins? Why not wait until, you know, the the only question is why they were in such a hurry on Dobbs when they could have waited 1 or 2 cases, and he was apparently, according to the reporting, the one pushing behind the scenes for that. So I guess I don’t think it’s big pharma so much as a rare instance of, Sam Alito not choosing to sputter this time and some message discipline on the part of Republicans who don’t want to raise the salience of this issue any more than they already have before a presidential election.


Kate Shaw They know what year it is, and they know what’s happening in November. And that, I’m sure, is part of the story here as well. Well, so maybe we’ll just take a couple of minutes on standing look. It sounds dry it. Now in hindsight it’s like, well of course this case was always going to be thrown out on standing grounds. They had a preposterous, ludicrous theory of standing. That’s all right. But I think we’re still going to spend a couple of minutes on it.


Melissa Murray What was it like? The doctors have an interest in the esthetic value of watching babies be born.


Irin Carmon What about the the pro-life dentists?


Elie Mystal Yeah. No, that.


Irin Carmon That’s real life dentist.


Kate Shaw That’s right. So just, you know, this is a case that got to the Supreme Court at all because the district court and then the Fifth Circuit accepted these preposterous claims of injury. And I don’t want us to lose sight of that. Ellie, can you just remind everyone a little bit of what exactly was going on in the lower courts? Because this is ETF fever dream material, but it has been accepted by multiple article three judges, and we have to take the prospect of it being accepted by a Supreme Court in a different case. Quite seriously, I think. So what what actually did the lower courts find?


Elie Mystal Okay, let’s go back to Amarillo. Let’s go back to the Emperor of Amarillo. Matt, because Kacsmaryk, who was this kind of crazy religious wing nut and the standing argument was simply that women were too ashamed of their own choices to actually sue on, against the abortion pill makers, that they were so sad and shameful that they had to have some other outside group sue on their behalf. Those poor little ladies and the outside group that had to sue were this group of doctors and dentists called the Alliance for for Hippocratic Medicine, none of whom took the abortion pill, none of whom prescribed the abortion pill. They had nothing to do with it right now. Look, I am no expert on the human gestational process, but if you are getting pregnancy advice from your dentist. Like the person you should be able to sue is your eighth grade sex ed teacher, not D’Amico, the makers of the abortion pill. Right? So but Kaczmarek, as we talked about, he says, no, the standing argument is okay. They can sue on behalf of the little ladies who are too embarrassed to sue. Then it goes up to the Fifth Circuit and James Ho, this motherfucker here, this guy is the guy who decides that the real reason why they’re standing is because there is something called an esthetic injury that is suffered by people who just like seeing pregnant women than their bellies when fetuses are aborted. Now, this kind of standing actually does exist in. Environmental cases, right? Like if I go to a beach, I can say like, oh, why is there oil all over my beach? I’m injured. I can’t enjoy the beach. And so ho was using that kind of standing and applying it to women like they were fricking cockatoos. So I just want to quickly read what ho actually wrote, and I’m going to do my best David Attenborough voice here, because like, that’s how you have to imagine this guy thinking, right? Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones, friends and family cheer at the sight of unborn children. Doctors delight in working with their unborn patients. Doctors delight in working with. An experience, a static injury when they are aborted. Plaintiffs declarations illustrate that they experience esthetic injury from the destruction of unborn life. That was the literal legal reasoning behind this fucking case.


Kate Shaw You’re cheering for Elie’s performance, not the substantive argument.


Melissa Murray For your consideration. So in a nutshell, that is what the court unanimously reversed that absolutely batshit theory of standing. But I want to just underscore this decision serves a number of really important political purposes. We’ve talked about this on the podcast ad nauseum, but whenever the court pulls back from something that the Fifth Circuit, which we affectionately call a meth lab of conservative grievance, because that is exactly what it is. Whenever the court pulls back from whatever extreme nonsense the Fifth Circuit has put out, it has the effect of making the court look reasonable. That’s not what’s going on here. So we already know that it’s an election year. That’s one thing that might be served here. And this is one reason, I think, why the court wants to project the image, the patina of moderate ness. But I also think we have another major abortion case that’s still waiting in the wings. And that, of course, is the case. And. I think it’s very likely that the court is about to deliver an absolutely catastrophic decision about the collision of federal laws requiring the provision of emergency care, including abortions and very draconian state laws like the one in Idaho. So this is just kind of the calm before the storm. Before we get that, I think.


Irin Carmon Can I just quickly jump in because I was thinking about this as I fearfully anticipate the case, how you, on the one hand, have this totally made up notion of harm where these doctors can’t even plausibly make up a way in which they are harmed by people accessing the abortion pill under these, you know, evidence based standards. And at the same time, you have actual harm that’s taking place every single day of people being denied emergency care, women being denied miscarriage care, being medevac out in Idaho, bleeding out. We had just the decision in Texas which denied these women emergency abortion care, harming their fertility, harming their mental health, harming their physical health. And so what, a funhouse mirror, this phony notion of harm, which. Fine. Okay. The Supreme Court disdained, but it got pretty close. It got all the way there. It was not laughed out of a few courts versus the real life suffering that it feels like every single day brings us a new account of.


Kate Shaw Yeah. Ellie, how do you think the media is sort of accounting, if at all, for the fact that I’m Tyler is still out there in the wings as everyone kind of digests this decision.


Elie Mystal Look, I do this stuff every day and I cannot get people to care enough about this case. Yeah, because the Ayatollah case is the one that’s killing people, right? Like, understand when we’re talking about this law, we’re talking about whether or not a person who is pregnant can go into the emergency room and get life saving care. And the Idaho law says that she can only get care if she’s at death. Right. And you’ve ever talked to your insurance company, it’s difficult to convince your insurance company, right, that you need a leave right. And you have to now convince bean counters that you are literally about to die before they will perform medically necessary abortions. Since Idaho put this law and in place six women as of when this case was argued, six women had had to be evacuated out of Idaho into another state to save their lives. And that case is still out there. So while the media is trying, as most of saying, trying to paint this picture of a of a moderate, reasonable court, everything I heard from oral arguments suggests that they are about to make it so. You cannot get medical care in red states unless you can, like, fill out a form in triplicate, saying that you’re at death’s door and that is the case that is going to kill people.


Melissa Murray So the Tldr is, don’t have a week long celebration over this. It’s a sort of status quo decision. Nothing really changes. And you gird your loins for what’s coming next and something bigger is likely coming. I said this was a unanimous opinion and it was, but there is a concurrence. The concurrence was written by none other than Justice Clarence Thomas. And to my mind, this is the real news about this case, because Justice Thomas signed on to the judgment. But in the separate concurrence, he indicated that he would have gone further. Right? He would have gone further to completely eliminate the court’s third party standing doctrine. And generally, standing doctrine asserts that only the party who has been injured can assert his or her own rights, and you cannot raise the claim of a third party in federal court. However, in certain circumstances, the court has allowed for third party standing where third parties can bring claims on behalf of other people, and the principle case in which this third party standing doctrine was announced in the 1958 case called NAACP versus Alabama, and as you might glean from the time frame and the parties to the litigation, it’s a case with a really racialized valence. So the NAACP was organizing in Alabama and the Montgomery bus boycott. So you might have heard of it. They were trying to get black students to integrate the University of Alabama. All of this was happening, and the state of Alabama wanted to stop it. So they sued the NAACP. And as part of that lawsuit, they subpoenaed the NAACP for its membership rolls. And this would have obviously disclosed publicly the names of all of the African-Americans and white people who were sympathetic to the cause of integration, to public shaming, maybe more than that. And racialized violence was a very real prospect. And so the NAACP sued to prevent the disclosure of their membership rolls. And the United States.


Elie Mystal Did they think of just making the likes anonymous for the like without helped?


Melissa Murray I mean, yes. Just a whole a whole list of Jane Doe’s. They could have done that. All true. Maybe this goes back to your point, Ellie. You know, I think there is something about the idea of bringing a lawsuit in your own name, especially when the content of that lawsuit can be something that is very publicly fraught, like abortion or in this case, segregation. The court held in an NAACP versus Alabama, that the publication of the rules would have violated the 14th Amendment. And that’s the seeds of the third party standing doctrine, the idea that in certain circumstances, you have to allow for organizations or third parties to present these claims on behalf of their members. And abortion has been a very vivid context in which this has happened. Most of the big abortion cases that you have heard of outside of Roe versus Wade have been brought by organizations like Planned Parenthood, for example, because it’s very difficult for individuals to bring these claims. And the fact of public shaming or ostracism or economic consequences can actually deter individuals from bringing these suits, and that means these laws won’t be challenged. Justice Thomas effectively said in his concurrence that he would rethink all of third party standing, and he noted in his concurrence that, as he sees it, just as abortionists lack standing to assert the rights of their clients, doctors who oppose abortion cannot vicariously assert the rights of their patients. So note the use of abortionist. Note the use of clients rather than patients. I really have to hand it to this guy. Maybe Beyonce should have sent him the tickets to the Renaissance concert, because this guy took all of the lemons of this case and made a sour ass batch of pro-life lemonade with it. And even though No Justice signed on to this concurrence, we all know it’s going to happen. This is going to be farmed out to the Fifth Circuit, where Jim Ho is going to shepherd this into an actual theory that eventually makes its way to the court.


Kate Shaw This third party standing or associational standing notion underlies a lot of litigation, not just abortion, but civil rights, environmental. There is a whole swath of litigation that Justice Thomas would very much like to see. The courts watch their diagrams.


Melissa Murray Civil rights, black people and abortion get rid of it all.


Kate Shaw Yeah. If you could do it all just in, in in this one lone concurrence, which again, it’s easy to shrug off as a lone concurrence. And I think we’ve now all seen this story play out too many times to make that mistake alone. Thomas concurrence does not stay alone. Fringe view for very long on this court. Melissa noted this the use of the term abortionist. It is totally, really different from the majority opinion. It is interesting you mentioned Alito or in like Alito, of course, the author of Dobbs. He doesn’t join that concurrence. He doesn’t write separately. He I mean.


Melissa Murray He’s got some things going on.


Kate Shaw Right? So there’s so I was going to ask Irin to speculate about why why Alito is not writing. He’s not joining Thomas. And the tone does seem to be a very measured one. Obviously, you have Alito and Jackson and Kagan and Sotomayor. Everyone is together in this opinion on a standing question, but an underlying abortion case. So curious if you have any guesses about the internal dynamics and then just any kind of final thoughts about the case.


Irin Carmon I’m so curious. I mean, of course I was reading that dry as dust Kavanaugh opinion thinking like, what is the drama behind this? Because obviously for the Democratic appointees, it’s the best case scenario given the court’s composition.


Melissa Murray The bar is in hell.


Irin Carmon The bar is indeed in hell. But I mean, it’s just so interesting because I can’t think of a case like this in which Sam Alito has exercised restraint, and I don’t know if it is.


Melissa Murray He’s been tied up with flags at home.


Elie Mystal Yeah.


Irin Carmon You know what he’s capable of, Virgo. Nia, I.


Elie Mystal Know, I know.


Irin Carmon There’s a, there is a there may be it’s just a long game. I mean, he I, I still go back to the fact that, you know, when they leaked Dobbs, I thought, like, surely some of this language will be softened. And then it came out like they did some copy edits.


Kate Shaw It was verbatim. It was. I’m still shocked by that.


Elie Mystal Yeah.


Irin Carmon And so that makes the restraint shown today even more perplexing. I mean, Ali, you and I were talking about this earlier. What is to come. Yeah.


Elie Mystal And I that’s why I’m really worried about entirely because I think that Alito doesn’t hold this fire here. If he also was losing him taller. Yeah, maybe he really m taller. And so he’s like, all right, have your little pills. I’m going to kill you. Like, I think that’s what he. That’s why he’s able to, like, chew with his mouth closed for an entire opinion today, which you usually can’t do.


Irin Carmon And with me for Stone, I mean, I mentioned this earlier. It may be that he’s reading the polls, and he just feels like, why don’t I wait a few months? I mean, they didn’t talk about we didn’t really get into this too much. They didn’t talk about Comstock that much, despite dwelling on it tremendously during the oral argument. And so do they. I mean, Ed Whalen, 30s, after the opinion goes down, tweet saying, well, it doesn’t matter because we’re going to have that Comstock interpretation from the Justice Department that’ll allow us to ban abortion pills and any other abortion. Implements. And so maybe Sam Alito is feeling pretty confident. Usually he still can’t help himself. So I’m like, what’s going on here? But it does show that there’s like a little bit of John Roberts, even in Sam Alito, where they just don’t want to raise the salience of this. So obviously losing issue for them. And I got it. You know, I’m going to rat out my editor. I covered them for an oral argument before I went on book leave. And I was like, great. I got to cover this ayatollah’s argument. He’s like, don’t have the bandwidth, you know? So to your point, I didn’t and I ended up doing TV about it, but I didn’t end up writing about it for New York magazine. And so I do think it, to the extent that they’re holding their fire for that, they understand that the stakes of that, for reasons I actually find very hard to understand. Because for me, women bleeding out and having to be medevac to sounds pretty fucking bad. But nonetheless, it was a busy news cycle. There was a lot of other things going on and in my editors defense, and so I think that to some extent, they are sensitive to those broader media currents that you called out. And I’m very scared, for this country and for what bile will emit from Mr.. Justice Alito.


Melissa Murray All right. So on that uplifting note, thank you.


Elie Mystal Erin, for joining us.


Unidentified So happy to be here. Thank you guys.


Elie Mystal Packages by Expedia. You were made to be rechargeable. We were made to package flights, hotels and hammocks for less. Expedia made to travel.


Speaker 6 I’m Indian American. Emphasis on American. And for most of my life, understanding the country my family came from was low on my to do list. That was until I began following a mystery. The story centered around a suspicious death in December of 2014, George Bridge, Co Paul Loya died at a wedding in Nagpur, India, of a heart attack. But when his niece approached a journalist two years later, she shared a different narrative that the circumstances around Judge Bridge collapse Floyd’s death made his family doubt the official story. I’m Ravi Gupta, host of Killing Justice, the newest podcast from Crooked Media in the branch. And throughout the show, I examine the reporting, legal fallout and conflicting evidence that unfurl from this tip. Killing justice isn’t just about one man’s mysterious death. It’s about the battle for truth in the heart of the world’s largest democracy. New episodes of Killing Justice, released every Monday on Apple and Spotify. Subscribe now so you don’t miss an episode for ad free episodes. Join the friends of the pod community at crooked.com/friends.


Melissa Murray We got some other opinions and, these two sort of track in that moderate three, three, three consensus driven court as well. So Kate, what’s the next opinion.


Kate Shaw We the mouth of this opinion is really, really hard. You cannot put the mouth of this opinion.


Elie Mystal No I’ll do the. No no no I’ll do it I.


Kate Shaw Just not 333. This is one of these unbelievably confusing one but.


Melissa Murray It’s nominally unanimous.


Kate Shaw Yeah there’s a lot going on in there. Yes.


Melissa Murray We’ll get to it.


Kate Shaw Okay. So what is the case? We will just quickly remind you. So the case is called Vidal versus Elster, colloquially known as the Trump two small case, which references a memorable exchange between then presidential candidates Donald Trump and Marco Rubio. Anyway, after all of that, and an entrepreneur named Steve Elster made some Trump too small t shirts and tried to register the phrase Trump to small as a trademark. With the U.S. Patent and Trademark Office, the PDA refused to register the mark on the ground that there is a provision of federal law that actually forbids the registration of a trademark that identifies any living person without that person’s consent. Obviously, Donald Trump did not consent to the Trump to small trademark but Elster argued that preventing him from registering that trademark actually violated the free speech Clause of the First Amendment.


Melissa Murray And the court, in an opinion authored by Justice Thomas, concluded that the Lanham Act’s name Clause does not violate the First Amendment, and notably, the Court and Justice Thomas relied on a quote unquote history and tradition approach to trademark regulation in the United States. So it’s basically Bruin, but make it trademarks, right? Same idea. Again, I would love to tell you exactly what the breakdown of the justices was in this opinion, but honestly, I’m so confused. So I’m just going to read it out loud to you. Thomas J announced the judgment of the court and delivered the opinion of the court. Except as you part three, Alito and Gorsuch joined that opinion in full. Roberts and Kavanaugh joined all but part three, and Barrett joined parts one, two, A and chubby. Kavanaugh filed an opinion concurring in part, in which Roberts joined. Barrett filed an opinion concurring in part in which Kagan joined, in which Sotomayor joined as two parts, one two and three B, and in which Jackson joined as two parts one and two. Sotomayor filed an opinion concurring in the judgment in which Kagan and Jackson joined. That is an Lsat logic puzzle. Like what? I don’t know what, the whole day of the day.


Kate Shaw So Mr. Elster loses that we know.


Elie Mystal That we know.


Kate Shaw And it’s a little hard to do the math on. Like what parts of the reasoning of the opinion are law and which ones are just kind of essays, musings. There is a decent amount of consensus, but there’s also a lot of disagreement. That’s methodological. Right. So Justice Sotomayor writes a concurrence. She agrees this mark should not be able to be registered, but it does read much more like a dissent. And she is really concerned about the fact that the court is using this history and tradition method, that it used to a degree in Dobbs and really used in Bruen the gun case from the same term as Dobbs in a First Amendment case, which it has never done before. And to my mind, a turn to history and tradition in the First Amendment context is actually very scary. So if you think about pre New York Times versus Sullivan, right, which is an important constitutional case that protects the press from like serious defamation suits, makes it hard to sue the press for mistakes that they make.


Melissa Murray It’s not like New York Times.


Kate Shaw Versus Sullivan Thomas I feel like I remember oh.


Elie Mystal Yeah.


Kate Shaw Oh yeah, it’s Thomas. And Gorsuch is on board now too, so you at least have two who have said explicitly they would like to see that opinion. Overruled. But it’s not even just Sullivan. I mean, think about, you know, our founding era laws were very inconsistent, some of them with contemporary notions of the First Amendment. So you had the Alien and Sedition Acts, which literally criminalized criticizing your opponents like it criminalized political speech. And that’s if we’re looking to sort of see what has been tolerated historically under the First Amendment. I just think that’s a very scary moment to be in, given sort of the rest of the political landscape. And yet I do think that’s what this opinion suggests. Again, it’s like Marco Rubio, it’s like this little quirky case. And yet I think it has the seeds of very, very, very ominous notes about how First Amendment claims might be adjudicated going forward. So I’m curious, Ali, any thoughts on am I being paranoid about the possibility of the exportation of this brew in history and tradition analysis to First Amendment law? Every other body of law, I guess, like, what could possibly go wrong?


Elie Mystal Yeah, no originalism and this new history and tradition valence. I like to analogize it to the One Ring of Sauron. Right. It cannot be used for good. And anybody who wields it is corrupted by it. Right. So and this is the this is the thrust of Kagan’s concurring dissent opinion, right. Where she’s saying, yes, you’ve gotten to the right outcome, but you’ve gotten to the right outcome based on this horrible, reasoning that will. Only lead to badness in the future. So here’s the reasoning how you can get to this right outcome without taking the ring and being instead a very good hobbit. Well, Kagan’s view went out like the hope, right? Is is that in the long run, when people need to, you know, refer back to this decision to the extent that it has precedential value, they’ll refer back to Kagan’s concurrence as opposed to Thomas’s majority opinion.


Melissa Murray I’m really interested in the Barrett concurrence. I don’t even know if it’s a concurrence decision. I don’t know what it is like. Again, this whole make up and breakdown is hard. The Barrett concurrence seems really interesting in that she seems to be rejecting this whole idea of history and tradition in favor of something that is more contextual, practical, and keeps in mind contemporary realities. And I just wonder if that is giving us some kind of insight to where she is and what we might see in the Rahami case, which again, this question of history and tradition really loomed large, and whether or not we can look at historic firearm regulations to consider whether or not someone who has been.


Kate Shaw Served with a DV restraining order should.


Melissa Murray Have a gun.


Elie Mystal Yeah. No, I’ve always thought we have Barrett on Rahami. I’ve always been.


Kate Shaw Well, and.


Melissa Murray There’s a real gender schism here on the history and tradition approach. Shocking. I know women don’t like the history and tradition approach.


Elie Mystal No. I’ve always thought we’re going to have Barrett and Rahimi, and I do agree that this her concurring thingy, suggests that she’s on board because, remember, like in Barrett’s world, like it’s okay to take guns away from bad people because Jesus doesn’t want to have guns, right? So, like, so she understands that, like, once you’ve made them the moral problem of being a criminal, we can do anything we want to you. So I’ve always thought we had our reaming. I will say that. I mean, this is something that’s been happening in the media a lot. Barrett is the one to watch at this for the rest of this term. Going forward. Barrett is the one to watch. She. I have a friend who said that she’s like a Disney princess who was made real and realize is starting to realize the men who made her real might suck. Maybe, but she’s still Disney princesses. Still want us all. And so we’re trying to figure out, and like the rest of this term, will tell us a lot about whether or not Barrett is kind of an independent thinker, or if she’s really is just Leonard Leo’s marionette.


Kate Shaw The problem is she just joined silently sometimes, right? Like she does not right enough in her own voice. And I am so curious to see I, I.


Melissa Murray Think that’s a see which took it.


Elie Mystal That was good.


Kate Shaw I guess we just don’t know yet whether you know that Lady safe Haven is our moniker for Justice Barrett. And I was going to ask whether in light of, you know, the, the the first Stone case, we obviously need to see him taller, but I think it’s possible that we do that. You know, the Democratic appointees are that Barrett is with them on both Ayatollah’s and Rahimi. But of course, that does not necessarily tell us about whether the moniker is wrong more broadly. So I think that we have yet to see. But I do love that he prints out the.


Elie Mystal Five four man woman split. We saw it. We saw it once last term. We saw it in the Colorado ballot box, even though.


Kate Shaw Kind of.


Elie Mystal Even though Bauer is kind of like, oh, we shouldn’t be so mean to the nice to the men. She was still fundamentally like with the women response to that case. So we could be seeing the beginnings of A54 man woman split on the Supreme Court. And if they try to shove that down our throats with more decisions, taking away women’s rights, taking away access to abortions, it’s going to look even worse for them.


Melissa Murray All right. Let’s go to the last case that we got on Thursday, the court handed down a nominally unanimous decision in Starbucks versus McKinney. And many of you will remember that the case arose out of the push to unionize Starbucks across the country. So there were seven Starbucks employees who were unilaterally fired from the Starbucks where they worked because they were trying to unionize their coworkers. And this caused some issues.


Kate Shaw Right. So this case, obviously, that’s, you know, a sequence of events we’ve seen at a lot of places. This one grew out of an effort to unionize a Starbucks in Memphis. So this group became known as the Memphis Seven. They say they were again fired in retaliation. And the issue in this case is really what the National Labor Relations Board, or NLRB, has to establish in order to get a preliminary injunction against an employer, essentially, to make an employer rehire individuals. It makes a preliminary finding, were unlawfully terminated because of union activities. Just what is the standard for a preliminary injunction in a case like this? The statute at issue, the Wagner Act, just doesn’t say. It says that the court should grant such temporary relief as it deems it just and proper. And Starbucks was basically saying the test should be a more demanding one in order for the agency to get one of these injunctions. And, you know, of course, that’s because the standard makes it easier for the board to force employers to hire back employees who’ve been fired for trying to unionize. And Lisa Blatt represented Starbucks, and she was arguing for this traditional four part test out of a case called Winter, which asks, basically, has the court balance all these factors to decide whether a preliminary injunction should be issued, rather than a more relaxed approach that had previously been used in some cases involving the NLRB, including this one.


Melissa Murray And an oral argument, it seemed like Lisa Blatt had this court eating out of her hand, right? I mean, like this was a full on court drinking the pumpkin spice latte, like they very much were into this. With one exception, Justice Jackson seemed more skeptical of Starbucks position. But all to say that it wasn’t really a surprise that the court issued a sort of unanimous opinion that, again, was written by Justice Thomas. He’s very moderate now. Look into it. Justice Thomas embraced the four part winter test that Starbucks endorsed. And I say, though, that it is a nominally unanimous decision because Justice Jackson, who again was most skeptical of Starbucks position, also weighed in here and filed a partial concurrence and a partial dissent. And interestingly, it’s longer than Justice Thomas’s majority opinion. And I don’t want to say there’s bad blood between these two people, but I’ll let you decide. I mean, it seems like they’re working some things out.


Kate Shaw So her separate writing, actually sort of thinking about her and labor cases reminded me of her solo dissent in a case called Glacier Northwest, which was also a case involving unions and a work stoppage in that instance. And it has this very distinct articulation. You saw something similar, in that case, of her view of the importance of the capacity of government, the capacity of agencies of, you know, deferring to agency expertise. And the NLRB, you know, was the agency at issue here, but it seems like she’s making a broader set of points. So she says, let me just read one quote. She says, I’m loathe to bless this aggrandizement of judicial power, where Congress has so plainly limited the discretion of the courts and where it so clearly intends for the expert agency, it is created to make the primary determinations. So what do you think was she talking about?


Irin Carmon She was talking.


Melissa Murray About pumpkin spice latte. I mean, she’s talking about this court and deference to agency, maybe even the entire Republican Party and Marjorie Taylor Greene, and it’s complete disdain for anything related to it.


Kate Shaw Well, it seems like she’s also saying without saying, obviously, Chevron is being overruled and I’m going to go down really screaming about it. I mean, it’s like pretty explicit. I thought there and.


Melissa Murray These are her Chevron safe words.


Elie Mystal Yes. Right. In the same way that I think Alito is holding his tongue because he want to and taller. I think Jackson is writing here because she lost Chevron and she’s starting that. Process of getting people to to think about it differently. I mean, she’s heard her comments in this case, she did the same thing in the mid Preston case in oral arguments, like she has been consistently saying we should let the agencies decide. And I think that’s all going to come to a head. And Chevron and to me it’s just a question of whether or not she’s writing her own dissent or whether or not she’s there giving it to Sotomayor or on seniority to do it.


Melissa Murray All right.


Elie Mystal Womp womp womp womp.


Melissa Murray Another win for Lisa Black. Congratulations.


Elie Mystal I’m not touching that one. No, I like.


Melissa Murray I mean, that, I mean, genuinely, she’s she’s a very good, very interesting. Good for her.


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Kate Shaw We have a ton of court culture to cover, so we’re going to dive right in. And we got some interesting new tidbits on Lawfare and Alito or DFAT in the original German. So on Monday, rolling Stone released a story with more scandal news. And here’s what we learned on June 3rd. Lauren Windsor, someone Rachel Maddow has described as an advocacy journalist, attended a dinner at the Supreme Court Historical Society. She did this on the up and up. She purchased a ticket. She attended the event under her real name. She is apparently a dues paying member of the historical society, and while she was there, she spoke with Justice Alito and Martha Ann Alito. In doing so, she presented herself as a religious conservative, all while secretly recording them. And it’s pretty wild stuff. We are likely to include a recording of the actual audio in the podcast that will drop on Monday morning, but I think this is actually going to be more fun for you. We’re going to.


Melissa Murray Give you some details. Wait, Melody’s going to swap in the recordings for our dramatic reading?


Kate Shaw Well, our favorite thespians, Melissa Nellie, are going to read it. And maybe Melody, in her infinite wisdom will decide. We’ll use the actual audio, or maybe you guys will make the cut. I don’t know. It’s not I don’t make these decisions. That’s way above my pay grade. But you will hear we’ll get to hear this dramatic reading. So the stakes are high. Guys, the pressure is on.


Melissa Murray Okay, so strict scrutiny. Theater. I am going to play Lauren Windsor. Ellie, I think you should play Sam Alito. Okay. All right. Get into character. Okay. All right. All right. Ready?


Elie Mystal I hate everybody. Okay, good. Okay.


Melissa Murray Okay. And scene. So, anyway, I just wanted to tell you my husband really wanted to be here, but he had that last minute business thing, and he was just, like, make sure that you tell Justice Alito that he’s a fighter. And we really appreciate. And he has all the grit. And, you know, it’s just got to be terrible what you and your family or what you’re going through right now. So I’m just so sorry. Thank you.


Elie Mystal Thank you very much I appreciate that.


Melissa Murray I know you don’t remember this at all, but what I asked you about was about the polarization in this country, about like, how do we repair that rift? And considering everything that’s been going on in the past year, you know, as a Catholic and as someone who, like, really church is my faith. It just don’t I don’t know what we can do to negotiate with the left in the way that needs to happen for the polarization to end. I mean, I think it’s like a matter of like winning.


Elie Mystal I think you’re probably right on one side or the other. One side is going to win. I don’t know. I mean, there can be a way of working, a way of living together peacefully, but it’s difficult, you know, because there are differences on fundamental things that really can’t be compromised. They really can’t be compromised. So it’s not like you’re going to split the difference.


Melissa Murray And that’s what I’m seeing. It’s just I think the solution really is like winning a moral argument. Like people in this country who believe in God have got to keep fighting for that, to return our country to a place of godliness.


Elie Mystal I agree with you. I agree with you and seeing.


Melissa Murray Hey, look, we’re not putting any reporting that.


Elie Mystal No, that was important. Look, I can see how people can hear that and think like, oh, that sounds so bad. But, like, nothing Alito says surprises me because I’ve actually read his opinions. But what he’s saying there is that he does not think we can live in a pluralistic society. All right. He does not think that we can peacefully live with people that we disagree with.


Melissa Murray They are not flying the coexist flag. Right? They are not doing that.


Elie Mystal And it’s it’s a shocking thing for a Supreme Court justice, one of the nine most powerful people in the in the country, one of the most unaccountable people in the country to literally say on tape that he’s not sure that we can peacefully coexist. Like, if you don’t think if you don’t think that they get the fuck out the job and let somebody who thinks that we can peacefully coexist. Give it a try.


Kate Shaw Okay, so let’s contrast that recording with what happened when Windsor posed similar questions to Chief Justice John Roberts. Once again, I’m taking myself mostly out of this, Melissa. He’s going to play Lord Windsor. I know my limits. Ellie is going to play the chief justice and scene.


Melissa Murray But he did want to ask you like specifically like with everything that’s going on right now, you know, it’s a very tumultuous time in the country. And I’m just curious, like from your perspective on the court, like, how do we start to repair the polarization?


Elie Mystal You know, the first thing I think is to tell me, when was there a non tumultuous time, when has that been here? I mean, you look at the court, you look at what the court is doing in the 60s. You look at what the court is doing in the New Deal with the court was doing, you know, after Dred Scott and all this. And it’s it’s a regular thing. People think that’s so different and special. It’s actually pretty tumultuous for a long time. Vietnam. And it’s motherfucker said that I’m not just end of the sentence with Vietnam.


Melissa Murray See? Think like this is a normal period.


Elie Mystal You know, I don’t know if it’s normal, but I mean, since I’ve been here all of the 20 years, there have been quieter times. But the idea that the court is in the middle of a lot of tumultuous stuff going on, that’s nothing new.


Melissa Murray I mean, I guess I wouldn’t say that it’s not. It’s not like it’s an innovative thing. It’s not new. I guess I just really feel like we’re at a point in our country where the polarization is so extreme that it might be irreparable.


Elie Mystal You you sound crazy better right now. That’s right. Instead, what he said was, oh, I don’t think. And I think a polarization that extreme is like the Civil War. We did that during Vietnam where people were getting killed and I was there in Vietnam. It’s like, this is all right. I mean, it’s not all right, but it’s not like dramatically different as people. This is a common thing. People with their own perspective think this is so extraordinary. I don’t know.


Melissa Murray But you don’t think there’s, like, a role for the court in, like, guiding us toward a more moral path?


Elie Mystal No, I think the role for the court is deciding cases. If I start, would you want me to be in charge of guiding us towards a moral path? A more moral path? That’s for the people we elect, not for the lawyers.


Melissa Murray Well, I guess I just I believe that the founders were godly, like they were Christians. And I believe that we live in a Christian nation and that our Supreme Court should be guiding us on that path.


Elie Mystal Right now, in Roberts mind, you can see the danger. Danger? I don’t know if that’s true. Yeah. I don’t know that we live in a Christian nation. I know a lot of Jewish and Muslim friends who would say, maybe not, and it’s not our job to do that. It’s our job to decide cases as best we can. It’s a much more modest job than I think people realize and see.


Unidentified So you know.


Kate Shaw So we contrast the two scenes. Right. Like the second one there obviously is. Now maybe he just like knows an obvious thing when he sees one. That’s a that’s it. The plausible theory. We must continue.


Elie Mystal To watch The Wire, you know.


Kate Shaw But also like it’s plausible that, you know, a justice might be somewhat guarded when asked by a rando if he would like to participate in establishing a Christian ethno state.


Elie Mystal Like, maybe.


Kate Shaw Maybe, you know, imagine a justice acknowledging the country consists of more than just Christians.


Melissa Murray Because the bar is actually still.


Elie Mystal Like, oh.


Kate Shaw Yeah, I know that we’re celebrating this, but I actually like I think that, you know, the contrast is really important to identify. And, you know, just to say another word about that, Alito is literally embracing that the court’s role is, at least in part, returning the country to a place of godliness like that seems to be what he is saying. And Roberts obviously does reject that framing. But again, I don’t want you to think that we are John Roberts apologists. And in some ways, I think that this exchange, the contrast, kind of underscores how grossly negligent Roberts is as chief justice right now, because I think he knows exactly what Sam Alito is doing and how Sam Alito sees the role of the court, and he is doing nothing to curtail it. He is giving Alito cover. When Congress tries to exercise oversight authority, he is assigning Alito important opinions. And so, in some ways, I think that everything Alito says in this conversation is also on John Roberts. Okay. But so back to the historical society again. This is an event that happened, you know, a week ago. If you are having a November 2022 flashback, you’re on the money. This society was featured prominently in early New York Times reporting about the justices, this time about conservative efforts to basically get close to and provide emotional support for the conservative justices to shore up their mettle. And this was one of the conduits that the society for conservatives to get face time with the justices and their wives. So enter one of the wives. Okay. So in addition to talking to Justice Alito and the chief, Windsor also strikes up a conversation with Martha and Alito. And it was as spicy and salty as you would imagine. So let’s hear some of this. I actually I’m going to play a role here, but it’s going to be a minor one. Okay. So I’m going to play Lauren. Melissa is going to be Martha and get excited.


Elie Mystal Okay. I do.


Kate Shaw I think so do you feel like Melissa has stolen apart. You’ve been you were born to play Martha and Alito.


Elie Mystal I was ready for Martha to go ahead.


Kate Shaw Why don’t you do Lauren? Yeah, Melissa. You do Lauren. And give Allie Martha an.


Melissa Murray All right. I was ready, FYI. Okay. Ready. And scene. I’m a huge fan of your husband, and you just want to see what you’re going through.


Elie Mystal It’s it’s it’s okay. So it’s okay. It’s not okay. It’s okay. Because if they come back to me, I’ll get them. I’m going to be liberated. I’m going to.


Speaker 6 Get them.


Melissa Murray Home. What do you mean by them?


Elie Mystal There’s a there’s a five year defamation statute of limitations.


Melissa Murray I don’t actually know who you mean by they and them and get.


Elie Mystal Them the media.


Melissa Murray The media.


Elie Mystal And see.


Kate Shaw This is not about like these are the actual words of the transcript, just to be clear.


Melissa Murray All right. For this next clip, we really need to pull some receipts. And this is from our June 3rd episode, when we were analyzing Justice Alito’s letter screed to Senators Durbin and White House. So I will read this dramatic reading. He notes here that he, quote, implored his bride to take it down once he saw that, oh, oh, this is what I said. Yes, this is Melissa right now.


Kate Shaw So we will I this one actually, we were.


Elie Mystal Reading, I was thinking.


Melissa Murray This is so meta, I love that.


Kate Shaw Okay. Do you want me to read your part?


Melissa Murray Yeah. Okay. All right.


Elie Mystal Okay okay.


Kate Shaw I’m going to do it justice, but okay. So I will read this is Melissa from our episode right after the letter that Alito sent that like, purported to explain the first episode of Flag Gate. Okay, I’m not Melissa. He notes that he implored his bride to please take it down once he saw that Old glory was flying upside down. And Martha was like, no, no, I do what I want. And for several days it remained in that upside down posture. While she refused to bring it down as her husband, a sitting member of the Supreme Court, had requested. And again, I’m not talking ever again, Melissa, let me try. You’d pause here and again, this detail prompts me to ask, why are justices who cannot seem to control their own wives so intent on controlling other American women? Or have I answered my own question? But not really just the answer right there like that, explains Dobbs in a nutshell. Like, I can’t control her. I control all of you. Fine.


Melissa Murray Genius. I give it a Pulitzer.


Elie Mystal Amazing.


Kate Shaw All right, so with that fresh in your ears again, that’s Melissa’s take right after the let the flag reporting and the letter. Listen to this other thing Martha Ann said to Lauren Windsor at the same historical society dinner the same day the episode came out. So episode is released that morning. This conversation happens that night. And again, we will have Arianna Cassis. You’re going to do.


Melissa Murray Ellie is going to.


Kate Shaw Listen to Martha and this time. Okay. All right.


Elie Mystal The other thing is the Fetterman Nazis believe that he’s control me, so they’ll go to hell. He never controls me and seen.


Melissa Murray So just a general question. Am I the feminazi in question?


Elie Mystal Wait, it’s me. I I’m the problem. It’s me.


Kate Shaw There is a non-zero possibility that Martha Ann is either a friend of the pod, or more likely, hate listeners, or has someone hate listen and feed her morsels. Because it really sounds like what Melissa was saying on the episode the dropped that day. He’s they want me to. They want him to control me.


Elie Mystal I think I.


Melissa Murray Understood me now, but I just want to like if she’s listening, Martha. And if you’re listening. I don’t know if we’re the feminazi she’s referencing, because I just want to say that every person with a uterus and the capacity for literacy pointed out the incongruity, indeed, irony, of one Sam Alito waxing lyrical about his wife as a rights holder and decision maker and property holder, and had real difficulty reconciling that with his status as the author of Dobbs Lightning. These were obvious connections to draw, so I don’t know if it’s just me. I think a lot of people were noting the incongruity of these two things. And so and.


Kate Shaw You I think now get to defend yourself. So she says.


Melissa Murray I said what I said and I’m like, I thought I said I.


Kate Shaw Think it was your point that he should control.


Elie Mystal My point was.


Melissa Murray Not that he should control her. I think she ought to control herself. But to be very clear, my point was simply that I don’t want Sam Alito to control any woman at all, ever.


Elie Mystal Me asking too much? No, no. Okay. And yet.


Melissa Murray Here we are.


Kate Shaw There’s one more exchange. Okay, so there’s more. There’s just one more. But we have to play it. And I honestly don’t know what to make of it, so let’s do this once again. Wait, who’s going to be more end for this last one? I got you got it. Sorry. I was glad.


Melissa Murray You’re a guest.


Kate Shaw But he’s been practicing all day.


Elie Mystal Okay.


Melissa Murray All right, all right. And seem. They’re persecuting you. And you’re like, a convenient stand in for anybody religious.


Elie Mystal Look at me. Look at me. I’m German. I’m from Germany. My heritage is German. You come after me. I’m going to give it back to you. And there will be a way. It doesn’t have to be now. But there will be a way. They will know. Don’t worry about it. Come and feed. No one should ever quote their German heritage in that way. Ever. That is no longer allowed. They’ve lost the privileges. Okay, so I should.


Melissa Murray Say, the last time the Germans and the Italians teamed up.


Elie Mystal It was not good. Not good, not good.


Kate Shaw And there actually, I said that was the last exchange. There is one more exchange we’re going to play because.


Elie Mystal Oh, really? Oh, yes. How can I?


Melissa Murray Because it’s pride. We should play that we have for pride.


Kate Shaw It, it also demonstrates what a vaccinologist, which is a word I only learned in the age of the affair. Alito like a flag expert, but it shows what a vaccinologist she is. VAX elite. Alito. I’m not sure where we’re dropping. Like, what the.


Melissa Murray Taking all suggestions?


Kate Shaw Yes. Of the portmanteau of those two. But. Okay. Ali, once again, you definitely get to play more than for this clip. Take it away.


Elie Mystal You know what I want. I want a Sacred Heart of Jesus flag. Because I have to look across the lagoon at the pride flag for the next month.


Melissa Murray Exactly.


Elie Mystal And he’s like, oh, please don’t put up the flag. And I said, I won’t do it because I’m deferring to you, but you are free of this nonsense. I’m putting it up and I’m going to send them a message every day, maybe every week, which is longer than if I. I’ll be changing the flats. That’ll be all kinds. I made a flag in my head. This is how I satisfy myself. I made a flag. It’s white and it’s yellow and orange flames around it. And in the middle, the word for gonna. We’re gonna. In Italian, it means shame. You’re gonna be r g o China. Shame, shame shame, shame.


Kate Shaw I had no idea what an incredible.


Elie Mystal Need a smoke? I mean, it’s giving.


Melissa Murray Hannah Waddingham and accepting an L.A. in Game of Thrones like we’re a Searcy.


Elie Mystal I sweat like that. Can I?


Melissa Murray Can I flag another flag? Another weird tidbit. Yes. Okay. All right. So at one point during this conversation, Martha, and sort of talking about how much she hates the media, but she didn’t focus on Jodi Kantor or the reporters at ProPublica. She focused on wait for it. The Washington Post fashion correspondent Robin Givhan and this is a Pulitzer Prize winner.


Elie Mystal Okay.


Melissa Murray And it seems like Martha and Alito holds a grudge, like some people hold a microphone, because back in 2006, when the alito’s were going through the whole confirmation process, Robin Givhan wrote a column dissecting the alito’s fashion choices. And she included this line about Mrs. Alito. There is nothing particularly fashionable about her clothes. Not in the sense that they reflected some contemporary trend, but they were familiar and reassuring because they are the sort of clothes that populate office complexes, PTA meetings, and the closets of many a working mother. I don’t think it’s that bad, honestly, but it seems that Martha Ann Alito really took that personally. So 18 years after that column first appeared in print. Robin Givhan is still living rent free in Martha and Alito’s head, and she is very annoyed. She went on and on about how annoyed she was with Robin Givhan, which makes me ask, Is Martha and Alito a Virgo?


Kate Shaw We tried to figure this out. We were googling or.


Melissa Murray I googled her all day. I can’t find a single. You feel.


Kate Shaw Pretty sure.


Melissa Murray This is very Virgo energy. I’m a Virgo and I know. Anyway, let’s let’s move on from that aspect of court culture. Let’s talk about their disclosure.


Kate Shaw So I’m going to talk about their disclosure forms, which are ordinarily like, you know, in days of your typically pretty boring affairs. But they are they’ve gotten more interesting in, you know, recent filings. So the group that we got last week, first CBJ.


Melissa Murray Clear winner.


Kate Shaw Clear winner. Yeah. What did you.


Melissa Murray Get Beyonce’s ticket.


Elie Mystal Like.


Kate Shaw Personally from Beyonce.


Melissa Murray I mean of course game recognize game right. Like of course. And she disclosed them. She did not keep them to herself like oh I was just hanging out at the Renaissance concert. Like she was just like, no, because she’s ethical. She was ethical. And she said, so fine.


Kate Shaw What else?


Elie Mystal John Roberts, most boring man in the universe, or at least John Roberts has the most boring friends in the universe. Like nobody even thought to, like, give him like a gift voucher to Ace Hardware, right? Like you got nothing, right? I would, I would imagine, like when when Robertson is like, posse come shoot something. He has one. Like when they do Secret Santa. Like I bet they just like leave each other, like affirming notes. You’re great. Don’t let anybody ever tell you you’re different. It was it was. It was that. I felt bad for John. He needs better friends.


Kate Shaw He oh so elite. Another little tidbit. It’s sort of a non tidbit in the disclosures. Alito has requested an extension for filing his financial.


Melissa Murray He does this every year.


Kate Shaw Yeah, but this time he might be busy negotiating with his wife, you know, Congress etc.. I’m not sure, but but but we don’t yet know if there’s anything interesting in the Alito household’s disclosures.


Melissa Murray Justice Thomas updated his 2019 disclosure forms, in case you’re wondering, that was five years ago. So just now he’s updating them. And and he notes in his disclosure for 2023 that he sought and received guidance from his accountant and ethics counsel in the Additional Information or Explanations section. Apparently, in 2019, he had inadvertently omitted a trip to Bali with Harlan Crow, as well as a visit to the Bohemian Grove in Northern California, also with Harlan Crowe. That’s why I we’ve been through this because ProPublica told us about it. All right. So this had already been revealed. He also disclosed a gift of two photo albums from Terrence and Barbara Jarreau. Terrence Jarreau is the or was the executive director of the Horatio Alger Association, on which Thomas serves on the board of and justice Thomas also hosts an annual ceremony for this group in the grand courtroom of the Supreme Court. Interestingly, these two photo albums were valued at $2,000. What kind of photos were these like? Genuine question.


Kate Shaw Inquiring minds want to know I got nothing. They’re marble covers.


Elie Mystal Like what do I do? Well, what.


Melissa Murray Kind of photos are these? Like her Brits, I don’t know, like Dave Chappelle.


Elie Mystal I don’t know, I don’t know, I don’t, I don’t I don’t have those kind of white friends I got. I got, I got the more simple way.


Melissa Murray It’s us.


Elie Mystal It’s us with us all. I’m going to say like it gives me like, you know, gift me like a PlayStation gift card so I can buy, like a season on destiny. Like, that’s my wife.


Kate Shaw That’s a good friend.


Melissa Murray I don’t know what you just said.


Elie Mystal Look, I think the overall thing here though is that. Some of these gifts smell of corruption. And some of these gifts smell of just what friends gift to other friends. And we can’t make a decision about that because Congress refuses to pass an ethics bill that would outline what the Supreme Court justices can and cannot take. It should be so frickin simple to just write a bill and say anything below $2,500. Nobody cares about anything above $10,000. You just can’t take.


Melissa Murray So can we. Can we give some props to the Senate Democrats? Who did, I think get try to get in front of this? And there’s no way in hell that their bill is going to be passed. Right. They know that. But I do think the fact that they offered up this bill that would sort of try to reign in the court and put some ethics guardrails around, is their attempt to make the court part of the political salience going into the election? And I think that’s a really important development for them.


Elie Mystal They need to campaign on it and they need to push it. But yes, I like it’s it’s the like you were talking about the bar being in hell like this. This is clearing a bar that’s set now. But yes, the very first step to ethics reform is admitting you have a problem.


Melissa Murray I think we know that. Okay. We definitely have a problem.


Kate Shaw Can I say two more things about Congress? I mean, one, I do think that obviously you need both houses of Congress to pass a bill. And so there’s a limit to what Senate Democrats can do right now. But what doesn’t require cooperation from the other House is oversight. And the Democrats control the committees. They control judiciary and oversight and committees that could actually do much, much more to try to get John Roberts. So, you know, there was this exchange we’ve talked about in previous episodes where Alito steps in and writes a letter about the flag, and then Robert steps in and says, every basically every justice, you know, decides for themselves when to recuse. So not that the Thomas give stuff, but obviously it’s all related. And as far as I know, Roberts had the last word like they just said, okay, I guess you’re not going to talk to us. And I don’t think they can let that stand. I think they need to. If an executive branch agency got an oversight request, they would negotiate so Roberts could send a staff member, or they could submit written questions and require his response. I don’t think they can just let him have the last word or all of that kind of like hardens into law. That’s how, you know, inter branch relationships work. And so I think that’s hugely important that the senators do that. And also the Democrats are in the minority in the House. But I do think that Jamie Raskin, AOC, there are people who are getting very, very focused on judicial ethics, and they do have a bill, but obviously they’re not going to able to pass it unless they have a majority in the House. So that obviously it’s such a critically important issue. And I think that congressional Democrats are actually finally really focusing on it. The question now is what are they going to do?


Melissa Murray All right. That was really heavy, Kate. Thanks. It’s my we want to leave the audience on a lighter note. Okay. So. All right, we want to get you ready to go out into the world and really fight the good fight. And so we spent a lot of time doing strict scrutiny, but we really have to let you know that this is not our primary job. Like we actually have day jobs and some of our students are here. You know, our day jobs are that we are law professors. And so we love this time of year when the students leave.


Elie Mystal I mean.


Melissa Murray Not like that. Sorry. Not wrong. Sorry. Not you. When our students graduate and they go off to do really great things. And in fact, in the house tonight, we have some high school students from the Trinity School who have just completed a seminar on the Supreme Court under the tutelage of their indefatigable professor, Doctor Rachel Halper. Welcome to those.


Elie Mystal Please don’t tell your parents that I was cursing. I didn’t realize.


Melissa Murray You have just finished up your school year and you’re going to do amazing things. And we wanted to honor you and all that you’ve accomplished with a little homage to the high school experience. So that’s right, folks. It’s graduation season at strict scrutiny, and we are going to go back to strict scrutiny, high where we are going to kick it old school with Washington, D.C.. 20543. Are you ready? That was A90210 reference for everyone born after 1997. Okay.


Kate Shaw And for Leah, we are feeling so high school right now.


Melissa Murray Let’s flip through the Scotus yearbook, shall we?


Elie Mystal Let’s do.


Melissa Murray It. Okay. In the tradition of high school seniors everywhere, each justice has the opportunity to post a meaningful quote alongside their graduation photo, and we thought we might help each of them out by suggesting a meaningful quote for each. Justice. And Ellie came up with all of these. So when exactly we’re going to let him.


Elie Mystal Read all.


Melissa Murray Of them. So, Ellie, let’s begin.


Elie Mystal All right, so you guys start with the chief. And as we know, his his, his. So for him, we’ve got the way to stop racism is ignore racism, which definitely is something that I think the 18 year old Roberts would have said. It works. Next, next we go to the most senior justice, Clarence Thomas. Show me the money. And clearly all he’s doing. And then we get to, God’s sermon on earth. Semolina. So he would probably use a quote from the King James Bible and the rib which the Lord hath taken from a man, and made he a woman, and brought her unto a man. And the man probably said, great. Now everything can be blamed on her.


Melissa Murray So saith the Lord.


Elie Mystal Sir. Next up is Professor Murray’s girl, Sonia Sotomayor. And it’s sort of my songs. Just remember, is like one of the most important justices that we have for criminal rights defense. So I believe she would say something like, I will not condemn a man on the sasso of a fascist thug who runs around at night dressed up as a bat, violating civil liberties. There’s zero chance any of Batman’s convictions holed up in somewhere. That’s true.


Kate Shaw Melissa does that. Does that check out?


Melissa Murray That? That’s right. I think that’s right.


Elie Mystal Next is my, former, civil procedure professor, Elena Kagan. She made me cry many times. We’re all textualist now, which is a problem because some people refuse to learn how to read. It’s absolutely something she probably would have said to me. Perfect in school. For now, I was thinking what most likely quote something from like Beowulf for like The Canterbury Tales in the minute, right? But the quote for him is the illegal we do immediately. The unconstitutional takes a little longer, which is a real quest. That’s his actual yearbook quote, that I didn’t make that one up. That’s that is literally what Neil Gorsuch said in his actual high school yearbook. So think about that for a second.


Melissa Murray Let it wash over you.


Elie Mystal Right. So that. Okay, now we get to justice. Brett. Samuel Adams, my favorite founding father, especially, I tell you, the rest of you. Wait, wait, wait. Me? No, that not real money.


Kate Shaw Okay, to be clear, this was not actually Brett Kavanaugh’s. My quote. No, just Neil’s. All the others are creatures of Ali’s invention.


Elie Mystal Next is, the handmaid, Amy Coney Barrett. So we gave her a quote from The Handmaid’s Tale. There is more than one kind of freedom. Freedom two. And freedom. In the days of anarchy, it was freedom two. But now you were given the freedom from. Don’t underrate it. That is literally Aunt Lydia from The Handmaid’s Tale. And I got it up. Note, please. Okay. I’m old girl, and can you read this one? Because I can’t.


Unidentified Okay, I can’t do this correctly.


Melissa Murray I love this picture. I it’s actually I’m like, you know that bitch when you cause all this conversation.


Elie Mystal Right? That is, that is Beyonce and that’s Gabe J. Okay. All right. That’s a good note to end. Okay. All right.


Kate Shaw Yeah. The occasional uplifting note. It’s important you take your you take your joy where you can get it. All right. Well, thank you, Tribeca, and thanks to all of you for spending your evening with us. And. You got a couple of things to say before we go. One, if you are craving more humor and legal insights, this time from yours truly, I’m not going to do voices, but I am going to be a guest host next Wednesday on Pod Save America with Jon Favreau and Jon Lovett. So tune in to Pod Save America.


Melissa Murray Fresh from survivor.


Kate Shaw Oh, is this going to be his first show back?


Melissa Murray No.


Kate Shaw No. Great. Exactly. Well, either way, I’m excited about it. Before then, I have one assignment for you, which is, make sure to subscribe to Pod Save America wherever you get your podcasts.


Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman. Me, Melissa Murray and Kate Shaw. Produced and edited by Melody Rowell. Our associate producer is Michael Goldsmith. Our intern this summer is Hannah Saraf, with audio support from Kyle Seglin and Charlotte Landes with music by Eddie Cooper, production support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production and many thanks to our digital team, Phoebe Bradford and Jo Mazzocchi. Subscribe to Strict Scrutiny on YouTube to catch full visual episodes, and you can find us at youtube.com. Forward slash at Strict Scrutiny podcast. And if you haven’t already, be sure to subscribe to Strict Scrutiny and your favorite podcast app so you never miss an episode. And if you really want to help other people find the show and piss off Martha Ann, please rate and review us, it really helps.