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Leah, Melissa, and Kate dive deeper into the Court’s catastrophic Voting Rights Act decision in Louisiana v. Callais (for their initial reaction, check out last week’s emergency episode). Then, they recap the troubling oral arguments in Mullin v. Doe, the case about Temporary Protected Status, in which Trump’s Solicitor General tried to argue that the President’s extremely racist statements about migrants from certain countries weren’t, in fact, racist at all. Also covered: Trump’s ballroom, arguments in an important Fourth Amendment case, and how some savvy federal judges are turning the administration’s favorite legal concept—the unitary executive theory—against it.

Favorite things:

• Leah: Ariana Grande’s new album announcement; Noah Kahan on tour; SCOTUS Drops The Other Shoe on the Voting Rights Act, Sherrilyn Ifill (Sherrilyn’s Newsletter); The Slaying of the Voting Rights Act by the Coward Samuel Alito, Rick Hasen (Slate); The Supreme Court is Corrupt. This is What We Can Do About It, Jamelle Bouie
• Kate: The Loneliness of Sonia and Sunny, Kiran Desai; Transcription, Ben Lerner
• Melissa: Yesteryear, Caro Claire Burke; Voters Can Be Disenfranchised Now, Adam Serwer (The Atlantic); Legal Defense Fund

 

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• 6/20/26 – New York City

Learn more: http://crooked.com/events

Order Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern Reader

Preorder a signed paperback of Leah’s book, Lawless, here.

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TRANSCRIPT

Leah Litman [AD]

 

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

 

Melissa Murray Strict Scrutiny listeners, after we finished recording late on a Friday evening, the Fifth Circuit decided it was time for slapping some additional restrictions on Mifepristone, one of the two drugs used in the current medication abortion protocol. Because what gives separation of powers more than lower court’s second-guessing expert agency determinations? Why not?

 

Leah Litman That separation of powers to me. So in a breezy 18 page opinion released after 5 PM Eastern, which is how you know they were trying to sneak one past the country, not gonna work on us, Stanford stormtrooper Kyle Duncan wrote for that Stuart Kyle Duncan, my apologies. Wrote for a unanimous panel of judges, two of whom, including himself, were Trump appointees, that the Food and Drug Administration was wrong to allow telehealth, telemedicine prescriptions of Mifepristone, one of the two drugs used, again, in the current protocol for medication abortion.

 

Melissa Murray Every time you say Stuart Kyle Duncan, I think of Dunkin’ Donuts. I do.

 

Leah Litman Every time I say Stuart-Kyle Duncan, my uterus shudders. But this latest decision. Reinstates the in-person pickup requirement for Mifopristone, which forces women to go in- person to a doctor or licensed nurse practitioner in order to get Mifipristone. Which, of course, makes medication abortion way more difficult to access for people in states with abortion bans, because now they have to travel out of state just as they would if they obtained a procedural abortion.

 

Melissa Murray The Fifth Circuit purported to issue this ruling such that it has nationwide applicability. That is to say, the court issued what is called a vacator or a stay of the entire telemedicine determination. This is a procedural maneuver that blocks the FDA’s decision on a nationwide basis. That procedural machination makes it as if the FDA telemedical decision didn’t even exist.

 

Leah Litman So this decision will have devastating consequences for women, especially women in states with abortion bans. In 2023, 65% of abortions were medication abortions. Medication abortion accounted for the majority of abortion that were provided in most of the states without total abortion banns in 2023. And again, if you can’t obtain mifepristonevia telemedicine, you have to do so in person. And many women just are not going to be in a position to undertake the out-of-state travel if they live in a state with an abortion ban, whether that’s because they lack transportation, time off, resources, support, or any other number of reasons.

 

Melissa Murray And to be very clear, medication abortion is many times more safe than actual childbirth. The risk of maternal death associated with childbirth is approximately 14 times higher than the risk associated with medication abortion. And that number goes up even higher for women of color and black women in particular, but there’s no racism. Remember that from this week, there’s not racism. Medication abortion is basically about as safe as Tylenol, but now the Fifth Circuit has made it a lot harder for individuals who want to control their reproductive capacity to have access to it.

 

Leah Litman The Fifth Circuit’s decision is stunning for a number of reasons. It is a judicial order to impose restrictions that the FDA, the Food and Drug Administration, deemed unwarranted. The decision also uses the Trump Administration’s abandonment of reproductive rights, the Trump FDA’s baseless suggestions that it just wasn’t totally sure that telemedicine was safe for medication abortion as a reason to issue this nationwide stay. And the decision leans into something we have talked about before called fetal personhood, the idea that fetuses are people entitled to rights. That theory would mean that abortion has to be banned nationwide by order of the courts because if fetuses or people, then abortions would deny the fetuses their constitutional rights.

 

Melissa Murray We will obviously have more to say about this late Friday night ruling in our next episode. But for now, we just want to emphasize a couple of points. First, we want to emphasis how there are so many aspects of this particular decision that make all of this look a lot like collusive litigation, as if the Trump administration took certain actions and made certain statements in order to lay a pathway for this judicial decision imposing nationwide restrictions on mifepristone. So that’s one point. Not saying that there’s actual collaboration going on here between the Fifth Circuit and the Trump administration, but we are certainly saying that the Trump administration made it infinitely easier for the Fifth circuit to have a glide path into this decision. And basically they gave them a rationale, like supplied a rationale for this court to do this.

 

Leah Litman And that’s pretty useful to the administration because it means they got the abortion restrictions that they may have wanted without having to announce that they were imposing them on their own initiative rather than having the courts do it. So the second point we will emphasize is how there are aspects of the decision that are just ivy dripping fetal personhood into their veins. Like these guys are leaning wholeheartedly saying it with their whole chest that under the law, fetuses are people in ways that alter the court’s legal analysis.

 

Melissa Murray And again, if fetuses are people under federal law, and in particular under the Constitution, then the Constitution itself imposes an abortion ban or so federal courts might be obliged to announce. So there’s that aspect of it as well. Let’s tick through some of the collusive aspects or what we think look like collusive aspects of this litigation, the parts where the Trump administration basically facilitated the court doing this, maybe not in fact, but certainly. They laid a pathway for the court to do this. In justifying their decision, the Fifth Circuit relies on the fact that, quote, in September 2025, the FDA began a comprehensive review of mifepristone, including the 2023 REMS. And the court notes that, unquote, when announcing the review, the FDA conceded the, quote lack of adequate consideration underlying the prior REMS approvals. In other words, the Trump administration in that 2025 announcement was posturing and making statements. About the 2023 REMS that actually would then make it easier for the limitations on abortion that the Fifth Circuit is imposing now. It’s absolutely bonkers that the government made that kind of concession on the eve of this litigation, but here we are.

 

Leah Litman Even worse than that because the Fifth Circuit also notes that, quote, FDA’s response, that is, their response to the court, does not address the merits, i.e. Whether the FDA’s removal of mifepristone’s in-person dispensing requirement was arbitrary and capricious. I.e., the FDA effectively conceded that the district court was right to say that the challengers were likely to succeed on the merits in challenging the ability to get mifepristone via telemedicine. Now, the district court had nonetheless denied a stay because it concluded that the balance of the equities and public interest counseled against judicially imposed nationwide restrictions on mifepristone.

 

Melissa Murray The court also relied on the FDA in explaining why the, quote unquote, public interests weighed in favor of imposing these new restrictions. So the court notes that, quote, the FDA itself now concedes the regulations were marred by procedural deficits and a lack of adequate consideration.

 

Leah Litman So on the second point we wanted to emphasize, and that’s fetal personhood, it’s all over this opinion. So explaining why the public interest favors this stay, the court writes, quote, Danko’s, that’s a manufacturer’s, potential financial losses pale beside Louisiana’s sovereign interests in its laws protecting the unborn. And explaining why Louisiana would be irreparably harmed without this stay. The court writes that the FDA’s policy, quote undermines its, that’s Louisiana’s, laws protecting unborn. And quote, once lost, that sovereign prerogative of protecting unborn life cannot be regained by legal remedy. It’s almost like.

 

Melissa Murray Like these judges read the Jodie Cantor, Adam Liptak article from last week and was like, you know what? When the government brings something and requests a stay, they’re always irreparably harmed if they don’t get it. And they’re like, you know, what? That might apply to Louisiana too. I think that’s, yeah. Not the federal government, but Louisiana. Right? Like, just, just think about it. Think about it, think about. All of this is incredibly very fetal personhood forward. It’s kind of terrifying in many ways. The next frontier in abortion restrictions is really going to be about courts ordering states and the federal government to ban abortion, either on this theory of fetal personhood entirely or some combination of feto personhood in tandem with weird questions about the safety of these particular medications. The other thing I want to note about all of this is And this is so much of a departure from what the court was saying in Dobbs when they just said they were going to settle this abortion question once and for all. And I’m just steering in Rachel Rubashay, David Cohen, and Greer Donnelly, who wrote that brilliant paper, The New Abortion Battlegrounds, and said, this is not settled. There’s going to be new stuff. And they predicted all of these fights over abortion pills and telemedicine. So there’s that. You might also be wondering, listeners, this nationwide ban on mifepristone, that sounds a little bit like a nationwide injunction. I thought the Supreme Court put a halt to the practice of lower federal courts issuing nationwide injunctions in Trump versus Casa. Well, that’s a very fair question, but the court issued a stay here under 5 USC section 705, which is a federal statute governing judicial review. Of agency actions. And so the Fifth Circuit says that CASA was different because it was about federal court’s equitable authority under the Judiciary Act of 1789. And in their defense, in CASA, the Supreme Court dropped a footnote saying the no nationwide injunction rule didn’t necessarily apply to decisions vacating an administrative agency’s rule under the APA. I love when their little loopholes that are intended to make you feel better about things they’re closing off actually work the opposite way to really fuck you. As ever.

 

Leah Litman As ever. So a few other quick reactions to this opinion, which came out an hour before we recorded this. One is, in some ways, the math wasn’t math-ing, or at least not in the way the Fifth Circuit suggested it did. So the Fifth Circuit wrote that, quote, the record shows that the policy that is telemedicine now facilitates nearly 1,000 illegal abortions in Louisiana per month. Now, the Fifth circuit treats that as an injury. That kind of captures just how consequential this ruling might be, affecting potentially 1,000 Louisiana women per month. And that’s just in Louisiana. Additionally, consider that statistic, the 1,00 women per month, against part of the court’s standing analysis, where the court suggested Louisiana was injured because it paid Medicaid costs for two women who needed emergency care caused by mifepristone complications. Let’s see, two women needed emergency care, 1000 abortions per month. 2023. You think that shows a significant risk of injury? I’m not so sure. Also, we have no idea if those injuries were even caused by the telemedicine aspect of mifepristone or whether they would have been prevented by an in-person pickup.

 

Melissa Murray Don’t let that kind of logic stop you though.

 

Leah Litman Exactly what is standing to get in the way of a good time. There was also just something super greeting about the court talking about Louisiana sovereign injury and not being able to enforce its abortion ban like it’s sovereign injury and not be able to control and subjugate women. In other parts of the opinion, including on exhaustion, that is whether the plaintiffs had raised this argument to the agency, the court relied on its previous decision in Alliance for Hippocratic Medicine, where it notes, true, those decisions were reversed on standing. But their reasoning on exhaustion was persuasive,” end quote. Not to say we told you so, but this was part of the danger when the Supreme Court punted on medication abortion in the Alliance for Hippocratic Medicine decision. Remember, in that case, the court said that the anti-abortion doctors and dentists did not have standing to challenge the relaxation of restrictions on mifepristone or the overall availability of mifepristone. But it left on the table all these crazy merits rulings that the lower court and the Fifth Circuit had issued. And they were just waiting to be brought back with a vengeance after the 2024 election and Republican controlled states stepped into the breach.

 

Melissa Murray They’re kind of like trigger laws, like trigger precedents that just lay there and waiting. There are no new ideas. They just keep farming them to different contexts.

 

Leah Litman Indeed.

 

Melissa Murray We should note that just because this nationwide ban on mifepristone has been issued, that doesn’t mean that medication abortion is entirely off the table. As we’ve noted on this podcast before, the second drug in the two drug medication abortion protocol, misoprostol, is also available. Obviously, mifepristone is the preferred method. The two-drug protocol together is the prefered method. But misoprostol by itself would also suffice, although there are different responses and reactions to that that doctors have noted. But this is a devastating decision, even if there are available alternatives. And it makes very clear that the war on abortion, the war women’s reproductive rights continues apace. This hasn’t been settled. Dobbs has. Not ended this. In fact, I think it’s only accelerated it in a lot of ways. And this very, very safe method of reproductive care, which is used not only for those seeking to terminate pregnancies, but those who need it for miscarriage management. And literally one in three women suffers a miscarridge and loses a pregnancy and requires this kind of medical care. All of that is on the table right now with this new nationwide ban imposed by. America’s worst circuit court.

 

Leah Litman Now, there’s a chance that the Supreme Court will stay. The Fifth Circuit’s stay. I mean, we are all, after all, getting ready for the midterms. Probably not super convenient to have abortion put back into the spotlight, but we shall see. I don’t know. When you don’t have all those Black people voting, you might as well, like, YOLO. Yeah, no. We shall see, we shall. See. I think Clarence is like, let’s go for it. Let’s let it ride. He’s always like, Let’s go. For it. Let’s Let it ride Indeed. Thanks for listening, as always, and now back to our regularly recorded episode.

 

Leah Litman [AD]

 

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

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. It’s a very special day, really very special week, because happy early book release to Melissa Murray. Her book is officially out tomorrow. If you are watching this on YouTube, you can see Melissa displaying her book, me proudly wearing the merch that I made, Kate also displaying the custom merch.

 

Kate Shaw And it’s a constitutional AF merch if you are not seeing it with your eyes. It’s really nice.

 

Leah Litman So the perfect time to get your copy of The Constitution, a comprehensive and annotated guide for the modern reader. Not for the unmodern reader. Some people don’t need it. You can show your least favorite Supreme Court justice how to read.

 

Kate Shaw And don’t worry, we have a very special episode for you next week that focuses more on Melissa’s new book. But in the meantime, what a perfect occasion to help democratize the Constitution and empower more people to make constitutional claims as part of an effort to correct the constitutional claims being made by the people in power. And part of what Melissa’s book, again, Out Tomorrow, gets into is the real and rich and radical history and vision behind the Reconstruction Amendments. That Sam Alito basically wrote out of the Constitution in the Voting Rights Act opinion last week.

 

Leah Litman Additional great timing. Last week, six justices, no points for guessing which six, the Republican appointees, the ones in the majority in the immunity decision, attended the state dinner for King Charles, making no secret of their insatiable thirst for kings. Melissa’s book, by contrast, has more no-kings energy, which these guys really need.

 

Kate Shaw I do want to just drop an asterisk though, which is to remind our listeners, especially those who book for television and radio, that Melissa should be everyone’s go-to expert on all things royal because she knows literally everything about them. And I think that is just one of the many reasons she understands and can so eloquently explicate why we should not be ruled by them.

 

Melissa Murray Nicole Wallace knows now. Thank you for that very generous introduction. I will just say, I love that this book is coming out on May 5th, Cinco de Mayo. So you can just pour some salt on it, lick it, and do body shots, whatever you want. Anyway, let’s get to it. Hello. I missed you guys last week. I’m back.

 

Leah Litman Likewise, girl.

 

Kate Shaw Well, we can throw it into the blender and make margaritas. That’s another way you could possibly use this book.

 

Melissa Murray A lot of ways, you can inject it, do whatever you want.

 

Leah Litman Ingest it in any form.

 

Melissa Murray But use your pre-alcohol first. Let’s get down to business. In this episode, listeners, we are going to recap last week’s oral arguments with a focus on the challenge to the administration’s cancelation of temporary protected status for Haiti and Syria. We’ll also touch on some legal news, including what we learned about ballrooms and national security. I did not know about this apparent relationship. So news to me, but obviously, I’m here to learn, whatever. It’s huge. Just going to put that out there. We are also going to discuss how some intrepid federal judges are turning the unitary executive theory against the administration that is apparently obsessed with it. And I just want to say, master’s tools, y’all. You’ll love to see it. It’s great. Obviously, the thing we really do need to talk about is the fact that last week, the court issued the huge Voting Rights Act opinion in Louisiana versus Kelly. Leah and Kate, you did an amazing, excellent emergency episode on the case, Louisiana versus Kelly, with special guest and friend of the pod, Mark Elias. Listeners, if you have not downloaded that yet, what are you doing with your life? If you don’t say I’m fighting for a multiracial democracy, that is the wrong answer. Get it together, download this, it is absolutely excellent.

 

Kate Shaw If you’re still bearing your head under your pillow, I think that that’s okay, actually, but it’s time to come out. And… Don’t despair!

 

Melissa Murray Don’t despair. Prepare. Democracy hive, rise. Yes, this is the time. Obviously, there’s still a lot more to say about the Calais decision. So listeners, if you’ll indulge us, we are going to say a little bit more about why this opinion is so catastrophic. We will also note how the decision in Calais literally set the stage for the court’s bonkers argument in the TPS cases, which were heard on literally the same day that the court announced the Kelly decision. And that is not all, listeners. We are also going to go over the court’s opinion on administrative subpoenas in First Choice Women’s Resource Centers, Inc. Versus Davenport. You may remember that it used to be called First Choice Women’s resource centers versus Platkin. Same bullshit, though. Don’t worry. And same court. So there we are.

 

Leah Litman But first, I have some more thoughts on Calais. I think Kate has more thoughts Calais, and Melissa, since you couldn’t join us for the emergency episode, we wanted to make sure you had a chance to share yours as well. I want to talk more about the decision and in some ways feel like we should always be talking about it just because it is so significant and so warping our democracy at light speed in real time. And the decision that effectively nullified the Voting Rights Act and its redistricting protections that ensure political opportunities for minority voters is as we attempted to convey. Really bad for democracy, also multiracial democracy, also voters of color, but it’s bad for a democracy. And I think people need to realize that because it allows white elected officials to protect themselves from electoral competition that is anti-democratic, effectively turning the House of Representatives into the Senate where states just send one party delegations to the House, replicating Senate malapportionment. And in my fury on the emergency episode, I am worried a few points didn’t come through clearly enough. And since this is our podcast, I am allowing myself to make them more clear. This might be a recurring segment, honestly, for like the next two years. So brace yourselves. One is just the extent to which this decision will, in Justice Kagan’s words, quote, lay the groundwork for the largest reduction in minority representation since the era following Reconstruction. That is because the political opportunity majority minority districts that stand to lose their protection are many of the districts that elect Black and Brown political officials. The decision is a way of resegregating our institutions and politics. Although the percentage of Black voters increased markedly after the initial passage of the Voting Rights Act, it wasn’t until the 1982 amendments that Sam Alito read out of the voting rights act that the percentage Black and brown representatives really increased. A.M. The second is the extent to which this decision parallels the aftermath of Reconstruction, which led to the election of Black political officials to state and federal offices. But the demise of Reconstruction, which the Supreme Court aided and abetted, meant the number of Black officials in Congress was never above single digits and was most frequently somewhere between zero to two, including in states like Mississippi, where the Black population was 35%, never sent a Black representative to Congress during that period. And it was the Voting Rights Act that changed that.

 

Melissa Murray Can I take a beat on that? I know you’re talking mostly about the House of Representatives. I think it’s even more stark when you think about the Senate. Immediately after reconstruction, there were two Black senators serving in the upper chamber of Congress. So the first was Hiram Rebels, who was chosen by Mississippi lawmakers to serve the remainder of a Senate term. This is the term. That had gone on while Mississippi had seceded from the Union. And so by the time they decided to let Hiram Rebels be the senator, there’s like a year left on this term. So they’re like, yeah, why don’t you take that year and be a senator from Mississippi? And so Hiram Rebels went to the Senate and served from 1870 to 71, faced fierce opposition to his seat. They challenged his citizenship status, adverting to Dred Scott. I mean, make it make sense. He took the oath of office to serve in the Senate 22 days after the ratification of the 15th Amendment. And abolitionist Wendell Phillips said that Rebels was, quote, the 15 amendment in flesh and blood. I mean, literally, this is what this amendment was made to do. The second senator was also from Mississippi. This was Blanche K. Bruce, who represented the Magnolia State in the senate and was the first African-American to serve a full term in the US Senate. He served from 1875. To 1881. Notably, Reconstruction ended in 1877 with the Hayes-Tilden Compromise. And obviously, he leaves the Senate in 1881, and there isn’t another Black Senator in Congress until 1967, two years after the Voting Rights Act. And again, even with the VRA, in that period, from 1965 to today, there have only been 12 Black senators in the Senate. I mean, so. This is progress, but it’s slow, it’s incremental, and the Supreme Court basically put the kibosh on that limited progress.

 

Kate Shaw Unless there’s massive change, what the Supreme Court has said in motion is a period of retrenchment that is going to parallel the post-reconstruction period of retrenchments, and it feels like that’s by design.

 

Leah Litman Yeah, re-segregation, Jim Crow, or as I just sputtered out with Melissa on MSNOW, Jim Crolito. Sam Crow, if you’re a fans of Anarchy fan. Yeah, exactly, either, any works. And still, I just don’t know if those numbers adequately convey how consequential and awful this decision is. And it’s been frustrating for me feeling like the world and the country is just not sufficiently outraged. The New York Times has an excellent series of articles on this with graphics, if you’re more of a visual person. That I’d encourage everyone to check out, illustrating, again, the significance of the Voting Rights Act to making Congress representative. And of course, in the wake of the decision, as they knew what happened, states are already clamoring to erase political opportunity districts and political representation.

 

Melissa Murray Totally. The Florida legislature approved a new congressional map intended to maximize Republican advantage in the state as part of this broader national redistricting battle. Louisiana’s Republican governor, Jeff Landry, issued an executive order that delays House primaries, though not Senate primaries until July 15th or until such time as determined by the legislature. The elections in Louisiana had originally been scheduled for May 16th with a June 27th runoff date. So that is happening. I think your favorite senator, Kate, Marsha Blackburn of Tennessee made some statement. She wants to get in on this. She sure did. She was like, this decision is going to help Tennessee stay red. I mean, was that the point? I think it might be. Saying the quiet part out loud, Marsha. Marsha, Marshal, Marsha.

 

Kate Shaw There’s a movement and possibility in Alabama as well. So I think we honestly don’t know what the full fallout is gonna be. And it could be.

 

Leah Litman With which they are doing this just

 

Kate Shaw Just like Shelby County. It’s just like just like Shelby.

 

Leah Litman It’s just like Shelby County, but it also, Justice Alito just declared racism is over, right? And of course they knew this was gonna happen. It’s such a cowardly, craven decision. And again, this is happening.

 

Kate Shaw And just to remind folks, right, like in 2013, when the first time the Supreme Court declared racism over in Shelby County, literally later the day the opinion was issued, states started moving to implement restrictive voting laws. They would have had to get pre-cleared under the pre-Shelby regime, but had carte blanche to kind of move forward with after Shelby County. We are seeing that replay right now. And I also think, you know, it is a mistake to think just about what the impact on the 2026 map will be. Like obviously, you now, Leah and Melissa, you’re talking about kind of democratic impact more broadly. It may be that a handful of states decide that because the 2026 map is already going to be really tough for Republicans, redistricting might actually backfire if they’re going to make more districts that are more competitive. So I don’t actually know at the end of the day how many new legislative districts they’re going to be in 2026. But I do think between 2026 and 2028, there’s no question that they are going to draw out to the maximum extent possible black and Latino representation in Congress and access to meaningful democratic participation. And it just might take a few cycles for that to fully play out. But. Absence some major course correction, that is the path that we are on. Let me just maybe mention a couple of other things about the opinion if that’s okay because the kind of emergency episode was like, you know, in the heat of speed reading and hyperventilating and then podcasting and like I at least did not read the opinion as carefully as I subsequently have so I just like wanted to flag a couple things. One is something that others have mentioned but we haven’t on this show which is that Sam makes this insane claim like black voters now participate in elections at similar rates as the rest of the electorate okay that’s not the insane part of the claim this is. Turning out at higher rates than white voters in two of the five most recent presidential elections nationwide. Okay. So he says that. Obviously, if you listen and sort of think about it for 30 seconds, the two elections in which black turnout exceeded white turnout were the two election in which Barack Obama, the first black president, was at the top of the ticket. And those two elections also occurred before the court’s decision in Shelby County. So to suggest that that is this kind of silver bullet evidence that racism is done and racism in voting is definitely done. Is so unhinged. I kind of can’t believe that his law clerks and colleagues let him get away with keeping that statement without explication in his opinion.

 

Melissa Murray No, this is standard for this court because in Shelby County versus Holder, the chief justice did the same fucking thing and was like, you know, like there’ve been massive numbers of black people voting. I’m like, yeah, because there’s like a black dude on the ticket and everyone got super excited. Um, like, there are no new ideas, so no new clerks, no new idea.

 

Kate Shaw No, this is a lot of recycled logic from Shelby County, but it’s Sam, and so it’s somehow infinitely worse because everything he does is, and sneakier. Like Shelby County at least had the decency to, you know, not justify itself in conventional legal reasoning, but say we are invalidating part of the Voting Rights Act. Sam is much sneakier, so he says we’re not, but of course.

 

Melissa Murray I’m not going to give you like I thought Shelby County was sneaky as fuck too, right? I mean, so yes They’re like we’re just invalidating the pre-covered formula as opposed to formula Yeah, but like I mean like we know congress isn’t going to write a new formula. So we basically fucked up section five. Anyway, so

 

Kate Shaw You’re right, they try to be sneaky there too as well. Okay, that’s fair.

 

Leah Litman That’s fair. What are you trying to say? In addition to being sneaky, he preserves it so it can be used against democratic gerrymanders, right? So they can bring intentional discrimination claims against majority black districts, right. That’s why he doesn’t.

 

Kate Shaw Yeah, yeah.

 

Melissa Murray This is like the due process. Like we’re going to keep the due process and kill it entirely. So when we get to fetal personhood, we can use the due

 

Kate Shaw Totally. Yeah, which is a point we’ve obviously made about.

 

Melissa Murray Like, Clarence, keep it down. Keep it down, anyway. I don’t even know what to add to this, other than I told you so. Did I not say after Alan versus Milligan that that? I caught so many strays when I said that, just reminding you. I caught many stray and I said Alan versus Milligan was not the last word that they were just like, they couldn’t do it 10 years after Shelby County, so they’d wait a while. Here we are. These schools will stop at nothing to fully. Decimate the legislation that people literally were beaten and killed in order to enact. I mean, just absolutely insane. And I think the thing that is most stunning to me is the absolute cravenness of it, not just the insistence that they are preserving section 2 when we know that they’re not, but that they were preserving it so it can be used in this way against minority voters, against Democratic voters going forward. And because. They know they’re going to catch a whole bunch of flak for killing the Voting Rights Act. I mean, this is like Casey, where they said, we’re preserving the central tenants of Roe. And then they really just they hollowed out Roe so that was a nub of itself. Same kind of thing is going on here. Like they are trying to preserve themselves. And they’ve done, I guess, a good job of it unless people stay on their necks and keep saying, you killed the Votting Rights Act, you just killed Section 2. And I think we have to say that. I’m stunned by the cravenness of the Chief Justice, who is in the majority in Allen versus Milligan, where he lauded the remaining shards of the Voting Rights Act that he deigned to allow to exist after Shelby County. And now he’s fully on board with the majority in this case. It was only a few years ago. Why the difference, sir? And also stunned by craveness of allowing Sam Alito to write this opinion.

 

Leah Litman Shout out to the colleague who told me Shelby County was justified because of Allen versus Milligan. And that was only possible to write a decision like Allen versus Milligan in light of Shelby County. And I was like.

 

Melissa Murray Just beat your head against a wall. Anyway, I’m also disgusted with Congress, including the Democrats, because for years, civil rights advocates, Black people, have been saying that this was coming, that the Supreme Court was intent on dismantling voting rights, and that they would stop at nothing to do it. And nobody did anything, right? When I sat on MSNOW and asked a member of the Congressional Black Caucus how the Congression Black Caucus planned to respond to this particular lawsuit, the answer was to file litigation. And I was like.

 

Leah Litman I was on there with you and I almost lost my rocker.

 

Melissa Murray It’s like litigation that will go up to this court to say, is that the plan? That can’t be the plan. But that apparently is the plan, and I just I can’t. Last night, we’re recording on Friday. So Thursday night, I was at an event celebrating the centennial of the Schomburg Center for Black Research in Harlem. And the Schomberg Center is an arm of the New York Public Library, and it’s devoted to the preservation of Black writing. Art, research, and culture. And Senate Minority Leader Chuck Schumer was there, and he spoke. And it was literally all I could do not to stand up, turn my back, and walk out. He spent nine minutes lauding the contributions of Black people to this country and this culture after he spent the last nine years letting this court chip away at a law that Congress enacted and reauthorized for years and years and yours. And in addition to that insult, He pronounced the name of Edwige Danticat, the award-winning Haitian-American novelist who was honored at the event. He pronounced it Edwidge Danticate. And I was just like, sir, read a book. Read any books. And so I’m just mad at everyone. That’s fair. Me too. I’m a bipartisan rager, right?

 

Leah Litman Deservedly so. It was so clear that this was gonna happen. I literally wrote it into the version of my book that came out last year, right? And then updated it with more confidence for the paper of effort and coming out in June. Like, it was obvious, right, they were gonna do this anyways. Okay, is that thing over? Should we move on to argument?

 

Kate Shaw We should, but I do think that let’s put a pin in the idea of like just five ranting minutes about Kalei at the beginning of every episode, at least for the next few weeks. I think that’s- Or at some point in an episode- It doesn’t have to be the beginning, okay. It’s just a recurring segment.

 

Melissa Murray Do you remember when we were talking about, how would we revamp after Trump 2.0? What would he do? I suggested maybe a recurring segment called Douche of the Week, where we just talk about someone we hated. And you were like, that’s kind of a downer. So instead, we decided to do favorite things. Maybe it’s time for Douche Of The Week.

 

Leah Litman I like the direction. I also like the focus on Calais. I just think that decision needs to become part of the lexicon as we were suggesting.

 

Melissa Murray I mean, we got a bad decisions tour coming out. Let’s just put it on the shirt. Put it on there.

 

Leah Litman That’s fair.

 

Melissa Murray Update the shirt, OK.

 

Kate Shaw Alright, so stay tuned for the next installment of that, whatever it turns out to be.

 

Leah Litman [AD]

 

Leah Litman Now we’re gonna shift to argument recaps. So the day the Supreme Court announced that racism is over so that the Voting Rights Act would no longer prohibit legislatures from discriminating against black voters so long as black voters tend to vote together for Democrats, the court also got to noodle over whether the president’s statements about excluding people from shithole countries, making horrific lies about how Haitian immigrants are eating cats and dogs, and general talk about the blood of the nation were racist. The Solicitor General says no.

 

Kate Shaw So, yes, the court heard argument in Mullin versus Doe and Trump versus Miot. As a reminder, these are the challenges to the revocation of temporary protected status for Haitian and Syrian nationals. As we mentioned in the last episode and as Leah just alluded to, the president and senior administration officials have maligned and vilified Haitian immigrants in particular and apparently decided to cancel TPS for Syrian nationels based on extensive analysis reflected in a single email. And oh, maybe Brett Kavanaugh’s musings about sort of the geopolitics of the new regime in Syria. Seems like that is what drove the administration. So the question is, can they do that?

 

Melissa Murray The government is arguing that it can. The argument proceeds as follows. First, that the revocations are unreviewable, meaning that the executive branch can do whatever it wants and any congressional limitations on revocation and protections for TPS holders are absolutely unenforceable. Do you know what that’s giving? Monarchy. Monarchy.

 

Kate Shaw Yeah.

 

Leah Litman Yeah.

 

Kate Shaw Yes.

 

Melissa Murray The government is also arguing that the president definitely totally had reasonable, rational, and unbelievably race-neutral reasons for ending these programs. So nothing to see here, folks. Top lines on this argument, especially coming right after the announcement in Calais, this was rich. This was rich Wednesday was a lot.

 

Leah Litman It was. In this case, the TPS cases, it’s possible the Solicitor General may have overstepped just by advancing extremely broad theories about the bar of judicial review, which might provoke the court to preserve a narrow, albeit limited and deferential category of claims that can be reviewed. The plaintiffs are arguing procedural claims and constitutional claims can be. Add to that, there were a few questions for the lawyer challenging the revocation of TPS for Haitian nationals. At the same time, I wasn’t exactly sure. Who the five would come from. At times, the chief and barrett sounded skeptical, but they’ve done this before, only to go full throttle on what the federal government is selling.

 

Kate Shaw Yeah, so I actually felt modestly optimistic about the chief and Barrett. I mean, they were both mixed, but out of the gate, the chief pounced on the government for like over-reading or seeking to extend without copying to it Trump versus Hawaii. And I did think Barrett was reasonably sympathetic, though uneven. I heard nothing in her questions that like alluded to this obviously explicitly, but I did wonder whether the fact that she has two adopted kids from Haiti might make her somewhat less likely to just dismiss the president’s vile words about Haitians, but. You know, hard to know.

 

Melissa Murray Is that the same president to whom she introduced her kids when she was nominated to the Supreme Court?

 

Kate Shaw Very same, yeah. And I mean, I think she probably hung out with at the state dinner last week, I don’t know. But probably did. So yeah, she hasn’t shown that much interest in distancing herself from him, but hope springs eternal. There’s also the fact that the challengers were like, I thought very cautious and kind of measured in their asks. They were very insistent that executive branch gets tons of deference here. No one is asking the courts to decide whether to keep or terminate TPS, just that there is some minimal process. Beyond the nonexistent process that was followed here that the law requires. But then there was this weird thing where at moments the fact that the asks were pretty small were for Barrett and Kavanaugh, maybe reasons to rule against the challengers. If you’re not asking for much, then why bother? Which I found maybe wanna put my head through a window. You’re just asking to enforce the Constitution. Why should we bother? If they get to the same outcome anyway, no, completely. Anyway, I did sort of feel like heads. I win, tails you lose. But again, I felt like. Hopeful that there may be a narrow but obviously meaningful loss for the administration here. Anyway, that’s my top line.

 

Melissa Murray Yeah, they were basically like, go big or go home.

 

Kate Shaw Right. Yeah. And we know you’re going to send you home if you go big. So like, again, that’s the heads we win.

 

Melissa Murray Go big and go home. Right, yeah. So obviously, one of the arguments that the challengers are making here is a procedural argument that, yes, the executive branch can do this. They just have to follow these specific procedures. This is a species of the kind of argument they made in the DACA rescission cases that were heard back in Trump 1.0. I think it was around 2020 when this podcast was getting going for the first time. Those arguments were obviously availing in that context back in 2020. I just wonder if they’re going to be as deferential to this administration as they have been more recently, or whether we’re going go back to that 1.0, where they’re just like, listen, just do government right. Like, you’ve got shitty instincts, but just do it right. And who knows. Another ongoing theme that was sort of surfacing there was, what the fuck is Congress for? What the fuck are courts for? Do you need Congress or courts when you are the unitary executive? I mean, they genuinely seem to be grappling with the fact of their own obsolescence, which was interesting. Another observation was that the race talk in this case was so off-putting and especially so given that the argument occurred right after the court declared racism dead and buried in the announcement of the Calais opinion. I very much appreciated both Justices Sotomayor and Jackson staying on the administration’s neck about its arguably racist statements regarding immigrants and the countries from which they arrive to the United States. I mean, just a lot to go on here. And I know we should talk about this and play some tape, I think.

 

Leah Litman Yeah, so we wanted to share the exchanges between those two justices and the lawyer for the federal government just because they were otherworldly. So let’s play those clips.

 

Clip We have a president saying at one point that Haiti is a, quote, filthy, dirty, and disgusting s-hole country. I’m quoting him. And where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, where he declared illegal immigrants, which associated with TPS. As poisoning the blood of America.

 

Clip As to the Secretary and as to the President, obviously there’s an issue there about which one you’re going to weigh more heavily. None of them, not a single one of them mentions race or relates to race anyway. All those statements in context refer to problems like crime, poverty, welfare dependence, drugs, drug importation. What about poisoning the blood? If you look at those statements in context, again, they’re clearly talking about problems.

 

Clip What about bad genes? Bad genes, quote unquote.

 

Clip Again. They presented them wrenched from context. You can look at each one of those statements. They’re talking about problems of crime, poverty, welfare dependency. Again, problems that have been emphasized again and again by not just President Trump, not just the secretary, but many others who favor a tough immigration policy. And if the position of the district court’s here. The position of the district court’s here.

 

Clip So the position of United States is that we have to have an actual racial epithet that we don’t, we aren’t allowed to look at all the context.

 

Melissa Murray Wow! That was quite a super cut. What a mashup.

 

Leah Litman I mean, this is about welfare and poverty and Yeah. Just say welfare queen, just say welfare Queen. Do you think you’re saying things that indicate you don’t have racist views? The president doesn’t have a racist views. If he’s saying people from those countries are more likely to commit crime and be poor. Like I don’t understand.

 

Kate Shaw I mean, I think he had to take that position, and it was horrifying and almost laughable. Two observations about that. One, we’ll talk just briefly about a case involving the alien tort statute and the Torture Victim Protection Act, but Jackson and Sotomayor and their kind of continued insistence on saying what the case is about, like even when their colleagues want to retreat to like abstract legalism, like their colleagues wanna talk a little bit about the APA and, you know, kind of deference to the president and the executive. And they’re like, here are the words he said with his mouth or on truth social. Like, let’s listen to them. And in the same way, in the case involving this alien tort statute, there’s all this sort of abstraction about third party and secondary liability. And so to my ear at one point is like, we’re talking about allegations that a government with the help of this US corporation designed a torture scheme and like tortured people. And you can just hear in the room, they hate. When these when such a mayor and Jackson like remind them what these cases are about and like I love it so much It’s so important

 

Melissa Murray I hate it when women of color bring up all of the quasi-racist statements I make.

 

Kate Shaw Yeah, completely. Like, I wasn’t in the room, but I am sure that they were all like, why do you keep saying this stuff? It’s like, that’s what the case is literally about. Like, so rude. So rude. Exactly. Yeah. Anyway, and, you know, the federal government-

 

Melissa Murray The way to stop discrimination on the basis of race is to stop talking about discrimination.

 

Kate Shaw In these hallowed halls, basically. Anyway, and yeah, I was just sort of especially galling that the federal government tried to defend all of this on the same day that Justice Alito announced that racism is over in Calais from the bench. And I don’t think we’ve said this, but Kagan dissented from the Bench and it was apparently pretty epic.

 

Melissa Murray Can we go back and take a few beats on the shamelessness or the lack of vergonia of one Samuel Alito? There was this very extended disposition with the lawyer who was representing the Haitian nationals, in which Justice Alito mused about whether he would view certain immigration policies as directed against white or non-white individuals. And he asked about, in addition to Syrians and Turks. Whether Greeks and Italians might be considered white or non-white. And the lawyer basically said, sir, I don’t know who needs to hear this, but there was a time when Italians were not considered white. And then Justice Alito responded with this.

 

Clip A really broad definition of who’s white and who’s not white. As I said, I don’t like dividing the people of the world into these groups.

 

Leah Litman That is the man who says it’s racist racial discrimination to comply with the voting rights act and not racist to discriminate against black voters if you’re discriminating against democrats saying he doesn’t like dividing the people of the world into racial groups like.

 

Melissa Murray It’s so much easier to divide them bipartisan affiliation, Leah. Race neutral and much better that way.

 

Leah Litman Whatever. Just insane. Insane.

 

Melissa Murray The other one that I loved, John Sauer had some real bangers in this argument, I have to say, but this is the one I really loved. He said with a straight face. This is the Solicitor General of the United States. John Sower said with the straight face to Justice Brett Kavanaugh, that the President of the United States revoked TPS for Haitian nationals. In order to reverse the brain drain from Haiti. So Sauer said, quote, there’s this kind of talent drain out of Haiti. That’s the Trump administration, folks. The Trump administration is literally revoking TPS, a policy that was created to help the people in this earthquake-ravaged society come to the United States and live better lives. They are revoking it in order to help Haiti retain its natural pool of native talent. That’s foreign policy. That is presidential, folks.

 

Kate Shaw The sort of bad faith continues apace. So in an argument of many notable exchanges, and I did think the kind of Justice Alito asking about Italians and the attorney from the podium I thought did a very nice job, basically saying, yeah, 120 years ago, Southern Italians weren’t considered white. And you would think that would give Sam Alito a little pause and yet instead he was just like, I’m annoyed by this whole thing.

 

Melissa Murray That’s the second time he’s been called on the history of Italians in America and their relationship. Last month, birthright citizenship.

 

Kate Shaw And yet it’s not really penetrating, is it?

 

Melissa Murray But you know what, guys, it’s time to talk about Clarence Thomas.

 

Kate Shaw All right. So, let’s go.

 

Melissa Murray He would go further, he would go farther.

 

Kate Shaw Um, so, you know, he always wants to go further than his colleagues, um, and with the lawyer representing the Haitian nationals, these plaintiffs are unsurprisingly challenging the revocation on the ground that it was motivated by racial animus, right, see all the statements that we were just adverting to, and also, like, a desire to discriminate on the basis of race. And Clarence Thomas seemed to take issue with the idea that the federal government might be prohibited from discriminating on the bases of race, right? Like, just to say that again, not sure. Thomas isn’t so sure that there’s anything unconstitutional about government discriminating on the basis of race if it’s the feds. Just sit with that.

 

Melissa Murray During the seriatim portion of the argument, Justice Thomas repeatedly asked the lawyer how the lawyer’s equal protection race discrimination claim worked, or rather whether it made any sense. And the gist of Thomas’s question was essentially that the Equal Protection Clause appears only in the 14th Amendment, which applies only against states. It doesn’t apply against the federal government. And there isn’t an explicit guarantee of equal protection. Any part of the Constitution that is applicable to the federal government. However, as I note in the US Constitution, a comprehensive and annotated guide for the modern reader, on the very same day the Supreme Court announced its decision in Brown versus Board of Education, it also announced a decision in Bowling versus Sharp, a companion case. And it struck down segregated schools in Washington, DC, a federal territory. And it did so. On the view that the Fifth Amendment, which applies to the federal government, contains an implicit guarantee of equal protection. And this is all discussed here. Weird that Justice Thomas doesn’t know this. Or if he does know it, whether it is an invitation to other people to challenge or question the status of Bowling v. Sharp and this implicit guarantee of equal production in the Fifth amendment.

 

Kate Shaw You know what’s so pesky? Precedent. Precedant is…

 

Melissa Murray And books. And the Constitution.

 

Leah Litman As we keep saying, buy the book, this book, the U.S. Constitution, a comprehensive and annotated guide for the modern reader.

 

Melissa Murray Send one to one first street. I know a friend who could use one.

 

Leah Litman Send like six.

 

Kate Shaw Not like, but exactly six, it turns out. So at one point during the oral argument in the TPS cases, Justice Kagan’s voice, like kind of cracked. She sort of started to cough and she said, I’m sorry, I am losing my voice. And it was like a couple, it was sort of an extended like kind of period where she’s trying to talk and then just kind of keeps sort of losing it. So that might have been the result of her extended fileting of the Calais majority by reading portions or kind of summarizing. Her Kalei descent from the bench. I mean, I don’t actually know if she read portions of or summarized her descent from the bench since for reasons, and by that I mean like just reasons they haven’t told us, they don’t broadcast the audio of the opinion announcements despite now, you know, real time broadcasting the arguments themselves. It’s insane. It’s just a thing they do because they can, but just not share that audio with us. Anyway, we know she read her descent, but I am really eager to actually get that recording and it’s just insane that they make us wait. So there was another exchange I wanted to highlight. So one important precedent for the challengers is New York versus Commerce, the case involving the challenge to the addition of a citizenship question on the 2020 census. The lawyer for the challenger- We are by-

 

Leah Litman By the way, the Trump administration said they needed the information to enforce the Voting Rights Act, which I just argued in favor of dismantling and nullifying. Just reminders, reminders all around.

 

Kate Shaw Oh my god. Receipts, receipts. Yeah, yeah, sort of an infinite regress. So anyway, here is that exchange with the attorney for the challengers.

 

Clip I wouldn’t change a word of commerce, Your Honor. I wouldn´t either. Yes.

 

Kate Shaw Okay, so I just, I don’t know what you guys made of this. Ilan is a wonderful lawyer. We’ve had him on the pod before, and I thought he did a great job in this argument. I will just say that I personally would change lots of words in New York versus commerce in that it’s a kind of incoherent opinion that both says it’s not arbitrary and capricious for the government to add this question, but then because the reasons given were pretextual or contrived, the addition has to fall sort of. Separate from a traditional arbitrary and capricious kind of analysis. Anyway, it’s a puzzling opinion I’ve spent a lot of time with, but I understand when you’re arguing in front of them, you have to say that their opinions are perfect and you wouldn’t change.

 

Leah Litman Perfect. You’re beautiful. You are doing amazing, sweetie.

 

Kate Shaw I mean, look, but this goes back to what Melissa was saying at the outset, which is we really will find out whether these were just entire one-offs, both the census case, which the first Trump administration lost and the DHS rescission, you know, the DACA rescission case, which the first Trump Administration also lost. You know, either those cases like stand for a principle about how government has to do things or they don’t. And I think we’re gonna find out here.

 

Melissa Murray One final note, I think this is bubbling up in the lower federal courts for sure, but we definitely saw a glimmer of it here at the court in this argument. And that is judges here, Justice Sotomayor, using the unitary executive theory against the administration, which, as we know, is obsessed with the unitarian executive theory when it suits them. So let’s hear this tape.

 

Clip I’m not quite sure. Sure, not so long ago you came in and said that every executive officer has to be answerable to the president. So the president’s statements have to be attributable to its executive officers, to the secretary. I don’t see how you can take both positions. Either an executive follows the president’s orders.

 

Kate Shaw Or it doesn’t. That was great. So we will briefly touch on the rest. Well, not that whole thing was great, just Sotomayor was great not the argument. Although as I said, I am optimistic, modestly, but once again, Sotomayer, great question.

 

Leah Litman [AD]

 

Kate Shaw So we will briefly touch on the rest of the SCOTUS arguments from last week at the end of the show, but we wanted first to touch on some more legal developments because there have been a lot of them.

 

Melissa Murray First, I know you guys did not have this on your bingo card for 2026, but it’s time to talk about ballrooms and their implications for national security. I know, you weren’t expecting it, but ballrooms and national security are actually coextensive. And that is because on Saturday, April 26, there was a terrifying incident in which a gunman appeared at the White House Correspondents Association dinner at the Washington Hilton and shots were fired. Thankfully, it seems that no one other than the gunman was injured. This was a dinner where, for inexplicable reasons, given their disdain for the First Amendment, the president and members of his administration were invited. And so the fact of this gun violence episode obviously had real implications for the safety of those officials.

 

Kate Shaw Right, but the last thing Melissa said that they were invited and not the hosts of this dinner is actually important for sort of what comes next because in the aftermath of the shooting, the administration began making the truly absurd claim that the shooting supplied evidence for why the president needed this 90,000 square foot ballroom whose construction is underway at the White House because national security demanded it, right? So this is what they immediately jumped to. Here is Carolyn Levitt making this claim.

 

Clip The White House ballroom project is not just a fun project for President Trump like you will read in the media, it is actually critical for our national security.

 

Clip Here is Lindsey Graham echoing it. If you don’t think $400 million of taxpayer money is a good investment to create a secure facility at the White House where the President of the United States, the Vice President, the cabinet, and people from the public can come and, you know, have a meal and gather without what happened Saturday, then I disagree. This is the number one job of the federal government is national security. The number one job of national security I think would be to protect the commander in chief and to have infrastructure under the ballroom that is very national security centric.

 

Leah Litman And apparently the president thought those comments just slapped because the Department of Justice filed a motion to this effect. You should read the entire nine pages. We will just provide you some excerpts. Quote, the National Trust for Historic Preservation is a beautiful name, but even their name is fake. That’s all caps, because when they add the words in the United States to the National Trust, it makes it sound like a government agency, which it is not. They are very bad for our country.

 

Kate Shaw Read Melissa’s book that the National Trust for Historic Preservation isn’t even in the Constitution. So like what even are they? Okay, wait, let me read another quote This did not deter them the National trust because they suffer from capital T Trump capital D derangement capital S syndrome commonly referred to as TDS as noted by Democrat Senator John Fetterman of Pennsylvania and as are represented that the challengers that is by the lawyer for Barack Hussein Obama, Gregory Craig, who I’ll notice now at the law firm Foley and Lardner. Um, one more quote In the long and storied history of the White House, dating back to 1791, Congress has never dictated or tampered with the zoning, permitting, or architectural aspects of any Capital P project, especially one being given, all caps, free of charge as a gift to the country. This insane brief was signed by the acting Attorney General, Todd Blanche? It just feels like this performative objection. It’s like, I will literally do anything for you, sir.

 

Melissa Murray Performative is the exact word. This is your audition for America’s Next.

 

Kate Shaw I have no shame. I will literally do anything for you. And honestly, having read that, I believe it. Sorry, wait, there’s more. Wait, do you want to go and put one more?

 

Melissa Murray I’m gonna, okay, I’m ready. This is my time to shine.

 

Kate Shaw Oh, actually this is a good one.

 

Melissa Murray This is, this is my audition. All right. If any other president had the ability, foresight, or talents necessary to build this ballroom, which will be one of the greatest, safest, and most secure structures of its kind anywhere in the world, there would never have been a lawsuit. But because it is Donald J. Trump, a highly successful real estate developer who has abilities that others don’t. Especially those who assume the office of the president, this frivolous and meritless lawsuit was filed. Again, it’s called, all caps, Trump Derangement Syndrome. On top of everything else, this project is a gift to our country from President Trump and other donors. It is free of charge to the American taxpayer. Who could ever object to that? What do you have to say, bitches? Who can object to?

 

Kate Shaw Yeah. This isn’t gone. So it reads like a Truth Social post. It was actually posted verbatim by Trump on Truth Social as a post, which, I mean, why bother with the interim step of the filing at all? I don’t even know.

 

Melissa Murray The real derangement syndrome!

 

Leah Litman Wow. Reflecting on this, one wonders, would Louis XVI and Marie Antoinette have died if they had had a ballroom? Folks are asking this question more and more. Let them eat disco balls, said Marie Antoinett. Exactly. More fucking around and finding out dispatches we wanted to talk about. Were the other federal courts holding the unitary executive theory against the administration and what we’re calling fuck around and find out unitary Executive Edition?

 

Kate Shaw Okay, so let’s tick through a few pretty kind of interesting developments here. So one development came from the district judge in Florida, Judge Kathleen Williams, who was overseeing Donald Trump’s case against the IRS. This case seeks $10 billion with a B from the IRS and Treasury related to the disclosure of Trump’s tax forms. And the judge questioned if she had jurisdiction over the case or whether it would have to be dismissed.

 

Melissa Murray And if you’re a constitutional law professor, you kind of loved this opinion because it was like, mwah. Jurisdiction 101. The judge wrote, quote, a key characteristic of the case or controversy requirement is the existence of adverseness, or a dispute between parties who face each other in an adversary proceeding. Typically, adverseness is found in a situation where one party is asserting it’s right and the other party is resisting. But, she continued, In the instance case, although President Trump appears that he is bringing this lawsuit in his personal capacity, he is the sitting president. And his named adversaries are entities whose decisions are subject to his direction. Oh, snap. And the court then cites some of the executive orders invoking the unitary executive theory. If it’s so unitary, it can’t be adverse, bitches. I don’t make the rules.

 

Kate Shaw It was great. Short, like very punchy. Yeah, it was great and sort of another development kind of related came from a district judge in New York, Judge Furman, who was overseeing Maureen Comey’s case challenging her removal from the U.S. Attorney’s Office. She’s a longtime, very respected federal prosecutor. Her father is Jim Comey. Judge Furmen found in Maurene Comey case that he did have jurisdiction. This is a case challenging her firing and he says that it did not have to be filed as the federal government claimed before the Merit Systems Protection Board. The agency overseeing the civil service that Trump has hobbled and asserted control over. The judge found that federal court, not the MSPB, had jurisdiction over the case because, get this, the president invoked his Article 2 power as the basis for firing her. Quote, Comey’s case does not fall within the purview of the Civil Service Reform Act’s scheme because she was fired pursuant to Article 2 of the Constitution, not pursuanted to the CSRA itself. Defendants’ sole reliance on the Constitution, rather than the removal of provisions of the CSRA, places Comey’s case outside the universe of cases that Congress intended the MSPB to resolve.

 

Leah Litman Sometimes you gotta read it. Too legit, too quick. You do read that for the articles, you read the constitution for the article. I did, I said that. Yeah, but you live by the unitary executive, you die by the Unitary Executive. I’m not even sure if I am allowed to say die in the same sentence as executive or if I will be indicted. You’re not writing it in seashells. No seashell, no seashell. Okay, okay, great, thanks. Good to know. Great tip. Also, the opinion by Judge Furman has a nice cite to Kate’s partisanship creep article in there. Always read the footnotes in addition to the articles. So I don’t want to characterize these judicial opinions as trolling. They’re much more dignified, reasoned, and elegant than that, but I do love the energy.

 

Kate Shaw Okay, as promised, let’s briefly do the other argument recaps. And let’s start with Chattery v. United States, which is the Fourth Amendment geofence warrants case that we briefly previewed last week. So as we said to the kind of Fourth Amendment stands, this is a really important Fourth Amendment case involving the constitutionality of this novel type of warrant called geofense warrants.

 

Melissa Murray A geofence warrant lets law enforcement get the identities of cell phone users in particular areas or locations at particular times. They basically draw a kind of virtual fence around an area, and then they seek a warrant to require a tech company to search its data to ID users within the geofense at the time of the crime. But then, as is the case here, the government sometimes conducts additional information gathering about the people it identifies. So here, after identifying some individuals, The government then requested location data over a longer period of time.

 

Leah Litman So in this case, after there was a robbery of a federal credit union during which a robber apparently was talking on his cell phone, law enforcement asked Google for cell phone records of everyone in the vicinity within one hour of the robbery. And Google has this data because millions of people have a feature called location history turned on in Google Maps whether or not they realize it.

 

Kate Shaw So after Google returned an initial list of people within 150 meters for 30 minutes before and 30 minutes after the robbery, law enforcement sought, and didn’t get an additional warrant for this step, information about the movements of certain devices for a longer two-hour period, and Google complied with that request.

 

Melissa Murray Then, again without seeking an additional warrant, law enforcement asked for subscriber information for three devices. One of those devices belonged to the petitioner. Based on the evidence derived from the geofence warrant, the petition was charged with armed robbery and firearms possession.

 

Leah Litman I think it might be helpful, and the court seems inclined to go in this direction, to think about this case as involving a few different steps or actions. One is the geofence, that is seeking information just about who is in a given space at a given time. The second is the subsequent information collection, seeking the location movements for some number of people for a period of two hours. And the third is the request for subscriber information.

 

Kate Shaw Yeah, and it seemed like the court was not inclined to say there was a reasonable expectation of privacy at step one sort of of the kind of the geofence warrant. So the company is asked, send us all the people in this area at the time. And maybe you as one of the people who was in the area don’t actually have a constitutionally cognizable interest in not having that information that you were there around this time disclosed. So maybe the court is going to go or sort of kind of focus its attention on the and third step of the process that we just walked through.

 

Leah Litman Which is interesting because requiring more particularity at different steps of the process would not necessarily be an insignificant change in Fourth Amendment doctrine. At least, once you cross a certain threshold of probable cause reasonable suspicion, there’s kind of no variation within there. Maybe not an unwarranted change, but still a change.

 

Melissa Murray There’s real discomfort, though, with the government’s argument that there is consent or voluntary disclosure of the location information here. The idea was that the people didn’t turn off the location tracking information, and therefore they had consented to this kind of treatment. As the justices noted, a lot of people find that useful to use, the location-tracking, find your phone, whatever. The justices were also reluctant, it seemed, to rely on the terms of service. That is where Google tells users that it complies. With government requests for information. And the point was that even if they said that it mattered, that could potentially allow the government to get access to email and whatnot. And as we mentioned, it seemed like the justices were interested in the idea that at different steps of the process, the inquiry here might change for purposes of the Fourth Amendment. And Justice Jackson was really keyed in on this early on in the argument.

 

Kate Shaw Something that came up a bunch of times in the argument was this analogy that the petitioner had offered that these warrants are like directions to go through everyone’s storage locker. So you have like a big storage site and like tons of storage lockers. Could the police just ask the owner to search everybody’s storage lock for like a gun? And Justice Kagan likened the steps in the geofence process to the idea that first the government looks at a bunch of glass front lockers to see if they have bags. So right, imagine not an opaque, but like a see-through door to the locker. And then the government feels the outside of the bags. And then they open the bag and like those are distinct steps in the process.

 

Leah Litman Yeah, so the federal government, again here, as in the TPS case, really did itself no favors in the argument. They poo-pooed several justices’ concerns that geofence warrants might allow the government to surveil people at sensitive locations, such as churches or homes, which are supposed to be entitled to special protection under the Fourth Amendment. And this seemed to potentially peel off both the Chief Justice and Justice Barrett.

 

Kate Shaw It was interesting. So you had the kind of valence of the examples given. So you got churches, you had homes, abortion clinics came up a couple of times as well. So different justices might have been differently moved by imagining the invasion of privacy that might occur at different kinds of locations. Kavanaugh seemed to be kind of on the other side with his like, but crime logic, which is ever present. And you can sort of hear that in this clip.

 

Clip The local government amicus brief in the 31 states amicus brief, which has a huge spectrum of attorneys general on that amicus brave, which I think warrants note, talk about the practical consequences of not being able to solve murders. A lot of huge percentage of murders are never solved, for example, in violent crimes.

 

Melissa Murray You know who also seemed to be on one? Justice Alito seemed to very triggered that the court might rule for a criminal defendant. And so he was putting in work to find a way to avoid that unpalatable outcome. Take a listen.

 

Clip Well, we can affirm on any ground that would support the judgment and was raised below. And the good faith exception qualifies on all those points. So the fact that the court did not grant certiorari on the good faith exception does not preclude any of us from relying on that.

 

Clip I’m not sure I agree. We would, I mean, the court specifically declined certiorari on that question, so we didn’t brief it. And we raised in our cert petition that we’d like the chance to argue that the questions are intertwined. And in view of a holding on the Fourth Amendment issue, we’d to, you know, litigate the good faith issue. The court didn’t grant certiorare. We didn’t briefly. The government did have a section of the respondent’s brief addressing the good-faith exception. But adhering to the court’s decision not to grant certiari, we didn’t respond in the reply brief except to ask for remand. So.

 

Clip Well, that was your choice.

 

Clip We, the court did not grant certiorari, we were reluctant to brief a question on which the court specifically declined. Well, you’re inexperienced.

 

Clip You’re an experienced advocate, you understand that we can affirm on an issue that was raised below and would support the judgment.

 

Leah Litman This is not how Supreme Court practice works. Like a party can’t just decide, we’re going to brief and argue this separate question you didn’t actually grant cert on. It’s just not how it works. They would go nuts if someone did that. They dismiss cases for that. Come on.

 

Kate Shaw Completely. I couldn’t believe just how craven it was, it was like, I want to find a way to get to the outcome that I want. And so I’m going to say something I would never in other circumstances say, which is you should have ignored our decision to take, but not take like certain parts of this case and just like briefed everything anyway. Yeah. So Adam Unikowsky definitely won that exchange, I thought.

 

Leah Litman So the court heard several other arguments that we’re not going to fully recap in the interest of time. This is just a crazy week. We’re also not able to cover Pete Kegseth, Keg’s breath, whatever, his testimony. I did a short YouTube reaction video on the Comey indictment. There was just so much going on this week. But at the court, the court had Monsanto versus Durnell, which is about preemption of state tort suits for failure to warn claims about when and whether under the Federal Insecticide Fungicide and Rodenticide Act.

 

Kate Shaw I’m sorry, FIFA is my favorite federal statute. I mean, it’s a nice one. It’s a really nice one

 

Leah Litman The oral argument in the case was hard to read. It could end up being an anti-administrative screed for the plaintiffs. Or it could be a ruling for corporate defendants whose products allegedly cause cancer. Really difficult for this court to choose between those two options.

 

Kate Shaw This is a hard one to know where to root, it really was. Cross pressure, cross pressure. Cross pressure, cross pressure.

 

Leah Litman As Kate alluded to, there was also Cisco versus Doe. There the court appears inclined to limit the scope of liability under the Torture Victim Protection Act and Alien Tort Statute, because why allow torture victims the opportunity to allege U.S. Companies aided and abetted torture? Why not? The court also heard the first patent case, it’s heard in a few years, HICMA Pharmaceuticals versus Amarin Pharma. Where just based on my read of the oral argument, it sounded like the court was going to reject one theory of liability for induced infringement against certain generic drug manufacturers, just products are approved for both patented and unpatented uses.

 

Kate Shaw All right, so finally, let’s turn to opinions. We’ve obviously covered Calais, although we’re gonna return to it again and again, but we also got the court’s opinion in First Choice Women’s Resource Center versus Davenport, the case about whether the plaintiff, a crisis pregnancy center, had standing to challenge an administrative subpoena issued to them by the state of New Jersey where the state sought information that would help the state determine whether the organization was in compliance with state consumer protection laws and included in that information that would have been produced pursuant to the subpoeno was. Identifying information about donors.

 

Melissa Murray The court held that the organization had standing to challenge the administrative subpoena in federal court. The state had argued that there was no risk of injury because the subpoenas didn’t generate any legal penalties unless and until the state convinced a state court to enforce them. The court thankfully did not second guess the state’s reading of state law that those subpoenas are not self-executing. The court instead said the risk or prospect of enforcement was sufficient to cause injury. The opinion was written by Justice Gorsuch and it was unanimous.

 

Leah Litman This result was not surprising given how the oral argument went. Although as we talked about with the New Jersey Attorney General in our episode recapping the argument, the ruling does really open up the ability to challenge thousands and thousands of administrative subpoenas that are routinely issued by state and federal governments all the time, which has the potential to overwhelm federal courts and jam up legal enforcement. But as we suggested, this outcome might reflect a new reality of the intense politicization, weaponization of law enforcement in the Trump administration. Where the justices may have been forced to recognize the extent to which the government uses its investigative powers, including administrative subpoenas, for abusive ends and therefore may have wanted to open up a path to challenging them earlier on in federal court. I mean, this last week, we got the indictment of Jim Comey. We learned that maybe the investigation into Federal Reserve Chair Jerome Powell had ended, although Karoline Leavitt suggested maybe it hadn’t. And there were. You know has been reporting about how the Trump administration has issued administrative subpoenas to people who criticize the administration or question them

 

Kate Shaw So it’s been a lot, and I think the pace is probably going to continue. So let’s leave you, well, we’ll get to favorite things, but first we’ve got two clips without context we’re going to play for you. Here is the first one from Chatrie, the Geofence Fourth Amendment case.

 

Clip Council, I’m sorry, are you through? I want to go back to Justice Barrett’s question. If you’re not through, Sam, I thought you were through. Go ahead. Let’s go back to Justice Barrett’s question.

 

Leah Litman If you’re not through Sam, this was, you know, the lead up to Calais. Please, please, please just put down.

 

Kate Shaw Thought you were through, but that was probably just wishful thinking.

 

Leah Litman Yeah. And here’s the second clip without context, this one from Cisco.

 

Clip Justice Barrett, if I could just pause for a moment. I’ve been notified that there will be a flyover of four planes at 1122, and I just want to announce that so people aren’t alarmed or told the noise might be big. I don’t know why they didn’t check with me, but uh… Justice Barrett.

 

Leah Litman This caught my attention because we’ve joked about them using the shadow docket to intercept missiles that would destroy an asteroid headed for Earth. And it sounds like the chief justice was maybe potentially opening that door or leaving it ajar. Okay, so favorite things. All right, let’s do it. You start. Okay, So Melissa’s book, The U.S. Constitution Comprehensive and Annotated Guide for the Modern Reader. Also, Ariana Grande announced a new album. I’m so excited, end of July, and I’m going to see the Noah Kahan concert. I got tickets, so those are good things. Also two Voting Rights Act pieces on the opinion I wanted to flag here. Sherrilyn Ifill’s post on her sub-stacked, SCOTUS drops the other shoe on the Voting rights Act was phenomenal. As was Rick Haasens, the slaying of the VOTING RIGHTS Act by the coward Samuel Alito at Slate. Yes, that’s the actual title. And then a YouTube over at Jamal Bowie’s Channel Takes and This one was, I think, inspired by the Wooden Rights Act decision. And this one is entitled, The Supreme Court is Corrupt. This is what we can do about it. And it really walks through the options of Supreme Court reform.

 

Kate Shaw Oh, that’s great, yeah. I want to second Melissa’s book and also the merch. Again, I’m not wearing the t-shirt, but I got a great mug. At some point I’ll have the actual physical book and then I will flash it for you. I’m finally reading The Loneliness of Sonia and Sunny, which many, many people have read and loving it. Most people did, but think I’ve heard somewhat mixed reviews, but so far really love it. I mean, I recently read Ben Lerner’s new novel, Transcription, which I’m thinking about a lot. I felt differently about it at different points as I was reading it, but. Highly recommend it, although I didn’t always like it, and I’m really glad I read it. Yeah, that’s all I got.

 

Melissa Murray All right. It was kind of a week. It was a big week. And I just want to thank all of my mom friends who we came to. We had a big kid event this last weekend. And we all came together. And I want to shout out those ladies. They are absolute bosses. And we did that. So thank you, ladies. I am reading Yesteryear by Caro Claire Burke. And it is so fucking satisfying to read this. So the premise is about like one of these. Trad wife influencers who has like, you know, like a ballerina farm, I guess. And then suddenly find some themselves transported back in time to the actual frontier. And I just kind of love it. Like you want to be an anti-vaxor? Okay. Have some measles. Try that. See how it works. So I’m actually kind of enjoying it.

 

Leah Litman Speaking of fucking around and finding out.

 

Melissa Murray I love it. So I’m really enjoying that book. I also really love many of the thought pieces that came out the last two days around the decision in Calais. You mentioned Sherrilyn Ifill’s fantastic substack. I will also say last week, the Studio Museum honored Sherrilyn Ifill and she just gave one of the most amazing and inspiring speeches. Basically telling us, like, this is not going to change in our lifetime. But that doesn’t mean we don’t do the work. Like, we do the works so that our children and grandchildren can sit in the shade of trees they did not plant. And I don’t know who needs to hear that right now, but it’s not the time to put your plow down. You got to keep going. And I appreciated that. I also loved Adam Serwer’s piece, Voters Can Be Disenfranchised, because, yeah, we’re going to see that. And I’m glad he’s speaking truth to power. I also want to say just in terms of my favorite things, I’m trying to think about what I can do in this moment as a Black person, a Black woman watching these gains that my ancestors, people I love, fought for, watching them just be rolled back. One of the things that seemed clear to me is that people are not going down without a fight. There’s redistricting that is happening in Louisiana and Florida, and the NAACP Legal Defense Fund and our friend of the pod, Janee Nelson. Are suing the fuck out of them. And I love that they’re taking the fight to them, and they need our help. So someone asked me, what can we do? We can contribute to that. They need resources to be able to launch that litigation that is something tangible you can do right now. So if you can support that work, that’s amazing. Don’t despair. Help the people who are fighting prepare for the next leg of this fight.

 

Leah Litman One other just note about Calais, we’re gonna sandwich this. If you control left that decision for Purcell, you will not find a single mention, even though of course- Right. Who dat. New phone, who dis? Because that case says federal courts not supposed to change the rules too close to an election. They did so causing states to literally suspend and cancel elections.

 

Melissa Murray There’s going to be a Neil Gorsuch decision a couple years from now, it’s like everyone knows Purcell has been abandoned for lack of use. Only when, again, certain people are invoking it. That’s true. Wink. That’s right.

 

Kate Shaw All right, on that note, spring is all about fresh starts, new t-shirts and terrifying new reasons to call your representatives. The Crooked Stores Call Congress line has been a best seller since it launched years ago and now it’s available in new spring colors like butter yellow and chocolate brown. Plus all the pieces got a quality upgrade so your favorites can stay in rotation even longer. So can I just say quickly, I was in Japan for my kid’s spring break a couple of weeks ago and I have in navy blue the Call Congress hat with like the number on it and it’s a great hat. And my kids were like, what if people in Japan start calling Congress? And I was like, that’s fine. They can, anybody can call Congress. And actually the number is just the number of the congressional switchboard. So it will direct your call to whatever representative you want to talk to, cajole or yell at. So anyway.

 

Melissa Murray Chuck Schumer, it’s Edwige!

 

Kate Shaw Right that you can call about that. You can call it about new voting legislation and anything else your heart desires Anyway, honestly, it’s like hard to do the first time and actually a lot easier and then kind of fun to do subsequently so get the muscle memory of calling congress.

 

Leah Litman Oh, it’s super fun. I love to call and just be like, so what’s your plan about Sam Alito? Like, what are you gonna do?

 

Kate Shaw I’ve never caught with that with that query. I think I should.

 

Leah Litman Oh, I do it whenever I have some rage I need to get out.

 

Kate Shaw Yeah, no, I’ll usually call if there’s like something specific but never just like a general Sam Alito rage call. That’s interesting. Okay. Well, anyway, whatever motivates you to actually take the step, calling your representatives has never been more important so you can make spreading the word easier if you throw on the hat, the t-shirt, the crew neck, like all of that, again, I guess in new colors is available at crooked.com slash store. So go there, shop now and you yourself make three calls this weekend.

 

Melissa Murray All right, heads up New York and the greater Tri-State area because you know what? Your favorite lovely ladies dissing the court, they’re coming your way. That’s right, you can catch Strict Scruitiny Live at the historic Gramercy Theater on June 20th as part of the Bad Decisions Tour. And it’s only May, which means there’s going to be a lot of bad decisions that we can talk about. Tickets are on sale right now. You can grab them at crooked.com forward slash events. I will just say they are going fast. So. If you want to hang out with us, you got to do this. Get on it. It’s going to be so hype. Our live show in New York every year is always really dope. Yes.

 

Kate Shaw It’s gonna be really fun. I’m excited.

 

Melissa Murray Um, you know, we’re not going to be in a stage set piece like Lily Allen, but it is going to be pretty badass.

 

Kate Shaw We don’t know that for sure, we haven’t even had the design meetings yet.

 

Leah Litman Out walking out on stage with a Duane Reade bag. I was going to say a long drape of receipts with Sam Alito opinions printed on them that I can just like shred.

 

Kate Shaw On them that I can just like wrap around yourself like a ribbon the way she does.

 

Leah Litman No, I would shred it. I would shred it.

 

Kate Shaw Cool, okay, that works too. So we’re working on the props, stagecraft, all of that, TBD, but you want to find out? Get a ticket.

 

Melissa Murray Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrienne Hill. Matt DeGroot is our head of production, and we are really grateful for our digital team, Johanna Case, Kenny Moffitt, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East. And if you haven’t already, Be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast so you never miss an episode. And if you really want to help other people find the show, please rate and review us. It really helps.