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Kate and Leah cover this week’s three Supreme Court opinions—one featuring a killer Ketanji Brown Jackson dissent—before turning to legal news, where bad behavior is everywhere. We’ve got a violent judge who can’t park in Idaho, politically motivated prosecutors in Chicago, and Trump’s generationally incompetent personal lawyers failing to do basic lawyering. Finally, Leah speaks with Mary Moriarty, Hennepin County (MN) Attorney, about the charges her office has filed against ICE agents, the breakdown in cooperation between local authorities and the feds, and FAFO, the new coalition of prosecutors fighting back against federal overreach. The paperback edition of Leah’s book, Lawless, featuring brand-new material is out on Tuesday, June 16. Buy it here!

Favorite things:

• Leah: The Supreme Court Doesn’t Own the Constitution, Jamelle Bouie (NYT); Supreme Court rejects Alabama’s request to let it kill Jeffery Lee with nitrogen gas this week, Chris Geidner (Law Dork)
• Kate: The Hill, Harriet Clark

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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.

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. I’m Kate Shaw.

Leah Litman And I’m Leah Litman. This is, alas, another Just the Two of Us episode. We are without Melissa Murray today. But fear not, the Department of Justice may have beclowned themself just enough that we think we have some gags even without Melissa jokes and humor. Okay, so today we’re gonna be covering the opinions that the Supreme Court managed to release. Spoiler, not that many. So most of it is gonna be a smorgasbord of news that includes judges going wild, as in feral. The Department of Justice doing a lot of oopsies, and the White House signaling that it basically views all of anti-discrimination law as unconstitutional. More precisely, it appears to think that conventional anti- discrimination law is unconstitution because anti-Discrimination Law is itself discrimination. As always, it will make a lot of sense and we will explain it.

Kate Shaw Two things. One, when you said it is just the two of us, the rhythm of your voice saying just the sound is like you were saying this is just a tip episode and I just wanted to make sure that it’s not. Oh, I was.

Leah Litman I was honestly thinking of the just the two of us song as I was saying it like in that rhythm.

Kate Shaw Okay, well, why not both? And yes, as Leah said, the DOJ has been very busy this week, we will explain, but does it sort of feel to you like there’s this little bit of a gap because the Supreme Court is taking its sweet time and issuing like the horror show of decisions to come. And so DOJ sees the opportunity to kind of step into the breach. Anyway, we will elaborate. And because we will spend a fair bit of time talking about the Department of Justice, including what prosecutors should not be doing. We’re going to end this episode with a segment about what they should be doing. And that is a segment with a first-time strict scrutiny guest that we cannot wait to share with you. So if you are wondering what can be done to check federal law enforcement and their overreach and protect our democracy in the lead up to the election, please tune in for that last segment.

Leah Litman And now to Supreme Court opinions. So we got three opinions last Thursday. None of the big ones. This means there are now 20 opinions left in argued cases and potentially just two weeks left of the term. That’s going to make for a completely bananas next two weeks and possibly more if they go into the week of June 29th. It seems like they are likely to start adding opinion days. So brace yourselves for that and possible bonus episodes to go along with those good times. I just want to say like, what is taking them so long? Because I wrote an updated version of Lawless while you guys were doing shit and it’s actually out tomorrow. So if you are looking for something to read and it in the absence of Supreme Court opinions. You can get the paperback version of Lawless out tomorrow. Just an FYI.

Kate Shaw It is an antidote both to the Supreme Court’s bad decisions and also to the absence of their bad decisions. It will cure all your ailments. Why not both? The paperback and its new material and newly lighter format, you know, for easy shoving in your, you know, shoulder bag on your bicycle, wherever you’re going. Easy, breezy, beautiful. The flawless version of Lawless. But just just just in terms of the kind of opinion pace issue So, you know people who have been following this for a long time will I think no But maybe sort of newer listeners don’t realize like it is, you Know the end of the Supreme Court term is always insane But they are really concentrating so many huge cases in the last two weeks of the term like Gird your loins Hydrate and rest. It’s going to be a wild stretch And as Leah said, it could be the next two weeks and they’re just going to get a ton of this, dump tons of them on us in like three or four opinion days, or they could go into the week that ends on July 4th, which they typically really try to avoid doing, but I don’t know if they can get everything out before then. So it will either be two or possibly three more weeks of this. Anyway, so I guess marathon and not a sprint is the TLDR. Okay, onto the three opinions that we did get last week. The first… Abu Omu versus United States is a case in which the court unanimously held that a defendant who was charged with knowingly falsifying a document with intent to obstruct a federal investigation had to be charged in the district where the alleged falsification occurred rather than where the federal investigation was located. So here the defendant who was a former Twitter employee allegedly took a bribe from the Saudi government in exchange for giving them information about Saudi dissidents and activity on the platform and then made a false invoice to support his claim that the payment was just like for consulting services. He made this false invoice in Seattle. So he was actually being questioned by federal officials, said it was just payment. They said, you know, do you have any supporting material? And he like went upstairs and printed out a allegedly fake invoice. So all that happened in Seattle, but he was charged in California where the investigation was based. And here the court in a unanimous opinion authored by Justice Kagan said that this California Charging was improper, he had to be charged in Washington.

Leah Litman It is possible that this case might affect DOJ’s ability to continue to persecute a Rhode Island hospital for providing gender-affirming care. Recall that DOJ is using a Texas district court to issue subpoenas to the Rhode Island Hospital, maybe saying it’s investigating this from Texas. And the Texas district judge went along with it, issuing an anti-suit injunction that purports to forbid. The Rhode Island hospital or patients from filing to challenge this conduct anywhere other than the Texas District Court or Fifth Circuit. At a minimum, the Supreme Court’s decision suggests that any prosecution resulting from this, perhaps none, right? The investigation might be the point, but any prosecution would have to be in Rhode Island.

Kate Shaw Hopefully there’s no criminal prosecution. And I gather there are statutory venue issues that are distinct from the kind of general constitutional venue issues at issue in the case we just talked about. But the kind high-level observation that there’s something troubling about DOJ like in one place seeking to target conduct that happens somewhere totally different does seem, you know, at least to have echoes of the Rhode Island situation where this Texas district judge and DOJ together are trying to affect activities in Rhode Island. Okay, next case, Keith Lee versus Buddy Ayres Construction, Inc. Is a case involving this situation where a debtor who files for bankruptcy might lose their ability to pursue a potential tort claim because they didn’t list that tort claim as part of a bankruptcy estate. So the bankruptcy code has a lot of parts of it. One of them requires debtors to list as part as an estate, quote, claims against third parties whether or not the debtor has filed a lawsuit or made a demand for Here, the debtor filed for bankruptcy, then was in an accident, then filed a personal injury lawsuit growing out of that accident, and informed bankruptcy counsel that he was doing so, but the bankruptcy court was never informed. The defendant in the tort suit filed to dismiss the debtors slash tort plaintiffs suit on the ground that the debter hadn’t disclosed it to the bankruptcy Court 18 months into the litigation. And the Supreme Court said that the right inquiry in this case, which wasn’t the inquiry that the lower court had used. Is to ask whether the totality of the circumstances suggests that this omission was inadvertent or mistaken.

Leah Litman We also got a very interesting federal courts opinion. And by interesting, I mean another opinion that makes a muck of federal courts, private rights of action, and statutory interpretation. Only bright side here was a dissent by Justice Jackson, defending consideration of legislative history and trying to reorient the enterprise of statutory interpretation.” So in this case, FS Credit Opportunities versus SAVA Capital, the court held that the Investment Company Act does not provide a private right of action, which is the legal authorization for an individual or entity to bring suit, for private litigants to challenge contracts that allegedly violate the act. The opinion by Justice Barrett leans heavily on an opinion by the great man himself, Antonin Scalia, that narrowed the availability of private rights of action which he had said must be created by Congress. And because Scalia’s, and now the court’s, method of interpreting what Congress has done is a wooden form of textualism that asks, did Congress use the words private right of action? They concluded there was no private right of action here. Now, that’s a little bit of an exaggeration. They didn’t actually require Congress say the magic words private of action. But close to it, there has to be rights creating language that focuses on a particular class of people. And if Congress explicitly created another remedy, as it did here by giving the Securities and Exchange Commission enforcement authority, then the court infers there’s no private right of action.

Kate Shaw So Leah said the opinion leans on the great man, Justice Scalia, it definitely does that. It also leans not just on him as jurist, but also, I don’t know, author of treatises. There’s this treatise by Scalia and Garner reading law.

Leah Litman As brooding omnipresence in the sky, authority on all things.

Kate Shaw Yes, it uses him in all those ways. Also, Judge Easterbrook’s statutes domain, another sort of, I don’t know, foundational text in textualism. But it feels to me like these are some pretty dated citations here, Justice Barrett. Like these very tired critiques of a caricatured version of legislative history. It’s improper, it’s undemocratic for us to read things that… Committees of Congress wrote or that were said in the course of considering statutes or amendments. These are critiques that have been around for decades. I feel like they’re actually more interesting recent sort of like discussions and statutory interpretation that don’t really go mentioned at all. But there’s also one thing that’s a little bit of like a kind of in the weeds observation, but if you’ll indulge me, I want to quickly make it. So the opinion uses statutory history, like amendments to a statute and reads significance into those amendments. Here’s what Congress was trying to do with amending the statute. That is actually trying to divine legislative intent, which is also what legislative history is supposed to speak to. And I’m not sure Justice Barrett quite realizes that she’s not really doing anything very different when she is assigning meaning to Congress’s, again, changing or retaining statutory language, you know, that doesn’t feel very different from doing legislative history. I was thinking about this. Because Anita Krishnakumar has a forthcoming book about textualism and has I think a really convincing argument that much of the time when the court uses this statutory history, it’s not really very different from the way the court use legislative history. But of course, the great man would say statutory history was okay and legislative history was not and so she is just trotting those canards out. In any event, I find it a pretty maddening opinion. The three democratic appointees agreed, although two different degrees. The principal dissent, the one that found the majority opinion the most maddening is by Justice Jackson, who after concluding that text, structure, and statutory history support a private right of action, also explains that properly contextualized legislative history does too, and as Leah already alluded to, gives this really forceful defense of considering that legislative history. Justice Kagan didn’t join those portions of the Jackson dissent. Wrote a very short, separate dissent, basically saying her views on legislative history fall somewhere between the majority and the dissent’s views, but that she generally agrees with the dissenter’s that even without legislative history, other material makes clear that there is a private right of action here.

Leah Litman The observation that the majority opinion is relying on these old sources of textualism is interesting, because to me, it just kind of reinforces a sense in which, at this point, this is just dogma, right? Like, you have to believe a particular thing. It doesn’t matter how that debate has evolved. You just cite the foundational texts, and then you’re in the club and you’re doing the right thing. And it’s just so silly.

Kate Shaw And you throw in doing legislative history is like picking your friends out of a crowd like

Leah Litman I was like… Yes, yes, yes.

Kate Shaw Like, we need to update this, at the very least, if this is what we’re going to like. I’m trying to make it interesting. I know. Yeah.

Leah Litman Speaking of interesting, though, Justice Jackson’s dissent. We can’t read the entirety of it, but you should, ideally with Doja Cat’s boss bitch playing in the background. Just a few lines to highlight, quote, the reports, as in the legislative history reports, say what they say. She adds, unable to explain this compelling evidence of Congress’s intent, the majority pivots to arguing that I ignore the most relevant portions of the legislative history, parenthesis, I welcome the majority’s close reading of the reports. Yes, girl. She also describes analyzing legislative history as a, quote, worthy and necessary effort, because it prevents the preferences of judges from supplanting the will of the people, ever the pro-democracy justice. And then she asked what I just think is the most devastating question, which is, quote. What interest does it really serve to blind ourselves to the congressional record when we interpret Congress’s handiwork? Who benefits from that? There is no flattering or straightforward answer to such questions. I just love that she has this fight in her. Yeah.

Kate Shaw Yeah, this is like, I mean, I can’t tell if it’s because we’re sort of steeped in these debates that we sort of see just like how spicy the exchange, I mean, on both sides is. But it’s not a friendly disagreement, I would say, between Barrett and Jackson here. And she’s also like, I just think, now, I don’t know, I think Kagan, you know, just actually does feel differently about legislative history and statutory interpretation in general. But I just feel like it could be tempting if you were Justice Jackson to just say like The legislative history fight. Is not one that we’re gonna win in my lifetime. And so like, let’s, I don’t know, pick other battles. And I actually think that she is principled and right, not in saying some committee report should decide definitively what a statute means, but in just saying it is crazy and dogmatic, as you said, Leah, to just refuse to put on these blinders as this article of faith. Like, we won’t look at that stuff. And so she is just not willing to let this one go. And I too really appreciate it.

Leah Litman [AD]

Kate Shaw So while we are on the topic of SCOTUS opinions, let’s continue on with some judicial crimes. That was my attempt to doing a Melissa Marie-esque segue. I’m not sure how well it worked, but you know, we press on. Okay, and here we’re talking about literal actual crimes. Not using the sort of hyperbole that we sometimes are prone to when discussing what the court does. These are literal actual crime. And if you somehow missed this story, let us bring you up to speed. Last week, Judge Ryan Nelson on the U.S. Court of Appeals, this is a Court of Appeals judge, was charged with misdemeanor battery. He was appointed to the bench by Donald Trump during the first Trump administration. He’s on the Ninth Circuit and he was actually on the panel that stayed the district court’s injunction that had blocked the president’s federalization and deployment of the National Guard against, remember this, the Portland chicken? The Portland frog? The national road is not. Explicitly deployed against those adversaries, but they did have to face the Guard when the Guard was deployed in Portland. So the majority had, so there was a panel that he sat on, that panel had blocked the injunction because the lower court had issued, because the panel concluded that the president had a colorable basis for deploying the National Guard given the very serious crisis that the Portland Frog presented. That’s not what they said, just the crisis in general. But Judge Nelson concurred. To go, like, way, way further and basically to say the president’s decision to deploy the National Guard was not reviewable by judges full stop, that the president could just terrorize the country at whim and judges were powerless to do anything about it.

Leah Litman Speaking of terrorizing people at their whims, let’s watch the video of the events that led to Ryan Nelson being charged with misdemeanor battery. It’s gonna be kind of hard to hear slash make out what’s happening, but you can see the video linked in the notes and on our YouTube channel if you watch the episode there. And we’re also going to try to narrate it for you. So, at least what I gleaned from the video is first, Ryan Nelson can’t park for shit, right? He’s like basically.

Kate Shaw This car is very angled into another spot.

Leah Litman Multiple parking lines and another truck pulls up like in a spot that’s like adjacent to one of the spots that Ryan Nelson’s truck is kind of occupying.

Show Intro Yeah, you’re an asshole!

Leah Litman And it sounds or looks like the person who pulled up was like can you park or something and the judge’s response to this was to grab the glasses off the guy’s face and Curl them into the air, from what I can tell.

Kate Shaw There’s also like some seeming to like kind of stalking following around the area surrounding the parking spaces so we should say there’s no audio we don’t know what words if any were exchanged like after this like parking it’s not as though the cars came anywhere close to actually like coming into physical contact so whatever the predicate was was like not not that it that would justify like a federal judge knocking glasses off of someone’s face if that someone had, like, sideswiped him? But that definitely did not happen, at least as far as the video seems to reveal.

Leah Litman So free speech, they’ll yank your glasses off your face when you say things they don’t like.

Kate Shaw It seems, again, from what you can see in this video, Sans audio, like an absolutely unhinged reaction by a sitting federal judge who has now been criminally charged with misdemeanor. I think it’s both battery and maybe destruction of property. So I think that judges behaving badly in very different ways has been a theme of the couple of weeks on this podcast.

Leah Litman Indeed. So in addition to judges wilding out, the last week the Department of Justice and the White House were also on one. So what we’re about to talk about actually happened at the end of the previous week, but the US Court of Appeals for the DC Circuit heard oral argument in the case challenging the president’s destruction of the east wing slash construction of a monster energy drink branded UFC cage. I cannot believe that is a sentence that is now utterable.

Kate Shaw And I also, can I, if people haven’t seen it, it’s not, you have to look at it. It looms over the entirety of the White House. It is so indescribably massive and hideous and gaudy. And like, there’s this like just trashy, like weird almost disco, disco lighting sounds fun. It’s not disco lighting. What is it? It’s like menacing flashing lights that travel up and down this like enormous dome of a cage. Anyway, so there’s a lawsuit.

Leah Litman And here’s what the Department of Justice had to say about the federal court’s ability to stop the executive branch from destroying stuff

Clip The government decided very quickly and bulldozed the Statue of Liberty, the people who, ancestors, that was the first thing they saw coming to this country. But the government moved too fast, nothing can be done. I think, I think that’s right, yes.

Leah Litman Again, kind of hard to make out, but basically, the federal government lawyer was taking the position that plaintiffs can only stop the executive branch from bulldozing things if plaintiffs get an injunction before any bulldozer happens. And to which Judge Millett, judge on the D.C. Circuit, asked the federal government lawyer, so does that theory apply to the Statute of Liberty? If the government starts to bulldoze the Statue of Liberty before anyone can file to stop them, there’s nothing that can be done? To which the federal government lawyer basically says Yeah, I don’t care, do you? No, it was just basically a yes, but same thing. Struck me as pretty fitting that DOJ would take the position that actually, yes, they can destroy the Statute of Liberty if they do it before anyone obtains an injunction to stop them. She is a woman after all, and when you’re the president, they just let you do it.

Kate Shaw It’s so true. And I have to say, because Trump ruins everything good, I like the Statue of Liberty, so he probably wants to ruin that, too. But he brought his very, very bad and destructive mojo to Madison Square Garden’s last week, clearly causing the Knicks to lose the third game of the NBA Finals. Yeah, I mean, I wouldn’t rule anything out, including him turning his sights on Lady Liberty. He got very booed in MSG. And I don’t think he liked it. And I think that he is plotting his revenge on New York. And so, I don’t know, take the statue down completely, coat her in gold, like I wonder if that’s on the table. Put some kind of My Pillow sponsored water park on her on Ellis Island. I mean, it’s just like the desecration of these important national symbols and locations seems to sort of no bottom. Um Anyway, that’s what he has done to the White House with this monster drink-branded cage on the South Lawn. And I’m not sure what his sights will be set on next week. I think this just broke before we sat down to record. But have you seen the reports that there is algae blooming in the reflecting pool that he has also decided to take on as a pet project? Again, ruins everything good. Nature is true.

Leah Litman Nature is trying to send us a message and thus far we have refused to hear it.

Kate Shaw I really wonder what might, what sort of fungus could grow on the White House lawn slash cage.

Leah Litman If this is the beginning of a last of us style virus, you know, wouldn’t be surprised. We brought this on ourselves. Not be surprised exactly. In other news that really bridges the divide between hilarious and horrifying, we were also treated to the release of the transcripts from the grand proceedings in the Broadview 6 case. This, of course, is the indictment of the protesters who were demonstrating outside of the Broadview Immigration Detention Center during Operation Midway Blitz. All the charges were dismissed after the court indicated she would review the grand jury transcripts even after the government reduced the charges to misdemeanors rather than felonies, and the judge at the hearing dismissing the charges indicated that what she saw in those transcripts was shocking. And listeners, she did not exaggerate. There are three transcripts, because as we now know, even though DOJ tried to conceal this fact from the judge, DOJ had to present this case to multiple grand juries before it could obtain an indictment.

Kate Shaw Okay, so now we’ve actually seen the text and the very first transcript starts off with one prosecutor saying the other prosecutor will vouch for her. As we mentioned when the story first started to come out, vouching is one of the things that prosecutors categorically cannot do in front of the grand jury. There is a literal rule against vouching. So what does this prosecutor start off with? By saying, quote, Matt, that’s the other prosecutor, will vouch for me. Said I want to go in front of the grand jury because I know you and I trust you and you know me and you trust Me and I would never ask you to charge somebody if I didn’t think there was probable cause Textbook trust me. I’m a prosecutor. I’ve got the evidence. So just indict I’m honestly impressed that that vouching was done in such an explicit Stringer bell kind of prohibited way like no you don’t I take notes or say I’m vouching in the face while vouching before the grand jury you could literally find this if you’re like was there vouching and you control f’d the word vouch you hear her saying it um so you know it’s like on law school exams where the person is named p plaintiff or d defendant here it is v for voucher

Leah Litman So there were many highs and lows in these transcripts. For me, I think the best thing was the grand jurors making the Fifth Amendment great again. And Kate, I know Melissa isn’t here. I really want to do a reenactment. It’s not going to be the same without her, but we will soldier on. So do you want to be grand juror or prosecutor?

Kate Shaw Um, I will be prosecutor. How about you be grand juror? But yes, once again, Melissa, we will do our best to do you proud. But but we just there’s no way we can do it as well as you would have. But all right. Onward, you begin as grand jurors.

Leah Litman Grandeur. Girl, are you actually presenting any new actual facts or just a different viewpoint on your side? There wasn’t the word girl in there, but the rest of it was verbatim.

Kate Shaw Every other word but girl was in fact in the transcript. Prosecutor responds, okay, I’m feeling the skepticism already. Are you going to be able to listen with an open mind? Tell me the truth.

Leah Litman Uh, no?

Kate Shaw Okay, then you have to go

Leah Litman I heard this case like last week, and I thought it was a crock of shit then, and I still think-

Leah Litman It is

Kate Shaw Okay, thank you for your opinion, everybody.

Leah Litman Do you have unlimited tries? Do we have, what did you ask? Unlimited tries, like you keep coming back as many times as you want. Oh, I don’t think we have to worry about that.

Kate Shaw Okay, now we have a second prosecutor, we have to, I’ll do the second prosecutor. I think the saying is, the second time is the charm.

Leah Litman Just like reading the grandeur, telling the braziator, your case is a crock of shit, and why are you still at it, which is glorious. And why do you get to keep coming back again and again, like we’re- A very legitimate question.

Kate Shaw You know in in you’re shooting free throws like you don’t get unlimited tries until you make one like you’re you know giving a presentation at work you’re taking a law school exam like typically like you put up and then you shut up and that’s kind of it and I think it was a fair question which is like why in this of all spaces does one side just get to keep going again and again. Okay, so there is that. Then, of course, we have the prosecutors identifying the grand jurors who wouldn’t vote to indict the protesters and dismissing them one by one until the prosecutors arrived at a grand jury with the minimum required number of grand jurers who would return an indictment. And the prosecutor also talking about how we spoke with grand juror outside of the grand jury room. I mean, as I think we said in an earlier episode, like, I think, we all have a reasonable basis to think we need to see grand jury transcripts than the many other. Political prosecutions this administration is pursuing, and there are a lot.

Leah Litman And other prosecutions as well. So just related to this, two pieces of news that are definitely tied up with the latest exposure of the Department of Justice’s misdeeds. So there are now allegations of grand jury misconduct in other Chicago cases involving the same prosecutors. So in one, a judge has ordered an evidentiary hearing. Um, where the defense alleges that the prosecutor again engaged in vouching disclosing off the record negotiations with the defendant and more And in what seemed like a bid to prevent said hearing into prosecutorial misconduct The u.s attorney moved to dismiss the charges note that this is what happened in the broadview six case where the prosecutor also tried to Ward that off and yet those grand jury transcripts were still released and it looks like there’s still going to be an inquiry into this case so the judge has ordered the hearing to continue, or a hearing to continue even after the prosecution filed the notice of moving to dismiss the case. And this case involves allegations of fraud related to federal COVID funding. And then there’s an entirely separate case where a different judge agreed to review the grand jury transcripts in a case where the defendant pled guilty because the judge said, quote, the front office has created, as you know, a credibility crisis. And that is a real problem, end quote. The party of law and order, ladies and gentlemen. Indeed. Genuinely wondering is this a good time or the best time or, you know, not a good time to be engaging in crimes. It seems like they have tied up DOJ with people who are not engaged in crimes and that the crime spree might be at the DOJ. The call is coming from inside the house.

Kate Shaw So this reminds me of that period where Trump — this happened, I think, in both Virginia and Jersey, but Alina Haba in Jersey, Halligan in Virginia, but trying to install these pretty unqualified people as U.S. Attorneys, this was particularly true in Jersey. And it sort of seemed like actual federal law enforcement ground to a halt in the state of New Jersey, you know, which is a state where sometimes, like, people like to do crimes. I mean, Illinois, too. And I do wonder — And you literally have judge-

Leah Litman And you literally had judges, you know, begging the prosecutor, like, come before me and please tell me you have sorted out who’s leading this office. Because if you’re wrong, this is going to invalidate all of the cases. Absolutely. That proceed under this invalid structure.

Kate Shaw Right. So it is a different and more under the radar set of problems, at least until now, set of problems it seems in the Northern District of Illinois. So, it’s not, you know, this high profile person at the top, but it does seem as though, like, in the recesses of the grand jury room and who knows where else, like justice is not functioning as it normally does in that office.

Leah Litman [AD]

Kate Shaw Okay, so this is not a grand jury matter, but it is another politically vindictive prosecution that we wanted to mention. And that is one that flamed out when congressional candidate, Brad Lander, hero of the resistance, all-round mensch, full disclosure, my brother-in-law is working on his congressional campaign, was found not guilty on charges related to him allegedly obstructing an elevator while he was inspecting conditions at an immigration detention facility here in New York. This was another utterly bizarre baseless charge. Lander been and has continued to be a regular presence and voice in protesting the administration’s egregious conduct during immigration enforcement, in particular its practice of apprehending people showing up for regularly scheduled immigration court dates, and he has been trying to hold the federal government accountable. He had been previously, even before the events that led to these charges, been taken into custody at a federal courthouse when ICE was conducting enforcement operations there. Anyway, so he was. Acquitted in that case.

Leah Litman And those weren’t the only big oopsies from DOJ or Trump lawyers last week. Last week, the Department of Justice Civil Rights Division, that would be the one led by Harmeet UR Ho’s Dylan, filed papers in the cases where they had indicted journalists who were documenting demonstrations at churches in Minnesota, indicating that actually they may have made some false statements in their applications for those warrants. The application for a warrant refers to Georgia Ford, an independent journalist who was indicted. As chanting while inside the church and using her camera as a weapon. Here’s what Civil Rights Division says about that now. The statement about Fort chanting was incorrect, but the error was due to simple inadvertence. The characterization of the camera as weapon, though not ideal editing, is immaterial. Although the government regrets any error and does its best to avoid them, mistakes are inevitable. This is like a bullshit apology. This is really like- It’s astonishing. You are saying criminally indicting people you could not manage to dot your i’s cross your t’s determine whether the allegations were true

Kate Shaw It’s also just like, it is not, it sort of purports to be a male culpa. And it isn’t even, like it’s so defiant even in noting these pretty egregious errors. I’m sorry I hurt your feelings. Yeah, exactly. I’m so sorry if your feelings were hurt. I apologize.

Leah Litman I’m sorry if you didn’t like the false back judge.

Kate Shaw We will see how that goes over. But I guess, honestly, there is something to say for the filing in that case, which at least acknowledged error, even if it didn’t fully own it. But it was a filing. That stands in pretty stark contrast to Trump’s personal lawyers in his case against the BBC. If you’ve sort of lost track of which one this is, is one of the many Trump cases against media entities. It’s also one of several that seeks $10 billion in damages. Not totally sure what’s going on with that number, but it seems to pop up again and again. This suit alleges essentially that the BBC was mean to Trump in the way it edited clips of his speech on January 6th, 2021, which is obviously like a multi-billion dollar wrong, those editorial choices. And on Monday, the district court in that case filed an order to show cause as to why the plaintiff, again, one Donald Trump, had failed to file a response to the defendant’s motion to dismiss the case. The order noted that the plaintiff filed two eleventh-hour procedural motions, but that didn’t explain the delay or ask for the response deadline to be extended. And the judge was like, do you oppose the motion to dismiss? And why shouldn’t I sanction you for completely blowing that deadline? To which Donald Trump’s lawyers basically said they didn’t file a response because the court’s protective rule order, like rules about what can and can’t be unsealed and procedures for unsealing. Were too complicated for them to understand. I will quote here, the delay in filing the opposition memorandum on the docket was caused by plaintiff’s good faith efforts to comply with the protective order entered in this case and the court’s procedures governing sealed filings. I tried, Your Honor.

Leah Litman Therefore, you can’t criticize me. I don’t know exactly what that was. Maybe he should have made some DEI hires for attorneys instead of dipping into the dicks as ex-husbands and incel lawyers DEI pool. And the wild thing is something like this happened not once, but twice last week in the same case. So a separate docket entry noted that the plaintiff, again one Donald Trump, had failed to submit a position regarding a judicial order setting the procedures for discovery. That’s a stage of the case. It says, quote, while counsel are free to disagree with the relief and basis on which the opposing party may seek said relief, they are not permitted to disregard the court’s orders and procedures, end quote.

Kate Shaw It’s almost like actually diligently pursuing this lawsuit in a federal court is not the purpose of filing this lawsuit. Are you beginning to get that sense?

Leah Litman Do you think they’ll try to set up a slush fund out of this one?

Kate Shaw I mean…

Leah Litman Like we settled the case with the BBC and therefore Donald Trump will be paying, I don’t know, the Proud Boys a billion dollars, right, like no less related.

Kate Shaw The federal government could try to intervene and actually set up a difference, a media fair and a slush fund. Oh my god, let’s not give them any ideas. Just BBC, please don’t agree to yourself setting up a slosh fund. I mean, we beg you. I don’t think they would, but I mean a lot of people have capitulated. These tactics are just so strong arm. And anyway, it’s really important not to, even if it seems like a small thing, to This kind of behavior Okay, so let’s pivot to the White House and Department of Justice outside of the courts and some of the internal executive branch activities. It basically seems like the Justice Department and in particular the Office of Legal Counsel or OLC, which is in some ways like a mini Supreme Court for the executive branch inside of the Department of justice, basically they seem to have decided that as the Supreme Court is taking its sweet time in issuing its decisions, they are going to get in on Bad Decision slash Bad Lawyering Season. So, they at least initially have done so by releasing an opinion concluding that a big chunk of anti-discrimination law, and that is disparate impact liability, is probably unconstitutional.

Leah Litman So disparate impact liability is, as Kate was saying, a species of anti-discrimination law, among other places in Title VII, unemployment, the Fair Housing Act, and many other civil rights provisions. And what it does is it prohibits some policies that result in discriminatory effects but aren’t necessarily intentional discrimination. And the Office of Legal Counsel, in all of its wisdom, thinks that is the real discrimination. The top line summary of the memo read, quote, EEOCs, that is the Equal Employment Opportunity Commission’s Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone without regard to an employer’s likely intent and pressure employers to engage in race-based decision-making.

Kate Shaw Okay, so basically, like Kalei said about the Voting Rights Act, the thinking on display here is that these regulations, because they direct employers to avoid business practices that disproportionately exclude or disadvantage racial minorities, if those business practices aren’t really necessary, that that is illegal because it requires employers to consider, to think about whether they really should be excluding racial minorities. And the horror, that is a constitutional problem. So, OLC, not surprisingly, invokes the appalling decision in the Alabama case that followed on the heels of Kelly. That’s a case where the court allowed Alabama to implement a set of maps that lower courts had concluded were racially discriminatory twice, in part because Alabama refused to follow the Supreme Court’s own decision, telling them that their maps violated the Voting Rights Act. OLC right, the Justice Department memo we were just talking about says, quote, corrections are necessary to resolve the tension between disparate impact claims under Title VII. And our colorblind constitution, and cites this Allen versus Milligan order.

Leah Litman And like Kelly did, the opinion effectively nullifies an amendment that Congress made to Title VII when Congress expanded disparate impact liability after the Supreme Court had narrowed it in a decision known as Ward’s Cove. Some more news, there are still several cases challenging the slush fund for insurrectionists. In one case, Judge Leon ruled from the bench, denied citizens for responsibility and ethics in Washington. Their request for a temporary restraining order against the slush fund, Judge Leon concluded that the case was moot after Cart Blanche, that is, Additioning Attorney General Todd Blanche and DOJ lawyers said the fund wouldn’t go forward. Judge Leon said at the end of his ruling, quote, “‘I give the Department of Justice fair warning. “‘Don’t play possum with this court,’ end quote.” I’m sure that’ll do it. In another case, Judge Brinkma in the Eastern District of Virginia. Concluded that the case was not moot and issued an injunction blocking the fund. The judge gave the Department of Justice a week to get a sworn declaration saying that the fund is actually dead, dead, dead before the judge would agree to say the case is moot and there is no longer a live controversy.

Kate Shaw I feel like Todd Blanche is going to vouch for the deadness of the fund. I vouch for… The fund!

Leah Litman The fund being dead, your honor. I’m sure that that will.

Kate Shaw Set the judge right at ease.

Leah Litman Oh yeah, completely.

Kate Shaw OK, so there is a big piece of news that we alluded to, but that we really need to now give its proper treatment, and that is Leah Lemon.

Leah Litman The paperback release of Lawless. I am calling it Lawless: Leah’s version, not only because I unironically stan Taylor Swift, but also because I got to make updates to all the chapters and add a new section on the unitary executive and how the court has enabled Trump. And I just feel like it’s useful pre-butting to all of the celebrations and plaudits the court is going to get for invalidating the birthright citizenship order. It just tries to put that in a kind of. Bigger picture and trace the unitary executive to, you know, Richard Nixon thinking he was the victim of something and his people, but yeah, so I really enjoyed writing it and I hope people will check it out.

Kate Shaw And as Leah was just saying, if you haven’t gotten the book, you need to get a paperback. But even if you have gotten the books, because this is, because she’s Leah, has like basically like written kind of a new book, like some additions and then an entirely new chapter. So even if already have a hardcover, get a copy of the paperback

Leah Litman It includes the Dark Lord of the Third Circuit, Emil Bove, among other characters, so.

Kate Shaw You don’t want to miss it.

Leah Litman OK, so as we said, during this episode, we spent a lot of time talking about prosecutors doing fuck knows what. And I actually wanted to add one additional pretty terrifying example of this. And that is, MSNOW broke the story that FBI agents might be terrorizing pro-democracy and voting rights organizations. So the FBI reportedly raided offices. Of the Ohio Organizing Collaborative, a pro-democracy organization that helps register voters in the state. And agents, again, according to this story, reportedly showed up at the homes of people who worked for the organization, maybe also just some canvassers asking for information and electronic devices. Some of them may have had subpoenas. It’s obviously terrifying, and we should all be alarmed at what, again seems like another obvious attempt at election. Interference, you know, the executive order isn’t going anywhere. So now they are just trying to intimidate people So again having spent so much time Talking about what prosecutors shouldn’t be doing or what law enforcement shouldn’t Be doing and how some of that subverts democracy Please stay tuned for our next conversation with a prosecutor who is Actually doing the thing working to protect our democracy with a great new organization FAFO. Yes, the acronym is FAFO, so be sure to stay tuned for that.

Leah Litman [AD].

Leah Litman And now I am delighted to be speaking with Mary Moriarty, Hennepin County Attorney, also known as the District Attorney in Minneapolis and surrounding suburbs and counties, and one of the founding participants of a great new organization known as FAFO. We’ll explain more about that later. Mary, welcome to Strict Scrutiny.

Mary Moriarty Thank you so much.

Leah Litman So Mary, we’ve talked about your office on the show before, but haven’t actually had the opportunity to talk to you. And we’ve been talking about your Office because… Your office has been one where it actually has two cases involving state charges filed against federal officers. Can you remind us what those cases are about?

Mary Moriarty Certainly, we filed a case on a, what I would describe as kind of a road rage situation involving an ICE agent named Gregory Morgan. We charged him, we had a nationwide warrant for his arrest. He did turn himself in several weeks ago, and he has this week filed a motion to remove to federal court. The other case that we charged is Christian Castro. Who we believe shot Julio Sosa Solis in the thigh. We also had a nationwide warrant there. He was arrested in Texas and right now we are working our way through extradition proceedings.

Leah Litman Got it. I think of the first case as a case of what I’m calling DWI, driving while an insane ICE officer, given that this is a case where the ICE officer on the road was driving in an unmarked vehicle, pulled up and pointed a Glock at these poor people’s heads. And anyway, so just a berserk kind of set of facts. So you mentioned that the second case, there is right now the extradition proceedings. And for the first the defendant is trying to remove the case to federal court. So, before, you know, you make the decision to charge these cases, there’s an investigation. And when you’re investigating someone who is part of a law enforcement body, how is federal law enforcement or cooperation supposed to work in an ideal world?

Mary Moriarty The way it’s supposed to work and has historically worked here is that everybody works together. In fact, in our political assassination case, where the defendant just pled guilty to the federal charges yesterday, we had a joint investigation with the FBI. We were working with the U.S. Attorney. We all got the investigation results. We charged and they charged. That’s the way it has worked here and that’s the way.

Leah Litman And that case, just to remind our listeners, involved the assassination of the Minnesota legislature, Melissa Hortman, as well as her husband and her dog. Yes. OK, so that’s how it’s supposed to work. How has federal cooperation been working, either in the cases involving the federal immigration enforcement or the political assassination case you were just referring to?

Mary Moriarty And not well at all. In fact, when Renee Good was shot, I was on the phone with the FBI. Our state local law enforcement agency is the BCA, the Bureau of Criminal Apprehension. So I was in the phone them, I was the phone the US attorney, and everybody agreed this would once again be a joint investigation. And then suddenly the BC was kicked off the case. And so we realized then and there it was going to be a different situation. They took away Renee Good’s car. It’s shrink wrapped. It’s still sitting in a warehouse somewhere. They won’t share any evidence that they collected or got from any statements. And then when Julio Sosa Salis was shot, we also thought we had a joint investigation. The BCA did show up at the scene. And what happened was at some point the FBI said, well, we’re no longer allowed to work with you. Um, but the good news about that particular case was the crowd got really angry. There was a large crowd of community members and kind of got ice to leave. And so the BCA was able to collect evidence in that case. But then, uh, when Alex Preti was shot, it was on a Saturday morning and we were prepared for non-cooperation, but it was pretty remarkable. When you saw the video, it, was federal agents with their backs to the crime scene. With batons actually physically keeping the BCA from entering that scene to investigate, which is what the BC is trained to do. In any law enforcement involved shootings, involving a Minnesota peace officer, they are the people that are directed to show up. So we were prepared. We got a search warrant on a Saturday from a judge. So a judicially signed warrant, unlike many that you see from ICE, but we got a warrant and the federal government refused to honor that. So we were also prepared. Which is funny because.

Leah Litman Which is funny because they don’t think they need warrants and I guess they don t think when other offices get warrants it matters. Really twofer there.

Mary Moriarty Yes, and we had been working with two law firms from Washington D.C., the Washington Litigation Group and ICAP, and they’ve been working with us for free and they have been tremendously helpful. But we were prepared, we filed a lawsuit in federal court asking for a temporary restraining order that they collect the evidence that they preserve it and that they not alter it in any way. That was actually granted by a federal judge on Saturday. So we could see the progression of non-cooperation here despite continued efforts. And I’ll actually say the people on the ground or the line people really would like to cooperate and have reached out. We’ve had many conversations and every time it goes to the administration, it gets stopped cold.

Leah Litman So this sounds like a just silly question to ask, but just for clarity’s sake, like, what are some of the issues with this lack of cooperation? Like, what does it do, you know, in practice.

Mary Moriarty That is a great question, because normally when prosecutors get cases, at least in Minnesota, we don’t have our own investigators, by and large. So they have been investigated by law enforcement. So we know everything that we have and that we don t have. For instance, if there’s a shooting, we know if there is video. If there is a law enforcement shooting, then we know whether the officer gave a statement or other officers there, and I will say we also know who they are. And I think that would surprise most people to know that we don’t even know for sure who the agents were who shot Alex Preti. That has never been verified, ProPublica published a report on it. But you have to think about this from a prosecutor’s perspective. We have to be able to prove our case beyond a reasonable doubt. And that usually doesn’t have to include identifying the name of the agents who were involved in it. So, it is making us approach it from a what do we actually have from our own investigation with the BCA, and what don’t we have, and also what would they say? For instance, in the Predi case, we were told by the media, I guess, that they were all wearing body cam. We don’t know that. We don’t have that. We have to sit here and wonder, well, what would the agent say? And that creates barriers because you don’t what you don’t know. You can just guess at that.

Leah Litman So you mentioned that there’s a lack of cooperation, but I’d have to imagine that in addition to a lack or cooperation, there’s also fears about less of a defensive posture than an offensive one, where there might be a concern that if, let’s say, BCA or state or local law enforcement tries to conduct an investigation, that the federal government, or at least some in the federal government, would retaliate against them. You know, has that also kind of… Impeded the ability to just carry out, you know, normal police power stuff.

Mary Moriarty That was very apparent as Operation Metro Surge was going on. And we have something like 36 different law enforcement entities here in Hennepin County, which is Minneapolis and its suburbs, as you said. And what we were hearing from community, what you were hearing, what you are seeing in videos too, is community members saying, hey, we’re being occupied by our own federal government. Who is here to help us? Who is to protect us? And I had conversations with local law enforcement chiefs. And it was very interesting because they said they didn’t have jurisdiction. And I said, why do you think that? Yes, if anybody from the federal government comes into your community and you believe that they may have committed a crime, yes, you have jurisdiction to investigate and try to collect as much evidence as you can. In fact, we would like you to go to the scene and collect evidence and video that may have been taped over. But here was something that was really telling. You know, ultimately, they said, our officers are afraid of being arrested or something worse. And, you know, my position on that was, yes, this is unprecedented. It’s unprecedented for all of us. And I totally get that. And yes, they could be arrested and yes, maybe worse. However, you signed up to protect and serve your community and your community is out there with whistles. And so you need to kind of have a hard look in the mirror and figure out. You know, who you really signed up to protect and serve. So that, it was a big issue and I think it remains a big issue and something that, you know as I, as part of FAFO when I’ve talked to other DAs, I can say the things I wish I would have known before this hit us and one of those things would be to have conversations with local law enforcement to try to bring them along and have conversations about hate. You know, in a perfect world, you would get there, you might intervene, you are wearing body cam, you are collecting the names of witnesses and contact information, so there can be an investigation after the fact. But those, as I discovered, those conversations need to happen before something like this, before they are in that situation.

Leah Litman So you’ve already kind of begun to gesture at this, but I do want to spell it out, because I think many people are wondering, what can I do? What should we be doing now, in order to address ongoing federal overreach and potential additional federal over reach in the lead up to potentially the election. And so you mentioned that one thing that has been useful is the fact that people on the ground, for example. You know, suggested to ICE, no, you actually need to allow local law enforcement in to investigate, and that there were actually photographs taken of federal law enforcement actively not investigating, you know Alex Prettie’s murder, and that all of that was useful, you know to allowing state officers to do their jobs. So, you, know, are there other pieces of advice, you know you would offer, either to members of the public or, as you were just saying, to other district attorneys who are thinking about you know my area, my state, might be a target of some federal law enforcement searches, you know, whether now or in the lead up to the election, you know, what should I be doing now in order to protect my community?

Mary Moriarty I think that’s a great question. And I, you know, as you know local prosecutors really don’t have to deal much with federal law. And the administration started out by saying, and they still continue to say in some respects, that federal agents have absolute immunity. And you heard people say, no one can touch you, you can do whatever you want kind of thing. Vice president said this, so, oh yeah, I heard it. Yeah, and you have to think that that had an effect on ICE agents who were being told that. And so I think being prepared to say, no, that is not the case and educating the community, educating, frankly, the ICE agents and everybody, police, everybody to say there is no such thing as absolute immunity and you can’t come in here and commit crimes that are, that if it was anybody else, the federal government would be a crime and that we are prepared to investigate. One of the big issues here, and I think Minneapolis, like many other cities has a lot of camera surveillance. And it’s taped over after two weeks. So we had opened up what we call our transparency and accountability project, or TAP. We started out investigating 17 cases, including Bovino throwing green gas canisters at people in a park. And what we discovered was that the video had been lost. And so you’ve got to be able to preserve that video. But I think it is, there’s a deterrence value, and I don’t think there’s deterrence in a lot of things, especially with young people. But with this, I think being prepared and starting the messaging that if you come to our community and you commit a crime, we will do our best to investigate that and prosecute that. And I would say it’s really important now with elections coming up.

Leah Litman You mentioned, you know, working with other DAs guidance with other DA, so we’ve now alluded to FAFO or FAFO a few times, do you want to share with our listeners what FAFO is since I’ve only been kind of, you know, using the acronym for perhaps obvious reasons.

Mary Moriarty Yes, and I’m pretty sure, you know, it was Larry Krasner from Philly who came up, I’m sure he wanted that acronym and we just had to find words to fill it. It is the Coalition for the Fight Against Federal Overreach. And it is a very, we’re very serious about banding together because right now, given what the federal government is doing, local prosecutors can be at least one lane of fighting back. And, but, but it really requires us working together because I think if you’re just in this by yourself, it can be really isolating and you need help. Yes. For instance, we very fortunate to have the help of the Washington litigation group and ICAP because you have to be able to understand even before you’re thinking about prosecuting obviously, but okay, what happens if you do charge? And we came to learn that the defendant can make a motion to remove to federal Corey. But I think none of us, I certainly can speak for myself. I had no idea that if it was removed to federal court, we remain the prosecutors. And that state law applied on substantive law and procedural federal law applied. But, and a really important thing here is that the president cannot pardon a conviction because it’s under state law. And so those are basic things that I think most local prosecutors just don’t have to think about. And then what do you do when you have this motion to remove and the ICE agent says that they should have Supremacy Clause immunity? What does that mean? And that is something that a judge has to decide. I think I mentioned- Which means it’s not-

Leah Litman Which means it’s not absolute, by the way, right? If they’re not tested, decided, you think.

Mary Moriarty I’m glad you pointed that out because it’s actually a potential defense that doesn’t prevent us from prosecuting. But you want to know what that means because you do not want to bring a charge and then not be able to overcome the argument that they were acting within the scope of their duty and they did nothing above and beyond that. So you need to be prepared on topics that you never thought you had to think about since law school. And so that’s one thing that we are talking about in FAFO. What do we need to know? How do we get prepared if this should happen in our communities? And elections are something we’re really talking about because I think it’s really important to prepare for the worst and hope that nothing happens. But what do we do if ICE agents show up at polling places? What do election judges do if they’re told or asked or demanded by ICE, hand over your ballots or something like that? So we’re doing a lot of preparation on that front here in Hennepin County. And I know we’re working on that in FAFO as well.

Leah Litman So that’s all very encouraging. I mean, there’s so much we can all do to help one another, whether it’s resource sharing, pooling of knowledge, or just making each other not feel alone. When you see one person fighting, I think it’s easier to be brave. And I like to think of your office as basically doing what the Knicks did in their recent come from behind victory, right? They didn’t give up, they stayed in the fight, and you know what, they pulled it off. So may you bring those same vibes. To not only Minnesota, but the rest of the country. Mary, I do wanna ask you one last question, which is what’s giving you hope in the work you’ve been doing, let’s say the last 18 or so months?

Mary Moriarty Uh, one thing was the community response here to Metro Surge. I don’t think it’s really possible to appreciate everything that community members did by driving neighbors, kids to school, by bringing food, by paying rent. I mean, it just people coming together was just remarkable. And it was actually the community members that ultimately drove ice out. They’re still here in some respect, but it was the really negative. Uh, publicity, if you want to put it that way, that I think made them leave. And that was all by the community. Um, the other thing, and you talk about this, I’m a big fan of the podcast too, until you get to the Supreme court, when you, when you fight back, you win. You really do, because a lot of the things that the Trump administration is doing are just illegal, but they’re not entirely illegal until a court says they are. And much of what they do is to, so fear, um, this is what they were trying to do in Metro Surge too. And if you just comply because you’re afraid of what might happen, that’s what they want. And so when you push back, either in court or in any other way that is in your lane, like our lane is accountability, you usually win. And so that gives me some hope, even though the Supreme Court is fairly tragic right now, to say the least, but in the lower courts we’re winning. Um, and they just don’t want to fight much of the time. I mean, we, we actually, as you know, were, um, it was announced. We found out via Twitter. Um, I did not know that that was how the department of justice announced its past pattern and practices investigations. Um, but they announced one investigating our office for a policy that we had just put into place while at the same time, pulling out of the federal consent decree for the pattern and practice. But anyway, we fought back on that and we won. So I do want to say to people, I know it’s scary, and this is, I think, part of the reason we need to band together and talk about supporting each other, because it is scary, and at the same time, when we push back, we generally win.

Leah Litman Well, I love that as an ending note, Mary Moriarty, thank you so much for taking the time to speak with us on Strict Scrutiny. We’re obviously going to be following all of the great things your office has been doing.

Mary Moriarty Thank you so much.

Kate Shaw Thanks again to Mary Moriarty for that great conversation.

Leah Litman So, favorite things? Let’s do it. Okay. So, two things I had wanted to highlight. Actually, two and a half. So one is Jamel Bowie had another terrific piece in the New York Times titled, The Supreme Court Doesn’t Own the Constitution. Definitely worth checking out.

Kate Shaw Great piece, great title and great piece. I mean, everything Jamel is doing these days, I mean always is so good, but this piece is really exceptional.

Leah Litman Totally agree. Second is the Supreme Court did something I will put in my favorite things, although I’m not gonna give them credit. So the Supreme court declined to stay a lower court ruling that had blocked the state of Alabama from using an execution protocol that gassed people to death after the court found the protocol constituted cruel and unusual punishment. This of course is a huge victory getting the Supreme courtroom not to issue a stay that greenlights an execution. So the district court had issued this decision after a full trial. And I really do think that the court’s decision not to stay it reflected the great lawyering in the case from, among others, the plaintiff’s lawyers who are at Arnold and Porter, as well as lawyered from our friend Steve Vladeck, who was on an amicus brief, who again explained the kind of particular procedural posture of the case and why the court shouldn’t intervene because of it. My half favorite thing would be, I’ve been listening to the new Olivia Rodrigo album. So it’s not my favorite. There are a few songs on there that are growing on me. So I loved The Cure. That is definitely a highlight. But that had been released in advance of the album. I like Expectations, Out of My Way, and Maggots for Brains. Those are also, I think, high points on the album for me.

Kate Shaw I have not listened yet. Okay, so that’s a good weekend, like family undertakings. We’re driving. And I wonder, so underscore what you said about the court’s sort of unexpectedly correct order in denying this stay application that I’m sure the state thought they had a good chance of winning at SCOTUS. And also wonder in terms of like, you know, I think Excellent Lawyering, Vladek. And also the court did allow a nitrogen gas execution to go forward, and Sotomayor wrote an incredibly powerful dissent, and I wonder whether the fear of drawing another dissent like that was also a factor in the court doing the right thing here. It seems at least possible. Okay, so I will just mention a couple of favorite things. I just finished the novel Hill by Harriet Clark, which is like kind of a memoir because it is like kind of about her life, I think. But it’s written as a novel and it took, it was a little bit of like a slow wind-up for me. I was not super into it at the beginning, but it’s pretty amazing. So I would say if you’re thinking about it, I would stick with it. It’s just really beautiful and very moving and weird and just really, really good. Okay. So that’s my recent fiction recommendation. I was, I missed last week’s episode because I was in Zurich where I’d never been for this conference on global threats to the rule of law. And it was just amazing to hear from these scholars and jurists from all kinds of places. And I just learned a ton, and I’m grateful to the organizers. And I want to shout out Renata Weitz and Elizabeth Holtz Leitner, who are both awesome scholars who are at the conference, and who listened to the pod. And it’s always a trip to, you’re in London, you’re an Austria, you are listening to our podcast. And they were, anyway, it was great to meet you both. Um, finally I mean I cannot claim that I am a, like, long-standing real fan of the New York Knicks, as I’ve said before on this podcast. I am actually mostly a WNBA fan. There’s a great story about my husband took the kids and not me because I was somewhere else to a Knicks game, Knicks were, the Knicks and the Bulls were playing, were like mostly a Bulls family, actually, in terms of the NBA. And my youngest daughter, like not a huge sports fan. And so he took our three kids, my older two, were, like were super excited. And they got to MSG and the players came out onto the court and my youngest kid I was like, wait, this is men? My husband was like, where’s Ellie? Where’s Ellie the elephant? It’s okay, they can play. They’re actually pretty good at it. But I just love that the orientation in my family is so, at least for some of us, my husband actually loves the NBA. But anyways, very WNBA focused. That said, the city and the energy around this whole postseason, the Knicks and this NBA finals has been just glorious. And kind of reminds me of the best things about New York City. Which are just really important in this moment in which the worst things about the federal government seem to be on display constantly. Anyway, it just feels like an antidote sometimes.

Leah Litman Anyway, so go Knicks. I can even feel the immaculate vibes here in Michigan, just through the screens and whatnot. It’s really incredible.

Kate Shaw I took my dog for a walk in the last five minutes, I was like too stressed, I just like needed to like shake it off. They were like coming back, but I didn’t think they could come back fast enough. So like Shadow needs to go, so we go for a while. And I just, like hearing people screaming through their windows on my Brooklyn block and slightly in like these like one or two second delays because like everyone’s Wi-Fi and like whatever cable news they’re listening to is like a little bit different. So it was just like this chorus of shouts that was just so euphoric. Um, anyway, so. It’ll already be post-Saturday by the time you hear this episode, so we’ll see what happens, but I am excited for Game 5.

Leah Litman So speaking of immaculate vibes, Pride Month is here and it’s time to dress like it. This season, the Crooked Store is dropping Gayer Than Ever in two brand new designs and bringing back an old favorite, the Gay for Democracy shirt. Plus, classics like Dreamboat Willie return in a new colorway alongside the ever-reliable Join or Die tee. Whether you’re celebrating with your community, showing up to protest, or guilting your straight friends into buying you crooked merch in the name of gay rights. There’s something here to match your Pride Month style.

Kate Shaw And let’s be honest, Pride doesn’t end, so you’ll be wearing these items long after June. Head to crooked.com slash store to shop. And we will be back in your earholes next Monday unless the Supreme Court decides to give us some big opinions between now and then, and we’ll have bonus episodes come your way if that happens.

Leah Litman Strict Scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGroot, Ben Hethcoat, Johanna Case, Kenny Moffitt, Eric Schutt, and our music is by Eddie Cooper. Our production staff is proudly unionized with the Writers Guild of America East.