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May 13, 2024
Strict Scrutiny
The Pick-Me Boys and Girls of the Federal Judiciary

In This Episode

Victoria Wenger of NAACP-LDF joins Kate and Leah for an update on the four years of litigation trying to get fair voting maps for Louisiana residents. Then, a major update on a group of federal officials who plan to penalize a private institution for failing to censor certain speech– you’ll never guess who!

TRANSCRIPT

 

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Speaker 2 Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said. I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

 

Kate Shaw Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your hosts today. I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. Melissa is away actually doing jury stuff in New York. That’s all we’re going to say. They’re leaving it bag and letting you fill in the blanks. But here is what we have on tap for you today while she is away doing her civic duty. We are going to begin by covering a pending emergency application arising out of the continued efforts to enforce the Voting Rights Act in Louisiana. We will then bring you a pretty ample caught culture segment, because some federal judges in Texas are apparently desperately in need of attention. And we will end with a brief discussion of the two recent opinions the Supreme Court issued since our last episode.

 

Kate Shaw So for our conversation about the Voting Rights Act fight in Louisiana, we are delighted to be joined by Victoria or Tori Wenger, an attorney at the NAACP-LDF. Welcome to the show, Tori.

 

Victoria Wenger Thanks so much for having me.

 

Kate Shaw It is great to have you. So as we noted up top, the matter that we are covering with you arises out of the very lengthy efforts to try to enforce the Voting Rights Act in Louisiana. So we need to get our listeners up to speed before we can dive into the latest developments and wondering if you can help us do that. So this case starts in the wake of the 2020 census, as Louisiana began redistricting as it was required to do. And can you tell us, just to start, what happened with the 2020 redistricting? Just the map that Louisiana adopted and how that map was initially challenged?

 

Victoria Wenger Certainly. So starting with the census is important because what the census revealed is that the black population in Louisiana had grown in the last decade, while the white population had decreased. So there’s a shift in, you know, the number of black folks in the state and where folks are living geographically, the continued migration post-Katrina and other shifts in terms of where these population centers were. There was a real opportunity to finally create a second majority black congressional district. Louisiana has six. The black population had grown to about a third of the voting age population by the 2020 census. And while the Voting Rights Act does not provide for proportional representation, it allows for black voters to have an opportunity to fight for more districts where they can elect their candidates of choice. If there are enough folks and they live geographically close enough. And so what we did after the 2020 census is work with our partners and how our clients and offer a variety of different maps that did exactly that. That provided for two majority black districts out of six. And we provided those to the legislature when they were touring the state. We provided those during the legislative session. We showed here’s many, many ways that you can do it. And instead, the legislature passed a map that continued to only have one majority black district, specifically one that essentially took the black folks who live in New Orleans and the black folks that live in the state capital of Baton Rouge, and pack them all in that one district district to ultimately the governor. Then at the time, it was John Bel Edwards. He vetoed the map after our movement, our organizing to ask for that. But the legislature still overrode that veto, which was truly in terms of state politics, unprecedented in recent decades. They all came together. They overrode the veto the same exact day we filed a section two lawsuit. We moved for a preliminary injunction and were successful on that. In May of 2022, we had a five day hearing in the middle district. We later got a decision and were able to defend that decision even when defendants were calling for a stay in 2022 and that late spring, early summer. But everything came to a screeching halt when the Supreme Court essentially said, put the brakes on this. We’re going to hold the case in abeyance until we figure everything out. And the future of section two litigation in Alabama that Merrill v Milligan case.

 

Leah Litman So let’s take a pause there, just so we can walk through the different steps in the litigation. Before we get to the Supreme Court’s intervention in the midterms with this day. So, as you know, did you and your community partners were proposing different maps, you know, as the legislature is considering, you know, what to do in the wake of the 2020 census now that redistricting was required. And then you challenged the maps, you know, when they produced a map that only would have preserved one out of six congressional districts as majority minority, saying that, you know, constituted unlawful vote dilution in violation of the Voting Rights Act. So the court agreed with you. And the court found that Louisiana’s map likely violated the Voting Rights Act. And then what happened after the district judge decision? Finding that Louisiana’s one out of six majority minority congressional district map likely violated the Voting Rights Act.

 

Victoria Wenger The state defendant’s move to stay that decision in 2022 and the Fifth Circuit. A panel of three judges did not provide for for that stay. They essentially said that Judge Stick in the Middle District was valid in her findings, and that the remedial process, the effort to choose a new map should be able to move forward. And it was actually it was on the eve of when I was in the ER, I was flying over Atlanta, when we actually heard that that remedial process could not start within the next, you know, 36 hours or whatever it was, because the Supreme Court had intervened and held everything up.

 

Kate Shaw Okay. And then just for maybe one additional piece of kind of background or foundation laying, you mentioned Alabama. So what is happening in the background is that there is a very similar process unfolding in Alabama. Alabama actually, also, right, has relatively similar population breakdown after 2020, real underrepresentation in the congressional delegation of the then current black population and voting age population in Alabama. And similarly, lower court finds that the Voting Rights Act requires the creation of a second black opportunity or a majority minority district. And the Supreme Court puts that process on hold and essentially requires the 2022 midterm elections in Alabama to move forward under a map, right, with people voting using a map that the lower courts have found illegal under the Voting Rights Act. The Supreme Court subsequently takes up on the merits the question of whether the lower court was correct in its findings about the Voting Rights Act, and whether the original Alabama map complied with it and sides narrowly. But super importantly, with the lower court and the Voting Rights Act and fines. Yes, the Voting Rights Act did require the creation of a second majority black district. And oops, says the Supreme Court. I guess we required an election to go forward using an illegal map. So that’s an enormously problematic sort of back story, although the ultimate result is an important one in Allen versus Milligan. You said Merrill versus Milligan. That’s of course, what the case is called below, but it’s Allen versus Milligan. By the time the Supreme Court hands down its decision. And once again, that’s A54 decision in which the Supreme Court, narrowly but hugely importantly, reaffirms the vitality of the Voting Rights Act and finds the Alabama map was unlawful. Okay, so that is the background. While all of this is happening, the Supreme Court has put the Louisiana process on hold, held the case pending the outcome of the Alabama case. And am I right that importantly, as to the 2022 election, the Supreme Court did the same thing to Louisiana that it had done to Alabama. Tell the election to go forward using a map that lower court had found unlawful.

 

Victoria Wenger Precisely.

 

Leah Litman So now we are getting close to more recent events. So after Alabama voters prevailed in the Milligan decision, the Supreme Court lifted the stay in the Louisiana proceedings, thereby seemingly allowing the case to go forward with the next stage, which would have been the remedial stage where, you know, the parties and court fix the violation of the Voting Rights Act in Louisiana. But see what happened next after the Supreme Court kind of said, yes, this case out of Louisiana can continue to go forward as well.

 

Victoria Wenger So we still had a pending appeal in front of the Fifth Circuit. On whether or not the district court’s determination that Louisiana’s map enacted in 2022, violated the Voting Rights Act, while at the same time the district court was moving forward with the remedial process, trying to do something about that. We also we’re going to be moving forward with a remedial hearing where the judge would be able to look at maps that we provide as plaintiffs, look at alternative maps that were also either brought by defendants or Mickey to be able to make a determination of, okay, what map are Louisiana voters, politicians, folks going to be operating off of for 2024 or until any other dynamic changes? What happened is that the judge, the district court judge, set dates for a remedial process. We were readying our clients, get our exhibits ready, exchanging expert reports when the defendants filed for a writ of mandamus, essentially saying that the district court is overstepping here and the legislature needs a bite at the apple to be able to draw the map first. Mind you, this is the same legislature who had defied the court’s, suggestion before that they should enact a map that provides black voters an opportunity into districts. So there was this a sudden, once again screeching halt to our clients, to black voters getting resolution and a fair map. And in the meantime, another. A three judge panel of the Fifth Circuit, says judge Dick in the Middle District did not There is a likely violation of the Voting Rights Act here. Something must be done about it. And so what the Fifth Circuit did was say the legislature has until mid-January to choose a new map. Now, there’s a lot of Louisiana politics going on in the background, including a huge statewide election last year, a new governor, new statewide offices like secretary of state, attorney general, and the entire legislature was up for election. Inauguration day was January 8th. The earliest they could convene was January 15th.

 

Kate Shaw The hearings are in the fall 2023, and now we’re in January of 2024. So you have inauguration of all these new is it the legislature and the executive branch? Everybody hands over on January 8th. Okay. Yes. And that’s when the session takes up. Right. The question of what map they’re going to adopt. Is that right?

 

Victoria Wenger The governor called the legislature into special session. The earliest they could plausibly meet under their state constitution was January 15th. So Judge Dick actually had to grant them an extension and give the legislature more time to deliberate over a map.

 

Leah Litman Okay. So then we are at the special session, and Louisiana is considering several different maps that would remedy the Voting Rights Act violation and create a second majority minority opportunity district. And they have, you know, different considerations that they are weighing and selecting, you know, some maps versus others. You know, some maps are a little bit more compact. That is, the districts are, you know, kind of like more I don’t know how to define compactness, but like square. Right. And like less irregularly shaped. But some of the other maps like give particular advantages to incumbents, you know, that the legislature might want to protect. And so they weigh those considerations and they ultimately select, you know, one of the maps again, that has the second majority minority district. And it is those maps, that new map that creates the second majority minority district to remedy the Voting Rights Act violation that the Louisiana legislature passes in this special session that is now challenged. And that is the case that is now kind of making its way up to the Supreme Court. So it’s this new map that is challenged, and we got a decision in the case challenging the map, which is the decision we want to talk about. So what did that decision on the new Louisiana remedial map do?

 

Victoria Wenger So far, so many things that don’t necessarily abide by precedent or fully honor the facts that were adjudicated at our joint preliminary injunction and trial, just a few weeks ago. So what the court did here was essentially say that number one race predominated. That’s the constitutional question. Now, we’ll pause there quickly, because on the facts, there’s a lot of questions on whether or not that’s a fair assertion. There are ways and there are maps that we provided that performed way better on compactness, what you just described or and how many parishes that’s Louisiana for county, are split or all these other criteria that are taken into the process. There are ways to do that. While achieving a second majority black district where everything is balanced. They’re trying to say here that race predominated, inherently, because the legislators were very clear that they understood they had been called into this session to draw a VRA compliant map, ergo one with two majority black districts.

 

Leah Litman I want to make sure people understand, like what the court did and the nature of the claim that the court ruled for before we actually get into unpacking, I think like how the court elided the facts and adopted a reasoning that, at least in my mind, is a threat to the Voting Rights Act. But what the three judge district court did is, when you say the court concluded that race predominated, it’s concluded these maps were unconstitutional. They violated the Equal Protection Clause because they amounted to what is called a racial gerrymander. Where again, like the legislature drew districts with race in mind here in order to draw a second majority minority district. And it was on that basis that the court concluded that these districts were unlawful, needed to satisfy a very demanding standard of scrutiny, strict scrutiny, and could not do so. So we definitely want to unpack all of the different parts of that, that analysis.

 

Kate Shaw So we framed this as initially involving as it did a dispute about the Voting Rights Act, but as decided by this three judge district court that we’re now talking about, that’s the decision at issue. We have the court finding that, you know, yes, these maps were drawn in attempt to comply with the Voting Rights Act. But actually, there’s a separate and in some ways overriding problem with the maps, which is that the maps themselves, because they were drawn with race predominating, violated the Constitution. So the question being posed and and. Here is one that seems to pull out some real existential threat to the Voting Rights Act. So let’s get there. But maybe pick back up with what you were talking about before we jumped in, which is the flaws in the court’s reasoning and the role of politics and sort of how that, you know, actually is a way to understand what the legislature was doing here.

 

Victoria Wenger The court essentially found that this map that the legislature enacted to comply with court orders and the enforcement of the Voting Rights Act now is a violation of the 14th amendment of the Constitution, because the legislature is considering race and as this panel, at least the majority found, they were considering race predominantly over other considerations, whether it was politics or other traditional redistricting principles like compactness, contiguity, keeping municipalities or parishes together. And when you get into that land of races being considered predominantly, then the map has to comply with strict scrutiny. It has to be for the purpose of complying and honoring a compelling state interest. Now, the court here assumed and precedent says, complying with the Voting Rights Act of 1965, section two or other areas is a compelling state interest. But that’s where this case gets even more complicated. And some of the heart of our appeal lies in is how the court here, the district court, essentially did not take, the legislature’s word at we have a strong good basis to believe that the VRA is relevant in our state, that the VRA requires two majority black districts, because multiple courts have now told us that the court said, you can’t make that leap. You, as a legislature essentially need to be doing as exacting an analysis as plaintiffs bringing a Voting Rights Act claim to have that good basis.

 

Leah Litman Yeah. So maybe I could just like, take a beat on explaining that, because this is an area of law that is really complicated and, you know, trying to learn this is definitely a thicket. But I think what the plaintiffs and legislature are saying is, look, once it was clear it was a Voting Rights Act violation in order for the legislature to draw them out that had one of the six congressional districts, then it was up for the legislature to decide kind of how to remedy that, balancing all of these competing considerations that you alluded to, right? Compactness, traditional districting criteria, partizanship, and so on. Whereas the court that invalidated the map basically looked at the legislature’s map and said, this map has to satisfy the most demanding standards that we hold. Plaintiffs who are challenging maps under the Voting Rights Act. To do that is, they have to show that all of these alternative possible maps, right, satisfy compactness and other districting criteria. Whereas here the court said the legislature had to do that. And that kind of like inverts, you know, the traditional deference that is afforded to legislatures and the idea that you want the legislature to have a first crack at remedying a Voting Rights Act violation while still having the latitude to consider the sort of traditional districting criteria that legislatures can. And again, here, as you noted, you had submitted maps that were more compact in certain respects, respected parish boundaries. But those maps did not give the legislature the partizan advantage it wanted, right, which was protecting certain Republican incumbents. And they decided that that mattered more to them than these other criteria. And the idea that that means they it’s just like a very complicated morass that the three judge district court seems to have kind of backed itself into in how it was considering these claims.

 

Kate Shaw And can I just add one additional note? Am I right that one of the kind of incumbents whose protection was at issue was the current speaker of the House? Mike Johnson’s district is one of the districts that you guys that was sort of at issue in the various maps the legislature was considering.

 

Victoria Wenger Right? And not only Mike Johnson, but also Republican Majority Leader Steve Scalise. Yeah. Two lawmakers who had been, you know, vetted in that fight for new House leadership and who holds a ton of power in D.C.. The actual decision here about why the lawmakers and Louisiana’s new governor, Jeff Landry, preferred the map that they enacted in January instead of the one that we had proposed that had essentially already been rubber stamp by the Middle District, by the Fifth Circuit was because that map would put Congressman Garret Graves in jeopardy while protecting Congresswoman Julia Letlow. Congressman graves was a, you know, closely in the circle of Kevin McCarthy, who did not support Steve Felice, when he when his. Name was in the running. He was not as vocal in supporting, Mike Johnson or in supporting the new governor of Louisiana, Jeff Landry. He’s a bit of a moderate in that field, and he’s someone that maybe would be, a rival to Governor Landry’s political future. And so while there’s this national narrative, there is some real Louisiana politics going on. The new governor, the Republican super majority elected, had an opportunity to essentially put someone who has stepped out of line with the political establishment at risk through this redistricting process. There is really no doubt, if you are immersed in the politics of the state, what was going on here. And in fact, the court doesn’t really doubt that either. But they made this leap. That was beyond the record to say there is no world in which the Republicans would willingly forfeit one of their seats and framing it in these Partizan terms again, and we lose sight of the fact that our clients power. Coalition for Equity and Justice, the NAACP, nine individual black folks have been fighting for years have already had to endure a 2022 election on a map that was deemed, and essentially built to violate the Voting Rights Act, are now caught in this limbo land once again, of what map are they going to vote on in 2024? And will it honor their communities and their voting rights?

 

Kate Shaw That’s a ton of fascinating sort of local and national kind of political backdrop. So it sounds like this complex combination of everyone agrees that Voting Rights Act compliance requires a second majority black district. The fight is over. Which map? You all did not prevail in the map that you had had blessed and that you thought was the best. The leadership, Republican leadership in the state got a map they liked better, complied with the Voting Rights Act, but maximize the political advantage, which the Supreme Court has said the Constitution is totally fine with. So that is politics. Like that’s how map drawing is supposed to work.

 

Leah Litman You know what’s necessary to enforce the voting rights act? Ummmm…Partizan pettiness.

 

Kate Shaw Partizan gerrymandering.

 

Leah Litman Partizan pettiness as it turns out.

 

Kate Shaw Partizan pettiness is better. Much better.

 

Leah Litman So now we are at this moment where a court has invalidated the map that the Louisiana legislature has selected in order to remedy the Voting Rights Act violation. And now a group of voters and the Louisiana legislature ask the Supreme Court to put on hold the ruling of the three judge panel. That invalidates the remedial map. Is that kind of like the next phase of the proceeding, like whether the Supreme Court is going to put on hold the decision invalidating the remedial map?

 

Victoria Wenger Exactly. So when the legislature enacted this map, which was not our first choice, but did provide for a second majority black district, that that got to the core of our Voting Rights Act claim on behalf of our clients. And Robinson, it is a group of, quote, non-African American voters who then challenge that map. Under the 14th amendment, the state of Louisiana, the Secretary of state, the government. They are the defendants in both of these matters. But for our position representing black folks in Louisiana, we went from being the plaintiffs, winning a Voting Rights Act claim to now intervenor defendants trying to make sure that the map that the legislature chose, whether it was our first choice, second or third, that map is able to be used in 2024 and beyond because it provides that opportunity that’s been denied for so long.

 

Leah Litman So just to underscore that, because when you refer to the opportunity that has been denied so long, I think the point is that absent a stay, there is a possibility that Louisiana voters will have to vote not just in 2022, but also in 2024 under a set of maps that courts have concluded likely violate the Voting Rights Act. Because the three judge district court decision invalidated the map that would fix the Voting Rights Act violation. And so if that map isn’t in place, then what sort of maps are they using? Who knows? Or maybe the set of maps that violate the Voting Rights Act. And I think this is partially, I guess now we want to have the conversation about what the Supreme Court’s actions in this case could say about the Supreme Court and voting rights, as well as the future of the Voting Rights Act. One thing that is lurking in this case is this Purcell principle. Just to kind of remind people, the Purcell principle is the ground that Brett Kavanaugh gave for putting on hold the lower court decision invalidating the Alabama maps. Purcell maintains that, you know, there can’t or shouldn’t be court ordered changes to elections to close to elections. Now we criticize kind of the application of that principle to the Alabama case, because Alabama didn’t actually have a set of lawful maps in place, and so it just didn’t make sense to apply. Purcell. But the point is, is if the court is applying Purcell to these redistricting decisions, then what’s good for the goose should be good for the gander. And here, if they don’t think courts should be invalidating districting maps. Too close to the eve of the election. Then courts shouldn’t be invalidating districting maps too close to the eve of the election. Whether that hurts Democrats or Republicans. You know, Nick Stephanopoulos, a Harvard law professor and former guest on the show, said on Twitter, like is personal in any way a real principle or just a rule designed to benefit Republicans? And if the court allows this district judge decision to invalidate a set of maps again on the eve of the 2024 presidential election, it’s on the eve in the same way that the previous decisions in Alabama and Louisiana were on the 2022 midterms, then Purcell is just a joke.

 

Kate Shaw And can I just say one more thing on timing, am I right? So we’re recording this on Friday the 10th and there is a mid-May deadline, right, for ballot preparation. Is that right, Tori.

 

Victoria Wenger Right. So essentially the well, one thing to point out about Louisiana that’s a little bit unique is that November is actually the congressional primary. And then they have runoff in December. So that kind of operative dates that we’re working with, whether it’s for purposes of Purcell or just the necessary speed of this litigation, are other administrative steps, like thinking about candidate filing and candidates actually knowing what district they live in, but also the secretary of state going through the effort of reassigning where voters are within the voting system so that that can all be allocated. So there’s all these different administrative steps, whether they genuinely need to start on May 15th, which is the deadline that the Secretary of State’s articulated or can be extended a bit. It’s not something that can be extended indefinitely. So that is part of what we’re up against here when we’re talking about timelines.

 

Kate Shaw Right. And so what Leah was describing and what you all are asking the Supreme Court to do is to stay the opinion that just found unconstitutional, this map that has been the product of this complex and protracted litigation and legislative attention, and to let that map go into effect for the November election. And the question that Nick posed and that Leah was just describing, I think is like is really presented in the starkest possible terms here, which is that is there anything consistent about the Supreme Court’s application of Purcell and the court’s purported concern with, you know, not mucking up the process of elections on the eve of the actual elections? If the court does care about that value, it would seem to me it has to grant the stay here and let this map be used. And yet, you know, we just don’t know. And I think it’s going to be critically important as to Louisiana voters and their ability to exercise meaningful political power, but also as to what kind of a democracy we’re going to have in this election and going forward. So it does feel like this is a shadow docket matter, but the stakes are extraordinarily high.

 

Leah Litman And the stakes are also extraordinarily high for an issue that we have gestured at. But now I want to turn to frontally, which is the future of the Voting Rights Act, because I think the three judge district court decision that concludes this map likely violated the Equal Protection Clause because the legislature was trying to remedy a Voting Rights Act violation. Like, it just treats the focus on compliance with the Voting Rights Act and effort to create a second majority minority district to comply with the Voting Rights Act as kind of pretty clear evidence and potentially dispositive evidence of a possible constitutional violation. And I think the end of the opinion, like, has really strong overtones of this, where they basically say, like the real racists are the people trying to enforce the Voting Rights Act. So it has this like super long thing that I’m not going to be able to read in all of its entirety, but it refers to the long struggle for civil rights and equal protection that has taken place in Louisiana and says to say, now, separate, divide, segregate is to negate the sacrifice of those previous voting rights, civil rights organizers. Again, this is equating the people seeking right representation for black voters in Louisiana with the racists who opposed voting rights in the 1960s. And this idea, again, that compliance with the Voting Rights Act is the real racism and constitutional problem is, I think, the concerning aspect of Milligan that, you know, Brett Kavanaugh had not joined portions of the Chief Justice’s opinion when the chief justice wrote in Allen versus Milligan, you know, in those sections that section two demands consideration of race and that the whole point of the enterprise is an additional majority minority district in section two. And I just like, again, like they are treating remedying the Voting Rights Act as a constitutional problem. And that is, I think, a big concern here.

 

Kate Shaw Yeah. And let me maybe to put this in like sort of direct terms, obviously we have been very concerned about an equal protection clause challenge, actually sort of toppling section two of the Voting Rights Act and at least. District in cases for quite some time. So that is not obviously like a new concern. How concerned should we be that the court might move that project further in this shadow docket? Consideration of the Louisiana map.

 

Victoria Wenger So essentially with their consideration of granting the stay or not, that doesn’t inherently get us to the end of the road with this process and the fight for a fair map in Louisiana. If the Supreme Court weighs in and grants a stay, incredible. We get to the hard work of organizing, of getting voters excited about the new opportunities in their state. But even if not, what the district court has provided for is an opportunity for the parties to present maps to remedy this issue. There should be no question that it is possible to create a VRA compliant map, a great map on redistricting criteria, and also one that honors the 14th amendment. So on the facts, this is not a case that should truly be putting in tension. The 14th amendment and the Voting Rights Act. And certainly, if the Supreme Court takes this case up, we’re going to need to fight vehemently to make sure that both of those protections are not somehow now being contorted against the same communities that fought and died in March to ensure that the Voting Rights Act was passed and the 14th amendment is honored in the modern day.

 

Leah Litman That is a wonderful place to end. I did just want to clarify one thing so our listeners know, kind of like what to watch for and expect, which is, let’s say worst case scenario, Supreme Court doesn’t grant the stay. Then you’re saying the district court could proceed with the remedial phase and possibly do a court ordered mass. See, fingers crossed. Hopefully like in time for the 2024 election so that voters don’t have to vote twice under a map that violates the Voting Rights Act.

 

Victoria Wenger Exactly. So we owe maps both, all the parties owe maps to the district court by May 17th. And then if the legislature has not, on their own accord, enacted a map by the end of this legislative session on June 3rd, then the court, the district court has indicated by June 4th they will be picking a map.

 

Kate Shaw All right. Well, we will keep a close eye on all of that. Tori Wenger, thank you so much for joining us and shedding a great deal of light on this really important pending dispute.

 

Victoria Wenger Thank you both so much.

 

Leah Litman [AD]

 

Kate Shaw And now onto the court culture segment that we promised. And we will start with the latest plea for attention from the judges in Texas.

 

Leah Litman So in an effort to broaden our appeal, we wanted to be sure to touch upon an issue that we know is near and dear to the hearts of right of center listeners. And that issue is the excesses of cancel culture. So we wanted to bring you an update on our very own cancel culture watch. The update is this. A group of federal officials announced they plan to penalize a private institution for failing to censor certain speech. We can feel the hackles of cancel culture. Warriors everywhere rising and the cancel culture alarm bells going off left and right.

 

Kate Shaw Red light is flashing only oddly, or maybe not, it turns out that the cancel culture warriors are actually. And honestly, again, of course, the ones doing the canceling. And we are talking here about a group of federal judges, 13 of them, to be exact, who announced last week that they were instituting a policy of not hiring any student who chose to attend either law school or college at Columbia, beginning with the entering classes based on the protests roiling the campus at Columbia, along with many, many other universities.

 

Leah Litman It probably won’t require a ton of guesses to figure out who were among the signatories, but among the signatories on the letter are Judge Jim Ho of the Fifth Circuit, as well as Judge Slash, country’s chief scientist slash chief financial policy determiner Matthew Kacsmaryk. So I am sure students are weeping about the prospect of not clerking for the guy who cited anonymous blog posts in his ruling revoking a drug that has been in circulation for some 20 years from the market. But a part of me does wonder who are the undergrads out there? As in current high school students who are thinking I so desperately want to clerk for Matthew Kacsmaryk, I guess I won’t go to Columbia for college. Like, who are those high school students?

 

Kate Shaw Do not apply to us to intern. That’s all we’re saying.

 

Leah Litman I mean, I’m not sure I would want to hang out with those people. I don’t know how fun they are. Unlike those high school students who are already scheming about their cashmere clerkship. But there are so many things to say about this letter, hence the lengthy court culture segment. That’s one of them. But another is what exactly did the judges want Columbia to do in order to end the protests? I mean, Columbia had one of the more severe reactions calling in the police and instituting draconian disciplinary proceedings. Like, do the judges think Columbia should be summarily executing the protesters? I just I don’t know.

 

Kate Shaw So that’s one enormous problem with the letter. And there’s another there are many others. But to take on, and this is actually something that a number of conservative and kind of center right folks have observed. It doesn’t even make sense as a policy setting aside what exactly they were seeking from Columbia, beyond the really punitive reaction that Columbia has already demonstrated. So these are judges who typically hire from the feds OC chapter of a law school like Columbia, if they’re going to hire at all. So what they’re doing here is punishing fed sock members for protests, disruptions, as the letter calls them, that I have a very strong feeling these fed sock members are not, you know, really centrally involved with. But I guess these judges are okay with collective punishment. It is also honestly rich that these guys penned this letter, which is, I think, pretty clearly unconstitutional. Jawboning under not that I think it is, but under the Fifth Circuit’s own decision in the murthy case. That’s the case that’s currently pending before the Supreme Court, in which the Fifth Circuit held that relatively mild encouragement by government actors was unconstitutional. And there it was, like the federal government’s interacting with various social media companies, though interestingly, none of the judges from that panel, the murthy panel of the Fifth Circuit, is on this letter. So at least maybe some of them understood. There could be a little bit of tension between those two positions. But obviously these signatories are aware of that decision. And the only way I think they could possibly have squared what they’re doing here with what their colleagues, their court, some of them are only some of them are on the fed, some of them are on other courts. And the only way I think they can make it make sense is to understand that these judges believe that they are just not subject to the same rules they think apply to others, that they are not may be subject to law at all. They are law, but they are not subject to law. There’s a real throughline between that mindset and I think what many of them believe about the president and complete immunity from the applicability of our law. So so I feel like there are threads that connect them for sure.

 

Leah Litman For sure. I mean, this is something we’ve talked about on the show before, how Justice Alito, for example, does not believe he is subject to the law. He is the law. Why don’t you run through the other signatories of the letter, in addition to Jim Ho and Matthew Kacsmaryk, so that people are aware of who the real pick me boys and girl of the federal judiciary are. So the. Signatories are Elizabeth Branch on the 11th Circuit. All of the nominees are Trump nominees, like. Go figure. Also, Matthew Solomson on the Court of Federal Claims and Steven Alexander Vaden on the Court of International Trade. Now, for the judges who you might have heard about on the pod before. So there’s Alan Allbright, district judge in Texas, who encourage patent owners to file claims in his district. The Court of Appeals for the Federal Circuit has actually mandamus cases he has refused to give up, like ordering them away from him. And you had senators write a bipartisan letter to the chief justice asking the chief to investigate abuses from judges, from this judge in particular, as far as their docket manipulation. You have Judge Hendrix, another district judge in Texas. This is the guy who found that laws violated the quorum clause of the Constitution, striking down the Pregnant Workers Fairness Act based on a misreading of parliamentary procedure, a misunderstanding of abbreviations like H.R.. There’s also Judge David Kountze, another Texas district judge. He hasn’t really distinguished himself, you know, hence signing this letter, I guess, although he did strike down the federal law prohibiting people under felony indictments from buying guns. There is Judge Tilman Tripp e self the third always the best names. This is a district judge in Georgia. He enjoined the Air Force from imposing a vaccination requirement in the opinion he had the following Bangar quote plaintiff’s natural immunity coupled with other preventative measures begs the question does a Covid 19 vaccine really provide more sufficient protection? This is especially curious, the judge continues. Given the number of people who have been and continue to be infected after becoming fully vaccinated and receiving a booster and, quote.

 

Kate Shaw This is just such a great a tour of the greatest hits. I think as we spend so much time talking about Matthew Kacsmaryk, I think we really sort of like underplay the number of other crackpots on the federal bench. And thank you for this corrective. Leah. It’s important.

 

Leah Litman Again. Like new running segment, the pick me boys and some girls of the federal judiciary because the list continues. You have Brantley Starr, a district judge in Texas. This is the guy who ordered lawyers for Southwest Airlines to attend a training on religious liberty by the Alliance Defending Freedom.

 

Kate Shaw Another classic totally

 

Leah Litman I know. Also have Drew Tipton, district judge in Texas. This is the guy who enjoined or stayed. I can’t remember, like the precise procedural tool he used but blocked Biden’s initial immigration enforcement executive orders the Supreme Court. This Supreme Court disagreed with him by 8 to 1. This reference is going to be wasted on UK. And so I’m sorry for using it, but, this court looks at Drew Tipton and they’re like me know that not real law. And that is a reference. Kate, let me explain this to you.

 

Kate Shaw No idea sorry.

 

Leah Litman Of Nikki Glaser roast of Tom Brady. I injured my hand, so I’ve been watching a lot of television, so I watch, like, the three hours of the Tom Brady roast and Nikki Glaser had the like absolute best set.

 

Kate Shaw I did hear. It was, like, uneven, but had some good moments. Okay. But. So this is so. Yeah. Okay.

 

Leah Litman Yeah.

 

Kate Shaw So, see, I did know that there was such a roast. Okay. But I was like.

 

Leah Litman Oh, wow.

 

Kate Shaw At least, at least pull up and watch the Nikki Glaser five minutes or whatever it was.

 

Leah Litman Yeah.

 

Kate Shaw Okay.

 

Leah Litman Anyways, there are other district judges on that list, but again, like, these are the great minds who decided it is the proper role of a federal judge and federal official to threaten to penalize private institutions for not censoring speech.

 

Kate Shaw Yeah. So there are a few other things to note about the letter. One, it refers to the students involved in these protest as disruptors. It also says, quote, Justice William. I mean, they just are shameless in that they will seek to cite anything they think helps their case, like they’re citing William Brennan, who they don’t think was doing law. I don’t think, and yet they’re like, oh, he he did he did this thing. And so somehow that justifies it. Like, how about you cite a substantive opinion by Justice Brennan? I think that would be more constructive than seeking some support. In what in some, you know.

 

Leah Litman Passing line from a book.

 

Kate Shaw Kind of misrepresentation in his hiring practices. Exactly. So they say, you know, he refused to hire clerks from Harvard Law School because he just like criticisms of the Supreme Court by some of its faculty. Like, so he hired exclusively from a not that he was like a paragon of hiring practices, to be clear. But on the law school, like. Right. He was he would not hire women clerks for most of his time on the bench. But as to the law schools, like he did hire from Harvard, he stopped between, you know, 1966 and 1969 and I think continue to hire a lot for, you know, through his retirement. So I guess that’s the best they could find as support for this brave and bold position that they were offering. So what do you think accounts for this for them? You know, sort of stepping out with this right now, Leah.

 

Leah Litman Mercury is in retrograde, at least for the legally challenged. But, you know, I think getting at the segment of the pick me boys and girl, I mean, like this is auditioning, right? Like people look around and they think like, there is a chance Donald Trump is going to win a second term in office. I need to make my case for a promotion now. And the way to seek judicial promotions under a Trump administration is to be the most ridiculous cancel culture warrior that you can, and be kind of like loud and nasty about it. So I think it’s just auditioning.

 

Kate Shaw And I think we have a lot more of this to look forward to, both in judicial opinions and in these ridiculous stunts. So again, we are going to have, you know, I’m sure, occasion to have another running segment. I mean, it brings me no joy to say that, but I think we’re going to have to. Okay, so speaking of auditioning, while the Supreme Court didn’t give us that many decisions and this past week, it is still time for another, it’s time for some bad decision segment because you know who did give us a bad decision? Aileen Cannon you know, so you can audition in judicial fora or non-judicial fora. There’s lots of stages. So this one occurred on a stage and specifically so she is the judge overseeing the Mar-a-Lago.

 

Leah Litman They’re double threats.So they’re going to be triple threat acting, dancing, singing, non-judicial judicial fora, like, who knows what else they’re going to expand to.

 

Kate Shaw Op ed pages. You know, like there’s the sky’s the limit. But for now, Aileen Cannon has indefinitely postponed any trial date in the case in which Donald Trump is charged with wrongful retention of classified documents and obstruction of justice. This is, I guess, not surprising given her penchant for delay so far since the case was first brought, but it is still maddening. She had been postponing even ruling on motions from Special Counsel Jack Smith’s office, basically saying it was too far away from trial, but then specifically requested jury instructions very, very early, even though those are typically things that happen very late in the process and now has nixed a trial date altogether. And I think the best way to understand all of this chaos is that she is just in way over her head and totally overwhelmed and has essentially frozen in kind of panic or paralysis and is saying like, I can’t. And so we’re not I don’t know, is that a fair read on what has just occurred?

 

Leah Litman Yeah. I mean, she basically decided that like judging and doing law was just like a little bit too demanding on her schedule. So decided to take a vacay. I mean, I really think you manifested some of the current events, like two weeks ago when you suggested that the brain worms that were, you know, infecting the jury manner of the male Republican appointees on the Supreme Court, you know.

 

Kate Shaw They spared Barrett so far. And then. Yeah. And then what do we learn?

 

Leah Litman And then all of a sudden, brain worms are in the news. So, I guess, like, more Republican appointees have been worm brained. Then we perhaps realized, you know, when we were just discussing those on the Supreme Court during the immunity argument because of the Columbia letter, Adam Cannon.

 

Kate Shaw Yeah, yeah. I mean, and also, it turns out this is an actual real thing. And so it just may be that we have yet to learn that there are actual real worms that have infected the brains. And it’s not just, in fact, a metaphor.

 

Leah Litman But these judges would like you to know. Even though worms infected and ate part of their brains, they are still capable of being judges.

 

Kate Shaw Completely.

 

Leah Litman They still have the mental capacity.

 

Kate Shaw And yet totally plausible. Okay, so so should we take stock on, like, where we are in the various Trump cases? Like, so where does this put us?

 

Leah Litman Yeah. So in other, you know, kind of, I don’t know whether to put this under the bucket of auditioning or Trump buying more time to evade accountability. But the Georgia Court of Appeals allowed an immediate appeal of the trial judge’s order, holding that da Fani Willis did not have to disqualify herself from the case, and that appeal will likely generate briefing and additional fights over what else can be appealed and can be encompassed within that appeal. Likely, I think, potential. At least prolonging the case until after the election. So you have cannon nixing the Florida federal case on obstruction and wrongful retention of classified documents. The Georgia case potentially tied up in some interlocutory orders, although the Georgia trial court said they were going to proceed with some matters. The Supreme Court doing who knows what with the federal January 6th election interference case and at least in your state case. Right?

 

Kate Shaw Yeah. So that’s you know, that trial is proceeding. This last week has been fascinating. Lots of people in New York have been going. I have friends who or not even like in the press or even lawyers have gone in just like sat in the overflow room. You can do that and like, listen to some of the testimony. But we had Hope Hicks. We had obviously, Stormy Daniels testifying. The general sense on the ground that I’m getting is that the case is going very well for the Manhattan D.A., the prosecutor. But, you know, it’s hard to say for sure. And in any event, hopefully Melissa will be back next week and can shed some more light on all of this unless she remains again tied up with jury duty thing. Okay.

 

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Kate Shaw Okay, so let’s briefly touch on the opinions that the court gave us. So their last episode Thursday of last week was opinion release day. And we were, as is basically now going to be required on every opinion release date between now and the end of June, when they’re likely to finish up ready to go. But all we got were two relatively low key opinions we’re going to discuss briefly, but we will mostly keep our powder dry for the opinions to come in the next few weeks.

 

Leah Litman So the first opinion we got is Culley versus Marshall, an important civil forfeiture case. The holding in this case is that civil forfeiture proceedings, which we’ll explain in a second, require timely hearings to determine whether the property can be forfeited, but don’t require a preliminary hearing as to what happens to the property pending the ultimate hearing. Okay, so what happened in this case involves pretty standard civil forfeiture proceedings. You know, the petitioners in the cases loaned their cars to people, and then the people who were using the cars were arrested for drug related offenses, and the police officers seized their cars. That places the cars in these civil forfeiture proceedings. You know, they’re not technically criminal proceedings, but basically the state says we are going to lay claim to your property. And if, you know, in this civil proceeding, we conclude you violated some law that allows us to seize your property. We get to keep the property. And so, again, in this case, two people lent their cars to other individuals who were arrested on drug related offenses. The car owner said, look, we’re not involved in these drug offenses, so you don’t get to keep the cars, which we own. But it took a really long time for the police and the states to actually resolve those proceedings and losing your car for any period. Right. And the period that it actually takes to resolve these civil forfeiture proceedings is super costly and consequential. The hearings, that is the ultimate determination of the fate of the car can take a while, which means law abiding people are without their cars in that period, and in many places might mean they are unable to get to work, to school, to doctors again. In both of these cases, the innocent owners did get their car back, but it took over a year. So the owners filed suit, arguing that the due process clause requires a preliminary hearing prior to the state retaining their cars during the forfeiture process. And as Justice Sotomayor noted in her dissent for the Democratic appointees, you know, it’s low income communities that are the most vulnerable to the process from unchecked prosecutors and abuse of civil forfeiture proceedings.

 

Kate Shaw So look, the bottom line here is an enormous disappointment, especially after the argument and the fact that this categorical rule that the court announces that there is no requirement of a preliminary hearing before this kind of civil forfeiture, that just didn’t even seem to be necessary to decide the case. But there, I think, are important kind of qualifiers to just how disappointing the outcome is, which is that while the case is, you know, there it was a 6 to 3 holding. It was also really kind of four to 2 to 3 in important ways that matter. And specifically, Justice Gorsuch had a concurrence in which he was joined by Justice Thomas, in which he wrote, quote, but if all that all of these considerations that he walks through in the concurrence leads me to join today’s decision, and he does join the decision, he says, I also agree with the dissent, that this case leaves many larger questions unresolved about whether and to what extent contemporary civil forfeiture practices can be squared with the Constitution’s promise of due process. I write separately to highlight some of them, and he goes through in tons of detail many of the abuses that local police departments have been found to have engaged in. The dissent very much does as well with respect to the practice of civil forfeiture. You know, like cash strapped police departments do, way more civil forfeiture and way more targeted civil forfeiture against communities of color than flush police departments like it is just like a revenue stream, and an incredibly disturbing one that is very hard to square with basic notions of due process of law. And so he very much seems. I mean, tell me, if you agree with us, open in a future case to revisiting that. So why does he not just join the dissenters? Do you think.

 

Leah Litman So? I think part of it is just like Neil being Neil and like somewhat petulant like he it was clear during the oral argument was not into the question presented and the specific challenge to civil forfeiture proceedings. We played part of this clip, you know, when we recap the oral argument, but we will play it here now.

 

Clip It seems very strange that we’re asking which of two precedents apply rather than what the Due Process Clause commands. I mean, it’s just a weird question presented as far as I’m concerned.

 

Leah Litman And basically the case had been litigated and the court granted certiorari on the question of what case that is, what prior Supreme Court case, the legal test from these two prior decisions governed this particular challenge, that is, which legal case established the standard for arguing you are entitled to a preliminary hearing. And Justice Gorsuch, who basically doesn’t agree with like precedent, was like, I don’t want to decide that question. I just want to decide like what the due process clause, you know, requires. And so it’s possible, right? In some future case, as you are noting, he will conclude based on, you know, his and. Of the relevant history or, quote history, right? Originalist vibes. That other aspects of civil forfeiture proceedings actually do implicate, like his understanding of the Due Process Clause, whether that is, as you were saying, the incentives for police departments or other abusive practices that are used in civil forfeiture proceedings. But he didn’t ultimately conclude that a preliminary hearing was something that the due process clause required. And I think part of what was troubling about this decision is the court didn’t have to ultimately resolve that bottom line question about whether preliminary hearings are ever required or required here. Again, because the question on which they granted certiorari was just what is the legal standard that should be used to determine whether a preliminary hearing is required? And in this clip, which is from Justice Jackson, you have her making the case that, again, like the courts shouldn’t be deciding the ultimate question. And yet they do so anyway. So we’ll play that here.

 

Clip You asking us to decide that in this case though. I mean, I guess I’m confused because I thought we were doing just Barker versus Mathews. In terms of figuring out whether or not there is a procedural due process claim here, I didn’t understand us to be answering the question how many weeks are necessary? But maybe I’m confused. No, you understood correctly, Jesse Jackson. The question presented is simply about which methodology, which test applies to determine whether a hearing is and whichever one we decide, we could remand it for the lower court to actually apply it. In this case, to determine whether or not there was a procedural due process violation. Correct? Absolutely.

 

Leah Litman So just to recap bottom line conclusion court holds preliminary hearings aren’t required as part of civil forfeiture proceedings. But the upside is, you know, the three Democratic appointees, together with Thomas and Gorsuch, signaled some openness to the possibility of challenging other abusive civil forfeiture proceedings. We did kind of see this coming from the argument as far as where the justices skepticism about forfeiture was coming through, but also seemed to think that this was not the case where they were going to do something. So we’ll just play that clip here, because why the heck not predictions. You know, it seemed to me like Justice Gorsuch and the Democratic appointees want to do something to rein in civil forfeiture abuses. It’s unclear whether they have a fifth vote to do so. And the technical question on which the court granted cert. You know, what legal test applies when a plaintiff argues a state’s failure to provide an interim hearing before a final adjudication might not even allow the courts to resolve all that much. Anyways, we’re auditioning two for what? I don’t know, like good podcasters, maybe.

 

Kate Shaw I think we deserve some kind of soothing word for predicting that, but that’s probably the best we’re going to do in terms of our auditioning.

 

Leah Litman That’s fine.

 

Kate Shaw And that’s fine. We can dream however we want to dream. Okay, so one other thing to flag before we move on in the Sotomayor dissent in this case, she cites a ProPublica report on the civil forfeiture abuses in Massachusetts. And that’s some of the abuses that I was talking about a minute or two ago. And we wanted to mention this and also to link it to a really important development from the past week. So that was great reporting by ProPublica. It has been on a tear of just incredible reporting. And we are not the only ones who have noticed this, because just last week, ProPublica won the Public Service Pulitzer Prize for the friends of the court series. Reporters on that series were adjusted. And yet we had in the pot to talk about it Joshua Kaplan, Alex Mirsky, Brett Murphy, and Kirsten Berg. We wanted to extend huge congratulations to that team. We think it is notable maybe maybe like a little like, churlish for Justice Sotomayor to have cited ProPublica after the award, after some of her colleagues were the targets of the incredible Pulitzer Prize winning investigative reporting. Maybe coincidental, maybe not, but truly, truly remarkable work and dogged and like the flight manifest and the, you know, kitchen staff on various luxury yachts. And like the many, many people, I’m clear of, blood, sweat and tears that went into reporting that series was an incredible example of investigative journalism at its best, and we’re really, really pleased to see it recognized this way.

 

Leah Litman Yes. And Sam Alito will now refuse to hire anyone. Is a law clerk who wins a Pulitzer. So kind of got a punish, punish that speech.

 

Kate Shaw So let’s briefly mention the one other case the court decided last week, Warner Chappell versus Neeley. That was A63 Justice Kagan majority opinion with Justice Gorsuch dissenting. At issue was a dispute about whether a claim of copyright infringement is timely. Here. There was a music venture that produced a few songs. They broke up later. One of the members of the venture license some of those songs to relatively high profile places, and the other member of the venture found out years later and sued. So the statute of limitations under the Copyright Act is three years, and the issue in the case is whether you can get damages for infringing things that happened more than three years ago. Justice Kagan wrote this very svelte majority opinion. It was like seven pages long saying, yes, you can get damages for this old stuff. And in doing that, she noted that the court was assuming, without deciding that a claim is timely under the Copyright Act, if brought within three years of when the plaintiff discovered an infringement. In other words, that the Copyright Act has what is referred. To as a discovery rule. So basically, if it’s a three year statute of limitations, that starts when you either find out about the violation or you, you know, should have known about the violation. So that was again, nobody contested that that was assumed. And yet Gorsuch wrote a dissent, basically saying the court shouldn’t do this, assuming without deciding business, because there is almost certainly no general discovery rule under the Copyright Act, rather like traditional equitable practice should apply. And there shouldn’t be a discovery rule unless there was fraud or concealment. Just the only thing to say here is that he calls it a dissent. But like, is it a dissent? It’s really weird. It’s like he’s not answering the question that the court is deciding. He’s not addressing the question. The court is deciding. He’s like, I think we should answer a different question that no one was asking the court to resolve. And I disagree with the assumption the court makes, but not a holding of the court. I thought it was a really weird like essay slash journal entry. Not really dissent, but it doesn’t ultimately matter.

 

Leah Litman Maybe we should just continuously replay that clip every time Neil Gorsuch has a separate writing, right?

 

Kate Shaw An essay or journal entry.

 

Leah Litman Just this like essay on something that doesn’t really matter. So just a quick note on the opinions. They just released these two this last week. That leaves 40 some opinions to go with seven weeks left in the term. I mean, what are they doing? What is going on? And I think it’s clear some of them are doing their job. So Justice Sotomayor has written four opinions at this point. The justices who have written the next most are Justices Kagan and Barrett, tied at three. Sam Alito has written zero zero majority opinion so far this term. And we are in May. I mean, that definitely underscores it’s about to be time for some bad decisions because his majority opinions are never good. But I also want to float another theory. Okay. So hypothetically, Kate, if you are president and I’m white House counsel and I come to you and I say, look, it’s May, ma’am, and Sam Alito has not written any majority opinions, I think he’s quiet quitting on his job, and we should just replace him. What would you say?

 

Kate Shaw Constructive resignation. I would say I’m constructive resignation. Look, if, like, there’s a no confirmations in an election year rule that you can make up if you happen to have majority the US Senate, could the white House make up a constructive resignation theory and just appoint somebody to replace him? I love it.

 

Leah Litman Quiet quitting.

 

Kate Shaw I love Ed Cisco, the white House counsel. I don’t know that he has quite this kind of energy that like, we’re gonna put somebody on the court and just have them sit on Sam Alito’s lap until Sam moves. I’m not sure. But I kind of think maybe this from our lips of the white House counsel’s office is yours. I hope, I hope it travels.

 

Leah Litman Well, that’s that’s one theory that’s going on. You know, Sam Alito quiet quitting. Another theory might be captured by what we just learned is going to be Neil Gorsuch, his forthcoming book, which I can’t wait to not read. The book is called overruled subtitle The Human toll of Too much Law is Neil. Just like too much law, too many Supreme Court decisions. We’re just not going to do this anymore. I mean, what is this.

 

Kate Shaw Another constructive resignation?

 

Leah Litman There we go. Two supreme court appointments.

 

Kate Shaw I just don’t know. Yeah. They can’t decide if they want less law or they just want to make sure that, like, the president controls all of it like that. Sometimes there’s a little bit of tension between those two. But it is I just I don’t know if we have it in us. Another hate read book review, but if we do, I think this is probably a worthy recipient of that attention. I just I don’t know if I have it in me. Do you?

 

Leah Litman I don’t want to rule it out. But I agree, I’m not necessarily hankering to do it.

 

Kate Shaw Yeah.

 

Leah Litman If.

 

Kate Shaw And listeners, you’ll know which is the first, shortly. That’s just a teaser for a hate red book. We have dropping soon.

 

Leah Litman If someone would like to offer me a position of consulting services, by which I mean several tickets to the Taylor Swift show in Indianapolis in exchange for doing this hate read and potentially open to it. But yeah, I just don’t know if it’s in the cards right now.

 

Kate Shaw Yeah, yeah. Or maybe like a like a short form if a magazine is looking for somebody to hate read review this book, I think we’d be open to it. Yeah. So again, call us. Yeah. But yeah, that that book is really something to look forward to this summer dropping, I think in August is that right?

 

Leah Litman Who knows, I hope to be out of the country.

 

Kate Shaw I wonder if Neil will be on in any event. Okay, we’ve got a handful of additional things to flag for you before we go, so let us take through them. One of them is a request, and here is just a little bit of background. So at a conference at Yale a few weeks ago where I was actually talking about a paper that Leah, you and I wrote about more versus Harper, the independent state legislature theory case from last term. So I was talking about that paper. I was at a conference. But importantly, for purposes of this story, I met Nathan Herring, who is a young man working as a reindeer herder in Alaska. And yes, you heard that right. And he regularly listens to the pod while herding actual reindeer. And he showed me pictures and it was extraordinary. So it was a delight to meet Nathan. And it got me thinking about where else people might listen to our show. And we’ve been doing this for. Nearly five years. We have grown a lot in that time, and we thought that a very fun way to mark our five year anniversary, which is coming up the end of June, would be to highlight some people like Nathan.

 

Leah Litman So if you are a regular listener, we would love to hear from you. And if you’re up for it, we’d love to hear from you in your actual voice so you can record a voice memo telling us a little bit about yourself, your name, maybe what you do, especially if it’s something like reindeer herding where you tend to listen. Any favorite episodes or guests or moments? Send those to us at strictscrutiny@crooked.com. That’s strictscrutiny@crooked.com. And again, you can just record yourself doing a voice memo. And if for whatever reason, you don’t want to send a voice memo, you can just send an email to that address and we can have Melody read some of them. And when the term is done, because we’re all going to be in desperate need of something to lift our spirits, we’ll include some of them in a special five year anniversary summer episode.

 

Kate Shaw I also wanted to take a quick moment to congratulate my old friend Georgia Alexakis, who was confirmed last week to the District Court for the Northern District of Illinois. And not only are you my friend, I wanted to flag it because her confirmation is the one that put Biden over Trump in, judges confirmed. So it’s a lucky confirmation. It is a lucky confirmation. I was so delighted at that sort of fortuitous timing, but now we just need to see how how far above the Trump record this Biden term can get us. So hopefully there have been some new vacancies announced even in the last week. So let’s keep the nominations and confirmations coming.

 

Leah Litman On a slightly somber note, I wanted to just, like, take a moment to acknowledge something that has affected our community here in Michigan, which is, Brendan Jackson, who was a member of the Michigan Law class of 2024, unfortunately passed away after, his battle with cancer. And Brendan was a beloved member of the community, a tireless advocate for disability rights, the rights of the LGBTQ community. He was helping me with the book I am working on, specifically on the chapter on queer rights, and he was just an absolute joy in every capacity. I remember, you know, I taught him the year that everyone was still wearing masks. And we all met on the law quad, and Brendan and his friends were describing the concerts they went to, you know, even while they are in their first year of law school. So he was just really gifted at doing hard things while not letting them keep him down. And everyone is going to miss him terribly. We just had our graduation last week. And Brandon was sorely missed. And, yeah, I just wanted to take a moment to acknowledge him and his family and James and Doug, Percy and all of his friends. And Brendan Jackson was never going to stop helping people. He donated his tissue to research efforts to understand the cancer that took his life. And if you are interested and you can, you can donate to those research efforts as well. We will include a link to the research Foundation in the show notes. It is the Rucker Collier Foundation, Rucker Collier foundation.com where you can donate in Brandon Jackson’s memory. And may his memory be a blessing.

 

Kate Shaw It sounds like he’s leaving quite a legacy. So let’s end with some housekeeping. One, last week we joined American Fever Dream, a podcast from Betches media and under the desk News to talk about emergency care for pregnancy emergencies, along with a bunch of other topics. It was a great conversation, so definitely check that out. New episodes of American Fever Dream are out every Tuesday.

 

Leah Litman Also, you already know the stakes of the 2024 election. Want help but don’t know where to start? Vote Save America has you covered. In 2020, Vote Save America mobilized over 300,000 people to take action, and this year, with the stakes still so high, they’re going big, they’re going bold, they’re going east versus west. All you have to do is sign up and you’ll be assigned a team and matched with opportunities tailored to you and the causes you care about. But Save America will track how many calls you’ve made, text you’ve sent, doors you’ve knocked, and shifts you’ve filled as your team pursues the biggest prize of all the continuation of American democracy. Head to Vote Save america.com/20 24 now and get ready to organize or else. This message has been paid for by Vote Save America. You can learn more at Vote Save america.com. And this ad has not been authorized by any candidate or candidate’s committee.

 

Kate Shaw Strict Scrutiny is a Crooked Media production. Hosted and executive produced by Leah Litman, Melissa Murray and me Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollak. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support for Madeline Herringer and Ari Schwartz. And a huge, huge thank you to Rock Tinofrio, who is graduating this month from Penn Law School. She’s been a superstar research assistant to me and has helped out with quite a few things for the show. And we are so grateful to you and thrilled to watch your star burn ever brighter. Listeners, if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help others find the show, please rate and review us. It really helps.

 

Leah Litman You can do that rather than quiet quit your job.

 

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