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May 27, 2024
Strict Scrutiny
Time for Some Bad Decisions

In This Episode

There are more red flags flying from House Alito! Plus, that same guy authored an opinion in a major voting discrimination case, and somehow it’s worse than expected. Plus, Melissa and Kate talk with Shefali Luthra about her important new book, Undue Burden: Life and Death Decisions in Post-Roe America.

  • New merch alert!! Our new t-shirts and mugs are just thing for the hellscape to come in the final weeks of the SCOTUS term.
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TRANSCRIPT

 

[AD]

 

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

 

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

 

Kate Shaw I’m Kate Shaw.

 

Leah Litman And I’m Leah Litman. The band is back together and Kate Shaw is here to defend someone who was unfairly maligned last show. Not not Sam Flag Polito, but rather Kate herself, who apparently does know about the Kendrick Drake beef.

 

Kate Shaw I do. I think we have too much pressing news to cover today, and I also think that me doing my best recitation of the origins and present status of the Kendrick Lamar Drake beef would be like Drunk History or something like, I would just get lots of things wrong. I don’t think America needs that right now, but I did want to say I was aware of the beef, and my utter cluelessness really is mostly confined to television. Like I am aware in general terms of many developments in the worlds of music and film. It’s really just TV. So, you know, I just felt like I wasn’t here to defend myself last week, and I wanted to do that today.

 

Melissa Murray Okay. That’s very convenient that there’s so much going on that you can’t actually get into it.

 

Leah Litman But okay. Is that finding clearly erroneous? It might be, I am.

 

Melissa Murray Let’s take it back to the district court for fact finding or not, I say where.

 

Kate Shaw You guys can just declare it clearly erroneous and.

 

Melissa Murray By judicial fiat as it.

 

Leah Litman Worked. Exactly. Because we presume that Melissa and I say everything in good faith. And we said you didn’t know about the Kendrick Drake beef, ergo, it was true. So, as Kate said, we really do have a lot to cover today. So here’s what we have in store for you. It is time for a lot of bad decisions. Tis the damn season.

 

Melissa Murray Let’s make some bad decisions.

 

Leah Litman Let’s make a few. Flags, opinions, etc.. So we’re going to first cover the court’s opinion in the major voter discrimination case, Alexander, versus the South Carolina chapter of the NAACP. Then we’re going to have another lengthy court culture segment that will include the latest updates on scanned Alito, i.e. Sam, stop the steal, stiletto. And as promised, we will bring you up to speed on the justices appearances on the speaking circuit, and we will finally have a lightning round on other recently released opinions.

 

Kate Shaw I just scanned Alito. Stop Alito. I just feel like there’s can’t stop one stop energy with these names. There are so many opportunities.

 

Melissa Murray With the flags.

 

Leah Litman With Sam Alito. Right. Exactly.

 

Kate Shaw And also the name.

 

Leah Litman Flag to us with the Sam Alito nicknames, Red flag to them with all of the damn flag.

 

Melissa Murray I mean, Leah, I just I think it might be clearly erroneous to presume that he knew that the flag was an appeal to having flag, as opposed to the national flag of Lebanon. It’s an easy mistake to make.

 

Kate Shaw We presume House Alito acts in good faith in everything they deem to fly.

 

Melissa Murray Although it does say appeal to heaven on the flag. But I mean.

 

Leah Litman We’re getting we’re.

 

Melissa Murray Getting quite right.

 

Kate Shaw Okay. So just to finish off the roadmap, at the end of the episode, we’re going to have a special court culture segment featuring a conversation with Shefali Luthra about her new book, Undue Burden Life and Death Decisions in Post-roe America. So stay tuned for that.

 

Melissa Murray That’s also a Sam Alito segment, really.

 

Kate Shaw This is he is the star of today’s episode.

 

Leah Litman At your Service.

 

Melissa Murray You’re absolutely right there with a flag, planting a flag in your cervix upside down.

 

Kate Shaw You know what else? I think Sam Alito has a hand in the unconscionable delay that we are currently witnessing. In terms of the time that has lapsed between the argument in the Trump immunity case and today, when we, of course, have still no decision in that case, as of last Tuesday, more time had passed since the immunity argument. Then the time it took for the court to decide the Trump disqualification case, Trump versus Anderson. That decision took 25 days. And again last week, this delay exceeded that span. And by the time this episode is in our listeners ears, it’s going to be over a month since the court heard argument in the immunity case. And look, as May turns to June, the possibility of a trial actually happening before the election becomes ever more remote. And as we have said throughout, maybe that is the point, but it seems important for us to continue to, you know, time keep this matter.

 

Melissa Murray Kate, are you suggesting that the lapse in time between hearing this case and issuing a decision might have something to do with the justices views of whether or not the steal apparently happened, or whether this deal needed to be stopped. Is that. No.

 

Kate Shaw I presume we have to presume good faith, I think. See? No.

 

Melissa Murray I’m sure I think we should.

 

Leah Litman We can appeal to heaven if we want a quicker decision.

 

Melissa Murray That’s. That’s right. So correct.

 

Leah Litman Thank you. First up, as we noted, is the question is racial discrimination in voting actually fine. Since accusing people of racial discrimination is the real racism. Sam Alito has investigated this question and concluded that the answer is yes.

 

Melissa Murray As Leah suggests, we did get an opinion on a proverbial bad decision in the longest outstanding case on the court’s docket. Alexander. Well, I guess for now. Alexander. NAACP of South Carolina. Just a quick refresher on the facts of this case. This was the case where the South Carolina legislature redistricted after the 2020 census. The legislature had to redistrict because there were some underpopulated districts as well as some overpopulated districts. So there were too many people in some districts and too few people in others. And that violated the one person, one vote principle. Now, there happened to be an underpopulated district next to an overpopulated district, but instead of moving voters from the overpopulated district into the underpopulated district, which would have been a reasonable thing to do. The galaxy brains of the South Carolina legislature decided to shuffle voters around in both of these districts, basically moving some voters out of the underpopulated district, which basically exacerbated the whole problem.

 

Kate Shaw And South Carolina, importantly, kept the percentage of black voters the same in the underpopulated district, including by moving a large number of black voters out of that district, thereby ensuring that that district, which is Congresswoman Nancy Maze’s district, remained a safe Republican district rather than a competitive one, because obviously democracy and competition, electoral competition all overrated. So a three judge district court found this map was a racial gerrymander, an unconstitutional racial gerrymander, that is, that the legislature had essentially used race as a sorting mechanism, and that race had predominated in the legislatures restructuring of these districts.

 

Melissa Murray And last Thursday, we got the 6 to 3 opinion written by none other than voting rights enthusiast himself, Sam, stop the stiletto, who reversed the three judge district court panel, who had concluded that the South Carolina map constituted an invalid racial gerrymander. The Supreme Court upheld the South Carolina maps on the conclusion that race did not predominate, and the drawing of the maps. So let that settle it. I mean, the real question in this case was how to determine, in circumstances where race and partizanship often ran together because, for example, African Americans tend to vote Democrat. How to determine whether race predominated in the drawing of the map as opposed to partizanship. This Justice Samuel Alito yes, the one whose houses often fly flags, sympathizing with insurrectionists and other attempts to subvert democracy, actually allowed the South Carolina state legislature to use the undemocratic, racially gerrymandered map because it wasn’t apparently racially gerrymandered.

 

Kate Shaw So that’s the sort of substantive bottom line in terms of timing, which we were talking about a moment ago in the context of immunity. It is worth noting that this has been going on for quite some time. So the three judge district court panel, Melissa was just talking about, ruled in early 2023 that the map was unconstitutional, but it put its decision on hold while the Republican legislators appealed to the Supreme Court and the parties had asked Scotus to issue the decision in this case by January 1st, 2024. That’s, you know, six months ago, so that the maps validity could be determined before the South Carolina primary election, when the court didn’t do that, did not issue a decision anywhere near January 1st, that deadline. The district court panel threw up its hands and said the map, which it had determined was unconstitutional, would have to be used in the primary election. Really unfortunate. So basically, the court’s inaction in this case already guaranteed a win for Republicans in South Carolina. And now we get this opinion.

 

Melissa Murray So can I add something here? I mean, this is shades of Allen versus Milligan, where again, the court makes a decision. In that case, it was allowed the maps to be used in the midterm election, even though it later went back and said that the maps were impermissibly gerrymandered. The court does this all the time, like drags its feet on something even though an election is looming and in the end, basically through its inaction, winds up tilting the field in favor of one party. And that party is usually the Republican Party. And yet this is a completely legitimate court.

 

Kate Shaw So that was nice of you to say usually there, Melissa.

 

Melissa Murray You so I am I’m fair minded.

 

Kate Shaw Nothing if not.

 

Melissa Murray Fair, nothing if not fair minded.

 

Leah Litman There were a number of separate opinions in this case from the very legitimate court. So Justice Thomas wrote a concurrence in which he said, let’s maybe never hear racial gerrymandering or vote dilution claims at all. Maybe they’re not justiciable. He encouraged courts to possibly, quote, vacate the field and quote of districting, which I think would also call into question the one person, one vote principle, which prevents legislatures from cramming a bunch of people into one district, and not very many people into others, or by giving some people more political power. Another separate opinion by Justice Kagan was a dissent for the three Democratic appointees. The dissent said the majority has things, quote, upside down, just like the flag. Sam Alito and.

 

Melissa Murray Or do you think she added that in.

 

Leah Litman No. That wasn’t no. Okay. So obviously she didn’t say the flag. No, I. I bet that was in there before the flag. She just would be my sidekick.

 

Melissa Murray She’s like the Dionne Warwick of the court. She knew this was coming.

 

Leah Litman Well, well, okay, here’s the thing is, in Jodi Kantor story about the upside down flag, she reported that word about the upside down flag had made its way to the court right around that time. So it’s possible other people at the court knew about this well before any of us did. So maybe not adding in upside down after the story broke, but Upside Down was in there. And when did Elena Kagan know that Sam Alito’s house was flying? Stop the steal flags. Who is to say.

 

Melissa Murray Queen shit. Queen shit.

 

Leah Litman Total fucking queen shit. I mean, she also could have said, quote, his views are a lone pine among American law. But.

 

Melissa Murray An appeal. You know, it’s nothing if you will.

 

Leah Litman Right? An appeal to heaven. But it’s not. It’s possible she didn’t know about those flags. Anyways, bottom line on this Alito opinion, it’s bad. And it somehow, at least in my view, worse than expected after the argument. But about as bad as you would expect an Alito opinion on voting rights, racial discrimination, and voting to be.

 

Melissa Murray So Leah just said it was an Alito opinion about voting rights and it was bad. And that should end things. Q.E.D. but let’s go into it and explain why exactly it is so bad. So I’m going to focus on three reasons why it is so, so bad. First, this decision makes establishing a claim of racial gerrymandering exceptionally difficult, but at the same time, it makes it much easier for the Supreme Court to reverse a district court’s finding of racial gerrymandering. As Justice Kagan says in her dissent, quote, perhaps most dispiriting is what lies behind the court’s new approach its special rules to specially disadvantaged suits to remedy race based redistricting, end quote.

 

Kate Shaw So Justice Alito claims that the circumstantial evidence in this case that race predominated in the decisions about how and where to draw these map lines was weak. Especially, he said, in light of the lack of smoking gun direct evidence. And he came very close to holding. I don’t know if you guys thought he actually held. I couldn’t totally tell, but certainly strongly intimated that in a case like this, plaintiffs have to submit an alternative map. Or if there’s no way to make out a claim of racial gerrymandering. The Alito opinion also says the courts can draw.

 

Leah Litman And should we just say what an alternative map is? So when, you know, the suggestion is that plaintiffs would have to submit an alternative map showing that the legislature could draw districts that maintain the same Partizan balance, but without taking account of race or, you know, doing the same thing with respect to race.

 

Kate Shaw And this came up during the oral argument, and there was a real debate between Justice Alito and Justice Kagan. Justice Kagan asserted, I think, correctly, that the court’s prior precedents had disclaimed any requirement of the submission of an alternative map. But that is, I think, pretty clearly no longer the law of the land, although there’s, again, debate about exactly how much this Cooper case, that’s the earlier case. It looked a lot like this one is essentially repudiated by this opinion. But Alito basically says that what courts can do is they can draw an adverse inference when a party fails to produce highly probative evidence. And here he seems to mean direct evidence that the legislature specifically relied on race, like the legislature said something like, yeah, we did it. We did a racial gerrymander. We were focused on moving black voters into or out of particular districts. And that absent that, courts can draw an adverse inference, meaning an inference against those challenging a map as unconstitutional.

 

Melissa Murray It’s basically importing the disparate impact intent requirement into the voting rights arena, making it much harder to establish those claims. So, you know, one, it makes it harder to prevail in a racial gerrymandering claim. It makes it easier for the court to reverse it. It means that claimants have to have really direct evidence of intentional efforts to discriminate on the basis of race and drawing the maps. And then finally, the Alito opinion also says that courts must presume that the legislature acted in good faith, especially when they say they acted in good faith. And that makes the plaintiffs burden in these cases harder. And it allows Scotus again to second guess the district court’s conclusions that race predominated and how the legislature chose to draw the districts, even if there is a factual finding that, in fact, race did predominate. And that part is bonkers to me. Like, just presume the good faith of the legislature, okay? We’ve talked about this endlessly in our work on Dobbs, but I see you are chomping at the bit, so I.

 

Kate Shaw Just thought it was so interesting. Alito is so fixated on the good faith of state legislatures. He he talks about this presumption of good faith, presume good faith at least half a dozen times in the majority opinion in this case. And we have, as you just mentioned, Melissa, talked about this in the context of Dobbs. This is also present in his Dobbs opinion, which is like this notion that the only institutions of government that can be trusted are state legislatures. Okay, maybe other than Scotus like that, and they, of course can be trusted and then state legislators and. That’s it. Like not state courts, certainly not federal prosecutors, at least when a Republican president is under investigation or indictment. But these wildly gerrymandered state legislatures like got to trust those boys. And that just like, is one of the key through lines of this case. And they’re just like this reference like I just my eyes rolled so hard. So so Alito and I’m going to quote here, the federal judiciary is due respect for the judgment of state legislators who are similarly bound by an oath to follow the Constitution. It’s like, dude, that’s true about every government official, but the only ones you want to confer this presumption on is state legislatures and wildly gerrymandered ones. And I think that’s no accident.

 

Leah Litman So just some quick additional notes on the facts of this case. When Melissa is saying the court made it harder to prove racial gerrymandering, it’s worth just quickly recapping all the evidence that the plaintiffs in this case had. So the plaintiffs elicited testimony that the map draws here, had racial demographics literally in front of them, like they’re staring at them on the screen as they drew the maps here. Plaintiffs also had statistics on how statistics suggested this was about race. The state didn’t submit any countervailing statistical evidence or experts. Remember, this is what Justice Kagan had said about this case in the argument characterizing the plaintiffs case versus the legislature’s case. And as we’ve now noted, the court faulted the plaintiffs for not submitting an alternative map showing the legislature could have accomplished the same Partizan balance without taking account of race, even though the state had initially denied that it was engaged in Partizan gerrymandering, thereby suggesting the plaintiffs did not, you know, produce some alternative map or had their experts run, you know, additional regressions to determine how much partizanship versus race played a factor here and the court’s previous opinion. And Cooper had said that wasn’t required. And yet the court still says no, no, no district court finding that race predominated, clearly erroneous.

 

Kate Shaw Yeah. Okay. So second thing we wanted to drill down on is just the overpowering strong grievance energy in this opinion. Leah alluded to it up at the top of our discussion. But basically the thrust of this opinion seems to be the real racism or the real racists. Are the people accusing racists of racism rather than the people doing the racism? Did I like basically distill that properly? I think that’s what he’s claiming.

 

Melissa Murray The real racists are the people who claim racism. They are.

 

Kate Shaw It’s civil rights lawyers are the real racists. Yeah.

 

Melissa Murray So right here is racism.

 

Kate Shaw That’s right. We can even just excise the lawyers from that claim. So, you know, in explaining why courts have to presume that legislators acted in good faith, the Alito majority says, quote, when a federal court finds that race drove a legislature’s redistricting decisions, it is declaring that the legislature engaged in, quote, offensive and demeaning, unquote, conduct that bears an uncomfortable resemblance to political apartheid. We should not be quick to hurl such accusations at the political branches. So, okay, so the witness is here.

 

Melissa Murray Apartheid.

 

Kate Shaw Right? Not you, Sam Alito hurting.

 

Leah Litman Their feelings.

 

Kate Shaw But it’s like it’s civil rights lawyers bringing these claims. And then it’s district courts accepting these claims. Those are the real racists, it seems in this formulation.

 

Melissa Murray So there’s a lot in this opinion. So Kate’s identified you know, the second thing like this, the big grievance energy, the third thing that we wanted to identify here is what this opinion says about this court as an institution. So the chief justice was in the majority here. So that means he had the prerogative of assigning this opinion to anyone in the majority, including himself. And with that prerogative, the Chief Justice of the United States decided to assign this opinion to none other than voting rights hero Sam Alito, the same man who has gutted the Equal Protection Clause for voting in cases like Abbott versus Perez, and dismantled section two and Brnovich versus Democratic National Committee. That’s the guy you got to write this opinion about racial gerrymandering.

 

Leah Litman Well, it’s not like he has a.

 

Kate Shaw Lot of good options, but like.

 

Melissa Murray He imagined.

 

Kate Shaw Like looking around the conference room. And that’s who you choose. Like what?

 

Melissa Murray I mean, like Brett Kavanaugh was like, pick me. Me. He was.

 

Kate Shaw Right there.

 

Melissa Murray You know, not that.

 

Kate Shaw It would have been that much better, but I do think the grievance energy here is just, is just really all been possible in an elite.

 

Melissa Murray Class. The real racists are the folks crying about race.

 

Leah Litman But it’s important to note that all of the other Republican appointees joined that opinion, right? Like they are not so turned off by that grievance energy and all of the other problems in here that they were like, Sam, want to take that.

 

Melissa Murray Out or tone that.

 

Kate Shaw Among they did. And this is this is the tone down. Right.

 

Melissa Murray Well, I mean, I was going to say because Clarence Thomas was like, I would go further and just completely render racial gerrymandering a non justiciable political question, per Russo. And so maybe this was the chief justice literally splitting the baby. Oh my.

 

Leah Litman God, maybe that’s right. But it is notable that this opinion is released the very same week. We learn Sam Alito’s houses displayed multiple flags showing sympathy for election denialism, insurrectionists and Christian theocracy. Like that guy, the one with several houses with those flags. Basically calling on MAGA heads to seize political power by any means necessary, including coups and advocating for using political power to impose a Christian theocracy and then blaming it on his wife like he just made up some legal rules that make it easier for Republican states to engage in redistricting to help white Republicans maximize their political power. Like the political movement and his jurisprudence are totally aligned. And Alito had the gall, the utter gall to write in this opinion, quote, we must be wary of plaintiffs who seek to transform federal courts into, quote, weapons of political warfare, end quote, that will deliver victories that eluded them in the political arena. End quote. This is literally Sam Alito’s entire jurisprudence. And again, I get that the other Republican appointees, at least as far as we know, are not displaying stop the steal flags or appeal to heaven flags which will describe in a second. And yet they are joining this opinion that furthers this political agenda with all of this grievance narrative. And it’s wild.

 

Kate Shaw Yeah. So there’s a lot in the Kagan dissent that we need to talk about. But can we take another beat on the Thomas concurrence first, because Melissa already alluded to this. Right. But it’s you know, he is suggesting that just as the court decided that partizan gerrymanders are non justiciable, he is suggesting the court do the same thing with racial gerrymanders. And also, I think with population based challenges like he is suggesting that the court went astray in the one person, one vote line of cases, beginning with Baker versus Carr, Reynolds versus Sims, and many, many cases that follow those two. And I mean, that is a truly stunning suggestion, right? So if there’s no one person, one vote, just so people understand what this means, a state legislature that’s already wildly partizan gerrymandered could be like, okay, we’re going to give all of the rural counties in, you know, Alabama, like all the rural, mostly white counties, a huge amount of power in the state legislature. And like one seat out of 100, could go to the more diverse cities in the state of Alabama. And the federal Constitution would have nothing to say about that. And federal courts could do nothing about that. Like that was the state of play before the one person, one vote cases required population equality and legislative representation. And I think Thomas is saying we should dial the clock back.

 

Melissa Murray Well, I mean, it’s even, I think, more troubling than that because previously all of these redistricting cases prior to Baker versus Carr had been brought under the guarantee clause, which had since the 1800s been understood to be framing a non justiciable political question. But in Baker versus Carr, the court determined that when you thread these cases through the Equal protection clause, they actually are justiciable. They present an actual legal question that the court can address. And Thomas is basically like, no, get out of federal court entirely. All of this, anything to do with whether or not race is used to draw these districts or to balance these districts, or even to be considered in the representation of the legislature or any other democratic organism like the courts have nothing to say about it. This puts us all the way back to the pre Baker versus Carr times, where black people in the South couldn’t be represented. I mean, we’ve already hobbled the Voting Rights Act to return racial gerrymandering to the pre Baker State I think just finishes it off. And you have true distortion in the electoral landscape. And it seems like that’s exactly what he wants.

 

Kate Shaw I mean I was trying to remember I know that there have been we have assumed that he and some of the others in the rural majority are skeptical of the logic of Baker versus Carr in the one person, one vote cases, but I’m not sure I remember him saying it as explicitly as it is here, and I find it chilling.

 

Leah Litman I thought, didn’t you?

 

Melissa Murray And well, you.

 

Kate Shaw And I and even, you know, even while.

 

Melissa Murray We’ve already seen the chaos that the shift to rendering Partizan gerrymandering and not just a simple political question has has done right. So because race and political preferences are so closely aligned, there’s huge incentives for state legislatures to frame what are actually racial gerrymanders in the lens of Partizan gerrymandering to get them outside of the courts, the federal courts. But if they take racial gerrymandering and make that a non-negotiable political question, all bets are off and they can just be balled about it all of the time and there’s nothing anyone can do about it. Redistricting commissions, all of this. I mean, none of this is going to be able to address that, at least not in a way that provides relief immediately and in time for it to have real effect in the democratic process.

 

Kate Shaw Okay, so that’s an ominous concurrence for him alone. He doesn’t yet.

 

Melissa Murray Who does? He’s not. But ominous concurrence as lone concurrence is and folks will say he’s by himself on this one, but it doesn’t matter. He will farm this out to the Fifth Circuit, where his acolytes will husband this into a flowering thread of jurisprudence, and it will make its way back to the Supreme Court, and they will eventually do it if they have a majority to do so.

 

Kate Shaw Right. It’s very much depends on what the court looks like. And yeah, two years, five years. Okay. So we also wanted to highlight a few things about the Kagan dissent. And as we’ve already mentioned, it repeatedly accuses the majority of basically turning alito’s dissent in Cooper into the law. And remember, Kagan, wrote Cooper, so she knows where she speaks.

 

Melissa Murray The second thing that’s really worth noting about the Kagan dissent is that she is the queen of the callbacks. She responds to the grievance energy of the majority by invoking SFA versus Harvard against them. So she notes, quote, this court is not supposed to be so fearful of telling discriminators, including states, to stop discriminating. In other decisions, the court has prided itself on halting race based decision making wherever it arises, even though serving far more commendable goals than Partizan. Advantage end.

 

Kate Shaw It basically says explicitly that the majority thinks the real racism is civil rights litigation and accusations of racism, as we were saying earlier. So let me just quote from Kagan. So the problem was more with challenging racial gerrymanders than with putting them into place. The suspicion and indeed derision of suits brought to stop racial gerrymanders are self-evident. The intent to insulate states from those suits, no less so.

 

Leah Litman And we wanted to highlight a few sentences from the closing paragraph of her dissent, which says, quote, what a message to send to state legislators and mapmakers about racial gerrymandering. Those actors will often have an incentive to use race as a proxy to achieve Partizan ends, and occasionally they might want to straight up suppress the electoral influence of minority voters. Go right ahead. This court says to states today. And so this odious practice of sorting citizens built on racial generalizations and exploiting racial divisions will continue in the electoral sphere, especially where ugly patterns of pervasive racial discrimination have so long governed. We should demand better of ourselves, of our political representatives, and most of all of this court. Respectfully, I dissent, Elena.

 

Melissa Murray Why? Respectfully, I don’t.

 

Leah Litman Know. I don’t know. Same note, same same note.

 

Melissa Murray I did like the use of odious, which was a callback to the affirmative action cases.

 

Kate Shaw Yes. That’s good. Is she going to have to drop respectfully in some other cases, coming up and wants to hold her fire?

 

Leah Litman I’m taller.

 

Melissa Murray I mean, can we talk about that for a minute? Like we’re just getting started and, you know, we’re already on the precipice of demolishing one person, one vote or one decision into bad decision season.

 

Leah Litman It’s not even June. It’s not even.

 

Melissa Murray June about that. Yeah, like, I mean, what hellscape are they preparing to unleash?

 

Leah Litman Well, Sam Alito did give us some clues. Based on the latest flag we learned he flew.

 

Melissa Murray Sure. Heaven scape, not a hellscape. Okay.

 

Leah Litman We’re going to take a quick break, but we have a favorite task. This time of the year is the most important for the show and our audience. So if this show helped demystify some bad decisions, some questionable flags, or some red flags in the bad decisions, make sure to subscribe and share with your friends. Thanks for your support.

 

Leah Litman [AD]

 

Melissa Murray All right, well, that seems like as good a time as any to transition to court culture. First up, a new segment that we are piloting that is called We’re Working Out titles. But one possible tentative title is the Red flags all over the Supreme Court. So right. And tell us if you like that one. Or alternatively, Sam Alito, a red flag at the Supreme Court. Also an option. I don’t know which one I like better, I think. I’m not sure. I mean, could go either way, but in any event, move over. Sandoval. There’s a new scandal laden bitch in town. That’s right. We have more scandal. Alito news to cover listeners. Specifically, more news about our friend of the pod. Sam, stop the Alito and how deep he is into the project. 2025 Q anon libs of TikTok world, otherwise known as the court’s best and finest Fox grandpa.

 

Kate Shaw But it’s so much deeper than that, even. I mean.

 

Melissa Murray Fox Grandpa is kind of a compliment at this point.

 

Kate Shaw I think that’s right. Okay, so brief recap as you will, that’s.

 

Leah Litman The Canadian Republican justice on the court.

 

Kate Shaw Yeah, yeah, yeah, he is now no longer anywhere near that. But just to quickly recap sort of what happened before the most recent events. So Leah and Melissa, in their epic last episode, described Jodi Kanter’s reporting her initial reporting on the fact that, the Alito.

 

Melissa Murray So we did miss you. Like, I mean, we did miss you.

 

Kate Shaw I love when I, I mean, I prefer to be here, but it’s it like we and I just.

 

Melissa Murray I’m like, from a trip abroad and your house is a total disaster because we felt like it’s a little chaotic.

 

Kate Shaw No, it was the best I like downloaded it at 7:00 on Monday morning and was howling with laughter. You guys were amazing. But we missed. Anyone. Missed it? Let me just. I can’t do it to thank you, but I can’t do it justice. But I will briefly recap Jodi’s reporting, which was, you know, much of what you guys talked about, which is that the alito’s home in the DC suburbs displayed an inverted American flag on the eve of Joe Biden’s inauguration. Just a few days before January 20th, 2021. By that point, the inverted flag had become a symbol of the stop the Steal movement. Some January 6th was carried it as they stormed the Capitol. Lots of homes in MAGA areas of the country flew the same, and Alito did give some comments to the times. He did not deny flying the flag, or he did not deny that his house flew the flag. And he did not deny that the inverted flag has this maga J6 meaning. But rather his statement actually, to me, seemed to kind of accept the semiotics of said inverted flag, because, you know, he basically said there was a reasonable explanation, which is that his wife hoisted the flag in response to a neighbor displaying an F trump sign and then possibly displaying another unspecified sign that attacked Alito or the alito’s personally. And then the neighbor called his wife the C word in an altercation. So on alito’s own telling the fight was about.

 

Melissa Murray Trump, the C word was q Q starter.

 

Speaker 1 Yeah.

 

Kate Shaw And so the flag goes up. And so I don’t think his telling in any way refutes, again, the semiotics of the flag, even though there are commentators out there who have tried to do that.

 

Leah Litman Well, we’ll talk about that in a second.

 

Melissa Murray Hey, a letter has been working overtime on Twitter.

 

Kate Shaw Who could have.

 

Leah Litman Predicted. No, it just leaned into the whole we were just owning the libs, right? Like they insulted me. And so I had to express support for a coup. Right? It’s the perfect meme of Joe Biden. I don’t know, like, did something I don’t like. Therefore, I need to support the guy who’s playing footsie with Nazis. Right? Like the that whole shtick. Anyways. So Jodi Kantor of The New York Times had another story about another flag flown by House Alito, this one at their Long Beach Island, new Jersey home in summer 2023. So I know we all thought the Jersey shore was nothing but gym tan, low energy duty, but it turns out GTL was actually Jim Tan loudly voiced support for insurrections and Christian Theocracy. I’m not sure.

 

Kate Shaw They’re doing much gym tanning in the Alito household either, but go on.

 

Melissa Murray There’s definitely DTC.

 

Leah Litman Down to go. So Jodi Cantor’s latest reports that House Alito was proudly displaying a new flag this time, right side up. And what flag did Sam and Martha and wave loud and proud? The appeal to Heaven flag, which is another flag flown by January 6th ers also sometimes known as a lone pine flag.

 

Melissa Murray The appeal to having flag or the Lone Pine flag, as it is known, has a lone pine tree and the words appeal to heaven on it. And it traces back to the American Revolution. But it has fallen into relative obscurity over the last couple of centuries until recent years. As Jodi Kantor reports, the flag has resurfaced as a symbol of support for former President Donald Trump for a religious strand of the Stop the Steal campaign and for a push to remake American government. It in Christian terms and quote, literally, this is an appeal to resist unjust government and impose a Christian order on the country. And it is closely associated with the New Apostolic Reformation theological movement, which has strains of Christian nationalism, Dominionism and the Seven Mountain Mandate. If you don’t know what those things are, get on Google and find out because it’s real, real big Gilead energy and you should know about it. And it basically posits that all of the institutions of government and society, including the media and education, should be controlled by Christian evangelicals in accordance with the teachings of Christianity. And this was the flag that House Alito chose to display at the beach in July, August and September of 2023. And it has also been noted by Andy Kroll of ProPublica that this particular flag, the appeal to have been flag, has also flown outside of Leonard Leo’s house as well.

 

Leah Litman So we will discuss this, though we’ll note that House alito’s second pro, theocracy Anti-democracy flag, is really raising some questions already answered by House alito’s first Anti-democracy flag, but we need to add a few more news items in order to frame the discussion. And that is Chris Gardner’s, who runs the indispensable Law Substack newsletter. Chris Gardner broke the story that suggests Sam Alito might have participated in the culture war boycott of Bud Light.

 

Melissa Murray Brett Kavanaugh would never. Chris Geithner’s exclusive on Law talk goes a little like this. So you might remember last summer, the MAGA elements got all worked up about Bud Light and called for a boycott of Bud Light because they are real Americans. And it was a boycott that was animated by the fact that Bud Light had included trans people in a marketing campaign. On August 13th of 2023, the libs of TikTok creator posted on Twitter an anti-trans message about one of the transgender people who had a small role in the Bud Light marketing campaign. And the day after the libs of TikTok’s latest posts to stoke the anti-trans fever around that Bud Light boycott, one Samuel Alito sold his shares in Bud Light and purchased stock in another beer company. But lights rival Coors still conservative but not using trans people in their marketing campaigns.

 

Kate Shaw I mean, huge props to Geithner for putting the timing of all of that together. That was amazing reporting. And also, I think it just like helps us have a more holistic discussion about like, what we have learned about Sam Alito in the past week to two weeks of our national.

 

Melissa Murray Can I say something about that? So there are folks all over Twitter saying that, like Geithner going in on this Bud Light stuff is just like real small potatoes. Not a big deal. But again, it’s like all of the evidence, like collectively, not just by itself. Like you have to look at it as sort of like a web, like a collective web of information that really gives the impression that this is a guy who’s really deep, deep, deep in this wormhole. And that’s what we want to discuss.

 

Kate Shaw So I think the Bud Light stuff is pretty scandalous on its own, but certainly in the context of the of the flag flying. I mean, look, they shouldn’t be buying and selling individual stocks at all, and they certainly shouldn’t be doing it in response to, like, a call going out from libs of TikTok, which seems like this is what was happening. Mark?

 

Melissa Murray Yeah, get our brother.

 

Speaker 1 On the phone right now.

 

Leah Litman Okay. But here’s the thing. Here’s the thing. Imagine a Supreme Court justice just sitting there during his summer recess, like angrily refreshing the libs of TikTok feed, getting increasingly agitated. So he has to, like, move around small amounts of his money in order to send some sort of weird culture war grievance signal. Like it’s just so small and pathetic.

 

Melissa Murray There it is. Yes.

 

Leah Litman But very MAGA.

 

Melissa Murray Leto. Yeah. So. So what does this all say about Sam Alito? And I think what we’re putting together is like, he’s he’s deep in it.

 

Kate Shaw Yeah. And he just deeper in it then insofar as the kind of conservative ecosystem has different chambers in it, we knew he was deep in the Fox News chamber. But there are like darker and more far right chambers. And I think he is in all of them. I think we have piece.

 

Melissa Murray Of the circle with Brutus and Cassius like the final circle. Right. Well, we had said this before. Right. So this is the first time we’ve surfaced the idea that Sam Alito is like deep, deep, deep into all of this. So let’s roll some tape. We’ve been here before.

 

Leah Litman If you consume Fox News nonstop, you are aware that there is a suggestion out there in that metaverse about how President Biden may have given money to Iran and that this is some huge constitutional crisis. And so. This is Sam Alito channeling that theory and suggesting, well, maybe states would go ahead and disqualify Biden because he gave money to Iran. Again, you truly cannot understand this man unless you watch Fox News nonstop and just scream at the television like an angry old Fox News grandpa. And as we were saying, you know, I know some people last flag story, wondered, well, I didn’t know the upside down flag was a symbol of stop the steal. So how do I know the alito’s do? And it’s part of this that I think Geithner’s reporting, as well as Jodi’s latest, really rebuts. Right? Because people who are in this world know what it means, right? Like Leonard Leo was flying appeal to Heaven flag. This is someone who, again, is spending his summer recess getting just increasingly worked up over the libs of TikTok, encouraged, you know, anti-trans boycott. But I yeah, I.

 

Kate Shaw Mean, they knew what this meant.

 

Melissa Murray Just in terms of just some reforms like Supreme Court justices should not have individual stocks, just get a fucking mutual fund like everyone else, right?

 

Kate Shaw Yeah. Blind trust.

 

Leah Litman But then how could you move smaller dollar amounts around in order to, like, get at your petty conservative on the left?

 

Melissa Murray Like, what are you going.

 

Leah Litman To do, right? I mean.

 

Melissa Murray You may just have to do it through your opinions like a normal justice. But these.

 

Kate Shaw Strains of defense, either they might not have known what the upsidedown flag meant or. But you were.

 

Melissa Murray Flying a flag upside down. You know, that’s not good. You’re not even supposed to do that.

 

Kate Shaw No. You know, look, you know, Supreme Court has said, like, you know, you can’t constitutionally be punished for disrespecting a flag. But there is a, you know, predatory federal statute that says you’re not supposed to do this except in, like, dire emergencies and also like they’re the ones who say they are the true patriots. Like, you can’t just.

 

Melissa Murray Like, well, so the flag and claim the mantle.

 

Kate Shaw Of patriotism, right? Sure did.

 

Melissa Murray Did you see the Bud Light commercials? It was an emergency.

 

Kate Shaw So there’s that. They’re like, you know, who knows what what the symbolism was. They may not have known or it was justified. That’s as to the inverted flag as the appeal to heaven flag. There’s also like an online contingent that seems to be suggesting.

 

Melissa Murray They probably thought it was a Lebanese flag.

 

Kate Shaw She thought George Washington flew this. And it’s just like it’s it’s just an insane claim. Flags signify something when you fly them outside of your home, right? Like so. Rainbows are sometimes associated with like, leprechauns and pots of gold. And if you fly a rainbow flag outside of your home, that’s a pride symbol like that signifies LGBT, either identity or solidarity. And it is understood as such. So the fact that a rainbow can mean other things in other contexts does not mean that a rainbow flag is not generally understood as a pride flag. And like that seems obviously true here. Even if this flag had some very, very long distant history of use in non J6, MAGA, Christian nationalism, message making. And so it just seems preposterous to me that anyone is claiming otherwise.

 

Melissa Murray And though we know he’s not going to do it, we should be talking about recusal. You’re actually I’m going to be really honest. When I hit my hand here, I think we should be talking about impeachment. Like, I’m not naive enough to suggest that that’s even on the table. But if Thurgood Marshall had spent the summer of 1972 getting a black power tattoo on his upper bicep, I don’t think he would have been a justice for very long. And then walking around like Arundel County with that.

 

Leah Litman What if Fox News got Ahold of, I don’t know, Ketanji Brown Jackson flying a BLM flag? Oh, right over.

 

Melissa Murray Goodbye.

 

Leah Litman Right, right.

 

Melissa Murray He should like he shouldn’t be on the court. I mean, but this is like Joe true. Like, fuck you energy. Like, I mean, it’s just like he knows that there is no accountability. The chief justice isn’t going to do anything. Congress isn’t going to impeach him. He’s not going to be removed from office. He’s in the seat for life and he knows it, and he’s just going to do what he wants.

 

Kate Shaw That observation, Melissa is just says something deep about the psychology of doing this right, like it is, I really am. So assume assume that maybe Martha and does hoist the Upside-Down flag. He hasn’t said anything like that about the appeal to have flag. Like, what animates doing that? Like, do you think no one’s going to notice, or is it really the ultimate display of fuck yeah. Like, yeah, no one can.

 

Leah Litman Touch me owning the libs, but.

 

Kate Shaw Also just like the, you know, just the unbelievably imperious sort of display that it reflects is just I just kind of can’t get my head around it. But he thinks no one’s going to check them personally, institutionally. And right now we’re all proving him right.

 

Melissa Murray Well, Lee, but Lee and I wrote this op ed in the LA times about Justice Alito about a year ago when he was like all of a dither about like how everyone is disrespecting them. And it really felt like he had big king energy, like, you know, the divine right of kings. No one’s supposed to criticize me like no one’s supposed to, like prophecy against me or whatever. And it’s the same kind of thing. I can do whatever I want, and I can do it. Even as the court on which I sit, it’s hearing cases that relate directly to the subject matter that is implicated by. These flags.

 

Leah Litman So as Melissa and I talked about last episode and I said, I think we’ve talked about before, you know, it’s no secret that it seems like Alito and Thomas want Trump to win so that they can retire under Trump and be replaced by a bunch of 30 year old men’s rights activists, you know, appeal to heaven.

 

Melissa Murray Andrew Tate for the corporate.

 

Leah Litman And right, Andrew Tate for the Supreme Court. That would, be or not outside the realm of.

 

Kate Shaw Aspiring entertainer Josh Hawley, maybe more plausibly.

 

Leah Litman So. Trump, after we recorded the last episode, actually explicitly spoke about appointing young justices to the court. So let’s play that clip here.

 

Show Intro Then I called up my people and I said, I have a guy from New York who’s an incredible lawyer, has got the right temperament to be a really great judge. Oh, good sir, how old is he? I said, he’s 69, sir, so he’s going to be there for two, three, four years. We like people in their 30s, so they’re there for 50 years or 40 years we don’t want. And as soon as they said that I realized, yeah, they’re exactly right.

 

Kate Shaw So clearly they’re thinking about going as young as possible. Fetuses and Alito and Thomas are definitely gonna retire. I agree with that. Although I texted you guys when the second Jodi Kantor story broke, second of I don’t know how long the series is ultimately going to be. I don’t know how many houses the alito’s have. This might be it, but they’ve I’m sure got cars. Do they have a boat? Who knows? Anyway, I.

 

Leah Litman Mean, it’s too bad Google Street View can’t see into their closets because I want to know what other color robes he’s housing. That’s got to be a red wine.

 

Kate Shaw Yep. And what the.

 

Leah Litman Is there a white one in there? I’ve got questions.

 

Melissa Murray You spicy today, Leah. Okay.

 

Kate Shaw But but I had this notion that maybe it’s not retirement so much as, a resignation from the court in order to serve. If Trump wins as the attorney general, slash white House counsel in a Trump in a second Trump term. And I feel like Sam Alito might be interested in doing that.

 

Melissa Murray Jonathan Mitchell be.

 

Leah Litman To personally prosecute me for existing. And then I would be left begging Brett Kavanaugh to save me from jail. And this is this is fate.

 

Kate Shaw This is truly a hard time to contemplate appealing. Yeah. Separate Kavanaugh to save us. All right. That’s what really cool, right?

 

Melissa Murray The bottom line is he’s flying flags, letting his freak flag fly over all his houses. And you know what’s going to happen? Freak flags. Freak flags. We knew that. We knew as a plural. But you know what’s going to happen? Abso fucking nothing. Nothing. And that’s why he’s going to keep doing it. Because, as Sheree Whitfield said, who? Go and check me, boo. Nobody. Nobody’s going to check him unless the voters check him. And again, there are a lot of people out there who don’t seem to realize the court’s in the balance here, but whatever.

 

Kate Shaw People don’t. But I think the optimist I mean, you’re saying they are they’re realizing it more.

 

Melissa Murray And I hope the.

 

Kate Shaw Democrats keep talking about it more that hopefully will land. So, you know, sending that message out into the ether.

 

Melissa Murray You know, who’s also sending messages out into the ether? The justices, they’re all on the speaking circuit.

 

Kate Shaw Yes, that’s true. And not just the Alito household. Justice Thomas has been sending messages out into the ether. He spoke recently at the 11th Circuit Judicial Conference, where he was interviewed by his former law clerk, now Florida District Judge Katherine Mizell. She is the one, if the name sounds familiar, who invalidated the mask mandate applicable to transportation hubs on airplanes, things like that. Justice Thomas, in his interview with Judge Mizell, had some takes. Let’s get some highlights.

 

Leah Litman So first, he wanted you to know that he gets free vacations from billionaires because people are mean to him. So, quote, especially in Washington, people pride themselves in being awful. It’s a hideous place as far as I’m concerned, because the rest of the country, it’s one of the reasons we like our being. You got to be around regular people who don’t pride themselves in doing harmful things merely because they have the capacity to do it. And quote. So question is getting free RVs from billionaires or free PJ trips from billionaires a better or worse response to people being mean to you than flying an election denialism pro coup flag.

 

Melissa Murray It’s tough call. Tough call. I don’t know, Leah.

 

Leah Litman Okay, well, we might run a poll.

 

Kate Shaw Also, I just have to say if DC aso hideous like you have an option here, which is you could pull a David Souter and step down clearance. Although maybe it may be that the invitations would evaporate if you’re no longer sitting on the Supreme Court, and that might be a disincentive to doing that. But the option is there.

 

Melissa Murray Justice Thomas also had some thoughts on his press coverage. More generally, he had this to say, quote, my wife and I the last 2 or 3 years, just the nastiness and the lies. There’s certainly been a lot of negativity in our lives, my wife and I over the last few years, but we choose not to focus on it. End quote. I mean, what to say here? What is the nastiness, exactly being hauled before Congress to testify about sending text messages to the white House counsel during an interrupted coup. Does that nastiness. I mean, who’s to say? We can only assume that with all of this nastiness, the Thomases decided with some restraint not to fly an upside down flag at their house. But the alito’s. The alito’s no such restraint. They’re there. They’re just over the.

 

Kate Shaw Edge over it.

 

Melissa Murray NBC news reported that Justice Thomas has also said, quote, they don’t bomb you necessarily, but they bomb your reputation or your good name or your honor, and that’s not a crime. But they can do as much harm that way. End quote. These are deep.

 

Leah Litman Takes. Deep, deep takes.

 

Kate Shaw Not to be outdone, Brett Kavanaugh spoke at the Fifth Circuit Judicial Conference, where NBC reports that he opined on how, quote, court decisions unpopular in their time later can become part of the fabric of American constitutional law. Close quote. I mean, keep telling yourself that, Brett. I mean, I suppose it’s better than the venting, that we thought from, Justice Thomas. But if that’s what you’re telling yourself, Brett, about the way your opinions are going to stand the test of time.

 

Melissa Murray I think that’s actually like.

 

Kate Shaw I got news.

 

Melissa Murray For you. Yes, that’s a more insidious comment, because, like, this whole court has been on a year long campaign to reframe Dobbs as the heir to Brown versus Board of Education. Like, you know, the bad decision is roll in the same way Plessy was the bad decision. Yeah. And Dobbs merely corrected the error that Rowe created. And those who objected to Dobbs are no better than the segregationists who objected to or tried to resist. Brown, like the chief justice, did this in his 2022 year end report. And now he is doing it like just the Dobbs Brown comparison is bullshit.

 

Kate Shaw And they’re the Warren Court standing firm against public outcry. This is just Judge David Dobbs. Critics are the, you know, impeach Earl Warren. Are the.

 

Leah Litman Segregationists.

 

Kate Shaw Yeah. Exactly. So yep, yep. There’s a through line and all throughout this there is.

 

Leah Litman Yes. And of course, as a fellow pick me boy of the Supreme Court, Justice Alito also went out on the town and he needed some applause and validation. So he delivered the commencement address at Franciscan University of Steubenville, a school that bills itself as a pro-life university. So when the university president introduced Alito as a speaker, the president mentioned alito’s opinion in Dobbs. And Alito got a standing ovation, which, you know, is all he wants in life. Alito reportedly offered the graduates some advice, which included, quote, the need to be rigorous and disciplined in identifying the things that are really fundamental and, quote, like rights, right. He also emphasized, relatedly, the importance of, quote, holding fast to traditions, end quote. Basically, Sam Alito walked at a commencement address so Harrison Butler could run.

 

Kate Shaw Okay, let’s do a lightning round on the other opinions the court gave us, in addition to the voting case that we talked about at the top of the show. And then we’ll move on to our interview. First up in the Coinbase case, a unanimous Jackson opinion. The court held that if parties sign two contracts, one of which sends disputes to arbitration and the other to courts, courts will decide which contracts provisions govern.

 

Leah Litman The court also released an opinion in Brown, Jackson versus United States. This was an Alito opinion in an ACA armed career criminal act matter. Another not good indication. The issue in the case was whether a prior conviction counts as a controlled substance offense for purposes of ACA’s enhancement, and the court said whether a prior conviction counts depends on whether the substance was listed as a controlled substance at the time of the state conviction. That is, if the federal government reclassified the substance as not a controlled substance, your conviction involving that substance can still increase the time in prison that a federal court can impose on you. Justice Jackson dissented with Justice Kagan and Justice Gorsuch in part.

 

Melissa Murray There is also a decision in Harrow versus Department of Defense, where the court held that a filing deadline is non jurisdictional. It does not affect the court’s power to hear the case. So if a party doesn’t raise the other parties noncompliance with the filing deadline, it’s probably no obstacle to the court hearing the case. And that case arose out of protections for federal employees. A federal employee may challenge an adverse personnel action before the Merit Systems Protection Board, and can appeal any ruling to the Court of Appeals for the Federal Circuit within 60 days. The court held that that 60 day deadline is not jurisdictional.

 

Leah Litman This was a short, unanimous Kagan opinion, so she is now had four opinions. Justice Sotomayor has now had five free tip based on this case. Harrow to incoming law clerks. Statutory requirements like filing deadlines are basically never jurisdictional. So don’t say that they are.

 

Kate Shaw The Supreme Court also decided Smith versus Sperry. This was another unanimous opinion, this one by Justice Sotomayor, which held that a stay of proceedings in federal court is warranted when a party requests arbitration of the claims under the Federal Arbitration Act. Section three of the FAA says that when a dispute a subject arbitration, the court shall, on application of one of the parties, stay the trial of the action until the arbitration has concluded. Let’s go to said that section three doesn’t permit a court to dismiss the case instead of issuing a stay when the. Dispute is subject to arbitration and a party request to stay pending that arbitration.

 

Melissa Murray All right. We’re going to take a break, but when we return, we will have more in our homage to Justice Alito and everything that he has done to make America great again. Joining us for the next segment is Shefali Luthra of the 19th, who will be discussing with us her new book, Undue Burden. Life and Death Decisions in Post-roe America. And if there’s something in this part of the podcast that made you laugh, giggle, cringe in fear. Well, make sure to subscribe to strict scrutiny and share us with your friends. We really appreciate your support.

 

Melissa Murray [AD]

 

Melissa Murray We are delighted to be joined by Shefali Luthra for a conversation about her important new book, Undue Burden. Life and Death Decisions in Post-roe America. Shefali is an award winning health policy reporter covering the intersection of gender and health care for the 19th, an independent and indispensable nonprofit news organization reporting on gender politics, law, and policy. Many of the things that we at strict scrutiny care most about. She’s also written for The New York Times, The Washington Post, and NPR, as well as other outlets. So, Shefali, welcome to the pod.

 

Shefali Luthra Thank you so much for having me.

 

Kate Shaw So, Shefali, we wanted to have you on the pod to talk about your terrific new book, which is this incredibly well-reported and sobering look at the on the ground reality of pregnancy and of trying to end a pregnancy in this post ROH world we now inhabit. And we have talked on the show a lot about the cataclysmic impact of the end of ROH, but the book gives real texture and detail through a number of riveting and enraging stories that really help explain what it means on the ground to be pregnant, and to be considering or trying to end a pregnancy across the country. So maybe let’s begin with a general question, and this is something you say right at the beginning of the book. You describe the end of ROH as a public health crisis, and I very much agree that it is. And you also say it’s one for which the country was profoundly unprepared. And I wanted to ask you to elaborate a little bit on this. So in what ways was the country unprepared? And, you know, maybe more importantly, why this was not something that a lot of quarters did not see coming.

 

Melissa Murray So we told you we told them it was going to happen.

 

Shefali Luthra And to your point, I think if we look back two years ago or even prior to that, there had been so many clues, not just in the long term, but in the quite short term, that ROH was about to be overturned. There was SB eight being allowed to take effect in Texas. There were the oral arguments of the Dobbs decision, in which it seemed quite clear that there were the votes to overturn Roe. And then there was the leak in May that showed us exactly what the court was going to write, how they were going to overturn this decision. And what was so striking to me was that, for whatever reason, people in Washington who I spoke to didn’t seem to be able to fully grapple with what that could mean. And when we came then to that day at the end of June 2022, when ROH was overturned, suddenly abortion bans began taking effect. What I remember hearing from clinicians across the country was just absolute chaos. They had done their best, even with very little support, to try and plan to build out new systems where they would have to send people across multiple state lines to try and find ways to provide care that they had for a long time been doing in person. And there just isn’t really a good way to game that out, to think about how am I going to send someone from Texas to Kansas, or from Louisiana to Illinois, or from, say, South Carolina to North Carolina and ultimately to Virginia? These are just very complex questions that you can’t fully prepare for, and certainly not when you aren’t given the reasoning to treat this as a public health crisis. And one thing that I do think if we go back and look at the politics of this prior to the Dobbs decision, this really was treated as a footnote, as sort of a niche concern. People really thought this only affected women, maybe only mattered to feminists. And what we have seen over and over again since then is that the end of Roe, the rise of abortion bans, has had widespread implications. And I can think of so many people I spoke to who didn’t think that this would affect them until suddenly it did, because they were pregnant. And once they learned how important this was, they couldn’t think of anything else more meaningful and more, I mean, to them, just disheartening to learn how little it felt like their country thought of them.

 

Melissa Murray So, Shefali, I think you’re being entirely too generous in your description of the lack of preparation. You know, you’re focusing on just the months before the fall of Ro with Dobbs. But, you know, I think the signs have been there for at least a decade. And if you weren’t clued in when Donald Trump got elected after promising to appoint justices who would overrule Roe versus Wade, you really lost the plot. But the chaos that you speak of, I think no one was really prepared for that. And I think you’re exactly right that many people across the United States did not understand how thoroughly abortion care could impact even those individuals who were not necessarily seeking abortions. And so the book really provides a lens through which to think about that question. And you tell a number of stories from all around the country. Places like Texas and Arizona and Oklahoma and Florida and New York. So it’s a true compendium of red, blue and purple states. And the stories encompass a range of individuals who experience abortion and the need for an abortion in very different ways. So there are those who are doing self-managed abortions with medication in their home states. There are those who have to travel out of state for abortion care and have the means to do so. There are also those who are forced to carry pregnancies to term against their will because they cannot access abortion at all. And so we’d like to focus on a few of them here. And I’d like to invite you to tell us a little bit about the story of Tiffany or Tiff, as you call her in the book, who is the young woman from Texas? Houston, actually, who became pregnant just before the fall of Ro. But during that period of time, that interregnum where Texas had effectively banned abortion through the use of its bounty hunter law, SB8.

 

Shefali Luthra Tiff’s story is one that I just think about so much, and I want to say I think she is a remarkably resilient person. She has been through so much, and when I spoke with her, you know, even a few days ago talking about the publication of this book, she is so full of hope for what she can achieve, even in the face of all that she has had to endure. She became pregnant soon after SB eight took effect. She could not get an abortion. She was younger than 18. She knew that she wanted to terminate her pregnancy. She wanted to get her GED. She wanted to think about going to college, to build some kind of career, to someday have a kid. But that wasn’t an option for her. She did not know anyone who could help her find an abortion. Her parents would never have supported that. That was something she knew. And as a minor in Texas, it already was incredibly difficult to get an abortion. You needed parental consent, or you needed a judge to say that you were mature enough that you could override the parental consent requirement. She didn’t know any of that. And so instead, she waited, tried to pretend that she wasn’t pregnant. She tried to take IRBs that someone recommended might end the pregnancy. None of it worked. And instead she had a really medically tough pregnancy. She has a history of depression. She was hospitalized for depression during her pregnancy. When she actually gave birth, she was near pre-eclampsia, and that was really terrifying for her. But what’s most important to me is where she is now. She has a kid. She is a young woman. She is of age. She is trying to find work. She got her GED and she has big dreams for herself. She wants to someday move from her small town into Houston, you know, have enough money to raise her son, be a better parent to him then she feels like she maybe could be. But it’s just so incredibly hard for her. And when you look at the numbers, the the economics, the what she would need to earn to give her son all that she wants to, it is going to be a very long, very hard journey for her and one that she didn’t have a lot of control over because she really had no options left for her when she became pregnant.

 

Kate Shaw One thing I thought was really helpful there are so many kind of threads to the story, but the overlay of even the restrictions that persist after states have made it virtually impossible to access abortion. You know, some have purported to leave a sliver of time between detecting a pregnancy and a prohibition, like a six week ban. In theory, there’s maybe a week or two in which some people might find out they’re pregnant and technically access abortion. But when you overlay to trip requirements or for a minor parental consent or a judicial bypass, that puts even that like sliver of possibility way out of reach for most people. And so I think that was really illuminating the way even, you know, those old restrictions that were passed prior to the bigger bans overlay with the newer ones. And I thought that in this case that was really clear, but it was clear in a bunch of others where people might have windows of an ability to access within, you know, even six weeks or 12 weeks. But many, many things put the, you know, real ability to access that care totally out of reach.

 

Shefali Luthra There’s another factor as well there, which is you have to know about all of these laws and know how to navigate them. I didn’t know about organizations that might help her with judicial bypass until she was well past six weeks, and just not only being able to navigate all these rules to make it within the very, very short timeline, but to figure out how to find the resources and do so in a way that is discreet because of the stigma around abortion, it just is functionally impossible, especially for someone as vulnerable as she was.

 

Kate Shaw And there are so many other stories, we’re not going to have time to bring all them out, but I wanted to invite you to maybe talk for a minute or two about Jasper, who is a trans man in Florida who navigates accessing abortion. And the story really resonated, I think, both because it is important, obviously, to send her real stories of trans men, non-binary people who can become pregnant and need to access abortion, but also because it was so wrenching because Jasper is able to access abortion in Florida. But of course, that would not have been the case today because the total ban has gone into effect. So can you talk a little bit about that?

 

Shefali Luthra That is such an important point. If the six week ban in Florida were in effect when Jasper got pregnant, it would have been too late. He didn’t find out until he was pushing 15 weeks, and that isn’t surprising, because he did not have a lot of the symptoms of pregnancy, or could not at least place them to pregnancy. Doctors didn’t think to test for it because he’s trans. By the time he found out he had one week to make his two appointments to decide that he wanted an abortion, to find the money to get that done. And one thing that he has really told me a lot about was that was a really difficult decision. He knew he did not want to be a parent, but he wanted to at least think about it, to give himself a chance to really know that he had done the right thing for him to feel at peace with what he was about to do. Because for a lot of people, this is a decision they take very seriously. Even with 15 weeks, he did not have that luxury. If it had been a six week ban, he absolutely would not have. His only options would have been to travel out of state to try and find the money to get to. They talked about going to Las Vegas if they would have to do something like that, which is difficult under the best of circumstances. Even more, when you were a college student working part time, which is what he was.

 

Kate Shaw So one question I wanted to ask about is that you show, I think, really effectively the way and this is implicit in what you said at the beginning, abortion bans in states like Texas and other states have, you know, massive cascading effects in other states. So can you talk a little bit about some examples of that, just the way in which any notion that, you know, restricting access to abortion in one state was going to just be. Cordoned off and affect only the population in that state, and not have these ripple effects elsewhere. In fact, of course, the effects elsewhere and everywhere are massive.

 

Shefali Luthra I think about this in the short term and the long term, and these are two points I tried to examine in the book. The short term is what we already see in states like Illinois, like Kansas, like we will soon see in Virginia, which is when you have this many people from so many states traveling to get abortions, it creates a real bottleneck. It means you have incredibly long wait times for appointments. Even if you live in a state or abortion is legal, your ability to access it is so much harder. Physicians don’t have time to provide other kinds of health care, whether that is colposcopy or pap smears or gender affirming care, because there just aren’t enough health care providers to meet that incredible demand that is now being concentrated in a handful of states. The long term effect that I also think is really important is what this means for medical training. And what we know is when you are in a state with an abortion ban, it is impossible to be trained in providing abortion. This is important not only because doctors should know how to provide all kinds of health care, but because the regimen for an abortion is the same as for miscarriage management. And I’ve spoken to so many doctors, so many med students, so many residents, and some of their stories are in the book about how afraid they are of what that means for the long term, because eventually we will just not have as many providers in states across the country who know how to deal with something as common as pregnancy loss. And that has implications for all of us, because it is so common whether or not you ever intend to seek an abortion.

 

Melissa Murray So this is a really important point, Shefali, we’ve talked about this on the podcast before. You know, just because you live in a blue state, you are not immunized from the impact of Dobbs. As you say, there will be bottlenecks even in those blue states, as more and more demand for abortion gets cascaded out into areas where it is accessible. And as you just suggested, there is a real scarcity of suppliers, people who can provide abortions at this time. And the book underscores this in really stark ways, like, not only is abortion health care, it’s health care that’s been increasingly stigmatized. That already created some pressure on the availability of providers, but it’s also now very much cleaved off from other forms of health care, whether that’s from abortion providers in hospitals or in standalone clinics. So there’s this clear need for abortion providers. As you note, there is going to be a real scarcity, certainly in those red states where abortions are prohibited and professionals cannot be trained to provide them. What will happen as we move into this post-roe landscape, where the prospect of a nationwide band, I think is very much a reality, like it could very much happen if there is a Trump administration, certainly through the Comstock Act, how will that affect the availability of providers and the provision of not just abortion care, but abortion care in service of other forms of health care that are really as necessary, like miscarriage management and things like that.

 

Shefali Luthra The implications would be drastic. We have seen repeatedly that health care providers are afraid now to provide abortions or to provide other miscarriage management services, especially when they live in a state with a ban. I mean, we have seen providers in in blue states as well, and purple states who are afraid to make public that they offer abortion because of targeted harassment, because of stigma, because sometimes the bank won’t loan you the money, or the rental company won’t want to work with you because you provide abortions. When you add a national ban. On top of that, it exacerbates the stigma, and it also gives doctors far less reason to feel safe, legally protected when they provide the service that is so essential. And what it means is there is a real risk that we look across the country under a national abortion ban. And if you want comprehensive, safe, fully adequate medical care for your pregnancy, the best options are Canada or Mexico.

 

Melissa Murray I actually spoke with an ObGyn, and one of the things she really fears about the prospect of a nationwide ban, a Trump presidency, where the Comstock Act is being used as an effective nationwide ban, is that many people aren’t going to go into obstetrics and gynecology just because so much of that practice does involve the provision of abortions, like not just for elective abortions or quote unquote, elective abortions, but because miscarriages are just so, so common. Like, you know, 1 in 3 women has had a miscarriage. And if you can’t provide that with any sort of security, that you’re not going to use your license, you might as well not be in that business. And obstetrics and gynecology already had the highest rate of malpractice suits. The insurance rates were highest for that particular. Area of medical practice, and they really worry that you were going to have a real reduction in the available number of OB GYNs and quote unquote, women’s care, going forward because of all of this. So that I think is, you know, cannot be overstated. And you do a really great job in the book of sort of teasing out some of these other ancillary effects. Can we talk a little bit, though, about this question of medical expertise and the way these new abortion bans are being enacted? Because you also make the point in the book that the laws that we now are living under, the laws that are popping up post jobs, haven’t been passed in the way that normal legislation might be passed, you know, with consultation from experts in the field and with, you know, real evidence behind them. Before Dobbs, it might have been the case that many legislatures would write these laws, but they never expected them to go into effect because they would be immediately challenged, enjoined, while their constitutionality was being reviewed. But now, post Dobbs, they’re very much going to be in effect. But you still don’t have the evidence backed, expertise backed enactment process that you might have in other areas. So given your reporting, what does it suggest about these new, vaguely worded laws that don’t have a lot of expertise behind them and how they are influencing the practice of medicine.

 

Shefali Luthra It means that the consequences are just so wide ranging in ways that lawmakers maybe maybe it’s not fair to say they were unintended, but they certainly did not anticipate. And I mean, one of the great examples is ectopic pregnancies. I mean, most abortion bans, especially when enacted, did not have ectopic pregnancy exceptions. Some of those have been added in, but in very complicated ways. In Texas, there’s this affirmative defense requirement, for instance, in which you can provide an abortion for someone with an ectopic pregnancy, but the doctor could still be sued and would just have to be able to prove that they did it under the statutory exception. That’s a really, really difficult thing to ask of a physician. It makes it much harder to feel safe providing care that they know is medically necessary. And this is a symptom of exactly what you just mentioned, Melissa, the passing of laws in a way that wasn’t really treated as serious because no one thought these would take effect. And it is also because of something else, which is a decades long campaign to demonize abortion providers and health care providers in particular, because for a lot of anti-abortion activists, that was a much more politically successful strategy than trying to go after pregnant patients. They could suggest that health care providers were taking advantage of these pregnant people and doing something that they knew was wrong, or that patients didn’t actually want. And and in that bears consequences. It means that these are health care providers with extensive medical training, with a lot of knowledge who aren’t treated with the seriousness that their their training and their expertise would suggest they deserve.

 

Kate Shaw Yeah, that explanation, I think, suggests correctly that, in terms of the legislative motivations, it’s kind of a mix of both inadvertent incompetence and drafting, but then also malevolence, like actual desire to make it as difficult as possible for this category of physicians to provide meaningful care, and that that’s quite deliberate, that they are targeted and, you know, creating this kind of fear of criminality around everything they do was actually not inadvertent. But that may be the point. So I wanted to actually ask a different question, which is that one thing that came through in a lot of the stories that you tell is that people who did want to find a way to get access to medication because they detected their pregnancies early, so they wanted to terminate using medication, had a hard time figuring out how to do that by just searching online. Right. We talked about Tiff, but with a bunch of your other subjects, people really are struggling to figure out how to access these pills. Some people fail or, you know, give up or it. The pregnancies have progressed too far by the time they figure out how to get access to medication. Others do manage to get pills mailed to them or to another state, but then route the pills to themselves. So just like, can you give us a sense of the landscape? Like, are there information gaps? How do people right now manage to find the best information online about how to access medication to at home, self-manage abortion if they find out they’re pregnant early enough that that’s a realistic possibility?

 

Shefali Luthra I think what we’re speaking about is a real symptom of the fact that for abortion. But I mean, for all health care, you don’t think about it until you have to. Like, I am not going to wake up tomorrow thinking about someday I’ll need a colonoscopy. Like, that’s just not something that’s on my mind because it shouldn’t have to be. And so when you become pregnant and when you realize you might need an abortion, you have never had to think before about where to find plan C pills or aid access or other health care providers that might be willing to send you pills. And the information is now out there, much more so than when it was right after the Dobbs decision. But you still have to know what to be googling, how to figure out what is reputable and what is not. You need to know some. One who knows something. And that’s really difficult when we are talking about something that is, as we have discussed, just so stigmatized. One data point that I find so striking is the the mailing of medication abortion. The telehealth is accounting for a much larger share of abortions now than it was even a year ago. But at the same time, there are really incredible racial gaps. For instance, white people are much more likely to be ordering medication abortion pills through these services than are black people or Latino people. And that’s so stark because most abortions historically have been for people of color. What it shows is that these are still relatively new services, and we are still seeing what it will take for them to be made fully available and for people to learn how best to access them and how to feel safe legally as well in using them.

 

Kate Shaw But I think it’s a nice point that eight Access and Plan C, these are outlets that may be in the immediate post Dobbs moment, which your reporting kind of spans some time period or harder to access or not, didn’t pop up immediately with a Google search, but that ideally those should be now higher up when people run searches. There was one other point on medication abortion I wanted to make which which seems relevant in light of the pending challenge to move a precedent that Supreme Court is sitting on, which is, I think, only one of the stories you tell. But correct me if I’m wrong, involve someone you know. So medication abortion typically involves a two drug protocol, but you can terminate a pregnancy using just the second drug, right? I suppressed all, and there had been some thought that if this challenged him, if a person partly or totally succeeded, doctors could still continue to provide access to and people could still use the second drug to terminate pregnancies. But we sort of know that that often can be a more difficult and painful process. And you tell a story of a pretty agonizing, ultimately successful, but agonizing experience just using the second drug. So do you want to say anything about that?

 

Shefali Luthra So actually, there are two cases in the book, if I remember correctly, who use my as a process. Only one of them, a young woman named Becky in the Valley. It works for her. She buys the pills, crosses the border to Mexico, brings them home, looks online, figures out how to use them, takes them and they work. After a lot of pain, a lot of bleeding. She is ultimately not pregnant. But there’s another woman, Emma, and she tries what might be possible only. And it doesn’t work. She goes through so much pain. She is really miserable. She is bleeding. She then waits and is still pregnant, and she has to go through the whole process all over again with mifepristone as well. And that I think that’s really important, because what we are seeing is people trying to figure out on their own, outside of the medical system, how to provide this kind of care. And and in a case where if a person isn’t available, being given an option that is incredibly painful is not the, you know, first standard, best recommended practice and does work but doesn’t always work. And that that is really, really concerning. When we think about how you might only have one chance to get an abortion, you you take the pills you get. And if they don’t work well, you have to find a way to get more or you are having that kid.

 

Melissa Murray So, Shefali, as we conclude, what do you want readers to take from the book? Obviously, the book is so deeply researched and reported that there’s just so much here for the reader to delve into. But ultimately, what are you hoping to inspire with this book? Like? What do you want readers to do with the information that you’ve given them?

 

Shefali Luthra I want people to really understand just how ubiquitous the impact of abortion bans can be. I think it is very easy depending on what state you live in, depending on your gender, your future pregnancy plans to believe that this is something that will have tremendous consequences for other people, but not for you. And what I hope this book shows is that something like overturning Roe is just so, so tremendous that it will someday affect your life whether you anticipate it or not. And it is on all of us to treat this as an incredibly serious public health issue and to respond appropriately.

 

Melissa Murray The universality of abortion bans, not just for red state folks, blue state folks. It will affect you too. The book is called, once again, Undue Burden Life and Death Decisions in Post-roe America. And the author is Shefali Luthra. Shefali, thank you so much for joining us today. Listeners, please pick up a copy of Undue Burden wherever you get your books and at one of our special places. Bookshop.org.

 

Shefali Luthra Thank you both so much. This was really, really fun.

 

Leah Litman Some housekeeping matters in the next episode of Crooked subscriber exclusive show Inside 2024, John Legend tickles the ivories, which is what we call making John laugh. The Egot winner joins Jon Favreau to talk about the power of celebrity political endorsements. Give yourself the green light a green flag. To sign up for access today, head on over to Cricket.com.au friends or subscribe to Crooked’s Friends of the Pod on Apple Podcasts.

 

Melissa Murray And guess what, folks? We have some new. Strict scrutiny merchandise just in time for the upcoming bad opinion season. That’s right, we have new shirts that say. Time for some bad decisions, because that is something that we like to say when the court does something totally off the wall. Not just the Supreme Court. Any court, including the court down in South Florida, where Judge Cannon seems to have indefinitely delayed Trump’s case in Florida because she’s either tired of doing her job or she really wants to make America great again. Who is to say? Either way, we know we’ll probably be saying it’s time for some bad decisions a lot more in the coming months. Which means that since these justices and judges love making bad decisions, Strict Scrutiny, merchandise is always going to be a good decision. So head over to the Crooked.com/store. That’s crooked.com/store and pick up a time for some bad decisions. Tea or mug for all of the people in your life who are affected by bad decisions. That’s basically everybody. Go get them right now.

 

Kate Shaw Strict Scrutiny is a Crooked Media production posted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell with help from Bill Pollack. Our intern this summer is Hanna Seraph. Audio support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. And if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review as it really helps.

 

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