transcript

Speaker 1:
[00:00] Strict Scrutiny is brought to you by Americans United for Separation of Church and State. Since the nation's founding, the values of religious liberty and pluralism have been central to the American identity. These values are now under accelerated attack. The government has no authority to pick and choose which religious beliefs to promote and which to marginalize. Religious freedom for only some is religious freedom for none. The Trump-Vance administration's Religious Liberty Commission is pursuing a culture of Christian nationalism that seeks to divide and isolate people across our nation. The fatally flawed way this commission was assembled makes clear that the predetermined outcome isn't just un-American, it's against the law. The Trump-Vance administration has failed to uphold our country's proud religious freedom tradition, and we will hold them accountable. Be part of the movement that's pushing back and standing up for freedom. Register to attend today at vsrf.org.

Speaker 2:
[00:52] Mr. Chief Justice, please support. It's an old joke, but when an argument man argues against two beautiful ladies like this, they're going to have the last word.

Speaker 3:
[01:05] 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.

Speaker 1:
[01:35] Hi, listeners, it's Leah. On Saturday morning, I woke up to news that at 3 a.m. Eastern time, the FIFA Peace Prize recipient, President Donald the Dove, himself had announced that he launched yet another war, this one with Iran, at 1 o'clock in the morning. There's no pretense that these were limited strikes. Saturday morning, he was calling for regime change and saying there might be casualties, which unfortunately there already have been. At the time we're recording, this Sunday morning, the federal government announced that three US service members were killed in action and five wounded. Many Iranians have also been killed in the strikes. And we also know that the Supreme Leader of Iran was killed in the strikes. The president announced this war and also seems to be managing it from his dinner club at Mar-a-Lago. Because, of course. We wanted to include a law-splainer, both for the people in the administration who don't seem to get it, but also for all of you so that we can begin to call for a restoration of some sensible constitutional and international order. Chatting law amidst all this lawlessness might seem like rearranging deckchairs on the Titanic, so we are also going to talk about why it's important to do so. To help me with all of this, because international law is way above my pay grade, is our expert, Professor Rebecca Beck Ingber of Cardozo Law School. Professor Ingber is a former counselor on international law in the Office of the Legal Advisor at the US Department of State. Beck, welcome back to the show.

Speaker 4:
[02:52] Thanks so much for having me back on.

Speaker 1:
[02:54] Should I just introduce you as God of War now, or encourage our listeners to play that as your walk on music? Because it seems like there's a pattern here, Beck.

Speaker 4:
[03:03] Yeah, I know. I sort of fell backwards into doing more national security as someone who was sort of a bleeding heart. But I actually think maybe we need more of me in this field.

Speaker 1:
[03:17] Great.

Speaker 4:
[03:18] More of my types, not more of me specifically, but more bleeding hearts, perhaps.

Speaker 1:
[03:22] Why not both? So there's much to say about the appalling brazen illegality of what the administration is doing, and we are going to focus on that. But I don't want that to obscure the insane recklessness and irresponsibility of launching a war to achieve regime change in the Middle East, since we know that always goes so well. That will also have staggering human costs. So, Bec, we will focus on the law, and law is there in part to prevent the unhinged, amoral project of war-mongering. But this sounds insane to even ask, and I'm going to do it anyways, why shouldn't countries with strong militaries just go around bombing countries that have leaders they don't like?

Speaker 4:
[03:59] Yeah, I'm really glad you asked this first, because maybe it sounds insane, but I think for a lot of people, and we've seen this even in the reaction of states around the world, if these are bad guys who have done bad things, it's good to take them out. And to be very clear, right, this is a monstrous regime. It's most importantly monstrous to its own people, and many have looked forward to a day when they would fall. But when you permit states to go around using force whenever they think it's a good idea, without strict objective parameters, like, for example, the ones we have in international law, they've come under attack and are simply repelling that attack, what you get is the Putin's of the world saying, well, hey, my next door neighbor, Ukraine, is run by a quote unquote Nazi government. We need to invade and take over. Or you have, you know, Pakistan just this week bombing Afghanistan. When you break down the international system that has been created to resolve disputes, you have states invading one another over resources, over territory, over any dispute. And even in those circumstances where states have a clear objective, even a legal basis to use force, you still can't control what happens in a war. And so, you know, narrowly cabining it is important for that reason. Sometimes using force is going to be necessary, sadly, but it is lighting a flame to a haystack. There is so much destruction. People on both sides will die. People will be displaced, perhaps permanently. Terrible mistakes will happen. Civilians will be killed. Children will be killed. And when you take out a leader and destabilize a country, especially without a clear plan for what happens next, that is organic from the people themselves, you can't put the genie back in the bottle. And we cannot know the conflagration that's going to erupt from these acts. And so, you know, I mean, just look at the destruction that the US were on Iraq in 2003, wrought on the entire Middle East, right? Saddam Hussein was a bad guy. He was a terrible guy. And hundreds of thousands of people were killed in the war and the ensuing chaos that followed, which continues to this day. Yeah.

Speaker 1:
[06:05] So with that kind of setting the table, let's go to the law and maybe start with the international law angle since you gestured to it. So a refresher about the UN Charter, which we last talked about with you last month when the president launched military strikes against another foreign power. The UN Charter pledged, quote, to save succeeding generations from the scourge of war, end quote. And the Charter, which the United States signed, provides that signatory states must, quote, refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, end quote. How does that cash out here? It seems pretty straightforward.

Speaker 4:
[06:45] Yeah, this is actually a good segue from what we were just talking about, right? Because the free for all that I just described is the world that came before. So there's a reason states came together in the early part of the 20th century to try to outlaw war, and this culminated in the UN Charter. And so this rule from the UN Charter that states may not use force against the territorial integrity of other states, that is a bedrock rule of the modern international system, in my view. And that prohibition on using force is not absolute. It has two very narrow exceptions. So states may use force if there is a UN Security Council resolution authorizing them to do so, obviously not in question here. And if they have been the victim of an armed attack and are acting in self-defense to repel it. And that also includes the collective self-defense of another state that has suffered an armed attack and has requested help. So there's been some chatter of anonymous officials, maybe we'll get more color by the time this plays, talking about some imminent threat. And so I want to be clear about what immanence means and why it even comes up in this context. So I said states can use force in self-defense if they're the victim of an armed attack. They can use force that is necessary and proportionate to repel that armed attack. They can also use it to repel an imminent armed attack. So you don't have to wait until the bombs that have already fallen, right? But an armed attack is the focus of the equation. And that sometimes gets lost in this concept of immanence, which people throw around sort of casually. And necessary and proportionate are also key rules. So in 1991, for example, when the US and several states went to war with Iraq, again, or before the 2003 war, on behalf of Kuwait, so Iraq had invaded Kuwait, the US and many states go to war to push Iraq out of Kuwait. The UN Security Council authorized a limited use of force to push Iraq out of Kuwait, and the coalition did that. And that satisfied both the UN Security Council resolution and their authority to act in the collective self-defense. And so the use of force needed to cease at that point. They couldn't say, oh, well, we had self-defense, so everything goes, we can do everything. Now we can bomb Baghdad or unseat Saddam. And so just coming back to this, there has been no armed attack here, right? There has been no armed attack that we are responding to with necessary and proportionate force. There have been attacks in the past, of course, but we are not responding to those attacks. We're not trying to repel those attacks with these actions.

Speaker 1:
[09:06] Yeah. So as we noted last time when we were talking about the war against Venezuela, the administration seemed to have taken the position in that instance that the federal statutes governing the FBI somehow authorized the president to conduct law enforcement operations by force, including military strikes on foreign countries. That was just extremely odd and baseless. And they also argued that somehow superseded the UN Charter, or maybe that the Charter was binding but not enforceable against the president. So at least as of the time we are recording this update, there doesn't even really seem to be a pretense of the administration gesturing to the UN Charter or explaining how the strikes on Iran might be consistent with it. Is it better or worse that they're not even trying at this point to pretend it's consistent with the UN Charter?

Speaker 4:
[10:00] Yeah, and in that, that the Venezuela operation, the OLC memorandum that you mentioned, they kind of admitted in the memo itself that they didn't have such a justification. So this is a question I've been mulling for ages, honestly, and I'm kind of on a few minds on this. So I certainly think it's better for government officials to have some felt need to comply with law. I think that itself is constraining. And we tend to think of the requirement that you provide legal justification and explanation as itself a disciplining mechanism. Certainly if there's any shame involved, it would work that way. But it is also true that sometimes legal argument, legalese can sort of cloud things for the public and for Congress, frankly, who are the people who are supposed to check the president. So often, when the administration says it has some secret legal memo that explains everything, just you wait, everyone sort of focuses on that rather than what is self evident before their eyes. We know what the administration's view is. We know from the dog that does not bark. We know that they do not have some smoking gun that would give them legal justification. And so sometimes I worry that the provision of some kind of legal mumbo jumbo might be clouding things and allow Congress to say, oh, well, they have a theory that they can act without us. So in a world where the president doesn't appear to care at all about law, and perhaps more importantly, when he's surrounded by people who themselves don't seem to know the value of law or even surrounded by people who don't seem to know the value of responsible decision making processes, then I'm not sure that just throwing words on a page is in fact working as a disciplining process. And maybe it's better to just have the mask totally off and let people see exactly what's going on. But that only works if there's a reaction. If the president says, I don't care about law and everyone just shrugs, that's kind of my worst-case scenario.

Speaker 1:
[11:54] Yeah. And it seems like we are trending quickly in that direction, since we had the attack on Venezuela, he doesn't experience real consequences for the last bad thing and then does a worse thing, right? And this is also just the lesson of the second Trump administration, like they got away with a lot, no consequences, and so they're back at it even worse. So since you brought up Congress, let's shift to constitutional war powers, where again, I would remind listeners that the Constitution gives to Congress the power to declare war. Now, it's long been understood that, of course, the president can respond to an immediate or perhaps imminent invasion. Past presidents have also argued that power justifies the preemptive uses of force against imminent attack. And still back in light of what Jack Goldsmith has called the permissive promiscuity of past executive branch interpretations of their war powers, this still feels like an escalation to me beyond those past practices and theories. Is that fair?

Speaker 4:
[12:55] Yeah, no, I think it is an escalation beyond those past theories. I think in many respects the government has sort of been picking from all the different examples of places where past administrations have perhaps stretched things or used interpretation to try to take things just a step further, and they've sort of combine them all at one and throw them at the wall to see what sticks. I mean, yes, the Constitution gives Congress the power of decisions to go to war, and also a host of other war-related powers like raising and you know, armies and funding and regulating, right? And the president is just the commander in chief. But it was also understood at the founding that the president could repel an attack on the country, and you could think about how hard it was to get Congress to sort of congregate back then, right? You don't want to have to wait for everyone to rally the horses before you could defend the country. But in the meantime, Congress has given the president a standing army, presidents have used force in more expansive ways, and executive branch lawyers have created a theory for trying to explain this constitutionally. And this is part of what I'm saying might sort of create a cloud things for Congress a little bit because they hear that they've got this theory. And so the theory is that the president can use force when it's not war in the constitutional sense. And they've long looked at all these factors like the nature of the operation. Is it a targeted strike or is it boots on the ground? Is it regime change? That was usually a factor in favor of thinking it might be war in the constitutional sense. Are soldiers likely to be injured or killed? That's also going to weigh more heavily in favor of congressional involvement. And so even if they have in past context thought, well, maybe the first strike doesn't look like war, if it's going to escalate into war, if it's likely to escalate, then that is also a real factor. And we know all this because OLC writes this up in memos, which it sometimes publishes. And they actually did publish one immediately after the Venezuela operation. And if it's Monday when you're listening to this, I have a piece out on this today on just security, but it's relevant to the Iran operation because it's the only example we have really right now on how this administration lawyers war powers or whether it lawyers war powers. And I want to be clear, these memos are just the president's lawyer's views on the president's powers, right? These are not ratified by courts, which almost never see use of force cases. These are not ratified by Congress. And OLC tends to think of itself, right, because the courts never see these questions. OLC tends to think of itself and present itself as if it's like the Supreme Court of the executive branch. But, you know, obviously it's not an independent branch, right? These are lawyers working for the president. But there's also a very less obvious way that it doesn't operate like the Supreme Court, which is that lawyers don't tend to enshrine the times they say no, right? Courts will say, no, you can't do this. And then we know that's a red line, right? But OLC doesn't tend to write their red lines and more powers into memos. They don't say this is legal, but this isn't legal. Instead, you're going to see, we have X, Y, and Z factor here, but we don't have A, B, and C. And so now it's lawful. And then in our next case, we have A, B, and C, but we don't have X, Y, and Z, right? And so it's lawful. And now we've got, in the Venezuela memo, we've got A, B, and C and X, Y, and Z. But in each of these, we have examples in the past where A, B, and Z were lawful, or when X, Y, and C were lawful. We're going to throw it all together. And so while it's true that I don't see a justification even under OLC precedent, what Jack Goldsmith has called the promiscuously permissive OLC understanding of Article 2. I love that line. I understand what he means when he says that he doesn't think it's effectively constraining and maybe wouldn't be in this context, even though I do think this is radically a radical departure from what's come before. And again, not a theory ratified by courts or Congress. And at odds, in fact, with how Congress itself has explained its view of when the president can use force.

Speaker 1:
[16:41] Since you brought up the courts, I did want to remind our listeners of this moment from the oral argument in the Terrace case that seemed to preview the administration's views about their war powers and what Congress can or has done. You can hear it here. Justice Gorsuch will be asking the question.

Speaker 5:
[17:03] Can you give me a reason to accept it, though? That's what I'm struggling and waiting for. What's the reason to accept the notion that Congress can hand off the power to declare war to the president?

Speaker 6:
[17:12] Well, we don't contend that again.

Speaker 5:
[17:13] Well, you do. You say it's unreviewable. There's no manageable standard, nothing to be done.

Speaker 1:
[17:18] And since we are a Supreme Court podcast, I did want to note that the court isn't blameless in all of this, even though they don't often get these cases. Just to take one concrete example, there was what's called a legislative veto in the War Powers Act, the law that provides a framework for United States uses of force, including by the executive. When Congress enacted that law, it said Congress could pass a resolution to withdraw troops and strikes if they disagreed with the president's determination that there's an emergency warranted calling for the use of force. The Supreme Court struck down the legislative veto in INS v. Chadha, handing more power over to the president and influencing the allocation of authority between Congress and the executive branch. If you're interested in this aspect of the separation of powers, our friend Steve Vladeck at One First has a great post on this at One First. Then Josh Hayfitz, a professor at Georgetown, has an article forthcoming, The Chadha Presidency, that goes into this more. I do want to return to how or why this is an escalation, and I think it is an escalation both with respect to the scope of the attacks and also the justifications plural for them. On the scope, when Trump announced the attack on Iran, he described it as a major combat operations in Iran, not a small operation that wouldn't amount to full out war in the constitutional sense, and that feels like an expansion from past presidents preemptive uses of force. Is that fair or somewhere in the specter of possible?

Speaker 4:
[18:46] Yeah, I mean, there are so many examples of the president and this administration using whatever language feels right to this particular audience that is often entirely at odds with their legal theory to the extent they have one. So to the extent, you can imagine the extent there are lawyers in there who both believe in the president's agenda and law. You can imagine they're just sort of pulling their hair out every time he speaks. But just in the Western hemisphere, you've got the president claiming Venezuela has invaded us for the purposes of invoking the alien enemies. You've got him saying we're at war with drug cartels for the purpose of blowing up suspected drug traffickers at sea. And then you've got him saying it's not hostilities so that it can get out of War Powers reporting. And then when he actually does start a real war on the same basis, invading Venezuela, capturing its head of state, then the administration claims, well, no, that's not a war. So then he could do it all without going to Congress under the OLC not war series.

Speaker 1:
[19:40] It's like Schrodinger's war. It's both war and not war, just depending on, yeah.

Speaker 4:
[19:46] The context, right? Depending on what you're trying to do and whatever will get you the most power. So to your point here, yeah, you can't have major combat operations and say that's not a war, nothing to see here, Congress. This is exactly the kind of scenario Congress would or at least should want to play a role in determining, right? And in fact, getting dragged into Vietnam without sufficient information or sufficient ability to weigh in, and the resulting carnage was exactly what prompted Congress to come together, work across party lines to pass the War Powers Resolution to try to reset the balance in the first place. Yeah.

Speaker 1:
[20:21] So I also want to talk about the justifications and how I think the purported justifications they've been throwing out are another escalation, in addition to the escalation in scope. So Trump made noises about Iran being days away from building a nuclear bomb that could reach the United States, and also that he was concerned about the, quote, freedom of the Iranian people. Now, the former claim on Iran's nuclear capabilities just seems to be false, and these are, of course, different justifications. It doesn't even seem like they bothered to settle on a rationale. They were saying different things to different outlets on the very same day. And on the specific justifications, you know, on the first, in addition to it just being a lie, they were claiming all of last year they had destroyed Iran's nuclear capabilities. You know, Saturday morning, they still had up on the White House website a post that said, quote, Iran's nuclear facilities have been obliterated and suggestions otherwise are fake news, end quote. You know, another kind of mark against the unitary executive branch, it seems, or unitary executive theory. And on the second theory, you know, it's unclear if, you know, successfully removing the supreme leader will bring into power a regime that wouldn't try to continue to develop nuclear weapons and murder protesters and repress the people. I mean, Reuters reported that a CIA analysis suggested more hired liners would ascend to power. So these are also part of why this struck me as an escalation, just like the transparent moving target of the justifications and how not tied or related to this combat operation they seem to be.

Speaker 4:
[21:56] Right, and none of those are of course a legal justification. But I'll just add that this question of humanitarian intervention, to the extent that's somehow part of the mix, they're sort of nodding at that. This is this long-standing question of whether states can use force to stop significant human rights abuses, genocide, crimes against humanity. This is a live and extremely fraught question. You'll notice that it wasn't one of the exceptions I mentioned to the prohibition on using force, and states have been bandying about what to do about this for a long time. And as a legal matter, the thing to do about it is to go to the UN Security Council and get an unskilled. But of course, for important reasons that were built into the system, it's extremely difficult to do that. But I'll note that even under the most good faith of circumstances, even when states do come together multilaterally, get a UN Security Council resolution, have legal grounds to act, things can go and have gone wildly wrong. Yeah. It's just not that easy for states to sweep in and make good government happen, even with the best of intentions. And as a policy matter, the most significant argument against crafting an exception for humanitarian intervention is that it can be used pretextually. So for example, Putin falsely accused Ukraine of genocide as part of its justification for its attempts at territorial expansion. So there's no question, as I said, that this regime in Iran has been a monstrous one. But I also don't really see a pro-human rights agenda as a cornerstone of this administration. And I just don't believe that insuring human rights is part of the plans that they have drawn up, to the extent they have drawn up any plans, or that it's going to be a component of any plans they have going forward.

Speaker 1:
[23:33] Yeah. So on this justification, moving justification that they are just throwing out, I mean, honestly, it seems to me they are like a half new cycle away from just saying, we did it because the Dow, the Dow is at or below 50,000. I mean, this is just how ludicrous it all is because the president also truth out that quote, Iran tried to interfere in 2020, 2024 elections to stop Trump and now faces renewed war with the United States. So maybe a third justification is election denialism, which just puts layers upon layers of illegality on it, in addition to layers and layers of BS, because I can't even keep track of who supposedly interfered with our elections, Iran, China, Venezuela, the radical left. And we started out with policy and went to law. And I want to get back to the question I previewed at the beginning, which is the, does this matter question? What's the point of discussing whether these strikes comply with international law, the Constitution or federal statutes, when it just seems like the administration and, you know, at least some other countries just don't seem to care.

Speaker 4:
[24:39] Yeah. I mean, this is really important. Jack Goldsmith had this piece over the weekend saying law doesn't matter, right? And now, to the extent what he was saying was the debate over whether OLC could justify this under its ever-expanding legal theories is stale and not particularly useful, I don't disagree there. But to the extent he means that legal debates over war powers are empty, you know, what's his own solution? His solution in that piece is for Congress to step up and do its job and constrain the president. Well, why is it Congress's job? Why do we even say that it's Congress's job, right? Why can Congress constrain the president? It's Congress's job because of the law and because the Constitution says so. And in the public law space, whether we're talking about international law or the Constitution, there's no overarching decider. There's no cop that shows up at the door and hauls off the United States to jail or the president, right? Public law is enforced through the reactions of other states on the world stage. And domestically, it's enforced through the actions of other actors like Congress and the public, which is exactly what he's proposing to happen. So the question, I think, for all of us should be, you know, as a matter of international law, do we want to live in a world where there are neutral rules that govern, where states can rely on the promises that they make one another, where states don't accept the use of force as a tool for policy? Or do we want to revert to that world where states could just use force where they please, resolve disputes or grab resources or territory? Do we feel safer in that world? Because, you know, like I said, it wasn't that long ago that states came together, you know, to ban the use of force as a tool of policy. The UN Charter is just 80 years old, give or take. These rules require careful tending and vigilance lest it all fall down. And on the domestic side, without law, without insisting on a role for Congress and the courts, we've got the entire national security state, the intelligence community, DHS, the FBI, the standing military, unimaginable weaponry, wildly increasing surveillance power. In the world of AI, God only knows, all of this funded by trillion-dollar annual budgets from Congress, all of it in the hands of one man, one man. Does that make any of us feel safe? And so I'm more afraid right now of the lack of reactions by Congress, by other states. It's not the violations of the law themselves that are going to ultimately bring the system down. Any legal system is going to have to account for violations and be able to survive those violations. What's going to bring the system down is a failure to respond and for violations to become expected and commonplace. And so that, I'll just end here, but that is on all of us. There should be no more, who cares? You know, he's going to violate the law anyway, so what, right? That kind of nihilism is just self-fulfilling. If you want to have a system that is ruled by law and not by one man's whims, then you have to care when it is violated and you have to fight for it every single day.

Speaker 1:
[27:28] So since you brought up automated weapons, I do just want to kind of take stock about what has happened and what we have seen, because it kind of seems to me like the neocons kind of wanted another war because Venezuela wasn't enough for them, they like seeing the strikes on the TV, thought the Venezuela war was cool, so they did another. And this isn't exactly law, but I can't help but pause over just the grotesque specter of everything we have seen and will be seeing. We have a Fox and Friends, former host and guest running a war from a private club for millionaires, a war that has already killed US service members, many Iranians and provoked Iranian retaliation in the region that has killed even more people. This is happening on the heels of a fight between the Secretary of Defense slash Secretary of War Crimes and Anthropic, an AI company, when Anthropic wouldn't give the federal government access to their automated war bots to use for strikes. And Uncle Drunky was so upset, he declared Anthropic a threat and interrupted their supply chain. And then OpenAI jumped into the fray. And the Wall Street Journal reported that the federal government was indeed using Claude in intelligence assessments. And this is all after we were assured that the Manospheres opposition to Kamala Harris wasn't about misogyny or misogynoir, but just about how men didn't want to go off and fight reckless wars. And the Manosphere was obsessed with this idea that Kamala Harris would send us into wars and Trump wouldn't. That was part of many people's cover stories. I mean, JD Vance had an op-ed, you know, in 2023, it said Trump's best foreign policy, not starting any wars. And it was transparent bullshit and utter misogyny that got us here, like to an attack that includes an airstrike on a girl's school that reportedly killed 85 students. Like that misogyny helped bring to power a president who literally launched a military strike against a girl's school. And that is one of the images that at least to me will be most associated with these attacks and the violence and gravity related to and resulting from the misogyny was just very hard for me to miss in the first 24 or so hours of this entire thing. Bec, you said you wanted to end it on it all being us, but I'll also give you any final thoughts or last words.

Speaker 4:
[29:36] Yeah. While he's watching all of it in like a baseball cap from Mar-a-Lago, it is grotesque. I mean, I'm just sitting here kind of devastated and fearful. I'm worried about the people of Iran. I'm hoping that they can take control of their country and live without fear of either totalitarian rule or bombs from above. I'm worried about the broader region. I'm worried about the state of the world going forward. I'm thinking a lot about what we can do. The rules-based order that we've been living under for just about a century, or less than a century, was far from perfect. But I do want to live in a world that is governed by the rule of law and not by the whims of tyrants, or for that matter, by AI. We have to figure out together how to learn from and improve upon what we have done. I think it is nihilism to say everything that came before that this is no different. That because states have violated the law before, this is no different than that. Because politicians have sometimes lied or politicians have sometimes stepped over the rules that this is no different and it's all we can ever expect. I think we have to figure out what we can take from what we had, what was good, what we need to improve upon, and just figure out how to move forward together.

Speaker 1:
[30:57] Well, thank you as always back for joining, especially on short notice. We greatly appreciate it as I know our listeners do as well. Because the parallels to 1984 have to be heavy-handed, the president truth-doubt quote, the heavy and pinpoint bombing will continue uninterrupted throughout the week or as long as necessary to achieve our objective of peace. Yep, bombings will continue until there is peace. And now for our regularly recorded episode. Strict Scrutiny is brought to you by MOSH. We're about to head into bad decision season, which means I really need to be more intentional about the way I live, eat, and take care of my body. I mean, I had to interrupt my vacation to record an emergency episode. These guys make self-care so challenging. MOSH, which you may have heard about on Shark Tank, was founded by Maria Shriver and her son Patrick Schwarzenegger with a simple mission, to create a conversation about brain health through food, education, and research. 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And then, of course, I forgot to pack it when I went to Miami, and was reminded that without pre-alcohol, I really will not be up and running the next day. Gotta put it on my packing list. Let's be real, usually a Friday night out means a Saturday morning spent canceling my workout class. But since I started incorporating pre-alcohol, my glass of wine doesn't disrupt my morning flow. Remember to head to zbiotics.com/strict and use the code strict at checkout for 15% off. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court, and that's lower case based on a complete lack of respect, as the president indicated in a Truth Social Post complaining about the Supreme Court. Anyways, this is Strict Scrutiny, your podcast about the lower case Supreme Court and the legal culture that surrounds it. I'm your host for today's episode, Leah Litman. For the first part of this episode, I'll be going through legal news with the wonderful Chris Geidner, who runs the indispensable outlet Law Dork that we often reference. We'll cover different developments in the in-cell frat boy administration, including allegations of sexual misconduct in the Epstein files. I'll also be talking to Chris about some of the journalism he's been doing that has brought to light different aspects of the administration's misdeeds. This episode is kind of going to be a love pod to independent journalism and an FU to the right-wing prologarhies takeover of the media, but I digress. Chris and I are also going to talk bad decision season than going on at the Supreme Court last week, including oral arguments and opinions. Then I'll be joined by Marc Elias, who will talk with me about how all three articles of government have trained their sites on democracy and upcoming elections. But first up, legal news. And as promised, I'm joined today by guest host Chris Geidner, who runs the incredible Law Dork substack. Welcome back to Strict Scrutiny, Chris.

Speaker 7:
[36:08] Hello, Leah.

Speaker 1:
[36:10] We were kind of talking before this got started about this wonderful world we are living in. So thank you for joining me to help me process this last week of that wild, wild world.

Speaker 7:
[36:22] Of course. Yeah, there is never a dull moment. And I was saying last night, Thursday night, that it was one of those days that it wasn't even the best laid plans that got upheld awry. It was literally any laid plans that got taken off the docket.

Speaker 1:
[36:43] Indeed. I could stand to live in boringer times, but such as it is, we have a lot to cover. So the first chunk of legal news we're going to talk about is basically how I think we are all being governed by some weirdos of the Manosphere. And one example is the latest Epstein files, a scandalo. So several outlets reported and then Representative Robert Garcia, ranking Democrat on House Oversight Committee, confirmed that the Department of Justice seems to have excised and declined to disclose material in the Epstein files that included an interview with a witness who alleged that Donald Trump sexually assaulted her when she was a minor. Reporting on those admitted documents initially came from independent journalist Roger Sollenberger, again, independent media. We heart you. My pan to independent media comes on the heels of news that Paramount is apparently the winning bidder for Warner Brothers, the company that owns CNN. Paramount is also the entity that took over CBS and facilitated the Barry Weissification of that once great outlet. Paramount is led by Larry Ellison and Larry Ellison's large adult son, some Uber Trumpers, who also now control TikTok. Basically, they're building a right-wing media empire that runs the risk of stifling great journalism. I'll get back to the Epstein example in a bit. But Chris, what's the role of independent media in this era of Manosphere media? Yes, I include Barry Weiss in that. The woman literally made a primetime show into a whiskey hour and has made an entire career out of telling powerful men what they want to hear and ensuring them that everyone else, not them, is the problem.

Speaker 7:
[38:10] Yeah, no, it is alarming and continues to snowball in terms of where the problems are and who they're affecting. And I think that independent media, there have been a lot of discussions this week. There will certainly be, as this paramountification of the media landscape continues. And I think that the examples that we have seen from independent medias like Roger, who you mentioned, my work, Marissa Cabas, there are a good number at this point of journalists who are working independent of a large newsroom who can bring out a lot of important work. I do think, and there was some discussion that I had on Thursday night online, that there are limits to that. And I think that we don't want to lose the fact that like, it would be very bad if we don't have big newsrooms that can do big, in-depth investigations, that have deep pockets to protect their reporters, both abroad and like now in this era from lawsuits at home, that are able to do deep dive investigations. I mean, I remember, like, you know me from back in the golden days of BuzzFeed. And I mean, we would literally, the investigations team would be able to spend time and money on allowing a journalist like Chris Ambie, who was great, is great, to like go off and spend six months working on one story. And obviously I couldn't do that. If I go more than two days without publishing, I feel like my head's gonna explode because I'm not giving my readers the latest news. And so like independent journalism can do a lot. And like, I mean, I was at the Supreme Court this week. I was in front of Judge Lamberth, not in front of sitting in the gallery. Thankfully, I wasn't in front of Judge Lamberth. But I like the day after the Supreme Court was done with its arguments, I was in front of Judge Lamberth, watching him dress down a Justice Department lawyer. And like, there was no other journalist there. I was the only journalist in the courtroom before Judge Lamberth on Thursday. And like, that's because I know that my readers care about and are expecting me to care about what's going on with trans prisoners who might be a doubly unimportant character in some media outlets.

Speaker 1:
[41:17] Yeah. But back to this story that independent journalist Roger Solenberger broke, you know, the excision of materials implicating the president from the Epstein files released to the public, you know, on its own, that would be bad. But there are other clues about this specific interview and witness that make this even worse. So the FBI reportedly interviewed this person multiple times. So this wasn't something or someone just immediately dismissed as not credible and written off. And the accuser included a similar accusation in a lawsuit filed in 2019 against Epstein. So Chris, you know, we have been treated to slash subjected to Epstein and Epstein files now for weeks and months as DOJ has blown the deadline. Why is this latest revelation a big deal?

Speaker 7:
[42:00] I mean, I think it's a big deal one, because it is Trump, right? This is this is actual direct Trump related information. It's not a, oh, these are his friends, which again is its own damnation. But like this is an actual Trump accusation, which is similar and is particularly like a sexual assault allegation, and not even sort of the allegations that have led to significant changes in the careers of people like Kathy Rumler, or Larry Summer, or Brad Karp. And the allegations there were, I mean, with Kathy was more about advising him, and with Brad Karp was essentially about being too close to them. And I think that what we're learning is that there is a lot of there there. And as it becomes more difficult for the people who have been saying there's nothing there, to argue that we're actually starting to see consequences. Because it is very clear that this was not something that Epstein was doing off by himself. It was part and parcel of what those around him knew was going on if they were not actually involved in. And as more evidence comes out, we're seeing that.

Speaker 1:
[43:39] Yeah, I can't wait for that Supreme Court shadow docket order that says no consequences, period. But yes, consequences, good thing. So the next bit of news is a step removed, but in my mind still related to the government by the Manosphere, of the Manosphere, and for the Manosphere vibe of this administration. And that's a video seen around the world of FBI Director Cash Patel forwards that should never be strung together, living out his frat bro sports ball fantasy of partying with athletes, celebrating the US men's hockey team's gold medal in the locker room with the team. And during the celebration, the protector of women's sports himself, Donald Trump, got on the phone with the men's hockey team via Cash Patel and invited the team to the State of the Union address and joked that he'd have to invite the women's team as well or he'd be impeached, as you can hear here.

Speaker 6:
[44:28] We'll do the White House the next day, we'll just have some fun. We have medals for you guys and we have to, I must tell you, we're going to have to break the women's team, you do not have to do that. I do believe I probably would be impeached.

Speaker 1:
[44:47] The women's team declined the invitation and instead hung out with Stanley Tucci, would recommend. Chris, what did you make of-

Speaker 4:
[44:55] Exactly, right?

Speaker 1:
[44:56] Would prefer. But what did you make of this Cash Patel Donald Trump phone call episode?

Speaker 7:
[45:05] It works poorly on so many levels that it's hard to know where to dig into. This is the continuation just of the corruption of the administration, the self-dealing, we're governing to get what we want. But then, on top of that, you do have this like, you have this like, we're going to kill woke element of this.

Speaker 1:
[45:31] And by woke, they mean women and other people too. But yeah.

Speaker 7:
[45:35] The responses of the women's team have been great. The responses from women outside of the team, from Abby Wambach, from Megan Rapinoe, have been just fantastic. And then on like a final level, it is this like, the desperation of the administration. Like, some of these things, and this like fits in with my like broader, like we don't realize how good we are doing element of this moment. Like they are desperate. Like they know they're losing. They know what they're doing is unpopular. And like they literally believed that like the in for them was becoming a part of the men's hockey team winning. And like, unfortunately for the men's hockey team, they kind of went along with it. And I think they ruined so much goodwill, as everybody's been not even jokingly saying, like coming off of heated rivalry, like there was this like moment for hockey that people were caring about it.

Speaker 1:
[46:46] This game last night, right? Like I've been going to hockey more regularly. I read all of Heated Rivalry. I watched the entire series.

Speaker 7:
[46:52] And then they're just squandering it. Like I wasn't able to go to the Capitals pride night because I had something else that night. But like, I was even aware I, Chris Geidner, was aware of it and would have been there if I didn't already have, I mean, admittedly tickets to theater. But that aside, I outgained pride night. But like, two of my best friends were at the Philly pride night. I mean, this was a moment for expanding the universe of hockey in America and Canada. And the US men's team sort of played along with, even if they weren't a part of, and clearly some of them are, but even if they weren't a part of, they played along with it to be celebrated in this moment, and I get it. You won the gold medal and want the President of the United States to congratulate you. I get why, instinctually, you think that's fine. But you know that Donald Trump is going to use you.

Speaker 1:
[48:10] But do not accept the congratulations. Do not congratulate and do not accept the congratulations.

Speaker 7:
[48:14] You know that he's going to use you. And he did and tried to and successfully somewhat used them at the State of the Union even. I mean, sad, but also caveat emptier at this point, if you're going along with Trump's shenanigans.

Speaker 1:
[48:32] Completely. And because there are many fronts to the war on women, I wanted to draw attention to a moment from the Senate confirmation hearing last week for Trump's nominee for Surgeon General, Wellness Influencer, slash MAHA aficionado, Casey Means. Not a licensed doctor, never completed her residency. But you'll hear Senator Patty Murray speak first in this clip.

Speaker 8:
[48:56] You called birth control pills, and I'm going to quote, a disrespect of life. And you said Americans, quote, use birth control pills like candy. You also claim contrary to establish science that hormonal birth control has, quote, horrifying health risks for women. There are decades, decades of evidence showing that every one of these birth control methods is safe and effective. So I wanted to ask you, help me understand should women trust the FDA, which approved all 18 methods of birth control after a very rigorous look at the evidence, or should they trust your statement that there are horrifying health risks to birth control, which contradicts that evidence?

Speaker 9:
[49:39] Thank you, Senator Murray, for your question. I'm curious if you're aware of what the side effects of hormonal contraception are.

Speaker 8:
[49:48] I'm curious if you are with the FDA that went through all of these.

Speaker 9:
[49:53] I'm speaking about particular women that can be heard if there is not informed consent about their medical history, their lifestyle exposures, and their family history. I want those women, and I know you do too, to be able to have a thorough conversation with their doctor and know whether they are at higher risk for side effects when prescribed the medication.

Speaker 8:
[50:10] Saying that is one thing, but saying on different shows that birth control pills are a disrespect of life is very different.

Speaker 9:
[50:21] I am passionate about women's health, and I think it is disrespectful to women.

Speaker 8:
[50:26] To say that birth control is like candy is very different than what you just said.

Speaker 9:
[50:31] We prescribe a huge amount of hormonal contraceptive, and I do not believe most of those conversations have informed consent because of the pressures that doctors are under because of our broken healthcare system. I want what's best for women as do you.

Speaker 1:
[50:46] I mean, what is there even to say?

Speaker 7:
[50:50] Yeah. I mean, honestly, the best thing that I can say is to say nothing.

Speaker 9:
[50:56] Right.

Speaker 1:
[50:57] Yes. It speaks for itself.

Speaker 7:
[50:58] As the man on the... Like, literally, men need to be saying less this week. I mean, but obviously, it doesn't matter even if it's women. Right. I mean, it's just, it is part and parcel of what RFK Jr. is doing to the public health system in America, to research in America, and with that global research, I mean, like, in addition to sort of the, like, I mean, I obviously still get all of my Ohio news alerts, and like, there's like, it wasn't even the, it was truly one of those moments, even for me, and with how closely I'm paying attention to things, that like, I saw second measles in like a news alert this morning, and I thought it was case, it was second measles outbreak in Ohio this year. And I'm like, oh yeah, that's where we're at now. We're not even like, counting by the case for news alerts. And now we're going to, we have a like, birth control skeptic who is most likely going to be the Surgeon General. It's, I mean, it's horrifying. It's another example of like, the Senate just like, abdicating its responsibility to the American people, to the structure of government, to James Madison's basic beliefs about what this, this Constitution he was setting up would do. But here we are.

Speaker 1:
[52:41] Yes, here we are. And where we are, we have a few more pieces of legal news before we step back and talk about how we ensure legal news is news and before we get to bad decisions, spring training season. And the first is more news out of Minnesota. So despite the drawdown of Operation Metro Surge, that is the administration's mass deployment of federal immigration officers, people on the ground in Minnesota and independent media and journalists and local media still continue to report a lot of contacts with ICE. And despite the alleged tone shift, the administration still seems intent on causing as much harm as possible to and terrorizing the people of Minnesota as much as they can. The latest in this attack comes from the lips of JD Vance.

Speaker 10:
[53:21] So, we're announcing today that we have decided to temporarily halt certain amounts of Medicaid funding that are going to the state of Minnesota in order to ensure that the state of Minnesota takes its obligations seriously to be good stewards of the American people's tax money.

Speaker 1:
[53:41] Chris, because JD went to Yale, can you law-splain to him why this withholding almost a quarter of a billion of dollars in Medicaid funding from the state is wildly illegal?

Speaker 7:
[53:53] I mean, it's so illegal. They go through no process. They go through, like, this is one of the most clear, well-regulated systems for funding outside of social security that we have. And they just, like, declare at a news conference with Dr. Oz standing behind him.

Speaker 1:
[54:20] In the background nodding.

Speaker 7:
[54:21] That this is going to end. Like, we don't even get to, like, I'm not even getting to the impoundment of it all. And outside of that, it's so unpopular. You are making lives more difficult overnight for, not just for the poor people that you don't care about.

Speaker 1:
[54:45] Right.

Speaker 7:
[54:45] But for the other people who go to those hospitals who are going to be impacted. To the nurses and doctors and even hospital administrators who you love.

Speaker 2:
[55:00] Right.

Speaker 1:
[55:01] If you didn't love our immigration enforcement, wait until you see our defunding of hospitals and medical care.

Speaker 2:
[55:06] Right.

Speaker 7:
[55:06] Like, it's like it's just it. It's another example of this, like lashing out. I mean, honestly, whenever JD Vance is in charge of something, it is something that they've like, part of me is thinking at this point, like early on I was thinking that they were putting him out for the unpopular things. At this point, I actually think that he's just so stupid that these are things. He's in charge of, and he keeps just choosing bad directions to go with them. Because like, it's just so often, like how could you decide that this would be the way to go forward with this attack on Minnesota? It's not going to work. It's going to like anything as soon as litigation is there, if they actually even go through with it. Like, that's the other thing. Like, how much of this is like a press conference that, like, it turns out you can't even do it?

Speaker 1:
[56:11] Right, they really want to feel like big boys and threaten people. There's no button you can press. Yeah.

Speaker 7:
[56:15] Like, to the extent they actually try to implement it, like, there's going to be litigation. It's going to be stayed. They're going to be held up in court.

Speaker 1:
[56:27] Yeah, yeah. Okay, so, withdrawing Medicaid funds. Wildly illegal. Statute says certain processes have to be followed. They didn't follow those, right? Statute doesn't authorize the president just to rescind funds or freeze them, whatever he wants. A separate federal law prohibits him from doing so, the Empowerment Control Act. And then there's a whole 10th Amendment. You're not allowed to coerce states, right, by threatening all of their federal funds to do something unrelated anyways. But I think they are partially emboldened, at least, to threaten this because the Supreme Court blocked lower court decisions that had halted their efforts to freeze other funds through the Department of Education, the National Institutes of Health, and elsewhere. Strict Scrutiny is brought to you by Cook Unity. In the heart of winter, and yes, I know it's March, but I live in Michigan. In the heart of winter, my favorite comfort foods are khao soi and soups. 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There are some other pieces of news I wanted to acknowledge that are also in my view cases is where the court's hands aren't entirely clean. The first is the absolutely horrific death of Nurul Amin Shah Alam, a nearly blind refugee who fled ethnic persecution in Myanmar and Customs and Border Patrol dropped this man who didn't speak English, couldn't operate a phone, couldn't communicate, and was blind in one eye and could see only three feet in front of him out of the other at a closed coffee shop five miles from his home on a cold wintry night. He was found dead several days later. The mayor of Buffalo, where this man, a father, lived, blamed federal immigration officers for his death. Agree. But I also don't want people to forget who let the administration continue to deploy its crazy, excessive, and aggressive roving patrols of immigration officers stopping people based on their apparent race and ethnicity, even if they are refugees who aren't to be removed, and that of course is the Supreme Court. And I just wonder if Brett Kavanaugh would call this a brief encounter where a man was promptly released.

Speaker 7:
[61:49] Yeah, it's horrific. And I do think, like, I've been doing a lot of work on the refugee-specific aspect of this and some of the really aggressive ways that they're looking at trying to essentially buy into, like, it's literally a, like, let's back into Donald Trump doesn't trust Biden, says he doesn't trust Biden's vetting of refugees. And so let's back into a policy to, like, essentially starting the literal policy is starting January 20th, 2021. Any refugees have to be re-vetted. And like trying to say that they can detain those refugees while they're being re-vetted, that's being litigated in Minnesota because that's where they first tried to implement that. But this is sort of a combination of the Kavanaugh stop of it all with this, like, not just disregard, but like disrespect for the purpose of refugees. Refugees, yes. And it's just, it's lawless and offensive.

Speaker 1:
[63:05] The second Supreme Court related piece of news is that, as we are waiting for the court to issue its decision about the validity of laws banning transgender athletes from participating in sports, Kansas adopted one of the most evil anti-trans laws in the country. This one purports to invalidate driver's licenses and birth certificates of transgender Kansans who changed the gender markers on those documents, although a letter went out suggesting maybe it's not validating those documents immediately. But it literally prohibits driving while trans. Law also bars trans people from using restrooms that align with their gender identity. But I personally can't wait for the court to tell us that there's no history of discrimination against trans people and therefore no reason for courts to look closely at those laws. But now, shifting to the topic of legal news generally, I mean, the pieces of legal news we just touched on, Chris, really relate to some issues you've been on the forefront of kind of diving deeper in. And so I wanted to talk with you about journalism in this era and the stories that do or don't come to light and how. So at Law Dork, you've been breaking some news that it really hasn't been covered or has been overlooked elsewhere. And one thing you alluded to is the case involving medical care for transgender inmates. So can you share like what Law Dork was able to report and find and uncover there and where that case stands?

Speaker 7:
[64:27] The January 20th executive order that Trump issued on day one, that was known generally as the like definition of sex executive order, also contained provisions directing the Bureau of Prisons to essentially act on that. And so really starting, I believe the first lawsuits were actually filed in January, challenging and attempting to stop Bureau of Prisons efforts to transfer trans inmates, to discontinue medical care for trans inmates, to discontinue being able to get items from the commissary that would be in fitting with their gender. And they had those cases going forward and they all got assigned to and consolidated before Judge Royce Lamberth, who is a Reagan appointee, has been on the bench for nearly 40 years. But as I'm sure many Strict Scrutiny people know, is also a guy who is very comfortable, aggressively looking at the government and the government's actions. And he has blocked a lot of that. And one of those cases that sort of taken the lead is a class action case. And there is one person who has regularly been a witness in submitting declarations for that, Grace Pinson, and had been presenting evidence that she was being retaliated against. And on February 19th at a hearing, DOJ's lawyer there basically had no information responding to that retaliation. Lamberth was a little upset, and was like, when the DOJ lawyer said there's no evidence of it, he said, there actually is. There's a declaration. It's uncontroverted by you. You've not even looked into it. And so he issued a protective order saying, no more retaliation against witnesses in this litigation. Literally starting the next day, Grace Pinson in a prison in North Carolina started getting further retaliation. She had a visual strip search that was very invasive in front of mail guards. She had her legal papers taken and thrown into another cell that had feces on it. She reported in her declaration that some of her legal papers she had to throw away at that point. She was supposed to be moved and that was held off. And then the lieutenant at the facility literally told her, I don't give a fuck what the judge says. I do what I want. And so the lawyers-

Speaker 1:
[67:33] And Royce Lamberth was not into that.

Speaker 7:
[67:35] The lawyers immediately went to court, filed a motion for a show cause order for civil contempt to in violation of that February 19th order. Lamberth came back within like 12 hours, set a hearing on Thursday morning for 2:30 PM Thursday, in-person hearing. And I went to that hearing and DOJ still didn't have facts. Lamberth was not happy. He basically said, you still don't have facts. You can say what you want, but I'm looking for facts. That argument, time went so badly for DOJ that when the ACLU of DC lawyer got back up, he made an oral motion on the spot for a TRO to protect the inmate, to protect Pinson, including, I mean, he did go aggressively far and said to immediately move her to a halfway house, which is where she's supposed to be moved, but then in the alternative for them to make a detailed plan for how they are going to be protecting her against retaliation. And he then went back to chambers. He granted the show cause order. He asked for the name of the warden, which DOJ initially didn't know, which offended him further. Like he was like, this particular prison has been at issue. It's the issue of the show cause motion. And you still don't know the name of the warden. And he, so he came back with an order, order to show cause, ordering DOJ, naming all of the people, including naming the warden, that they need to respond by Tuesday. And then partially granting the TRO, saying they need to have a detailed plan to protect Pinson and her former roommate. And then is going to have the show cause hearing next Wednesday.

Speaker 1:
[69:47] And we will await that. So that was a great breakdown of where things stand on that case, which again has really flown under the radar. And the other case that had wanted to highlight your involvement in is the litigation concerning the administration's new policy about detaining refugees that we had talked about previously on the show and that you alluded to earlier. And in that case, you at Law Dork were actually able to break and share the new policy before other outlets were. And you actually kind of became involved in the litigation by like filing requests for the information, if I'm not mistaken.

Speaker 7:
[70:26] We tried, we filed a motion to intervene in the case for the purpose. A habeas cases, immigration, habeas immigration cases, by default under federal rules are not on the public filings, aren't on the public docket. And you have to like literally get them from the courthouse. And only judges orders are on the public docket. We filed a motion to get those opened. The magistrate judge denied our request because he said you can get them from the courthouse, which is ridiculous. And like you saw judges in all the Alien Enemies Act cases, once the Supreme Court required them to go to habeas, almost all of the judges in those cases converted those to being open. Because the federal rule that says that they're by default, not public filings, does say unless the judge orders otherwise. So we tried to do that. But in the course of doing that, I became involved in the case. And so lawyers are aware of my interest in the case, and I'm able to get the documents more quickly. And yeah, no, I reported that overnight. And it is a very aggressive, it's a reading that has not been the reading since the Refugee Act of 1980 became law, that basically when you become a refugee, eventually you adjust your status to lawful permanent resident. And essentially what the new policy is, is that if you've been here for more than a year and don't adjust immediately on day 366, they can detain you.

Speaker 1:
[72:14] Yeah. And you can't immediately have your status adjusted like the next day. So it's basically requiring detention, you know, for that period, which is part of what makes it so, so horrific. Like you get a year and then you're indefinitely detained.

Speaker 7:
[72:29] They claim that they're not allowed to indefinitely detain people. And yet they also make clear that it's, it can be more than 48 hours. And so it's a bad argument. It's under consideration at the district court. And I'll be, I'll be, I'll be following it as it moves forward. I do think like one of the, since this is independent media day, one of the like really great things that independent media can do and does do successfully is draw attention to cases that other people aren't paying attention to. And like, honestly, like literally, sometimes once it becomes a thing that other people are paying attention to, I can move on and I can start to pay attention to other cases, but like, and so this was a case, like all of a sudden I was writing about it. The Washington Post was stealing my work. CBS News was stealing my work. They might have something in common. I don't know what it is. But then all of a sudden at the hearing, I noticed that there were like nine other publications on the hearing. And so like that is a real, it is a true advantage, even if it is like, like just like self-interested media, like that independent media can lead other forces to other media to start covering it.

Speaker 1:
[73:57] Strict Scrutiny is brought to you by Jones Road Beauty. I am not a makeup person. I don't know if that's because I don't like the feel of a bunch of stuff on my face, or if it's just because I'm kind of lazy with making myself presentable, or because I just kind of object to the heavy get ready routines that are foisted on women. Many possible reasons. But I found makeup I love and actually use in Jones Road Beauty. One of my favorite items is a Jones Road Beauty Miracle Balm. Part of what I like about the Miracle Balm is I don't feel like I'm covering up my face or caking on a new different face. It's still my face. It's just brighter. Plus, the Miracle Balm can replace multiple steps in my routine. You can use it as a highlighter, bronzer, blush, lip tint. It's the ultimate no fuss multitasker. And it saves me a bunch of time. There are no brushes, no especially complicated routines. Just my fingers and go. It's easy enough for me to manage. And I can easily pack it for travel because it's not a liquid. And an added bonus is I know I'm using a product that's actually good for my skin. Because all of their products, including the Miracle Balm, are packed with skin-loving ingredients. All Jones Road formulas are clean and high-performing. No sulfates, petrolatum, pegs, a bunch of other things I can't pronounce, BPA, and others. Because clean beauty is a no-brainer. Jones Road doesn't just have their famous Miracle Balm. They built a full lineup of effortless skin-first staples, like their Just Enough Tinted Moisturizer. I've been searching for a tinted moisturizer that didn't make me shiny, or again feel like I'm kicking on a different face. And that's why I use the Just Enough Tinted Moisturizer. It's a lightweight formula that smooths and evens skin tone with a soft touch of coverage. Modern-day makeup that's clean, strategic, and multifunctional for effortless routines. For a limited time, our listeners are getting a free shimmer face oil on their first purchase, when they use code strict at checkout. Just head to jonesroadbeauty.com and use code strict at checkout. After you purchase, they will ask you where you heard about them. Please support our show and tell them our show sent you. So now let's shift to talking about bad decisions spring training season. So the Supreme Court heard oral arguments last week, not in any big ticket cases, but still gonna bring you up to speed on what they did here, and then we'll talk about their decisions. So last Monday at the court was Cuba Day. And if you, like Melissa, are in your John Slattery season, you could watch Dirty Dancing Havana Nights to get with the program, which lacks the abortion backstory of the original, but does feature a young Diego Luna in addition to John Slattery. Anyways, on Cuba Day, the court heard two cases, Havana Docks vs. Royal Caribbean Cruises, about the meaning of the Libertad Act, and specifically, which United States nationals are authorized to sue for claims that their property was confiscated by the Cuban regime. Can anyone sue a defendant who trafficked in property, or does a plaintiff have to show that they'd still hold the property but for the expropriation? In which case, that might bar claims like the one here where the plaintiff had a leasehold to a property that has since expired. That same day, the court also heard ExxonMobil versus Corporacion Cimex about whether the Helms-Burton Act abrogates foreign sovereign immunity of Cuban instrumentalities, or whether the plaintiffs seeking to sue instead have to satisfy an exception under the Foreign Sovereign Immunities Act. The president, for his part, participated in Cuba Week by, at the end of the week, floating the possibility of...

Speaker 11:
[77:24] Maybe we'll have a friendly takeover of Cuba. We could very well end up having a friendly takeover of Cuba.

Speaker 1:
[77:33] Back to this Supreme Court case, which generated this week's clip without context, something I just started during the terrorist episode, which you can hear here. Suspenders.

Speaker 2:
[77:42] I don't buy that one.

Speaker 1:
[77:44] Now, last week, the court also heard Enbridge versus Nessel, which is about the 30-day deadline to remove a case from state court to federal court. If a case is filed in state court, but could have been filed in federal court, in many instances, the defendant has the opportunity to take that case from state to federal court, but they're supposed to do so in 30 days. This case is about whether case can still be removed after the 30 days are up. There's one moment where it seemed like the justices were a bit bored with this case.

Speaker 12:
[78:10] All we're asking you to do is to declare that the presumption applies, that it hasn't been rebutted by the clearest command, and to reverse. I mean, it could be an opinion that's 160 pages less than the tariffs opinion last week.

Speaker 13:
[78:21] Well, if, well, that's certainly a goal to aim for. I felt very left out in the tariffs. Justice Sotomayor didn't write, and I didn't write opinions, but if...

Speaker 7:
[78:40] Maybe we'll have a chance.

Speaker 1:
[78:43] Chris, how scared should America be that Sam Alito had his feelings hurt?

Speaker 7:
[78:49] Yeah, I don't think we need to worry about it. I think it was weird to have such a technical case. It was the only case that day, and I think that just they were sort of like, they knew they weren't going to go long with this argument. It's not like this was going to be a two and a half hour argument. And so like, yeah, like even, even, even Sam Alito can make a joke.

Speaker 1:
[79:13] Had a little fun.

Speaker 7:
[79:16] Like that, that was what I thought. I was like, wow, this is the day that even Sam Alito is making a joke.

Speaker 1:
[79:24] I don't know if this is like the groundhog being afraid of his shadow or what exactly this is a sign of. But yes, you're right. A rare example. So staying on theme week, you know, this last week was also apparently Michigan week. The court heard Pong versus Isabel County, Michigan, about how to calculate the value of something. Here, a piece of property taken by the government to satisfy an alleged tax debt. So the former homeowner alleges the house taken to offset the debt was sold for way below market value and therefore constitutes a taking of property. The homeowner says the issue is the difference between the sale value and fair market value. The Solicitor General's Office, the federal government, arguing on behalf of neither party, said, court should consider the fairness of the sale process, not like the difference in prices, and Michigan is arguing the sale value as the value is the value. I read the justices as pretty skeptical of the homeowner's position, in part because foreclosure sales often go for less than fair market value. On the other hand, the justices, or at least some of them, did feel like something was unfair or wrong here, as you can hear here.

Speaker 14:
[80:27] I want to echo what Justice Gorsuch said. I mean, it seems like there was some real unfairness to your client. I mean, frankly, reading the briefs, it sounds to me like this tax assessor was like Inspector Javert, but it was even worse because Jean Valjean hadn't stolen the bread. I mean, you didn't even know the tax.

Speaker 1:
[80:44] One notable moment was the following clip.

Speaker 15:
[80:47] Well, in this case, with a tax debt of about 2200 bucks, it could have been the Peloton bike that was in the house.

Speaker 13:
[80:53] You think a Peloton bike today is worth $2,000? Well, if you go on Facebook Marketplace and you try to sell a Peloton bike today for $2,000, I don't think you're going to be very successful.

Speaker 1:
[81:07] This raised a really important question, Chris. Is Justice Alito on Peloton? And if so, what would his handle or username be?

Speaker 7:
[81:15] It was this weird moment because it was awareness both of Peloton and Facebook Marketplace.

Speaker 1:
[81:25] Facebook Marketplace makes more sense. Don't you think like Martha Ann and Sam are the kind of old on Facebook?

Speaker 7:
[81:31] Yeah, that's where she gets her flag making material.

Speaker 1:
[81:34] Right. Exactly. Yeah. Listeners, we invite your ideas for his Peloton handle. I'll just throw out a few. Pelotonito, I don't know if you wanted that one or they're going fast, like Virgonia, but they're going fast. Yeah. But again, we welcome suggestions. So now we got some opinions last week from the court here too, none of the high-profile cases, but cases that still could be quite consequential. And so one opinion was in Hay and Celestial Group versus Palmquist. And there the Supreme Court unanimously held that if a party is mistakenly dismissed from a case, the party's dismissal can't cure the court's lack of jurisdiction. Basically, federal courts have jurisdiction, power to hear cases, where there's diversity between the parties. The plaintiffs are citizens of one state and the defendants are citizens of others. But in order to hear the case, there has to be what's called complete diversity, i.e. no defendant can be from the same state as a plaintiff. Here, one defendant was, but the district court dismissed that plaintiff from the suit, albeit improperly. And the Supreme Court said that doesn't cure or fix the jurisdictional problem, and therefore the case still has to be dismissed. We also got the opinion in Geo Group vs. Medi-Call, case I know you've written about, Chris. So do you want to tell us what the court decided here?

Speaker 7:
[82:54] Yeah, I mean, this was a case that's been going on since 2014, and which in and of itself is sort of the issue, alleging essentially forced labor at the Geo Groups facility in Colorado. And the lawsuit had been going on when there was originally a class-certified Geo Group appealed to the 10th Circuit. They lost, they went back, and then there was this argument that came out of a case from the 40s that they were claiming that they had derivative immunity. And that because of the fact that they were a government contractor, that they have derivative sovereign immunity, and because of that, when they were found to have acted outside of their authority, and thus illegally, and not getting the immunity, that they should be able to appeal it right away as well. And that is the limited area where the government, where anybody can appeal in the middle of a case, and the interlocutory appeal. And the case got to the Supreme Court, the 10th Circuit said, no, you can't do that. This is a defense, not an immunity. And then it went to the Supreme Court, and Justice Kagan had the opinion for the court. And she said the same thing. And she said, look at this. This is the, an immunity is saying, it doesn't matter if I did it. I don't need to answer for it. Whereas a defense is saying, I'm excused from doing this. And she said that the difference between that does matter for these purposes of if you can appeal in the middle of a case, because a defense, you should have to, you can go through court and just go through the full case. And because of that, the people on GeoGroup side were not just the private prisons, it was also the Chamber of Commerce who was saying, no, no, no, all government contractors should be able to invoke that. And essentially what it was, was an argument for private contractors to be able to act like the government and avoid accountability, a drag out litigation and the Supreme Court, luckily, 9-0 said, no, that's not the case.

Speaker 1:
[85:54] So two other decisions from the Supreme Court last week, one was in Villarreal versus Texas, where the Supreme Court held that a trial court's directive that an attorney over an overnight recess not discuss the defendant's testimony with the defendant, which was again going to span the recess, did not violate the Sixth Amendment guarantee of effective assistance of counsel. The Supreme Court made clear that the defendant wasn't prohibited from talking to his lawyer or conferring on topics including sentencing. Justice Alito and Thomas wrote concurrences, cosplaying as an originalist. Alito noted that at the founding, defendants weren't even allowed to testify because they weren't viewed as competent, so NBD, and Thomas joined by Gorsuch wrote separately because they didn't like all the guidance that Justice Jackson's opinion for the court supplied. Then the other case is maybe another potential sleeper, and that's Postal Service versus Conan. And here the Supreme Court held that the United States retains its sovereign immunity, immunity of the kind Chris was explaining just now, but it retains its sovereign immunity for claims that arise out of the intentional non-delivery of mail under the Federal Tort Claims Act, the law that allows you to sue the United States sometimes. So the FTCA waives the United States immunity for lots of claims, but not for claims arising out of the loss, miscarriage, or negligent transmission of letters or postal matters. And the Supreme Court said, miscarriage and loss can include intentional non-delivery, and therefore you can't sue over that. This opinion was five to four. Justice Sotomayor wrote the dissent for the three Democratic appointees plus Neil Gorsuch. Chris, I thought this was kind of a scary ruling to come down before the midterm elections. Like what if Trump's postal service just doesn't deliver ballots? How real is that? Or is that even a concern?

Speaker 7:
[87:37] Mark Joseph Stern, a friend of both of ours, wrote a good piece at Slate about this. His point is that this takes away a tool that discouraged bad acts. And I think that that's right. I also think, though, that litigation about the non-delivery of mail and not pick up the mail is never going to fix anything that's going wrong. And so I think it is more, it's more, I think, a sign of like the unfortunate, like people were confused about why Gorsuch was descending. I think this fits because you and I both know that Sotomayor and Gorsuch have come together a lot on moments, sometimes when it's just the two of them in opposing overreaching of government powers. And so this I think was, it was actually, I think great to see Kagan with the three of, the other three of them in saying like, no, no, no, we don't want to expand sovereign immunity.

Speaker 1:
[88:53] Yeah, that was great. Well, so on that note about elections, stay tuned for my conversation with Marc Elias about how the Manosphere is trying to mansplain its way into autocracy. And listeners stay tuned until the end of the episode to hear Chris and my favorite things. For this segment, I'm delighted to be joined by Marc Elias, Chair of the Elias Law Group and founder of Democracy Docket, an independent media outlet in an era where we really need independent media. Welcome to the show, Marc.

Speaker 16:
[89:21] Thanks for having me.

Speaker 1:
[89:22] So today we are going to be talking about how Articles 1, 2 and 3 have their sites set on our democracy. We can go quickly over Article 1, Congress, because this Congress isn't doing that much besides rolling over, but they are considering the SAVE Act. The House passed it and the Senate is considering it. Marc briefly, what is the SAVE Act and what would it do for elections?

Speaker 16:
[89:44] Okay, so the SAVE Act is actually confusingly several different laws. So we're actually, the one that everyone is talking most about now is the SAVE America Act. Donald Trump insisted that America be added to the second iteration because he thought to save alone was not sufficient.

Speaker 1:
[89:59] So it's like save up.

Speaker 16:
[90:03] So the SAVE America Act would basically do four things. Number one, it would impose a very strict photo ID requirement on every state. So it would tell them both what photo IDs they must use, but also what photo IDs they can't use. So for example, the bill specifically bans any educational institution IDs from being used. So even if you have the University of Michigan or the University of North Carolina or, you know, pick your state university where the IDs are issued by the state itself, those could not be used, period. So that's the first part of the bill. The second part of the bill is what they refer to as the proof of citizenship requirement. This requires people to prove that they are citizens in order to register to vote. People, that may sound like a simple thing. It's actually quite a complex thing to prove citizenship. Essentially, there are only two documents to prove citizenship in the United States. One is a US passport, a valid US passport or current, not expired. And then the other is an original birth certificate or a birth certificate that has been obtained, a certified copy that has been obtained by the state. That is also much harder to get than many people think because many people don't have their original birth certificates and ordering them and getting them in a raised seal version from a state is not simple. Also, I would remind the audience that if anyone thinks Donald Trump is just going to accept any old state's birth certificates as the state of Hawaii, which issued birth certificates of Barack Obama, and of course, Donald Trump came to political problems.

Speaker 1:
[91:35] Or the state of Minnesota, which he's just attacking left and right. I mean, you know.

Speaker 16:
[91:40] Correct, right? And so the whole birther conspiracy was him denying the validity of birth certificates. Plus, as you know, Donald Trump is right now in the Supreme Court trying to say that birth certificates actually don't prove citizenship in the birthright citizenship case. So that's the second part of the law. That would also disenfranchise tens of millions of women who have changed their last name when they got married because their birth certificates wouldn't match the name on their photo ID.

Speaker 1:
[92:05] Part of the war on women, many different fronts.

Speaker 16:
[92:08] Correct. The third provision of this would require the purging, the regular purging of names off the voter rolls, using what has been described by pretty much everyone as a flawed database at the federal government level. And that would be, you know, yet another set of challenges that voters would face because, of course, if they were moved by a flawed database in Washington, DC., good luck to you getting added back onto the voter rolls. That is, of course, the SAVE Act as Congress is considering it. But Donald Trump actually puts a put a slightly different gloss on it in the State of the Union. And, Leah, I think that's important because this was in his prepared text. So this is not like Donald Trump just kind of like riffing off the top of his head. This is what the White House thought that was in the SAVE Act. They added a couple of things. Number one, proof of citizen to actually vote, which would mean you'd need that paperwork not just to register, but to actually show up each and every time you voted. And then the last thing, which didn't get a lot of attention, but Donald Trump in the State of the Union also said that the SAVE Act would ban mail-in voting, except for a very narrow class of people who either have disabilities or are sick or in the military.

Speaker 1:
[93:20] Yeah. Unclear if Congress would just roll over and allow the president to declare what's in laws they enacted, but I guess we might be about to find out.

Speaker 16:
[93:29] It's not actually in the text. This is the thing that's going to be very confused.

Speaker 1:
[93:34] It's like, literally, this Mark, they're going to love this. It's a challenge.

Speaker 16:
[93:39] Mike Johnson will be like, Oh no, it's there. It's just an invisible ink.

Speaker 1:
[93:44] Exactly.

Speaker 4:
[93:44] Exactly.

Speaker 1:
[93:46] Well, now that we've already kind of gone on to Article II, which is bleeding into Article I, let's talk more about what Article II is doing. So the Department of Justice filed something like 28 anti-voting lawsuits in the first year of the second Trump administration. Many of these are fringe, unhinged bunk you might have expected from Stephen Miller's organization America First, but now it's coming from DOJ. Can you give us an example or examples of that and what it means for DOJ to now be the one filing these?

Speaker 15:
[94:14] Yeah.

Speaker 16:
[94:15] So you're exactly right. Actually, the Department of Justice has now filed 33 lawsuits. Yeah. The Department of Justice literally added five more in the middle of the night, like literally late last week. They decided to sue five more states, including four Republican states, four Republican controlled states for access to their voter files. So you're right. These are both high volume and also meritless. So it's the perfect Trumpian combination of do a lot of things at once, all of which violate the Constitution.

Speaker 1:
[94:54] Right. Yeah.

Speaker 16:
[94:57] So, look, the biggest class of these cases are efforts to obtain access to sensitive voter data held by the states. So every state maintains a list of every person who's ever registered in the state, every person who's ever voted in the state, and it's quite detailed information. Like it would say, for example, like where you first registered to vote, whether you moved, whether you voted in an election or skipped the election, whether you're registered as a Democrat or Republican, it has obviously your address, your name, your Social Security number, your date of birth. So like the opportunities for identity theft are abound. Yeah. But then it has, like I said, it has partisan information about whether you're a Democrat or Republican. It has information whether you're an active Democrat or an active Republican or not. Like, for example, do you vote in every primary or just some of them? Do you skip midterms or not?

Speaker 15:
[95:50] Right?

Speaker 16:
[95:50] A critical piece of information that if you were trying to target voter suppression, knowing who's likely a Democrat who votes in midterms versus a Democrat who doesn't vote in midterms, super important information. It includes whether you voted in mail or by person, whether you voted early or on election day, whether you voted at a precinct or a vote center, right? Whether you've ever had your ballot challenged, whether you've ever cast a provisional ballot, whether that ballot counted or not, right? There's like a lot of different permutations to this data. Whether you use your social security number or your driver's license to choose as an identifier when you registered, it's a wealth of information and it is the foundation of what states need to ensure that lawful voters can vote and no one else can. And it is also the foundation of what if you wanted to run a massive voter suppression program or disenfranchisement program or contest the outcome of an election, it is exactly the kind of data that you would need. So that is the bulk of the cases they have filed. Now, they have also, strangely enough, gotten involved in a couple of redistricting cases. I know this will shock you. I know this will shock you. But they're big, big fans of the Texas map, not big fans of the California map. They soon are going to block the California map.

Speaker 1:
[97:06] Yeah, yeah, no, completely shock. And we'll get to the developments in the Supreme Court and the courts and what they are doing by way of the midterms in a bit, but just a little bit more on Article 2, Marc, if you don't mind. So we've talked a little bit about how the FBI seized election materials from Fulton County on this podcast. I think a lot of people are worried about this world where DOJ, FBI, DHS and ICE are basically acting as extensions of the Trump campaign during the election. So can you talk a little bit more about what that might look like, or if people are concerned what they should be doing?

Speaker 16:
[97:43] Yeah, people should be very concerned. You know, this is very reminiscent for me, frankly, from 2020, because in 2020, you know, around March of 2020, I started warning about the problems that we were going to have with people voting absentee in large numbers with the, really at the beginning of the pandemic. And by the summer, I was pointing out that Donald Trump was saying things about the elections that were not normal for president to say. And then, of course, in the postal, you know, and a lot of people discounted that. They thought it was alarmist. They thought that we were, like, exaggerating it in that. But you can remember all the commentators who said, you know, of course, it's a peaceful transition of power.

Speaker 1:
[98:19] Exactly. Oh, I remember. I remember my friend.

Speaker 16:
[98:21] It is a little time to process. Exactly.

Speaker 1:
[98:24] He's just working it out. He's using this as therapy. Election denialism.

Speaker 16:
[98:28] Exactly. And I feel like in some respects, we're in we're living in that same progression now, right, which is that he has gone through the the which is now a permanent feature of his politics, which is the let's lie about elections, let's lie about the outcome, let's lie about what's going on. And he has now moved into the what I'll call the litigation phase, right, which is the like using the Department of Justice, try to get access to voter using the Department of Justice to get search warrants, right. He's using the courts and, you know, to some extent, he abides by the outcomes. I mean, you probably have a better Uber sense of like how much he abides by the outcome. But like it at least continues to look normal ish in that it is things are being litigated out in court. But what I have warned people is that Donald Trump is going to continue to escalate. I mean, he thought that his ticket to maintain power in the midterms was simply gerrymandering. That has not panned out for him. Then he thought it was going to be the SAVE Act. That is not panning out for him because it's not going to be enacted. Then he thought that it would be these lawsuits that they're filing. Well, so far, the Department of Justice has lost every court case that a federal judge has decided involving these voter files.

Speaker 1:
[99:42] Impressive. Impressive in many respects.

Speaker 16:
[99:44] It's not easy, right? I mean, as I say to folks, it's really good for my ego because it runs up our win-loss ratio against, you know, every one. But yeah, it's not great. And then now he is, though, starting to say what comes next. So what has he said? He has said that Republicans need to take over the voting, and he has specifically said 15 places. He has said that he wished there wouldn't be midterm elections. Now, there will be midterm elections, but when you start to have the president of the United States amusing that there shouldn't be midterm elections, that Republicans should take them over.

Speaker 7:
[100:16] Red flag.

Speaker 16:
[100:17] That's a red flag, right, of what is going to come. So what I am expecting is, you know, you're wearing a Minnesota No Ice T-shirt. Soon you'll be able to, as we get closer to the election, I think you'll be able to expand the number of states on that T-shirt. Because I think what he's going to do is use the federal paramilitary forces available to him. And ICE is obviously one of them, although not the only one. And I think that's an underreported story, that actually the shooters, in at least some of these cases, are CPP.

Speaker 1:
[100:49] Yeah, yeah, right.

Speaker 16:
[100:50] So like, it's not just ICE. Like, he's got a lot of paramilitary forces available to him. And I think you're going to see them active. And it doesn't require them to be at the polls with guns. It just means that they need to cause the kind of mayhem that you saw in Minneapolis in the streets. Because like, honestly, if you have ICE officials blocking off streets and pulling people over and breaking their windows and pulling people out of the park.

Speaker 1:
[101:12] Dragging them out of the street, yeah.

Speaker 16:
[101:14] That's going to create the kind of environment that, frankly, US citizens who have nothing to worry about are going to be like, I don't need this trouble. I don't need to try to work my way through traffic. I don't need to wind up in a situation where voting, rather than taking me a half hour, is going to take me three hours. And it's going to be like going through the gauntlet. So I think you're going to see a lot of that. And then finally, if that doesn't work, then we're going to see more ballot seizures and more efforts to just overturn the results.

Speaker 1:
[101:41] Well, that is uplifting. But as your last answer is suggested, a lot of what Article 2 is doing has been involving the courts. And because this is the Supreme Court podcast, I wanted to end on a lightning round of Article 3 and how the courts are doing things that are already influencing and will continue to shape the landscape for the upcoming midterms and future elections. So Marc, you already kind of alluded to the redistricting and the Supreme Court's or federal court's actions on partisan gerrymandering. How have the courts been shaping this redistricting war?

Speaker 16:
[102:20] Look, I think that we don't know. And one of the... We don't know yet. And I'll tell you specifically, but I think that... And this is a lesson, frankly, I've learned from you, listening to you over the years and, frankly, in talking to you about this. Like, the Supreme Court... And I don't know whether it's on purpose or not. I leave that to you and the experts on your podcast. But the Supreme Court seems to have this way of operating, which is they kind of give the pro-democracy forces some win relatively early, then to be followed by an avalanche of stunning defeats, right? And like, we could talk about this in past cycles, but like, I was thinking about you recently because of course, you know, the people were very, very excited by Justice Gorsuch's language at the end of the tariff decision, which is not in and of itself a voting decision, but you can read it as like an affirmation that actually Congress is in charge and the president is in fact not able to do whatever he wants, right? So in that sense, it got read as something that is not just a tariff decision, but kind of a broader democracy decision.

Speaker 1:
[103:32] Also, just like side note, how much are they bread crumbing us that we have to salivate and celebrate as victories? The idea that Neil Gorsuch ends an opinion with the suggestion that the president isn't an all-powerful king. Anyway, sorry, you were.

Speaker 16:
[103:47] No, I'm actually glad you mentioned this because I actually have made this point not quite that directly, but like number one, it's a concurrence. It's remarkable that you couldn't get a majority of the court for that.

Speaker 1:
[103:58] Yeah, right.

Speaker 16:
[104:00] And then the second is it has this feel. And, you know, I don't want to digress too far, but it has this feel like every solver in the Supreme Court, justices are like, you know what? I just want to write something that's not really for like the courts or for lawyers, but like might wind up on a hallmark greeting card. I kind of remember like Justice Kennedy, you know, would occasionally do this. And it felt like at the end of this opinion, like Justice Gorsuch was like, okay, I guess one more thing to say, which is just gonna like fit really well on like a placard or a placard. Right.

Speaker 1:
[104:31] Yeah. They're all aiming for this wolf comes as a wolf line and they're never gonna get it, but darn it, they're gonna keep trying.

Speaker 16:
[104:37] Right. So look, the lower courts have been relatively strong in democracy, but there's a lot of cases pending for the Supreme Court. I mean, you know, right now we're waiting on a big Supreme Court case involving redistricting out of Louisiana. We are, as we're recording this, we're waiting on the Supreme Court to see whether it's gonna grant relief to Republicans in the state of New York on an emergency petition. We're gonna wait and see whether the Supreme Court grants cert on a voting case out of the Third Circuit involving technical errors or technical irregularities that voters make and whether that should disqualify their ballots. There's a lot of stuff, plus the argued cases that we talked about. But if you ask me, like sitting here right now, you know, the Supreme Court has basically taken hands off. It basically said, we're not gonna stop Texas and we're not gonna stop California. So it basically said, we're out of the redistricting emergency docket, you know, shadow docket world, at least with respect to those two states. But there's a lot more opportunities in front of us.

Speaker 1:
[105:37] Right, stay tuned for Louisiana versus Calais. You know, the challenge about whether the Voting Rights Act is basically going to restrict states' ability to district, you know, minority voters out of power. Like, that's one of the ones we're waiting for.

Speaker 16:
[105:48] Leah, can I just, like, take a slight issue and challenge here?

Speaker 1:
[105:52] Yeah, yeah, yeah.

Speaker 16:
[105:52] This actually was not about Section 2. Like the only people who made this case about Section 2 were the justices on the Supreme Court. This actually didn't go to the Supreme Court for them to decide whether the Voting Rights Act still is constitutional. This case went up on a much narrower and different legal theory. And then the court on its own, like literally on its own just announced, oh, actually, we want you to argue this other thing, which is whether Section 2 is constitutional.

Speaker 1:
[106:19] Yes, I know. And honestly, I'm not sure if they are going to go that route since they seem to be so interested, or if they're instead going to like weasel through the back door and try to do a Justice Alito-Bernovich special where they basically rewrite the Section 2 redistricting tests. So it's almost impossible for plaintiffs to actually ensure that redistricting is representative. I'm not sure I've really decided which route I think they're going to go, but I do worry we are staring down the barrel of one of those.

Speaker 16:
[106:48] Yeah, I think that the I think that I don't know what the right, you know, my generation we refer to it as shepardizing cases. I don't know if they call it shepardizing.

Speaker 1:
[106:57] Keysiding, right.

Speaker 16:
[106:59] But I think that that just the chief and probably some of the others don't want there to be a little O, you know, when you use a little O if something was overruled. You don't want that. They want like a D, which is like distinguished, right? Right.

Speaker 1:
[107:13] They want a yellow flag, not a red flag.

Speaker 16:
[107:15] Okay, that's I see. I have the most. Now that's the current method, right? And but it will have the same impact, right? So I agree. I don't think they're going to overturn section to the Voting Rights Act. What they're going to do is they're going to adopt one of two tests that are going to effectively overrule the Voting Rights Act. They're either going to say, fine, you can draw a, you can draw a district that gives minorities opportunity to elect as long as it meets the political consideration of the legislature, which means, good luck, you can draw a majority black district as long as it's going to elect a Republican.

Speaker 1:
[107:45] Right, exactly. As long as all the black voters vote Republican, then you can have your district.

Speaker 16:
[107:49] And if they know you can't draw it.

Speaker 1:
[107:50] Right, exactly. I can just see the stepmother from Cinderella saying, if, right, I said if, right? Like you can get that district, if, but yeah.

Speaker 16:
[108:00] Yeah, and then this other alternative is they'll say, you can draw a Section 2 district if it so happens, you drew a district that just so happened to be Section 2, but you can't do it on purpose. And that also will have the same impact. So yeah, that's my, I think that that's probably what we're staring down. The question of timing is really what a lot of people are right now focused on is whether it will be now. I think the court just announced more decisions for next week, more opinion days for next week, or whether it will be the end of June.

Speaker 1:
[108:29] Got it. So in addition to Louisiana versus Calais, we are also looking at two other big voting rights cases that are already on the docket. One is something you already argued, and that's a case about campaign finance regulation. And another is an argument that has yet to occur, and that is the case about whether states can continue to count ballots that are received after election day. So Marc, can you just kind of zoom out and talk for us about the stakes of either or both of these cases?

Speaker 16:
[109:03] Yeah, so they're both my cases, both cases that me and my law firm are involved in. And so I argued the campaign finance case in December. This would allow national parties and state parties to spend unlimited amounts of money on their candidates in full coordination with their candidates. And a lot of people hear this and they kind of shrug their shoulders and say, well, why is that such a big deal? Don't we want strong parties? Isn't the system already broken? And my answer to you is Bert Newborn, who was the head of the ACLU in New York, I think for many years, once said that Buckley v. Vallejo, which is the seminal campaign finance case from the 1970s, he described Buckley as a dead tree that is being pushed on the left by justices and on the right by justices. Okay. And therefore it remains standing. And you know, that is true. And so like, yes, it's a dead tree, but it is standing. And if the conservative justices are able to push that over, it doesn't just open the flood of money from parties. There is no way to distinguish in the long run. I mean, in this case, they'll distinguish it, but analytically, the Buckley framework will have fallen if the Supreme Court says that a contribution limit is unconstitutional. Because once you say a contribution limit is unconstitutional, then like everybody gets to say their contribution limit is unconstitutional. I think that'll unravel.

Speaker 1:
[110:28] So I just want to like unpack that for our listeners who like aren't immersed in this area because the specific regulation at issue in that case limits the amount that a party can give to a candidate and coordinate with the candidate. If you say that contribution limit is illegal, then you are potentially opening the door for individual contribution limits to also be unconstitutional. There was this weird, to my mind, just like hair-raising exchange during the argument where Justice Kavanaugh was asking Noel Francisco, an advocate, who was challenging the campaign finance regulation, like, oh, are you sure you want to actually say those other limits are also constitutional? Because won't you be here challenging those as well? So yeah, analytically, if this one goes, then other ones potentially go as well, or at least they are inviting challenges to them.

Speaker 16:
[111:14] Absolutely. Importantly, Francisco refused to rule out.

Speaker 1:
[111:17] Yeah, exactly.

Speaker 16:
[111:18] He wouldn't be back challenging those limits. Just so the audience understands, here's why this is like kind of, this just becomes inevitable. What the Supreme Court has said is that limiting the amount of money that people can spend on their own independently, that is subject to strict scrutiny. Like that is like, you cannot limit that without, you know, really compelling reasons. And the Supreme Court has said there are no basic reasons to do that. Contribution limits, on the other hand, they have upheld almost universally, because what they've argued is that making a contribution is in and of itself symbolic speech. In other words, you are, the speech you are engaged in when you make a contribution is associating yourself with the candidate that you are approving of. But that, therefore, whether the limit is set at $500 or $5,000 or $50,000 or $500,000, legislatures get to do that, because they have to be given the ability to set those limits. And it's not really impinging on your First Amendment right. Once you say that a contribution limit can be constitutionally held to strict scrutiny, then honestly, all the limits fall, because you're never going to be able to show quid pro quo corruption for every individual who make a contribution. I mean, after all, Leah, if you wanted to give, rather than give $3,500, you wanted to give $5,000 to Kamala Harris' campaign, you would go to court and be like, well, but at $5,000, I'm not corrupting anyone. And that's true. There's no difference between $3,500 and $5,000. So you could just see this is just gonna unravel itself. And eventually the Supreme Court Conservatives will say, well, you know, isn't this over inclusive and under inclusive? Because it's covering some speech and not other speech. And as you know, for Strict Scrutiny, that wouldn't survive.

Speaker 1:
[112:57] Right. So let's just blow the whole thing up. So, Marc, I guess I would invite you just for any final thoughts as we are kind of ticking through, you know, the different branches of the federal government and how, again, the manosphere really seems to be trying to mansplain our way into a deeply undemocratic country.

Speaker 16:
[113:17] Yeah, I'd say two things. First of all, very quickly, people should pay attention to the Watson case you mentioned.

Speaker 1:
[113:22] Yes, the Mississippi one.

Speaker 16:
[113:23] The Mississippi ballot received deadline case. That also will have dramatic impacts. The question there is whether if the US. Postal Service takes a few extra days to get your ballot that you mailed before the election and postmarked before the election, whether it gets thrown in the trash or whether it gets counted. And so people should pay attention to that. But I wanted to end, Leah, on your Article 1 versus Article 2 analysis, because it's something I'm spending a lot of time on. I'm actually thinking I'm outlining a book that I may want to write. Oh, cool. Very much like in my mind, because I think what I've come to conclude is that Article 1 was intended to be the most important. I went back and reread. I was writing for Democracy Docket about the State of the Union. And so if you look at Article 2, the very first thing in Article 2 under the duties of the president is from time to time to report to Congress on the State of the Union. And to make recommendations to them on things they should take up. And I was reflecting on this, that the State of the Union in the Constitution is an obligation of the president to show up at a time that the Congress wants him to give his recommendations that Congress can then take or leave. And it has transformed into this Donald Trump shows up treated like a king with pomp and circumstances and people having their tie autographed, while Congress is there as like the just the doormat of Article 1. So I mean, I don't really have a...

Speaker 1:
[114:55] Well, now Republicans in Congress are asking Trump for permission to do things, right? Rather than the other way around.

Speaker 16:
[115:01] Right. So the question I'm asking myself and the question I'm struggling with is like, how can you have our system of government if Article 1 is not just not preeminent, but is actually not even... What did you say? They didn't show up? I loved... Yeah. Whatever you're afraid... Like, they're just like, they're not in the game.

Speaker 6:
[115:20] Right.

Speaker 16:
[115:22] So what's the answer?

Speaker 1:
[115:24] I do not pretend to have an answer to that big question, but I'm glad to hear you're maybe writing a book about it. So we can work out that problem together. Marc Elias of the Elias Law Group and Democracy Docket, thank you so much for joining us. Again, listeners, independent media celebration. If you're not following Democracy Docket, please do so and subscribe. In this era, the commentary and journalism and public information is more valuable than ever. Thanks so much, Marc, for taking time out of your very busy schedule to join us.

Speaker 16:
[115:58] No, thank you for having me. I love your podcast. I always listen.

Speaker 1:
[116:01] Thank you. Well, that was something, probably something other than uplifting, I'd say. But on a letter note, let's end with our favorite things. Chris, do you want to go first or do you want me to go first on favorite things?

Speaker 7:
[116:13] I'll go first. My favorite things are things that I haven't done yet.

Speaker 1:
[116:18] Okay.

Speaker 7:
[116:18] Jonathan Groff is going to be doing as you like it for the Royal Shakespeare. That obviously, that I know you're well aware of already. Next summer, we have Jonathan Bailey and Ariel Nagrande doing Sunday in the Park With George. But more close to now, I am excited to see Sam Pinkleton's Rocky Horror on Broadway. Sam Pinkleton directed O'Mary and this is his next Broadway production. I'll be seeing that later this spring. Theater is my favorite thing and I am looking forward to exploration in DC, New York, and over in London.

Speaker 1:
[117:11] I love it. Some of my favorite things are also forthcoming things. Totally works. Yes. One of my favorite things is our upcoming live shows next week, or I guess this week when you're hearing it in California. I am beyond excited. I'm so excited. I'm doing something I never do, which is taking it easy and giving myself a break for a few days so I can actually enjoy the California live shows. Yes. Another favorite thing is the article I mentioned on last week's episode and that I manifested an acceptance for. Also looking to the future, Chris, the past advice was accepted into Georgetown Law Journal. I'm super excited about that and to work with the editors. Also favorite things are the friends of the podcast. We've been able to have on the show while we all are traveling, whether that is Steve Vladeck who runs One First Street, Chris Geidner, Law Dork, Marc Elias, Democracy Docket and Independent Media more generally. That has been a really fun part of this segment and wanted to highlight just two quick specific Independent Media things. Steve Vladeck at One First had this post, the Supreme Court is not reigning in executive power, a necessary rebuttal and corrective to this hogwash piece.

Speaker 14:
[118:24] Be it for yourself.

Speaker 1:
[118:26] Also, we at Crooked Media are now going to be on MS Now. So we are going to be airing Saturday nights at 9 p.m. and it's going to be an amalgamation of different Crooked Media shows including us. So be sure to tune in for that. Chris, thank you so much for joining us this week and for being our Independent Media icon. Again, listeners, if you're not subscribed to Law Dork, you really should be as we recounted in this episode. Chris is doing really necessary work and it's so important, more important than ever, to support great independent media. So thanks, Chris.

Speaker 7:
[119:02] Thank you, Leah, so much. It was great to join you.

Speaker 1:
[119:12] Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leah Litman, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. Our music is by Eddie Cooper. We get production support from Katie Long and Adrienne Hill. Matt DeGroote is our head of production. And thanks to our video team, Ben Hethcote and Johanna Case. Our production staff is proudly unionized with the Writers Guild of America East. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app and on YouTube at Strict Scrutiny Podcast, so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.