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, because 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 thesrf.org.

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

Speaker 1:
[01:34] Hi, everyone, it's Leah. After we recorded our regular episode, the New York Times, specifically Jodie Cantor and Adam Liptak released a bombshell story about the origins of the Shadow Docket. And they obtained the original documents behind what was in important respects, the birth of the modern Shadow Docket. And that's the Supreme Court's 2016 decision to stay the Clean Power Plan with no explanation before the plan went into effect and before lower courts had issued opinions about its legality. We obviously needed to discuss this and with the expert on the Shadow Docket, who's conveniently enough invoked in the New York Times piece. And that's obviously Steve Vladeck, Professor of Law, Georgetown Law School, and author of the New York Times bestseller, The Shadow Docket, How the Supreme Court uses stealth rulings to amass power and undermine the Republic. He's also the author of the one first sub stack. Okay. Thanks so much for joining us on late, like literally like 15 minutes notice, Steve.

Speaker 3:
[02:26] Happy to be here. Wish we were under better circumstances.

Speaker 1:
[02:30] As ever. So for people who might not remember what exactly the story is about, back in 2016, generally speaking, Supreme Court wasn't really in the business of firing off unreasoned orders, staying a bunch of lower court opinions or administrative policies. But they did so and really began this unprecedented practice in important ways when, as I said, in 2016, they stay the clean power plan with no explanation. And there's so much to talk about from this New York Times story, but I guess I'll just ask you, what's one big thing that stuck out to you and we can go from there?

Speaker 3:
[03:02] John Roberts.

Speaker 1:
[03:03] Oh, yeah. Want to say a bit more there?

Speaker 3:
[03:06] Sure. So, I don't think that either you or I, or most of the folks who listened to Strict Scrutiny, were ever especially smitten with the balls and strikes canard that then-nominee John Roberts trotted out in 2005. But, if this isn't the last nail in whatever coffin was left for the idea that John Roberts is some impartial, institutionally minded, deeply principled jurist who believes in judicial restraint, I just want to hold his two memos up and say, no. Right? Even though Justice Kennedy is clearly the dispositive vote in this case, none of this happens without John Roberts.

Speaker 1:
[03:50] The story describes how he initiated it. He is the one that puts the state application to the conference, writes a memo saying, I think we should do this. When people push back, he is the one that continues to press for it. His memos, you mentioned the two memos, they read like they were written by industry. A key point of his is that this is, quote, the most expensive regulation ever imposed on the power sector, as if that is the emergency warranting intervention.

Speaker 3:
[04:18] There are so many things to say. I'll just say, and I say some of it in my newsletter this morning. To me, the three things, Leah, that really stand out about the memos themselves, as opposed to just their existence, is one, he is completely wrong about the stay standard. So he invokes older cases that were about stays of lower court mandates, in a context in which what industry was asking him to do, was reach across the separation of powers, and basically almost enjoin an executive branch policy. Everyone agrees that there are no examples before this case of the Supreme Court doing that. So you would think, and indeed, Justice Kagan says as much, and the Solicitor General in their opposition made a huge deal out of this. There's no acknowledgement in his memo that this is new. He cites the standard for a much more traditional stay as if that were the correct standard. So that's one. So one is he gets off on the wrong foot by not even taking the actual request seriously. Two, I mean, Leah, your point about industry, I would slightly reconfigure as a point about irreparable harm.

Speaker 1:
[05:31] Definitely want to talk about irreparable harm.

Speaker 3:
[05:33] This is the guy who is responsible for the court's modern obsession with the idea that anytime the government actions are blocked, the government is irreparably harmed. Yeah.

Speaker 1:
[05:45] Just want to underscore this, right? They have been virtually explicit in shadow docket orders from the Trump administration, that there's almost a per se presumption of irreparable harm for the government whenever the government's policies are irreparably enjoined or paused.

Speaker 3:
[06:02] Leah, what opinion do they cite for that proposition?

Speaker 1:
[06:05] What opinion do they cite for those? Oh, gosh.

Speaker 3:
[06:07] They said in chamber's opinion, but from 2014 by a little guy named John Roberts.

Speaker 1:
[06:11] Yeah.

Speaker 3:
[06:12] Right. Even if you buy the argument that the industry actually faced irreparable harm, and by the way, the court also doesn't think economic costs are ever irreparable harm.

Speaker 1:
[06:24] Yes.

Speaker 3:
[06:24] Right. But even if you bought the conspiracy theory, I want to come, that's my third point about the irreparable harm. This is the guy who also says the government's irreparable harm. Where is the balancing of the equities that the court is supposed to be undertaking here? What about the harm to the administration? What about the harm to the, I don't know, environment?

Speaker 1:
[06:43] No one talks about harm to the environment, nobody.

Speaker 3:
[06:47] I want to get back to why I think the opposition memos are so soft. I suspect you and I have the exact same explanation, which is Anthony Kennedy.

Speaker 1:
[06:54] Exactly. Justice Kennedy is still on the court.

Speaker 3:
[06:57] Right. Then the third point is the factual, and this is more in Roberts' second memo than in his first, but the factual basis for their belief that if they didn't intervene in February 2016, they'd be stuck, right? Is a BBC News story, right? One other random factual statement that wasn't in the record. How do we know they weren't in the record? There was no record.

Speaker 1:
[07:23] Exactly. Yeah. So I want to talk about those citations because this is also just a huge part of the story to me, but just one more beat on irreparable harm, which is it's not only that in my view, the chief has inverted this irreparable harm, it's that he has been so completely unconcerned with all of these claims to irreparable harm, that people whose lives have been totally disrupted by things that Trump administration has been doing, he doesn't care and neither does-

Speaker 3:
[07:51] Or in the funding context. Programs that have to shut down because without funding they can't continue to operate. That is the exact baked in economic costs that was putatively the basis for why they intervened back in 2016. The point is not just that he's being inconsistent, the point is that he's being ruthlessly hypocritical.

Speaker 1:
[08:12] Yes, exactly. Let's talk about the citation because part of the story and what seems to be driving the Chief Justice and maybe some other justices as well, is that the Chief seems really angry at President Obama and the Obama administration and their EPA because what had happened is, the Supreme Court had earlier invalidated the Obama administration's rule regarding mercury admissions. After they do so, the EPA basically says, look, the majority of power plants are already in compliance or on their way to compliance, so this isn't going to be a huge deal. The Chief Justice basically takes offense to this and says, look, this is going to mean our rulings aren't necessarily going to keep these policies from going into effect, reaping their benefits and imposing the costs. The Chief repeatedly gestures to this.

Speaker 3:
[09:07] Let's just be clear, because some people voluntarily chose to comply with the regulation.

Speaker 1:
[09:13] Exactly. Yes. Right. They voluntarily chose to comply with this regulation, arguably suggesting the regulation might not have been so awful after all. Indeed, that was partially the story of the Clean Power Plan, because for all of the Chief Justice is bellyaching, but how horrible and catastrophic this policy was going to be, it ends up industry meets the targets. Their prediction game not so great, but the memos, as you were noting, cite the BBC interview talking about how the EPA said they were taking in the Clean Power Plan to the system, and he invokes the quote comments of the EPA Administrator, and there's so much to say about this. I mean, obviously, this indicates they care deeply about what is said about them, they are monitoring this. They also seem to care deeply about the consequences of their opinions and not just like the reasoning or the judgment, and also where was this energy in SB 8? When you talk about an opinion having no effect, if you come back later, and all of a sudden decide it, and also this is another thing that I could not get out of my head, the hypocrisy of the Chief Justice fixating on these statements when two years later, he says, you can't take anything the president says and use it against him in the travel ban case.

Speaker 3:
[10:24] Trump versus Hawaii seems a little inconsistent.

Speaker 1:
[10:26] It's just wild. It's wild.

Speaker 3:
[10:29] I will give the Chief an eighth of a pass for SB 8 because he was on the right side in SB 8. So we can talk about some of the premonology a bit too. We don't have memos from Scalia, Thomas, or Ginsburg. We have memos from six of the justices. I guess Alito's memo is to me entirely unsurprising. Of course.

Speaker 1:
[10:50] He invokes the court's legitimacy.

Speaker 3:
[10:52] That's right. The court's legitimacy is undermined. Okay. We're back to like in Mirabelli where he says, we can't possibly indulge the someone who might be elected in the district. We later striped down. Never mind that I'm responsible for doing that in Alabama. But I guess I'm a little struck also by Justice Kennedy, because it seems to me that the chief had to be the mover here. This is a case that came out of the DC Circuit. He was the circuit justice. He would have always written the first memo. What's striking to me is that clearly everyone was fighting over Kennedy's vote, which is why Breyer's memo is very civil. Breyer proposes a compromise.

Speaker 1:
[11:34] Vanilla, bland. Exactly. Yes. He offers the compromise basically saying, well, the states can ask the EPA for an extension, and if the EPA doesn't give it to them, then they can come to us. That was his proposal.

Speaker 3:
[11:45] Kagan adds, we can tell the DC Circuit to hustle, which is funny. Roberts pooh-poos that in his response, but it's funny because now they do that all the time.

Speaker 1:
[11:54] Exactly.

Speaker 3:
[11:56] And so what's striking to me though is that the result is that there's nothing in the memo about the stakes. And what I mean by that is the stakes for the court. And I think some of that's because Breyer and Kagan and Sotomayor were all pulling their punches a bit because they thought they still had a shot at Kennedy's vote. But so there's almost like no acknowledgement. I mean, partly because the Chiefs memo doesn't acknowledge how novel this is. Right. None of the discussion inside the court is, is this something we should be doing in general?

Speaker 1:
[12:28] Yep. Yeah. And clearly, I mean, with the benefit of hindsight, they think they did also because they only continue to do it since. And that is also part of what is so startling to me is you look back at their memos, they were wrong about the predictions, they were wrong about so many aspects of this, and they just keep doing it.

Speaker 3:
[12:49] And I think also, I mean, so this is maybe a question for you, right? Because I guess it's a question that it's more about what's inside Justice Kennedy's head.

Speaker 1:
[12:56] Yeah.

Speaker 3:
[12:57] Which is maybe because his memo I find to be the most frustrating of all of them because he's like, I'm persuaded by the Roberts memos without any analysis.

Speaker 1:
[13:07] What aspects of them?

Speaker 3:
[13:09] So I wonder, I mean, I wonder if part of this is Kennedy believes that he'd be the gatekeeper. And that things fall apart not because of the move they make in 2016, but because when the volume ticks up, Kennedy is no longer the gatekeeper, now it's the chief in Kavanaugh.

Speaker 1:
[13:25] Yeah. So that is definitely a possibility. On the other hand, I, and I don't take you to be giving Justice Kennedy a pass. But by the time he steps down, the Supreme Court has already used the shadow docket to give the Trump administration a lot of what it wants on the travel ban. So he has seen, right, like what this might become. And he has seen that the Trump administration is going to be making these extravagant requests. And he decides to give them a seat on the Supreme Court. And so maybe he thought that, right? Maybe this was one of like, I will save the country delusions, but obviously it does not play out that way.

Speaker 3:
[14:01] And then just the last obvious thing that jumps out at me is, no one suggests that any of the substantive exchange should be memorialized, right? So I know, I don't know, right? I'm not sure if folks know.

Speaker 1:
[14:13] He's trying to persuade colleagues.

Speaker 3:
[14:16] Right. But so the actual order we get, right, has no analysis from the majority and has no dissent. I mean, right, the Dems all note that they're dissenting, but they don't say why. Yes. And there's no discussion internally about whether that's a good thing or not. I mean, right?

Speaker 1:
[14:30] Yeah.

Speaker 3:
[14:30] So the court basically opens a Pandora's box because the chief was pissed off at the Obama administration. In a context in which it's completely hypocritical about why.

Speaker 1:
[14:41] Yes.

Speaker 3:
[14:41] Right. And doesn't tell us anything that would give us any insight. Right.

Speaker 1:
[14:46] Exactly. And I think we've already been implicit about this, but the fixation on the equities and the fairness of all of this is also really hard to miss because it was such a reflection of results oriented, judging and the inevitability of these guys views about fairness and equity informing what they are doing here.

Speaker 3:
[15:08] And so this is why I find the timing of the story really fascinating. Because, you know, as, as you know, as I think you guys probably talked about in the rest of the episode, it's been an interesting week for conversations about the Supreme Court's lack of politicization or very politicization between Justice Jackson's speech last Monday at Yale, and Justice Thomas's speech Wednesday at Texas, right? And the, the Justice Kavanaugh is a principled centrist leading us to a bright future book tour. It really does seem to me like this story pours a whole lot of cold water on everything except Justice Jackson's speech, which is completely consistent with what's in the Clean Power Plan memos, that, that the court stopped taking equity seriously, that in the process it stopped caring about how its behavior affects anyone other than who the court uses its constituency, and that that's the central problem with the emergency docket.

Speaker 1:
[16:06] Yeah. Since you mentioned the Justice Kavanaugh is an institutionalist and willing to save the country book tour, did want to explain for our listeners who might not understand it. On this podcast, we constantly struggle between wanting to talk about things and not giving them airtime or platform. This is an example where this already has a platform. One of the co-hosts of Advisory Opinions, who's now the publisher of Scotus Blog, Sarah Isger, Sarah Isger Flores, former spokesperson for the Trump DOJ during child separation, has a new book, Last Branch Standing, in which she argues the Supreme Court is awesome, and they're doing amazing sweeties.

Speaker 3:
[16:45] Especially Justice Kavanaugh.

Speaker 1:
[16:46] Especially Justice Kavanaugh, and they have this grand plan to save the country from executive power and that's actually what they're doing all along. Indeed, the day before this Cantor-Liptak story runs, she has an interview with Ross Duthat and the New York Times explicating the thesis of that book. Again, Supreme Court doing amazing, Justice Kavanaugh is going to save us, and they're reigning in executive power. I just don't know if you can have a better reveal about why exactly that is so misguided, and also underscoring how it is obviously an effort to legitimize and give cover to what the court is doing, than this one-two punch, but that was the reference.

Speaker 3:
[17:29] No, and it's whitewashing the court, because part of what I find, and I have not written anything about the book. I wrote a piece in my newsletter back after the Tariff's case, because Sarah Isker wrote a piece in the Atlantic after the Tariff's case, where she said the real program of the Roberts Court is reigning in presidential power.

Speaker 1:
[17:48] Oh my God.

Speaker 3:
[17:50] It's not just like Leah and I both roll our eyes at that claim. It's that the actual analytical foundation for that claim is based on a remarkably superficial series of easily debunked and or incomplete assessments of the work of the court. She writes a piece about the Trump administration being reigned in by the court that ignores just about all of the Trump administration's wins on the emergency doc last term. I don't know how you can do that. And so it seems to me that part of the problem here is that you can believe that the court is getting things right in these cases. I don't. But the notion that this is somehow reflecting some deep body of coherent principles that reflect judicial decision-making at its finest, I think is rather blown up by what we learned on Saturday.

Speaker 1:
[18:40] Yes, completely. And if you ever find yourself perusing legal commentary that treats the range of reasonable views as somewhere between the Shadow Docket is pretty good to the Shadow Docket and Justice Kavanaugh are amazing, you might want to ask yourself, what exactly is this commentary slash publisher slash expert exactly trying to sell me on? That will be my final note.

Speaker 3:
[19:04] Yeah, I mean, I'm not sure how to talk that except to say one more thing. Yes. Which is, as Leah, I think you know about as well as any other human being in the planet, this has been my project for the better part of a decade. And I think it's worth stressing that whatever, there's going to be efforts on the right to sort of say what the court did in the Clean Power Plan cases was totally legitimate. The same folks who thought that the Obama administration, I mean back to the Isger thing, that Obama was just as bad as Trump, because he said, I have a pen, and I don't remember what the other thing he had was, but you can think that the results in these cases are correct. You can think that the court was correctly pissed off at the Obama administration. We are increasingly past the point where you can defend the court against charges of hypocrisy, inconsistency, and lack of principle. And so if your only principle is that I like the result, it very well may be possible, friends, that you don't have any principles.

Speaker 1:
[20:06] Great note to end on. Again, this New York Times piece, incredible reporting, what a public service. Thank you to Jodi and Adam for getting this out there and getting this done. Thank you so much, Steve, for hopping on on short notice and for all of your work on The Shadow Docket. If you have read Steve's book, The Shadow Docket, this would not have been surprising. And so, again, thanks mom. Please check that out and also Steve's substack one first, you know, to stay up to speed on all of this. And thanks again, Steve. Thanks, Leah. And now for our regular episode. Strict Scrutiny is brought to you by Cozy Earth. Mother's Day is coming up, which means it's time to treat the moms in your life, including dog moms. And Cozy Earth is a guaranteed way to do that. Cozy Earth creates comfort design for the rhythm women live every day, from the soft plushy fabrics in the morning to the comfort that helps unwind at night. Thoughtful by nature and gentle in every detail, it's a small way to give back to the person who gives so much. I recently expanded my Cozy Earth collection to include slippers. And let me tell you why these are elite level slippers. The fabric is plushy and the footbed is super supportive. I basically can't walk barefoot on wood floors because of running injuries. And so a lot of slippers just don't offer me the support that I need. But Cozy Earth slippers do. They give the support and the plush comfort. Plus they're versatile enough that I've been able to wear them around the house during the 50 degree swings in weather here in Michigan. No joke on 20 degree days or 70 degree days and sometimes those are back to back days here in Michigan. Cozy Earth slippers are where it's at. Cozy Earth also offers risk-free purchases, like their 100 night sleep trial. You can try their products for yourself or with a special mom, again, maybe a dog mom in your life, try them for herself. They also offer a 10 year warranty because Cozy Earth products are made with mom level quiet devotion. Let this Mother's Day be a reminder that she deserves care too. Discover how Cozy Earth turns everyday routines into moments of softness and ease. Head to cozyearth.com and use my code strict for an exclusive 20% off. And if you see a post purchase survey, be sure to mention you heard about Cozy Earth right here. That's code strict for an exclusive 20% off because home starts with mom. Strict Scrutiny is brought to you by Mosh. It's 420, which means it's probably snack time. But I'm also in my 40s on this 420 and the older I get, the more I find myself wanting to be more intentional about the way I live, eat and take care of my body. And that's why I turn to Mosh protein bars. After seeing a loved one's battle with Alzheimer's, Maria Shriver and her son Patrick created Mosh, the brain brand, to inspire and educate you to proactively maintain your brain health. Mosh protein bars are made with ingredients that support your brain and body, like the ashwagandha, lionsmaid, and omega-3s. Plus, Mosh is the first and only food brand boosted with Cognacim, a premium form of citricoline that helps support focus, memory, and mental clarity. And the Mosh bars taste amazing, with nine delicious flavors, including plant-based options and chocolate chip cookie, hazelnut chocolate chip, and peanut chocolate chip. And now, you can save on Mosh while making your wellness routine effortless. Get 25% off plus free shipping on your first 15-count variety pack, and then 20% off for life on your monthly subscription. You can swap flavors anytime based on what you like best. Keep your go-tos on repeat or try something new. Your favorite functional fuel is delivered directly to your door so you never run out, and supporting your brain health becomes a simple habit you can feel good about. Why? Well, MOSH donates a portion of the proceeds from every order to the women's Alzheimer's movement, because two-thirds of Alzheimer's patients are women, and MOSH is working to close that gap, which is part of what makes it a perfect snack to have on hand for Mother's Day. It's more than just a protein bar. It's brain fuel with a purpose. Find your favorites, build your boxes, or keep things fresh with a variety pack. MOSH bars are the best way to customize your health while giving back. Head to moshlife.com/scrutiny and subscribe today to get 25% off your first variety pack and 20% off your monthly subscription with code SCRUTINY. That's 25% off your first pack and 20% off your subscription of brain boosting bars delivered straight to your door. Start building brain health into your everyday with MOSH bars. Thanks to MOSH for sponsoring this episode. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Leah Litman.

Speaker 4:
[24:44] I'm Melissa Murray.

Speaker 5:
[24:45] And I'm Kate Shaw. And we have a great show in store for you today. We're gonna begin by discussing some news. Are you there, God? Because there is a lot of it, in particular involving Pope Leo. We will then walk through the single Scotus opinion that we got last week, and we will also preview the first week of the April sitting. And as always, we will close with some of our favorite things. All right, first up, some news, legal-ish.

Speaker 1:
[25:08] First up is the President and the Pope. You would think that a week after getting flack for posting on social media an image depicting himself as Jesus Christ healing the sick, scratch that, scratch that. As a physician, healing the sick dressed as Jesus.

Speaker 4:
[25:26] As you do as a physician.

Speaker 1:
[25:27] Right, that the President would ease up on the Messiah imagery. You would be wrong.

Speaker 4:
[25:33] This week, the President posted another image of himself, this time being embraced by Jesus. What would Jesus do, indeed? Anyway, I can tell you what Jesus probably wouldn't do. Jesus probably would not pick a fight with the first American Pope. But as should be evident, but nonetheless bears repeating, Donald Trump is not Jesus.

Speaker 5:
[25:59] Amazing that this needs to be said, Melissa.

Speaker 1:
[26:02] Do we need a fact check? Is he Jesus?

Speaker 5:
[26:06] Will we get sued for saying he's not?

Speaker 4:
[26:08] The fact checker says no.

Speaker 5:
[26:11] But yeah, it has been a pretty amazing development in otherwise cursed timeline that Pope Leo XIV, the first American Pope has emerged the way he has as this singular voice of moral clarity. He's increasingly spoken out against the administration's hardline immigration tactics and has now begun to criticize in no uncertain terms, the administration's catastrophic wars, emphasizing the need for multilateralism, championing decency and the rule of law. Last month when DEI Defense Secretary, Pete Hegseth called on Americans to pray for victory in Iran, quote, in the name of Jesus Christ, aka Donald Trump apparently, the Pope in his Palm Sunday message said in what definitely seemed like a response, God, quote, does not listen to the prayers of those who wage war.

Speaker 4:
[26:58] Oh snap. And of course, the President of the United States took all of this personally. Just a few weeks after Easter, the holiest day in Christendom, he decided to drag the Supreme Pontiff, Pope Leo XIV, for filth. Let's roll the tape.

Speaker 6:
[27:14] Why did you attack Pope Leo on social?

Speaker 7:
[27:18] I don't think he's doing a very good job. He likes crime, I guess. We don't like a Pope that's going to say that it's okay to have a nuclear weapon.

Speaker 1:
[27:27] The week on crime is just, I'm obsessed with that line. Whenever anyone says shit to me, I just say, you're weak on crime.

Speaker 4:
[27:37] Or the Dow, the Dow.

Speaker 1:
[27:39] Exactly.

Speaker 4:
[27:41] He's like, have you seen the crime in Vatican City?

Speaker 6:
[27:43] Yeah, think about it.

Speaker 4:
[27:45] In any event, the Vicar of Christ is doubling down on DGAF. Responding to the president's comments and posts, the Pontiff responded, quote, I am not a politician and I do not want to enter into a debate with him. Shorter, Pope Leo, fuck that guy.

Speaker 1:
[28:05] More like who's she? I don't know her, I don't know him.

Speaker 5:
[28:09] That seems more more more Papal, honestly, than Africa.

Speaker 4:
[28:12] More people. Yeah, it's true.

Speaker 5:
[28:14] That is mileage may vary.

Speaker 4:
[28:18] I do think Pope Leo was just like, no, no, no, don't need to. Will not. I do not engage. In any event, Pope Leo also made clear that he would not be cowed by the president saying, quote, I continue to speak strongly against war, seeking to promote peace, dialogue and multilateralism among states to find solutions to problems. Too many people are suffering today. Too many innocent lives have been lost. And I believe someone must stand up and say there is a better way.

Speaker 5:
[28:50] Just eight men. What would Jesus do? He might do that. Yeah, that does seem like it. But don't worry, not one to miss the chance to suck up to the guy upstairs. And here that's Trump not God in this man's universe, despite his avowed piety. The Vice President of the United States also weighed in to say, quote, in the same way that it's important for the Vice President of the United States to be careful. When I talk about matters of public policy, I think it's very, very important for the Pope. I can't even get through this. For the Pope to be careful when he talks about matters of theology, Mr. Vance said.

Speaker 4:
[29:26] Sir, sir.

Speaker 1:
[29:28] What do we call this? Is it God-splaining? Is it Vance-splaining? To the Vatican. It's something else.

Speaker 4:
[29:38] I do think this is an improvement, because it does seem like JD Vance is advocating for a species of separation of church and state. So that's a plus. Let's all look for the silver linings.

Speaker 5:
[29:49] I'm trying to remember the name of his forthcoming book. And I feel like, is it communion? Close.

Speaker 8:
[29:58] Close.

Speaker 5:
[29:59] You'd be forgiven for making that mistake. But in fact, it is something like finding my way back to faith. And as I think about this upcoming book release, I just wonder whether we should revive something that we've done previously, which is have love it on the pod to play Vance maybe in a faux book episode. Anyway, just floating it. Let's think on it.

Speaker 4:
[30:17] I think the vice president would love that.

Speaker 1:
[30:19] I'm sure he would. And I'm really hoping that the vice president manages to do with his book, what he did with Victor Orban, ADF in Germany, the invitation to the Pope and Pope Francis, and that he does with his book in that he helps another book coming out that week, which would be, of course, the paperback version of Lawless and update a chapter on the unitary executive and everything else. So yeah, anyways.

Speaker 5:
[30:52] Get Vance on that now.

Speaker 1:
[30:55] Yes, exactly. Exactly. Have him campaign against my book.

Speaker 5:
[30:58] Yes.

Speaker 1:
[30:59] Ask for better publicity.

Speaker 4:
[31:02] Women are reading and writing.

Speaker 1:
[31:07] But speaking of being careful in talking about matters of theology, DEI Secretary of Endless War slash Secretary of War Crimes, Alleged War Crimes, Pete Kegseth, Kegsbrath. That's not it either. Who was it?

Speaker 5:
[31:24] Was that Katie Fang?

Speaker 1:
[31:25] Katie did Kegsbrath, which Katie Fang. Love her. I love that. Anyways, DEI Secretary of Something, Pete Kegseth quoted a Bible verse that was actually some lines from Quentin Tarantino's 1995 film, Pulp Fiction, that loosely drew on the Bible, but of course was not actually in the Bible because actual reading is apparently too hard. What's your two favorite Bible verses? Wrong answers only. Mine is Duane Reeve Bag with the Handles Tied, says Duane's butt plug lube inside.

Speaker 5:
[32:00] When I tell you the crowd in New York City lost its mind, at that line above all other lines, I am not exaggerating.

Speaker 1:
[32:07] My other favorite line is, I'm coming to the cottage. Okay.

Speaker 4:
[32:11] What's yours, Kate?

Speaker 5:
[32:15] He who picks a fight with Pope Leo shall not have the last word.

Speaker 1:
[32:23] Okay.

Speaker 4:
[32:23] Mine is TikTok you don't stop. TikTok you don't stop.

Speaker 7:
[32:28] Come inside.

Speaker 4:
[32:29] That's for you, Adam Music. Sorry. Inside inside joke. All right. All right. Onto some other news. Speaking of squabbling up, we are about to hit the final stretch of October term 2025, which means the girls and the ghouls are fighting.

Speaker 5:
[32:50] All right. First up, we got a girl, we got a ghoul. In the first ring. Girl versus ghoul. So I think it's now two weeks ago at an event at the University of Kansas Law School, Justice Sotomayor said when asked a question about the Gnome versus Vasquez-Perdomo case, quote, I had a colleague in that case who wrote, these are only temporary stops. This is from a man whose parents were professionals and probably doesn't really know any person who works by the hour. There are some people who can't understand their experiences even when you tell them there was an ellipsis in there. That wasn't all a continuous statement, but all of that was in Justice Sotomayor's remarks.

Speaker 4:
[33:28] So obviously, she was talking about son of privilege, Brett Kavanaugh, inventor of the Kavanaugh stop wherein ICE agents are permitted to racially profile people regardless of their citizenship or legal status in this country and detain them. But the detentions must be brief and do not have any real impact on their lives, jobs, or rights. Wait, no, that's not right, right?

Speaker 5:
[33:57] Someone told Brett Kavanaugh that?

Speaker 1:
[33:59] Well, so someone told Brett Kavanaugh something. And it's unclear exactly what happened, maybe what quiet. But then last week, Justice Sotomayor walked back some of her comments. So the Supreme Court's Public Information Office released the following statement, quote, At a recent appearance at the University of Kansas School of Law, I, that is Justice Sotomayor, referred to a disagreement with one of my colleagues in a prior case, but I made remarks that were inappropriate. I regret my hurtful comments. I have apologized to my colleague, end quote. Why do you think she apologized, slash, should she have?

Speaker 5:
[34:40] We've talked about this before and this has obviously been written before. She is somebody who works very hard to maintain good relations with her colleagues. Seems like it matters to her a lot. I mean, she's got good relations with everyone. She really does seem to care a great deal about knowing and maintaining genuinely warm friendships with everyone in the building, on the court. I think he actually was offended and she felt badly. I'm not sure why she felt she needed to do it publicly. Great. Sweet. I'm so sorry.

Speaker 4:
[35:09] I don't know.

Speaker 5:
[35:10] But obviously, Melissa, you are much more of a knower of the mind of Sonia Sotomayor. What do you think?

Speaker 4:
[35:14] I think that is probably right. I think she does prioritize collegiality. She was friends with all of her colleagues on the Second Circuit, even when there were broad ideological disagreements, although not quite as broad as these. But I guess I bristle a little with the idea that these comments were inappropriate because I actually would have said they were incomplete. Actually, she could have given him a much harder read. Basically, she was just saying, and again, it was harsh criticism. This is someone who doesn't know what it's like to need a job, need to show up at your job every day, where a detention stop could actually be fatal to your employment prospects. If you just did not show up at work because you had been detained by ICE, whether wrongfully or not, you were going to lose your job. His parents are professionals. They have the freedom to be like, you know what, I'm taking a personal day. ICE detained me, although that would actually never happen. I think that was the gist of her comment. Maybe it's harsh, but I think it's real. I actually thought she could have gone even further because the real critique of Brett Kavanaugh here is not necessarily that he is the son of professionals who may not know what it's like to have to show up every day at a nine to five. The criticism of Brett Kavanaugh and these Kavanaugh stops is like, you are a white guy who does not know what it's like to be a person of color living in this country at a time when the government is racially profiling people.

Speaker 1:
[36:40] And who just ignored the facts about that.

Speaker 4:
[36:43] That's the real criticism. And I think she was actually quite restrained in not being like, yo, do you know what it's like? This is basically what black people say about stop and frisk. It doesn't matter who you are. It doesn't matter what degrees you have, how much money's in your bank account. This can hit you at any time. And it is devastating, maybe in a very real practical sense to your employment, but also to your dignity. And he just does not get that. I think she could have gone in and she could have gone in really hard on him and she spared him. And so props to her for some restraint, I think.

Speaker 1:
[37:16] Yeah, so in addition to the possibility that it just matters to her to maintain these relationships with her colleagues, a part of me wondered, which is kind of the flip side of what I jokingly suggested last week, which was what did Brett Kavanaugh do this time to provoke these comments, whether those relationships and maintaining them, she thinks and whether they in fact do accomplish some substantive purposes, maintaining relationships in order to preserve the possibility of a coalition to avoid the next cliff jumping into fascism. And I don't know to what extent she thinks that. I don't know to what extent that is true. We do know these people have very thin skins. And so it's not outside the realm of possibility. And this is part of what makes their job so difficult. And it is hard to assess from the outside exactly what is happening and to know in some alternative universe whether some other course of action might be better. That's my own personal view, as I've said before. But I don't know exactly the calculus she is making.

Speaker 4:
[38:28] So I do think that there is that recently filed case in the Second Circuit that's being brought by individuals who would be subject to these stops, challenging the prospect of these stops. And so there is an opportunity, I think, for Justice Kavanaugh to, on the record, on the merit stock, it actually recant what he did in his concurrence in Noam versus Vasquez, Perdomo, and maybe her initial comments are meant to sort of spur that on to, like, actually clear some room for him to sort of like, you know, listen, I didn't think this out fully, like, here's why, whatever. And, you know, I do think she was just like, OK, she probably got some heat from people about this and, you know, clearing the air. But she said it, right? And, right, she said it. She may regret having said it, but she said it. It's true. And it's not even the worst thing she could have said. Yeah. If you were wondering, listeners, whether the Supreme Court of the United States falls prey to patriarchal double standards when it comes to critical speech amongst colleagues, well, that is obviously an open question. We will simply note, we're making no statements here, but we'll just note that on the same day that Justice Sotomayor's apology was released, Justice Thomas made the following remarks at a speech delivered at the University of Texas at Austin.

Speaker 5:
[39:50] Wait, can I just quickly interrupt to note that at these remarks, Justice Thomas mentioned at the outset that he was joined by, and like wanted everyone to know that he was joined by, Harlan Crowe, which is a name that people may not have heard for a while, but that is the-

Speaker 4:
[40:06] We remember him.

Speaker 5:
[40:07] You guys do.

Speaker 4:
[40:07] We remember him.

Speaker 5:
[40:08] I hope our listeners do. But this was-

Speaker 4:
[40:10] Private Jett Harlan, PJ. Harlan.

Speaker 5:
[40:11] Billionaire benefactor, close personal-

Speaker 1:
[40:14] Life-size friend.

Speaker 5:
[40:15] Hagrid Hutton. Not unconstitutional, as we remind all for them to be friends. But in any event, I just thought it was the trolliest move for Thomas to just say like, Harlan, I'm so happy to have you here at the outset of his remarks, because he wants everyone to know he is not worried about the scrutiny of his face. He's not sorry.

Speaker 4:
[40:35] I said what I said.

Speaker 5:
[40:36] Yeah, and then he went on to say a lot of other, I think pretty jaw-dropping things, just in terms of the substance of his talk. Let's roll the tape. Let's roll it.

Speaker 9:
[40:46] Since the day I arrived in Washington, there was never a shortage of people espousing noble purposes, saying all the right things. All around me, there have been people full of promises, claiming a commitment to some righteous cause, to traditional morality, to national defense, to free enterprise, to religious piety, or to the original meaning of the Constitution. They recast themselves as institutionalists, pragmatists, or thoughtful moderates, all as a way of justifying their failures to themselves, their consciences, and their country. Progressivism seeks to replace the basic premises of the Declaration of Independence, and hence our form of government. It holds that our rights and our dignities come not from God, but from government. It requires of the people a subservience and weakness incompatible with a Constitution premised on the transcendent origin of our rights. You will not be surprised to learn that the progressives had a great deal of contempt for us, the American people.

Speaker 4:
[42:07] Well, well, well.

Speaker 9:
[42:08] Yeah.

Speaker 5:
[42:09] I mean, so...

Speaker 1:
[42:09] It's us. It's me. Hi.

Speaker 5:
[42:11] We're the problem. But I don't think he's going to apologize to us, ladies. So, I mean, to kind of the double standard point, Justice Sotomayor apologizes for criticizing one of her colleagues, you know, in pretty measured terms. On the same day, Justice Thomas launches this diatribe about progressivism, a diatribe in which he labels those who descent from the conservative values espoused by the signers of the Declaration of Independence, many of whom unapologetically owned human beings, the greatest threat to the country. I also have to say, the unhinged theocracy in this speech was also none of, you know, our rights don't come from the Constitution or from government, they come from God. The number of invocations of God was pretty stunning. And then of course, there was this sort of attack on kind of progressivism and progressives. But of course, that's not what was intemperate or over the top in the kind of category of public statements by Supreme Court justices in the month of April. So no need to apologize to, you know, half the country for that. Got it. Got it. Yeah. Okay. But that is not all in terms of the justices' riding circuit because they have been busy. Also, last week, Justice Jackson decided to enter the fray delivering some pretty pointed remarks about the shadow docket as part of a lecture that she gave at Yale Law School. So let's play a clip from that speech.

Speaker 6:
[43:33] It is one thing for the Supreme Court to entertain a stay application early in a case's life cycle and publish its back of the envelope, first blush impressions of the merits of the legal issue. It is quite another for the court to then insist that those scratch paper musings be applied by other courts in other cases stymying the full deliberative process. I adamantly reject any effort to normalize a process whereby the Supreme Court actively super intense matters that are pending in the lower courts. There is no such thing as an interim docket. I disagree with some of my colleagues who have made public statements suggesting that, you know, the court really has its hands tied or that this is a function of a lot more of these cases being filed or applications being filed.

Speaker 1:
[44:35] It seems that unlike those people who are actual DEI hires, Justice Jackson knows how to read and she knows how to read for filth, like the scratch paper musings line just injected into my veins.

Speaker 4:
[44:50] My favorite part is when she said, there's no such thing as an interim docket. I know.

Speaker 6:
[44:55] I love that.

Speaker 4:
[44:55] Stop trying to make the interim docket happen.

Speaker 7:
[44:57] I refuse to legitimize this.

Speaker 4:
[44:58] It's not going to happen, Gretchen. Wait.

Speaker 5:
[45:01] Here's the question. Is Brett going to come into her office next week and demand an apology for disparaging interim docket, which is of course something he coined or I guess is trying to make happen.

Speaker 4:
[45:10] He's, I don't know if he coined it because originalism. I think maybe Justice Alito, was he the one who called it the interim?

Speaker 5:
[45:17] I don't remember.

Speaker 4:
[45:18] He called it the emergency docket.

Speaker 5:
[45:19] I think Brett is the one who's been at least pushing interim.

Speaker 1:
[45:21] He's definitely been pushing it. Yeah.

Speaker 4:
[45:23] Yeah.

Speaker 1:
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Speaker 4:
[48:48] Okay, folks, we got a new twist in the ongoing saga regarding Judge Jeb Boesberg's efforts to hold this administration in contempt for refusing to heed his April 2025 order to return to the United States planes carrying Venezuelan migrants to El Salvador. As we've talked about on the pod about a year ago, Judge Boesberg issued a ruling finding that probable cause existed to hold the administration in contempt for its refusal to return the planes of Venezuelan migrants to American airspace. The ruling was appealed to the DC Circuit. There was a lot of back and forth. And last Tuesday, we got the latest iteration in it when the DC Circuit issued its fourth order halting Boesberg's contempt inquiry. And Trump appointee and reputed Scotus short lister, Judge Naomi Rao, I think no one has told her that the lady spot has been filled. Judge Rao wrote for the 2 to 1 panel, and she characterized Boesberg's ruling as, quote unquote, improper, unnecessary, and a clear abuse of discretion. She further maintained that the Trump administration had a, quote, clear and indisputable right to termination of this judicial investigation because Judge Boesberg's initial order requiring the planes to return was, quote, insufficiently clear and specific to sustain a charge of criminal contempt. According to Judge Rao, Boesberg's initial ruling only prohibited the removal of the migrants and, quote, said nothing about transferring custody of them. She then reasoned that because the planes were already in the air when Boesberg issued his ruling, the removal had already occurred. Thus, the DOJ's decision to hand over the migrants to Salvadoran mega-prison could not support a contempt investigation. Well.

Speaker 5:
[50:37] Yeah. So this latest order.

Speaker 4:
[50:38] That's how you campaign. Right there. That's how you do it.

Speaker 5:
[50:42] I think it's probably not going to work, but it does seem to be what is.

Speaker 1:
[50:44] No. Judge Rao should have added, Judge Boesberg is weak on crime. That would be how you campaign. And then the Dow.

Speaker 5:
[50:53] The Dow.

Speaker 1:
[50:53] Yes.

Speaker 5:
[50:54] Although it didn't work out that well for the last person to try that line. Maybe she's right to avoid it. That's true.

Speaker 1:
[50:59] Ladies.

Speaker 4:
[51:00] Ladies talking about the Dow never works.

Speaker 5:
[51:02] Nope. So this order goes on to direct Boesberg to terminate his criminal contempt proceedings. And this latest order was issued by a three-judge panel featuring not just Rao, but her fellow Trump appointee, Justin Walker, and then also Judge Michelle Childs, who pointedly did not join Judge Rao's order. The attorneys for the wrongfully removed migrants have indicated that they will seek en banc review of the panel's decision for the full DC. Circuit. And the administration may well face some tough sledding with the full court in that six of the court's 11 judges are already on record saying that Boasberg properly exercised his contempt authority and that an earlier panel was wrong to cut off the district court's investigative process. That was a very complex opinion, but that really was how the numbers kind of shook out. So I definitely don't think this three-judge panel is the last word on the Boasberg contempt proceedings.

Speaker 1:
[51:53] Pamela Jo Bondi may be out of the administration, but she is not out of our hearts, our minds, or others' hearts and minds, because it seems like in a last-ditch effort to prevent herself from being Pamela Jo Firebombedeed, Director of National Intelligence, not a joke, but kind of a joke, Tulsi Gabbard referred to government officials who effectively served as whistleblowers in connection with Donald Trump's first impeachment inquiry to the Department of Justice for criminal investigation. One of the officials reported an urgent concern about Trump's request for Ukrainian President Vladimir Zelensky to investigate then former Vice President Joe Biden. The whistleblower wrote, I have received information from multiple US government officials that the President of the United States is using the power of his office to solicit interference from a foreign country in the 2020 United States election. End quote. Listeners, you may recall that the President characterized his phone call with Zelensky as, quote, perfect. Gabbard, who alleged that, quote, deep state actors had instigated the impeachment, also referred to the Department of Justice, a government official who was the former intelligence community watchdog who had investigated the whistleblower complaint. And that is former intelligence community Inspector General Michael Atkinson.

Speaker 4:
[53:09] I have to say, it is really rich to talk about the deep state when you're basically in the sheep state, just blindly following what this president wants you to do, but whatever. Anyway, I just wanted to note that the Ladies of Hysteria, another Crooked Media podcast, have a series called This Fucking Guy. And one of the most recent episodes is a deep dive into Tulsi Gabbard. And all I can say is the tea is hot. It has cults. It has backstabbing. It has all the things.

Speaker 5:
[53:43] Chris Butler is a very interesting character who is at the center of all of it.

Speaker 4:
[53:51] Like a lot of things going on, a lot of switching back and forth between parties. Actually, a lot of shade to the DNC for not seeing this.

Speaker 5:
[54:02] And multi-generational switching.

Speaker 4:
[54:04] Yeah, a lot of stuff. Yeah, it's a lot going on, a lot going on.

Speaker 5:
[54:07] Check that out if you have not. Another piece of news we wanted to just mention might be of interest to our listeners, and that is some reporting that we got last week actually from the Harvard Crimson, the student paper at Harvard, which ran a very interesting story about the changing dynamics of the law school clerkship market. So clerkships, many listeners know, in case you don't, are these one- or two-year jobs that frequently go to recent law school graduates. Those clerks work closely with the judge in the judge's chambers. Historically, students are frequently hired for these clerkships at the end of their second year or the start of their third year of law school, and this process wherein judges wait until that point is the result of a very long and starting, stopping, agonizing effort to instill some restraint in the clerkship hiring process, you know, which has taken different forms over the years.

Speaker 1:
[54:57] Some people don't seem to be super into that whole restraint thing.

Speaker 4:
[55:02] Except for abortion. They care about restraint of judges when it's about the fundamental right of abortion.

Speaker 1:
[55:07] And restraints on women, but anyways.

Speaker 4:
[55:09] Other restraints? No.

Speaker 1:
[55:11] Yeah. So according to the Crimson, a two-tier clerkship hiring process has emerged with conservative Republican appointed judges preferring to enlist for future clerkship's ideologically aligned first-year students. So students who literally just got into law school, who might not even have a full year's worth of grades, are being hired largely because the Republican appointed judges are prioritizing ideology in the clerkship hiring. Please also recall that many of these folks are among the anti-DEI pro-meritocracy crowd. And the best part of all of this is that at least some of the judges may not actually be doing the ideological sniff test themselves. Instead, the Crimson reports that they enlist ideologically aligned third year law students to vet candidates on their behalf. So a conservative 3L vibe check is basically a small test for at least some federal clerkships, but DEI.

Speaker 4:
[56:10] I'm not even surprised by this. So a few years ago, we interviewed California Supreme Court Justice Goodwin Liu and one of his co-authors, Professor Mary Hoopes, about their recent study of federal judges' hiring practices in the clerkship hiring process. And they noted that they did not have a sufficiently large sample size to draw broad conclusions, but they did note that their initial sample, some of the conservative judges, showed that these judges were much more likely to prioritize ideological fit in hiring and were much more likely to dive deeper into the class in terms of grades, in order to be able to hire ideologically aligned clerks. And now it seems that the deep dive may actually just be wholly unnecessary. You don't even have to look at grades because some of these students, if they're 1Ls, may just have a few years or a few months of grades. And if they go to Yale, they don't have grades at all because no one gets grades in the first semester. So it's basically this 3L vibe check, like do we like you, do you show up at our events, do we get that conservative vibe from you? I have to say, it sounds incredibly convenient and efficient. Basically, it's no grades, just vibes.

Speaker 5:
[57:27] Convenient and efficient if you're not really that worried about doing law in your chambers.

Speaker 1:
[57:33] Exactly.

Speaker 5:
[57:34] Sure, like just a purely ideological hiring process makes great sense.

Speaker 4:
[57:38] But merit, right? It's the merit part. That's the good part.

Speaker 5:
[57:42] This is interesting reporting and good on them for doing it. I mean, I definitely don't know about you too, but noted that shift of like some of these conservative judges and only conservative judges as far as I could tell, like getting way ahead of the kind of previous hiring calendar. But it seems like it is just even more widespread than I'd realized. Okay, some other news to note. We got last week a verdict in the Live Nation Ticketmaster Antitrust case. Listeners may recall that the administration, the federal government tried to torpedo the litigation by announcing a settlement midway through the trial. But unfortunately for them and fortunately for consumers, the DOJ settlement did not actually succeed in killing the case entirely. Because as actually is becoming a trend, some states including California, remember we had the Attorney General Rob Bonta on our show, talking about this lawsuit among other things, and also New York continued to litigate the case against Live Nation slash Ticketmaster, even without the administration's participation. I mean, this is what we call federalism, ladies and gentlemen.

Speaker 4:
[58:44] Yeah, federalism for the win, literally, because the states that continued to press litigation actually won. They won a jury verdict holding Ticketmaster and its parent company liable for operating as an illegal monopoly that suppressed competition and inflated prices to the detriment of consumers.

Speaker 5:
[59:03] And we have to give a shout out to a bunch of stricties who were on the Live Nation Ticketmaster trial team. They pulled off a win again even after DOJ pulled out and settled. And I also wanted to quickly highlight that Gail Slater, who was the DOJ antitrust chief, who left the federal government around the time of the Fed's settlement, took to X to congratulate the states on their victory, saying, quote, You made antitrust history today. You fought the good fight. You finished the race. You kept the faith. And I just really loved that energy.

Speaker 4:
[59:33] It's almost like she didn't leave voluntarily.

Speaker 5:
[59:36] Pure speculation.

Speaker 4:
[59:37] Pure speculation on our part. But I do love a petty queen on Twitter.

Speaker 1:
[59:43] Indeed. In other frontiers of federalism, the Hennepin County attorney has charged an immigration customs and enforcement agent with assault for pointing a gun at people on a Minnesota highway. So Hennepin County attorney Mary Moriarty said she believes this is likely the first state criminal case brought against a federal immigration officer for actions arising out of the Trump administration's crackdown on immigration enforcement and surges in California, Illinois, Minnesota, and elsewhere. She added, quote, there is no such thing as absolute immunity for federal agents who violate the law in the state of Minnesota, end quote. I do wonder if JD will attempt to law explain constitutional law to an actual attorney and tell her that practicing attorneys need to be careful when they talk about the law. Just waiting for that statement.

Speaker 4:
[60:32] Signs point to yes.

Speaker 5:
[60:33] Yes. So this particular indictment charges the officer with two counts of second degree assault. The charges are based on allegations from a 911 call in which a couple reported that a driver in an unmarked SUV that turned out to be an ICE vehicle pulled up, rolled down his window and pointed a gun at them. And they were understandably terrified. The ICE agent maintains that the vehicle may have cut him off. And of course the ICE agent assumed this was some sort of obstruction. According to the ICE officer, he identified himself as an ICE officer, but the couple just couldn't hear from inside their vehicle.

Speaker 1:
[61:05] I wanted to give a shout out to friend of the pod, Steve Vladeck, Professor at Georgetown Law School, also author of the One First Street Substack, who's written a lot about supremacy clause immunity and how the state criminal prosecutions might work both on a substack and in the New York Times and other outlets. Steve catches a lot of strays just as a very prominent public intellectual from both the left and the right, in just what I think are deeply unfair ways that reflect how good and successful of a public voice on the law he is. So if you like me benefit from Steve's work, maybe think about sending him a note to that effect or giving him a shout out. I think people sometimes see all of the benefits or upsides of being a public presence when the downsides sometimes seem less apparent. And this last week was just one of those occasions for me, you know, for Steve in particular.

Speaker 5:
[62:06] Can I? Yeah. I assume this will be taken in the right spirit, but as I guess I totally co-sign everything you just said. And it's like when it's somebody else, you can sort of say like, yes, obviously, you know you that bitch when you cause all this conversation like that is a sign of how central to the discourse he is if people are attacking him. But it sucks to be the object of that.

Speaker 1:
[62:25] And so I think it's really technology completely justice for Commander Vladeck. Exactly.

Speaker 4:
[62:30] All right. Speaking of catching strays for being a public intellectual, we got an opinion in Chevron versus Pacman's parish. Yes, listeners, that was Chief Justice John G. Roberts stepping in here on Strict Scrutiny to pronounce the name of this case, which as you have noted in our voicemails and e-mails has befuddled us all terms.

Speaker 5:
[62:50] Melissa took that personally.

Speaker 4:
[62:53] So if you listeners are from the Pelican state and you object to this pronunciation of.

Speaker 9:
[63:00] Pacman's parish.

Speaker 4:
[63:02] Please direct your e-mails and voicemails to Chief Justice John G. Roberts of the United States Supreme Court. Thank you for your attention to this message. Anyway, the case is about federal officer removal. I'm sorry.

Speaker 1:
[63:21] I really needed to do that. We love a petty queen. I love a petty queen.

Speaker 4:
[63:24] I'm a petty queen.

Speaker 1:
[63:25] Yeah. And the federal officer removal statute could end up being significant in cases like the one we just talked about, the newly filed case in Minnesota that involved criminal charges against federal officers because the federal officer removal statute allows federal officers or people acting under federal officers to remove from state court to federal court lawsuits against them, at least when the suits are for or relating to any act under color of such office. Now, this particular case is a lawsuit against certain oil and gas companies filed under federal law. The lawsuit alleges the companies lacked permits for some of their crude oil production, which is also alleged to have been initiated illegally. Chevron removed the case to federal court, arguing that the suit concerned its contractual duty to refine crude oil for the federal government during World War II.

Speaker 5:
[64:14] Hmm. So, the Supreme Court in this case said that at this stage of the litigation, the oil company had plausibly alleged a close enough relationship between its crude oil production and the performance of its federal refining duties that removal to federal court was proper. The court made clear that the federal officer removal statute is broad and allows removal where there is a connection between a private entity and a federal officer, so long as the connection isn't attenuated or tenuous. The opinion is effectively unanimous. Justice Jackson filed a concurring opinion, just concurring in the judgment, emphasizing both legislative history and the court's obligation to seek to discern congressional intent, with citations to John Marshall making that point, and also former Second Circuit Chief Judge Bob Katzman's work, among other things. The only person who didn't agree, or maybe did, we don't know, was Justice Alito, who didn't participate in the case at all. We don't know why, I don't think. I mean, maybe, presumably, stock ownership, right? He is one of the only justices who owns individual stocks.

Speaker 1:
[65:14] But the Dow, Kate. That's why he didn't participate. But the Dow. That's right.

Speaker 5:
[65:20] Maybe he could just append that as the explanation, because some of them have started telling us when there is a recusal, why? Very conspicuously not, Sam Alito.

Speaker 4:
[65:30] He has not to tell you anything, bitches.

Speaker 5:
[65:31] He sure doesn't.

Speaker 1:
[65:33] Right.

Speaker 4:
[65:33] All right. On to April preview. This is the last full month of oral arguments before the court. We have a two-week sitting coming up. We are going to preview the cases from the first week of the April sitting. First up.

Speaker 1:
[65:50] I don't know how to pronounce this one. I'll just cop to it. That is Stripetch, maybe, versus Securities and Exchange Commission. I do know that this is a case about the SEC's enforcement authority and specifically whether the SEC can require a defendant to disgorge, that is, to give up profits or benefits without the plaintiff having to show that investors were harmed financially. Federal law provides that the SEC may seek and any federal court may order disgorgement of profits or benefits in a civil SEC enforcement action or proceeding. In the 2020 decision, Liu vs. SEC, the Supreme Court held that the SEC may seek equitable disgorgement in civil enforcement actions if an award does not exceed a wrongdoer's net profits and is awarded for victims. Now, some circuits, including the Second Circuit, have interpreted the statutory language through the lens of the Supreme Court's discussion of victims and as a result have required the SEC to show that the investor suffered a pecuniary loss and is therefore a victim. Before the SEC seeks disgorgement as a remedy. Other circuits, including the Ninth Circuit, have concluded that all that is required is an actionable interference with the investor's legal interests, not necessarily a showing of a pecuniary loss.

Speaker 4:
[67:09] So the petitioner here contends that to secure a disgorgement order against him, the SEC must prove that investors have suffered actual financial loss, not merely a misrepresentation or a manipulation. If the court determines that the SEC must prove a pecuniary loss to a judge in order to impose disgorgement, that will surely limit the SEC's flexibility in enforcement actions. And notably, there is an amicus brief in this case that highlights a similar case that is currently pending in the Ninth Circuit, SEC versus Barry. In Barry, the SEC's theory of pecuniary harm is based on this idea of the loss of the time value of money. So basically, the argument on which disgorgement is predicated is that investors suffer a loss because their money is not being used productively as an investment. It's not about an actual pecuniary loss, like dollar amounts. The novelty of the SEC's theory could heighten for the court the skepticism they may have about expanding the scope of disgorgement as a remedy. And if the court is skeptical, it might further limit the agency's enforcement ability. So recall, this is coming on the heels of SEC versus JARCCC, which made it a lot harder for the SEC to bring enforcement actions within the agency and administrative tribunals.

Speaker 5:
[68:32] Next up is TM versus University of Maryland Medical Systems Corp, Federal Courts Hive, Rise. It is time to get in formation, because it is Rooker Feldman time.

Speaker 2:
[68:43] Oh yeah.

Speaker 5:
[68:48] Talk about cause all this conversation. Exactly.

Speaker 1:
[68:50] Rooker Feldman does.

Speaker 10:
[68:52] Rooker?

Speaker 4:
[68:53] I don't even know her. Feldman?

Speaker 10:
[68:56] Who knows?

Speaker 5:
[68:57] Oh, so good. Okay. So Rooker Feldman, if you're not already intrigued, is a doctrine that prevents litigants, I know you are obviously.

Speaker 10:
[69:05] You want to know.

Speaker 5:
[69:06] Prevents litigants, listen up, draw near, who lose in state courts from going to federal court to challenge injuries caused by state court judgments. So the specific question here is whether that doctrine can be triggered by a state court decision that remains subject to further review in state court. Facts of the case are as follows. The petitioner here, TM, has a gluten sensitivity condition that can trigger psychosis. She was involuntarily committed to the Baltimore Washington Medical Center where she claims that staff ignored her advanced medical directive and sought to forcibly medicate her in ways contrary to that directive. After multiple state filings, she entered a consent order for her release under conditions like monitored medication. She appealed that consent order in state court where the action has been stayed and she also sued in federal court alleging duress and constitutional violations and seeking an injunction.

Speaker 1:
[69:55] I have a love-hate relationship with this case, so I love intricate federal courts, doctrines, federal courts, that's my absolute favorite class to teach on one hand. On the other, this is going to be a case where I think the Supreme Court is going to say Rooker Feldman applies, which is greatly going to undermine the lesson I attempt to import to fed court students, which is the answer is never Rooker Feldman. Indeed, the Supreme Court in earlier opinions has said Rooker Feldman basically applies only if your name is Rooker or Feldman. Literally, that's a line in a Supreme Court opinion, because people on earth this doctrine and they think, oh, that's what's happening in this case, but it's never happening except maybe here it is. Anyways, the federal court dismissed this suit under Rooker Feldman on the view she was seeking federal review of a state court order. She said injured her, the Fourth Circuit affirmed. On appeal, the petitioner gestures to that earlier case that suggested Rooker Feldman really ain't no thing, Exxon-Millbill Court vs. Saudi Basic Industries to argue that the Rooker Feldman doctrine is confined to cases where the losing party in state court filed suit in federal court after the state proceedings ended. She further argues that the Fourth Circuit's decision below expands what was supposed to be a narrow exception to federal jurisdiction and the error of confirmed likely to disadvantage pro se litigants. I'm sure a majority of justices on this court will care deeply about that. That was a joke. For its part, the University of Maryland Medical System counters that the ruling below is correct and the petitioner was seeking appellate review in federal district court of a state court decision exactly the circumstances where Rooker Feldman would apply.

Speaker 4:
[71:36] Also on the docket for the first week in April is Federal Communications Commissions versus AT&T. And this is a case that has been consolidated with Verizon Communications versus Federal Communications Commission, and it will be heard on April 21. This case might be understood as a follow-on to SEC versus JARCASY. So that was the definitely. JARCASY was the 2024 case holding that when the SEC seeks civil penalties, i.e. money damages or other legal remedies against a defendant, the case has to be brought in federal district court rather than in an agency tribunal in order to comply with the Seventh Amendment's requirement of a civil jury trial for all suits at common law. In this case, the court has to determine whether JARCASY's logic extends to the fines the Federal Communications Commission levies for violations of federal communications law. The case stems from two consolidated appeals involving two telecommunication giants, AT&T and Verizon. In two agency proceedings, the FCC determined that AT&T and Verizon had violated a provision of the Telecommunications Act of 1996 that requires telecom carriers to protect confidential consumer data. Hear information about customers' locations. The agency informed AT&T and Verizon of the violations and issued an order advising the companies of the resulting penalties, $57 million for AT&T and $46.9 million for Verizon. Both companies had an opportunity to respond in writing to both the determination of the legal violation and the order to pay the penalty. However, on appeal, the companies argue that these procedures don't comport with the Seventh Amendment's requirement of a jury trial in a matter involving civil penalties. AT&T appealed its case to the Fifth Circuit. I wonder what happened there with regard to the agency actions.

Speaker 1:
[73:28] What a mystery.

Speaker 4:
[73:30] In any event, they argued at the Fifth Circuit, among other things, that imposing the fine in an in-house FCC proceeding violated the Seventh Amendment's right to a jury trial, and shockingly, the Fifth Circuit agreed, throwing out the fine. Writing for the Majority Judge and Friend of Stanford Law School, Stuart Kyle Duncan, characterized the process as, quote unquote, completely in-house with the agency acting as prosecutor, jury, and judge.

Speaker 5:
[73:58] But twist, or really just circuit split, Verizon's appeal was heard. Twist.

Speaker 1:
[74:03] Second Circuit.

Speaker 5:
[74:05] Turns out we get a lot of these courts. The Fifth went one way, the Second Circuit upheld the fine against Verizon. Writing for that court, Judge Allison Nathan said that nothing about commission's proceedings transgressed the Seventh Amendment's jury trial guarantee. So at Oral Argument, we predict that the justices will focus on the FCC's argument that an in-house proceeding that leads to the forfeiture order is not a lawsuit, much less a lawsuit seeking money damages for purposes of the Seventh Amendment. The SG, who is arguing on behalf of the FCC, maintains that there is no money at stake and therefore no obligation to have a jury trial because the FCC actually can't require a carrier to pay a single dime. The only obligation to pay would come if the DOJ brings a lawsuit to enforce the forfeiture order and wins, and the carrier then does have a right to a jury trial. That's something that Sauer emphasized in the brief and that I imagine will feature prominently in the oral argument. The telecom companies disagree. They say that just because there is this after-the-fact possibility of a jury trial, that is not enough to satisfy the Seventh Amendment. They say that the Supreme Court has never approved this basically penalty now, but have a trial later, approach the Seventh Amendment. They want a jury trial before the FCC issues a forfeiture order full stop.

Speaker 1:
[75:20] So AT&T and Verizon, they focus more on the forfeiture orders, which they say are basically the agency's determinations, that there has been a violation, and that they're not, you know, just like an initial preliminary, some might say interim, you know, tentative suggestions. And, you know, they also kind of suggest that carriers treat the forfeiture orders as final in that they're not usually waiting around to see if the DOJ will attempt to enforce them. And the FCC argues that a ruling in favor of AT&T and Verizon, quote, would seriously disrupt the Commission's administration of federal communications laws, forfeitures, it says, quote, are among the FCC's most important enforcement tools without them, quote, many vital rules, such as those protecting privacy, combating robocalls and regulating broadcasting, would go effectively unenforced, end quote. And Neil Gorsuch says, don't threaten me with a good time. More seriously, when jarkacy came out, I had an article in the Texas Law Review, the New Substantive DuProcess, that basically described how the court was refashioning the Seventh Amendment together with removal law based on this free-floating idea of liberty that kind of resembled the old individual rights line of substantive due process cases. And this case seems like another kind of opportunity to take that and run with it. I do hope that this case will at least generate another iconic oral argument clip in jarkacy. That was the Justice Kagan telling the advocate, no one has ever had the chutzpah to make this argument before.

Speaker 4:
[77:00] And he then put it on his website. Like Justice Kagan says, no one has ever done this.

Speaker 1:
[77:06] Yep.

Speaker 4:
[77:08] I loved that for him. All right. On April 22, the court will hear oral argument in Blanche versus Lau. This case used to be captioned, Bondi versus Lau. Listeners, I just read that as Bondi versus Lau. And I have to say, I'm a little Freudian.

Speaker 1:
[77:25] Yes, indeed.

Speaker 4:
[77:27] Anyway, it used to be called Bondi versus Lau. But because Pamela Jo Bondi's legal career took a trip over the Rainbow Bridge, it is now captioned Blanche versus Lau. But don't get too used to this, Todd. By the time we get an opinion here, the case will likely be captioned Schmitt versus Lau, or Zeldin versus Lau, or Franzia versus Lau. Anything could happen. It's all out there. Anyway, this is a cremigration case. And specifically, the question presented is whether to deport a lawful permanent resident, i.e. a green card holder, who has committed a crime of moral turpitude or a drug offense, but was subsequently allowed to enter the United States, whether the government must prove that it had clear and convincing evidence of the offense when the green card holder last reentered the United States. Lawful permanent residents in the United States are exactly what that term suggests. They are non-citizens. You have been granted lawful status to stay here in the United States permanently, so long as they observe relevant domestic laws. Once they have been granted that green card status, LPRs are permitted to travel in and out of the United States. A lawful permanent resident who is returning to the United States after a trip abroad is generally not regarded as seeking an admission into the United States because they have the green card, they have the permanent status, they have already been admitted to the United States in a permanent way.

Speaker 5:
[78:54] Here, Muk Choy Lau is a lawful permanent resident who has been living in the United States for almost 20 years. In 2012, he took a short trip out of the country and then returned to New Jersey. Under the relevant immigration statute, he says he was not seeking admission when he returned, he had already been admitted to the United States. The problem is that prior to his trip, he had been charged with trademark counterfeiting, to which he later pled guilty and received a two-year probation sentence. On that basis, when Lau returned to New Jersey, an immigration officer allowed him to reenter, but said he was being, quote, paroled, which is a discretionary decision to let immigrants into the country, rather than just being admitted without any strings, because he was the subject of pending but not yet proven criminal charges. When he later pled guilty, the government sought his removal as inadmissible because he had been paroled in, rather than the government pursuing the deportation procedures that are totally different and that would normally apply to a lawful permanent resident. So, Lau contends that a lawful permanent resident returning to the United States after a trip abroad is not seeking admission, and the immigration officer therefore should not have paroled him into the country, but admitted him as with any other lawful permanent resident. The government, on the other hand, contends that the pending criminal charges were enough to render him inadmissible when he returned. The LPR statute states that an LPR who has committed a criminal offense cannot claim the general not seeking admission rule, and both sides agree that a clear and convincing evidentiary standard applies to the parole determination.

Speaker 1:
[80:20] So Lau lost before an immigration judge and before the Board of Immigration Appeals, but on appeal the Second Circuit ruled that because all the immigration officer at the airport knew when he marked Lau as paroled was that some criminal charges were pending, the officer should have applied the not seeking admission rule. This means that at oral argument, the justices will likely be focusing on whether at the time Lau returned to the United States from his trip abroad, the immigration officer had enough evidence to not admit him. The Solicitor General argues that the government met the statutory standard both at the airport in 2012 and now, such that Lau may be removed. Strict Scrutiny is brought to you by Babel. Why do most of us want to learn a new language? Well, it's probably not about memorizing grammar tables or topping a leaderboard. It's because we want to speak it out in the real world with real people and Babel gets you there fast. Plus, additional bonus, you can understand without translations what foreign leaders are saying about Pete Hegseth and Trump. You do not want to miss out on that. Learning a language with Babel is all about small steps, big wins, and progress you can actually track and feel. Their bite-sized lessons fit easily into your daily routine and are also easy to remember. Just 10 minutes a day is enough to start seeing real results. Babel recognizes that real world connections are at the heart of language learning. Their courses are designed by over 200 language experts, real human beings, to teach you relevant words and phrases you'll actually use so you can start speaking with confidence in as little as three weeks. Babel lets you practice real life conversation step by step without the stress. You'll build the confidence to speak up when it matters, from ordering a coffee to chatting with new friends abroad. And Babel's more than just lessons. They even offer a large collection of podcasts, or Babel experts reveal language secrets and offer an inside look at local cultures. However you learn best by listening, speaking, reading or writing, Babel adapts to your style and keeps you motivated with personalized learning plans, real-time feedback and progress tracking. Make fast, lasting progress with Babel, the science-backed language learning app that actually works. Babel has over 25 million subscriptions sold worldwide and with 14 languages to choose from, every course comes with a 14-day money-back guarantee. Here's a special, limited-time deal for our listeners. Right now, get up to 60% off your Babel subscription at babel.com/strict. Get up to 60% off at babel.com/strict. That's spelled babbel.com/strict. Rules and restrictions may apply. Okay, tradition that we haven't always adhered to, but I'm just gonna invoke here. And that is the clip without context. So wanted to play for you a recent moment during an oral argument that happened last week. Here you go.

Speaker 10:
[83:14] I don't know what's radical left about being anti-Nazi. Do you?

Speaker 5:
[83:20] Your Honor, this is not about anti-Nazi.

Speaker 10:
[83:21] There's nothing radical left about being anti-Nazi, right?

Speaker 9:
[83:24] Your Honor, this is not about whether anyone is anti-Nazi.

Speaker 10:
[83:27] There's nothing radical left about being anti-Nazi.

Speaker 9:
[83:29] Judge Mallette, this is not about being anti-Nazi.

Speaker 10:
[83:32] That's what you say.

Speaker 1:
[83:33] This arose in the Media Matters case challenging the retaliatory investigation of Media Matters, alleged retaliatory investigation, after Media Matters called out the Nazi ads on Twitter. You will notice that the lawyer for the FTC didn't exactly answer the question of whether there was anything radical about being anti-Nazi.

Speaker 4:
[83:54] Is that a T-shirt? There's nothing radical about being anti-Nazi?

Speaker 1:
[83:58] Yeah. It could be. It's a little long, but I think it would be good. Okay. Favorite things. You know, we are in the market for a new summer drink. Some people in the Crooked Friends of the Pod Discord have suggested there is a dictator smasher drink that includes Ukrainian vodka, sweet vermouth, and a little bit of orange bitters for an anti-Putin, anti-Orban, anti-Trump cocktail. I like that. But a member of the Trump administration actually floated another possibility that we wanted to give him credit for here.

Speaker 8:
[84:39] The Straits of Vermouth have not been completely reopened.

Speaker 1:
[84:44] Yes. The Strait of Vermouth. Interesting little Freudian slip there, but at least it wasn't the Strait of Heroin off a toilet seat. Or, wait, penis. Because-

Speaker 4:
[84:58] It wasn't heroin. You can't do heroin on a toilet seat.

Speaker 1:
[85:00] It's the cocaine. Cocaine.

Speaker 4:
[85:01] Again, I'm showing my ignorance.

Speaker 1:
[85:03] Yeah. But another one of my favorite things was going to be a story described in the book RFK Jr. The Fall and Rise, which is by journalist Isabel Vincent, who relies on a series of alleged Kennedy diaries, and she maintains that RFK Jr. once removed a dead raccoon's penis to quote study later while his wife and kids waited in the car. So according to the book, Kennedy wrote in a 2001 entry quote, I was standing in front of my parked car on I-684, cutting the penis out of a road killed raccoon, thinking about how weird some of my family members have turned out to be, end quote.

Speaker 4:
[85:46] By some of my family members, he meant himself.

Speaker 1:
[85:49] Yeah, you know, I wasn't totally sure. For those of you listening who might be affiliated with Georgetown, the day this episode is released on Monday, I'm doing an event at Georgetown Law School with friend of the pod, Professor Steve Vladeck, about my forthcoming article in the Georgetown Law Journal, The Passive Vices. So excited about that. Come see it. Also wanted to give a shout out to the student editors whose great comments definitely have improved the piece. I hope my updated revised version will post on SSRN shortly. Also one last favorite-ish thing and that is, so I joined a casebook for constitutional law a few years ago and we are about to start revisions for a new updated edition. So if you use what was the Stone-Sideman at all constitutional law casebook, I would love to hear from you whether, one, you teach the Second Amendment in your con law class and if so, how you use it, like does it illustrate interpretive theory or are you doing it as a substantive area of law? And also whether and to what extent you teach the First Amendment in that intro to con law class, all of that would be super helpful. So feel free to e-mail me.

Speaker 4:
[87:01] Yes, interpretive method and no.

Speaker 1:
[87:04] Okay. Super helpful. Thank you.

Speaker 4:
[87:06] But I don't use your book, so.

Speaker 1:
[87:08] What girl? Sorry. Maybe the new revision will entice you.

Speaker 4:
[87:13] Maybe the new revision will entice me. We'll see. All right. My favorite things include the book Lady Tremaine by Rachel Hochhauser. And if you've listened to my book recommendations in the past, you know I love a book where they take a well-known story but tell it from someone else's perspective. Like Longbourn was told from the perspective of the servants in Pride and Prejudice. So Lady Tremaine is the Cinderella story told from the perspective of the evil stepmother who twist is not that bad. And I kind of love that. So I'm enjoying it a lot. I also had the pleasure this week of going to a concert with my dear friend Kate Shaw and some other friends. We went and saw West End Girl and we really wanted you to be there, Leah. We had our fans with your head on it like with us. So you were there in spirit. Oh dear. I have to say, Kate is going to say more about it, but the show really slapped. Although I have to say, if I were Lily Allen, I don't know that I would love spending a whole half a year going on tour reliving the breakup of my marriage. And I think that may have been why her demeanor was a little kind of like, she was fucking over it. I think she was over him and the songs. But she gave a great show. It was a great show. But it wasn't a Beyonce show. There was no flying car.

Speaker 1:
[88:33] Actually, when you listen to this episode, I will have gone the night before and I got my nails done for the show. I don't know if you can see.

Speaker 4:
[88:41] Okay.

Speaker 1:
[88:42] I can see that. This one is like a little tennis ball.

Speaker 5:
[88:45] Oh, there's a tennis ball on your accent nail.

Speaker 1:
[88:47] And then the other hand is like silver and accent nail with a tennis ball.

Speaker 5:
[88:50] Yeah.

Speaker 1:
[88:51] I wanted a Duane Reid bag, but I just didn't think the details would really come through.

Speaker 5:
[88:54] That's hard.

Speaker 4:
[88:55] It's going to be hard. That's okay. I also saw another concert last week. I went to Symphony Spaces' big annual gala event, and it turned out to be in honor of Symphony Spaces' 50th anniversary. They decided to have Broadway singers sing the entire Rumors by Fleetwood Mac album. It's one of my favorite albums. I fucking love it. It's such a good album. Like there's so many great hits on it. Fleetwood Mac was absolutely fantastic. And there was all of this great trivia in the middle. So at one point, they noted that Rumors has gone platinum like 26 times or something crazy. Like it sold more copies than both Revolver and Abbey Road, two huge Beatles albums. And this was the best, best bit of trivia. While Rumors was being written and recorded, there were five breakups in Fleetwood Mac. But Fleetwood Mac only has five people. Think about it.

Speaker 5:
[89:56] Isn't it four people? I think there are five. Oh, are there?

Speaker 4:
[90:00] There's Lindsay, Christine, Stevie, Nick, and then Christine's husband, John. John, I think. I don't know what his name is.

Speaker 5:
[90:11] I thought there was two and two.

Speaker 4:
[90:12] One more thing. I just want to say I went to USC out in Los Angeles for a workshop. I did the paper that Kate and Leah and I have that's going to be forthcoming in the Northwestern Law Review. Got great comments from the USC faculty. Thank you so much to all of the faculty members who showed up for that. I got to meet some Stricties in the wild, Claire and Bernadette who introduced themselves. Thanks so much for supporting the pod. Then finally, my last favorite thing ever, and I know this actually happened two weeks ago, but I wasn't on last week's episode, but I didn't know if you guys mentioned it. But I was so buoyed by the sight of Victor Glover, astronaut, moisturizing in space. And as a black mom, I'm like, yes, sir, exactly. Because there was once this time when I was at a law professor conference, an Ellie Mistal, friend of the pod, shouted my name across the auditorium or wherever we were. And he's like, Melissa Murray. And I'm like, what, what? And he comes over to me. He's like, do you have lotion in your bag? And I was like, of course I do. And he's like, I knew you would. You're a black mom.

Speaker 10:
[91:17] And he was right.

Speaker 4:
[91:18] We moisturize. I'm always carrying lotion in case my kids need to be moisturized.

Speaker 5:
[91:23] And Victor brought his own to space.

Speaker 4:
[91:24] He brought his, he was like, nothing's going to stop me from moisturizing. And I'm like, I feel you, Victor. I get it. I get it.

Speaker 1:
[91:31] Now, does Brett Kavanaugh get it? No, he doesn't. An additional Artemis II thing is the video of the astronaut Christina reuniting with her dog. Oh, so adorable.

Speaker 5:
[91:41] All Artemis II content was just like the best thing. Really like since January of last year. I think it's like it has sparked the most joy. That crew is totally incredible. And also a reminder that government actually can do pretty incredible things. It's like the empty doge.

Speaker 4:
[91:56] Especially when they use DEI.

Speaker 5:
[91:58] Especially when they do. Because you know what? Yeah, there's a lot of people who could be astronauts. And like, yeah, it's yeah, this like diverse crew like fucking delivered. Wait, I don't want to cut you off. I'm sorry. Are we good?

Speaker 4:
[92:11] I'm done. Now I'm done. I just wanted to talk about lotion.

Speaker 5:
[92:15] Totally. And Victor Clever and the rest of that crew. Okay, so I want to plus one the West End Girl experience with Melissa. The fans were amazing. I agree that Lily Allen seemed, I didn't know if she was like just a little tired or like a little just over it. I couldn't quite tell. But it was like it was, We're both. It was an understated performance, but the songs are great. And the fans were amazing.

Speaker 4:
[92:37] And they were not understated.

Speaker 5:
[92:39] The call and response. They at the end of the West End Girl, like this first song in the album when she's doing this like one sided phone conversation, there was like a lot of gap filling by energetic members of the audience that I love.

Speaker 4:
[92:50] He doesn't deserve you.

Speaker 1:
[92:52] Stranger Things sucks.

Speaker 5:
[92:53] Yes. Both of those things were uttered in Radio City Music Hall.

Speaker 1:
[92:57] I'll be ready.

Speaker 5:
[92:58] It was great. Okay. A couple of other things. The song What I Want, which Leah you recommended on the emergency episode that you did with Shannon Minter by Muna. Is that who the band, who the artist is? Oh my God. That song is so good. And so is the entire catalog of Muna, which I did not know. And thank you for bringing that into my ear holes. The novel Playground by Richard Powers, I read and Melody and I have had a back and forth about it. And I feel like I can't really say anything about it. Because like it's almost impossible to talk about it without doing some spoiling. But it was fascinating and people should read it. Japan, I was just there for my kid's spring break and was, had the most amazing time and absolutely loved it. Had never been to Japan, had never been to East Asia at all. Like I just really want to go back ASAP. And because I missed two episodes, you guys talk about the times. I think I've listened to every minute, but then maybe I missed some things that reporting, completely bananas reporting on the investigations into sexual misconduct at the Labor Department. Okay. This is maybe a weird favorite things. But I will say that I definitely read it more wrapped than any other investigative reporting since the times broke some of the aspects of the Christine Noem, Corey Lewandowski scandal. I mean, this is just like a new set of completely bonkers allegations of misconduct, including sexual misconduct at the Labor Department. Like, so we already knew that there had been a number of departures from the Labor Department, including of the secretary's director of advance and a member of her security detail with whom she was accused of having an affair. But new revelations suggest that there has been inappropriate text messages sent by the secretary's both husband and father, including to the same young female staff member. This is just an allegation of multi-generational sexual harassment of a sort that I was personally not familiar with. I just like there is no bottom, I think is the takeaway. People should definitely read that truly jaw-dropping story from the Times if they haven't. That's a rough note to end on. Also all Artemis II content, let's do more Artemis.

Speaker 1:
[95:06] Let's try to add some actual potential favorite things slash exciting content.

Speaker 5:
[95:13] Do you have any ideas?

Speaker 1:
[95:15] I mean, I do. As we have mentioned before, June is Bad Decisions season. We are launching a copium, which is of course going on the road as part of the Bad Decisions Tour. So we will be live at the Historic Gramercy Theater on Saturday, June 20th in New York City as part of the Bad Decisions Tour. The tickets are on sale now. The tickets are on sale now. Grab them while you can at crooked.com/events. For those of you who don't know, I bring special custom shirts to our live shows as part of the VIP meet and greets. We always love meeting stricties. That time is just sure to be a wild time at the court.

Speaker 4:
[96:01] So you can also get books signed. You can order your copy of the US Constitution, a comprehensive and annotated guide for the modern reader. If you're not modern, don't buy it. It's not for you.

Speaker 1:
[96:16] If you know not modern people, maybe get the book for them.

Speaker 4:
[96:19] Anyway, if you're aspiring to modernity, that works.

Speaker 1:
[96:24] This is the book for you. That's actually also the week that the paperback version of my book will be out, so you can get it freshly signed. And yeah, so be sure to get those tickets and come to the show.

Speaker 4:
[96:44] Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Our senior producer and editor is Melody Rowell. Michael Goldsmith is our producer. Jordan Thomas is our intern. We get our music from Eddie Cooper and production support from Katie Long and Adrian Hill. Matt DeGroote is our head of production, and we are really grateful for our digital team. Johanna Case, Kenny Moffitt, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East. 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. If you really want to help other people find the show, please rate and review us. It really helps.