Melissa, Kate, and Leah continue to assess the fallout from the second Trump administration, including his blatant disregard of the law in firing many inspectors general. They also discuss the mental gymnastics required to blame Wednesday’s tragic plane crash on DEI, the repercussions of the administration’s executive orders targeting trans people, and two crucial state supreme court races.

TRANSCRIPT

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

 

Melissa Murray 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 Melissa Murray.

 

Leah Litman I’m Leah Litman.

 

Kate Shaw And I’m Kate Shaw. The Supreme Court is on recess this week. The White House, regrettably, is not. So we’re going to start this episode with some breaking news. Largely involving the torrent of lawlessness, chaos and cruelty emanating from the nation’s capital, Washington, DC. Obviously, we will also cover the executive order lowering the price of eggs. Just kidding. There is still been no executive order or other executive action addressing the costs of basic goods, despite the fact that we were told that is what this administration would inaugurate. But why would they?

 

Leah Litman And yet somehow the vibes are the price of eggs apparently don’t feel so high when the leader of the free world is blaming black people, women and people with disabilities for all of the world’s problems. Maybe that the executive action on eggs that we’ve all been waiting for, but after we survey whatever is happening at 1600, we are also going to check in on two different state courts, the continuing saga that involves North Carolina Judge Jefferson Griffin’s twirl villain mustache here refusal to acknowledge his loss to Justice Allison Riggs on the North Carolina Supreme Court. We will also talk about the fast approaching election for a crucial pivotal seat on the Wisconsin Supreme Court.

 

Melissa Murray First, the fire hydrant of news from D.C. and I say fire hydrant and not fire hose, because literally this administration is taking a dump on all of us. This week, the chaos and cruelty were ratcheted up, way up beyond what previous American democracy dials could have registered. So we will walk through some of that. And because the administration is definitely pursuing the Steve Bannon, Steve Miller fled the zone with absolute bullshit strategy, we probably won’t be able to cover everything that they’ve done or certainly we won’t be able to cover everything in the amount of detail that we’d like. But we will get through as much as possible.

 

Kate Shaw So let’s dive right in. First up, we have had not one, not two, but by my count, three different symbolic massacres since we last gathered. So you’ve perhaps heard of Richard Nixon’s 1973 Saturday Night Massacre, in which Nixon directed Justice Department leadership to fire special prosecutor Archibald Cox because Cox was getting uncomfortably close to the truth about Watergate and the president’s involvement in the cover up. So the top two officials at DOJ resigned rather than carry out what they believed to be an unlawful order from the president, because that’s what government officials of conscience, of whatever political stripe or party used to do. Well, last week, Trump said, hold my Diet Coke and began filling out the other days of the week with his own massacres.

 

Leah Litman Just across many different fronts. This administration is truly, truly committed to making Richard Nixon great again. Of course, it began with if the president does it, it’s not a legal immunity ruling, and it has snowballed way beyond that as we are about to cover. So first iteration on a Friday night, Trump sent messages asserting without legal authority because who needs law anyways that he was firing many of the inspectors general in the federal government inspectors general or IGs are important federal government watchdogs who look for waste, fraud, abuse and also protect whistleblowers. So obviously this administration wants to show them the door slashed, give them the Heisman, even though some of the inspectors general in question were people Trump himself appointed the last time he was in office, which really shows you right, like how much escalation I think there has been between Trump 1.0 and 2.0.

 

Kate Shaw Because that was a squish. And this is the real hardcore version. Now, that’s basically what he was communicating. Or he just like didn’t notice or care. It was like all the eggs, I want him out. Except interestingly, there were some exceptions, like Michael Horowitz at DOJ, for reasons I still don’t think we know, was not on the list, although maybe there was a second batch coming. They wanted, you know, sort of spread the the deeds out over days.

 

Melissa Murray There’re only five working days, Kate.

 

Kate Shaw That might be the problem. But anyway.

 

Melissa Murray The other two are for golf.

 

Kate Shaw Yes, true. True. So just to underscore something that Leah just said, to be crystal clear, the law very clearly does not permit these firings in this way. One of the many post-Watergate reform laws. We’re definitely going to be talking about Nixon and Watergate a lot today and probably for years. So one of these laws was passed in the late 70s and amended since then. But it creates these positions, inspectors general, and it does let the president remove IGs. But the president is required to notify Congress 30 days in advance. And this is for good reason. Like to protect any investigations the IGs may be in the middle of, and it also gives Congress the chance to object to the removal of an IG if Congress thinks the removal is not on the up and up. But shockingly, Trump did not adhere to this procedure. So my view for what it is worth is that by law, these IGs still have their jobs. The head of the IG Council, an organization called Siggi, sent a letter saying as much late Friday and some of the IGs in the fired batch actually seemed to have agreed and refused to vacate their offices. At least one IG of the AG department was subsequently escorted out of her office by security after she refused to leave. And even though I think she was right on the law and so is the Siggi head. Unfortunately, the short term resolution to this kind of legal standoff often turns on who is armed, which is obviously the security guards in this instance. But for again, what it is worth, I think of one or more of these IGs wants to fight this out in court. I give them good odds, even in front of this Supreme Court, because they’re not, the president’s not actually prevented from firing them. He just has to take some steps first. And even that was too much for Trump.

 

Melissa Murray It’s like the DACA case, like you could do this. You just have to follow the right procedures and they never follow the right procedure.

 

Kate Shaw They do not.

 

Leah Litman So I am glad to hear you think, Kate, that the IGs have good odds in front of this court. Obviously, I agree that this statute is less restrictive of the President’s ability to remove executive branch officers than the kinds the court has struck down recently, like in Sailor Law and Free Enterprise Fund. Those actually limited the substantive bases that the president could remove these officers. But I will note that two things are kind of giving me pause here. Really three things. One is I have seen some smart right leaning commentators. Jack Goldsmith among them, say he thinks this court would not rule for the IGs and would probably strike down this law also. That’s just like one predictive piece of evidence. And then second is if you take their unitary executive bullshit seriously, then why could Congress impede the executive’s ability to execute the law as they see fit by removing these officers? Obviously, I totally agree. The extent of the burdens are different and different in kind, but if you are a full blown unitary executive, whatever, who knows? And then the third thing that and I feel like I’m going to keep coming back to this is I’m just very concerned about what this Trump victory and a Republican Senate and Republican House mean for this court because I worry it means the Republican appointees will feel less constrained and less bound by public opinion and politics and political pushback and more emboldened to let their flags fly and just do whatever moves them because they don’t think they will face consequences for doing that. And so all of that makes me a little nervous. I don’t know.

 

Kate Shaw I have used the IG example for years, as you know, a modest kind of constraint that Congress can place on the president. Congress places qualification requirements like the FAA administrator is supposed to be knowledgeable.

 

Leah Litman A real world / road rules contestant?

 

Kate Shaw That’s the secretary

 

Melissa Murray That’s the FAA. That’s the secretary of transportation.

 

Leah Litman Of course. My bad.

 

Melissa Murray Pauly Shore is being confirmed here.

 

Leah Litman D.J Pauly d d.j Pauly D.

 

Kate Shaw So anyway, so these front end qualifications Congress has put in for hundreds of positions and these occasional back end modest requirements, procedural ones the President has to follow while still getting to fire whomever he pleases, you know, at least in these kinds of positions. And I don’t think until recently that was controversial. And for what it’s worth, I think that Goldsmith, who wrote this piece in Lawfare about this is wrong. But my prediction is nevertheless probably still too optimistic.

 

Leah Litman What if the president just really needs to get rid of the woke deep state, Kate?

 

Kate Shaw He can. He can.

 

Leah Litman Right. No, those long days know those 30 days, right? Like not.

 

Melissa Murray As much as I would love for you two ladies to debate Kate’s optimism versus a real world view of things. And as much as I’d love to hear more about the Deep State versus the sheep state, this does feel a little bit like a sheep state with all these guys just falling into line. But there’s more news. So in addition to all of that, Trump illegally fired several other executive officers as well. And he did so in a way that seems designed to provoke a test case that would allow the Supreme Court to revisit the constitutionality of independent agencies. Yes, this is a question that we have talked about on this podcast a lot over the last couple of years, and they haven’t broken through. But this this may be the opportunity. So what did he do? Donald Trump fired the National Labor Relations Board member Gwen Wilcox. And as you know, despite board members having statutory removal protection, he took this extraordinary step anyway. What this means is that the NLRB no longer has a quorum and accordingly the agency can no longer do its work. And what is its work? Its work is enforcing labor laws because obviously this election was all about working people, workers, the rights of workers and all of those union leaders who were all in line for Donald Trump. I hope you feel really supported now because this is what supporting labor looks like under this administration. Congratulations.

 

Leah Litman This is an awful development. If you care at all about the labor laws of this country being enforced. And the NLRB, like many boards and commissions, must by law be bipartisan. So the Democratic board members are technically appointed by the president, but by tradition, those names come from the other party. So, for example, in the Obama White House, you know, they got the names from Mitch McConnell, but Trump doesn’t care about those traditions. And it’s not hard to imagine him just never filling those vacancies.

 

Kate Shaw Or maybe those bipartisanship requirements are unconstitutional as well. I look forward to the jeckles he’s making that.

 

Leah Litman Because unitary executive theory, right? Like the executive branch is Republican for all time. And so Democrats don’t get to propose executive branch nominees.

 

Kate Shaw Yeah.

 

Melissa Murray No.

 

Leah Litman QED.

 

Kate Shaw Yeah. So that seems like where we may be headed with respect to these bipartisanship requirements. But as to this particular instance, beyond just the NLRB’s inability to do its important work in the absence of a quorum, it’s clear that on existing law, with statutes passed by Congress and not invalidated by the Supreme Court.

 

Melissa Murray Stop talking nonsense. Why do you keep talking about the law?

 

Kate Shaw I’m going to keep doing it? And I will tell our listeners, the law says.

 

Leah Litman Kate with another hashtag take.

 

Melissa Murray Hot take from Kate.

 

Kate Shaw That my hot take is that the law says the president has to give some reasons to fire a member of the NLRB, I know. Did not use to be.

 

Leah Litman A recurring segment like Kate’s Hot Take.

 

Melissa Murray Kate in the law.

 

Leah Litman No. I just like Kate’s Hot Take.

 

Kate Shaw I’ll do it. I’m happy we can have me eat some, like, hot vegan wings. Maybe while I do.

 

Melissa Murray Ohhh. Hot ones with Kate. Love it. Hot ones with Kate.

 

Kate Shaw I think we’ll need to think through how to do this. But anyway, I am going to press on and remind people that that’s the law. The Supreme Court’s you know, conservatives have been gunning for an opportunity to overrule the precedent that says it’s okay to constrain the president’s ability to remove members of these boards and commissions. So that case they’re gunning for is the 1935 decision, Humphrey’s executor. And this might be the actual vehicle for the court overruling that case. And I’m going to, I don’t know, disappoint you guys by suggesting here I’m not going to make an optimistic prediction about Humphrey’s executors arriving. So I think, you know, it’s a question of whether the commissioner Wilcox, who has said she will challenge her firing, actually proceeds with it. And if so, we are, I think, very likely looking at the demise of one of the last real internal checks on the president, which, you know, couldn’t come at a better time. So there we are.

 

Melissa Murray In addition to all that, there’s more. Donald Trump also fired two EEOC commissioners. And the EEOC is the Equal Employment Opportunity Commission and is basically charged with administering all of the laws that deal with fair employment. Trump also got rid of officers at the Privacy and Civil Liberties Oversight Board. That is an arm of the federal government that is charged with, among other things, safeguarding data privacy. And obviously this is an administration that cares a lot about your data privacy. See e.g. the tick tock ban. In taking these steps, the Trump administration denied the EEOC a quorum. So as with the NLRB, they can no longer do things including voting on any of the issues that come before them. And that, too, is bad for workers in many respects, but maybe not so bad because the new EEOC acting chair has recently announced that instead of dealing with all of the different things that come before this particular commission, the EEOC is now going to be focused on whether or not private businesses allow transpeople to use bathrooms that correspond to their gender identity. That is now the commission’s top priority. So on balance may be net zero.

 

Kate Shaw See now you’re looking for silver linings Melissa.

 

Melissa Murray I am. I am.

 

Kate Shaw All right. All right. So just to finish, rounding out the list of massacres that we alluded to up front. So on Monday, the White House sent an email that purported also in clear violation of the civil service laws to fire and.

 

Leah Litman Can’t stop, won’t stop.

 

Kate Shaw A dozen plus members of Jack Smith’s team. The letter, as I read it, just throws some like vaguely law like language atop the claim. I have an article two. It says I get to do what I want and then says, I can’t trust you to carry out my policy priorities. So you’re out. And you know, these were civil servants. They have statutory protections against being removed in a fit of presidential pique. So we will once again see if one of them brings a challenge. I mean, just as to all of these developments, I have to say, I’m sure you guys have had some more conversations in the last week, but I have heard multiple former DOJ officials basically say this was the worst day or the worst week in the department’s history, just like I don’t think we can overstate how devastating and disruptive these moves and in particular, just the summary firing of all of these career prosecutors A, were to kind of the morale inside that operation. And obviously, that’s the point.

 

Melissa Murray And these were people who worked for Jeff Sessions. So they’ve seen some things.

 

Leah Litman And the toilet bowl guy.

 

Kate Shaw Matthew Whitaker.

 

Leah Litman Matthew Whitaker, Right. So don’t forget him.

 

Kate Shaw His portrait is still hanging there. And who knows, he may be back in before the month is done.

 

Melissa Murray DOJ has seen some things, but not this.

 

Leah Litman [AD].

 

Leah Litman There are even more DOJ developments. We wanted to know that again, speak to just how quickly they are unraveling this major institution of American governance. So the department moved to drop the special counsel’s cases against Trump allies, Walt Nauta and Carlos de Oliviera, which were, of course, related to the obstruction of justice, unlawful retention of classified documents, slash America’s secrets in Mar a Lago. Bathroom’s case out of Florida. Yeah, that one. And then also, the person who is in charge of prosecuting public corruption resigned, which is great because there’s definitely no corruption going on right now in front of our eyes. So I just wanted to mention a few examples of things that are definitely like not corrupt and don’t come anywhere close to corruption. One is Facebook slash media settling a lawsuit against Donald Trump? You know, Trump sued Facebook slash media when he was deplatformed and they agreed to pay him $25 million, even though it’s clear, pretty clear the lawsuit is meritless. So this seems kind of like a freebie. And that’s.

 

Melissa Murray A tip.It’s a tip, Leah.

 

Leah Litman It’s a gratuity. Right. And that’s apparently not the only example of entities thinking about settling suits in ways that seem like windfalls for Trump. So The New York Times reported that Paramount is in talks to settle a $10 billion lawsuit Trump filed against CBS for how 60 Minutes edited Kamala Harris’s interview. Right. If you want to talk about a meritless lawsuit.

 

Melissa Murray Right. Taylor Sheridan would never. Like sullying the Paramount name right there.

 

Leah Litman But again, this seems like a mechanism to basically funnel payments to the president to make him happy. And we are also seeing in real time.

 

Melissa Murray Well, Paramount has some other stuff going on like so.

 

Leah Litman Exactly.

 

Melissa Murray One of the things happening is that there is a potential merger between Paramount and Skydance that obviously.

 

Leah Litman Whose approval do they need?

 

Melissa Murray Ah. Hmmmm

 

Leah Litman The federal government’s.

 

Melissa Murray Interesting.

 

Leah Litman Yeah.

 

Melissa Murray It seems like there’s a connection.

 

Leah Litman Nope. Can’t be. These things are totally unrelated. This is just how government works. People.

 

Melissa Murray Tips.

 

Leah Litman Just exactly throw tens of millions of dollars at government officials.

 

Melissa Murray To settle meritless lawsuits about how you edit an interview. For which you likely have First Amendment protection.

 

Leah Litman Right.

 

Melissa Murray No biggie.

 

Leah Litman Yes. And this is also happening at the same time that we are witnessing Elon Musk’s very ever present role in fairly significant personnel decisions at the federal government. And this, of course, is the person who poured tens of millions, right, just like substantial sums into electing Donald Trump and seems to have purchased himself the role of being effective free leader of the world, slash co-president or varsity president, you know, And so all of that is happening again. At the same time, the head person for public corruption at DOJ has decided I’m out.

 

Melissa Murray I have to say, just back to the Elon Musk thing, I never thought I would find myself on the same page as Steve Bannon, but I too, am a little uncomfortable with how much South African influence is pervading this admin. It’s a little upsetting a little interesting.

 

Leah Litman A little South African influence that’s sympathetic to the German far right, you know, could go on here.

 

Melissa Murray I mean, like Bannon said at first. But I was like, wow, am I like, are we on the same page? Like, we might be interesting.

 

Leah Litman I just wanted to draw a parallel here in the Strange Bedfellows allies thing, because what this is showing is just how absurd, outlandish, horrific it is to effectively put, you know, one of the richest men in the planet in control of the government after he’s paid his way to do that. And he’s basically throwing the public under the bus and doing what he wants. And this is leading to a strange allyship between you, me and Steve Bannon, in the same way that like when the Supreme Court inevitably knocks down one of the insane things out of this administration, it will not speak to the reasonableness of the Supreme Court, just like we are not here saying Steve Bannon, voice of reason. Right. Exactly. Exactly. It is just a reflection of where the Trump administration is trying to move the goal post too.

 

Kate Shaw Just how shark jumping all of this. Yes. Yes. Back to Paramount for just one second. There is something so insane about the president as plaintiff, right? Like just that, you know the idea that.

 

Melissa Murray That’s a law review article right there.

 

Leah Litman Let’s do it. Let’s do it.

 

Melissa Murray That’s it.

 

Kate Shaw But I mean, the idea now this stuff is not going to end up in court. Because people are all bending the knee and settling. If the Supreme Court is going to invent a doctrine that ex-presidents like can’t ever be criminally prosecuted. I don’t think it’s too much of a stretch to say they should also invent a doctrine that while you’re the fucking president, you can’t sue people.

 

Leah Litman No, no, no, no. No, because that’s exercising the executive power. Kate. So right.

 

Kate Shaw To shake down media companies.

 

Leah Litman Exactly.

 

Kate Shaw Got it. Okay. All right. Well, then, I don’t know. Maybe we can’t write the law article together because I think we have a fundamentally different view of how this works.

 

Leah Litman Well, no, we would just need to seriously consider that reasonable position in which there’s a deep debate in the literature about.

 

Kate Shaw Got it. Got it.

 

Melissa Murray And all we’re really doing, we’re not suggesting a path forward, we’re just complicating the inherited narrative.

 

Leah Litman Yes.

 

Melissa Murray Right.

 

Kate Shaw Sometimes the news cycle makes me want to flee to those, like, ridiculous tropes of law review of legal scholarship. It just feels like a safer place to be right now.

 

Melissa Murray Lit review and then complicating things.

 

Kate Shaw All right. But we got to get back to the news cycle.

 

Leah Litman Okay.

 

Melissa Murray Back to the news. Okay. So we’ve been joking around, but this is actually really important and incredibly tragic. We want to not only acknowledge but discuss the devastating and tragic plane crash at Washington National Airport last Wednesday. As many of you know, a Black Hawk helicopter collided with a regional jet that was traveling from Wichita, Kansas, to Washington, D.C.. And all 67 persons on board the helicopter and the jet are presumed at this point. We’re taping on Friday afternoon to be dead. And this is obviously a catastrophic event, a massive national tragedy. But what makes it worse is that we actually don’t know whether or not it was avoidable, although the signs suggests that it likely was avoidable. So here’s what we do know. In their first week in office, the Trump administration moved very quickly to disassemble the civil service and regulatory agencies, including many of those housed within the Department of Transportation. And that, of course, is the agency charged with airplane safety. So just to walk through a few things. On the first day of the Trump administration, the FAA, that’s the Federal Aviation Administration, the head of that administration, the FAA administrator, quit after Elon Musk told him to resign. The administrator and Musk had butted heads over Space X many times before, including when the FAA administrator proposed fines for rocket explosions.

 

Leah Litman And that’s not all. Within 48 hours of Trump taking office, he fired the heads of the Transportation Security Administration, the TSA, and the head of the Coast Guard. He also eliminated all the members of a critical aviation security advisory group, the Aviation Security Advisory Committee, which has over the last several decades made recommendations for improving aviation security, the vast majority of which have been implemented. And the memo firing committee members said the firings were part of a, quote, commitment to eliminating the misuse of resources and ensuring that DHS activities prioritize our national security, end quote.

 

Melissa Murray Just time out here. A lot of this stuff was implemented post-9-11 because a massive terrorism act was effected through the use of airplanes that became targeted missiles. And this is just mind blowing. I still remember all of the Republicans like the law and order. Secure the homeland Republicans. How are they down for this? Like what happened?

 

Kate Shaw Yeah. I mean, this overarching, just like insane monomaniacal commitment to downsizing government, hollowing out the civil service and destroying the regulatory state like may already be yielding tragic life and death consequences like and maybe actually materialized on the evening of this plane crash. So, again, facts still emerging, but an initial FAA report noted that air traffic control staffing the night of the crash was, quote, unusual in that a single air traffic controller was handling both helicopters and planes. When those jobs are usually and by design, performed by two different people.

 

Melissa Murray They also operate on two different radio systems. So if there are two people monitoring them, they can be on the two different systems. But if one person is charged with dealing with both, they have to toggle back and forth between them, perhaps increasing the opportunity for error. So again, these are all of the things that are going on at the Department of Transportation, but they’re still more so exactly one week before this fatal crash. The Trump administration signed a presidential memo terminating the Biden administration’s FAA hiring policy. The Biden administration had tried to hire more air traffic controllers in order to ease this manpower shortage. And because of the increase in flight congestion at major airports. The memo, which is entitled President Donald J. Trump NZEI Madness and Restores Excellence and Safety within the FAA, basically associates the Biden administration’s hiring policies with unchecked unmerited hiring of minorities and other individuals who fall under the broad and continuingly shifting. Moniker of D-I, which obviously must be eliminated. So how exactly does this great administration purport to restore excellence and safety to the FAA once it’s eliminated all of this hiring under DCI? Well, first, they appoint Sean Duffy as secretary of transportation. And if you don’t know who Sean Duffy is. Wait for it. Duffy began his time in public life as a member of the real world. And we’re not just talking about a sentient being walking around in the world now. We actually mean MTV, the real world, where you take eight strangers, put them in a house and see what happens. But perhaps more relevant to his credentials is Duffy’s time as a contestant on the Real World spinoff MTV’s Road Rules. What was this deeply meritocratic appointment doing in the lead up to this tragic plane collision?

 

Leah Litman He was issuing his own kind of DEA policy, I guess a permissible kind. So a new Department of Transportation memo directs that. The Department of Transportation and Department of Transportation supported programs will, quote, give preference to communities with marriage and birth rates higher than the national average and, quote, because if there’s any way to hire the best people and ensure aviation and highway safety, it’s selecting for high marriage and birth rates. What, like this is some weird shit.

 

Kate Shaw So newly installed in the role after the crash. Duffy did I think actually shed some light on this when he said, obviously it is not standard to have aircraft collide. I want to be clear on that. So that was.

 

Melissa Murray Clear. For sure.

 

Kate Shaw Yeah.

 

Leah Litman Message received, sir.

 

Melissa Murray Was Puck not available? What’s not available for this position? Do you. Do you know who Puck is Kate?

 

Kate Shaw I think he was like a villain on reality television early on. Is that right? That’s. That’s about all I got.

 

Leah Litman You know, I personally would have gone with Johnny Bananas, but.

 

Kate Shaw Or Survivor. What was Puck? He was real world?

 

Melissa Murray He was on the Real World.

 

Kate Shaw Okay. All right.

 

Leah Litman Okay. And of course, now leading the Department of Defense is Pete Hegseth, another DEI hire, at least as we understand, DEI. And we explained it last episode, which we won’t repeat here. The New York Times has reported that the Black Hawk helicopter may have deviated from its planned course. And what was Pete Hegseth doing during his first few days on the job as secretary of defense?

 

Melissa Murray Shoring up America’s homeland?

 

Leah Litman If by going on Fox News to rant about DEI is shoring up America’s homeland.

 

Melissa Murray Same same.

 

Leah Litman Then yes, because and this sets the stage for what I think we also wanted to talk about, which is because there is truly no low to which this administration will not stoop. Trump, in a press conference after the crash, blamed the crash on, you guessed it, DEI. When asked by a reporter how he knew diversity had something to do with a crash after saying the investigation was still ongoing, Trump said.

 

Clip Because I have common sense, okay? And unfortunately, a lot of people don’t.

 

Leah Litman So maybe we should talk about what DEI means here and also J.D. Vance’s later extrapolation of this principle. So when Trump is saying he’s blaming DEI, he is blaming racial minorities, women and people with disabilities for the crash, like it doesn’t seem to matter who the air traffic controllers or pilots were, like this is the new all purpose excuse for men’s failure. Like it just cannot be white man’s fault.

 

Melissa Murray Basically, this is the government version of Agatha all along. It was DEI all along. And J.D. Vance, I thought, just literally took this to a whole new level, a really just gross, disgusting level. So, JD Vance, once it became clear that the plane and the helicopter were actually piloted by white men, had this to say.

 

Clip Something the president said that I think bears re-emphasizing, which is that when you don’t have the best standards in who you’re hiring, it means on the one hand, you’re not getting the best people in government. But on the other hand, it puts stresses on the people who are already there.

 

Melissa Murray I got nothing for this. Like absolutely nothing.

 

Leah Litman It is not the case that he is saying having nonwhite men in these positions, it’s what’s causing it is that the existence of DEI somehow kills the vibes of white men and rubs them the wrong way.

 

Melissa Murray It is so hard to work with people of color and women that you just like forget how to do your job. Yeah. Like how does this plane work?

 

Kate Shaw If obviously if in fact it was a person of color who was the pilot in one of the instances like it would, they would be they would turn the dial up to Defcon. But even in the absence of that, they they think they have a theory, which is, yes, essentially the environment itself that might contain lingering. You know, Biden hires who might not be white men is somehow responsible. It is absolutely vile.

 

Melissa Murray So in this leadership vacuum that we’re calling the news cycle, someone stepped in to fill the void. So former Secretary of Transportation Pete Buttigieg had this response on Twitter.

 

Kate Shaw And we should say he does know what he’s talking about because there were multiple fatal air crashes on his watch when he was the secretary of transportation. Right? No.

 

Melissa Murray No.

 

Kate Shaw In fact.

 

Melissa Murray There were no fatal air crashes.

 

Kate Shaw In fact zero, in fact when.

 

Leah Litman And I would know because I’m literally paranoid and terrified of flying. So when I saw this news, I literally became physically ill and started panicking about all my upcoming flights.

 

Melissa Murray So but a judge had this to say. Quote, unquote, despicable. As families grieve, Trump should be leading, not lying. We put safety first. Drove down close calls, grew air traffic control, and had zero commercial airline crash fatalities out of millions of flights on our watch. Boom. President Trump now oversees the military and the FAA. One of his first acts was to fire and suspend some of the key personnel who helped keep our skies safe. Time for the president to show actual leadership and explain what he will do to prevent this from happening again. Boot a judge out.

 

Leah Litman And again, just to underscore, we don’t know what exactly was the cause of this crash yet, but we do know it is racist, sexist, ablest to just insist without evidence that obviously the problem is that the FAA didn’t have enough straight white men or indeed had any women, minorities or people with disabilities. So to return to Pete Bridges statement, this was one of the rare statements from a Democratic political official that actually tried to take the fight to Donald Trump.

 

Melissa Murray I’m sorry, What is a Democrat? Can you tell me again? What is that? I haven’t heard of those recently.

 

Leah Litman I haven’t heard from them if they exist.

 

Melissa Murray Sometimes I get texts.

 

Leah Litman Right, asking for money.

 

Melissa Murray Asking me to chip in. Yeah.

 

Leah Litman Yeah. So the Democratic Party is a dependent. Should I be claiming them on my tax forms? But.

 

Melissa Murray Only if it’s a fetus.

 

Leah Litman Right.

 

Melissa Murray Fair.

 

Leah Litman Many thoughts about this one is Sean Duffy. There were people calling for Democrats to hold up his confirmation because.

 

Melissa Murray Road Rules. Because road rules.

 

Leah Litman Not just because road rules, but because of some of the things the Trump administration was doing and Senator Schumer and others were like, no, no, no, no, Right. Like, we’re not going to do that. We’re not going to play hardball. We’re just going to confirm him.

 

Kate Shaw Tons of Democratic votes. Like not only do they struck at most, I don’t know, 70 plus people. He had a huge, overwhelming confirmation. And yes, for a road rules contestant.

 

Leah Litman This is not to apologize for in any sense the choices people made in the 2024 election. But Donald Trump, people report wanting to vote for him because he pretends to be fighting against this system and fighting for them. And the Democratic Party is just constitutionally incapable of doing that, right. Like they will not stand up, do a politics right and try to fight against a system that is failing people. Because Donald Trump is literally handing over control of the federal regulatory stage to Elon Musk, who wants to dismantle it. And again, this is at the price of the public, public safety, public money right there, stealing our money, stealing our safety. And the Democrats just cannot be bothered to come up with a talking point or a fight about this.

 

Kate Shaw And one more thing we wanted to flag about the crash. We learned from a friend of the pod, Sherrilyn Ifill, that the victims of this crash included a young civil rights lawyer, Kiah Duggins, who had been a member of the civil rights core and was slated to join the faculty of Howard Law School. Our hearts go out to her friends and her family and colleagues at Howard, and may her memory be a blessing.

 

Leah Litman [AD]

 

Melissa Murray Moving away from the crash for a moment, we should underscore that the FAA isn’t the only example of what Leah was just talking about, this idea of handing over control of the government to unelected people like Elon Musk. The Washington Post reports that the highest-ranking career official at the Treasury Department announced his plans to leave government. Apparently, the official got into a dispute with Elon Musk and his allies over access to sensitive payment systems and, quote, Musk surrogates apparently wanted access to a payment system that the government uses to disperse trillions of dollars to which the government official was like. Seems like a bad idea and said no. And this caused the dispute. I mean, what on earth what is happening here?

 

Kate Shaw Give Musk and his lackeys all of the.

 

Melissa Murray Give us the keys.

 

Kate Shaw Federal government’s bank account information and just trust us not to misuse it.

 

Melissa Murray I mean, this is like literally when you get held up in a park and they’re like, give me your ATM card. And only. Yeah.

 

Kate Shaw Only ten trillions and trillions of dollars.

 

Melissa Murray Trillions and trillions of dollars and oligarchs.

 

Kate Shaw Yeah. Yeah. All right. Well, so don’t worry. There’s lots more so related to what is happening at the FAA and D.O.T. is the administration’s announced. I don’t actually know what to call this buyout slash maybe bait and switch non buy out. So I don’t think we know.

 

Melissa Murray Public private partnership.

 

Kate Shaw Will describe it rather than just parrot buyout. So the Office of Personnel Management, the basically human resources agency for the whole federal workforce, apparently in conjunction with or with the fingerprints of Doge, bro slash co-president Elon Musk, kind of, you know, all over this initiative, sent the federal workforce, maybe all of it, maybe a subset, not totally clear. An email basically saying if you resign by next week, you will get paid for eight months or you can stick around and risk being furloughed and eventually fired. So you guys will be shocked to hear me say this whole thing is legally.

 

Melissa Murray What’s your hot take? What’s your hot take.

 

Kate Shaw How about this, though? Part, law aside, it is just wildly counterproductive if you are trying to keep talented people around to tell.

 

Melissa Murray To pay them to leave.

 

Kate Shaw Everyone to just leave. Just go. I mean, I guess if making government employment intolerable and letting attrition weed out a lot of people is too slow. This is one alternative to just grind the capacity of government to a halt immediately. But I’m not sure how else to understand this effort. But in that spirit.

 

Melissa Murray Someone was benching severance. It’s okay.

 

Leah Litman And you know, you’re calling it buyout slash non buyout because it’s not actually a buyout. Right. If you looked closely at it, it was like if you agree to resign, will maybe let you work remotely for the next few months. But also your agency had could redeploy you anyways. So JK unclear.

 

Kate Shaw But then there was some like follow up like kind of Q&A advice that seemed to say you definitely will get to take the time to go get another job or take a vacation. But none of that.

 

Melissa Murray That’s the public private partnership.

 

Kate Shaw And so definitely don’t assume that that is actually the term that they are offering you if you were federal employee or lithium.

 

Leah Litman So moving on to other message us, we are only now getting to what happened last Monday night when the federal government, through an Office of Management and Budget memo from the acting director, purported to pause trillions of dollars in government spending so federal grants and loans until they could be vetted, to be sure, said grants and loans were not advancing woke ideology, including because we are living in the stupidest and deadliest timeline quote Marxist equity transgender ism and Green New Deal social engineering policies, end quote. The memo was supposed to go into effect at 5 p.m. last Tuesday, but even before that it was kind of in effect the portals in the states that process Medicaid payments were reportedly essentially taken off line, even though the administration initially said payments to individuals like Medicare and Social Security wouldn’t be affected. And it said also Medicaid wouldn’t be affected. But then the press secretary was like, actually, no, I need to double check that. I mean just, wild shit.

 

Kate Shaw Medicaid either is or is not included, but we’ll find out and get back to you. Yeah.

 

Melissa Murray In any normal timeline, Congress might have something to say about a blatant usurpation of its authority. But in this timeline, we can just summarize all of this. Manu Raju, who reported that a bunch of House Republicans this morning at the Doral talked about this move to freeze federal aid. They were defending Donald Trump. This included the chairman of the House Appropriations Committee who said he didn’t have a problem with the White House decision to pause the aid because that’s probably what you ought to do when you’re coming in as a new administration. I’m. Not a lawyer. I can’t pontificate on whats legal.

 

Leah Litman The Piece de resistance of Representative Cole’s.

 

Melissa Murray I’m going to get there. I’m going to get there. Appropriations is not a law. It’s a directive of Congress.

 

Leah Litman You know.

 

Melissa Murray This is like.

 

Kate Shaw It’s a valentine.

 

Melissa Murray This is Rudy Giuliani, Irrrational basis review. The big one, irrational basis review.

 

Leah Litman Literally, the Constitution talks about appropriations by law.

 

Melissa Murray Or directive.

 

Leah Litman Right.

 

Melissa Murray An instruction from Congress. Basically, the people charged with exercising legislative authority are conceding that they have let this president do what he wants, Let the executive branch like. You can just roll all over them. And that is what is happening.

 

Kate Shaw Yeah, so Congress doesn’t necessarily appreciate this, but Congress should be able to see that this directive does fly in the face of core constitutional allocation of authority principles. Congress has the power to spend. The president gets to execute the law. There’s also a statute called the Impoundment Control Act and the Administrative Procedure Act.

 

Leah Litman This question, Kate, where was the part that said the federal government gets to hand over trillions of dollars to Elon Musk and disbursements?

 

Melissa Murray That was a difficult act.

 

Kate Shaw Article 12. No, no, that’s not what my.

 

Melissa Murray Amendment 28, which was the equal rights for Elon amendment.

 

Leah Litman Great.

 

Melissa Murray Yeah.

 

Kate Shaw Yeah. I’m sorry. Okay. Yeah, it’s more.

 

Melissa Murray All right. Did anyone also have, like, real Youngstown vibes? I mean, like, what a time to teach conlaw.

 

Leah Litman Literally just finished teaching Youngstown.

 

Kate Shaw And were you able to do it at like, were you able to put your heart into teaching it? If Congress says you can’t do it, that means you can’t do it.

 

Melissa Murray Or did you just lay down in the fetal position on the podium.

 

Kate Shaw I need  advice for next week. Seriously.

 

Leah Litman You know, I gave my students an excerpt of the I’ll see a memo that was like, the president doesn’t have unilateral impoundment authority and doing the inherent presidential authority analysis. So that was the approach that I took.

 

Kate Shaw All right. We’ll see how it goes.

 

Melissa Murray Or the fetal position.

 

Kate Shaw Or that.

 

Melissa Murray Either or.

 

Leah Litman Why not both?

 

Kate Shaw Right. And so there are still some lower federal courts that do still dwell in the reality that is bounded by the Constitution. The Supreme Court’s articulation of the basic principles contained in it, in cases like Youngstown and in that world. The district judge stayed this order on Tuesday afternoon in response to a complaint filed by a bunch of, you know, service providers who are beneficiaries of federal grants and aid. And this was actually just a brief administrative stay to allow for expedited briefing and argument. But I mean, as I think our description has already made clear, the chaos and confusion are impossible to overstate. And then as things got crazier.

 

Melissa Murray This is the best part. This was the best part.

 

Kate Shaw I screamed. I was in my office and I screamed.

 

Melissa Murray The scream I scrumpt.

 

Kate Shaw Exactly. They rescinded it with a one line OMB memo that was like, Never mind. Oops. And it seemed like.

 

Melissa Murray My bad.

 

Kate Shaw Not oops. My bad. More like it. Or maybe, like, you can’t fire me. I quit to the federal courts who were obviously not buying what they were selling, but wow.

 

Leah Litman And then things continued from there because White House Press Secretary Caroline Levitt tweeted what seemed to want to be a recession of the recession, leading us to wonder. Lovett or Levitt. Leavitt>

 

Melissa Murray Always choose Lovett.

 

Leah Litman Right? Exactly.

 

Melissa Murray Always choose Lovett. Choose the bear.

 

Leah Litman Lovett.

 

Melissa Murray Choose the bear.

 

Leah Litman So it turns out you can’t override and OMB memo with a tweet, but you can get federal judges interested in continuing to superintend challenges to whatever it is the administration is doing here when they announce. Maybe we’re just going to do it after all. So in part because of this tweet seeming to keep this initiative alive, another federal case, this one brought by a group of Democratic states, is likely to produce another preliminary ruling against the administration. The best people, meritocracy in action.

 

Melissa Murray It’s the fucker out of times. It was the find out of times. Anyway, while all of this was unfolding, Head Start programs, domestic violence shelters, veterans programs, etc., etc. all of these programs that are funded by federal dollars were basically preparing to furlough staff, notify their beneficiaries and other participants that they would no longer be getting the services to which they had previously been entitled. Now it seems that all of these services are on again. But again, that seems only to be because of the whims of this particular administration and the intercession of principled judges. So watch this space, at least until the next OMB memo. And, you know, we’ll see what happens. And if you are the recipient of federal largesse. Buckle up.

 

Leah Litman So one, what do these people have against Meals on Wheels? But two, lest you think this OMB saga is over, I want to remind you all of what happened with the travel ban slash Muslim ban during the first Trump administration, which is, remember the chaotic order that Trump just kind of chaired that no one knew about, cause chaos at the orders. It was passed by courts. Then they come back with a new modified order that looks slightly more law, like some additional lipstick on the pig. And that one also gets enjoined by some lower courts, but then it expires and they eventually produce a third.

 

Melissa Murray This one with a little less Islamophobia, less islamophobia.

 

Leah Litman Well that they claim to have a little bit less Islamophobia, and they claim to have resulted from some sort of inter-agency process. And that third iteration of the same impetus is eventually upheld by the Supreme Court. So we should not lose sight of the fact that, again, this might be part of the flood the zone with shit strategy, again, much to cover here. We definitely wanted to spend some time on the fast moving, cruel executive orders that target the trans community. So the administration has now issued multiple additional executive orders targeting trans people in truly vile, despicable and unconstitutional ways. These are the second act too, and follow from a previously announced executive order that declared two genders and purported to defend women from gender ideology extremism. That previous order is already having devastating consequences as part of the declaration that there are only two sexes and its insistence trans people don’t exist. The administration issued a directive to ensure males are not detained in women’s prisons. That was part of the EO. The Huffington Post has since reported on some of the chaos and cruelty this has caused in prisons. It described an account from a person incarcerated at a women’s facility that maintained officers were taunting trans inmates, saying We don’t have to call you women anymore, taking them to segregated housing, a form of solitary confinement, possibly to eventually transfer them to men’s prisons, where they would face staggeringly high risks of sexual assault, harassment and more. Also out of fear of some of these executive orders which threaten federal funds unless, you know, entities go along with the administration’s vile pronouncements. You know, some entities have announced they will stop providing gender affirming care because they are concerned about losing out on federal funds. So UVA’s health services, for example, announced that last week. And at the time we were recording on Friday, you know, that announcement was still in place.

 

Kate Shaw Okay. So that’s sort of the fallout from the first executive order. What do these new executive orders do? So they purport to totally ban transgender individuals from the military with just shockingly offensive language about the unfitness of trans people to serve. It isn’t totally clear how the order will impact current trends military members, but it clearly would prospectively ban the admission into the military of any trans people.

 

Melissa Murray That’s only the first executive order. The second one purports to crack down on schools ability to support trans students and educate people about gender identity. Although we should be very clear, the order is broadly about education and school curricula, not simply about the question of trans rights and gender and sexuality, but what the EO actually does with regard to gender and sexuality is that it attempts to require all schools that receive federal funding to stop any effort to protect trans and non-binary students and to abandon any accommodations, acknowledgments or inclusions of such students. It also says that these schools must stop supporting diversity measures and requires them to advance, quote unquote, patriotic education, which the order defines as, quote, an accurate, honest and unifying, inspiring and ennobling characterization of America’s founding and foundational principles, end quote. It also requires, quote, a clear examination of how the United States has admirably grown closer to its noble principles throughout its history and the concept that celebration of America’s greatness and history is proper end quote. Hmmm.

 

Leah Litman This made me wonder whether the order might make MAGA itself of dubious legality, since the premise of MAGA is that America is not already great, right? And needs to go through some sort of re-great-ning.

 

Kate Shaw That’s an excellent observation.

 

Melissa Murray That’s like MAGA is a Jamaican mom who constantly wants you to improve yourself.

 

Kate Shaw Up your game a little bit.

 

Melissa Murray Yeah. Yeah. This order is like, You were always fabulous, sweetie. It’s the Kris Jenner of EOs, actually.

 

Leah Litman It really feels like all of these orders were slapped together by some people between the ages of 18 to 22 who have been deeply radicalized by the Manu sphere. And it’s that that’s what I’m picking up.

 

Melissa Murray And Kate, do you have a hot take about this, about this and the law?

 

Kate Shaw I mean, we do have a First Amendment still. The justices sometimes seem interested in that.

 

Melissa Murray And so sometimes. But only on the religion side.

 

Kate Shaw Typically. But.

 

Melissa Murray Typically.

 

Kate Shaw Corporate spending do that? There’s a few parts of the First Amendment that they’re enthusiastic about. I mean, you know, it’s this is this is a vile both I mean, they’ve kind of trans EOs in general are disgusting, discriminatory. And also all of these in particular, the school executive order seems like an obvious and flagrant violation of the First Amendment. And look, are there absolutely a lot of lower federal court judges who will agree with that? Yeah, I don’t think there’s any question that the Supreme Court, obviously. Who knows?

 

Melissa Murray I thought you were going to mention the federal law that prohibits federal officials from telling schools what they can and cannot teach. It’s not supposed to be up to federal officers. And we’ve heard ad nauseum how education is a local issue. So I’m really frankly surprised to see this EO existing. And yeah. And also the spending clause would like a word.

 

Leah Litman Exactly whatever the Supreme Court says, right? The federal government is not supposed to be able to impose like a novel out of left field, out of nowhere conditions where.

 

Kate Shaw Or maybe the executive branch is.

 

Leah Litman Turned topsy turvy. Right?

 

Kate Shaw Like the vagueness, the midstream changes. And also it’s not the branch that’s supposed to be imposing these conditions. I know it’s hard to keep. It’s hard to actually provide a comprehensive accounting of all of the constitutional infirmities with an order like this.

 

Leah Litman Yeah.

 

Melissa Murray I just want to take stock so far. George W Bush, Steve Bannon, and now Kate and the law. And we and I have vaguely agreed with all three. All of these.

 

Kate Shaw Big Ten guys.

 

Melissa Murray What a world. What a world. Well.All right. We should also talk about the executive order addressing Guantanamo Bay. As many of you might have remembered from the early aughts, Guantanamo detention really worked well for detaining suspected terrorists. That was highly ironic. But because it was obviously problematic, Trump’s people decided why not build a huge bigly new facility to detain people at Gitmo? Horrible idea. In addition to it being a horrible idea, the order itself is at war with Donald Trump’s self-presentation that he is going to overcome resistance from other governments and successfully close the border. At the signing ceremony, he suggested that detention is necessary because third countries might refuse to take back their nationals and because if these individuals weren’t detained, they would be able to come back into the United States again. All of this seems to be in tension with Trump’s talk about taking a firm line at the border. Like, why do we need this new facility if you strongmen are taking firm steps to secure the border? I’m confused. Just me.

 

Leah Litman Also, Guantanamo has never been used to detain people who are apprehended in the United States. Sending people there would effectively be a removal from the United States and should be subject to all of the legal protections and review governing removals like this is just insanity.

 

Leah Litman [AD]

 

Kate Shaw I actually wanted to point out one piece of good news, which is actually some of the early polling on some of this madness does give the sense that the public actually isn’t all that into this dumpster fire. So Reuters Ipsos did some polling at the end of the first week when a lot of these orders had just been issued. And actually, I think it’s fascinating and I don’t think it got a ton of play. So I did want to just mention a couple of highlights. So one, ending birthright citizenship is very unpopular. So 59% opposed, 36.

 

Melissa Murray Weird. So weird.

 

Kate Shaw I mean, at this point, look, they chose Donald Trump. I wouldn’t have been that surprised at any of this. So actually, I did find it kind of heartening that that some of the numbers came out the way they did, pardoning J6ers, 62% opposed, ending all die programs and firing officials involved in DUI. 51% disapprove. 44% approve. So still more unpopular, ending federal efforts to hire women and minorities. That’s how the question was phrased. Only 37% approve of doing that. 59% disapprove. And here is my favorite, you guys renaming the Gulf of Mexico. It seems kind of anodyne. People hate it. 70%, 70% of survey respondents are opposed to renaming the Gulf of Mexico. So, again, it just does suggest to me that, does polling mean anything? Who knows? And these are initial impressions, but I do not think that the stuff that they are, you know, serving up is wildly popular with most of the American public.

 

Melissa Murray Are we supposed to take from this that the kids are okay?

 

Kate Shaw No.

 

Melissa Murray Okay.

 

Kate Shaw It could be worse. They could be like, Yes, give us more.

 

Melissa Murray You’re so good at this. You’re so good at being optimistic. I love this about you. Cause, like, this is bad.

 

Leah Litman It’s bad. I have something that isn’t good news, but kind of humorous news Kind of. So The Wall Street Journal reported that as the Internal Revenue Service was trying to search and delete references to DEI, the IRS, remove some mentions of equity and inclusion from the Internal Revenue Manual. That had some unintended consequences, such as deleting language about the inequity of holding on to a taxpayer’s money, and also omitting references to requiring the inclusion of taxpayer identification numbers on forms.

 

Melissa Murray Womp womp. All right. It’s not just the federal government doing weird stuff. We should also turn to the state courts where weird stuff also continues to happen, especially in the state of North Carolina. So, Kate, do you have an update from the Tarheel State?

 

Kate Shaw Regrettably, I do. So Jefferson Griffin is still refusing to stop to let it go. Reminder, he was running for the North Carolina Supreme Court. He lost to Justice Allison Riggs, but he is still pursuing, I think now three cases in County Superior Court. The North Carolina Supreme Court has stayed the election board certification. So those cases can go forward. Griffin, as a reminder, is continuing to press these theories about why tens of thousands of votes should be thrown out, even though none of those arguments were offered before the election. There was an error, an oral argument in the Fourth Circuit last Monday about whether the whole case should be transferred to federal court. Sounds like that argument was pretty messy and confused. And it seems likely that Griffin’s tactic here is trying to get a favorable ruling in one of these many pending state cases and then get a tie vote in the North Carolina Supreme Court, leaving that ruling in effect. I just cannot imagine a more shameless and undignified way to try to get a seat at the top of a state’s system of justice. But that seems to be what we’re witnessing.

 

Melissa Murray ProPublica had a great piece of reporting last week involving interviews with some of the voters whose votes Griffin is actually challenging in his quest to be North Carolina’s next Supreme Court justice. Among those was a 22 year old who doesn’t drive because he has epilepsy and so he doesn’t have a driver’s license. For that reason, when he votes, he uses his Social Security number and a state issued ID that isn’t a driver’s license. Obviously, Jefferson Griffin took this personally, wants to throw out his vote because this individual is not using an actual driver’s license. There’s another voter. This is Frank Jarvis, who says he is extremely upset. His wife’s registration was challenged. They live in the state’s eastern coast and they identify as, quote, traditional conservatives and Republicans. And right now, they find that all of this, quote leaves a terrible taste in my mouth no matter what side is doing this. I don’t need that kind of person representing me on the Supreme Court and quote, So it’s not playing well in North Carolina. Jefferson Griffin But you keep you keep trying, I guess.

 

Leah Litman So another state court development. We wanted to talk about Wisconsin elections for their state supreme Court. So you all probably remember what an enormous deal it was in 2023 when Justice Janet protest day with beat Dan Kelly for a seat on their state Supreme Court. This election is just as big. So justice. And while Bradley, a liberal, is retiring, that means there’s an open seat, which means that once again, control of the Supreme Court of Wisconsin hangs in the balance. The candidates are Susan Crawford, who’s a circuit judge in Dane County, and Brad Schimmel from 2015 to 2019. Schimel was the 44th attorney general of Wisconsin, but lost his reelection bid in 2018 after the last Republican governor, Scott Walker appointed him to a Wisconsin circuit court seat. There are already huge amounts of money pouring into the race. Elon Musk has dipped his toe in because it’s not enough to be co-president of these United States. In a tweet.

 

Melissa Murray Happy to be Co governor of Wisconsin too.

 

Leah Litman Also shadow state Supreme Court justice. In a tweet, he said, quote, Very important to vote Republican for the Wisconsin Supreme Court to prevent voting fraud. Exclamation. I can’t believe they’re still.

 

Kate Shaw Trying this lot like voting fraud. It just I mean, it’s insane. But the fact that he has jumped in at all and is flexing his money and his muscles is just like, so worrying.

 

Leah Litman So voting fraud is effectively DEI, right. It’s code for something.

 

Kate Shaw Yeah.

 

Leah Litman Right. And it’s code for.

 

Kate Shaw Letting people in Milwaukee vote.

 

Leah Litman Racial minorities voting. Right, Exactly. And so if you are unsure where to focus your attention since November, since January, if there’s so much and it is too much and you have felt just at a loss, this is your moment to get involved. You know, this is the sort of state race where you can make a difference. They often come down to a small number of votes and. Getting money in now. Volunteering now is a great way for ensuring a happy result in April.

 

Kate Shaw So another development in the states to mention. Louisiana prosecutors have obtained an indictment of a New York doctor who prescribes and mails medication abortion, including to a patient in Louisiana. New York has a shield law that should protect physicians like the one named in the indictment. But we will see sort of how this conflict of laws and legal regimes plays out. This is something we knew was coming basically immediately following. Dobbs. It seems like it’s now here.

 

Melissa Murray All right. We should also take up some of the new cases that the court will review. The court took cert on Oklahoma’s statewide virtual charter school board versus Drummond and Saint Isidore of Seville Catholic Virtual School versus Drummond. These are challenges to the permissibility of a religious public charter school, and they’ll be consolidated for review. We should note that Justice Barrett has recused herself from the consideration of the case. And to be clear, a justice does not have to provide any explanation for her decision to recuse. But it is noteworthy that Justice Barrett got some flack for failing to recuse herself when the court heard an earlier case to Joy versus Groth, where the Notre Dame Religious Liberty Clinic and a number of Notre Dame professors were involved in either filing briefs or working on that case. And Justice Barrett, as listeners will recall, was a professor at Notre Dame’s law school prior to her appointment to the Seventh Circuit. Here in this case, there are ties to the clinic again. But I think a more relevant fact is that Professor Nicole still Garnett, also a Notre Dame professor and reportedly Justice Barrett’s best friend, has been an advisor to Saint Isidore, is one of the litigants in this case. So this is all to say that the attention to the court’s ethical practices are not necessarily ill spent. The justices are being more careful about when they recuse what the appearance of impropriety might look like. And that, I think, is to the benefit of the court and the public.

 

Leah Litman Given this CERT grant as well as the executive order we were talking about on Patriotic Education, wanted to re recommend work by Professor Caitlin Millard at Arizona State at the Education Democracy Nexus. I also recently read Mike Hicks and Bao’s book. They Came for the Schools. Extremely topical and very well done.

 

Melissa Murray Kate. I need some new reading material. Do you have any recommendations? I don’t want anything treacly or saccharine. So none of your hot takes. So what do you have?

 

Kate Shaw Okay. I actually am reading color television, which you recommended to me, Danzy Senna.

 

Melissa Murray But I read that already. You got anything else for me? Well, it’s something that’s bracing. Going to get me revved up and maybe keep me a little pissed off. What do you got?

 

Kate Shaw I am waiting with bated breath for the arrival of my five copies of Leah Litman’s New Lawless.

 

Melissa Murray I don’t think I know her. Who’s Leah Litman. Tell me about Lawless.

 

Kate Shaw Well, I haven’t gotten it yet, but I think it’s going to be.

 

Leah Litman Don’t Mariah Carey me girl.

 

Wait. Our girl Leah, has a book And it’s called Lawless?

 

Kate Shaw It’s called Lawless.

 

Melissa Murray Say More. Say more I’m already intrigued.

 

Kate Shaw The subtitle has. Has. Has evolved a little bit. Leah, we remind you of the current subtitle, How the Supreme Court runs on.

 

Leah Litman Conservative grievance.

 

Kate Shaw Conservative grievance, say, with us listeners.

 

Leah Litman Fringe theory.

 

Kate Shaw Fringe theories

 

Leah Litman And bad vibes.

 

Kate Shaw And bad vibes.

 

Melissa Murray So it’s exactly what I needed. Conservative grievance, fringe theories and bad vibes. Inject it into my veins. I’m smashing the buy Now button at Bookshop.org.

 

Leah Litman Can I tell you the chapter title of the final chapter.

 

Kate Shaw Please do.

 

Leah Litman My favorites.

 

Kate Shaw A little peek behind the curtain.

 

Leah Litman It’s called The American Psychos of the Supreme Court.

 

Kate Shaw Are their body parts in freezers. Metaphorically.

 

Leah Litman You’ll have to stay tuned. Yes. Spoiler.

 

Kate Shaw Seriously? Run! Don’t walk to either bookshop or your local independent bookstore. Or, if you must, some behemoth that also provides the sale of books and audio books. But get this book. It’s going to be a really, really.

 

Melissa Murray Preorder it. Download it while it’s hot. Put it on your nightstand when you get it and read it rigorously.

 

Leah Litman Send one to Sam.

 

Melissa Murray You can actually gift one to your favorite justice.

 

Leah Litman Exactly.

 

Melissa Murray Yeah. Yeah. Congratulations, Leah. We are all waiting with bated breath for this. And Kate. Much better than your last recommendation to me, which was Brett Kavanaugh’s The Book of Basketball. Yeah, that wasn’t written by Brett Kavanaugh. Just kidding. Actually, a very good book. Bill Simmons.

 

Melissa Murray All right. We’ve got a little bit left for you today. A little bit of housekeeping. But we also wanted to note some Strict Scrutiny in the wild. We always love it when we see you guys out in the world and you come and say hello to us and tell us how much you loved the pod. And so we are especially grateful. To Amanda at Rowan State University, who was at a talk that I gave for MLK Day and gifted me with a lovely crocheted dumpster fire stuff. And she said she was inspired by Leah and Kate and your favorite thing Recommendations for crocheted stuff. So many thanks to you, Amanda. It was great to meet you at Rowan University.

 

Leah Litman So as you may know, the fires in Los Angeles have been devastating. And as someone who loved love, loved, loved living in Southern California, you know, we wanted to do everything we can to help those affected and support the organizations rallying around neighbors in need in the months ahead. So we just launched Friend of Los Angeles merch in the Crooked’s store with 100% of the proceeds going to Vote Save America as Action and Wildfire Relief Fund. Show off your L.A. pride with a new hat or tea to pair with your favorite Dodgers merch or those athleisure pants you wear exclusively to aerogarden all while supporting organizations like the L.A. Regional Food Bank, the Los Angeles Fire Department Foundation and Latino Community Foundation. Shop now at Crooked.com/subscribe Store or donate directly to the fund at Vote Save America dot com Slash relief. This message has been paid for by Vote Save America. You can learn more at Vote Save America icon. This ad has not been authorized by any candidate or candidate’s committee.

 

Melissa Murray Also, listeners last week on assembly required. Senator Cory Booker of New Jersey joined Stacey Abrams for a conversation and how to communicate effectively with your elected representatives and support organizations who are pushing back on the new administration. They also shared tips for amplifying useful Democratic information online. It’s a terrific listen, incredibly helpful, and it made us feel a little more hopeful. So make sure you check it out wherever you get your podcasts and on YouTube.

 

Kate Shaw Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, Melissa Murray and me, Kate Shaw. Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Audio Support from Kyle Seglin and Charlotte Landes. Music by Eddie Cooper. Production Support from Madeline Herringer and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Phoebe Bradford and Joe McCaskey, our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com. Slash at Strict Scrutiny Podcast. If you haven’t already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.