Is this the term when the Court says “see ya” to the Establishment Clause? Leah, Melissa and Kate consider that question in their recap of this week’s religious charter school case, Oklahoma Charter School Board v. Drummond. Also covered: Advocate Lisa Blatt’s run-in with Neil Gorsuch during oral arguments for a disability rights case, opinions concerning SSI benefits and the Department of Transportation, and the Trump administration’s absurd investigation into the Harvard Law Review.

 

Hosts’ favorite things:

 

• Kate: Sinners; Is It Happening Here? by Andrew Marantz (New Yorker)
• Leah: Girl on Girl How: Pop Culture Turned a Generation of Women Against Themselves, Sophie Gilbert; The Tide is Turning, Dahlia Lithwick (Slate); Trump & Bukele’s Concentration Camp, Andrea Pitzer (NY Mag); Just Security Litigation Tracker
• Melissa: The Secret History of Home Economics: How Trailblazing Women Harnessed the Power of Home and Changed the Way We Live, Danielle Dreilinger; The Pauli Murray Center for History and Social Justice

 

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Pre-order your copy of Leah’s forthcoming book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes (out May 13th)

 

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TRANSCRIPT

 

Leah Litman [AD]

 

Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when a 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. And the Supreme Court has just wrapped its April sitting, so we’re gonna start with a recap of the cases the court heard last week. We will also cover some developments in pending cases, as well as the two opinions the court issued last week, and we will then turn to some developments in the executive branch and a bit beyond, including delving into some of the political polling that was conducted to gage public views at the administration’s 100-day mark. We’re a law podcast, but at this moment, law and politics are even more inextricably linked than they usually are, and we are taking the glimmers of hope where we find them. And we’ll end the episode with some court culture, including some explicit efforts to make the pages of top law reviews white again.

 

Leah Litman So first up are recaps and we will begin with an argument the court heard in the super important case out of Oklahoma involving what would be the nation’s first religious charter school. This is the third major religion case the court has heard in last month. And here too, religion, or at least some religions, the ones the court likes, look headed. For a big win, and this one with potentially seismic consequences, both for education and for the principle that there are any limits government may place on religion in public life.

 

Melissa Murray It’s worth noting here that the math is going to be very different in this case from the other religion cases that the court heard this term because Justice Amy Coney Barrett is not participating in this particular case. She has not told us why. She has chosen to recuse herself. But we will note that the charter school at issue, St. Isidore’s, is represented by the Religious Liberty Clinic that’s housed at Notre Dame’s Law School where Justice Barrett taught before becoming a federal judge. And Professor Nicole Stell-Garnett, who’s apparently a very close friend of Justice Barrett, teaches at Notre Dame and has been a leading and very vocal advocate for allowing the use of public funds at religious schools. So maybe that all has something to do with it.

 

Kate Shaw And who can say? Seems likely. And what all this means is that if the court ties four to four with Barrett recused, the Oklahoma Supreme Court’s ruling against the Charter School Board would stand. So the key question going into this case was whether there was one vote, a man, any man, to join the Democratic appointees. But after the argument, I am really not seeing one. There’s not one man. Nope, not one. Can’t find a good man out there. Apparently it is all men. Yeah, it is definitely all those men.

 

Melissa Murray If only we could find a bear to join the liberal justice.

 

Kate Shaw Definitely pick that one. That would solve our problem. But what all this means is that between Catholic Charities and Mahmood, those are the earlier religion cases the court heard this term, and this one, we are likely looking at a clean sweep for religion plaintiffs in the court this year. And this case, together with Mahmoud, could have genuinely transformative effects on public education. So we will get into all of that.

 

Leah Litman So here’s how this case arose. Oklahoma, like many other states, allows charter schools as part of its public school system. By law, such schools have to be, quote, equally free and open to all students as traditional schools, end quote, and not charge tuition. Also, like other public schools, they must be, unquote, nonsectarian in programs, admissions policies, employment practices, and all other operations.

 

Melissa Murray So that has actually been the law in Oklahoma for 25 years. But what is a little settled law among individuals who would like public subsidies for religious institutions? So in January, 2023, the Archdiocese of Oklahoma City and the Diocese Tulsa formed a nonprofit corporation called St. Isidore of Seville Virtual Charter School. St.Isidore’s is explicitly organized as an instrument of the Catholic Church and its founding documents reference evangelizing. St. Isidore’s applied to the state charter board for recognition as a charter school within that charter school network. The charter board granted the application, which set in motion this particular case.

 

Kate Shaw So in response to that decision by the charter board, the state attorney general then sued to challenge that decision and the Oklahoma Supreme Court ruled that this contract with St. Isidore violated Oklahoma as well as federal law. It concluded that public funding for a religious charter school violated the Oklahoma State Constitution’s prohibition on the public funding of religion as well Oklahoma statutory requirement that Leah referenced a minute ago that charter schools must be nonsectarian in their programs, admissions policies and other operations. In addition, the Oklahoma Supreme Court concluded that including a religious school in the public charter school network raised concerns regarding the federal constitution’s establishment clause. What’s that? Don’t know her?

 

Leah Litman Mm-mm.

 

Kate Shaw A lot of the men’s on the Supreme Court also raise questions in that spirit when there were valiant efforts made by Greg Gar representing the Oklahoma Attorney General to remind the justices that that is still a thing in the Constitution, but they were not hearing it. But at least the Oklahoma Supreme Court seems to think that that’s still a part of the Constitution and that it did not allow a scheme in which public school students were required to spend time in religious instruction and activities. And that permitting state spending in support of the religious curriculum and activities within St. Isidore also violated the federal constitution’s Establishment Clause. The court also held that St.Isidore is a government entity, given the many ways that Oklahoma charter schools are integrated into the state and the state’s public school system.

 

Leah Litman So just to be clear here, the very conservative Oklahoma attorney general and the very conservative Oklahoma Supreme Court seem to think law still matters. Like these are not liberals and they are not hostile to religion. I do admire their optimism and they have emphasized throughout these proceedings, including in the attorney general’s brief in the Supreme Court. They are very supportive of free exercise of religion, but they still recognize that there are limits on permissible government support for religion, and that one of those limits is state funding for religious public schools is unlawful. But that position may be too much for the Supreme

 

Melissa Murray I will say, reading the briefs from the attorney general, it’s like being in some kind of weird Republican fever dream where he’s like, seriously, I’m a Republican, but there’s this thing called the separation of church and state. Do you remember that? You haven’t yet gotten the memo that there isn’t actually such a thing as a separation It hasn’t trickled down to Oklahoma yet. Ben Sock, get to work there anyway. So that, of course, is the question in this case. So we’re now before the Supreme Court with the federal government. On the side of the charter school. And boy, they were not interested in even modest limits. No, not at all. Like the idea that there should not be public religious sectarian schools, too much for this Supreme Court. And I think it just suggests that we are literally about to be in this brave new theocratic world that is very Gilead forward. So I want to play a couple of clips. Let’s first start with Justice Kagan toward the end of the argument where she asked about the consequences of a ruling for St. Isidore’s. And the attorney here, who is the lawyer for the Oklahoma AG, Greg Gar, is a former federal government lawyer. He’s a long time alum of the Solicitor General’s office. He briefly was the Solicitors General. And he’s now-.

 

Leah Litman In a Republican administration, in a Republican administration, just to be clear.

 

Melissa Murray All to say, no liberal squish here. He’s not listening to this podcast. Anyway, let’s hear that tape.

 

CLIP If this court were to rule for petitioners, what would happen in Oklahoma in these 40 plus other states with laws of a similar kind that declare charter schools to be public schools? What kind of issues would they have to confront in the future? What do you think the range of choices they would make is likely to be?

 

CLIP Every charter school law in the federal charter school program is unconstitutional because they all require that charter schools be public schools and that they be non-sectarian.

 

Leah Litman Cool, cool. Every charter school is now unconstitutional. Every charter school law, no big deal. Now that we have that little thing out of the way, maybe we can go into the details of this delightful argument. So a couple different questions to unpack. There’s the question of whether these schools are state actors, that is public entities. If they are state actors, public entities, then the Constitution applies to them because the Constitution applies only to state actors, not private actors. And at least for now, that should mean as state actors they should not be teaching religion as truth. So that’s one thing. Then there’s the question of whether it is permissible to exclude religious charters from the school system of public charter schools. These two questions can’t really be separated. If these are public schools, then at least for now, the rules at least permitting, if not requiring them to avoid teaching religion as truth are still intact. So this exclusion would be fine. And if these are private schools applying for a government benefit like tuition assistance or playground repaving, then the court’s recent cases could require Oklahoma to grant a charter to St. Isidore’s, but not necessarily. So I kind of want to just summarize what Justices Kagan and Jackson were kind of saying on these two points. So Justice Kagan kind of told the slate of three lawyers arguing for the charter school’s position. Look, my guys, there’s one of two ways this plays out. Either these schools are public schools. They look public. They receive public supervision. They are integrated into the public school system, in which case… Quack, quack, right. In which case, public schools shouldn’t be teaching religious indoctrination. Or they’re private schools, in which Thanks for watching, and I’ll see you next time. The schools could claim that because, you know, they’re religious schools, they get to go through all of the conditions in the state’s charter school program and say, you can’t apply any of those requirements to me because I’m entitled to participate in this program. So that would potentially allow the schools to get out of those requirements that insist they be open to all individuals. Another way of looking at these same issues came from Justice Jackson, who said, look, the key question and rule here is that the state has to offer the same benefit to religious believers and non-religious believers. Here that benefit is non-sectarian education, and religious schools aren’t asking for the same benefit. They are asking for a different special one, namely, sectarian education and religious indoctrination. Basically, the two ways this plays out are both a bag of dick. That is a shorter TLDR of what’s going on here. And part of the issue in this case was how to read the court’s prior decisions in this area that had taken in on this steady march toward Gilead. So there was Trinity Lutheran, where the court had said states could not deny funds to religious schools when those funds were going to be used for playground paving. In that case, the court had a hilarious footnote that said this case is just about playgrounds, you know, wink wink, nudge nudge, Katherine Hahn, winky face here, because we all know how that played out, because subsequently in Espinosa versus Montana, the courts said, no, you can’t actually deny tax credits that are going to be used for religious schools. And then in Carson versus Macon, they said, No, you cannot actually deny tuition assistance for religious so that has been the slow descent into Gilead where we are now

 

Kate Shaw Roberts I thought was initially a little hard to read, although by the end of the argument I was where I started our conversation with, which is there’s not a man. But he, I thought at least early on, you know, having authored the opinion in Trinity Lutheran that set us on this path and maybe at one point actually believed the bullshit in his own footnote, like seemed to kind of suggest that maybe this case does go significantly further than cases involving these discrete issues. Playground resurfacing tax credits. So let’s play that clip here.

 

CLIP You rely heavily in your brief on a number of cases, Trinity Lutheran, Espinosa, Carson. Those involved fairly discreet state involvement. In Trinity Luther, they’re going to pave or put wood chips on the playground. In Espinose, it was a tuition credit, in Carson, again, tax credits. I mean, this does strike me as a much more ‑‑ comprehensive involvement, and I wonder what case do you think supports the position with respect to that level of involvement?

 

Kate Shaw But later in the argument, I totally lost hope for the chief.

 

Leah Litman Yeah, and after the chief deigned to suggest that maybe this case requiring a state to establish a school with religious instruction and religious indoctrination might be a step beyond the court’s prior cases that provoked a little fit of passive aggressiveness from Justice Alito, who felt the need to characterize any such distinctions with those prior cases as absurd. So you can hear that here.

 

CLIP The three cases the Chief Justice referred to, Trinity, Lutheran, Espinosa, and Carson involved grants and tax credits. This involves a contract. Is that a relevant constitutional distinction?

 

Leah Litman Sam just has such a winning personality.

 

Melissa Murray He does have a winning personality. He should smile more. He’s so pretty when he smiles. Not to be outdone by Justice Alito, Justice Kavanaugh stepped in to reframe all of this as extremely, very, very normal.

 

CLIP So, this is response to Justice Sotomayor, and I just want to make sure this is clear. You’re not saying that the state can favor one religion over another. We are not saying at all. And you’re not, I think, but confirm that the State could say, we’re going to have charter schools, but only religious charter schools. We are saying that at all Right. If you have charter schools you can’t favor religion. Your point is you also can’t disfavor religion, correct?

 

Leah Litman This is just a classic effort to same wash what is happening. He is literally floating things, trying them out as possible vignettes to include in his future calve currents. That’s just going to say, sure, we’re saying religious public charter schools are all good, but here are all the things we haven’t yet okayed. So please write that I’m very reasonable and very smart in your coverage.

 

Melissa Murray He’s asking for it. It writes itself. I just hope it’s not just bullet points of like things that are still okay. Oh, you know it will be.

 

Leah Litman We’ll see how much effort he puts into this one and whether he whether he arrives at a banger like the constitution is neither Pro-life nor pro-choice. Um, i’m not sure how he’s gonna massage that one here Like he’s just gonna have to say the constitution actually is pro-religious indoctrination.

 

Kate Shaw Yeah. Yeah.

 

Melissa Murray I will give him credit for saying there are still lines that we’re building. Here are all the lines.

 

Leah Litman Just like all those lines in Trinity Lutheran, right?

 

Kate Shaw It’s pro religious schools, but not anti. It’s not required that all schools be religion. He’s going to say that it’s not require that all skills be sectarian and he’s going to offer that up as an important note of compromise.

 

Leah Litman The constitution neither requires nor prohibits all schools to be religious. Notice how I have arrived at a compromise institutionalist position.

 

Kate Shaw We got it.

 

Leah Litman Woof. Um, so I listened to this argument live and therefore I wasn’t able to listen to it at like two time speeds. Like I usually listen to arguments. Same, because we’re recording on Wednesday. We usually listen to arguements and…

 

Kate Shaw Because we’re recording on Wednesday afternoon. And I found that really frustrating.

 

Leah Litman It was, especially because I know the phrase mouth-breather is usually meant as an insult, but Justice Kavanaugh just sounds like a mouth-breather to me.

 

Melissa Murray He’s dead. Stop it, Leah. He’s gone.

 

Leah Litman Look, those are my thoughts. Speaking of mouth-breathers, the newly confirmed Solicitor General, John Sauer, participated in the case on behalf of the federal government. And his participation is perhaps best summed up by Justice Sotomayor’s statement during the seriatum questioning period. The seriatim questioning period, just to remind everyone, is when each justice in order of seniority is given the chance to ask an advocate questions if they so choose. And when it was Justice Sotomayor’s turn and the chief asked if she had questions for Solicitor General Sauer, she just said.

 

CLIP No, thank you.

 

Leah Litman And I thought, same girl, same. Like,.

 

Melissa Murray I’m good. I’m all full up here on bullshit.

 

Leah Litman Thank you. Like, the specter of the federal government arguing that the constitution requires publicly chartered religious schools was so striking to me. And Justices Sotomayor and Kagan kept asking the Solicitor General, are you conceding that the federal charter school program is unconstitutional? And his response was, not exactly, or well, only parts of it.

 

Melissa Murray Well, I mean, that’s going away, because we don’t have a Department of Education, which is honestly the answer he should have given.

 

Leah Litman Snaps.

 

Melissa Murray It’s moot.

 

Leah Litman It’s moot. No need to decide that, you guys. Saved you the problem.

 

Kate Shaw And we should say that Sotomayor declined her opportunity to go back at Sauer during the seriatim period. She did take some opportunities to probe the position of the federal government during the free for all when she did note that the federal government had strikingly changed positions in this case during the Biden administration. It was on the other side. It switched to join the charter school and the charter board in this argument. So as we alluded to earlier, there was just a lot of dripping contempt. For the establishment clause on display among the men’s on the Supreme Court. So maybe let’s just play a couple of clips of the Democratic appointees, basically noting the contempt their brethren seem to have for that clause that is still in the copy of the Constitution.

 

Melissa Murray And has always been there, originally there in the text. Originally and textually there.

 

CLIP So I’m just trying to understand your Establishment Clause, nothing to see here, position.

 

CLIP So what you’re basically saying, there’s no longer no play in the joints, this has nothing to do, there is no establishment clause really, what you are saying is the free exercise clause trumps the essence of the establishment clause.

 

Leah Litman Looking for crumbs here, did appreciate Justice Kavanaugh offering a plug for a key theme of my book, which is how these guys love to maintain that they and mainstream Christian religions are the real victims of everything, including law. So let’s play that here.

 

CLIP All the religious school is saying is don’t exclude us on account of our religion. I mean if you go and apply for to be a charter school and you’re an environmental study school or you’re a science-based school or you are a Chinese immersion school or your English grammar focus school, you can get in. And then you come in and you say, oh, we’re a religious school. It’s like, oh no, can’t do that. That’s too much. That’s scary. We’re not going to do that. And our cases have made very clear, and I think those are some of the most important cases we’ve had, of saying, you can’t treat religious people and religious institutions and religious speech as second class in the United States. And when you have a program that’s open to all comers, accept religion. No, we can’t do that, we could do everything else. Seems like ranked discrimination against religion and that’s the concern that I think you need to deal with here.

 

Kate Shaw This is literally ripped from the pages of your booklet, it was incredible.

 

Leah Litman I didn’t send him an advanced copy, I don’t know who did. He got one, somehow.

 

Kate Shaw But the idea that we are preferencing environmental charter schools, Chinese language immersion schools.

 

Melissa Murray Well, let me tell you what that means. He’s talking about wokeness, like the religion of wokenness. Environmental charter schools, like schools that let kids play in forests and talk about climate change. Chinese immersion schools, diversity. He’s taking about wakeness and we can subsidize wokenes, but we can’t subsidize religion. That’s his basic point.

 

Kate Shaw Totally.

 

Melissa Murray I get that mouth breather.

 

Leah Litman Also, it was always the natural endpoint for a bunch of bros who insist that LGBT equality and the mere acknowledgement of the existence of LGBT individuals is rank discrimination to eventually claim that the Establishment Clause is also rank discrimination. So thank you, Brett, Neil, Sam, Clarence, and Chief Yee for confirming everything I wrote about you and warned about you in chapter two. So the book will be out next week. Next week, but you can pre-order it now. The book is called Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes. There’s a pre-ordered link in the show notes. And again, Brett Kavanaugh, just performing chapter two.

 

Melissa Murray Speaking of chapter two… Justice Alito was in rare form. So let’s play this question slash soliloquy, which was really a mashup of some of his favorite right-wing Fox News tropes. Schools telling kids to change their gender, the 1619 Project, and then the nostalgic invocation of the randomly selected year, 1955. Let’s go.

 

CLIP Could a school say, we’re going to be a LGBTQ plus friendly school, so that the books that elementary school children are going to read are going to have lots of LGBTQ plus characters, same-sex couples, and they are going to send the message that this is a perfectly legitimate lifestyle? They’re going to tell the little kids, your parents may say you’re a boy or a girl, but that doesn’t mean you really are a boy and a girl. Could they do that? I want to give you another example. Could a school say, we’re a progressive school and we’re going do everything the state wants you to do, but we’re gonna teach history from the 1619 project standpoint?

 

CLIP No, because they’d have to meet the state’s academic standards and that would not be allowed.

 

CLIP Why would that not be allowed? We’re going to make sure students know a lot about slavery and Jim Crow and the treatment of Native Americans. Just like a tradition. They can’t do that? They can emphasize that?

 

CLIP Just like a traditional public school, there would be some leeway there, but with respect, they certainly couldn’t focus their curriculum just on that. And let me give you the citation so you can look at the academic standards.

 

CLIP And I don’t want this to be one sided. So suppose the school says, we’re going to teach American history like the way it was taught in 1955. So we’re going to celebrate the founding fathers, and we’re not going to say anything about their shortcomings. And we’re now going to make, we are not going say a whole lot about the dark episodes in American history. Could they do that?

 

Melissa Murray What is so salient about 1955?

 

Kate Shaw Just randomly just pulled it out. Random number generator.

 

Melissa Murray What is it?

 

Leah Litman This was truly like a Mad Libs.

 

Kate Shaw Who’s birth year?

 

Leah Litman Just random conservative Fox News talking points.

 

Kate Shaw Yep, he had something to get off his chest, got it off his chest.

 

Melissa Murray I’m just waiting for the day he flies the Confederate flag upside down at Long Beach.

 

Kate Shaw And then we’ll know. Then we’ll know.

 

Kate Shaw No, you got to fly right side up. You can’t disrespect it by flying.

 

Leah Litman That’s true. That’s true. That one goes right side, baby.

 

Melissa Murray You’re right. What am I thinking? Wokeness.

 

Kate Shaw That’s some upside down Confederate flags. That is woke mind virus. That’s right.

 

Leah Litman That would be rank discrimination against Sam Alito.

 

[AD]

 

Kate Shaw All right. So, I just, I somehow thought that Barrett being out of this case meant there was a chance that at least the chief would sound no to sanity. The whole thing was completely insane. I mean, there’s no problem for St. Isidore’s operating as a private school. You would have tons of freedom and autonomy. But the idea that we have gone as far from settled principles of the Establishment Clause as fast as we have is pretty stunning. Um, and yet- You know, at this point, like, everything is up for grabs. Public schools, prayer, all.

 

Melissa Murray Come back to something, I’m going to come back to Trinity Lutheran, our good friend, Justice Breyer, concurred in that case. And again, I just come back too. He was so optimistic. Kagan did too. This First Amendment appeasement does not work. They just keep chipping away. And like, I am bringing up Justice Breier because he wrote a separate concurrence and he seemed to be like, so we’re going to hold this line, right? We’re going hold this lie. I was like, no, Steve, they’re not going to this line. They’re not.

 

Leah Litman You sweet summer child.

 

Melissa Murray You sweet summer child, Steve Fryer.

 

Leah Litman So just wrapping up this bad boy, let’s play this colloquy at the end between Greg Gahr, who again was representing the Oklahoma attorney general and Justice Kavanaugh, which was both surreal in treating the court’s pending decision in Mahmoud versus Taylor as already decided and seemed to suggest that if the court allows this religious charter school, it’s not clear why the cases like those preventing prayer in public schools should stand either.

 

CLIP In terms of the principles, how is it different from a choice program in the sense that no student is compelled to go to a religious charter school, and I would, of course, agree with you. If that were the case, that would be a huge problem. No one’s compelled to. You have a choice to go the traditional public school, or you can go to charter school of your choice that you can obtain admittance to, or go to private school. No one’s being compelled to go to any school, it’s just another option that is available.

 

CLIP That’s right. And this court had a case last week in Mahmood where it involved story time with certain offensive messaging. No parent was required to send their child to that charter school. And I don’t think that case would come out differently to that public school, because I don’t it would come up differently because they could have picked a charter school. And similarly,

 

CLIP The other options in the Mahmood were not free, okay, so that’s a big difference. It was telling the parents there, don’t go to the public school if you don’t like it, go pay $10,000. Well, that’s pretty big burden, that not what we’re talking about.

 

CLIP I don’t think my mood would come out differently if you had, in jurisdictions where parents had the option to send them to a charter school, your honor. Maybe the court will say otherwise, but I doubt it.

 

Leah Litman We’re just taking enormous leaps and bounds on the path toward theocracy.

 

Melissa Murray And I just want to point out, obviously, this case is going to have enormous consequences for religious liberty as we move boldly to make America Christian again. It will also have huge consequences for charter schools, especially charter schools in blue states, who I think are really going to be upended here. But it’s also worth noting that one of the questions presented to the court here is about the scope and substance of the state action doctrine, and that is the doctrine that tries to sort out, among other things. The circumstances under which a nominally private entity is so intertwined with the state and the performance of public functions that it effectively becomes an arm of the state. And so one of the issues here is whether St. Isidore’s as part of this public charter school network is performing state functions education and therefore is no longer wholly private but is an arm the state and if it is, whether the kinds of constraints that exist for public actors like the establishment clause are now in play. Again, it seems clear that the court doesn’t think the Establishment Clause is a thing, may not think that Saint Isidore has become sufficiently entwined with the state to become a public actor, but either way, this isn’t just going to upend religious liberty, it’s also going to up end the state action doctrine as well, and that I think is also deeply problematic.

 

Leah Litman And it’s like, we’re going to blow up that area of law and this area of the law and you, you, you, right, like just YOLO.

 

Melissa Murray I bet they’re not going to be consistent about it, because they might not find that St. Isidore is a state actor here, but there are questions when we get to the part where we talk about making law reviews white again, where there’s a real question about whether the Harvard Law Review is an arm of Harvard University. Not a state act, but an actor that is in receipt of federal funds. Similar questions have occurred in the context of public schools and whether certain aspects of public schools are part of the state too.

 

Leah Litman I am not going to include what I had planned to be my super bleak wrap up of this argument recap. Instead, I am just going to march us onward to the next argument recap, which also concerned schools public education. So the court heard an important disability rights case, AJT versus Osseo area schools. And I’m nervous to describe the issue the court took up when it granted cert in this case because characterizing the party’s positions and the issue in the case provoked a little bit of a kerfuffle during the argument.

 

Kate Shaw What you’re saying, depending on your characterization, somebody might just fly through the computer screen and scream at you for your blatant mischaracterization. Precisely!

 

Melissa Murray Leah is understanding things. There was almost a shanking up in one first street. Let’s just put it that way. The case concerns the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, which require reasonable accommodations for persons with disabilities. The question for which the court granted cert was whether when a child with disabilities sues under these provisions, because they say their educational services didn’t offer a reasonable accommodation. Whether the child has to show bad faith or gross misjudgment in order to prevail under the laws. That is, the petitioner and the federal government, as well as the court, thought that they were taking a case that would decide whether the ADA and the Rehabilitation Act claims seeking reasonable accommodations in the educational context have this uniquely demanding standard that is to show that faith or gross miss judgment.

 

Kate Shaw But the respondent school district’s lawyer, Lisa Blatt, did not appreciate this characterization of their position or the characterization of what the court had supposedly said below. So rather than describe it, let’s just play that clip here.

 

CLIP But what is a lie and what is inaccurate, if I could just get this out, please. What is a line and inaccurate is that we ever said in any context that this court should take the same language and define it differently depending on context. That is not true. There is no statement. They adding words to our mouth, we never said you should have a double regime. What the school district has said, which is what Monahan said

 

CLIP You believe that Mr. Martinez and the Solicitor General are lying?

 

CLIP An oral argument, yes, absolutely. It is not true that we’ve…

 

CLIP I think you should be more careful with your words.

 

CLIP Okay, well they should be more careful in mischaracterizing a position by an experienced advocate of the Supreme Court.

 

Leah Litman We’re also going to play one more exchange along these lines, just because Lisa uses a phrase, uniquely stupid, which may come in handy and seems appropriate when discussing the Supreme Court. So let’s hear that moment.

 

CLIP Now to be sure, they add the pejorative term uniquely stringent, but had the question said should this court adopt a uniquely stupid bad faith standard, the question would still not be should courts adopt uniquely stupid standard.

 

CLIP It would be should courts adopt the bad faith standard. In order to say it’s uniquely stupid, I think you would have to point to at least one other circuit that has actually applied the bad-faith standard in a different context. You know who didn’t?

 

Melissa Murray Not appreciate Ms. Blatt’s tone, well, not really just her tone, her claim, her word choice, everything she was saying, who did not appreciate Miss Blatt in that moment, one Justice Neil M. Gorsuch. So let’s play an exchange between these two. But, yeah.

 

CLIP I confess I’m still troubled by your suggestion that your friends on the other side have lied.

 

CLIP Okay, let’s help pull it up.

 

CLIP Yeah, I think we’re going to have to here, and I’d ask you to reconsider that phrase. At oral argument. If I might. It was incorrect. Incorrect is fine.

 

CLIP Oh, fine.

 

CLIP People make mistakes. You can accuse people of being incorrect, but lying, Ms. Blatt, if I might finish. Lying is another matter. Page one of your brief in opposition. As applied to the provision of idea services, the overlap between these statutes leads to a conceptual particularity that exists only in this context. That seems to suggest you’re arguing for a unique rule. Page two. For more than 40 years, courts of appeals, considering this unique subset of ADA and rehabilitation claims, directly challenging ideas, educational services have widely recognized that Plaintiffs must establish more. One could interpret those perhaps different ways. But surely a reasonable person could interpret them as arguing for a special rule in the educational context, correct?

 

CLIP No, only because of this black. Okay. Well, you know, I mean,

 

CLIP A reasonable person, all of those emphasize the unique context of primary and secondary education and the need for a special rule, don’t they?

 

CLIP Fine but what I’m

 

CLIP Fine, fine, then would you withdraw your accusation? I’ll withdraw it. Thank you. That’s it.

 

Leah Litman Woof. You know, the withdraw your accusation and then Lisa Blatt saying fine. You know, on one hand, I like SCOTUS advocates acting like petulant four year olds before the Supreme Court because I think that’s how the justices deserve to be treated. Um, on the other hand,

 

Melissa Murray Wow. Wow. I actually was like mildly impressed by, she was just like, who are you again? Oh, a justice of this court? That’s why I like it. Oh, okay. That’s why I liked it. Fine. I’ll withdraw.

 

Leah Litman Whatever, guy.

 

Melissa Murray I mean. You got to respect that.

 

Leah Litman Yes. No, that’s why I said on the one hand. But on the other. Again, on the another, wow. Listening to these exchanges, a part of me wondered whether Justice Gorsuch’s revulsion, for lack of a better word, had anything to do with the fact that Lisa Blatt had previously been Oklahoma’s lawyer in the litigation that ended up being resolved in. McGirt, and she had also represented litigants seeking to chip away at the Indian Child Welfare Act in other cases, like adoptive couple versus baby girl. Is that part of the dynamic here, or is it just because she is very imperious and Justice Gorsuch is like, I’m the emperor here?

 

Kate Shaw The Indian law case background is really interesting, yeah. She was taking positions that he found and said were really odious in those cases. And it is totally possible that that has carried over to some acrimony between the two here. Because there was a lot going on there. It did seem to be more, about maybe more than just kind of the briefing in this

 

Melissa Murray This is, I mean, it’s an interesting posture for someone who is a repeat player before this court. I mean again, I cannot help but stan a little. And also that this is usually the kind of dismissiveness that I see advocates leveling at some of the women justices, like Justice Sotomayor, Justice Jackson. So I appreciate it that she’s an equal opportunity Yes!

 

Kate Shaw Yes. Okay, so back to the substance of the case. It, you know, it seemed like the school district was asking the court to effectively adopt an intentional discrimination standard for all 504 or ADA Title II claims. That would likely have sweeping effects on the availability of reasonable accommodation claims. You know, and just to sort of define the terms a little bit, intentional discrimination claims are where somebody or some institution is purposefully discriminating against you in this instance because of your disability. But reasonable accommodation claims can arise in circumstances where there are seemingly neutral policies, like a classic disparate impact type of claim, although I did note that the attorney for the parents in this case very deliberately avoided using the phrase disparate-impact, which is quite disfavored. But the idea here is like, say there’s a set of stairs that impedes access. The building might not have done that, right? Constructed the stairs for the purpose of discriminating against students with disabilities. But students with certain kinds of disabilities would still need a reasonable accommodation in order to access the educational services that are in the school building. So same could exist with things like a no service animals policy, or a no laptop policy, or you name it. They may not have been adopted in order to discriminate, but they may still bar students with some disabilities from accessing education. So the lawyer for the petitioner is Roman Martinez, offered, I thought, a nice illustration in this colloquy with Justice Gorsuch, which was also kind of unintentionally funny. So let’s play that clip here.

 

CLIP And as Justice Sotomayor suggested, and maybe I just missed it, when we think of discrimination in many contexts, causation, you’re right. But the act of discrimination is to treat someone else differently because of their disability. And I would have thought that that might have meant, I intend to treat somebody differently. It doesn’t matter about my further motive, I agree. I take that point, bad faith, but why wouldn’t that be the test?

 

CLIP So, Your Honor, two things on that. First of all, I guess what I would say is with respect to the need for intent in every context would actually help this whole area of law click for me. It was reading your decision in the Cinnamon Hills case, which was addressing, explaining sort of the theory of reasonable accommodation.

 

CLIP I’m glad you remembered that because I’m not sure I did.

 

CLIP Well, it was actually a very thoughtful opinion that really kind of teased out the differences. Between disparate intentional treatment and reasonable accommodation claims. And what you said in that opinion was that sometimes formal equality isn’t enough. And in the disability context, it isn’t. And the reason for that is that you can have people discriminated and excluded by reason of their disability, even though there’s no intent. And so because you have a disability, you’re not able to take advantage of a program. And so even when there’s not animus, when there is not a bad actor on the other side, You know, imagine someone rolls up.

 

CLIP I follow you. I got it. Thank you. That’s helpful to me.

 

Kate Shaw He actually really slayed inside the room, I thought, and he didn’t, like, correct himself or take it back. He just, like pressed on and I thought I had respect for that.

 

Leah Litman Yeah, you know, the only cheekiness you can get away with is cheekiness about how awesome and thoughtful and amazing and brilliant the Supreme Court justices are.

 

Kate Shaw Yeah, embedded in this book, what I tell my kids is that when they’re asking for something, you need to do a compliment sandwich, which is like, say a nice thing, ask me for a thing, say a Nice thing. And that’s smart. Follow you for more great parenting tips. So that’s so ridiculous. They’ll be like, your hair looks great today, mom. Can I please have my allowance? Also, I don’t know, whatever. Love dinner last night. Great, great cooking. Really innovative. So anyway, that I think actually does describe the way Martinez was handling corsage.

 

Leah Litman Yeah. So back to the substance in this case, you know, as we said, the position that the school district was offering would have pretty dramatic widespread effects and could undermine, if not eliminate, wide swaths of reasonable accommodation claims under federal law. And there is actually another case, or there was another case concerning Section 504 of the rehabilitation act that would also affect or could have also affected a sweeping change as far as access to civic society for people with disabilities. A few listeners had written in asking that we cover it and we thought we do so in conjunction with this case, AJT. So that other case is Texas versus Becerra. That was a case filed last year by Texas Attorney General Ken Paxton challenging some updated regulations that sought to implement section 504 of the Rehabilitation Act. It’s captioned. Texas v. Kennedy for our great new secretary of HHS. Anyways, the updated regulations that were challenged concerned reasonable accommodations and ensuring access to medical treatments and whatnot. And the preamble to those regulations acknowledged that gender dysphoria may, in some cases, be considered a disability. And the lawsuit initially asked a court to prevent the new regulations from being enforced and to, quote, declare Section 504 unconstitutional, end quote. Now, when asked about the litigation, the Washington Post reported that, many of the 17 attorneys general have said they want to prevent the inclusion of gender dysphoria and not to overturn section 504 entirely, end quote.

 

Melissa Murray We just want to do a surgical thing, a surgical discrimination, not a widespread discrimination. There was a subsequent joint report that was filed earlier this year, and it still explicitly targeted Section 504, but now that threat has passed because the case has been stayed. And a later status report said that states are no longer challenging the constitutionality of Section 505, probably because they expect the Trump administration will, on its own, walk back the regs and will not vigorously enforce Section 506. Basically insert Olivia Pope, it’s handled meme right here. We just want to note this case because we wanted to situate the interpretation that it’s offering of section 504, which is that it doesn’t require that many reasonable accommodations at all with the more explicit broadside challenge to the law that’s also out there.

 

Kate Shaw And as litigants turn to the courts to try to cut back on the ADA’s inclusion of people with disabilities, we also wanted to note that it’s happening in tandem with Trump administration policies that would do the same thing. So that includes the executive order on dismantling the Department of Education. You know, again, an executive order, we’ve said this before, can’t say it enough times, cannot repeal a statute, cannot blow up an agency created by a statute. But the administration can and has been. Really doing the most to try to hollow out the Department of Education, and doing that would be a huge blow to students with disabilities, since education is a key site for students’ inclusion and access to society, and historically, the federal government and the Department of Education in particular have been important actors in enforcing those statutory guarantees. Project 2025 also has some really alarming recommendations about the Individuals with Disabilities Education Act, essentially changing the way IDEA funding works to kind of convert it into. These no-strings formula block grants to states to administer, which I think would functionally end requirements on schools that they actually ensure students’ inclusion. But to briefly wrap AJT, the case we were just talking about, I don’t know what you guys thought. I actually did think it seemed pretty clear, or at least there was a really good chance the court was going to rule against the school district, right, against Lisa Blatt’s In favor of AJT the girl whose family filed the challenge after her school district failed to sufficiently accommodate her epilepsy. So that, at least, I thought was some good news.

 

Leah Litman [AD]

 

Leah Litman So the court also heard argument last week in Martin versus United States, a case about whether and when individuals can sue the federal government under the Federal Tort Claims Act for the actions of law enforcement officers. The case arose out of an FBI raid on a home with flash bang grenades and gun strong, only it was the wrong home. So they went to the wrong street and the people in that home who were terrorized. Subsequently tried to sue the federal government under the Federal Tort Claims Act, the FTCA, for the wrongful search. The FTCA is a federal law that allows you to substitute in the federal government as a defendant in some cases when you are challenging the actions of federal officers. And the plaintiff said they could do so in this case because of a provision in the FTTA that says, quote, with regard to acts or omissions of investigative or law enforcement officers, provisions of the FTCA shall apply to any claim arising out of assault, battery, false imprisonment, and a few other things too. The federal government, by contrast, says the United States cannot be sued for the actions of these officers because the officers were performing discretionary functions, and that is one of the limitations in the Federal Tort Claims Act for when it’s not

 

Melissa Murray And so the real question in this case is how do these two different provisions of the FDCA interact with each other? The one that offers individuals an opportunity to sub in the federal government because of law enforcement actions and those that limit the opportunity to do so because these actions are apparently quote discretionary functions. It seemed like this case might be headed for a very narrow win for the plaintiffs. So maybe that’s a good thing. I will say that Justice Gorsuch seemed to be having a real one. He seemed super annoyed in this case, so let’s roll that tape.

 

CLIP How about making sure you’re on the right street?

 

CLIP And how does that?

 

CLIP Just the right street.

 

CLIP No, I mean, I- I-

 

CLIP Checking the street sign, is that asking too much?

 

Kate Shaw Just a little stop clock occasionally gets worked up about the right things. So often about the wrong things, but occasionally the right thing. The facts here were kind of eerily similar to those of a story that broke the day of the oral argument. And that story, not the one in the case, involved an Oklahoma mother who says that ICE broke into her home, took the family’s electronics and cash, and made them stand in the rain in their undergarments because they had a warrant for individuals. This time it was the right house and the right street, not wrong house and wrong street. But the warrant named individuals who did not live in that house. This family, according to reporting, has still not had their belongings returned. So their ability to get redress if they do want to file a lawsuit against these federal officers will turn on what the Supreme Court says in this case.

 

Melissa Murray In other related news, we wanted to note another recently signed executive order of strengthening and unleashing America’s law enforcement to pursue criminals and protect innocent citizens. This EO announced that, quote, the attorney general shall take all appropriate action to create a mechanism to provide legal resources and indemnification to law enforcement officers who unjustly incur expenses and liabilities for actions taken during the performance of their official duties to enforce the law. This mechanism shall include the use of private sector pro bono assistance for such law enforcement officers.”

 

Leah Litman So going to love to see those pro bono hours that the law firms that settled with Donald Trump promised to give him go to officers sued for excessive force, illegal arrests, and using flash grenades on the wrong home. We should, I think, understand this executive order as part of a broader effort to make law enforcement unaccountable above the law. Listeners, you can probably recall the terrific interview with UCLA law professor Joanna Schwartz about her book. Shielded how the police became untouchable, which makes clear that it is already really difficult to hold law enforcement officers to account for their actions. But back to dear leader, he is literally trying to seemingly redeploy the entire legal profession in service of law enforcement. You know, through his executive orders against the law firms, he has decided who gets access to legal representation and who does not, targeting lawyers who practice immigration law. Punishing law firms for representing black churches, now demanding that law firms represent law enforcement officers who might be accused of using excessive force against black people, and who can have the force of the legal profession behind him. That is what he is claiming to decide.

 

Kate Shaw I hope that this executive order is giving some pause to some of the folks high up in law firms who basically took the position that they weren’t actually really agreeing to do anything they weren’t t already going to do because they did so much pro bono anyway. We will see when he comes calling demanding representation for these kinds of causes. As for this case, as Melissa mentioned a couple minutes ago, it seems likely there’s a at least a good chance these victims are looking at either a narrow win or maybe remand to the 11th circuit for another look.

 

Melissa Murray The court also heard oral argument in LabCorp v. Davis, which is about whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23b-3 when some members of the proposed class lack an Article 3 injury, which is to say when some numbers of the proposed class don’t actually have standing. The basic dispute seems to come down to whether a court at the outset has to define the class in such a way as to limit the class to those with Article 3 injuries, or whether, instead, it can weed out non-injured people later, such as when it orders relief.

 

Leah Litman But here are the basic facts that might help to understand that legal question. In 2016, LabCorp replaced traditional patient check-ins at service centers with self-service kiosks. But the issue was blind patients are unable to check in at those kiosk. So two blind patients who were unable to access the LabCorp Express. Sued LabCorp under the Americans with Disabilities Act and California’s Civil Rights Act, and their complaint alleges that LabCarp violated those laws by denying them equal access to LabCap services and auxiliary aids and services that would be necessary to ensure effective communication. LabCamp responds among other things that not everyone in the proposed class, you know, applying consumers and customers wants to use kiosks, and therefore the class includes uninjured people. Feels like we’re s-

 

Kate Shaw Slicing the bologna rather thin here, but. Indeed. Just me. And, well, not just you, also the plaintiff’s lawyer, Deepak Gupta, who I thought did a great job lawyering in front of a court that has been pretty hostile to class action litigation broadly. And he did a great job explaining how defendants could protect their rights without the sort of initial threshold determination and also explaining why the rule the defendant is speaking is inconsistent with the court’s prior cases.

 

Leah Litman Yeah, he also did a phenomenal job pointing out how this particular case doesn’t even cleanly present the issue the court wanted to decide, namely, whether you can and should approve a class action that includes members of a class that might not be injured. So that reminded me of how this court has already had to dismiss a few cases because those cases did not cleanly percent questions. The court might have been a little overly zealous in trying to reach. So. As Deepak Gupta said, you know, neither the district court nor the court of appeals determined that there were actually any uninjured class members. The court of Appeals actually found the opposite, that all class members were injured in the same way. And the issue seems to relate to the fact that there are two district court orders and LabCorp wants to argue that one of them adopted a broader definition of the class, but that order might not have been appealed, so it’s just super messy and a bad vehicle. And we will see what the court does with it.

 

Melissa Murray Okay, we also wanted to update you on Kennedy vs. Braidwood. That’s the case involving the Preventative Service Task Force of HHS that we covered in an earlier episode. As we noted, the key question in that case, Kennedy vs Braid wood, is whether the task force members are principal officers, which would mean that they would need to be appointed by the president and confirmed by the Senate or whether they are just, in fact, inferior officers. It seemed pretty clear at oral argument that the court was going to find that the task force members were inferior officers, which then raised a separate question, whether Congress had authorized their appointment by the head of the department. And here, the head of the Department is Secretary Baby Bear Carcass slash Whalejuice slash raw milk connoisseur.

 

Leah Litman So no statute explicitly says that secretary, whoever they may be, can appoint the preventative services task force members. But the secretary does have the statutory power to administer the program, which the government says includes the power to appoint the members of the task force as well as to convene the members of the Task Force. So the lower court did not address this because it concluded that the task force members were principal officers. At oral argument, it seemed like the court might send the case back to the lower courts on that question or issue, but instead it asked for supplemental briefing on the issue.

 

Kate Shaw So it’s a little hard to know exactly how to read this. I mean, it may be a good sign for the government and that they were like, well, the Fifth Circuit’s gonna screw this up further, so maybe we’ll just go ahead and decide it ourselves. But I also would not rule out the court saying, the text is just not clear enough by not containing the sentence the secretary shall appoint. And they might do that even if that means this task force, which Congress clearly set up and intended to do something, cannot function because literally no one has the authority to appoint its members. That is I would not rule out the possibility that these complete chaos monkeys decide let’s just blow the whole thing up using a totally different theory than that embraced by the fifth circuit.

 

Leah Litman to convene the task force, allows the secretary to appoint members of the taskforce. So we’ll see. Whatever does happen, it is clear that the Trump administration is trying to turn the Department of Health and Human Services into a right-wing grievance machine in addition to a dead bear carcass factory. So political reports that the Office of Civil Rights within HHS, quote, shifted its focus from investigating cybersecurity breaches and protecting patient privacy to enforcing bans on DEI programs and transgender health care, end quote.

 

Melissa Murray We should note that dismantling DEI programs in the context of HHS often means eliminating research programs that were intended to address or probe the nature of health disparities on the basis of gender or race. More merit, more dead people.

 

Leah Litman Exactly. More on how this party might be a death cult. So with this specific example being HHS, the Latin Times reported that Secretary Bear Carkus slash Whale Juice slash raw milk aficionado is reportedly backing plans to end a federal Narcan distribution program. Narcan, of course, being the drug that is used to administer to people who are experiencing opioid overdoses to save them. That is a $56 million annual grant program that is credited with helping drive a steep drop in opioid overdose stuff.

 

Kate Shaw And just to be clear, $56 million is nothing in the context of the federal government. This is a very cheap, incredibly effective intervention for a serious public health problem this administration says it cares about, actually is using it as a predicate for all kinds of insane immigration policy, like madness. So there we go. All right. The court gave us just two opinions this week. Let us just very briefly mention both. The first is Advocate Christ Medical Center v. Kennedy, a case in which the court held in a 7-2 opinion authored by Justice Barrett that hospitals will be reimbursed as part of the Medicare program based on whether they provide care to individuals who are eligible for SSI benefits when they are eligible to receive an SSI cash payment during the month of hospitalization, not based on whether they receive non-cash benefits like rehab services or continued Medicaid coverage. This is a variation on a question the court has already had a couple of times This one was a win for the federal government and Justice Jackson, joined by Justice Sotomayor, dissented.

 

Melissa Murray We also got an opinion in Feliciano versus Department of Transportation. In that case, the court held that a federal civilian employee whose call to active duty pursuant to any other provision of law during a national emergency is entitled to differential pay if that service coincides with a declared national emergency, even without having to show that the particular service that the person was called to do bears a substantive connection to that emergency. So this was a kind of interesting lineup in terms of justices. It was a 5-4 Gorsuch opinion. And he was joined by the Chief Justice, Justice Sotomayor, Justice Kavanaugh, and Justice Barrett. There was a Justice Thomas dissent in which Justices Alito, Kagan, and Jackson joined. So very strange bedfellows. I can’t remember that, yeah, particularly.

 

Kate Shaw And there may have been that lineup previously, I could not remember a case. This one’s kooky. That’s a kooky one. So we are going to shift now to other news. And the first one is court adjacent. And that is that last week, ABC’s Terry Moran had an Oval Office sit down with President Trump that really broke some important news on Abrego Garcia. This is Moran asking Trump about, you know, efforts or not, as the case may be, to get Abrego Garcia.

 

CLIP You could get him back. There’s a phone on this desk. I could. You could pick it up, and with all the power of the presidency, you could call up the president of El Salvador and say, send him back right now. And if he were the… The gentleman that you say he is, I would do that. But the court has ordered you to facilitate that release. I’m not the one making this decision. We have lawyers that don’t want to do this, Terry. But the buck stops in his office. No, no, no. I follow the law.

 

Melissa Murray I’m not the one making these decisions, I’m just the president.

 

Kate Shaw Yeah, sort of back to Leah’s, okay, wherefore art thou unitary executive observation from last week, but also that is an important concession, like, yeah, I could, and I don’t want to, And so I haven’t. And I imagine courts will be interested.

 

Melissa Murray Want to, and the people who work my buttons don’t want to either. Anyway, we wanted to talk for just a couple of minutes about some of the polling on this presidency as it reaches its 100 days that felt like 100 years mark. This matters a lot, I think, on its own terms. It’s been a horrifying three months, but it is enormously gratifying and booing to know that it’s been horrifying for everybody. That’s good. So the polling has been pretty dismal, and again, it matters just in terms of optics. It also matters from the perspective of law. It means that the kind of lawlessness that we’ve been watching, if it doesn’t engender this kind of pushback or response from the public, it can become normalized really quickly. But when it’s rejected, as it has been, and as these polls show, both by the public and the courts, well, then you’re in perhaps a different… Kind of place. And the public support is really critical here, especially when it comes to getting courts to try and do their jobs and stand up to this administration. So let’s go through some of the highlights from all of this polling.

 

Kate Shaw Yeah, and courts to do their job and also to be heeded by government actors who don’t have public support at their backs if they ignore courts, right? That I think is all really, really important. So I think it’s pretty common at the 100-day mark in a new administration for there to be just this kind of flurry of polls, as we saw last week, and we wanted to just highlight some of the key findings. So some of numbers are wild. So you have 39% of people surveyed for this recent ABC News slash Washington Post Ipsos poll approve of how Trump is serving as president, 39%. This is the lowest 100-day job approval rating of any president in the past 80 years, and I think it also might be ever.

 

Leah Litman Injecting themselves with measles.

 

Kate Shaw Um, you know doing

 

Leah Litman whatever else.

 

Kate Shaw No, when you think about it, it is wild that there are even 39%?

 

Leah Litman It feels too high for me. Pro-Measles coalition is strong, Kate.

 

Kate Shaw Apparently stronger than I had realized, but it is a country with incredibly polarized parties and not a huge amount of movement under normal circumstances, and yet these are not normal circumstances and the numbers really reflect that. So a couple of other, and it’s like not just this one poll, right? Polls can be outliers as we know. So Rasmussen, which often is like a more conservative poll or it’s viewed that way, also finds that by a 51-42 margin, Americans think the country is headed in the wrong correction under Trump.

 

Leah Litman Which was really surprising given Trump’s recent statements that like maybe kids should just receive fewer dolls for Christmas and it’s fine if the dolls cost more too.

 

Melissa Murray Well, the one that was really shocking to me was the Associated Press Ipsos poll that finds that 53% of Americans now disapprove of the president’s handling of immigration policy. Like immigration was their big winning issue. They like flogged the way the Biden administration handled the open borders during the campaign. And this is just insane, right? I mean, like just 46% of people approve of the way he’s handled immigration policy, it’s just… I would think would be much higher than this if he had real public support here. Independent voters, again, this is a block that’s really critical for the administration, disapprove of his handling of migrant and refugee concerns by a staggering 61 to 37 percent margin. And that’s not limited to a single issue. The new Fox News poll finds that just 38 percent approve of Trump’s approach to taxes and the overall economy, another area that was really an area of strength for him during the campaign. And an even smaller cohort, just 33%, thinks that he’s handled inflation well. And that was another thing that he liked to flog the Biden and Harris administration with. So this is really interesting.

 

Kate Shaw And just one more poll to note that is germane to our kind of topic, the law and the court. So Elon University had another poll last week that found that 54% of Americans believe the executive branch should not have the authority to override or ignore court rulings it believes are bad for the country, while 24% believe it should have this power. So that’s a pretty small number of people who do think the president should get to ignore the courts. So, if you’re contemplating doing something… That 24% of Americans support your ability to do, you may wanna think twice about doing it.

 

Leah Litman Yeah. So while most people are not doing well in this economy, some people are, some people are. And the New York Times had a story about some of those people that had a certain MAGA theme to it, namely, make America a grift again. So we learned more about the great ongoing grift that is the second Trump administration in this story that describes the wild, wild world of world liberty. A Trump family crypto company. So according to this time story, the company has directly benefited from some of Donald Trump’s official actions as president, including his announcement of this federal crypto stockpile. It has sold cryptocurrency to investors abroad, including in Israel and Hong Kong. And indeed, like immediately after the election, when there was this uptick in investment in the company, apparently many of the investors were based abroad in places like Singapore, South Korea, and the United Arab Emirates. Also, apparently several investors in this firm managed firms that the federal government had accused of wrongdoing, almost as if they wanted to buy their way out of those investigations.

 

Melissa Murray All of that is very illuminating. The grift that keeps on grifting, amazing. But let’s turn to one of my favorite segments, Ed Martin Watch, the interim US attorney for DC, also known as USA Dick. And for those of you who’ve written in wanting to know why we call Ed Martin USA Dick, it’s because it stands for US attorney for the district DI of Columbia. That’s what it stands. That’s all. So, USA Dick, apparently, is not on a glide path to being confirmed as the actual USA Dick. So last week, Ed Martin submitted written answers to questions from a number of senators. And I’ll just say, to put it generously, these answers were not entirely encouraging.

 

Leah Litman So can we just say like why he had to answer these additional questions that came about? Please do. Please provide that additional context. Apparently it had just escaped USA Dick’s mind that he had made numerous appearances on Russian state television. And just like, whoopsie, right? Like totally blanked on that one.

 

Kate Shaw Who among us has not forgotten multiple appearances on Russian TV?

 

Melissa Murray Exactly. I mean, sometimes you go on MSNBC so much you forget when you were on, but if I were on Pravda TV, I think I might remember it. You know, yeah. Fair. Right. Anyways. Anyway, so he, because he had made these omissions, obviously inadvertent as is typically the case, USA Dick, in his quest to become the actual USA Dick had to submit some written answers to questions posed by the senators. Here are some of those answers. And again, I’ve already alluded to this, they were not especially encouraging answers. So Ed Martin refused to say that there had been violence on January 6th, 2021, which is surprising since he did actually represent some of the individuals charged with said violence. So he might’ve had some inkling that there have been questions about whether violence had happened. He also declined to directly answer if he believed the 2020 election was stolen. Hmm. He also. Would not rule out the idea that Donald Trump could serve a third term as president, perhaps evincing an inability to read the Constitution, which is a problem. And there were also a lot of I don’t recall answers. For example, he was asked if he ever equated a Democratic politician to Adolf Hitler, and he wrote, quote, I do not recall doing so. Yet in October 2022 episode of his own podcast, the Pro America Report with Ed Martin. Martin said that, quote, President Joe Biden is Hitler, end quote. It’s hard to say for sure, but it does seem that Ed Martin’s confirmation as the actual factual USA dick may be in real jeopardy. And I’m just gonna say for the Democratic senators who are on the case here, I hope you… Push a little harder on the confirmation of USA Dick Ed Martin than you did on the confirmation of Marco Rubio, where y’all fell into line real fast.

 

Leah Litman Yeah, and that one has not turned out so well. Not so good. So I have to say, Melissa, when you were talking about Ed Martin and the third term, these nightmare visions flashed before my eyes of the Supreme Court like ghosting the 22nd Amendment or announcing it had been abandoned because they just hadn’t cited it recently. Recently haven’t cited.

 

Melissa Murray There’s no question about it. There was never a case.

 

Leah Litman Well, you know, we can’t we can opine on that, or they could just declare the 22nd amendment rank discrimination against Donald Trump, the most successful president in US history, just like the establishment clauses ranked discrimination against certain religious believers. So don’t want to do their work for them do want to suggest that this might be on our horizon.

 

Melissa Murray Okay, so I just want to put you onto something that I don’t think has gotten a whole lot of media coverage, in part because it’s a little wackadoodle, but Stephen Miller’s America First Legal Foundation, whatever it is, has apparently sued Chief Justice John Roberts.

 

Leah Litman Yeah, so welcome to the resistance, but no, so the complaint is a little all over the place and that it mostly appears to be an extended rant about how democratic officials, liberal commentators and whatnot have unfairly demonized the court and how John Roberts has not adequately stood up for the very principled Sam Alito, etc.

 

Melissa Murray And Justice Thomas, like it names.

 

Leah Litman Yes. But then, at the end of the day, it is a FOIA case that is asking for the records of the Judicial Conference as well as the Administrative Office of the U.S. Courts.

 

Melissa Murray Well, I think that part’s really interesting because in requesting those records as part of the FOIA request, the complaint seems to make the case that the Federal Judicial Conference and the Administrative Office of the Federal Courts is an arm of the executive branch and the Chief Justice is merely the head of the agency in the manner of Robert F. Kennedy Jr. Or similar.

 

Leah Litman Yeah, right. Like this is like unitary executive on steroids, right? Now the Supreme Court, right, is part of the article two. Just this part. And merely, right and like merely embodying the president’s will. I don’t know if that means, right, the president can just fire at will. Justices, we will see how this one plays out.

 

Melissa Murray I’ve got to say like, you know, when it comes to like what it means about the administration heeding the courts, this does not bode well. Anyway, moving on.

 

Leah Litman [AD]

 

Kate Shaw We have no idea if this was intentional or related, but it is also the case that the Wi-Fi at Jackson’s home appears to have gone down right when these officers arrived, so curious. Balco then reported this story and did not name Jackson’s employer. He had told his employer, which is Fidelity National Financial, a Fortune 500 company, that he wanted to speak publicly about these events. His employer told him. That obstructing an immigration investigation would generate bad press, could amount to professional misconduct, and so he should not. The day the story went public, Jackson was fired. Now we highlight this because it is important to elevate the story. What the company did here is pretty horrifying. What Jackson did was basic kindness, compassion, courtesy. He just responded when asked to lend a little professional expertise. And has met this extreme punishment for it, right? It is bad enough for the administration to penalize lawyers. That is bad and we are obviously going to stay on talking about that, but to have the administration’s punitive posture vis-a-vis lawyers also replicated by private companies is shocking and it cannot be allowed to happen. So if you would like to support Clay, you can sign up for his sub stack, which I gather he has just launched. It is ClayJak, J-A-K. And we also know that Karen Vladek, partner at Rise Point Search Partners and friend of the pod, is helping Clay in his search for a new job.

 

Melissa Murray It’s time to talk about all the stuff that’s going on at Gannett House. Gannet House is where the Harvard Law Review is housed, and they are the subject of a DOE investigation. It was actually kind of interesting, since I thought the Department of Education no longer existed. Anyway, the Trump administration has announced an investigation into whether Harvard University and the student-run law journal, the Harvard Law Review, violated federal civil rights law in its article selection process. According to Craig Treanor, the U.S. Education Department’s Acting Assistant Secretary for Civil Rights, a very weird position for an entity that apparently does not exist and is in the process of being dismantled. According to Greg Treanor quote, Harvard Law Review’s article selection process appears to pick winners and losers on the basis of race employing a spoils system in which the race of the legal scholar is as if not more important than the merit of the submission.

 

Kate Shaw And, of course, they are dismantling genuine civil rights enforcement, both at the Department of Justice and the Department of Education and across the rest of the federal government. But there is one kind of civil rights that they are very laser focused on, and that is enforcing the civil rights of white men and, in this instance, white male law for smaller white men. White male law professors?

 

Melissa Murray White male law professor. Well, I’m saying generally.

 

Kate Shaw Right? Well, I’m saying generally, white men in other fields are a source of concern for them as well. But in this instance, white male law professors, right? That is the focus of the tax dollars being spent at the Department of Education’s Office of Civil Rights, protecting the prerogatives of white guy law professors whose articles were rejected after being submitted to the Harvard Law Review. This is our priority, America.

 

Melissa Murray Just like, who cares about individual education plans for kids with disabilities? Who cares about accommodating kids in school? The real racism that we’re going to address is right here at the Harvard larvae. This is the injustice. Proceed.

 

Kate Shaw Correct. Okay, so this bro-

 

Melissa Murray Let’s talk about the spoil system.

 

Kate Shaw Well, I mean, I just love them all of a sudden getting real incensed about the existence of a spoils system, because I kind of thought that’s what they were going to try to return all of the federal government to. But of course, it depends on what kind of spoils systems we are talking about. Okay, so let’s say a little bit more about how the story broke last week. So basically, the Washington Free Beacon reported in an article last week that there was all this evidence of, quote, race-based discrimination at the Harvard Law Review, and among that evidence was the damning fact. Well, sorry, this fact isn’t damning. This fact is normal. This is right. This is how it should be. For a period of 25 years, from 1993 to 2018, all the scholars selected to write the Harvard Law Review Supreme Court forward were white.

 

Leah Litman Yeah, that’s what we call merit. That’s merit. That’s the merit part.

 

Kate Shaw We can also call it the natural order of things. So that’s how things were and should have remained. But lo, come 2018, things change. And between 2018 and now, which is, you know, a solid seven years, but it sounds like centuries as they put it, only one author was white. The rest were all women of color.

 

Melissa Murray Only one author of the four word.

 

Kate Shaw Because there have been other white authors published. So of the Harvard Law Review forward, which is this very prestigious thing you can get invited to do where you write about the Supreme Court’s term, but after 2018, only one author was white. The rest were women of color and one black male scholar. And this, to be clear, that’s six forwards.

 

Melissa Murray But as opposed to the 25 when everyone was white.

 

Kate Shaw But this six is deeply, deeply suspicious. Too much. Right. We had a handful, we had a few women of color write the forward, and now it’s literally a federal case. So the Washington Free Beacon did not probe the 25 years of all forward authorship by white male scholars, did not even seem to grasp the possibility that there might be some evidence of bias on display in that unbroken record. No! That era is invoked in a tone of wistful nostalgia, with the more recent and more diverse volumes — again, all six of them — with forwards authored by non-white-guy authors a source of outrage.

 

Melissa Murray I have some thoughts.

 

Kate Shaw Let us hear those thoughts.

 

Melissa Murray And again, I will say at the outset, I’ve published four times in the Harvard Law Review. The students were excellent. It was a great experience every time. I’ve also been rejected a whole shit ton of times by the Harvard law review, as has like every single person. In fact, we all have. And I was rejected.

 

Leah Litman I have never had an article accepted by the Harvard Law Review. It never occurred to me to make a fucking civil rights case out of it. Because you’re a grown up.

 

Melissa Murray Point out to our listeners what the point of this investigation really is about. So one, I think this is intended to scare the Harvard Law Review editors, make them really scared so that they don’t accept pieces from women or scholars of color going forward or they make it much more limited when in fact, after 2018, they tried to be more deliberate about including. Authors from underrepresented backgrounds, authors from non-top 10 schools. That doesn’t get talked about as much. So the fact that there’s often letterhead bias in academia and people who are writing great things but are not at a fancy school have a harder time getting through in some of these fancy law reviews. Taking things from scholars who are much more junior in their career. So it was diversity on a wide range of axes that they were trying to promote here. This is to make them scared to do this. I mean, this is kind of like the way we talked about Mahmood versus Taylor. And, you know, when the Montgomery County School Board decided to include content that reflected the diversity of their community, people lost their shit. And now it’s going to be all Dick and Jane going forward. So now it is going to, as you said, in the last episode, all Dick, I guess. It’s also, I think, intended… To taint the scholarship of those scholars of color who have been published in the Harvard Law Review. And it’s intended, I think, even more problematically, to signal to appointments committees that when they review the work of these scholars, they should discount it, that it’s somehow not fair, it’s unmeritorious, whatever, which is absolute bullshit. And the reason why I know it’s absolute bullshit, it’s not just because my stuff’s in there, is also because that many of the articles that are implicated. Are actually amazing, full-stop pieces of scholarship. So they talk about the women of color who’ve written the forewords in the last couple of years. Among those authors are Dorothy Roberts, who wrote Abolition Constitutionalism, which was the foreword in 2020, my colleague at NYU, Maggie Blackhawk, who wrote the Constitution of American Colonialism for the foreward in 2023, and Karen Taney, who wrote last year’s foreword, Curation, Narration, Erasure, Power and Possibility at the U.S. Supreme Court. All three of those are absolutely phenomenal and exceptional. And it makes sense that they were chosen as the forward writers. In a year when the Supreme Court took a ton of administrative law cases and we’re thinking about history and tradition, Karen Taney is an historian of the administrative state. Like, duh, motherfucker, that’s why she was chosen.

 

Kate Shaw They’re all, those are stunning. Those are incredible pieces of scholarship, each and every one of them. And they don’t, you know, Department of Education, Free Beacon, like they don’t even, they don’t even suggest any substantive deficiencies in any of these pieces because they never could.

 

Leah Litman Well, and also among the other evidence that the story kind of marshals in support of its claim that something is amiss here. So it notes as if this is some kind of indictment that when you included new voices in the foreword, these new voices expanded the topics that were covered in the forward, right? They suggest like, oh, right over the past few years, right, this has affected the topics. Like they’ve talked about abolitionism or colonialism or curation and narration. And I’m kind of like… Is that bad? Like, why is that bad if you were topics on the court’s docket? The court took a bunch of race cases though in those years. Also, if you weren’t having forwards touch on certain topics, and now you do, isn’t that kind of like part of what intellectual diversity academic freedom and academic discourse is supposed to be for and what it’s supposed to do.

 

Melissa Murray It’s only about getting rid of wokeness. The whole central conceit of this entire investigation is that they want people to think that the very fact that scholars of color were selected and accepted means that there was no merit here and that there couldn’t be, like there’s just no way in hell that you pick a person of color or a woman and her work, their work is good. If you think about that, that doesn’t actually suggest that you were invested in merit. It means that you’re literally invested in racial hierarchy. If you cannot even contemplate the possibility that one of these people actually deserved to be accepted. Like, I mean, that’s racial hierarchy in a nutshell. And you don’t even think critically about the 25 years when you didn’t have a single person who was not white, insane.

 

Leah Litman Other legal culture news to cover.

 

Melissa Murray Skoda’s blog got bought by The Dispatch?

 

Leah Litman Yeah, so the dispatch is like a right-leaning news organization. I have to say, I have some concerns and qualms about this. GoDisBlog has obviously been, continues to be, an incredible resource for people following the Supreme Court. It provides very readily accessible. Information about all of the court’s cases, that you can easily track their progress and whatnot. It also offers commentary on some of the cases and statistics about them. And the dispatch, which is the organization or entity that acquired this, includes people like former Trump Justice Department spokesperson during the family separation, Sarah Isger, who said during a podcast back in January talking about. The Mahmood vs. Taylor case that she would not want her child reading Pride Puppy, not necessarily because of its LGBTQ content, but because of the quote, really graphic sex stuff. This is the book that merely depicts, you know, a woman in leather. No, in a leather jacket. No, no, a leather jacket. She’s not wearing. She’s not like that kind of leather. Well, again, it doesn’t matter to me whether it’s like leather jacket or leather. And, you know, so the idea that this is just not going to affect or influence. SCOTUS blog at all. I mean, I am not positive about that. Yes, some of the wonderful people of SCOTus blog are going to continue with the organization now that it’s become part of the dispatch, like Amy Howe, for example. But, you know, just looking at it now, you know, after this acquisition, the SCOTU blog calendar link now leads to a 2015 blog post and the calendar itself is missing. And again, I just don’t know what is going to happen there, but I just think people should know that as they peruse SCOTUSblog and might approach it this decision season just to know the ecosystem that it is now part of.

 

Melissa Murray I really did have to go and pick up a copy of Pride Puppy because I’m like, do I miss something? And like I went looking for the graphic sex content and I genuinely didn’t find it. I have to say, I went for the leather folk. There was no leather folk, just a woman in a leather jacket, like I might wear. Maybe I’m leather folk it’s hard to say. And I definitely didn’t see any graphic sexual contact. I did see like, you know, two people with their kid jumping on the bed with them. Was that the graphic? Like a rainbow? Yeah, it was an old Chevrolet. I don’t know. It was a lot going on.

 

Leah Litman Okay. So we have some fun news that we wanted to end on before we get to our fun segment. And this fun news is actually about some of the very fun guests we have had on the show. So former Strix scrutiny guest, Alexandra Petri, won the Thurber Prize for best humor writing for her book, Alexandra Petri’s U.S. History. So congratulations to her, very well deserved. It is hilarious.

 

Kate Shaw Yes. She’s hilarious. She’s great. And I think I’ve said this before on the pod, but my eighth grader is obsessed with that book. Like truly obsessed. But it’s also like, it’s a good book for adults. It’s a book for like high school students. It’s great, great book. And I am so glad to see it deservedly honored. It’s like the Pride Puppy of History book.

 

Leah Litman Oh dear, uh…

 

Kate Shaw I’m sure the family would be really mad about it, so it has that in common.

 

Melissa Murray Yeah, I hope you can opt your kid out.

 

Leah Litman Well, I mean, she’s a woman author, and so, therefore, right, people might have objections to that. So, another congratulations, former Strict Scrutiny guest, Ellie Mistal, won the Hillman Journalism Prize for Opinion Analysis, also extremely well-deserved, super big deal, so congratulations to Ellie. And he does have opinions. Yes, he does.

 

Kate Shaw Okay, one other piece of good news, really good news before we get to our recommendations, and that is that the Columbia student, Mohsen Matawi, who had been picked up as he went to a naturalization interview, he was a permanent resident, he was going to naturalize, and instead he was snatched by ICE and detained for over a month, but he was, last week, ordered released by a Vermont judge. The court also said the federal government cannot remove him from the state or the country, and he It continues to be the most impressive person. So let’s just play this clip from him upon his release.

 

CLIP And I’m saying it clear and loud.

 

CLIP Yes.

 

CLIP To President Trump and his cabinet. I am not afraid of you.

 

Kate Shaw I mean, when people who have everything to lose are brave like that, like everyone else, like those of us who are safe, or at least for now we are, maybe no one is safe, but safer, like have such a profound and pressing obligation to at least do the same. So, really, really good result. Let’s turn to things that we read or saw in the last week we want to recommend. I’ll go first this time. So I ran the Brooklyn Half Marathon last weekend and I saw, yeah, I mean I was But it was fun. It was a beautiful day. It’s an accomplishment. It’s a big achievement. And I saw some signs that I wanted to mention. It’s the first race that I’ve really noticed political signs in. There’s not that many, and it was striking that there were a bunch in this race. So I saw signs that said things like, you’re running better than our government and hurry up, JD Vance is coming for you, and a genre of signs I thought was really good that said things like. Due to inflation, this run is now 16.4 miles instead of the 13.2 that a half marathon is. That’s actually a favorable tariff rate. Politics can be fun, protests can be fun, I just love this. Exactly, yes, no, that was right. And things that are not always political kind of maybe should be right now, but that doesn’t mean that they can’t be fun. And when you go to protests, which are political, absolutely, those are fun. So yeah, so I thought that was all great. Okay. I went to see Sinners on Monday night. I don’t see a lot of movies in the weekend. Okay, good. Oh, my God. I talked to Melissa afterwards and I was like, I am literally still quivering from the experience.

 

Melissa Murray It is throbbing, and I said that was the Michael B. Jordan.

 

Kate Shaw And I think that’s right. Both of him, yes. Smoke and Stac, that honestly just like, it’s incredible, it’s extraordinary. Ryan Coogler’s a genius, the performances are incredible. The soundtrack, I’ve been like listening to the music all week since. Go see it in the theaters while you can. And Leah, I’m so glad you’re gonna go this weekend. Yeah. And then finally- It was great. This is like my second Andrew Marantz from the New Yorker shout out in recent weeks, but he had a great and really scary piece called, Is It Happening Here? Involves, in part, interviews with my friend David Pressman, the former ambassador to Hungary, and it’s a great read, so check that out.

 

Leah Litman So I have a few recommendations. One is Sophie Gilbert’s new book, Girl on Girl, How Pop Culture Turned a Generation of Women Against Themselves. I just thought it was a really interesting, important work about different ways in which media and pop culture pit women against each other. And as a women-led, women-forward podcast, it’s just something I think about in the public sphere. So I would recommend that read. Another piece, this one optimistic, Dahlia Lithwick in Slate, The Tide is Turning, kind of related to the polls we were talking about. So I enjoyed that read. One that was a little bit more disturbing and troubling is Andrea Pitzer in New York Magazine, Trump and Bukele’s Concentration Camp. You know, I think it is a really important piece of writing describing the El Salvador Terrorism Confinement Center. For what it is. And, you know, alongside that, there have been images coming out of the Blue Bonnet detention facility in Texas of the Venezuelan men who narrowly escaped being sent to El Salvador, literally making an SOS, like aligning themselves in an S.O.S. Another one, I know we’ve mentioned this before, but I wanted to highlight it again, is the Just Security litigation tracker. So Just Security is the blog that is run in part by Melissa’s colleague at NYU, Ryan Goodman. I’m working on some pieces that are about some of the ongoing Trump litigation, and it’s just such a huge help to be able to rely on that for all of the real-time updates and just a consolidated place for the cases. One additional note, and this is kind of like a random one, but it turns out that like the final phase of book writing is my least favorite part, and that is all of the asking people for favors where you say, can you talk about my book? Can I be on your show? And whatnot. And the one, getting emails in response rather than people ghosting is nice. And two emails that don’t make me feel bad for promoting the book, like that, yeah, anyways.

 

Kate Shaw I had to put that on the list, too. And if you’re one of the people ghosting, take note, don’t ghost.

 

Melissa Murray Ooh, don’t do her book like the Establishment Clause. Okay. Exactly. I would also like to co-sign Sinners, which I think is one of the most original movies I’ve seen in a long time. And I also want to say like, just to connect it sort of to the political zeitgeist and this moment, I’m not going to ruin this for you, but like literally a movie about annihilating white supremacists is the number one movie in America, which I thinking is really interesting.

 

Kate Shaw It’s incredible, and can I say, the whole time I was like, oh my god, the Trump administration is gonna try to figure out a way to shut the shit down because it’s so fucking real. It’s just like, it is intellectual, it’s political, it fucking revolutionary, and it is also just beautiful and fun. Everyone is gorgeous. Also, I love vampire even. I think I would have loved the movie just as much with no vampire plot, but I do love a good vampire movie.

 

Melissa Murray I will also say, Hailee Steinfeld is a fucking revelation in this movie. She’s awesome. There’s this one point where I’m not spoiling anything, where she just says, boy, if you don’t get the fuck out my face, I’m going to say that in a faculty meeting one day. Like, I just know… Don’t say…

 

Leah Litman I want you to say that to Sam Alito when I go to DC. Don’t say some of the other…

 

Kate Shaw It’s time to play an aural.

 

Leah Litman Oral argument.

 

Melissa Murray Yeah, there’s a funny thing she said that you don’t ever plan on saying it. There’s no occasion in which that would come up. None. Zero. Zilch. But, boy, if you don’t get the fuck out my face, everyone. Anyway, in addition to watching Sinners, I also read Danielle Dreilinger’s The Secret History of Home Economics, how trailblazing women harness the power of the home and change the way we live. And it’s actually really good. It sounds like it would be like kind of dry, but she is. She’s a great storyteller. It’s very narratively driven. She brings out people who I think have been lost to history, like Margaret Murray Washington, no relation, but the wife of Booker T. Washington, who was this black woman who really did a lot at the Tuskegee Institute to build up the whole field of home economics. And she was kind of shut out as it became professionalized by white women. Just a really great book. And if you’re thinking about Tradwives, like there’s a whole slant on that too. It’s really fantastic. Another thing I did that made me feel really great was I gave some money to the Pauli Murray Center for History and Social Justice, which is cited in Durham, North Carolina at the childhood home of Pauli Marie. The center commemorates the life of Paulie Murray and offers programming that advances the causes of social justice and equity. And because it does that, this administration obviously does not like. What it is doing. And in April, the center lost over $300,000 worth of federal funding that it had previously been awarded in 2024 from the Institute for Museum and Library Services, which has a set of museum grants for African-American history and culture. The administration maintains that, quote, the grant is no longer consistent with IMLS’ priorities and no longer serves the interests of the United States and the IMLs program, end quote, in alignment. With the executive order on the continuing reduction of the federal bureaucracy. So this is all part of DOGE, Make America Great Again, Make the Government More Streamlined, and Make Black History No Longer, part of the history we talk about. But the center, despite all of that, remains steadfast in its commitment, and it has launched a $200,000 giving campaign, and it’s trying to get donations so it can continue its great work, so. If you have an opportunity, consider taking a look at their website and supporting them. Finally, I ran into a bunch of strict scrutiny superfans last week when I was not here, because I was in Philadelphia and then later in the Bay Area. And I just wanted to shout out some of those superfams, Angelica. My colleague at Penn, yes. Yes, Angelika, your colleague at PEN, you let me know that her wife is a huge Strict Scrutiny, superfan. So shout out to her. Also wanted to shout out Claudia in Oakland, who is also a regular listener and Ryan in San Francisco. And we really appreciate you and we love hearing from you. And I think we really need to think about adding some West Coast whistle stops to the Bad Decisions Tour.

 

Leah Litman Hear hear.

 

Melissa Murray Oh yeah, I’m down. I’m done, let’s do it. We gotta get out there. We should come for Oakland.

 

Leah Litman And LA. So, additional notes, you should join over one million listeners around the world who are tuning into Shadow Kingdom, God’s Banker, Crooked’s newest true crime podcast. All episodes are out now, so you can binge the full story from start to finish. As hosts, Niccolo Maggioni investigates the mysterious death of the Vatican banker, uncovering a web of mafia ties, a fascist secret society, covert Vatican ops, and a missing $1.2 billion. He interviews spies, prosecutors, and the last person to see Roberto Colvi, the banker, alive, all to answer one question. Who killed God’s banker?

 

Melissa Murray It’s just the perfect podcast for right now if you’ve been completely enmeshed in all of this Pope stuff, like the New Pope, and if you’re watching Conclave and you’re ready for, you know, Popapalooza and the Conclave, this is going to be really fantastic. I mean, like, I think the Vatican is just like insanely interesting, just as an organization. And so shrouded in secrecy, and this was fun and immersive and very mysterious and spooky and very timely right now.

 

Leah Litman And you can binge all episodes of Shadow Kingdom wherever you get your podcasts or on Apple Podcasts.

 

Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer. We get audio support from Kyle Seglin and Charlotte Landes. Our music is by Eddie Cooper. We get production support from Madeleine Herringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production and we are thankful for our digital team, Ben Heathcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at StrictScrutinyPodcast. 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.