Strict Scrutiny - A Term for the Rich, the Reactionaries, and the Ruthless

Episode Date: July 7, 2025

With July upon us and bad decision season (mercifully) over, Leah, Kate and Melissa take a step back to recap this year’s SCOTUS term. They highlight some of the overarching themes, break down the biggest opinions, and look back at the moments they’ll remember forever–whether they want to or not. Hosts’ favorite things:Melissa: KBJ’s footnote 12 in Stanley v. City of Sanford, Florida; Seven Chaotic Months in the Life of a New Federal Judge, Emily Bazelon and Mattathias Schwartz (NYT); This Is the Real Impact of the Supreme Court’s Planned Parenthood Decision, Linda Greenhouse (NYT); When Rational Basis Review Bit (HLR)Leah: A New Kind of Judicial Supremacy, Steve Vladeck (One First); With the Big, Beautiful Bill, You Can Now Sponsor a Billionaire of Your Choosing, Alexandra Petri (Atlantic); Samuel Alito Takes Pride in Gay-Bashing, Elie Mystal (The Nation); A Court Without the Range, Sherrilyn Ifill (Sherrilyn’s Newsletter); ‘A Culture of Disdain’: The Supreme Court’s Actions Speak Louder Than Its Words, Kate Shaw (NYT); Andor (Disney+); Virgin, Lorde; Trump FragrancesKate: Trump’s Big Win in His Escalating War on the Press, Bob Bauer (Executive Functions); USAID study (The Lancet); Is the Supreme Court the Best Way to Get Justice? Alexis Coe (NYT); Unbearable: Five Women and the Perils of Pregnancy in America, Irin Carmon; We the People: A History of the U.S. Constitution, Jill Lepore Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 10/4 – ChicagoLearn more: http://crooked.com/eventsOrder your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesFollow us on Instagram, Threads, and Bluesky

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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. 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. I'm Leah Littman. And I'm Kate Shaw. We have now had a few days to step back from the term, which means we are ready or as ready as we will ever be for our term recap. So we're going to highlight some

big term themes, share our takes on the biggest opinions of the year, and take a walk through some of the moments from the term that will forever be seared into our memories. So one theme that I'd like to highlight just to get us started is this idea that the court giveth and the court taketh away. And by that I mean the court sometimes gives us good stuff, sometimes takes it away in the same breath. And that often happens in tandem with the court highlighting really procedural issues that appear really wonky, but those procedural issues really

mask underlying substantive questions that have really impactful consequences. So I'm just going to highlight a couple of these cases. Two of them were the e-cigarette cases. So there was the White Lion case in which the court upheld an FDA ruling on e-cigarettes. That was the giving. And then the court tooketh away, which

is to say in another case, it allowed those companies challenging FDA regs and rulings to find friendly litigants to bootstrap onto their litigations. And then they were able to file their lawsuits in friendlier circuits. And that, again, enabled them often to prevail against the FDA. So the case I just mentioned, RJR Vapor, essentially held that tobacco manufacturers can file outside of the DC circuit and the circuit in which they are incorporated if they can find some retailer or a gas station

or basically anybody that sells e-cigarettes in a friendlier location. And the court did a similar kind of thing in diamond energy versus EPA with regard to standing up, essentially allowing fuel manufacturers or fuel producers to jump in and challenge litigation against the EPA. So all of this, I think, is really concerning. And as in the Birthright Citizenship case, the court really focused on these narrow procedural questions, venue standing remedies,

that skirt these bigger, broader, more substantive questions. So I would maybe generalize from that or go one step further in saying what the substantive motivation is behind these ostensibly procedural or technical issues and that is giving a leg up to favored litigants and favored rights and erecting obstacles and burdens to disfavored litigants and disfavored rights. So you mentioned birthright citizenship and R.J. Reynolds. I would add to that J.G.G. versus Trump, one of the initial Alien Enemies Act cases. So on birthright, the court chooses this existential challenge to our constitutional order, the project of reconstruction, as the case to limit what remedies plaintiffs can

get against the government. And in J.G.G., it says to the men who are at risk of being permanently sent to CICOT, the Salvadoran prison that we now have a first-hand account of the torture the men will be subjected to there. It says to those men, eh, file a habeas petition, a more challenging, difficult process than blocking a policy entirely under the APA. And then in R.J. Reynolds it tells Big Tobacco you get to basically pick which federal court you file in. Or contrast how the court exercised discretion in Diamond Energy versus Birthright. In Diamond Energy, it revives a lawsuit by fuel producers against the EPA's approval of a California regulation, even though the Trump administration is considering at this

very moment revoking said regulation, thereby potentially eliminating the need for litigation challenging it. So even though this whole issue is likely to be moot, the court chose to decide the case anyway. Then in Birthright, the court opts not to say anything about the merits and how wildly illegal the executive order is, creating this chaos and uncertainty about when and where it might go into effect. And this is what I took to be the BS that Justice Jackson talked about in her dissent in these cases. In Diamond, she talked openly about the perception of the court, quote,

being overly sympathetic to corporate interests, end quote. And in birthright, she says the court's decision will fall hardest on the, quote, poor, the uneducated, and the unpopular, those without the power to lawyer up. Let me just add on to that, Leah. So I think Justice Barrett's opinion in Trump versus Casa is very much of a similar vein. And I want to focus specifically on the fact that she credited the administration's 30-day delay

that had been baked into the initial EO. And that 30-day delay for the implementation of the EO was ostensibly so the government could devise guidance for implementing its obviously and flagrantly unconstitutional order. And she kind of credits that in the last part of it. Again, talk about stacking the deck in favor of certain interests. Like, we know this is unconstitutional, but yet we're going to allow

this 30-day delay to proceed so they can figure out how to do the unconstitutional thing more unconstitutionally. Like, it just doesn't make any sense. Also, you're saying anything these guys say, the Trump administration says, gets credited and treated as law? One more thought on that part of the ruling in the birthright citizenship case that says there is a 30-day delay that we are essentially going to just announce by fiat. It's part of the executive order, but we're saying the administration has to wait

to begin enforcing it. But guidance development can happen right now. And I just think a couple of things about that. One, it does give me some pause with respect to all of these confident assertions that the executive order will clearly be deemed unlawful when the court addresses the merits. I mean, I still think that's very likely the case,

but I think it is far from 100% certain. And I think this might be something of a tell. And I also think there is something profoundly corrosive to just kind of the general constitutional culture to say, executive branch lawyers start devising how exactly is this going to go into effect? What should hospitals do when they are actually well? How to violate the law? You know, just figure it out. Figure out the mechanics of this egregious constitutional violation. I think it is appalling that the court does that. But there's one silver lining, I think, that should be noted, which is that once you have guidance, if they do it fast,

then you have the possibility of a challenge under the Administrative Procedure Act, which you don't have in the context of just an executive order. So it is, there is some sense in which the guidance might provide a hook for a different avenue for legal challenges. Yeah. So I could go on forever about the substantive choices and vision reflected in the procedural rulings, so I could go on forever about the substantive choices and vision reflected in the procedural rulings, but I'll just note one other pairing, which is planned parenthood and birthright. So in the former case, the Supreme Court

says Medicaid beneficiaries and providers can't challenge a state's violation of federal law. On birthright, again, the court chooses an attack on multiracial democracy and the reconstruction amendments as a vehicle to limit remedies in civil rights cases. Then in Diamond, it adopts a generous theory of standing that makes it easier for fuel producers to sue and the FDA and EPA cases preserves the

ability of corporate interests to pick where they sue. Like I feel like at this point we are on theme number one and I should warn our listeners that in the immortal words of Matt Damon playing Brett Kavanaugh on SNL I'm gonna start at an 11 and I'm gonna take it up about a 15 real quick like before we started recording I read one of the more revealing garbage takes on the last term and I haven't been able to come down from it Name a name. Nope name a name No, leave it to the listeners imagination and maybe I'll talk about it in the friends of the pod discord Is this fuel more or less powerful than three Magnolia cupcakes? Just curious

It's just different kinds of fuel like the magnolia cupcakes make me a little cheery and chipper. This just makes me incandescent with rage. Yeah okay well I don't know if this is gonna help. Like I think I damaged my phone. By throwing it across the room so hard. Yes. Okay okay. Well I don't know if this is gonna help but I did want to add one more case here which might ratchet things up further but But that is the shadow docket order DVD versus DHS. So there the court may, just in terms of the kind of procedural and discretionary choices the court is constantly making

and trying to conceal. So it made the decision to stay the careful work of the lower courts that had considered challenges to the administration's efforts to render individuals to third countries they had never been to, including South Sudan. But the court put that lower court work on hold without saying a word about why.

Now we are just reading tea leaves, but it may be that there were some jurisdictional concerns about the court's ability to hear that case. That's the explanation Will Bode supplied for the court in a term roundup we did for the Times last week. But if that is the case, that would be another example of the phenomenon that Leah and Melissa, you're both identifying,

which is the court using these procedural shields to essentially reach the merits results that it wants to without actually taking responsibility for doing that. And somehow that order in DVD became even more appalling when on last Thursday evening, the Supreme Court granted the Trump administration's quote motion to clarify the Supreme Court's unreasoned unclear order halting the trial courts injunction in the case. That had blocked the government from carrying out third

country removals without providing due process. After the Supreme Court's unexplained literally zero explanation order the court, doing his darn best to figure out what's going on, determined that while the initial order slash injunction wasn't in effect, a subsequent order still was. And that was the subsequent directive, a remedial order, that had required the government to provide the men it shipped off to South Sudan without due process, in violation of the lower court's order to require the government to offer those men some due process. Incredible fear interviews before releasing them into the custody of South Sudan. On Thursday, the Supreme Court, quote, clarified that that order was blocked too. What the

government asked for, as Justice Sotomayor explained in a blistering dissent, is, quote, to send the eight non-citizens it illegally removed from the United States from Djibouti to South Sudan, where they will be turned over to the local authorities without regard for the likelihood that they will face torture or death." Justice Kagan issued a short concurrence to the order, saying that while she disagreed and still disagrees with the Supreme Court's order staying the lower court's order, she doesn't think a remedial order can remain in effect to remedy an order that is itself no longer in effect. Which, I don't know, sounds plausible, but it's kind of treating what the Supreme Court did earlier

in DVD with the same kind of presumption of regularity and lawfulness that this court unjustifiably provides the Trump administration. I recognize these obviously aren't totally the same thing, but still struck me as similar. Justice Sotomayor with Justice Jackson dissented and did they. They wrote, quote, perhaps the majority hopes that in light of its contentless stay order the district court will simply give up on adjudicating this case but if this court wishes to permit the government to flout the fundamental rights guaranteed by the due process clause it cannot avoid accountability for that lawlessness by tasking the lower courts with inventing a rationale.

She also wrote, followed the rules, but the administration has a Supreme Court on speed dial." End quote. This is an ad brought to you by BetterHelp. Workplace stress is now one of the top causes of declining mental health, with 61% of the global workforce experiencing higher than normal levels of stress. To battle stress, most of us can't wave goodbye to work. But what we can do is start small with a focus on wellness. You can work out more, you can maybe spend some time touching grass, you can sit in the sun daily, you can walk on an incline. Don't forget that in addition to all of those smaller fixes, therapy can help you navigate whatever challenges your workplace and the workday, or any day for that matter,

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Okay. Another theme of this term, I think, was all eyes on Amy. Under Amy's eye, maybe? No, no, his eye. We don't know. It can't be under her eye. Amy doesn't have her own eye. In this particular milieu, she is definitely under his eye

for these purposes. So at the end of the last term, Justice Barrett was on the receiving end of brickbats from conservatives who were incredibly disappointed that she displayed a modicum of restraint in certain cases. She was also, I think in our view, weirdly and wrongly, celebrated by some liberals as the second coming of David Souter, which is to say they were wish-gasting their fondest hopes and dreams for a five to four court

onto Justice Barrett. Well, Justice Barrett took that personally. And in this particular term, she decided that Amy was going to Amy, which is to say that she made clear that she is a no more Souter's conservative to her core. She is definitely with the boys and not just with the boys. She's actually willing to beat up on her more junior black female

colleague, which has prompted MAGA World to celebrate Amy again some more, while also denouncing Justice Jackson as a quote unquote DEI hire. I will just note that as of a few months ago, MAGA World was actually lambasting Justice Barrett as a quote unquote DEI hire. So life comes at you fast. It's almost like they're willing to accuse anyone of being a DEI hire so long as they are not a white male if they are doing things that they dislike or disfavor.

Dissent is the first being a DEI. Correct. And I will just say as between the Barrett opinion and the Jackson opinion, I really do just implore our listeners to read the two opinions and form your own judgment regarding who gets the better of it. Jackson's dissent, to my mind, clearly comes out on top.

To pick up on Barrett, though, I assume she will continue to occasionally disappoint conservatives and rekindle a degree of hope, maybe what glimmers of mine remain. But her conservative bona fide should be safe for at least a little while. And I think that's not just because of her opinion for the court in Trump versus Casa, which as we said in our emergency episode, it's like her first really big opinion for the court and boys it adjuses. I have thoughts on that.

Yeah. But also I just want to kind of throw into the mix her track record in cases involving equality and liberty, which, you know, the birthright citizenship case obviously does as well, but ones that do more explicitly grapple with those things. So first, she wrote a truly extreme concurrence in this Grimetti case going out of her way to say that discrimination against trans people should not be subject to heightened scrutiny, in part because there hasn't been enough official state-sponsored discrimination against trans people should not be subject to heightened scrutiny, in part because there hasn't been enough official state-sponsored discrimination against trans people. I mean, totally shocking factual claim

and also gratuitous to stake out a claim on the level of scrutiny, which the majority resolves the case without deciding. And to do that while the ban on service by transgender individuals in the military is still pending and while there are other cases involving pressing legal questions regarding the basic rights of transgender people before the lower courts

and before the Supreme Court. So she went out of her way to say, this is how I think all those laws should be scrutinized. And I just actually wanna mention one other case which is her opinion last term for a six three court in state versus Munoz kind of under the radar but this was this case that held there is no protectable liberty interest in living with your non-citizen spouse in the United States in a way that I think like you know

suggested a very cramped conception of constitutional liberty at least if we're talking about anything but a paradigmatic heterosexual cis, cis, US citizen marriage, which she probably does think the Constitution protects. Well, maybe not in this particular milieu right now. So I mean, Munoz takes on, I think, new contours right now. But I will just say that I think you're right to highlight those two cases. I think they really suggest her growth and her new level of comfort in her position because I can still remember Justice Barrett in 2022 saying absolutely nothing in daubs like you know Not even a word about a drop box where you could leave your baby. She had nothing to say the sea witch had her tongue

Yeah, she is going all in on dabs over and over, and I am personally over it. I do not find her interesting, and I implore people to stop trying to make Amy Barrett interesting. She will probably rule against the Trump administration in some tepid ways in some cases, but her right-wing views make her a reliable MAGA vote in most others, like most cases, period. OK, so let's shift to another theme from the term and

with your chest. So this next theme is the kind of big, the house is on fire energy that we are getting both, you know, energy and explicit warnings from both justice Sotomayor and justice Jackson. One thing I think is less than clear is whether it is the administration or the court that is to blame. I mean, maybe the obvious answer is why not both, but I just wanna highlight a couple of writings on this theme.

So first, Sotomayor in her dissent in the DVD case, that's the one where the court granted this stay in the third country removals case, she says, quote, given its conduct in these proceedings, the government's posture resembles that of an arsonist, so here it's the government, quote, given its conduct in these proceedings, the government's posture resembles that of an arsonist. So here it's the government, right? Starting the fire, who calls 911 to report firefighters for violating a local noise ordinance. In any event, the government has not established a likelihood of success on any of its arguments. That actually,

I think, also well describes the government's conduct in the birthright citizenship case. Um, and second, I want to quote Justice Jackson in the Social Security Administration versus AFSCME. This is the case involving DOGE and Big Ball's access to Social Security Administration data. So she said there, quote, once again, this court dons its emergency responder gear, rushes to the scene, and uses its equitable power to fan the flames rather than extinguish them. So I think we have the administration starting fires and the majority on the court fanning flames

rather than extinguishing them. She's just so fucking good at writing so clearly with just super evocative turns of phrases that yeah, really capture the moment. And speaking of calling out bullshit, we wanted to remind people of this very memorable moment from Justice Jackson during the birthright citizenship argument, something that I think has really stuck with people, including us, in her description of the regime the Supreme Court might have just ushered in.

I understand. Let me just turn your attention to one other thing, because the real concern, I think, is that your argument seems to turn our justice system, in my view, at least, into a catch-me-if-you-can kind of regime from the standpoint of the executive, where everybody has to have a lawyer and file a lawsuit in order for the government to stop violating people's rights. Justice Kagan says, let's assume for the purpose of this that you're wrong about the merits, that the government is not allowed to do this under the Constitution, and yet it seems to me that your argument says we get to keep on doing it until

everyone who is potentially harmed by it figures out how to file a lawsuit, hire a lawyer, et cetera. it figures out how to file a lawsuit, hire a lawyer, etc. And I don't understand how that is remotely consistent with the rule of law. Okay, so coming out of that quote, let's maybe identify another theme, both from Trump versus Casa, but also more broadly from the term, which is the court siding with the Trump administration and against the district courts. So I think that's true about Trump-Vicassa kind of first and foremost on the court's merits docket, but the case just has to be discussed together with the court's disposition of cases on the shadow docket.

So I know a lot of folks saw and we have mentioned the eye-popping statistic that political scientist Adam Bonica compiled a week or so ago finding that from May 1 to June 23, federal district courts ruled against the Trump administration 94% of the time,, federal district courts ruled against the Trump administration 94% of the time, and the Supreme Court cited with the Trump administration the same 94% of the time.

Just like pretty stunning data. And look, there are some caveats to the data in that the administration only asked the Supreme Court to take up a small subset of the cases that they lost, ones where they thought they could make some kind of procedural argument that they could notch a win on. But it's still like that track record and this big win at CASA is hugely emboldening. And I think that you have already real evidence of that in that within, I think, a day of

the CASA ruling in the birthright citizenship case, the administration filed its first appeal in one of the law firm executive order cases, the one involving the order targeting Perkins-Cooey. So they had been essentially just letting those losses lie. And they were all of a sudden like, oh, you know what, maybe we'll take our chances at the Supreme Court, might be able to get a win there. Well, to that point, I just want to underscore the complete antipathy for lower court judges, both at the court and within the administration, I think it was incredibly evident this term. On the court side, we saw in the oral argument in Kelly

and in Justice Alito's statements in the oral arguments from Trump versus Casa that these guys don't think that district court judges know what the fuck they're doing. Justice Alito was talking about district court judges as though they were monarchs of their own realm. And it's like, why don't you start with the man in the mirror?

Why don't you ask that guy to make a change? Because that's where this all begins. And again, it is also worth noting that the two voices standing up for the district court judges against the administration and against this court are justices Sotomayor and Jackson, who are the only two members of the court to have ever served as district court judges.

And they have been vociferous in their defense of the juridical power of the lower federal courts. I will also highlight Justice Jackson's speech at the First Circuit Judicial Conference in Puerto Rico, where she talked explicitly about how the administration's rhetoric was putting district court judges in danger. And I will just note that it was pointed out to me that in addition to making those statements

to a full audience of judges who gave her a standing ovation, Justice Jackson then had that speech and the coverage of it included on the Supreme Court's website. So she wants you to know this is what she thinks. And again, the antipathy was stunning this term. Well, compare and contrast her rigorous, meaningful defense of the lower courts with the Chief Justice's meh kind of statements in that direction. Kate, I agree with the limitations justices meh kind of statements, you know, in that direction.

Um, you know, Kate, I agree with the limitations on the statistics you mentioned. I also think they are pretty eye popping and say a lot. And one of the things they suggest to me is that the administration knows or has a pretty good sense of when the Supreme Court is with them and that on a lot of things that Trump administration is doing, the Republican justices are with them. You know, on term themes, I'm extra, not news to our listeners, so I couldn't stop myself at one, sorry. Like, if these guys don't have to, you know, do law, I don't have to restrict myself to one hashtag take on the term. So one, and I think this is related to what you've both said, Kate and Melissa, but one is how the court is enabling lawlessness by giving the go-ahead to the administration and a big middle finger to the lower courts. Like they respond

sternly and quickly to the lower courts and then offer some like mild shrugs on Trump, like I don't care, do you? They come up with legal rules that basically say, yeah, there will be no consequences for violating the law. And I know we've gestured at this, but I think it's important to emphasize by pausing so many lower court orders, including ones the administration defied, they are adding cover and fire to the administration's rhetoric on the lower courts. The message they are sending to the Trump administration is that yes, what the lower courts are doing is wrong. And when you send that to an administration who believes any judicial oversight is wrong and who is defying court orders, what do you think you're going to get?

Again, in the case about perhaps the most egregious extreme lawlessness, birthright citizenship, they decided in picking what issues to weigh in on to say that the problem that warranted their attention and time is the lower courts. It is a law of lawlessness, a law for lawlessness. And to my mind, like this court is an anti-Trump court. Like to them, the problem is people, institutions,

resisting Trump, not what Trump is doing. I will chime in to say it's not even just that they're sending that message to the administration. It's that the administration is then broadcasting it to their supporters. And that is having a profound impact, negative impact, on lower courts, the safety of lower court judges. It's incredibly irresponsible.

Completely agree. So my second theme is gerrymandered judging, so making up the law, a lot of bespoke law, for the Republican Party. We've talked about this some already, and I wrote a short-term recap for Democracy Docket making this point, so I'll just quickly rattle through some of it. But in the Planned Parenthood Medicaid case, they make it harder to enforce rules about the availability of public benefits, the same programs the Republican Party is

vitiating on major questions doctrine, a tool that might constrain what the executive branch can do. Brett Kavanaugh says, eh, this doesn't apply to foreign affairs, Trump's favorite kind of emergency or exception to invoke to justify emergency powers on the First Amendment. Porn is just different in Trump versus Wilcox. Our rule doesn't apply to the Federal Reserve Board. In Skirmety, they revive precedent that legitimize sex discrimination. In Godoldig versus Aiello, they are ruling again and again for different constituencies of the Republican coalition that created and got us this court, the rich corporate interests,

the reactionary right wing Christian theocrats and the strongman. In this sense, I would say that the court is very much aligned with the administration, which rode to victory in 2024 on this kind of working class populism, affordability, rhetoric. But since actually getting into office in January, this administration has been clear that they are beholden only to oligarchs and the mega rich. So you see this with the big, beautiful bill, the cuts to Medicaid that are contained within it, the efforts to limit services at VA hospitals, the cuts to hospital research and universities. And these are all programs that benefit working people, whether it is Medicaid recipients or veterans or the many people in red states who are employed by their local hospitals or their state university. So just to say this is

not a populist court and it is in service of an administration that's not really populist either. Yeah. Third, final theme, I promise, related to ones we've already talked about, like what is law? Don't know her. Like these guys are making the law into a whole ass vibe. Like they're just hotboxing or freestyling, whatever you want to call it. The doctrines and reasoning they announce do not resemble anything I would recognize as law. Like they are not principles or rules that can be applied by the lower courts. It's just a bunch of mumbo-jumbo that allows the court to do whatever the fuck it wants. Again, quick list. Skirmety. Eh, this doesn't really feel like sex discrimination to us. Mahmood. You know, eh, these books kind of give me the ick and

make me feel like a bigot because I don't like gay people. Like, this is not judging because they only care about the interests on one side. In Mahmoud, the standard they adopt depends on whether the books are a normative message. It's a burden of the same character. It's an objective threat, not law, nationwide injunctions. Vibes are just different than the Bill of Peace. In most of their opinions, it feels

like you could pick out the sentence or sentences that contains the quote, rule or quote, reasoning, recite that sentence, and then then say the aristocrats. And you'd have like a pretty good joke. And the legal reasoning and rules announced in these cases are about as lawlike as if Sam Alito was performing a rhythmic artistic gymnastics dance routine like in old school.

It's just the do the vibes seem off standard. Do not do that to Will Ferrell. Sorry. I'm sorry. I will not stand for this Will Ferrell erasure. It's not Will Ferrell erasure. It is reviving this image of Will Ferrell and inviting people. But with Justice Alito's head on him, and you know. I know no one wants to visualize that.

OK, sorry. I'm sorry. I've had to visualize and read a lot of things I didn't want to. So all's fair. All's fair. OK, so those were the, I think, the big themes we wanted to work through. I think there were some other assorted topics maybe to reflect on over the last term, one which we've really already gestured at, which is just the vision of Justice Jackson and her willingness to call out hypocrisy. We've mentioned her dissent in Diamond Energy, which

was just remarkable in talking about the perception that moneyed interests enjoy an easier road to relief in this court than ordinary citizens. So too was her epic, iconic footnote, 12, in Stanley, calling bullshit on textualism. I can't and won't read it all now. Recommend to our listeners a track of Ellie Mistal reading it to the track of ether.

So the last line, I'll drop. Really far from being insufficiently pliable, I think pure textualism is incessantly malleable. That's its primary problem. And indeed, it is certainly somehow always flexible enough to secure the majority's desired outcome. So this was definitely the spiciest footnote of the term. It might even give Caroline Products footnote

for a run for its money for the spiciest footnote of all time. But I just want to make clear, she is true to this game, but she's not new to this game. So let's go back to last term in Snyder, where Justice Jackson wrote a very spicy dissent, where she observed that the tortured tortured faux textualist reading of a public corruption statute was one that quote, only this court could love.

Yes. And she opened that opinion by noting that when public officials are on the grift, you could lose faith in your public institutions. So she's never been here for the bullshit. And I kind of loved that she really stepped up the truth telling this term, which I think helps explain the sharp rebuke from Justice Barrett

in the Trump versus Casa opinion. I think Justice Barrett was not only commenting on Justice Jackson's very on-point dissent in the Casa case, I think she was actually speaking for the entire conservative supermajority that is probably more than a little PO'd that Justice Jackson continues to take them to the woodshed over and over again in her dissents. And I think they're really tired of her calling public attention to their absolute bullshit. I think that helps explain perhaps

why Justice Barrett may have gotten this quite unusual assignment for such a junior justice. I think it's clear that the supermajority is not happy with what Justice Jackson is doing, but I also think the Chief Justice probably realizes that the optics are really fucking poor if he or one of the more senior male justices takes KBJ to the woodshed in an opinion. And so instead they enlisted Justice Barrett to write this decision and in the process to be the one to publicly chastise her

colleague. So it looks maybe a little better, girl on girl crime. And there are more peers than anything else. But I think it would have looked really, really bad if the chief justice had been the one to do this. That's super interesting. I think I agree. It's a really interesting theory. I wonder what we make of. There was just this really interesting contrast

in the Barrett majority opinion between the way she talked about the such a mayor descent, the principal descent, which it is technically, but she kept saying that. That's a descent that I disagree with, but I respect. And that other descent, that's not even doing law. We're not going to take it seriously. I mean, it was really striking.

Oh, not doing law. Not doing law, you say. Did you read Brett's separate writing, girl? Wait, so Kate, I think this is so interesting in view of the Jodie Cantor profile of Justice Barrett, where she mentioned specifically that there is some kind of friendship between Justice Sotomayor and Justice Barrett.

Oh, interesting. And Justice Sotomayor has given gifts to Justice Barrett's daughter or whatnot. And it also reminds me of last term in the Eddie Warhol case, where Justice Sotomayor wrote a majority opinion and Justice Kagan issued a very stinging dissent. And I said on the pod then that it surprised me how barbed the dissent was, because I don't think anything

Justice Sotomayor was saying was anything that Justice Ginsburg would not have said when she was the one writing those IP decisions. And I don't think Justice Kagan would have come at Justice Ginsburg in that way. And maybe there is a similar kind of thing here. Maybe there's just a kind of grudging respect between Justice Barrett and Justice Sotomayor

that just isn't there between Justice Barrett and Justice Jackson. I also just like, I really loved Jackson being as explicit in not just this term, but you're right to mention Snyder from last term, about the deficiencies of textualism as a method. And I just think it's so refreshing. We're not just all going to embrace textualism as a method. And I just think it's so refreshing. We're not just all gonna embrace textualism

and offer our like sort of slight variations on it. And I mean, I actually think she really does take text very seriously, but in context and not in isolation. And I just like, I- She's a district court judge. She used to be on the Sentencing Commission. She knows from text. Completely, and she's just better at it.

And she has no patience for the way they do it. And just made me wish I used to teach legislation as a law school class, and I don't teach it anymore. But I would love to teach some of Jackson's statutory cases if I were ever teaching that subject again. They're great. Honestly, it's so refreshing, in part because I feel like at the various public law

conferences or conversations I am part of for the last however many years, even as a left leaning progressive, you know, Democrat, still saying you weren't a textualist put you in some sort of weird minority like, oh, you're, you're just not on board. You haven't gotten the message. And I feel like now, you know, with her platform, she is providing so much like support and ammo and it is just wonderful to you by Mint Mobile. You know what doesn't belong in your epic summer plans? Getting burned by your old wireless bill.

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I don't know if maybe that's not the right thing to call it, but I will just note that there were a number of cases decided on a 7 to 2 fracture because Justice Kagan joined the conservatives. So RGR Vapor was one, Diamond Energy, Stanley versus City of Sanford. Any theories as to why Justice Kagan left Justice Osoda-Mayor and Jackson out in the cold on these cases? And I will also note that these were some of the cases where Justice Jackson penned her most stinging dissents against the majority. What's going on here? Is Justice Kagan extracting compromises for her vote?

I don't think her vote makes much of a difference with a 7 to 2 fracture. I mean, they're fine without her. What's going on here? Is this just sort of more appeasement? That's what Micah Schwartzman at UVA has called it in the context of the First Amendment. I'm confused.

I really don't know. I mean, Justice Kagan authored the non-delegation case, FCC versus Consumers Research. It's just hard to know what is going on behind the scenes. And I think I've said this before, and it's something we've talked about. But it's so hard to know the internal dynamics at the court and the extent to which the Democratic appointees

or any Democratic appointee feels like if I peel off more or all the time, are these guys really going to go even full on crazier in more sets of cases? Like they truly are enough snowflakes where that's not impossible for me to imagine. And I, you know, I don't know how to strike the right balance, you know, diamond energy. That case is one where Steve Vladek and I talked about this in the episode you all unfortunately had to miss.

We are both sympathetic to broad theories of standing. So on the merits, I think they are probably right that there is standing. I think their decision to decide the case is appalling and is revealing of the kind of selectivity that Justice Jackson rightfully criticized them for, including on standing doctrine. But yeah, I don't know.

And I'll just say, I think she's she's a very kind of careful and tactical thinker and writer, and it is entirely possible that she, through the process of, you know, draft revisions that circulate inside the court, she was able to extract some concessions where language she thought would be destructive in other areas of the law, and she was able to sort of smooth those over or, like, get them actually taken out. So certainly, like, she may have made these one-off decisions that I think in aggregate, it is a little hard to understand. But on an individual basis, actually

may have been totally rational and helped blunt the negative force of some of these opinions. Hear me out. I just worry that appeasement is not really a strategy here. Thinking back to Justice Breyer and Trinity Lutherans, that did not forestall the flood of absolute ass hat decisions on the First Amendment that the court produced. And I'm also thinking of her joining the dissent in Ramos.

When was that? Back in 2019. And I understood then, I think she telegraphed pretty clearly, that she was joining them in order to make a point about stare decisis and the continuing vitality of Apodaca versus Oregon, a decision decided in 1973, the same year as another embattled decision.

And that still did not forestall what happened in Doves. It didn't forestall it. As we've kind of speculated before, it might delay some of the impending doom. We got to cut for exactly three years out of that. Three more years of the Establishment Clause. Again, I don't know. And I am also super skeptical of the appeasement strategy.

It is not obviously where I lean. And I do think this difference in the justices posture relates to another thing that was said on the episode with Steve that I was mentioning and that's something Mike Sachs said which is Justice Jackson as the model of the post-Obs justice who recognizes that appeasement fails. And that is not the strategy. You need to construct and build something new and advocate boldly for an alternative vision.

I'm going to say what I mean plainly then. I think this appeasement strategy in this particular moment where it's a six to three court and there are two women of color among that minority, and you are the third person. I think when you depart, even on these cases that look not so consequential but are actually quite consequential, you leave the other two open to tons of charges from the conservatives about the stupidity, the lawlessness of their reasoning

when, if you join them, you could insulate some of that talk. And I think I'm not sure that the appeasement is worth what you're losing. That's a super great and important point. Because I feel like in some ways what you're saying is that Justice Kagan might be ignoring some important context in which the court is deciding cases in the same

way that the Republican justices in the super majority ignore the context of the Trump administration, right? And like not situating your decisions in the moment we are in, right, is, you know, yeah. I wouldn't say those are comparable, right? But like, yeah. But for sure, like there are real costs involved. And I think, Melissa, you highlighted those really, really well. Okay. So another thing I want to pause over. So we've talked, obviously, about Kagan and Sotomayor and Jackson and Barrett. Let's talk about the chief a little bit. And I want to maybe raise a couple of things. One kind of the chief's role and how central that is in the court's orientation toward

Trump in this past term. So at the end of the term, the chief justice offered some remarks at a judicial conference, quote, if you have somebody who's expressing a high degree of hostility to the court on whatever basis, the danger of course is somebody might pick up on that. And we have had, of course, serious threats of violence and murder of judges just simply for doing their work. So he's so close to actually identifying the problem, and yet does not seem able to actually internalize that Donald Trump is the guy in the hot dog suit, or maybe John Roberts is, or maybe they both are.

No, the Chief Justice is, like, the Chief Justice is Hi, I'm the problem, it's me. Begging for the guy in the hot dog suit meme, like, sir, we're all trying to find the guy who did this. Yeah, but Trump is a big part of it. Yes, but this is some of what I'm talking about with the anti-Anti-Trump court.

The timing of the signals, don't call us, Supreme Court, out for our complicity in what the Trump administration is doing. He's signaling that's just like when Donald Trump posts pictures of judges and their families and invites death threats against them. I just don't even know if he is able to grasp that Donald Trump is as culpable as he is. Maybe he is, I'm not sure. Or that he is as culpable. So the point is that Roberts is culpable.

I'm just not even sure he realizes about Trump either. I don't think he thinks either of them is responsible. But I also just kind of wanted to pose this question, which is, what do we think about Roberts in this moment and the Roberts court? So remember, obviously, we've now been doing this podcast for over six years. So I remember after Dobbs, it really felt,

and we really talked about Roberts having lost control of his court, right? So he doesn't join the majority opinion that overrules Roe and Casey. It doesn't feel like they need him or care what he would like the court to do, how fast, how radical, any of it. And I just wonder whether in the wake

of the immunity opinion and his rate of 95% presence in the majority in opinions this term, and this is really, really high. He was in the majority in almost every case. I guess is it again his court in more than just name? What do you guys think? Well, we definitely talked about this last term with the Clean Water Act case. I mean, he gave Justice Alito the most parsimonious docket

to write last year. And I think that was intentional, sort of like, I'm the captain. I'm really the captain, and you're not. And get it together. I think he has been wresting control back from the hardcore conservative block.

And I say hardcore conservative block advisedly, because I think to call them hardcore and to take Roberts out of it is to suggest how far to the right the court really has moved. But I do think this is his court. I mean, I think he's making decisions. Some of them, I think, are really strategic, as I said, with the choice of Justice Barrett

for Trump versus Casa. I think he allowed her to carry a lot of water and take a lot of the heat for the whole conservative supermajority. Yeah, I think it is his court. And I think it's his court in part because he is on board with a lot of what they are doing. And so they are doing.

And so they are traveling together, and he is authoring some of the worst decisions in those respects. So let's cover a bunch of additional smaller themes. One, foreign law in the last term, I think, played a pretty interesting role. So once upon a time for our younger listeners, it was anathema for

conservative justices to consider or cite foreign law. Our constitution was all but mattered and it was something I would say akin to lawless to even consider the practices or legal regimes of peer nations in deciding what the constitution or laws in the United States meant or required. So an example of that is Justice Scalia's absolute hissy fit over the nod to foreign law in Justice Kennedy's majority opinion in the 2003 case Lawrence versus Texas. So the court then 20 plus years ago was firmly of the view that foreign law or citations, even in passing to it, were bad for limiting the government's ability to criminalize consensual sex

between adults. But all of a sudden in 2025, if you read Justice Alito's opinion in Scrabetti, it is totally fine to cite foreign law if the goal is to uphold the government's ability to dictate medical treatment for other people's children. I think that's a really good point. Foreign law is great when it allows us to get to our desired outcome.

It's almost like we're an outcome-determinative court doing vibes, not law. But who said that? I'll say the other point that we ought to focus on a little bit is the way in which these justices seem to have a really hard time figuring out their own docket. So I thought it was really telling and very on brand for this group that I think, as Leah points out,

has struggled with this law thing quite mightily over the last couple of years. They really could not figure out why they had taken some of these cases. So there were three digs this term. A dig is a situation where the court decides that certiorari was improvidently granted and the case is subsequently dismissed.

There might be lots of reasons why you would dig a case. Maybe you've decided on reflection that this is an improper vehicle for deciding the issue at stake. Maybe the facts aren't sufficiently well developed. Either way, a dig kind of suggests that maybe you should have done a little more upfront reading. And the court did a few digs last term.

There was the very famous dig in the Moyle case with the conflict between the federal law, EMTALA, and the Idaho abortion law. And this term, they digged three other cases. So there was the Nvidia case that they digged. There was also Facebook versus Amalgamated Bank, another dig. And then the LabCorp case, which was also dig. And it just, again, we've talked about this before

on the podcast. The fact that they figure out later that maybe these aren't good cases to be deciding suggests that at least some portion of the court is in such a rush to decide certain issues, that they just give their votes for cert, they get the four, they put it on the docket. And then they're like, oh, wait a minute, this really is not what we should be doing. And that's one of, I think, the dangers of a super majority, where you don't have to be really considered, where you don't have to think about where your votes are coming from on final review. And you can just take stuff.

And they have been taking stuff. Yeah. Another theme to highlight is selective starry decisis. So I think it's pretty clear that starry decisis is still for suckers, just not all the time, right? Some of the time. So let's play a clip from kind of a smaller case from this term, Royal Canaan, because it has Justice O was on the court of appeals for 15 years. If I saw a strong dictum in a Supreme Court decision, I would very likely just salute

and move on. But here, we have more of an obligation. It depends, Justice as so to my heart. Just to take an inventory so we're all clear about where we stand here, stare decisis is apparently okay in the context of Yoder versus Wisconsin allowing the Amish to opt out of compulsory high school education, Godaldig versus Aiello, where it is clear that any distinction based on pregnancy is not a sex-based distinction for purposes

of the Constitution, and any case that triggers Justice Alito's feelings. Those are all fine for stare decisis. Yes. But stare decisis is apparently not for Employment Division versus Smith, which says neutral, generally applicable laws that burden religious practices are constitutional. Also not for the court's previous First Amendment cases about restrictions on non-obscene pornography,

which had applied strict scrutiny, not intermediate scrutiny. Also Tolesky on the spending clause, which said you can enforce spending clause power legislation through the general civil rights statute a mere two years ago. Also, all of the cases involving nationwide injunctions against the Biden and Obama administrations, no stare decisis there. Correct. And stare decisis is very much TBD for Wong Kim Ark, the Supreme Court case, that confirms that the first sentence of the 14th Amendment means what it says, which is persons who are born in the United States are citizens,

regardless of the status of their parents. Also TBD, the cases the court has previously decided upholding the constitutionality of the Voting Rights Act. We don't exactly know what the court is going to ask the parties to brief in the Voting Rights Act case, Louisiana versus Calais, which will be re-argued next term, but it will not be good, whatever it is. The remaining parts of Buckley versus Valeo, the 1976 opinion in which the court did a bunch of things,

but in part found that the Constitution did permit some regulation of campaign finance. We will see if that endures after next term. And maybe just for good measure, all war in court decisions. TBD, for good measure, all Warren Court decisions. TBD, if any of them are still good law. Yep. We'll find out.

Really keeping my fingers crossed for Brown. I mean, I would say too soon, but yeah. If they overrule Brown, if they overrule Brown, they don't get to say Brown actually forbids efforts at integration, which you know they love to do. That's the upside of Brown. Yeah, that is the upside. Great point. Great point. Okay. So we want to highlight a handful of notable moments from the last year. One, you know, we've talked about this before, but it deserves one more turn.

Edith Jones coming for our friend Steve Loddick at a Fed Soc conference. We are not going to force you to rehear that moment. We will just remind you that a federal judge came to a panel with a Manila folder containing printouts of Steve's tweets criticizing single judge divisions. And she proceeded to read Steve's mean, I mean, quote mean, weren't even that mean, tweets and accuse him and not Matthew Kaczmarek of being the problem. This was a perfect indication of a judicial temperament. Give her a promotion stat. Edith Jones, read my social media posts if Steve's trigger you challenge. We should also say as we reflect upon the term that we are very grateful for all of you, the Strict Scrutiny fandom.

You keep us going in what has been some very grim times, this term. But I just want to highlight that it is not often that we get a rave review from one first street, a supreme review, if you will, which is why we were a little surprised but very gratified to read Justice Alito's majority opinion in Mahmoud versus Taylor. And it wasn't just Justice Alito's utter disregard for precedent other than Yoder that surprised us in that decision. In fact, it didn't really surprise us at all

because Justice Alito. Instead, what surprised us was that Justice Alito acknowledged publicly in writing that this podcast, Strict Scrutiny, is, in his words, appropriate. Let me read the quote. Justice Alito said, and again, I'm quoting, strict scrutiny is appropriate. Now, obviously, that is not necessarily the most overwhelming and enthusiastic endorsement, but we know that Justice Alito is not one to gush. So given that he's often a little bit stingy with his praise and because we know he is deep down in front of the pod, we're going to take it as a win and maybe make some t-shirts with it.

So thank you, Justice Alito. You heard it here, folks. Strict scrutiny is appropriate. It is his version of a five-star review, I am quite sure. You don't need to prove your age before listening. We are appropriate. We get strict scrutiny all the time. Oh, careful.

Don't give him any ideas. Age verification. What other verification for downloading our podcast. Anyway, okay. So we also wanted to highlight some highlights, lowlights, memorable moments from oral arguments. And let's start with a moment from Garland versus Vanderstalk, which was a case about ghost guns and whether federal law restricted their sale. I mean, yes, you heard me right. That case was this term, which really kind of underscores how much this last year has actually been one million years.

So let's play the clip. No, I want to stick with the definition of weapon for just a second. Oh, sure. I'm going to show you. Here's a blank pad and here's a pen. All right. Is this a grocery list? I don't think that that's a grocery list, but the reason for that is because there

are a lot of things you could use those products for to create something other than a grocery list. And so it's not like there are. If I show you, I put out on a counter some eggs, some chopped up ham, some chopped up pepper and onions. Is that a Western omelet? No, because, again, those items have well-known other uses to become something other than an omelet.

The key difference here is that these weapon parts kits are designed and intended to be used as instruments of combat, and they have no other conceivable use. I actually had the experience of putting one of these kits together, and it's just like what the record shows. There are usually only a couple of steps. The first thing that most of the kids require is drilling the holes. Usually it's six holes and you do it with the jig. That case was argued before Luigi Mangione. And I'm just going to say, I think Luigi Mangione may have been a deciding factor in this court, concluding that ghost guns fall within the

ambit of the firearm acts. I'm not even joking. Elizabeth Praelogger did an amazing job, but I think the real politic of that moment may also have been very determinative. That clip also highlights that earlier this year, we had a different SG, Elizabeth Praelogger. The transition from her to acting Solicitor General Sarah

Harris was also kind of an interesting one. But we then got another transition to John Sauer and all of that happened in just a single term, a term of three SGs. Um, it just boggles the mind really. So all that happened in a single term, but the, but John Sauer's assent happened in this calendar year, as did the TikTok argument that was in 2025. So was the Supreme Court's five for decision rejecting Trump's effort to block his sentencing in the New York hush money case that was January of 2025. You know, launching a million takes about Amy Coney Barrett as our savior. But also, I feel like I've aged 40 years and all that was January. Strict Strictly is brought to you by Stamps.com.

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Okay, so here's one rose or maybe bullet dodge, which was the court's decision in AJT declining to impose a heightened standard on students with disabilities raising claims under the ADA and the Rehab Act. There is of course an ominous Thomas concurrence thorn, which raises questions about Congress's constitutional authority to impose accommodation obligations on schools at all. But the majority opinion definitely was, I think, a rose. Also a rose in the court. Again, this is like how far we have fallen that these are roses, but they are given where we are.

The court declined to further upend administrative law and further hobble administrative agencies in both Braidwood about the composition of the Preventative Services Task Force and FCC and FCC versus consumers research, which was about the FCC's universal service scheme and the non-delegation doctrine. Tiny little rose I will note is that the dissent in Scrumetti cited an amicus brief we've mentioned on the pod authored by my dear friend, Isa Kohler-Hausman and my awesome colleague, Amanda Shainor. And it was a powerful enough discussion in the Sootomayor dissent that the majority tried, albeit unconvincingly, to respond to that argument.

I'm going to be brief here, because although this term was long, it was consistent. And I find, as the rose here, the fact that every lower court that encountered the birthright citizenship EO was like, yeah, that's obviously unconstitutional. And they did it all in under 30 minutes. I'm exaggerating, but it felt like that.

I also appreciate the lower courts essentially holding the line on these EOs eliminating the Department of Education, firing federal workers. Yes, all of these things really require congressional intervention. We should, again, highlight that. The separation of powers thing is a real thing. The thorn here, I think, is this administration,

this court that is facilitating this administration, maybe even effectuating and facilitating this administration at an equal measure. And of course, the cadre of oligarchs who apparently own us. Well, also the appearance of all of those oligarchs at the inauguration was just its own thing. So in my roses and thorns, I guess all of these are going to be roses slash thorns.

So one is Justice Kavanaugh's concurrence in Trump versus Casa. Steve Vladeck did a phenomenal one-first piece called The New Judicial Supremacy on it, basically exposing the extent to which Brett Kavanaugh, while ostensibly being kind of a formalist in the majority opinion, Justice Barrett being an anti-formalist in his separate writing, also assuredly saying,

I can and will solve everything even though the Supreme Court has never bothered to explain most of what they do on the shadow docket and insisting that the court would be in a position to provide a uniform interim rule even though they declined to do so in this case. So like Rose slash Thorne, Thorne in just its grotesque obliviousness, Rose in that it basically proves everything I've ever said about Brett Kavanaugh is right. Another Rose slash Thorne, Justice Jackson's dissent in Department of Education versus California. This was one of the dissents from one of the Shadow Docket orders

where she kind of broke the fourth wall and accused the court of giving the Trump administration an early win when they were ultimately going to lose on the merits for some sake of appearances that I just found fascinating. Thorn in that it was a descent you know same rose slash thorn energy to justice kegan's descent in trump versus wilcox in which the supreme court basically overruled humphrey's executor on the shadow docket. There she accused the court of favoring this president over our precedents, of creating a bespoke Fed exception, and saying the order allows the president to overrule Humphrey's by fiat. So those are my roses slash thorns. When you said that Brett Kavanaugh was

a formalist in the majority and then not a formalist in his own concurrence, it reminded me of when Strom Thurman passed away and they noted that he had fathered an African-American child out of wedlock. And the newspaper report that I read called him segregationist by day, integrationist by night. Oh my god.

Oh my god. Schrodinger's formalism is what I'll call this, I think, because I can't top that descriptor. So good. So I guess some additional news to note that's kind of related to fallout from this whatever it is we just concluded. So one is some fallout from the court's opinion in Scrometti.

In particular, on a recent orders list, the court did some GVRs, grant, vacate, and remand. So what those do is they vacate some lower court opinions and remand for the lower court to reconsider their decision in light of a Supreme Court opinion. And this was notable to me because after the chief said in the majority opinion in Scrimetti that the case wasn't about laws that discriminated

against trans people because the Tennessee law didn't discriminate against trans people and was just about a medical procedure. Wink. The court GVR to ton of cases about laws that did discriminate against trans people weren't just about health care and told the lower courts rethink this in light of Scrimetti, almost as if the limits in Scrimetti weren't real and were just some soothing BS. Add to that the court's rejection of the parental rights challenge in Skirmety. They opted not to hear a parental rights challenge to laws banning gender-affirming care for trans minors. Chris Geidner had a

phenomenal piece at law dork about this. SCOTUS's parental rights message, protect anti LGBTQ views, ignore LGBTQ people. This is part of why I don't trust these assets on birthright, like, or just one of the reasons. Like, they said Skirmetty was just about a health care band that didn't discriminate against trans people or on the basis of gender identity. Then they go ahead and ask the lower courts to take another look at a bunch of other laws outside the health care context that do discriminate against trans people. And on Thursdays, last Thursday's order list, in Montana versus Planned Parenthood, Samuel Alito, the author of Dobbs, wrote with Justice Thomas

that maybe the Constitution gives parents a constitutional right to prohibit their children from getting an abortion where state law allows it, i.e. the Constitution overrides some democratic political choices that the political democratic process might make about abortion. So, so much for leaving the question about the availability of abortion access to the political process. Also, the court just agreed to take up next term the constitutionality of state laws that exclude trans women and trans girls from participating in women's and girls sports.

Not surprising given the eagerness of Justices Barrett, Alito, and Thomas to address the question of whether trans people constitute a protected class, but still add to this a recent 11-circuit decision that held that a transgender schoolteacher had no First Amendment right to refer to herself with she, her pronouns when Florida law prohibits her from doing so. The court reasoned that when the teacher is in front of the classroom and engaging with students, she is a government speaker and representative of the government and, accordingly, can be required to misgender herself.

Obviously, this outcome would have been completely different if the trans teacher were also the school football coach who articulated her pronouns on the 50-yard line at the conclusion of each game, because then she would not be a public employee. I see. You know, the 11th Circuit did reject an analogy to Kennedy versus Bremerton School District in this case, you know, because religion slash trans people, you know, line up this 11th Circuit decision with cases in other

courts of appeals that say teachers have a First Amendment right to misgender students, i.e. they cannot be forced to address trans students with their correct pronouns. And ladies and gentlemen and non-binary listeners, what we have is a doctrine that says the First Amendment just protects your right to misgender people. It doesn't protect your right to use correct pronouns. It is just the perfect encapsulation of lawlessness and how they are fashioning the law just to require the Republican Party's views. Hold up your book.

Always be closing. Okay, good. Good. This is my book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes, if you haven't heard me talk about it. The New York Times Book Review recommended it, even though they called my humor somewhat cringe. I think I'm funny, though.

So do we. So do our listeners. We do. OK. On a less funny, more somber note, Kilmar Abrego-Garcia, the man who was wrongfully expelled to El Salvador because of a clerical error, has filed an amended complaint

in his case in the District of Maryland. The complaint asks the court to return Abrego Garcia to Maryland and restore the status quo that was in place before he was expelled to El Salvador. And this is the really important part, I think. The amended complaint now contains allegations about what actually happened to Mr. Abrego Garcia while he was in CICOT, the Salvadoran mega prison where he and all of the other individuals who are deported to El Salvador were held.

To our knowledge, Abrego Garcia is the first person released from CICOT. So this would mean that this amended complaint is the first first-person testimony from someone who is able to actually account for what he witnessed happening in CICOT. And I'll just be very clear here. What he alleges in the amended complaint is absolutely horrifying and shocking.

It made me ill reading it. So this is your heads up listeners. We are going to recount some of what is in the amended complaint. Yeah, because if you haven't actually had a chance to read it, I think it's important for us to describe some of its contents. So the complaint describes how upon arriving at CICOT, Arrego Garcia was repeatedly struck by officers when he attempted to raise his head. He was told quote, welcome to CICOT, whoever enters here raise his head. He was told, quote, "'Welcome to Seacot. "'Whoever enters here doesn't leave.'

He was forced to strip. He was beaten more. He was struck in the head. Frog marched to a cell where he continued to be beaten. He describes the next day, his body being covered with lumps and bruises. He and others were then required to kneel from 9 p.m. to 6 a.m. in their cell with guards

beating anyone who succumbed to fatigue and toppled over. They were denied access to bathrooms. Bright lights remained on for 24 hours a day. Prison officials repeatedly told Brigo Garcia that they would transfer him to the cells containing gang members who, they assured him, would tear him apart. He observed prisoners in nearby cells who he understood cells containing gang members, who, they assured him would tear him apart. He observed prisoners in nearby cells, who he understood to be gang members, violently harm each other without intervention from guards or personnel.

Screams from nearby cells would ring out throughout the night without any response from prison guards or personnel. He lost 30 pounds in the course of two weeks, which I actually didn't know was even physically possible. What is there to say about this? This is what the Trump administration has done to more than 200 other people. And again, there's a lot in MAGA world

about these individuals being criminals, and somehow they deserve it. But I just want to note that at least one of the individuals who is in CICOT is a young gay makeup artist, Andre Hernandez Romero. He was the one who cried out for his mother when he had his head shaved at CICOT that was documented and then broadcast.

Regardless of what you think of the individuals who the Trump administration is targeting, this is absolutely inhumane treatment, just absolutely shocking and inhumane treatment. And just as a reminder, in addition to Romero, the Cato Institute research that we have talked about on this podcast makes a very compelling case that a tiny subset

of this 200-plus population has any kind of documented criminal history or even immigration infractions. They have tattoos. That seems to be the whole case against most of them. Yeah. Yeah. They have tattoos and they are brown. Yeah. Which again, if you were wondering how this administration was going to go about enforcing its immigration policy, I think racial profiling, tattoo profiling is pretty much the answer. And think about where that goes. And this is the administration that this Supreme Court insists

on treating as any other, as just a regular administration, while granting them a seemingly ever-expanding set of powers. The presumption of regularity is quite broad. Yeah. As we've said, this term has been a long one. So we thought we'd play a mashup of some of the memorable moments from oral arguments over the last term as a look back at warp speed. So are you ready for it? Let's do it. Here we go. Yeah, the book has the book has a clear message and a lot of people think it's a good message.

And maybe it is a good message. But it's a message that a lot of people who hold on to traditional religious beliefs don't agree with. I don't think anybody can read that and say, well, this is just telling children that there are occasions when men marry other men. Uncle Bobby gets married to his boyfriend, Jamie,

and everybody's happy and everything is you know it portrays this everyone accepts this except for the little girl Chloe who has reservations about it but her mother corrects her no you shouldn't have any reservations about this. So Pride Puppy was the book that was used for the pre-kindergarten curriculum. That's no longer in the curriculum. That's the one where they are supposed to look for the leather and things and bondage, things

like that. It's not bondage. It's a woman and a leather. Sex worker, right? No. No? That's not correct. No.

Gosh, I read it. Drag queen and drag queen. Drag queen and drag queen. The leather that they're pointing to is a woman in a leather jacket. And one of the words is drag queen in this. And they're supposed to look for those. It is an option at the end of the book. Yeah.

Okay. 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 studies school or you're a science-based school or you're a Chinese immersion school or you're an English grammar-focused 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 except religion. No, we can't do that. We can do everything else. That seems like rank discrimination against religion.

And that's the concern that I think you need to deal with here. So one of the parties here is the owner of Pornhub, right? Yes. And what percentage of the material on that is not obscene as to children? Well, Your Honor, if we're talking about the youngest minors, I would agree that most of it is, and that is how we read a lot. But is it like the old Playboy magazine? You have essays there by the modern-day equivalent of Gore Vidal and William F. Buckley,

Jr.? Not in that sense. All right. Let's go down to what's the second most popular porn site? I, Your Honor, I don't have the... You don't know you represent these people. What the school district has said, which is what Monahan said, is... You believe that Mr. Martinez and the Solicitor General are lying?

Is that your argument? An oral argument, yes, absolutely. It is not true that we... I think you should be more careful with your words, Ms. Blatt. Okay, well, they should be more careful in mischaracterizing a position. Ms. Blatt? Yeah? I confess I'm still troubled by your suggestion that your friends on the other side have lied. Okay, let's pull it out.

I think we're going to have to here, and I'd ask you to reconsider that phrase. An oral argument. If I might. It was incorrect. If I, if I, incorrect is fine. Oh, lying. People make mistakes. Okay. You can accuse people of being incorrect, but lying, Ms. Blatt, if I might finish. Sure. Lying is another matter. 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?

No, only because of the text. Ms. Blatt. Okay, well, you, I mean. 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? Fine, but what I'm objecting to. Fine.

Fine. Then would you withdraw your accusation? I'll withdraw it. Thank you. That's it. And the government doesn't care about that. I mean, the government is fine with you doing that. You can invent it yourself.

It doesn't even care what content that displays, cat videos or whatever. I agree, but then the question I would ask if the government said that, which I think kind of in the reply brief, maybe the government does say that, is that how on earth are you then serving a national security interest? You know, if all you're doing is just saying we don't like a foreign country rearranging cat and dance videos, like, it's hard to come in and make a national security argument. That's your best argument is that the average American won't be able to figure out that the cat feed he's getting on TikTok could be manipulated, even though there's a disclosure saying it could be manipulated.

Kagan-Kleinman. That's true of every search engine. I mean, you can take any of these algorithms, whether it's X or whether it's, you know, you name it. What are the new ones? Blue Sky? I mean, none of these are apparent, right? You get what you get, and you think, that's puzzling.

And. I mean, I don't know if she, I guess the pool is probably not deep enough for her to get crushed in it, but it's, the gravity is dragging her down in the pool. There's an internal process going on in her body whereby her life is sucked away from her. I apologize, I'm not a doctor. I couldn't quite tell you what happens with asphyxiation. But the body's going to be attacking itself there, gasping for air, eventually die. I'm just going to ask you to put yourself in a different frame of mind. Hard to do.

Assume something you won't want to assume. But the assumption that I want you to make is that on the merits, which, of course, you did not take to this Court, on the merits, you are wrong, that the EO is unlawful. And I want to ask you, if we assume that, how do we get to that result on your view of the rules? It is very difficult for me to adapt the hypothetical, but I will. I think that that's the important question in this case. Let's just assume you're dead wrong.

I think assume you're dead wrong is an apt place to let this term recap rest. So we're out. That's probably right, Although the detailed graphic description of drowning also really spoke to me. Eric Fagan was describing the experience of the last term for so many of us. Yes.

He didn't even know it. Closing thoughts, any? This is grim as fuck. Yeah. Yeah. I mean, I just I may be a closing thought as a looking forward thought, which is this was so grim and next term is also going to be insane, if anything even crazier. So between the transgender athletes case, the Voting Rights Act, re argument that we've mentioned already the huge campaign finance case, possible return of birthright citizenship, and the constitutional challenge to independent

agencies. In addition to all of the many shadow docket cases, which again, as Vladek reminds us, the court is still sitting on a bunch of. So it's not like we get to rest and recharge until October. This is going to be a crazy summer and then an even crazier term. And let me just throw into the mix that depending on how the political landscape develops over the course of the next six, nine months, there is a very real possibility of retirement announcements. I would think been, you know, by January, I would, if I had to guess, because if the Senate map looks like it might result in the Democrats attaining a Senate majority, one or both of Alito or Thomas I think will very likely announce. Justice Eileen Cannon or Emile Beauvais. Gosh, oh my gosh. Yeah. Next year. Yeah. Okay,

highlights. Okay, I will do. We need a positive note. I will do a positive note and play the role of Kate Shaw, given the bleakness that Kate just offered us. We've turned Kate. We've turned her. It's been a few turns now. I think I have been turned. No, Kate.

You were trying valiantly to stay in the light, but we brought you down. Leah and I got our hooks into you, and we made you dark. Well, and I mean, so did Sam Alito. Yeah. As a peace offering, last week the Wisconsin Supreme Court issued their much awaited decision on whether the state's 1800s abortion ban, complete and total abortion ban, remains in effect in the Badger State.

The progressive majority on the Wisconsin Supreme Court said that the state's 1800s-era abortion ban is not in effect because the Wisconsin legislature effectively repealed that flat-out ban by creating a comprehensive set of regulations on abortion. So as a result, that prohibition on abortion not going to go into effect and allows abortion access to exist in the Badger state. Wanted to highlight not just the great majority opinion by Justice Rebecca Dalot, but also a separate writing by now Chief Justice Jill Kowrowski. And in Chief Justice Kowrowski's concurrence, she has a section that is about honoring

their lives and their stories in which she names women who have died recently because of abortion restrictions, Candy Miller, Amber Thurman, Gisselle Barnica, and she notes that not only should those women be alive today, but that their suffering and experiences were foretold by the suffering of women generations ago and she talks about her great-grandmother, Julia Cowan, dying because she sought to obtain an abortion during an era when abortions were prohibited. So I think an extremely remarkable, powerful writing and an outcome that also reminds us that courts can be better

and they can do better if you fight for them. And if you have the chief justice of our hearts actually serving on courts. Nothing but respect for my chief justice, Jill Krosky. Amen. All right. Let's close up with some favorite things just to give people something to do over the summer. I'll start. One of my favorite things in the last couple of weeks was footnote 12 of Stanley versus city of Stanford, where the justice of my heart, Justice Katanji Brown Jackson,

dragged Neil Gorsuch for filth, calling his textual healing faithless and outcome determinative. So inject that into my veins. I'm just going to keep reading it over and over again. That is my ASMR, and I love it. I will also note that I really enjoyed Emily Bazelon and Mathias Schwartz's New York Times profile on Judge Amir Ali's first seven months

on the district of the District of Columbia. I think it's always really interesting to think about how judges set up their chambers and sort of adapt to the project of being a new judge. And I think doing so in this particular moment was especially challenging. And I think this is a really good examination of those challenges and what that was like.

Also want to recommend Linda Greenhouse's, this is the real impact of the Supreme Court's planned parenthood decision. That's an op ed piece in the New York Times on Medina versus Planned Parenthood of South Atlantic. Really fantastic. And then finally, I will just note a note that I read. And the note is titled When Rational Basis Review Bit. It is featured in the Harvard Law Review. And it's a history of rational basis review that is tethered to a discussion of a Louisiana case in which a widow

lost her job arranging flowers at a local grocery store because the state of Louisiana requires that such floral arranging be done by licensed florists. So it's a great piece just of legal history and a really wonderful piece of student writing. Regrettably, the student isn't identified, but I just wanted to highlight this as something that I really enjoyed reading. So I have a slew of things. Several of them are term recaps. It's not like I want to consume more content on the Supreme Court, but there's so much great writing being done

about the moment we are in that I want to highlight a lot of it. So Steve Lattic's post at 1 1st Street, which I've already mentioned, A New Kind of Judicial Supremacy is, I think, just a terrific piece on Trump versus Casa and the context for the term. Ellie Mistal's piece in The Nation, Samuel Alito Takes Pride in Gay Bashing, very pointed, powerful takedown of Mahmood versus Taylor. Sherrilyn Ifill's post, A Court Without the Range on Sherrilyn's newsletter on Substack, also on Trump versus Costa. Kate, I love your piece in the New York Times,

A Culture of Distain, the Supreme Court's actions speak louder than its words. Another recent piece, I liked Alexandra Petraez in The Atlantic with the big, beautiful bill, You Can Now Sponsor a Billionaire of of your choosing. She moved to the Atlantic in case listeners weren't aware and were looking for her. In the slightly lighter fare, Andor Season 2 has just been a wonderful show to watch in the midst of rising fascism because it is about living under and resistance to fascism. Lorde's recent album, I know it's- What was that? It's received mixed reviews. I liked it.

So I also loved it. I love current affairs. I love broken glass. I love shapeshifters. I really like the album. Like slash love, Donald Trump announcing Trump fragrances and the video announcement of the Trump fragrances, just the specter of the president hawking his perfume and the website get Trump fragrances.com.

I don't know. I mean, from Jimmy Carter selling his peanut farm to Trump fragrances.com. It really is just the arc of decline of a once great nation. Sorry, Melissa, I interrupted you. No. Did you all read the New York Times story last year about how teenage boys are, or pre-teen boys, are really into scent-maxing?

Yes. Or just like they're really into cologne? Yeah. I would like to see how the teenage boy audience responds to Trump fragrances. I think this will really be telling. Are they truly red-pilled, or are they still up for grabs if they say no to the Trump fragrances?

I am also, I know no one who owns it. I don't even know if you can actually get it yet, but I am sure it smells like trash. I am sure it is a viral product. It smells like an emolument. Yep. No, our candles smell like emoluments, and those smell good.

So this doesn't smell like that. I don't want to associate it. I do love our eucalyptus candle. Our eucalyptus candle slapped so hard. I love eucalyptus as a scent. This is not what that smells like. It smelled like the inside of a private jet. So that's true. Like a Qatari private jet. It was amazing. That's true. I'm just going to make a few additional recommendations. One Bob Bauer I thought had a really good piece in his executive functions sub stack about the appalling decision by Paramount, the parent company of CBS,

to settle the lawsuit filed by Trump because Trump didn't like the way 60 Minutes edited an interview with Kamala Harris before an election that Trump won. No plausible legal theory of injury gives Trump any chance of winning, I don't think. But the real politic of this is that CBS is looking for a buyer and yeah. They want to stay in the good graces of this administration and it's a vile blow to the

rule of law and to journalistic independence and I'm glad that Bob was as unsparing as he was about it. Couple of other things. One, a study published last week in The Lancet about the monstrous human toll of the decision by Elon Musk, Doge, and the Trump administration to destroy USAID and the United States' foreign aid. So these researchers, there's like 10 authors on the study, they estimate that if the current cuts continue until 2030,

so that is just five years from now, up to 14 million people who otherwise would have lived will die, including over 4 million children. It is impossible to get your head around those numbers. Party of life. Yeah, exactly. I did wanna mention the Times Book Review that includes Leah's book, which I guess doesn't like bean girl references, but is otherwise a fantastic review. And it was

in the context of kind of a group review slash recommendation of a number of SCOTUS books. The author of the review is Alexis Coe. The title of the piece was Great Books on American History and the Supreme Court, although I think the headline has changed. But it includes not just Leah's wonderful lawless, but also Rebecca Nagel's By the Fire We Carry, Anthony Lewis's classic Gideon's Trumpet, Richard Kluger's classic Simple Justice. So kind of a good summer SCOTUS reading list if you are looking to go deep on various eras in the Supreme Court's history. And then two books I haven't read yet, but that will be out this fall, and I am beyond excited to read.

So one is Arinn Carmon's Unbearable, Five Women and the Perils of Pregnancy in America. And the other is the Harvard historian, Jill Lepore's, We the People, a History of the US Constitution. I love basically everything Lepore ever does, and I cannot wait to read that book. Yeah, so I got an advanced reader copy of Arinn's book. It is fabulous.

And I will be plugging it when we do our Dobbs retrospective later this summer, and also look forward to hopefully discussing it with her on the podcast. Awesome. All right, before we go, listeners, let's take a beat to fill you in on what our plans are for the summer.

I will be getting on a private jet with my emotional support billionaire to go to a fantastico location somewhere in Europe. I'm just kidding. We're going to be here. We're going to be doing lots of episodes. We probably will not be done with the Supreme Court beat because shadow dockets are going to shadow docket,

and we're going to be there. So just so you understand, over the summer and through the beginning of October, the Supreme Court doesn't hear oral arguments. So there won't be any cases for the court to issue bad decisions in on the merits docket, at least for the summer. That doesn't mean they will not issue some terrible decisions

on the shadow docket. So least for the summer. That doesn't mean they will not issue some terrible decisions on the shadow docket. So we are going to be covering that. There will still be legal news. We will be covering what the lower courts are going to do as they try valiantly to do their jobs with one hand tied behind their back. That's a whole different story. We'll also be covering what Article II will do now

that they have been emboldened and facilitated and effectuated by Article 3. So this is all to say that we will still be in your ear holes with a combination of legal news. We'll also have some deep dives on books that we love and certain evergreen topics that we think you would like to know about. So we are still going to have a hot, strict scrutiny summer, a very appropriate hot, strict scrutiny summer, and we hope that you will join us. Just a quick note about the summer episodes,

in part because it is the summer. There will be some episodes on which not all three of us might be hosting, but don't worry, we will return in full force once the new term begins. And there will be some episodes in which all three of us might be hosting. But don't worry, we will return in full force once the new term begins. And there will be some episodes in which all three of us are on as well. We have to have time for our emotional support billionaires.

Please understand. Exactly. They impose a lot of demands on us. And who are we to say no? So as we wrap, just want to say thank you to our listeners for supporting the show and making it possible amidst this hellscape when there are so many things

to focus on and pay attention to. We really do appreciate you sharing your time with us. We loved the chance to meet a lot of you in New York and DC at our live shows this summer. We'll be in Chicago in October and other locales to be announced soon. So we really hope we have a chance to meet more of you in person soon.

So also in the spirit of closing, I will just make one final plug for my recently published book, Lawless, How the Supreme Court Runs on Conservative Grievance, Fringe Theories and Bad Vibes. Look, I wrote a book. I'm kind of proud of what I did. I enjoyed it. So I'm going to plug it. But I recognize that there is a moment

to stop doing a lot of things. And that moment is probably now, at least until the paperback edition comes out. Although that might not stop me from noting things when the court does then the call to mind the book. It's your podcast, Leah. You don't have to stop. Republicans in Congress just passed

one of the cruelest and least popular pieces of legislation in history. It's going to kick millions of people off their health care so that billionaires and millionaires can get another massive tax break. Many House Republicans who voted in favor of this bill won in their states by slim margins and they're up for reelection next year. We can vote them out and win back the House and stop future awful legislation of this sort and hold these individuals accountable. You can donate to Vote Save America's Take

Back the House Fund to support must-win state House races next year. Just go to vote save America dot com forward slash house for more. This is paid for by Vote Save America and you can learn more at vote save America dot com. This ad has not been authorized by any candidate or candidates committee. And one more summer reading alert. Amanda Littman's new book, When We're In Charge, which you should know about because Leah had a great conversation with her on the pod a couple of months ago, is out now from Crooked Reads. It's a guidebook to leadership for the next generation from the founder of the wonderful organization Run for Something. And it's the

newest release from Crooked's publishing imprint. When We're In Charge makes a great gift for new graduates, for friends celebrating a big promotion, or really anyone looking to up their beach reading game this summer. Plus, you can complete your book look with an accompanying tote if you head to crooked.com slash store for the exclusive tote bundle. Or you can just head straight to crooked.com slash books to get the book. Strix Hrutny is a Crooked Media Production hosted and executive produced by Leah Lippman, 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 Landis. Our music is by Eddie Cooper. We get production support from Madeline Herringer, Katie Long, and Ari Schwartz.

Matt DeGroote is our head of production, and we are thankful for our digital team, Ben Hethcote 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 Strict Scrutiny Podcast.

If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.