Strict Scrutiny - A Very DC Saturday Night

Episode Date: June 24, 2024

As we wait for SCOTUS opinions in cases about presidential immunity, emergency abortions, the future of the administrative state, and more, we did a rowdy live show at the Howard Theatre in Washington, DC! It was  one for the books-- The Second Gentleman, Doug Emhoff, joined us to reflect on the second anniversary of Dobbs. Friend of the pod Commander Steve Vladeck filled in as guest host. And former Attorney General Eric Holder joined us to talk about the Court's decision in a case about domestic violence offenders obtaining guns, analyze possible paths for court reform, and lighten the mood with a game of This or That. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's no joke that when an argument is against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of 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. And I'm Kate Shaw.

And we are thrilled to be coming to you today live from the Howard Theater in Washington, D.C. H-U! So if you are here, you know that June is always an especially busy and high-stakes time when it comes to the Supreme Court's calendar. That is always true, but it feels especially, almost agonizingly true this year as we all wait on the edges of our seats to see what the justices will decide in cases involving presidential immunity, abortion emergencies, the future of the administrative state, and much, much more. Now, while we're waiting, we will note that they haven't been completely remiss. They did issue some decisions this week, and so we will talk about those decisions. But first, before we get to their work, we have some work of our own. We have for this live show at the Howard Theater a very special guest.

This guest needs no introduction. But let me say this. He is a lawyer. He is a law professor. But most importantly, he is a gentleman. In fact, he is the second gentleman. The first, second gentleman in the entire history of these United States. So please, put your hands together and give a warm strict scrutiny welcome to the one of

one, the only one, the second gentleman, Doug Emhoff. You all thought she was a special guest, right? Surprise! Is this your date night? This is how I get her to come out on a Saturday night.

Does she know this is your date night? Yeah. Come back to Howard. You know. Well, we will be your wingwomen any night. We love this. So we are so thrilled to have you on the stage with us and we want to dive right in. This episode will be released on Monday, which is the two-year anniversary of Dobbs v. Jackson Women's Health Organization.

The decision, as you all know, that overturned Roe v. Wade and ended constitutional protections for abortion. So Dobbs is a case we spend a lot of time on this podcast talking about, and it's also a case that you have spent a lot of time talking about in recent weeks and months all over the country. So can we start by asking you to tell us how the Dobbs decision landed with you and with some of the women in your life? Not well. Two years ago,

and we had already had the leaked decision, so in some way we knew it was coming, but it was still hard to believe. And within seconds of the decision, the actual decision coming out, my wife, the vice president, who's right, called me from Air Force Two.

As you do. And literally, but again, this is serious. She said, again, we intellectually knew this might be coming, but it was still such a shock to her. And it was basically something like, Dougie, she can call me Dougie, they actually did it. They actually did it. And she was angry. She was furious.

And you've seen these last two years how she's just been such a leader on this issue and will continue to be. And then within, I think, mere seconds or minutes, our daughter Ella, who was then 23, who isn't want to just text me out of the blue, because she was 23. And it was something, and I had it written down. It was something like, I am so angry. This is horrible. This is horrible. I'm so angry. You need to do something about this. But then my mother, Barb, who was 81 at the time, now 83,

Elle is now 25, she called literally within minutes too, and she's someone back in the 60s and 70s, like a lot of women of her generation, were out there fighting and marching and shouting for equal rights and abortion protection. And she's so appalled. So to have her think about Ella, and how is it possible that Barb would have more reproductive freedom than Ella

after they fought so hard to get there? And I just knew right away I had to do something about it not only as you know second gentleman but it's just it was the right thing to do so just from the the get-go I think even within days even maybe even that night I just started speaking out about it and I'm I've been doing it for two years and just around the two-year anniversary I've been doing a for two years, and just around the two-year anniversary, I've been doing a lot of events, and I'll be in Detroit on Monday. And all the White House principals and folks in the administration are going to be fanning out on Monday to just continue to spread the word

about how egregious this job decision was. We concur. And again, we want to give a shout out to the vice president who has been absolutely unbelievable and on this from the very beginning. But I want to talk about your role, because it's so important to have men talking about these questions, about how this affects all of our lives, not just the lives of women or people who are capable of pregnancy. And one of the things I think that's really great about having you on the stage is that the anti-choice movement has actually been very diverse in terms of their gender representation on this issue. They have men, they have women out there in front, and we've mostly had women on the front lines. We haven't always had men out there making the push for greater access to reproductive

freedom. How can we get more men involved in this fight, especially now when it is more urgent than ever? Well, I'm going to keep speaking out with the microphone that I have and just telling the stories. I think, you know, as a former trial lawyer and now a second gentleman for almost four years, most effective communication is just telling the stories. And we've seen some just horrific stories out there that are well-known, but many millions of stories that are not known.

And I think we now realize, and men are starting to realize, that this is not an issue that just impacts women. This is an issue that impacts everyone on so many different levels. So if you're talking about your family and say it's your partner or wife who was trying to have a baby and there's a complication and that woman gets sick to the point of having sepsis and almost dying and not being able to have children after that, by the way, that will affect the man just as much as the woman. And so people need to understand that. And it's also about other rights that are at issue here. And I know you've talked

about this many, many times as Justice Thomas said the quiet part out loud in Dobbs what's next and what's next is everything every single freedom that we think we enjoy is at risk right now and they're not hiding it there's literally saying it every every day so if you're a man and you care about contraception you care about're a man and you care about contraception, you care about same-sex marriage, you care about loving who you want to be able to love, you care about being able to do what you want to do

in the privacy of your own home or in the privacy of your medicine cabinet, it's all at risk right now. So we've got to let everyone know that everyone's got to be on the field for this, not just for women. But there's also just a fundamental fairness. I always say, too, women should not be treated as less than.

It's just not fair. It's just not fair. As men, we need to step up. So revelatory statements, Doug. And again, this should be obvious. This is not rocket science. This is just obvious. It bears saying, though,

that Dobbs is not just a women's issue and that Dobbs is also not just about abortion, that it is about IVF, it's about contraception, it's about marriage, and it is absolutely the case that the constitutional liberties that the court has announced in previous eras are all vulnerable before this court,

and Dobbs makes that crystal clear. It's not just the Justice Thomas separate concurrence. I think everything. And Dobbs makes that crystal clear. It's not just the Justice Thomas separate concurrence. I think everything in the Dobbs logic itself makes that crystal clear that if given the opportunity, all of these other rights are going to be at risk and vulnerable. I want to ask kind of a maybe a generational question, which is that a lot of your discussions about these issues, reproductive rights and other liberties have been directed at college students and young people, right? So you've used social media, you've used in-person events, you've talked about sharing stories, and you've brought individuals who have gone through agonizing

and heartbreaking experiences into the White House and done events with them and really amplified those stories. I guess maybe could you just talk a little bit about how politicians and reproductive justice activists can work across generational divides and advocate for access to abortion together, because this is something that is going to require a lot of participation from a lot of different constituencies. Yeah, so I've been doing a lot of work with men, but younger men in particular, all over the country. And a lot of it's just education, because I think a lot of young people, and maybe even a lot of Americans, need to be reminded about how the process works, and remind them that Donald Trump ran, one famously or infamously, told Chris Matthews, women should be punished for getting abortions.

He ran on a platform of overturning Roe v. Wade. And as president promised to appoint Supreme Court justices that would do that, they did that. And now these rights are being taken away. And so when I explain that sometimes to people, they look at me with, oh, really? I didn't know that. So we need people to understand that this look at me with, oh really? I didn't know that. So we need people

to understand that this is how it works, that elections matter, that who's president, who's in the Senate dictates who's on the Supreme Court, and that has such a massive impact on your lives. As for younger people, I always ask them too, what are the various things that you care about? And then it's a long list of freedom. It's I'm concerned about who I can love. I'm concerned about who, you know, I can marry, what I can read. I'm concerned about all these other things. I say, well, great, because all that's at risk right now. And so by you supporting this issue and sticking up not only for women but for freedom, this intersectionality, they get that because they've been doing that on these other issues. So they need to know that you need to be doing this on this issue too

because if we let this issue of reproductive freedom go, all these other things that you care about as a young person, and as a young person you're going to have to live in this world many, many, many years. You want to do that with as much freedom, as much liberty as possible. And that resonates. But I need young leaders that I tell them, you have to go out and spread the word. I can only do so much. Not every 25-year-old is going to

listen to me. They're going to listen to other 25-year-olds. So we need to get them out there like you. And that's true on a lot of issues. We need young folks who care about this stuff to help us get the word out to other young folks? So I was talking to my fellow kids, and they... I saw that. That was you in that meme. Hey, fellow young people. Hey, fellow kids. A lot of them are really disaffected, and it's not hard to understand why they're disaffected. We live in a really distorted democracy with gerrymandering, with voter suppression. Even when you get out there and you get the vote out and you go to the ballot box, you don't always see your preferences registered in the policies that the people you've elected

actually produce. What would you say to young people who are facing this upcoming election cycle and maybe are just a little defeated from not seeing everything they wanted to have happen happen. And they're going into this knowing that things have been taken away by the Supreme Court that they really wanted, like student loan relief, like reproductive rights.

How do you get them energized to go and do it again when the other side has made it so hard for them to actually win? Well, that's why they're doing it. They're trying to beat people down. They're trying to divide us. They're trying to make you feel powerless. And we can't have that. I mean, we just have to realize that literally our way of life is at stake right now in this upcoming election. And so many of the things that can continue to go in the favor that they want will happen if Joe Biden and Kamala Harris are reelected. And I mean, that's just true.

And back to my other point, when I talk and I travel all around the country talking to all kinds of folks and when I'm talking to young people, again, it's the same conversation. What do you care about? Tell me all the things you care about. And whether it's the environment, reproductive freedom, not having assault weapons everywhere,

being able to vote, being able to love who you are, all the things we've been talking about, I say, well, great. Every single one of those things is at risk right now if you don't get up and vote and participate in this incredible democracy that we have. Otherwise, it's going to be gone. And you just have to keep reminding people that I'm not even making this up. Just look what they're saying. Look at the 2025 plan. Project 2025.

Yeah, look at all these things where they are saying it. They're not pretending. There's no wink, wink, nod, nod. It is we are going to take everything away that you should not be taking for granted. We've got to keep working for it. And that's what they all need to understand. When you're talking to voters, obviously, there's a presidential election in November, that's front of mind. But Congress is also at stake, right? So when there are questions that prospective voters, young people are asking, well,

you know, what can the president and vice president do when it comes to protecting reproductive freedom? You know, the answer is there is a limit, right? The executive alone cannot reinstitute a Roe versus Wade regime. It cannot reinstitute broad protections for reproductive freedom. That requires either a different Supreme Court or more immediately a Congress that can actually do something. So I guess, is that part of the civic education you're engaging in as well? Yeah, absolutely. People need to, again, understand that the surest way to restore freedom and protect freedom is to have a Congress that will do that and a president that will sign it. And we know we have a president, Joe Biden, who will sign it. And now people need to vote in literally four months. We can change this all in four months if we get

the right Congress in place. And by the way, this is not a minority issue. The vast majority of Americans believe in all these freedoms that we're talking about. These aren't fringe issues. 70, 80 plus percent of our fellow Americans want reproductive freedom. They want to be able to read what they can read, marry who they can marry, love who they want to love, have contraception. This is probably more on that issue. So because of the gerrymandering and because of the politicking and what you mentioned before of trying to make people feel powerless,

they're not. Vote in four months. We can get this thing done. Doug says we can get this done. I'm with him. You've got me fired up now. I'm ready to go. And I was already- Four months. We can do anything for four months. Come on. I was at an eight. Now I'm at an 11. I'm ready to go. So let's do this. Any final words for us? Like, I mean, that was very inspiring, but I think you've got more in the tank.

Any final words? Well, what else do you want to talk about? What's it like to be the second gentleman? It's awesome. You know what? I make it look good. I get to be married to Kamala Harris. Yeah, it's great. I mean, I was a lawyer for a long time. I loved it. I miss it in a lot of ways. But to be able to step back from that career to support the first woman vice president ever. I did it very gladly.

And, you know, it's one of the other issues I've been working on is gender equity. And, again, this should be a no-brainer. Whether it's pay equity, family leave, child care, leadership. This should not be controversial. This is something I spent a lot of time working on as well. So that's what it's like to be second gentleman. I get to travel the country, the country that I love. I'm a patriot.

I don't take any of this for granted, and I get to meet people all over the place, and it's a beautiful country. It's worth fighting for. It really is. Our way of life is awesome, and by the way, things are great. They really are great out there. We have a beautiful system. Let's fight for it. So four more months. Let's fight for it's re-elect joe biden and my wife kamala harris and let's let's just just keep moving forward not back they want to drag us back let's move forward you're really putting all the other husbands to shame tonight really let me just say from our perspective it is genuinely inspiring you are charting a path

no one has ever walked before. There's never been a second gentleman, and you get to make this what I think you think your time is best spent doing, and to focus on gender equity, on reproductive justice, on LGBTQ issues. Just enormous admiration for the way that you are using this precious platform to advocate for the issues that we all care so much about. So really, thank you. It's an honor. We are so glad to have you. Please give it up for the first and best second gentleman this country has ever seen, the incomparable gender equity patriot Doug Emhoff. We have to cavil a little.

We started this podcast with our ride or die Leah Lippman in 2019. So just five years ago. So we're coming up on our five-year anniversary. A happier anniversary than the Dobbs anniversary. Happier anniversary than the Dobbs anniversary. We never imagined when we started doing the podcast that one day we would be in front of a live audience with the first second gentleman of the United States. With the actual vice president of the United States in the crowd.

That too. I mean. This is totally surreal for us. Really quite amazing. That's a good segue. Obviously, there are just two of us here because, as you know, our ride or die, Leah Lipman, is still convalescing from her bicycle accident. So she's still back in Ann Arbor recovering from her injury. So she can't be here tonight. And obviously we miss her

immensely. And we love being out here on the road, but we miss having Leah, who would have really loved to be here with all of you. So please, let's give a big shout out for Leah who's home go blue exactly go blue um we needed to find someone who could step in and fill in for us like usually we are a complement of three and we wanted to have three people for this live show, and the second gentleman was really keen to do it, but obviously they have other things to do tonight. It is date night, and we are very pro-marriage on this podcast. So as patriots, we told him he could take a bye.

But that means we had to find another guest, right? Someone who could step in and fill Leah's very big shoes. And it's hard to fill Leah's shoes, but I think you'll agree that our guest host that we found for tonight is the best person to do this. Someone who really comes close to filling those shoes. And not only because he has very large feet. He has very large feet. Amazing. Very large feet.

He is. Maybe that is a little clue. That's a clue. But a dear friend of the pod, New York Times bestselling author of The Shadow Docket, which is now out in paperback. I think still for like another week, the Charles Allen Wright Professor of Federal Courts at Austin, but as of July 1st, a professor of law here at Georgetown. Please give it up for DC's newest resident and tonight's guest host, Commander Professor Steve Vladek.

Are you enjoying being back in DC? It sounds like they are enjoying having you back. I'm really sorry that we brought Texas's weather with us. Our bad. But also, I just, you know, when I heard that you guys were doing a live show, I figured, well, good excuse to move. That's actually the back story. You know, cause, effect, who cares?

I mean, it's all details. But it also gave me a chance to break out my strict scrutiny T-shirt because, you know, you have to wear the band T-shirt to the concert, right? This is OG merch that you're wearing. I'm an OG fan, so I think it fits. You've been our day one for sure. I just remember the time that I think it fits. You've been our day one, for sure. I just remember the time that, I think it was after the SB8 decision, where I was

literally sitting behind a lactation pod in the Raleigh airport, you know, on my laptop, like, trying to talk to you guys. That was allyship. That really was. Thank you. It was. Listen, I wasn't sitting in the lactation pod. No, because

somebody probably needed it to do some lactating, so I'm glad you weren't. But thank you. You're a mensch. You really are. Truly. The things we do for our friends, right? So the three of us are going to start off by breaking down a few of the recent opinions that we haven't had a chance to cover on the show.

And then we will be joined. Get excited. The special guests just keep coming. So we will be joined a little later in the special guests just keep coming. So we will be joined a little later in the hour by another special guest to discuss what was probably the court's...

It's the president. I'm kidding, it's not. At this point, they might believe it. Like, I mean... It's not. Say anything. It's not, but the tour is,

you know, could be extended. I think they know Taylor Swift is in London, so... And we would never do that without Leah. Ever, ever. Why do you keep bringing, this is not what the guest host does. But when this to be disclosed third guest comes up, we will talk about United States versus Rahimi,

a really important case involving the second amendment and domestic violence that the court issued last week. First, though, before we get to those opinions, we want to briefly cover a couple of Trump-related news items in the courts. First, Trump advisor Steve Bannon filed an emergency application in the Supreme Court on Friday, seeking to remain out of prison while pursuing further appeals for his 2022 conviction for defying subpoenas from the January 6th committee. Bannon has been—yes, you can do. That seems right. Bannon has been sentenced to four months in prison, and after losing his most recent appeal in the D.C. Circuit on Thursday night over the dissent of Trump appointee Judge Justin Walker, he is scheduled to begin serving that sentence on July 1st,

unless the Supreme Court intervenes. His filings position Bannon as a kind of political prisoner, if you will, sort of the Alexander Solzhenitsyn of the right. He claims that the United States government seeks to, quote, imprison him for the four-month period immediately preceding the November presidential election. Okay. Math. That's what that is.

Steve, any action here would be an enormous development. As the high priest of the shadow docket, what say you about Bannon's prospects? You say high priest, and I hear Thomas Beckett, and I start getting very worried. Who will rid me of this meddlesome priest? That's why I'm worried. You should be. Vergogna.

You should be. So, I mean, I think the short version is the chances that the court is actually going to grant what is basically an application for release pending appeal are pretty close to zero. That said, pretty close to zero in this day and age means something different than it used to. But we were in this

movie about three months ago. So Peter Navarro tried a very similar tack. And he actually got Chief Justice Roberts in this capacity as circuit justice for the DC Circuit to write a short opinion saying, go to jail. But go to jail because we can consider all of your arguments in the normal course while you're in jail. And I think that if we get anything out of the court, it will be something like that. Like, hey, Steve Bannon, maybe you have some interesting arguments, but we're not going to go back on, well, we would never go back on 50 years of precedent. We're not going to... But this is not, the court is not in the business of granting bail. And I think that this is not a precedent even this court would want to set. I mean, it's getting

into new businesses. So, you know, but I think it sounds from what I'm hearing think that this is not a precedent even this court would want to set. It's, I mean, it's getting into new businesses. So, you know, but I think it sounds from what I'm hearing as though this is not something you were actively losing sleep over. No, I mean, of all the things I'm losing sleep over, the Supreme Court granting an emergency application to Steve Bannon is pretty low on the list. Of course, you know, these days, that list is crowded. Yeah, it's a long list. It's a long list. All right, so here's another question, sort of a kind of a how worried should we be question, which is on Friday, Judge Aileen Cannon in the Southern District of Florida heard arguments

about whether government as we know it, no wait, actually it's just the appointment of Special Counsel Jack Smith, but with implications for government as we know it, was unconstitutional. So that is the question. Was the entire edifice of the appointment of the special counsel,

and again, maybe some other aspects of government, constitutionally suspect? Well, before you get to that question, I just want to say, as a Floridian, you don't get a lot of claps for being a Floridian, so I appreciate you. I grew up in Port St. Lucie, Florida, which is... Let's go Mets. Yes, yes, exactly. Except today, which we won't talk about. Except today, except most days, really. I grew up in Port St. Lucie, which is right next to Fort Pierce, which is where the courthouse that Judge Cannon sits in

is located. And I'm just going to say that all of the Carl Hasson books are correct. You've got to expect the unexpected when you head down to the Sunshine State. But even I, having grown up there, did not expect what happened on Friday in Judge Cannon's courtroom. So first weird thing to note, Judge Cannon held an oral argument to probe whether the appointment of a special counsel

is in fact constitutional. This, despite the fact that United States versus Nixon and a zillion other cases, including a recent case from the DC Circuit that the Supreme Court declined to review, appear to have settled this issue. To which I can only say, ma'am, this is not a Wendy's. No. Yeah, so it happens at all. That's sort of weird thing one. And weird thing two is sort of how it happens, which is that Judge Cannon brought in outside lawyers who have nothing to do with the case other than they'd filed amicus briefs around this question of constitutionality. And it's all pretty atypical.

And I think we have to note that this is happening on a week when reporting for the New York Times has revealed that when Judge Cannon was assigned the Trump documents case, not one but two of her senior colleagues on the bench interceded, strongly urged her to step aside in this case. She refused, and what we are seeing is the fallout. That was a weird thing too, right? There's more. When the chief judge is like,

girl, I think you should sit this out, and you're like, no, I'm going to do it. Like, weird. I think the other weird thing, though, is the fact that she had these outside counsel, or really just a meekie, arguing in this oral argument. It was like an episode of The Love Boat

with special guests. Like, am I dating myself? Yes. It's fine. It's not that you're dating yourself. I'm a young person. I'm just envisioning the meekie as characters in The Love Boat.

Isaac. And I'm really, really wishing I hadn't. It was weird. It was weird. Always good when a court-invited Amiki stands up and says, I just have seven points to make. It's a good sign that things are going well. Listen, I think that the thing that we've always been wondering

about Judge Cannon's involvement in this case is it seems like one of two things is true. Either she is totally over her head or she's not. And I think that, you know... Or both. Well, okay, fine. But, you know, I think what it comes down to is, you know, these are plausible sounding on social media arguments that are completely contraindicated by precedent. The funding issue she's hearing argument in on Monday is literally what the Supreme Court just resolved against this exact argument. So, you know, I think the question is, if she's just in over her head, she'll come to her senses and say, okay, fine, it was nice to have this conversation, but

I'm persuaded that the law is this. If she's really trying to be malicious, there's one problem with all of these arguments, which is if she accepts any of them, it triggers an appeal. And at that point, it's no longer her case to control. So I understand why folks are worried about these developments. I guess I'm not yet convinced that they spell doom for the future of this case. Right. So this is, of course, in some ways, the most legally and factually straightforward of the Trump cases, which is why these like interminable delays and roadblocks are so uniquely maddening in this case. But I gather what you're saying, Steve, is that if the question is, should we be worried that this case gets thrown out, the fact that the 11th Circuit has already strongly rebuked her on substantive rulings might suggest that she might be disinclined to rule at all.

And so rather than an adverse ruling, just more slow walking and delay is what we are likely to see here. Yeah. And I think, I mean, the reality is that, you know, the 11th Circuit, yes, it is fairly conservative, but it's conservative in a way that I think speaks very well to the median of the current Supreme Court. And so in a way... So the conservatives. Yes. But the conservatives who are closer to the Democratic appointees than the other conservatives. It happens. Do you write for Politico? I was avoiding that phrase, okay? The upshot of which is just that I think, you know, the 11th Circuit is not going to abide any super crazy nonsense.

And super crazy nonsense, I think, would be a very plausible reason at this point to get the case reassigned to another judge. So, you know, again, it goes back to is it just that she's over her head or is it that she's really trying to throw the game? Maybe it's both. I think how she handles these specific arguments will tell us a lot more. Right, and as you mentioned,

marathon argument on Friday over the appointment question, there's this funding question that's been teed up for argument on Monday. So things will be ready for her to substantively resolve after that and we will see what she does. So now back to SCOTUS. We're gonna start with a couple of immigration cases that were handed down since our last episode

and then we will talk about a couple of criminal procedure cases and then we will turn to Rahimi. First up is Department of State versus Munoz. And this was an under-the-radar but very important due process case about whether United States citizens have a fundamental liberty interest in living in this country with their spouses that give rise to a procedural due process right? And this was a question that was left over in a 2015 case called Kerry versus Dinh. And now the court has resolved that question. And it says that there is no fundamental liberty of U.S. citizens to live in this country with their undocumented spouses. Okay, so let me talk briefly through the facts of the case.

So Sandra Munoz is a U.S. citizen. She is married to an undocumented man from El Salvador. They have a child together. And when her husband tried to adjust his status, which is something you can, of course, do if you're married to a U.S. citizen, he was denied. And initially, the only reason he was given was that there was the consular officer evaluating his application decided he was likely to commit a crime in the future. That's it. Subsequently, it came out during immigration proceedings that this officer had made a determination that he was likely affiliated with the MS-13 gang and denied him on that basis. This is something that Munoz vigorously disputes. So essentially, she is arguing that her fundamental right to marry, again, they're married, gives her a liberty interest in the marital relationship and in living with her spouse, such that the government has to provide

some process before depriving her of that liberty. And just to be clear, she is not saying she has an absolute right to live in the United States with her non-citizen spouse or for him to live here, just that there's a liberty interest that the Constitution protects, which means that when the government deprives you of it, they have to produce some process, give some reasons before effecting that deprivation. And it's just, I mean, it's fascinating to think of how the court would have answered that question in 2015. Instead, right, what we got was a six to three result with a five justice majority opinion by Justice Barrett, joined by the Chief Justice and Justices Thomas, Alito, and Kavanaugh. Justice Gorsuch wrote a very narrow concurrence in the judgment. And the majority held that a citizen does not have a fundamental liberty interest

in her non-citizen spouse being admitted to the country. The court cited this doctrine of consular non-reviewability, the idea that in general, State Department visa determinations are not supposed to be subject to judicial review, and said that the narrow exception the court had previously recognized, including in Kerry versus Dinh, didn't apply. And that was, of course, obviously the sort of the scope of the fight, right, between the majority and the dissenters. Justice Gorsuch said, listen, you know, we don't have to reach this question in this case, because here, there actually was due process, according to him. Right, he basically said that second set of explanations about supposed gang affiliation, that was a reason.

So there was a process that satisfied the Constitution's requirements. Which at the very least would have left the question for another day. Which they could have easily done. Like, this is such an aggressive rejection of an argument about a fundamental liberty that never needed to be decided at all. Are you saying that the court is unnecessarily going out of its way to decide things on broader terms than it needs to? I think I might be. Well, let's probe that.

This is a family law case. It is about the right to marriage. Steve mentioned 2015. That obviously was the year that the court decided Obergefell v. Hodges, which found that the right to marry includes a right to marry a person of the same sex and that there are certain constellation of rights and privileges that flow from the marital relation. This is obviously a decision that was implicated in Justice Thomas's concurrence to Dobbs, and he sort of called it into question and invited future litigation. I

think this is the beginning of that future litigation. And I found it really notable in this decision that in trying to determine whether there was a fundamental liberty interest at stake, this court used the logic and analysis that was enunciated in Washington versus Glucksburg, right? So a much earlier case, a case that later was reprised in the discussion of fundamental rights in Dobbs, but very different from the fundamental rights analysis that the court undertook in Obergefell, where it said determining whether there was a right to same-sex marriage required thinking about how marriage had been dynamic and changed over time. Like women had once been subordinate to their husbands in marriage, but now they were equal partners. Marriage was once confined to people of the same race, but now it could be interracial,

that marriage had changed over time. And so the right to marriage could change and still be fundamental. That's not the logic of this decision. They're instead going back to Glucksberg and this idea that, did this right exist before in our history? Is it part of the history and tradition? And that is discussed. And the court says, no, we've never had a history or tradition of recognizing some fundamental liberty to reside with your undocumented spouse. And when you frame the question like that, well, obviously, you know where this ends up. And in that sense, it really recalls the court's disposition in 1986 of Bowers versus Hardwick, where Michael Bowers said, I have a right to privacy. And the court said, no, actually what you're seeking is a right to engage in same-sex sex, which we don't recognize.

And it's all sort of teeing up, right? This question of how narrowly is the court going to look at these kinds of implied criminal rights going forward, all while the court is having this battle, even within the six conservative justices, about how they're supposed to do history and tradition, Glucksberg sort of ratchets that up to level nine. Yeah, and Justice Sotomayor's dissent, like, blares the alarm about all of this, right? So the fact that Glucksberg and this kind of Bowers-esque logic are really what the court is being guided by. The fact that the decision doesn't mention Obergefell, right? Like this is the court's most recent and really important pronouncement about marriage. It is not cited.

And I think that is... Because it's going to be abandoned. And, you know, Sotomayor really does seem to suggest that it is both the conspicuous omission of a citation to Obergefell, but also the conspicuously different methodology that the court uses to decide whether there's a fundamental liberty interest here. That really, you put that together with Dobbs. And even though Dobbs said, as we obviously just talked about with the second gentleman, Dobbs says it is not touching anything but abortion. It's not about anything but abortion. That was never remotely persuasive, even on its own terms. But for any doubters, this opinion makes crystal clear that other liberties the Constitution has been understood to protect are in real danger. So I think that she is very much, again, sounding the alarm about other

rights that are now in the crosshairs. And she's also specifically focused, as to the impact of this case case about the fact that same-sex couples are going to be the most hurt by this decision and same-sex by national couples, right? So if you have a U.S. citizen spouse and a non-U.S. citizen spouse, and there's no right for the U.S. citizen spouse that the Constitution recognizes to live here with their spouse, their spouse's home country may not recognize their marriage at all. And that might mean there is literally no country on this planet Earth they can lawfully reside as married couple in. And that is who is going to be harmed by this decision. So in, I think, classic Sotomayor fashion, she both

is very focused on the on-the-ground impact of this ruling, but is also stepping back to say this is about much more than binational couples and immigration law. This is really about our most cherished constitutional liberties. Case in point. The bottom line in this case is that Ms. Munoz can either live in the United States with her child, but without her husband, or she and her child can return with her husband to El Salvador. So let's give it up for the party of family values, folks. Great. All right. That's exactly right.

Okay. But the party of national security, on the other hand. Yeah. Next up is a set of consolidated cases, Campos Chavez versus Garland and Garland versus Singh. So Steve, why don't you tell us about these two cases? A rare win for the Fifth Circuit in the Supreme Court. So these were two consolidated cases actually involving three immigrants that required the court to consider, in the context of removal

proceedings, whether the government has failed to provide sufficient notice in circumstances where it doesn't include all of the information about the hearing in the original notice to appear, the NTA, the big letter you get saying, hey, we're deporting you from this country. Because what's been happening is the government has not been provided that information that knows to appear, and instead is sending like this follow-up, you know, JV letter, like, oh, hey, your hearing, by the way, is like tomorrow. And the question is whether the second letter's notice suffices to cure the defect in the first letter's notice so that the government can't be, you know, when the removal proceeding happens in absentia, literally without the person there, can that person then object

after the fact to the fact that they didn't receive notice? So, you know, you would think that textualists and those who are interested in fundamental fairness and those who are interested in notice and things like that would actually think that if the notice to appear is supposed to proper secondary notice for the hearings they missed and at which they were ordered removed, they can't seek rescission of their in absentia removal orders on the basis of the defective original notice. So even though the government totally screwed up, it's fine. Alito has spoken. There it is. That's the majority opinion. Justice Jackson wrote a dissenting opinion in which Justices Sotomayor, Kagan, and Gorsuch joined. Surprising me, too.

In that dissent, Justice Jackson unsurprisingly took issue with the majority's thin understanding of textualism. You know, the whole point of textualism is that you read. I knew we forgot something. So she explained that the government had actually been failing to comply with these statutory requirements for some time. And indeed, in two cases, Nish Chavez versus Garland from 2021 and Pereira versus Sessions from 2018, the court actually told the government that they had to comply. And the government continued to stay on its BS. And now, as Justice Jackson notes, the court is blessing that recalcitrance. And there we have it. All right. So we're going to briefly now cover two

criminal cases, the first of which is Erlinger v. United States. That's a case about the Armed Career Criminal Act. Are we allowed to talk about ACCA without Lear? No, we can say there was an ACCA opinion. This is Leah's métier, and so we're not going to steal her thunder. We will give her ample time in the term recap to talk about it. Maybe we will actually just, you're right, Steve. I think, you know what, we're just going to leave it there. This is an ACCA case, and let's hold, oh, the crowd wants ACCA.

ACCA, excuse me? Let's just. Nice, that was good. Come on, I'm sorry. Okay, all right, all right. That was good. Karen wasn't sure about you making jokes, but I think that was actually funny.

Yeah, I think you did well. See, Karen, you did good. All right, the question here is whether a jury has to determine whether the defendant's prior conviction offenses were committed on different occasions or whether that inquiry falls within what is known as the Almendarez-Torres exception, right? So there's an exception for this.

And interestingly, the United States here supported the petitioner's argument that this was an inquiry for a jury. So the court appointed amicus defended the judgment below and argued that there in fact is no requirement that a jury determine that the ACCA qualifying offenses were committed on different occasions and therefore the higher ACCA sentence was warranted. But in a 6-3 decision written by Justice Gorsuch in which the chief, Justices Thomas, Sotomayor, Kagan, and Barrett joined, the court held that the Fifth and Sixth Amendments do require a unanimous jury to make the determination beyond a reasonable doubt that a defendant's past offenses were committed on separate occasions for purposes of the ACCA escalation. So that's where that stands.

So there are some separate concurrences that seem kind of dissentee and some very consensus driven, some internal splits within the conservative wing shaping up. We will leave the rest of this for Leah to dissect on a future episode. And also Justice Jackson's interesting move toward thinking Almond Dars Torres is wrong. So she, so this is what would be sort of reinstituting the judge and disempowering the jury in this one way that is potentially surprising. Although as a long-term former district court judge, I'm sure she knows whereof she speaks. And so I do think that there are some

interesting kind of lines developing on this issue, and the court always has a lot of ACCA cases, so I'm sure there will be more opportunities for these kind of lines to be further developed. Okay, last case before we turn to Rahimi is Smith v. Arizona, a case about the Sixth Amendment's Confrontation Clause, which provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against them. So in a series of cases from really the 2000s, the court has made clear that the clause ensures

prosecutors cannot use testimony against a defendant unless the defendant has an opportunity to subject that testimony to cross-examination, and that includes in the context of forensic evidence. So the question here is whether that principle applies in this case, in which you have an expert who testifies in a drug case using drug analysis performed by someone else, and that someone else did not testify and so was not subject to cross-examination. Court concludes here that the cross-examination right does apply in a case like this one, but sends this case back so that the state courts can determine whether the absent analyst statements qualified as testimonial for purposes

of the confrontation clause. This was a Kagan opinion. It was like a lot of recent opinions, kind of unanimish. It was unanimous on result, lots of concurrences and partial concurrences as to various aspects of the reasoning. One really sort of interesting to me note about Smith really quickly is, you might know this just from the caption Smith versus Arizona, it's a direct appeal on the criminal case. This is something that the court has stopped doing with regard to state courts. I mean, this is one of, I think, two this term from state courts. There's only one last term. And so just when we think about the court in not just six, three ideological lines, one of the things that's really disappeared from the docket in the last few years is these kinds of

bread and butter, crim pro, constitutional procedure issues, where the court doesn't necessarily split the way we expect. That's a really great observation, because to layer onto that, most of the criminal cases are substantive criminal law cases, like statutory interpretation, not these Fourth Amendment, Fifth Amendment, Crim Pro cases. And that's a real change in the docket. It's a huge change, and it's one that's not just sort of these cases disappearing. It also means the court is making less law in the Fourth, Fifth, and Sixth Amendment spaces, which has massive implications for criminal defendants, for post-conviction relief, for civil rights plaintiffs. So that is most of, not all of, but most of the opinions that we have gotten in the last couple of weeks. Some bad, some good, not that much good, but there's some good lines in

various cases. Less bad. Some really bad, some less bad, some ugly. And there is obviously much, much more to come because the court is really just getting started. Even though it's almost the end of June, there are a ton of huge decisions left to come. Not a ton of time, but a lot of bad decisions that I think we to discuss the court and its most recent decisions with us than someone who's actually been on the receiving end of one of the worst decisions the court has ever made? We have another special guest here tonight, and like Doug Emhoff, he needs no introduction. He was the Attorney General for President Barack Obama, serving as the first African-American Attorney General. Oh, here he comes.

I had a whole wind-up for you. I know, but that was an entrance. Oh, my. Hold on. He's the first black attorney general in this country's history. And as attorney general, he was known for his stalwart defense of voting rights, and that commitment to voting rights endures to this day. He is also now the chairman of the National Democratic Redistricting Committee and the author of Our Unfinished March, the violent past and imperiled future of the vote, a history,

a crisis, a plan, Attorney General Eric Holder. I love the sunglasses also. You can keep on, off, however you're most comfortable. You had that surprise with the vice president. I thought it'd come out and make people think Stevie Wonder had come in. They're pretty excited about you. All right, so we just took through some recent cases, but we obviously saved a couple to discuss with you.

And we're going to start with those cases. We want your take on those. But then we're going to ask you to talk a little bit about your recent work. And we're going to end on a lighter note. With a drinking game. That's right. We just changed it up. It's going to be a drinking game now.

Yes. Is that all right? Obviously. We saw this nice bar when we got in, and we were like, we've got to do a drinking game. We should probably drink first and then talk. Some of us did. It was him, not me. I'm on my own steam tonight. Okay.

So, General Holder, I don't know if you know this, but tomorrow, June 23rd, is Justice Clarence Thomas' birthday. He will be 76 years old. And listeners, you will remember that two years ago on June 23rd, 2022, Justice Thomas gave himself and the NRA the best birthday present ever, an expanded Second Amendment right to keep and bear arms. Specifically, in NYSERPA v versus Bruin, Justice Thomas, writing for a six to three court, struck down New York's concealed carry permitting regime on the ground that it was inconsistent with the history and tradition of firearm regulation in the United States. Now, in the wake of Bruin, we learned that not every gift is as welcomed as a $2,000 photo album or an all-expenses-paid trip to the Bohemian Grove. Lower courts, in particular, have really struggled with what to do with this gift of Bruin and how to

apply Bruin's history and tradition tests. And many courts have actually struck down laws that have been on the books forever, on the view that Bruin requires those laws to be upheld only if they have a true founding era analog. So this week, just two years shy of Bruin's second anniversary, an eight to one majority of the court decided, I think that it was time to return Justice Thomas's gift to himself and the NRA, or, you know, maybe to exchange it for something less kind of catastrophically destructive to a society that is ravaged by gun violence. Is that what happened?

I'm not sure it's a gift exchange or just a price adjustment. Okay, okay, good point. Store credit? Something. It's not a total exchange. I don't know what that credit gets spent on, God. All right, well, whatever it is, John Roberts, who is the author of The Opinion, did seem to suggest that Bruin actually was a perfect gift. Like it was. There's nothing wrong

with Bruin. But the problem was that lower courts didn't understand how to use the gift appropriately. So because of that, this led to decisions invalidating things like bans on guns at summer camps and the subway and this case. That's Roberts' narrative in the Rahimi majority. Do not let that bait and switch fool you. The problem was not with the lower court's misunderstanding, but the fact that the decision the reasons it was so wrong was because the Chief Justice assigned it to Justice Thomas. So that was a problem of his own making. He's not a person known for judicial restraint. You don't want chaos. Don't give the opinion to a chaos agent.

Correct. And yet Roberts did. And as Jody Cantor in The Times reported also in the last couple of weeks, Roberts joined the Bruin opinion. And he joined it in full only after a long delay, only after requesting some changes, but he did join it in full. So he did, you know, basically pick out the gift. And so there is the like broke it, own it, I think, kind of principle at work here. But so I just, all this to say the revisionist history in Rahimi, which is that Bruin was fine and the lower courts of the problem, I think, do not buy

that. Well, and this revisionist history is something of a tradition with this court, I'm just gonna say. All right, so back to the attempted gift exchange price adjustment. So the facts of this case are obviously rooted in this question from United States v. Rahimi, in which Zaki Rahimi, who, full disclosure, is not a nice guy, challenged a federal law, 18 U.S.C. 922 G.8, which disarms those who are subject to domestic violence restraining order. And he challenged it on the view that it violated the Second Amendment. Initially, the Fifth Circuit had taken this case and had held that the law was fine. But once Bruin came out, they then reheard it. And the Fifth Circuit had taken this case and, you know, had held that the law was fine. But once Bruin came out, they then re-heard it. And the Fifth Circuit, like a bunch of goblins, gremlins

who ate after midnight, got wet, decided they're just going to fuck shit up. And so they wrote this opinion in which they re-heard Rahimi's case, determined that he was right, the law was invalid, and it was invalid because it lacked a founding era historical twin violating the Second Amendment. And the case was appealed because, of course, it is. And the court basically tried to put the brakes on this, like really tried to tack back from where they were just two years ago. And that by itself, I think, is really meaningful. So we're going to, I think, is really meaningful. So I want to get General Holder's response to this. Maybe first, let's just lay out how the

court tried in this eight to one decision to justify reversing the Fifth Circuit and sort of what it did to the Bruin test. Steve, give us a little bit of a breakdown. What did Robert say? Not that it was convincing, but how did he try to explain the disposition of the case and then we want to get the general's reaction i mean we should note it's never a good sign when there are eight justices in the majority and between them they write six opinions um but so so the majority opinion by two justice roberts it has this line that was clearly meant to be quoted by everyone um that the court second amendment cases were not meant to suggest quote a law trapped in amber unquote it's like no but a firearm trapped in amber, unquote. It's like, no,

but a firearm trapped in amber. The Second Amendment, he says, permits more than just those regulations identical to ones that could be found in 1791, that really the question Bruin wants, of course, to ask is, quote, whether the challenge regulation is consistent with the principles that underpin our regulatory tradition, unquote. Ah, yes, because that will be clearer to everyone. And he says, using the proper test, yes, because that will be clearer to everyone. And he says, using the proper test, it's clear that this facial challenge to 922... Now, you know, we don't decide any of the harder cases. And just one thing that I think drives me

absolutely bananas about this, the whole sort of logic of Justice Scalia's majority opinion in Heller was that the court could dispense with that, you know, prefatory clause in the Second Amendment because everything was so clear. And now you have the Chief Justice saying, well, you know, things aren't always clear, but that's okay, right? So if anything, like, yes, the court is saying we're not actually committed

to the suicide pact that you might have thought we were in Bruin, but the problem is that the court hasn't replaced Bruin with anything especially more objective or likely to actually lead to the upholding of common sense gun regulations. It's a very, very narrow opinion. Okay, so General Holder, are you breathing a sigh of relief? Does it seem that sanity has returned to the Supreme Court's Second Amendment jurisprudence? Is this a new and revamped test for assessing gun regulations? Or is this just window dressing and basically Bruin remains the governing test?

Oh, no, this is a definite sigh of relief case, but it doesn't mean anything has fundamentally changed. I mean, we're all focused on Bruin, I think, which was just an abomination, but the Heller case was wrongly decided. You know, I mean, and so... That's right. You know, the preparatory language. I mean, well, how do you deal with this well-regulated militia stuff? You know, what does that mean? Surplusage. It doesn't mean anything. The founders know everything.

Why'd they put it in there? You know, Justice Scalia. But whatever. All right. why'd they put it in there you know Justice Scalia but whatever all right so but I my my guess is that the facts in Rahimi are just so egregious so egregious that they had to do something along the lines that they did but I think it's interesting as you say all right everybody agrees in the result eight to one and we'll get to Thomas in a minute there, eight to one with six opinions. But that doesn't mean if you get another gun case, you know, next term, a term after that, they will get closer to Bruin than they will to Rahimi. And common sense gun legislation is still very much at risk. Now, the question, it's eight to one. It's like, what planet is Thomas on?

I mean, given those facts, even as the author of Bruin, I would have been doing all that I could to come up with a way in which I could say, Bruin is still a good law, and try to harmonize a sane result with that insane decision. I mean, it's, it is breathtaking to me the lengths to which he will go for things that are, I think, factually wrong, legally wrong, morally repugnant, and dangerous, you know?

I'll say this for him. He's committed, right? He's really committed. Jack Nicholson was committed in One Flew Over the Cuckoo's Nest. These millennials don't know what that is. Check it out. Good movie. So did you notice in this opinion that the majority seemed to be rebuking the Fifth Circuit? Like, you guys are really out there. And it warmed my heart to see the Chief Justice right in here. Jim Ho, please come to the principal's office. And Corey Wilson, who now has had two majority opinions reversed by, I think, a combined vote of, I think, what, 15 to three, right? So we still have a lot to come in the next week. And, you know, two of those are major Fifth Circuit cases, right? The Net Choice social media case, actually three of them, Jarcozy about the SEC, also Murthy versus Missouri about social media

jawboning. You know, it's possible the court actually sides with the Fifth Circuit in one of them. But this is going to mean that, you know, the court's going to have had 11 cases from the Fifth Circuit this term. That number itself is crazy. The court is reversing the Fifth Circuit in ideologically charged cases, and it's reversing the Fifth Circuit not five to four or six to three. And that was last term's story too. And so for, you know, folks complain a lot about, oh, the Ninth Circuit is bad. The Ninth Circuit so far is five and five this term. I can't do math, but I think that's even. The Fifth Circuit is now consistently getting reversed more than any other appeals court in the country, and not in these

random technical cases, but in cases where you would expect this kind of alignment. It's nice to see the court say a little. I think the court probably needs to say some more, like, here's what Article 3 standing doctrine is. Well, but I mean, you know, what you've got is an out-of-control Supreme Court telling a rogue Fifth Circuit that they're going too far. I mean, think about that. This United States Supreme Court, a little out of control, way out of control, is telling a circuit court, you're worse than we are. And the Fifth Circuit's like, I learned it from watching you, Dad. I want to quote Sherrilyn Ifill on cable news last night, said a version of this, which I thought was so correct, which is when the Supreme Court rebukes the Fifth Circuit, like that's good and important in a case like this. But it is kind of like punishing the child that you spoiled, right?

Like they're acting out because of the way you have acted yourself. So it's good that they're now actually responding appropriately. But they created the conditions for many of these Fifth Circuit opinions. And it's worse than that in one respect, which is then you get people who are inclined to defend the court in outlets like Politico, right, saying, look, the court is not this crazy 6-3 conservative thing. And it's like, well, if you're not going to account for the court choosing the cases and choosing cases where the Fifth Circuit has gone totally off the reservation, then you can make the numbers say whatever you want them to. I mean, the reality is, you know, this is a court that now for, I think, what, seven or eight times in the last two terms has had to say to the Fifth Circuit, we spoiled you too much. Take back

the lollipop. Yeah. We should talk about the concurrences briefly because there's a pretty interesting and important concurrences. We won't talk about all of them, but let's take through a few of them. So Justice Sotomayor concurs just for herself and Justice Kagan, a really powerful writing. She's still obviously livid about Bruin and the history and tradition test she's not going to let bygones be bygones she agrees here obviously that the Fifth Circuit was wrong and that this domestic violence prohibition is perfectly constitutional

under even under Bruin but she is not over Bruin by any means I will just read one quote which is she says a rigid adherence to history particularly history predating the inclusion of women and people of color as full members of the polity, impoverishes constitutional interpretation, and hamstrings our democracy. Which I think is really important. I feel like we say that on this podcast.

It did. It did sound like we have been striking a similar note. Yeah. Do you think she listens? I don't know. Maybe. Maybe some clerks do. I don't know if she's a podcast listener. It's hard for me to imagine. I don't think she listens? Maybe. Maybe some clerks do. I don't know if she's a podcast listener. It's hard for me to imagine. I don't think she is.

Maybe it's getting into chambers somehow. If the over-under for how many justices have listened to strict scrutiny is 0.5, I'm betting the over. I'm just saying that now. That's why you're here. Okay. All right. Okay, briefly, Gorsuch and Barrett each submitted a separate concurrence.

They sounded similar themes. They continue to profess fidelity to originalism as the one true method. There's this introduction of this one really, I think, dumb new label. Original, this is what Barrett offers. She says, maybe this is what we're really doing because this will be what helpful and clarifying. Original contours history. What is that? Coming soon to Larview articles near you.

Original contours originalism. Anyway, I don't have that. It's like strip articles near you original contours originalism anyway it's like strip mall liposuction for your originalism like working the contours alright I was thinking

more like I don't know like highlighter makeup something but yeah something contours but if you have to have like 37 different types of words in front of originalism

I think that tells you that originalism isn't one thing no it definitely isn't. Right. They're just making this shit up. Yes. I mean, come on.

I mean, and we can't give this more credence than it deserves. I mean, as if they create a doctrine that's got no real basis in American history, and then they don't follow it. I mean, they do whatever it is they want. They're strict constructionists. They're originalists when it suits them. That's the cover that they use. But if originalism takes you in the wrong direction, well, we'll do something else.

You know, this is a court that's not necessarily guided by principle, by precedent, but by personnel. You know, that's the deal. That's the reality that I think we have to confront, and one of the reasons why the court's got to be reformed. You're speaking my love language. Okay speaking of personnel let's go to another concurrence this time from our favorite basketball coach slash justice brett kavanaugh he began by extolling the virtues of history coach k tells us that history unlike policy preferences is actually neutral and objective. Except it's not, right?

So historians, actual historians who have trained and gotten PhDs, will tell you that historians are making value judgments all the time about what facts to overlook, what facts to prioritize, what archives to look at. There's a whole debate among historians about archival neutrality, but again, you would have to read to know at. There's a whole debate among historians about archival neutrality, but again, you would have to read to know this, and so it doesn't make it in. So there's that. That was a serious burn. Also, there's a big part of the concurrence that seems to be a rehash of Kavanaugh's 2019 concurrence in Ramos, where he sort of told us all about stare decisis and seemed to rehash a lot of the factors from Planned Parenthood versus Casey, which he would then a few years later go on to overrule, which was interesting.

This time, though, in this concurrence, he left out the bullet points and he actually wrote sentences. So that was good. But it is a bit odd to write a whole 20 pages about stare decisis after being one of the guys who overruled Roe vs. Wade in Planned Parenthood. Super precedence. Don't worry, Senator Collins. I got this. I hear you.

Susan, Susan, Susan. Susan got tooken. She did. She did. She did. Burgonia for all. Okay, so as Melissa was saying, there is this long meditation on stare decisis. There are no bullet points, but there is this weird list that I must mention.

So this is, again, back to his separate Rahimi writing. So he has this weird point that he's making, which is that the Constitution has a lot of things in it, and he has like a long paragraph. So many things. So many things. Literally, that's what the paragraph says. Everywhere you look, there's things.

There's things everywhere. Literally, I'm going to do a dramatic reading, which is not going to be as good as Melissa's dramatic readings, but, you know, indulge me. It's like weird Dadaist poetry. Okay, here it goes. This is a literal quote. Two houses of Congress.

A house elected every two years. Appropriations are made by law. By camaralism and presentment, the presidential veto, the presidential pardon. I mean, it goes on. This is a very, very short excerpt. You should have worn the sunglasses for this and gotten a ponder down. Oh, yeah, I should have.

That would have been great. Next time, see you guys. You would have done this better. Sunglasses. I don't know if the general will let me borrow sunglasses. I think we met. All right. Oh, I like this.

That's what I'm talking about. I think I'm leaving here with these tonight. I like that. All right, let me read two more. The president serves a four-year term. A maximum of two elected terms for a president. I mean, he just is reading, but they're not actually sentences

from the Constitution. So he is written off. Baby steps, Kate. In this really strangely, I don't know how to describe it. It's like brode out prose that is his summation of the Constitution. And he's using this to say text is important,

but his version of the text isn't actually anything that's explicitly in the Constitution. It's really weird. Okay, so there's that. And then there is a footnote that Leah referred to in our group chat as a real sausage fest of a footnote, which is how the group chats typically go on decision days.

But it's like a string site of an array of respected scholars, all of whom are men. Very telling for America's favorite father of daughters. So that's Kavanaugh. Now I think we have to talk about Thomas. The Thomas dissent. I just want to say one thing about the footnote. The footnote is like, look, I can cite 22 law review articles just like a 1L.

I mean, Gorsuch, Justice Gorsuch did the same thing in West Virginia versus EPA. And it's like, y'all, like naming law review articles does not prove that you read them. Ask any law review editor. Can we do the Thomas? Let's do Thomas dissent and then we get this. Okay, all right, all right. So this dissent is a lot, right? So it reads like someone who invited all of his friends to endless shrimp at Red Lobster. And then the friends get there, and the shrimp comes out, and the friends are like, oh, I'm not eating.

I'm on Ozempic. And Thomas is totally like, bitch, I thought we were doing this. I feel like that's, yeah, I mean, I don't, I feel like the general sort of said it all as to the Thomas dissent. There's not, I mean, it is a wild and unhinged document. It suggests that surety laws, where you like put up money to say you wouldn't do something like fire a gun

is like literally an analog to that is the only way to try to regulate the possession of firearms by individuals like Mr. Rukimi. Like that is an actual argument that is made in this dissent. And it's not surprising that no one else is on board. And this I think is one place, I don't know. We talk a lot about how the lone Thomas dissents and concurrences don't stay

lone for long. I actually think this might be the rare exception. I'm not sure anyone else is on board with this. Sureties are all we can do to regulate dangerous guns. This is uncharacteristic. I'm going to defend Justice Thomas. Wow.

So spicy. It's so spicy right here. For the record, I'm not a part of this part. General Holder only joins in part one and two. Hear me out. He's not wrong, because if you were being faithful to what he wrote in Bruin, he's actually right. It's the majority who's rewriting Bruin, but not calling it a rewriting or overruling of Bruin or whatever it is. And that's what's making him so pissed. Like, you told me you were here to eat

shrimp. Here is the shrimp. Eat the shrimp. So what did you make of this dissent? I mean, when I was the United States Attorney here in Washington, D.C., we started a domestic violence unit to deal with the problem of battered women and women who were subject to all kinds of physical abuse. And his opinion, whatever you want to call it, his tome doesn't deal with the reality of the situation that people in those situations must confront. You know, this notion of you've got to have due process. It's kind of like, I mean, hey, man, we're talking about people

who have been found to be a danger to other people. And domestic violence stuff is way worse than all kinds of other violent crimes that occur. The things that drive them, the consistency, the perseverance of people want to do harm to others. And he's like, yeah, what? Give him a gun. What could possibly go? What could possibly go what could possibly go wrong you know now i don't think again that we should see in the majority opinions or whatever you know feel too good about that i think it's going to be a situational adherence to ruin you know this is one can't do it here can't we don't want the shrimp here next thursday that shrimp look that shrimp looks good yeah we'll eat that shrimp then different case we'll take the shrimp.

So the person who wants all the shrimp off the table is Justice Jackson. And so she writes a concurrence here, and she begins by underscoring that her name's Bennett and she's not in it. Like she wasn't here for this crazy stuff and she's just trying to clean up the mess. Like I mean this concurrence is basically reading Bruin and indirectly actually directly Justice Thomas for filth. So here's one part. The message that lower courts are sending now in second Amendment cases could not be clearer. They say there is little method to Bruin's madness. Zing. She then goes on to say, and this is in reference to what preceded Bruin, this discord is striking when compared to the relative harmony that had developed prior to Bruin. Like, you, sir, are no Justice Scalia. Even he wasn't this crazy. She then goes on to say, but it is

becoming increasingly obvious there are miles to go. Meanwhile, the rule of law suffers. That ideal, key to our democracy, thrives on legal standards that foster stability, facilitate consistency, and promote predictability. So far, Bruin's history-focused test ticks none of those boxes. All right, so let's pivot at this point. We've covered a lot of SCOTUS news. We have both Rahimi, which, again, sort of the rare piece of good news in narrow outcome, still very ominous in terms of the court's approach, broadly speaking, to the Second Amendment.

We also had the Cargill case, in which the Supreme Court, not in a Second Amendment case, but in a statutory interpretation case, struck down this ATF prohibition on bump stocks in another act of, it felt like, real judicial kind of nihilism and suggested very clearly that the Court is an enormous obstacle to meaningful gun regulation. So that is out there. And I don't know, General, if you wanted to talk about Cargill at all. One thing I'd say, if you all have not done it, get a video and look at how a bump stop works. The court talked about you still have to move your finger or something. No, you don't. You get yourself an AR-15, put a bump stop on it, put your finger like this, and the gun does all the work. And what it can do, we saw in Las Vegas and that's why we can't get too excited about you know Rahimi I mean that yep right result six opinions but Cargill is really kind of an

indicator a greater indication of where this court's going to be when it comes to to guns so what did you think of all those drawings in Cargill there are like all those you know it was like gun porn like textualism I thought it was like an anatomical textbook. That's how it looked to me. Like gun porn. Yeah. Yeah. All right.

Yeah. And a gif. There was a gif and a footnote actually that took you to one of these videos about how these bump stocks operate. But it was this hyper technical, right? Like examination of the operation as opposed to what it actually means to interact with the gun. Right.

And what the gun can do, you know? Well, so I'm bringing up the drawings because we recently learned that the drawings were basically lifted from an amicus brief that was filed by the Firearms Policy Coalition, which is a nonprofit that describes itself as the nation's preeminent legal program focused on the right to keep and bear arms. And it seems like even though it's relatively a newcomer, it's more strident than the NRA. And what also seems interesting is that they have a beef with you,

General Holder. You are living rent-free in their heads because they have many blog posts. And proud to be there. Put down your welcome mat. They've got blog posts about you. They highlight press about you. And they're basically touting this idea that there's nothing the government can do about bump stocks under any administration,

certainly under the Obama administration where you were AG and now going forward. No, I mean, you know, if you look at, again, you see what a bump stock can do. It really does convert a semi-automatic gun into basically a machine gun. I mean, that's just the fact. The drawings are by, you know, people who want to get to that result are not consistent. I've talked to folks at ATF, talked to lawyers who do, and it's kind of like, no, those drawings are not necessarily accurate. All of the things that I think underpin the Cargill decision are simply inconsistent with

the facts and the reality of what a bump stock does. So we're going to have these nutcases who come out there and, well, basically lie. Basically, I mean, they're lying. It's not different interpretations. They're just lying about how these devices on semi-automatic weapons actually operate. And right now we have a receptive court to the arguments that those kinds of interests are going to make. And so maybe this is a good place to pivot. You referenced reforming the court. Since you have been out of government, you have been one of the people doing on-the-ground work repairing some of the damage the court has done, both from the perspective of the democratic process, but

also the court as an institution. So we want to take a couple of minutes just to get you to talk about some of that right now. And actually, maybe to start with the court, and then we can talk more about kind of voting and democracy. Obviously, the two are connected. You tell a story in your book about deciding not to argue a case as attorney general before the United States Supreme Court. It's not a story, I had noticed you didn't do it, but I had no idea why. Can you tell that story that you tell in the book? Yeah, I mean, there's a tradition that the attorney general argues a case before the United States Supreme Court, you know, you get dressed up in tails. It's the easiest case that, you know, there's a case that the government can't possibly lose. I mean, if you

go up there and drool, you know, fall down, faint, whatever, you're still going to win. And I was kind of at court, maybe second term, I'll do it, something like that. And then the Shelby County case came down. And I said, you know what? That really cinches it. I'm not going to do this because that presumes kind of like a regular order thing. And I don't want this court to think that I'm going to come before them dressed in tails and argue some easy case. My silent protest that I never shared with anybody until the book was that a couple of people in the department, I said, no, I'm not.

No, I'm not going to go before these folks and pretend as if, you know, after Shelby County, one of the worst decisions ever. And unfortunately, it's got my name on it, but we never call it Shelby County versus Holder. It's just a Shelby County case. Shelby County versus the Attorney General of the United States, whoever he was. That's fine. That's fine. I mean, would you want you to be like Dred Scott versus Holder? I don't want my name associated with that case. No, no, no. And so I said, you know, in spite of what the Solicitor General and other folks said, I said, nope, not going to do it. So, I mean, in the book, you write that it doesn't really matter when the court became politicized. But, you know, since we can put you on the spot, let's put you on the spot. I mean, if you had to pick a time in your professional career, is there a moment that really stands

out to you? Was it earlier? I mean, what was the real turning point if there was one? Boy, it's been so long now, it's hard to kind of remember the origin story. But I mean, you know, one of the realities I think we have to understand is that the Supreme Court in its history is a pretty regressive institution. We tend to think of the Warren Court years as, you know, as progressive. We think, oh, yeah, that's the kind of Supreme Court. That was a relatively limited amount of time. And then we get these little, you know, little dots. We get, you know, Windsor or Oberfeld.

I mean, we get little, you know, little things that kind of make you think the court is not what, in fact, it has been through its history and certainly not what it is today with these sigh of relief decisions. But I think, you know, for me, Citizens United, you know, around that point, that's when you start to, I start to think, wait a minute, this is not on the up and up. And after that, and the anti-democracy cases that follow it, you know, Citizens United, Shelby County, Rucho, you know, Alexander now, I mean, these are anti-democracy cases and I think really betray an ideological bent, if not a partisan one. I think that's one thing that people say, you know, these are Republicans. I'm not sure. These are ideologues. And that ideology happens to coincide with where the Republican Party is.

Can we go back to Shelby County versus some guy? Right. So that case is a monumental case from 2013. It strikes down Section 4 of the Voting Rights Act, which was the preclearance coverage formula. And it kicked it to Congress. You can write a new preclearance coverage formula, but everyone knew.

It kicked it to Congress after Congress had conducted hearings, thousands of exhibits, hundreds of pages of testimony, signed by a pretty conservative Republican president. Every time the Voting Rights Act has been reauthorized, it's been by a Republican president. They just ignore that. I mean, you know, did the Supreme Court conduct its own, do its own research? I don't think so, you know. I think we just called into question literacy on the court, so hard to say. Chief Justice Roberts, America has changed.

Okay. How much has America changed? What's your basis for saying that America has changed? And given what happened post-Shelby County, I'd like to put some sodium pentothal in him and say, do you still think America has changed? Sodium pentothal is truth serum. In your post-AG career, you've really been focused on this question of restoring voting rights and expanding voting rights. The court is obviously a huge impediment to that. So what are the avenues for doing that? And in addition to sort of working outside of the courts, should we also be thinking of court reform as a voting rights measure?

Yeah, I think there's a whole bunch of that's a really compound question. I mean, so what we focused on is we can't bring partisan gerrymandering cases in the federal courts. Well, we brought cases like that in the state courts and been, you know, relatively successful there. But I think also we've got to understand that, you know, I understand the focus here is on the Supreme Court, but we've got to get out there and get into the political process and we've got to win elections. And we've got to make sure that we focus on winning elections at the state level. That means state Supreme Court justices. It means state legislative races.

There's a whole range of things that we as progressives I don't think necessarily focus on. We think everything's about the federal United States Supreme Court, the federal government. There's a whole bunch of other stuff and at the state level you know things are being done in state legislatures that have an impact on people's day-to-day lives to a far greater extent than what's happening in the United States Congress I think that's a mic drop moment on the serious stuff and now we pivot briefly to the game it's time is that all right can we play a quick game do you for the game. Is that all right? Can we play a quick game? Do you want the game? Yeah. Okay. All right.

May I have a round of Martha Ritas for my friends, please? All right. Oh, here we go. Thank you. All right. Good job. Cheers. Cheers.

Oh, my gosh. Taste the hate. It's so good. Burgonia. Okay. So we end every episode with what we call court culture. Cheers. Oh, my gosh. Taste the hate. It's so good. Burgonia. Okay.

So we end every episode with what we call court culture. So news and other items from the courts, the federal courts, the state courts, all the courts. So our listeners can get to know the courts and all of the issues there. But we're going to dispense with court culture because what we really want to get to know or who we really want to get to know tonight is you, General Holder. So we're going to play a game that's designed to get to know General Holder. And the game is called This or That. Have you played this game before? I don't actually know how the drinking will work. Just drink. Okay. All right. We just decided it was a drinking game like an hour and a half ago, right before you came out. So here's how it's going to work. We are going to present you with a category and then there are two items in the category and you tell us which one you

prefer for that category. All right. Okay. So if you were to say... Prefer is prefer, right? You have to choose one. You have to choose one you have to choose one you're not going to like either of the choices in some of these categories no push no push so here's the first category worst scotus decision oh i know dobbs versus jackson women's health organization or shel County versus Holder? I'd say Shelby County because of the impact that it has had in a number of different places that really enabled states to do the kinds of things, gerrymandered states. There's a whole range of things that the Shelby County case took away from the federal government and enabled state governments to do. And a lot of the things

that we're dealing with as a result of Dobbs were generated by or prevented the government from getting involved in as Shelby County. So I'd say Shelby. That's close. That's really close. But I'd say Shelby County. I didn't say these would be easy. Okay, okay, okay. It's a really important point, right? Because Dobbs obviously takes away the constitutional protections for abortion, but states are the ones that enact the restrictive laws or the bans affirmatively. And in a lot of states, democracy is not working. Most of the population does not want an abortion ban, and yet these legislatures have enacted them.

You've got these gerrymandered state legislatures doing things inconsistent with the desires of the constituents of these folks, but because they're gerrymandered, they can do whatever the hell they want and not worry about not being reelected. A word. All right, so much lighter fare. Album of the Summer, The Tortured Poets Department, or Cowboy Carter? Schism on the pod. I got to go with Beyonce thank you thank you and I say that I'm no country western

person but I listened to that and I was like well that's pretty good I wasn't either and then you listen to it and you're like maybe I actually am maybe I now am a country musician I'm whatever Beyonce tells me I am I can't believe you guys gave me this one best father of daughters Barack Obama or Justice Kavanaugh I can't believe you guys gave me this one. Best father of daughters, Barack Obama or Justice Kavanaugh?

Yeah, I'm going with 44 on that one. Some of these are softballs, obviously. Let's make it trickier. Best father of daughters, Barack Obama or Commander Steve Vladek? Or who? Him. Oh! I didn't hear the last name. I was like, okay. I think he answered it.

Same answer. Barack still has Secret Service protection. I'm going still with 44. Stay on the good side of a man who can command folks. Sounds like a good plan. Secret Service protection people. So I'm going still with 44. Okay. Stay on the good side of a man who can command folks. Sounds like a good plan. All right, next category.

Best college campus. Columbia. Columbia. Yeah, thank you. That's exactly right. A few fans in the crowd. And NYU. NYU. NYU is kind of a sterile place, you know. Columbia has got activism.

We got, you know, we throw down at Columbia. We take over buildings. We do all kinds of good stuff. I took over the Naval ROTC office when I was a freshman at Columbia. So, you know. And you still got confirmed by the Senate. You got, they did. I think they found out about that afterwards, you know.

That's how you do it. That's how you do it. Unfortunately, all these shows are taped. So I'm a Columbia graduate, so I'm a homer here, Columbia. Okay. Scariest would be Attorney General, Ted Cruz or Josh Hawley. That's why you vote.

Ooh. Got dark. It really did. Everybody, including all the other senators, hates Cruz. Right? Everybody hates Cruz. I suspect most of them hate... I think Hawley might be a little more

odious, a little more. But that's like... Wow. Yeah, so yeah, he'd be the worst. Yeah, I'd go with it. So the gentleman from Cancun is our choice. I'm drinking to that.

Drink. Don't count that as an endorsement of Ted Cruz. No, no, no. I think that was clear. It's just a drinking game. Ted Cruz and his hearing. Attorney General Holder said I was not the worst. I think he said slightly less odious.

So I don't think that's going on any campaign slogans. Okay, most batshit method of constitutional interpretation. Because they're different, although how exactly I think is a little bit still to be determined. But framers intent versus history and tradition. All right, so they're both BS. They're both terrible.

All right, all right. Most batshit is the question. Least odious. Probably Framer's intent. Probably. Right. I mean, it's all nonsense. But I mean, you know, I've got to deal with what they gave me, folks.

Right, at least it's more of a finite universe and less kind of subject to manipulation, gerrymandering, all of that potentially. Yeah, I guess. Neither is good. That's stipulated. Let's go to the next one. I'm not liking this game, you know. It gets better. It gets better.

Best opinion sign off. I respectfully dissent or I dissent. I mean, forget that respectfully stuff because, you know, you know, you know, it's not respectfully. I mean, after you write this stuff that essentially says that stuff is just nuts. It's inconsistent with the facts, the law. I can't believe you wrote that. Then you write respectfully. No, no, no. Just I said what I said. Get rid of the adverb. All right. A serious one. Most promising court reform term limits or court expansion. You know, I think given the crisis that we face now, immediate court expansion is probably, I think, the thing that I would want

to see. Yeah. I talk about the need for 18-year terms in my book, and I think we should have that. But given the crisis that we now have, given the way in which this court was constructed with the theft of two seats, I think that expansion is something that ought to happen as soon as possible. All right. Better for state-level democracy, elected state Supreme Court judges or appointed state Supreme Court judges?

You know, given the results that we've had, and I don't like the notion of elected judges, but given the success that we have had and the batshit crazy people who serve as governors in states where we have filed suits, I think I'm okay with elected state court justices. A lighter note. Best Italian superlative. Fantastico or Vergogna? Vergogna. Best summer beach read-in?

The Art of the Deal or Promises to Keep? Well, it depends on how, do you want to laugh? I mean, just want to have a really fun time and say, just... Why not have a functioning democracy? Promises to keep.

Next two. If you're going to actually read Heart of the Deal, don't let anybody see you do it. Don't do it at the beach. Do it in the privacy of your room with the door closed. That's a Kindle read. The lights out and a flashlight, you know?

All right, two other actually both excellent books, unlike the last pair. Shadow Docket by one Steve Loddick. Yeah, yeah, yeah. The Trump Indictments by Melissa Murray and Andrew Weissman. Oh, that's a push. That's a push.

These are both must-reads. Good answer. One more pair. This is the last one. Everything is on the line. Okay. The first is Our Unfinished March by Eric Holder. You might want to sit down. You might want to sit down.

What's the second one? Grown Women Talk by Dr. Sharon Malone, also known as your wife. So I'm going to urge you to take your time with this one because you might get divorced. Well, here's the deal. One's a New York Times bestseller, and the other one's just a good book. So can I have that one?

Go with the bestseller. And get it on Amazon right now. And leave a little note that I got this because Eric Holder told me to buy this book, okay? Everybody tell Sharon, I told you to buy the book.

Alright, so we're over time, but we just want to say thank you so much to the great folks at the Howard Theatre for this fantastic opportunity. Thanks to all of you for making this a sold-out show, for coming out tonight. We're so glad to see you. An extra special thanks to our special guests, the incomparable Commander Steve Vladek, the best father of a daughter, Doug Emhoff, and Attorney General Eric Holder, the best player of this or that.

A couple of housekeeping notes before we go. Mark your calendars. Cricket is bringing you a presidential debate subscriber live chat event this Thursday, June 27th at 9 p.m. Eastern Time. That's right, you can suffer through this night together with a community of like-minded Cricket listeners and you can offer up your own commentary, upvote memes, and so much more. If this sounds like your ideal Thursday night, sign up by heading to crooked.com forward slash friends now. Strict Scrutiny is a Crooked Media production

hosted and executive produced by Leah Lippman, Melissa Murray, and me, Kate Shaw. Produced and edited by the one and only Melody Rowell, who has been sending us increasingly agitated notes in the iPads because we are really over time. Sorry, Melody. We were having so much fun, but we're really done now. Our associate producer is Michael Goldsmith. Our interns this summer are Hannah Saroff and Tessa Donahue. Audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper.

Production support from Madeline Herringer and Ari Schwartz. Ari, thank you for these margaritas. They're so good. Matt DeGroat is our head of production. Thanks to our digital team, Phoebe Bradford and Joe Matosky. Subscribe to Strict Scrutiny on YouTube

to catch full episodes. Find us at youtube.com slash strictscrutinypodcast. If you haven't already, beky. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash strictscrutinypodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please do rate and review us. It really does help. And one last thank you to Doug Emhoff, Steve Vladek, and Eric Holder.

That's three men we had in just one show. Don't let them tell you that DEI doesn't work. It works. And thank you DC for venturing out in this heat and inferno on this night of all nights to be with us. We love you. Thank you so much.