Strict Scrutiny - All I Want For Christmas Is Democracy

Episode Date: December 19, 2022

Before we can really get into the holiday spirit, we have to deal with the lump of coal the Supreme Court heard on December 7th: Moore v. Harper. The case is about a fringe legal theory that says that when it comes to regulating elections, state legislatures can do anything they want-- even violate the state constitution-- and state courts can’t intervene to stop them. It's bad, scary, foreboding, toxic, etc. Leah, Kate, and Melissa recap the arguments-- and then take a refreshing walk in a winter wonderland with this year's list of Our Favorite Things! If you're still doing your holiday shopping, we've got lots of recs. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. And guess what, folks? Santa's back because we, all three of us, asked him for one thing this holiday season, and that is democracy. It's one of our favorite things,

and that means we're going to recap Moore v. Harper, which was argued last week before the court. But we know that this might be a lot for you as you go into the holidays. So we just want to let you know, if you just want to lighten the mood for the holidays and you want some levity in your life and you want to know what our real favorite things are, although democracy is definitely still one of them, you can just fast forward through this lump of coal that the court has waiting for you and just get to our favorite things, which will be later in this episode. So with that in mind, we're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. And we are still also recording this episode after I got off a red eye flight. So I am also not responsible for anything I say in this episode. Just it's still off the record.

On background. Okay. So immediately on to Moore versus Harper, there's no other breaking news that we need to cover. And if there is, we'll get to it at another time. So this was the argument about the independent state legislature theory slash thingy slash fan fiction, which interestingly, the person arguing for it did not characterize as a theory as its prop proponents want to do. And I think that this public education campaign, of which we have been a small part, has worked really well here. And people know that calling this a theory or a doctrine is actually pretty toxic because it is neither. Good work. We should say, though, that even without the phrase ISLT or Independent State Legislature Theory or thingy or fanfic. The theory, the idea on which the case is built remains incredibly dangerous. And I think the top line coming out of the argument for a lot of people seem to be that unlike 303 Creative, which we recapped last

week, where the court is certainly going to burn it all down, they're not going to do that in one fell swoop here in Moore versus Harper. But the court could still embrace some version of this theory. And it seems to me important that that not get overwhelmed by the relief that people are feeling that the court is not going to turn into a big lump of coal that will topple democracy, but in 2024 or thereafter is the vibe I'm getting. Or through like the classic John Roberts, like two or three steps, right? Like that's the route they're going to take as opposed to doing it all, you know, like by New Year's Eve. So this is just like a little Christmas installation. This little bit of coal is just going to get honed and honed and pressed and pressed and pressured and pressured until it becomes a beautiful anti-democratic diamond. Or like a flint that's going to stab democracy right in the heart or the back or something like that.

OK, let's fire. There's a fire metaphor here, too. So any of these things. Let's frame this a bit outside the metaphors so we don't go into like the mall world of hypotheticals that the justices inhabited last week. So when the court agreed to hear this case, Moore v. Harper, on the very last day of last term, it felt really, really ominous. You know, the independent state legislature fanfic is, was a fringe theory, like so fringe it might as well be macrame made that the federal constitution gives state legislatures alone and withholds from, even violate the state constitution, and state courts can't intervene to stop them. And it gives federal courts the power to protect the state legislature from state courts and state constitutions and really the law and democracy by enforcing this idea. And the provision of the federal constitution that the proponents of this theory focus on in this case is the elections clause of Article 1, which gives state legislatures the power to set the times and places and manner of holding federal elections. But there are also some advocates of this theory who argue that the idea that Leah was just describing, that state legislatures have this special status, isn't limited to congressional elections because there is another constitutional provision in Article 2, which mentions state legislatures in the context of choosing presidential electors.

And those advocates say, like, ha, legislatures are also special when it comes to choosing presidential electors, and state courts and state constitutions can't constrain them there either. And if the state legislature wants to, say, throw out the votes of the state citizens for president and appoint their own electors, the federal constitution gives them the power to do that. So that's the John Eastman theory, which the court is not directly considering in this case, but which very much lurks in the background. And just a reminder, this case comes out of North Carolina, where the state court threw out an extremely gerrymandered map that would have made the congressional delegation of this 50-50 pretty purple state something like 10 Republicans to four Democrats. And remember, this state court decision came after Ruscio versus Common Cause. That was the 2019 decision in which the federal courts were viewed as having no jurisdiction over claims of partisan gerrymandering because it was a

political question. So they did concede in Russo that state courts could adjudicate these questions based on state law and state constitutional provisions, which is what the North Carolina Supreme Court did here. It interpreted the state constitution. And again, this is something state supreme courts do all the time. And it threw out that map as unconstitutional under the North Carolina state constitution. And so in addition to John Eastman and Donald Trump lurking in the background of this case, it is also a meaningful case in terms

of realistic and meaningful checks on partisan gerrymandering and the kind of democratic distortion and disruption that they create. So that's also in the background of this case as well. Okay, so let's start with some of the justices who noted continuously how insane the ideas underlying this claim are, Justice Jackson and Justice Sotomayor. So here is a great distillation by Justice Jackson, again, about how the claim underlying this entire thingamajig or fan fiction just doesn't really make sense. Can I ask you a question? Because you suggest that there's this thing called the legislature that the framers were familiar with. And I'm trying to understand why what counts as the legislature isn't a creature of state constitutional law. In other words, if the state constitution tells us what the state

legislature is and what it can do and who gets on it and what the scope of legislative authority is, then when the state Supreme Court is reviewing the actions of an entity that calls itself the legislature, why isn't it just looking to the state constitution and doing exactly the kind of thing you say when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn't it? So as that clip, I think, makes really clear, the idea at the heart of this case is that state courts can't enforce state constitutions in the context of federal elections, right? They have to stay on the sidelines and let the legislature regulate.

But Justice Jackson's point here is that this is completely conceptually incoherent, right? Like legislatures are not pre-constitutional or extra-constitutional. They are creatures of state constitutions. They are subject to state constitutional constraints and state judicial review. And to her, the case was simple and the premise of the challenge was absurd. And I was glad she articulated that, but as became pretty quickly clear to most of the rest of the bench, there was a lot of interesting merit and appeal to some version of this theory. They're ISL curious at a minimum. We have talked ad nauseum about the utter lack of support for this theory and could go on and continue to do so.

Justices Sotomayor and Kagan in particular kept hammering this home. And that's in addition to the real conceptual flaw that Justice Jackson like pointedly illustrated in that previous clip. So let's just play some clips of Justices Sotomayor and Kagan drilling the advocate with just how there just isn't really any evidence supporting or substantiating this theory. It seems that every answer you give is to get you what you want, but it makes little sense. Yes, if you rewrite history, it's very easy to do. Yeah, I guess what I'm saying is that in each of these three, we have very clear statements. And I appreciate the fact that this issue was not the one before us in each of those three, just as it wasn't in the case that you mentioned to me that started off my quoting other things. If you're going to quote one at me, I'm going to quote three at you.

I have to make a weird reference about that last Kagan clip. Justice Kagan's like, if you cite me one line, I'm going to cite three back to you, had real, and no one's going to get this except for like two people. But like that episode in RuPaul's Drag Race where they do the puppets of the finalists, real Shea Coulee puppet. This is how we do it in Chicago, bitch. Vibes. No one's going to get this, but in my mind, it's perfect. And I just I needed to share this with people. OK. I really thought that both Justice Sotomayor and Justice Kagan were not only talking about how this was an absurd theory with enormous consequences for democracy,

but again, that this whole idea of rewriting history, and you can rewrite history to say whatever you want, was sort of a subtweet of their colleagues, like just all of them, like just every single one of them, which I also appreciated. But again, I want to come back to Justice Kagan. Ladies and gentlemen, the originalists. Playing for only one term. Anyway, I want to go back to this clip of Justice Kagan underscoring that this is a really absurd theory, but with really enormous consequences that are not absurd at all. Actually, really serious.

So let's hear that. If I could, Mr. Thompson, I'd like to step back a bit and just, you know, think about consequences, because this is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that's a violation of the Constitution. It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state Constitution, in fact, prohibits. It might allow the legislatures to insert themselves, to give themselves a role in the certification of elections and the way election results are calculated. And in all these ways, I think what might strike a person is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed

most. And Solicitor General Elizabeth Prelogar, you know, kind of was making a similar point about the chaos that embrace of this theory would sow. So let's play her here. Throughout our nation's history, state legislatures enacting election laws have operated within the bounds of their state constitutions, enforced by state judicial review. This practice dates from the Articles of Confederation, and the framers carried it forward by using parallel language in the Elections Clause to assign state legislatures a duty to make laws. Text, long-standing practice, and precedent show that the Elections Clause did not displace this ordinary check on state lawmaking. Petitioners' contrary theory rejects

all of this history and would wreak havoc in the administration of elections across the nation. Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding. That would sow chaos on the ground as state and federal elections would have to be administered under divergent rules, and federal courts, including this court, would be flooded with new claims often at the 11th hour in the midst of hotly contested elections. The court should adhere to the consistent practice that has governed for more than two centuries and should reject petitioners' atextual, ahistorical, and destabilizing interpretation of the elections clause. Okay, so times, the argument or some justices present at the argument seem to be inhabiting this

weird, bizarro alternative universe where Chief Justice Rehnquist's concurring opinion from Bush versus Gore is like somehow the controlling law, rather than a minority view that couldn't garner fine votes because it's just so utterly embarrassing. And part of this is, you know, when we talk about Justice Thomas's concurring opinion, that is not the law. But that doesn't prevent some future court from just being like, well, there's this writing in this case. So how does your theory make sense of this against separate opinion, which isn't controlling, but we're just going to act as if it somehow represents an authoritative account of the law. It's just weird.

Yeah. And, you know, we've said this on previous episodes, but just to remind people, the kind of modern iteration of this ISLT does flow directly from the Rehnquist concurrence in Bush versus Gore. And, you know, Justice Scalia, who's obviously no longer on the court, but Justice Thomas, who of course is on the court, joined him in that. But as you just said, Leah, this was not a majority opinion. Folks familiar with the decisional history of Bush versus Gore, I think know well this was written in unbelievably accelerated conditions. So this like tender examination of the Rehnquist concurring opinion in Bush versus Gore was just like so surreal to me. And in particular, like putting aside just like how fast the drafting history was and, you know, the lack of care that I think a lot of it reflected, there was also a time when literally no one even dared speak the name Bush versus Gore inside the Supreme Court or even like when posing

questions to justices like outside of court. Remember like Justice Scalia would famously say. Get over it. Get over it. When he was asked about Bush versus Gore, they were just like the uniform message from the justices was we're not citing this case. We're not even talking about this case. This case never happened. Like let's just all pretend it never happened. And not only was Bush versus Gore.

It was like the eyes wide shut of cases. But it was like being invoked, like it had this totemic power. And honestly, actually, justices on the other side opposing the ISLT cited it, I don't know, not approvingly exactly, but like I just couldn't believe how much play this Rehnquist concurrence got. I think it comes back to this, right? It's not about the power of the concurrence, but the power of the personnel, right? I mean, so yes, it was a concurrence of just three justices in 2000. And only one of those justices remains on the court. But there are other people who subscribe to this theory now and who have like, you know, adopted the Rehnquist logic as their own. In fact, they may actually have had a hand

in sort of developing and cultivating this idea that was then later translated by Chief Justice Rehnquist into this decision. So I want to just pull this clip from the archive of a very young lawyer on the George W. Bush legal team who was especially enthusiastic about the independent state legislature theory that was later made totemic, as Kate says, by this court from the Rehnquist opinion. So here is none other than your coach, Brett Kavanaugh, talking about the independent state legislature theory on CNN back in 2000. Well, I think you're focusing on the wrong issue there. The real issue is what does Article 2 of the Constitution mean in the first instance?

And it delegates authority directly to the state legislatures. And the textualists on the court, led by Justice Scalia, are paying close attention to that language. And I think what we're seeing is more of a divide over how to interpret the Constitution than really political differences. I don't think the justices care that it's Bush versus Gore, or if it were Gore versus Bush. What they care about is how to interpret the Constitution. What are the enduring values that are going to stand a generation from now? And I know we've said this before, but there are now three members, three members of the current Supreme Court who were on the Bush campaign legal team. You know, Brett Kavanaugh, Amy Barrett, John Roberts. And so, yeah.

I mean, to be clear, it wasn't clear where the chief justice was. He seemed a little skeptical about this. And I think Justice Barrett is really good at sort of keeping her cards close to the vest on this. But Neil Gorsuch, who was not included down in Palm Beach County and in Tallahassee, he was not part of the team, but he did seem like he wanted to be on the team at this oral argument. And Sam Alito, not on the team, but definitely benefited from the team's success also seemed to be there. I mean, so there does seem to be at least four. And the real question is, where does the fifth vote come from?

So with that in mind, on to the argument. Wait, can I just step back for just one second? When you were saying that the chief justice, it's not clear whether he's going to go in for ISLT. This reminds me when we were talking about Merrill versus Milligan and how utterly fucking embarrassing it must be to find a theory that would restrict voting rights that is so implausible and baseless that even John Roberts, even John Roberts is unwilling to sign on to the theory when it actually gets to the court. Like, have you no shame, sirs and madams? And yet this is what they're going to do. On to the argument for the independent state legislature theory slash fan fiction. David Thompson argued for the North Carolina legislators here. And I have to say, he took a pretty good drubbing on this first argument.

And again, he was offering a really maximalist position that the elections clause completely disables state courts from interpreting state constitutions in the context of federal elections. And the justices seem to have a hard time with such a broad view of things. I think that's totally right. The first argument does not have a lot of support. So when we're talking about counting to four and where does the fifth come from, I actually don't think that's true as to this maximalist version of the theory. I don't think it even has four votes. And in some ways, the court's precedence and, you know, the North Carolina legislators' decision not to kind of like go full YOLO and ask the court to overturn all of them were kind of an insurmountable obstacle, right? Because the court has previously allowed things like gubernatorial vetoes in the context of state regulation of federal elections.

And like the governor isn't the legislature any more than the courts are the legislature. So if it's OK for a state legislative process to include the participation of a governor, it's really hard to see how it is categorically impermissible for courts to have any role at all. And pretty early on, Chief Justice Roberts sort of seized on and responded to that. So let's play that clip here. I mean, that's a pretty significant exception. You have otherwise a very categorical case. And it's sort of well with this one exception, but vesting the power to veto the actions of the legislature significantly undermines the argument that it can do whatever it wants. So then the lawyer arguing for, you know, the ISLT, Thompson tried to work around these precedents by proposing a distinction between procedural involvement, which he suggested is okay, and substantive involvement by other state offices, which he suggested isn't okay,

and procedural involvement he characterized as a veto. Substantive involvement is like state court review under state constitutional provision. But this theory didn't seem to have any takers, probably because it's incoherent and absurd, right? As a result of the veto, you were changing the substance. Here, the court review changes the procedures of elections, like the Constitution is all about the process and procedures by which laws are made. Anyway, so here's one clip from Justice Barrett on this proposed distinction. I think substance and procedure, as many of the questions that you've gotten indicate, are difficult to separate out. And so I'm saying you're leaning pretty hard on

the lack of judicially manageable standards for things like free and fair elections. So I'm saying, why should we take solace in a substance procedure definition as a more manageable line? Okay. People were really skeptical of this procedure substance distinction. And I just think as a general matter, this aggressive argument for totally ousting courts is pretty off the table. Although I do think, asterisk, there is an interesting question about what would happen. I mean, interesting and terrifying about what would happen in a case in which the proponents of the ISLT actually did decide to kind of take direct aim at cases like Smiley. That's the 1932 case about the governor having a veto. I mean, John Eastman in his brief in this case says that those cases are just wrong and the court should either limit or overrule them.

And there was this one point where, we don't need to play the clip, but where Barrett asks a question about, you know, where this procedure substance distinction is coming from. And she sort of says, well, does it come from the constitution or are you just kind of working with our precedents? And there was like something sort of like contemptuous in her voice, the way she was like, our precedents? Like, why are you worried about those? And I do wonder whether people will take that cue and sort of go, because he said, yeah, well, we've crafted arguments that are responsive to precedents, because normally that's how this all works. But I'm just not sure that's how this all works anymore. And if somebody wants to say all of those are wrong, and actually you should overrule all of them, I'm not sure if the next piece is received in exactly the same way. There's a new sheriff in To say all of those are wrong and, you know, actually you should overrule all of them.

I'm not sure if the next piece is received in exactly the same way. There's a new sheriff in town and she doesn't know about precedent. What she really wanted was someone like Judd with 2D stones to stand up at the podium and be like, I'm just working from atmospherics, your honor. Or like, here's my normative description of the law. And then she's like, OK, yeah, I i'll take that i'll take those vibes yeah no in a very weird and sort of counterintuitive way the most aggressive version of the argument wasn't aggressive enough to work right it was really aggressive but still like you know working in the ordinary paradigm of like law and precedent and in some ways like that was just completely incoherent. Passive aggressive will not work here. We need aggressive aggressive. Leave your precedents

at the door. Recognizing the binding nature of law is just fatal to the argument. It's not where we are right now. We're not there right now. Nope. No. The proponents other big argument was that even if courts could play some limited role, they couldn't actually enforce quote unquote vague or abstract provisions of state constitutions, like for example, the free elections clause of the North Carolina Constitution on which the state court largely relied upon here. And I'm not really sure what's so vague or abstract about a free and fair election. But, you know, I also put democracy on my Christmas

list. So what adult I am. And I mean, the implications of this argument also just don't line up. They don't really make any sense. You know, as scholars like Jessica Buhlmann-Posen and Miriam Seifter, who we had on the podcast this summer, have shown state courts have lots of democracy protecting and promoting provisions in their constitutions. State courts need to be able to, and they routinely do, enforce those, not just in the context of gerrymandering, but on other issues too. And here it was a little hard to tell where the court was despite the interminable argument on this theory. There just wasn't a ton of direct discussion of this version of the argument in particular.

Yeah, I had a hard time sort of figuring out. It a little bit shaded into this argument that we'll get to in a minute about whether, you know, if courts aren't totally disabled from acting here, at least there is some amount of federal oversight of state courts that was still appropriate, but not just based on the kind of vagueness or, you know, gener oversight of state courts that was still appropriate, but not just based on the kind of vagueness or, you know, generality of state constitutional provisions, but just as a kind of general federal constitutional backstop. So the two kind of ran together. But I really, I couldn't tell if there was much support for this kind of standalone position that some state constitutional provisions just weren't subject to enforcement by state courts. But maybe before we

turn to that- It's only the ones about democracy that are vague and abstract, Kate. That's the principle. Isn't that curious that that's how it works? Democracy is a vague and abstract kind of concept. That's right. And related, First Amendment, you know, states First Amendment and equal protection principles, like those two, I think the court would say, like those are, well, I suppose it depends on how the First Amendment is being invoked. I was just about to say, like, the First Amendment is very clear when it allows website designers to refuse to serve, right? It can be enforced. It can be enforced in some analogous state proceedings. That's right.

But just kind of to return to precedents for a minute, there was this kind of interesting and sort of weird, like, shadowboxing with some of the court's precedents. There was what I just mentioned, that Smiley and other old cases that the proponents of the theory just sort of seem to accept. But there was also kind of interesting discussion of some of the court's newer cases like the Arizona Independent Redistricting Commission case in which Justice Ginsburg wrote the majority opinion allowing Arizona to use an independent redistricting commission to draw its legislative districts over one of the maddest dissents that Chief Justice Roberts has ever penned. And they were just like, the lawyer, you know, Thompson sort of seemed to accept, said he accepted the Arizona case, but then at a couple of points cited the dissent, which again was a Roberts dissent. So it wasn't, you know, totally clear what they were saying about the current status of Arizona, which, you know, looms very large, I think, in this argument. But there was also, I thought, pretty interesting debate about the language in Ruscio. So Melissa, you were referring earlier to the court's decision declaring challenges to partisan gerrymanders, non-justiciable political questions. And in some ways, it's in the wake of Ruscio that we've seen a lot of states and state

courts sort of take up what felt like a pretty explicit permission in the Ruscio majority opinion that gerrymandering is a problem and that there are other kinds of recourse that still exist, sort of take up what felt like a pretty explicit permission in the Russo majority opinion that gerrymandering is a problem and that there are other kinds of recourse that still exist. Even a federal court recourse is now off the table. And so some state courts in the last few years have struck down excessive partisan gerrymanders. And that's, of course, what happened here. I thought it was worth playing some kind of debate about what the language in Russo about state courts and other avenues to challenge partisan gerrymanders really meant. So let's play that here. First, Thompson, the lawyer arguing for the ISLT talking about Rucho. And many of the policy proposals that were identified in Rucho

are ones that are fully consistent with the line we are drawing. The Rucho majority pointed to statutes in Iowa and Delaware that banned partisan gerrymandering. The Rucho majority pointed to a constitutional amendment in Missouri that designated and created the office of a state demographer to draw state lines. And essentially, that's what we have here in North Carolina. Partisan gerrymandering has now been banned at the state level for the state races. And we're not here challenging that. And that presumably will have a salutary influence if the actual legislature itself is not gerrymandered than when it comes to the role of doing congressional races. And there were a referendum, independent commissions were referenced by the Rucho majority, and we're not debating that in

Congress. And then there was this colloquy between Chief Justice Roberts and Neil Katyal, one of the lawyers arguing in opposition to the ISLT, also about the meaning of this language in Rucho. Mr. Katyal, you quote in your brief, and we've heard it this morning as well, the language from Rucho that says provisions in state constitutions can provide standards and guidance for state courts to apply in redistricting. Do you think the phrase fair and free elections is providing standards and guidelines? I do. Let me say two things about that. Number one, Your Honor. Just before you, I'll let you go, but providing standards and guidelines in the context of an opinion that emphasized how

unmanageable and indeterminate the various proposals were with respect to partisan gerrymandering. But you said that about the federal thing, the federal review, and I think it's very different at the state level for two reasons. One is, of course, states don't have the same type of non-justiciability concerns. And second, you anchored it in really a political legitimacy point about this court at page 2507. You said we can't, we're one Supreme Court, these cases are inherently political, everything's going to wind up here and be seen and through a, you know, seen by the outsiders through a political lens.

I think that point cuts the other way with respect to this case, because if you left it to the decentralized 50 state systems with their own traditions, and this is something that Judge Sutton's work talks about, yes, you can have an abstract clause. Many state constitutions do. And for the most important of reasons, that suggests actually, you know, those are sometimes the most fundamental provisions. I'm honestly not sure what to make of this kind of exchange, but it does suggest to me that some of the really clear sounding language in Ruscio, I know there might be some real appetite on this differently constituted court

for revisiting some of that. Okay, so we mentioned in our preview of more that there were three lawyers arguing against the independent state legislature theory slash fan fiction, and they all hailed from the Solicitor General's office. Former Acting Solicitor General Neal Katyal, former Solicitor General Don Verrilli, and of course, the current Solicitor General Elizabeth Prelogger. And they were all pretty great and had some very evocative metaphors and imagery to sort of encapsulate what the impact of the independent state legislature theory was and what it would do. And so I think my favorite might have been Neal Katyal's blast radius,

which was like, you know, if you grew up in the 1980s fearing either a nuclear war or a nuclear power plant blowing up in your backyard, and full disclosure, I grew up in Port St. Lucie, where there was a nuclear power plant that powered our city. So we talked about this endlessly in my school. But blast radius was something that just evoked childhood memories of going to a bomb shelter and doing drills. And I was just like, this is a lot. But it was a really good metaphor for this. Yeah, no, it was. It was good. It was evocative. I thought it might have been used like one too many times, potentially. No, never enough times for blast radius. Like never enough times.

I totally agree with you that all of those advocates were very strong. bold, burn it all down route, they all seemed, to my mind, actually way too ready to agree that the federal constitution and like the elections clause in particular did empower federal courts, or like at least the Supreme Court to second guess state courts and their interpretation of their own constitutions, right? Like if they got it too wrong, if they, the state courts got it too wrong, then SCOTUS could like swoop in. And I'm not sure that's right. And I'm not quite sure why everyone was so eager to concede it. But, you know, you had a few different formulations on offer for kind of when this might be appropriate and what the standard should look like. So maybe we could just play them all here. Let's start with Katyal.

For us, Mr. Chief Justice, because this court has never really confronted the situation of saying a state court got it wrong on its own constitution. We think that standard has to be sky high. It is the ultimate affront to sovereignty of a state to say its own state court got things wrong. And then Verrilli, who really kind of explicitly invoked the Rehnquist concurrence. We think the standard is that you'd ask whether the state decision is such a sharp departure from the state's ordinary modes of constitutional interpretation that it lacks any fair and substantial basis in state law. We think that is actually the best distillation of the kinds of tests that were identified in the Bush v. Gore concurrence as being potentially relevant. And finally, Prelogger.

With respect to this idea of whether there's an outer federal constitutional standard that could apply here, we agree that that's so, and the court could recognize that kind of constitutional claim. Now, we also agree that that would have to be highly deferential. And I think that that stems from the recognition that to state this kind of claim under the Elections Clause, you would have to be identifying a situation where a state court isn't actually engaged in the process of judicial review. So Kate, do you think that there, what would appear to be a concession that federal courts could rein in, state courts is really just sort of wishful thinking for a day with maybe a different Supreme Court when you might actually have rogue state courts doing the most

and you might want the federal courts to weigh in and constrain state courts? I think it was more their kind of knowing their audience right now and just thinking the chance that this audience, having decided to take the case up, was going to just completely repudiate this theory. Like think about the Chiafalo decision from 2020, which was do electors have a right to vote their conscience and ignore the popular vote in their state? And that was a case that if the court had decided to vindicate that argument, it would have been incredibly destabilizing. And I think that in the run up to it, we all talked about it. It seemed like it could be really consequential. And at the end of the day, the court basically said in a unanimous opinion, although there was

a concurrence, no, we're not going to embrace this novel theory. So like, I don't know, there's a universe in which something like that happens here. But I think that the fact that the advocates were kind of like so willing to sign on to this, at least broadcast to me that they don't really have any hope that there's going to be a big, like full throated rejection of the ISLT. Again, that was them, I think, speaking to their audience, but it just felt like it was a concession that this thing- Is a thing. That I think is so frivolous is a thing. I think one other theory is that they basically thought if they offered a standard that wasn't really any different from an ordinary due process backstop that the Supreme Court can already use if a state court is wildly overreaching,

then it would look like they were offering a kind of a compromise position, but really just kind of recapitulating an idea that already exists in the context of due process. And so it was kind of no harm, no foul, but I just worry about handing a new tool to this Supreme Court to second guess the work of state courts is just a dangerous path to go down. Yeah. And just to explain the due process backstop for listeners who may not be like as immersed into this this as we all have been, there is this well-understood principle that if a state court manipulates a state rule to the detriment or a disadvantage of a federal right, then the Supreme Court can step in

and review the state law question. But that is only going to potentially be implicated in these kind of ISL adjacent cases where a state court does so to the detriment of voting rights, say, adopts a new interpretation of a state law, applies it retroactively, disenfranchise people. And no one's really questioning that like that can happen and that the Supreme Court has used some version of that theory, you know, most often in 1950s, 1960s, civil rights cases, where state courts were playing fast and loose with state laws to the detriment of civil rights litigants, black litigants who were trying to enforce non-discrimination principles, you know, in voting and elsewhere. But yeah, it was extremely dispiriting not to see

a kind of just like broadside rejection of ISLT during this argument, given how just bizarre and outlandish the theory is. But okay, so as was true, when we were living in the weird Christmas village in the mall, there were a few Are You Serious moments in this argument this time for democracy. So you know, this, I think Melissa was fodder for your follow on piece, should you ever want to write it to Racing Roe, where, you know, in the Harvard Law Review, you described how the justices were kind of co-opting the rhetoric of race and racial justice to question Roe versus Wade. And here you had both Justice Thomas and Justice Gorsuch using a very inverted, perverse notion of racial justice and commitment to racial justice and saying that that's somehow required embracing the independent

state legislature thing. So Justice Thomas worried that state legislatures would try to further equality and protect racial minorities and state courts might stop them under state constitutions unless the court embraces the independent state legislature theory. Let's play that clip. Let me ask you this just as maybe a bit unfair. If the state legislature had been very, very very generous to minority voters in their redistricting. And the state Supreme Court said under their state constitution that this violated their own state constitution of North Carolina. Would you be making the same argument? So if yes, I mean, if you just justice Gorsuch said it's it seems as though it depends on whose

ox is being gored. So I'm changing which ox is being gored. We don't think anything turns on the substance of the individual decisions. But you would still be there making the same point to you. All right. So and then not to be outdone, racial justice advocate Neil Gorsuch was on full display. He basically was arguing that states could and on one occasion had amended their constitution in a really odious and racially discriminatory way. So invoked a pre-Civil War episode in which Virginia enshrined a three-fifths clause into its state constitution. And he basically seemed to be arguing that the possibility that a state could try to do something like that today meant that it was important that state courts not be allowed to enforce state constitutional provisions, so far as I could

follow the logic. So let's play that clip here. First, just a point of clarification, Mr. Cotshall. You take the position that Virginia correctly understood the Constitution when it adopted the three-fifths requirement for purposes of calculating African-American persons in its Constitution. No, Your Honor. So there's several different provisions being debated in 1830. One is the three-fifths provision. We're not talking about the three-fifths. We're talking about the regulation of federal districts, which is what the Elections Clause

violation was about. But you're saying what Virginia did at that time was consistent with a proper understanding of the Elections Clause. Well, the Elections Clause, yes. That's what I'm asking. OK, so you are defending that. Not the three-fifths provision. I guess I'm surprised by that, given that when the Elections Clause issue was

raised in that debate, as I understand it from the briefs before us, the convention attendees and others basically said, yeah, that might be so, but who cares? We have to protect our property interests in slavery. Yeah, so that's a different provision, Justice Gorsuch. So that's why I'm saying, you know, it's a nice smear of what happened in 1830 that has been levied by my friend on the other side. But the elections clause... They were not attending to the elections clause.

They were attending to their perceptions of what their property rights were. No, this was... He is really working this Ramos energy. This was the same vibe he was on in Ramos versus Louisiana when he made a lot of the fact that Louisiana had chosen to enshrine its non-unanimous jury conviction rule in the state constitution for the purpose of diluting the power of black jurors. And that's why they overruled Apodaca. He's very clear about that in the Ramos decision. But I mean, this is the same energy, and it's the same move that he makes everywhere. So again, woke warrior Neil Gorsuch. You know, on a broader point, it's hard to miss how fixated some of the court's conservatives are on state legislatures. That's perhaps not surprising,

given the degree to which conservative authority has been consolidated in state legislatures through gerrymandering and the like. But this interest in state legislatures really surfaced in many of the hypos and also was surfaced Justice Alito's concern about state judges rather than state legislatures being the real partisan hacks in this whole equation. So let's hear that clip. Well, that's a little bit that's a little bit off the point as far as popular accountability is concerned. We have seen examples of state. Many state Supreme Courts are elected and some states allow partisan elections.

So there's been a lot of talk about the impact of this decision on democracy. Do you think that it furthers democracy to transfer the political controversy about districting from the legislature to elected Supreme Courts where the candidates are permitted by state law to campaign on the issue of districting. This idea that the people are somehow going to perceive state judges rather than federal judges or federal courts as the partisan hacks here just, again, displays a real galaxy brain take on this entire situation. Yeah. On that point about federal judges and political hackery, I thought that Justice Kagan had just a great and penetrating exchange with Don Verrilli about how these standards that were being offered, about how, you know, if a state court is acting in like a purely partisan or

purely policymaking way, that might be a reason for the federal courts to have to intervene. And she was like, I don't know. I think we sometimes, you know, when we're in disagreement, accuse each other of being policymakers. If that's the standard, that's kind of in the eye of the beholder. So let's play that clip here. Your colloquy with Justice Alito made me feel uneasy about it. And I think that the reason is because it shows how very good judges on very good courts can find it incredibly easy to disagree with each other. And so if Justice Alito asked you, can it be flunked, I think what I want to ask you after hearing that colloquy is, is there a danger it's going to be satisfied too easily? And I'll just, you know, I think that every single one of us on this bench has written opinions at times, you know, saying that other judges, whether it's other judges on this court or lower court judges, you know, have engaged in policymaking rather than in law. And I mean, it's just sort of one

of the things that judges say when they really disagree with another opinion. And so how, you know, if you say acting as a legislature, not as a court, acting as a policymaker, not as a court, I mean, these really are things. It's not just this court. It's every court. These are things that judges say to each other all the time. How is this going to be the ones to decide when state courts so far depart from the norms of like judging that they have done something to subvert the will of the legislature is really concerning because like let's think about all of the ways in which Justice

Alito thinks the federal courts have say like subverted the will of the legislature. Like he is still throwing a temper tantrum about Bostock versus Clayton County, the Title VII case, right? He thinks that probably like departed from the norms of judicial interpretation. And so this idea that, well, all the Supreme Court would say in this case is there's a narrow, quote, narrow role for federal courts to intervene where they believe state courts are doing something other than engaging in conventional modes of judicial interpretation, interpreting statutes, really kind of allows them to decide that that is happening in their preferred cases. I mean, I just worry that Sam Alito will think that any Democratic majority state Supreme

Court or any state Supreme Court that is protecting voting rights is acting outside of the mainstream ordinary course of judging, particularly when in this case, you know, Moore versus Harper, Neil Gorsuch and Sam Alito are pretending like they don't know John Hart Ely's theory of democracy and distrust. Right. Like when Don Verrilli is suggesting that like, oh, well, all the state Supreme Court is doing here is suggesting that where the political process is skewed in such a way that the voters preferences aren't going to be meaningfully registered at the elections they can intervene like and they're like what what theory is that and they're like oh only the most famous theory of constitutional law yeah leah everyone knows john hart ely is only famous for the wages of crying wolf right right that's right i don't know about it it's a democracy and that's where he criticized rovers's Wade. They literally cited him, right, in Dobbs, right, like last term and still. I don't know him.

I only know, only his earlier work, actually. Sorry. Yeah. Wages of a crying wolf. Okay. Democracy and distrust. Not so okay. Or Alito sort of seeming to disparage the North Carolina Supreme Court's citation to the English Declaration of Rights. Like, no, no, it's okay if I do it, if we do it, but it's somehow lawless for them to do it. Like, that was just really hard to stomach. Well, I mean, Clarence Thomas already told you people, not all constitutional history is created equal. He gets to say what the good constitutional history is. Like, I don't know when you guys are going to understand this. This does have all of the writings of let's write a faux minimalist, right? Opinion that causes the present commentators. Yeah, that causes the present commentators to be like, oh, we have a moderate institutionalist court. Nothing big happened here.

And then blowing things up right later on down the road in a second or third opinion. I mean, it is just making me very anxious. Anything short of a complete repudiation of the ISLT, I think, is like an enormous loss for democracy, honestly. Well, let's tee up our end of the term and just like put that into a show note for later. Anything that is not a complete repudiation of the independent state legislature theory slash fan fiction is a slight to democracy. That's a good one. Now on to favorite things.

What I would like to find in my stocking is a complete repudiation of ISLT and democracy. And some skincare. So we did invite some listener questions about recommendations that you all were looking for. So maybe we can start with those. So one question we got was, what is your favorite recommendations for favorite comfy work clothes? Ding, ding, ding. I have an answer.

Okay. Okay. My favorite comfy work clothes. And again, I like it. It's my favorite because it's comfy, but it also looks pretty polished and dressed up. And it's Zuri Dresses. So Z-U-R-I. Zuri is this company. It's women owned. They do a lot of their sourcing in Africa from women in Africa who make a lot of their textiles and do a lot of their sewing. But it's basically just one dress, and it's a triangle. And weirdly, for many of us, the triangle actually is a universally flattering shape. And it's just this one shape, just this triangle, but it comes in a million different fabrics. The fabrics are gorgeous. They are batiks. Some of them are these sort of African prints, like deep wax cottons.

They're just gorgeous. And the dress is fantastic. So you can wear it as a dress with like heels or whatever. Or you can wear it as a jacket with a shirt underneath. Or as I do quite often, you can wear it as a tunic with pants. And if you're really daring, you can put it around your waist, use the arms as a tie and wear it as a skirt. So it is super versatile. It's great for travel. I have told Leah and Kate they really need to get on this tip. They're fantastic. Shop Zuri.com or if you're in New York City, they have a Bleecker Street store. And if you're in San Francisco, there is a store on Fillmore Street. You know, you recommended Zuri last year and I did take your advice and order a dress. Did you? Dark blue, light blue. Well, I don't know if it's a dress or a shirt.

I guess it's a tunic. Did you get half moon? That sounds right. I don't know the name of my dress. Oh my gosh, we're going to be twins. I love this for us. It's beautiful. I've worn it several times.

Okay, you're up to send me a picture and I'll see if it's the same one I have. Okay, half moon. It might be. But yeah, they're gorgeous and really very comfortable as well. I love this for us. So hard to top that recommendation, but my personal favorite is M.M. LeFleur. That's M.M. the letters

and then L-A-F-L-E-U-R. It's also a women-owned business and they make machine washable clothes for work that are super long lasting. So I have like tops, dresses, and pants that I got over a decade ago that I can still put in the wash and have lasted that long. And I just love them. They're basically the only work clothes that I wear. And only because earlier this week, Melissa and I were talking about the Woodbury Commons outlet mall outside of New York City.

I have to recommend two shops I'm like not really a go-to for any kind of fashion advice. But I will say there is a very good both Rag and Bone and Theory outlet. Now, those are both lines that are pretty pricey if you just like get them full freight. But there'll be like blazers that are like $600 that will actually be $150. And they're really nice blazers, Rag and Bone in particular. So that is a recommendation. If you can brave the crowds at the outlet mall, Woodbury Commons, check those out. How was their Christmas village? I mean, not racist as far as I can tell, which is great. So that's another reason to visit it. So next question is favorite fiction and nonfiction recommendations.

This is fun. So these aren't necessarily books like in the last year or two years, but just books I happened to read in the last year or two years, last year. So nonfiction, I recently read Claim of Privilege by Barry Siegel, which is the story behind the state secrets case, United States versus Reynolds. And it's incredible. Definitely would recommend that. Also read the recent biography by Peter Kanellos, The Great Dissenter about John Marshall Harlan. I also read Vanessa A.B.'s Homebound and would also recommend Lady Justice by Delia Lithwick, which we've referenced before on the show and will have a forthcoming episode. That's her and Melissa discussing the book. For fiction, Melissa recommended Homegoing to me. I loved that. That is just, I think, like maybe the best book I've read in the last five years. If you are into kind of

the format of polyphonic fiction, I also love Disappearing Earth by Julia Phillips. And also extremely into romance fiction. So I read all the Bridgerton books and also got into Courtney Milan's. I liked The Duke Who Didn't in particular. And I also recently read Trespasses by Louise Kennedy. So those are my recommendations. Okay, on fiction, I also loved Homegoing. I can't remember. I think I read it maybe two or three years ago, but really, really loved it. And in a similar vein, this, you know, for opening the kind of category to things that

really left an impression, but not just this year. I think I read Pachinko maybe two years ago, but it was just like incredible. I think Homegoing and Pachinko were probably, yeah, top couple books in the last five years at least. And the TV adaptation of Pachinko is also so far holding up amazingly well. I'm just a couple of episodes in, but it's great. And then in terms of really recent fiction favorites, I loved The School for Good Mothers, although I recommended it to a friend who afterwards was like, you didn't warn me about how hard a read this book is. And so I feel like I should warn our listeners. It's amazing, but very, very wrenching. I really liked I Love You, But I've Chosen Darkness. By Sam Alito. He did not ghostwrite this book, I assure you. Although, you know, the line works for him too.

And then Vladimir, which was really fun. I don't know if you guys have read about or heard. Is Vladimir like Lolita from the student's perspective? It is an infatuation by an older heroine and a younger object of affection, but not like Lolita Young, like a grown person. They're both professors at like a little college town in upstate New York. And it is just like weird and fascinating, both gender and sexual politics. And I just really, really loved it. It has like a very racy cover of like this kind of chest, you know, the shirtless man's chest. So if you read on the subway, like you might get some looks, but maybe some of the romance novels that Leah mentioned do too,

I don't know. And then, okay, a couple of nonfiction favorites. Dorothy Roberts, fantastic book, Torn Apart, about, you know, what people refer to as the child welfare system, but she refers to as the family policing system. It pairs well, I would say, in a lot of respects with the School for Good Mothers. We have shouted these out previously, but I realized we didn't mention them when we talked about the Moore argument. Both of Judge Jeff Sutton's books on state constitutions and state systems are really excellent, and they got invoked, I think maybe just by Neil Katyal, but a bunch of times by Katyal during the more oral argument. Tomiko Brown-Nagin's amazing biography of Constance Baker Motley, Civil Rights Queen,

we have an interview about that book that'll be in your ear holes soon. I really liked Joey Fishkin and Willie Forbath's Anti-Oligarchy Constitution. I've looked at it a lot as I'm prepping to teach con law next semester. And I'm currently actually listening to Rachel Aviv's Strangers to Ourselves, which is a bunch of sort of short chapters about sort of mental illness and of various sorts and starts with this like incredible autobiographical prologue introduction. And so I'm still reading it, but it's really fantastic. So my fiction selections are Homegoing, which I also adored. I think I agree with Leah, this is probably one of the best books I've read in my lifetime. And if you like sort of epic literature and sort of

not quite the style of James Michener, but sort of like canvassing in this really longitudinal way, a family over multiple generations, like it's such an amazing and wrenching work. And so I highly recommend it. Yaa Gyasi, who is the author of Homecoming, has a second book called Transcendent Kingdom. And that's also very good. Not sweeping in the manner of Homegoing, but very, very wrenching and beautifully written. I also love- Real talk. What do you put on the same? Because I also read it and I liked it, but my expectations were so sky high after Homegoing that I just couldn't quite feel the same way about Transcendent Kingdom.

It's definitely a sophomore effort, right? I mean, it's like a kind of classic sophomore slump. Like, I mean, Homegoing was just so powerful. You can't match it. But I think if Transcendent Kingdom had come first, you'd be like, oh, yeah, this is great. She's a really great new voice. And I think you would like it. It just really suffers by comparison to Homegoing, but it is by itself independently worthwhile. But like literally any book would. Yeah, I think that's right. But independently, it's worthwhile. And I really did love the story of the siblings and this woman sort of wrestling with the past and her sibling and the way that their lives intersect. I also loved, and this is also a second effort, a sophomore effort,

but it's amazing and even better than the debut novel. So this is Brit Bennett's The Vanishing Half, which is about two sisters who grow up in a Black community where everyone can basically pass for white, and eventually one of the sisters does pass for white. And it's about how this plays out over successive generations. So I thought it was amazing. Brit Bennett's first book, The Mothers, is also good, but this is just absolutely riveting and fantastic. So highly recommend. Another book from a couple of years ago that I don't think got the attention it deserved, but it's just an amazing, amazing book, especially if you love Jane Austen, is Joe Baker's Longborn, which is basically Pride and Prejudice, but told entirely from the perspective

of the servants. And it spills all the tea on the Bennets. And it's just so, so good. It was supposed to be made into a movie. I think the pandemic kind of interrupted the development process for that. But I really hope it will get back on track in Hollywood because I was really excited about it. And then my final selection is the sequel to The Silence of the Girls by Pat Barker. This is called The Women of Troy. And it basically picks up the period of the Iliad where the Trojan women have been captured by the Greeks. And they're basically about to leave Troy. This is after the death of Achilles. And they're going to leave Troy and go back to Greece. And basically about the spoils of war and what happens to the women

who are caught up in it. So it's just absolutely fantastic. Highly recommend. My nonfiction picks are Ideas with Consequences by Amanda Hollis-Berski, who's a college professor at Pomona College. This is about the Federalist Society. Lots of tea here. Also loved The Mosquito Bowl, A Game of Life and Death in World War II, which is by Buzz Bissinger, the Pulitzer Prize winning author of Friday Night Lights. This is also about football, but it's about a football game played between these college athletes who are stationed in the Pacific just after Pearl Harbor. And basically, they are playing in this one last football game before they're all going to go off to war in the Battle of Okinawa. So it's really fantastic, really amazing. Another fantastic book by my former Berkeley colleague, Stephanie Jones

Rogers, this is called They Were Her Property. And it's all about white women's roles in perpetuating and cultivating the institution of slavery. And, again, just amazing historical detail really debunks the idea that white women were sort of passive in the institution of slavery, which has sort of been the historical narrative that's been inherited. She shows like they're actually very active participants and like she has lots to say about it. And she's an amazing, amazing historian. And then of course, my final pick, which I'm sure you guessed, is Spare by Prince Harry, which is obviously going to be a Pulitzer Prize winning memoir.

Wait, it's one of your favorites and it hasn't even come out yet. It hasn't even come out. I know it's going to be my favorite. I actually know I'm going to get like five different copies of it because all of my friends were like, you're so hard to buy for, but I bought you Spare. And I'm like, I think everyone bought me Spare, but that's okay. But did anybody get you an autographed copy of Spare? I mean, that's the challenge. If someone can get me an autographed copy of Spare, that would be my best friend. Like my husband better get that together. But can I, on Amanda Holosbruski, can I just say that she also has a more recent book that I think,

Leah, you blurbed, right? Called Separate but Faithful about kind of conservative Christian efforts to change the law. And so let's put that on the list too. So next question was kind of about someone who's difficult to buy for and it was a request for functional gifts that you use every day that make your life easier, which is the only kind of gift that some people apparently accept.

So this was hard for me, like a gift that's practical and functional, but one that might delight someone. I think they might be two different things. So in terms of like my practical recommendations, like I love finding in like a stocking something like scissors. Like I use scissors for everything. Scissors are great for cutting herbs when you're cooking, like, you know, instead of chopping them like with a knife, like just snip them. Why would you use anything else? They're great for cutting pizza for kids. They're great for cutting French bread.

Like just buy a whole bunch of scissors. Wait, French bread with scissors? I've never done this. Try it. Am I missing out? You are. It's like very even. I'm fully on team cut the pizza with scissors, which some people think is weird. It's not weird.

Honestly, I literally almost severed my finger trying to cut a loaf of French bread with a serrated knife. And that's when I just got some really heavy-duty scissors like, it was just much, much easier. So highly recommend that. My other thing, again, this is sort of a functional thing that I like, and I wish I had around all the time was, I hate not having wrapping paper when you need it. And wrapping paper is such a weird thing. Like you, oh, here's a roll of wrapping paper, but it's for Christmas, and you actually need a birthday party wrapping paper thing. So I just buy a roll of brown craft paper and then you can just like change it up with ribbons or you can make your kids stamp it or write on it or whatever and just like keep it around. It is like something that makes my life easier all the time. So I don't know if it's a

gift, but it definitely makes things easier. The final thing, and this is actually a gift, this is something I did when my kids were really little. I would go to TJ Maxx where they would sell all of these Melissa and Doug, like very high quality wooden toys, but they were all deeply, deeply discounted. And I would literally buy like 20 of them, like 20 of these little gift sets, like puzzles, whatever. And I would just wrap them, put a little sticker on them, like what age it was for and just leave them in a closet. So whenever I got stuck for a gift for a kid for a birthday party, there it was. And that made my life a lot easier. And it was a gift for someone. So it qualifies for this. Yeah,

kid gift stockpile is really critical, I think. It just stops you from a lot of like panic last minute runs to the dollar store, which like, you know, they have stuff. It's not, it's never going to be the greatest. So I'm not sure if my recommendations like exactly fit the bill um but here are some ideas anyways um a spotify premium subscription is something you might use uh isn't gonna just gonna like sit there and collect dust to listen to archetypes or strict scrutiny or midnights on repeat um newsletters subscriptions for some types of people like if you're someone who really likes like reading up on like civil rights and law, you know, Sherilyn Ifill has a newsletter,

Steve Vladek has a newsletter. So that might be, you know, something that people might be interested in. A recurring donation or just like a one-time donation to an organization in, you know, someone's name. I think we'll touch on possible organization ideas a little bit later. A thermos for, youos for a warm drink.

And then this is an iffy one, but something that was really helpful to me is a physical therapy gift card or something. Because some people, they might not realize if they did some physical therapy, it could alleviate some kind of like long running pain. So like I had some like lower back pain and ended up like seeing a physical therapist and got like recommendations for like things to do at my desk or just like different exercises to do and like completely went away. And so I think even without kind of like a long term or serious injury, sometimes PT can be helpful. So again, depending on who you're getting a gift for, that might be another idea. We've really run the gamut. Scissors and physical therapy.

Wait, let me throw just two more in. One is I think a really good pair of headphones is something that everybody could use and that people don't always buy for themselves. I was sort of late to realize that having headphones that did not jam into my ears, but actually sat atop them. Yeah, Melissa, this is what I need to get for you next year. Really good headphones, honestly, that have like, you know, like the air traffic control looking ones like that, you know, have a little mouthpiece. You do look like you could land a plane right now. Well, I'm not even wearing, these are the ones that connect to my recording setup, but I have like this similar looking pair. It's this one and it, you know,

just like has a mouthpiece. You can walk around and it's just really excellent sound quality. And you're not going to like drop one on the subway or lose it or in the court. Anyway, I said that no cords to get tangled. So that I think is actually always kind of welcome, but you don't always think to buy that sort of thing for yourself. So one other idea sort of in the same vein, I think is the physical therapy certificate is a week of meals or a couple of days of meals from Saqqara. So they're one of our sponsors. And so you may have heard of them, but they make these vegetarian, like, you know, plant based meals. And they're actually totally incredible. And I got us actually the week of the election, like the midterm election, I knew that both my husband and I were going to have like completely

insane weeks. And I actually just ordered us a week of meals because I was like, we're either not going to eat or we're going to eat horribly because no one has time to cook this week. And having these beautiful fruit parfaits and salads and other things just in the fridge to put in my bag to take to the office or the studio was actually totally incredible. So I feel like that is another potential gift idea. So also received a question about Netflix or other streaming favorites. Melissa has some thoughts. I watch a lot of TV.

I read a lot of books, watch a lot of TV, and I am watching a lot of Netflix and streaming right now. So here are the things I'm really loving. Obviously, Harry and Meghan. It is a riveting rom-com that's going to turn into what I think will be a thriller of epic proportions in the second half. I haven't watched the second half. I just saw the first half, but I think it's going to be huge, and I can't proportions in the second half. I haven't watched the second half. I just saw the first half, but I think it's going to be huge. And I can't wait for the second half to come out. So highly recommend. I also liked The Crown. I admit that season five was a

little uneven, but such high production values. Just really fantastic to watch. Beautifully filmed. Highly, highly recommend. And I have to say, I do think it's really interesting that whenever I write something about the crown or Harry and Meghan, I get more hate mail than when I write something supporting abortion rights. It's actually incredibly wild. I think I put something out about the crown, like, I can't wait for this documentary. And all of these people from England wrote in like, it's not a documentary. It's completely disrespectful to the queen. And so it's just, you know, it's wild. People feel some kind of way about this. And I

think that's exactly what you want in your television, like something that really provokes feelings. Another show that I like also on Netflix from the great mind of Mindy Kaling is Never Have I Ever. Relatedly on HBO Max, Mindy has another show, The Sex Lives of College Girls. I love that show. I love that show. I love it too. I have a 15-year-old and I'm just like, oh my God, I don't know if I'm ready for this, but it's really funny and I love it. I also loved Sex Education, which is a Netflix show that's filmed in the UK. It's really fantastic. And I binged White Lotus. I literally saved up all the White Lotuses for one binge session. It took such restraint, but oh my God. And Jennifer Coolidge is a national treasure. We should protect her at all costs. The final episode of season two

might be one of the best episodes of television ever. So, so amazing. Yeah. Wait, so we haven't watched any of it. We managed to basically protect ourselves from spoilers. So amazing. Yeah. Wait, so we haven't watched any of it. We managed to basically protect ourselves from spoilers. Yeah. All I'm going to say to you, Kate, is like at the end, you explain to me why Portia needs yet another terrible outfit. That's all I want to know. That wasn't a spoiler though, right? No, it's not. Just, I mean, yeah.

I did watch the first season, but I haven't seen one minute of the second season. But I do think that's like a winter break project. Yeah, that's so good. So I'll report back. Yes. Okay, I have a few. Fleischman is in trouble. I don't know if you guys are watching that, but the book was great. And it's only maybe three episodes have been released, but we've watched them. It's Jesse Eisenberg and Claire Danes, and it's really good. Really been enjoying that. I already mentioned Pachinko, which we're watching and is amazing. Yellow Jackets,

do we know when the second season is dropping? I know, sorry, Leah, this is plane crash drama. You can't watch this. Yeah, I can't watch it, yeah. But it's so good. It's so good. They picked it up definitely for second season,

but I feel like I don't know. There's been like mixed messages about when we should expect the second season. I think Showtime is just, plays everything a little closer to the vest than the other streaming platforms. So yes, but Yellow Jackets was fantastic. Yes, it was.

And new season of RuPaul's Drag Race coming out January 6th. Very nice. Wait, one more to mention. Have you guys watched the other two? So it's great and hilarious. And I think it's like maybe two years old or something is the second season, but they have a third season coming out as well. Yeah, it's totally brilliant. I would watch all of that.

That sounds amazing to me. Wait, Leah, you just have RuPaul? Yeah, just RuPaul. Well, I also like Sex, Lives of College Girls and season two of White Lotus. I feel like I was plus one-ing those. Got it. Don't you watch The Bachelor too? I do, but I can't recommend that as like, recommend that as a show that I would encourage other people to go

start and watch. Now, Fuckboy Island, on the other hand. Well, HBO Max did not renew FBoy Island for a season three, which is a travesty. Some other network needs to pick that up because FBoy Island season two was a work of art. There were two seasons? Yeah. Okay, I missed one. Why didn't you tell me There were two seasons? Yeah. Okay. I missed one.

Why didn't you tell me? I feel like, okay. Okay. I got to go back. All right. So this is something to do. Watch season two. Okay.

I'm going to go watch. All right. What about in addition to streaming platforms, what about other platforms? So what are your favorite Twitter accounts? I am kind of obsessed with a New York Times pitch bot at Doug J. Balloon. It's so funny. I feel like that is the account that I most frequently laugh out loud when I just like read a tweet from. I feel like he listens to us because he says things like sometimes like there was no law,

just vibes. Like he'll say something like that. And I'm like, oh my God, is he listening? Is he a fan? It's a possibility. It's a brilliant account. And I also like it when people sometimes kind of mistake it for like the official New York Times account. Yes, it's so funny. And it reminds me a little bit of people trying to fight with the SCOTUS blog Twitter account when it announces Supreme Court opinions and people are like, what are you doing? And SCOTUS blog is like, I'm just reporting what the Supreme Court did. So people sometimes do respond. But I think that is evidence

of just how pitch perfect many of the tweets are. Exactly. He's really good. In terms of celebrity gossip, I really love at Kaiser at Celebitchy. So it's at Kaiser, K-A-I-S-E-R-A-T-C-B, and at Celebitchy. And both of those ladies run the website blog, Celebitchy.com, which is like my go-to for all celebrity gossip, pop culture. It's where I go for my family law hypotheticals. It's just fantastic. Oh, don't tell your students that. Oh, they know. I would probably do better on some of these references if I started following these accounts. So I am personally very grateful to whoever asked this question because I have never heard of either of these two accounts. I'm not going to be a good go-to. I think that both

Leah and Melissa are fantastic Twitter followers. But I feel like this is a hard question, because I don't know how long for this world the platform feels like it's going to be. We're all still there. I mean, there was a certain Titanic-esque quality a couple of weeks ago, when it really did feel like everyone was singing near my god to thee and rearranging deck chairs yeah and then it was fine it was but then now their twitter's not paying rent it's office space and firing all its lawyers i don't think it's fine inside now how long they can continue to maintain this operation who knows but it sounds like things are not totally copacetic i mean i'm i'm completely sure the whole thing is run by a hamster in someone's garage in Palo Alto.

It'll be fine. It'll be fine. Okay. So one final category, just random grab bag gift ideas. No favorite things list would be complete without some favorite skincare. Because as you know, there is someone on the court who takes his skincare very seriously, which means we should take our skincare seriously as well. And my favorite skincare pick is True Botanicals, which is fantastic. I recommended it last year. I continue to recommend it. But this year,

I have a new recommendation. And it was prompted by seeing Justice Alito's photo when he was portrayed in the newspapers after attending the Phillies Astro World Series game. And I saw him there in that picture. And I have to say, we talked about this a little bit. He looked a little weathered. And when I saw that photo of him, I immediately thought to myself, Melissa Murray, you have to start using eye cream. And so that is what I want to recommend. I got this great eye cream from one of our sponsors, GenuCell. but the eye cream is called Immediate Effects. And like, if you've had a hard night, you've like, just gone too hard, stayed up too late, done something, working on edits, I don't know, raging, whatever you do, after you take away a constitutional right, and you just rage for a whole summer, and you want

to correct things, Immediate Effects, a little bit under your eyes, completely clear you up, you'll look amazing. So highly recommend. Thank you to Justice Alito for prompting me to investigate that. I'm going to recommend just in terms of random gift ideas, two other kind of activities because I think that's a very good genre of random gift. And I'm sorry, they're both quite New York City specific, but I'm sure that there are versions of these in other cities. So one is a studio in Dumbo, although there's also a Manhattan location, and it is called Loop of the Loom. It is a Zen weaving studio. So you sit at this Zen loom for two hours and weave a beautiful, beautiful piece of fabric. And I literally have, I'm holding up now to you two. This is what my 10-year-old made at our session a couple weeks ago. It's so beautiful. Mine are in my office hanging like over things. And it's the most meditative and soothing activity and you come away with a beautiful textile. So that I think is a great gift idea. And the other one is there's an awesome new spa on Governor's Island. This crazy old island. I'll go with you to that. I would, Leah, we have to get you to New York and we have to go to this crazy spa. You take

a boat for five minutes to this little island that, you know, was a military base and barracks and is like being slowly repurposed in various ways. And there's a brand new spa, you can plunge into a pool and overlook the river and Manhattan and it's just beautiful. So I suggested we were going to come back to organizations later, I would just put in a plug for making a donation like in someone's name to one of the many organizations who are doing like wonderful work and needed work, you know, around this time, a few I'd put in a plug for, Rights Behind Bars, you know, an organization that is trying to curate and lead litigation on behalf of people, you know, who are detained. Another is the Second Look Project, which, you know, helps resentencings in the District of Columbia, abortion funds, extremely needed. And then also political organizations. So whether that's like sister district or organizations that are already looking ahead

to 2024 or red wine and blue, there are just like so many different things that you could get involved in, start to chip in now. Let me just jump in with a couple of other potential charitable giving ideas. So one, I'm gonna make a plug for the John Paul Stevens Foundation, which is a small foundation I'm on the board of. It does summer stipends for public interest fellowships. We just expanded last year to six HBCUs, and we are funding law students doing amazing summer work. So that's one idea. Second, everything that Leah just said, let me just add global health go-to organizations like Doctors Without Borders and Partners in Health. And then a plug to support local media, right? Like NPR just announced a bunch of cuts.

If you listen to NPR and you haven't pledged this year, kick them some cash. In New York, the Citi is an organization doing local reporting. It's a nonprofit. There's an organization called the Institute for Nonprofit News, INN, that you can go to to find a local news nonprofit in your area. The number of people employed by local news and the number of local newspapers is just plummeting and really has plummeted over the course of the last 15 years. And it's unbelievably important and just does

require money to survive. So please do support local news organizations. Also want to put in a plug for the Public Rights Project, which funds graduates as fellows and various city litigation departments so they can do affirmative litigation at the state and local level. They're fantastic. Jill Habig, who started it, is just wonderful. Please take a look at them. Since this is a holiday episode, I feel like we have to note, you know, the holiday party from hell, which was recently discussed in the news. Santa con. Santa con. Did Justice Alito show up at SantaCon? Do we?

No. How would we know? There are so many Santas. This is not the holiday party from hell that I was suggesting. Instead, Politico reported that Matt and Mercy Schlapp's annual Christmas party included the following guests. Matt Gaetz.

But also his wife came, which to me was a revelation that I hadn't realized. He actually tied the knot with his fiancee Ginger, and she's now Ginger Gaetz, and she was listed as attending as well. Sean Spicer, who it was a crime for him to appear on Dancing with the Stars. Alex Acosta, Stephen and Katie Miller. You skipped Seb Gorka. I was going to include him as well. Chad Wolf, Eric Prince, and who did I leave off? Oh, yeah, Justice Brett Kavanaugh.

They were just all partying together, ringing in the holiday. Totally normal and fine, because if you're not a partisan ideologue, you hang out with Stephen Miller, Sean Spicer, Matt Gaetz, Eric Prince. And Sebastian Gorka. His nightmare father. Yeah. Yeah. Whose views were too extreme for the Trump administration. But I have a question, which is why wasn't Sam alito there do we think he wasn't he was having a casual and purely social dinner with the rights during which they were definitely not discussing the outcome of the voting rights cases and other things too he was at megan kelly's house at her party yeah right i guess another holiday gift is we didn't get any december scotus ops so you know delaying the damage and chaos.

So, things to be thankful for. Rights until the end of the year. Woo! Thanks, guys. Strict Scrutiny is a Crooked Media production, hosted and executive produced by me, Leo Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell.

Audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. And digital support from Amelia Montooth. Thank you.