Strict Scrutiny - Behind the Scenes of Overturning Roe v. Wade

Episode Date: December 18, 2023

Before we settle in for a long winter's nap, we have a LOT to catch up on. First, Jodi Kantor joins the pod to talk about her reporting, with Adam Liptak, on what went down behind the scenes at SCOTUS as the conservative majority sought to overturn Roe. Then we go over some new grants of cases the Supreme Court will hear in the near future-- including the mifepristone case, and a case about January 6th convictions. We also recap some bananas arguments in Wisconsin over a gerrymandering case. And then finally, we share our 2023 edition of our favorite things! Whether you're still holiday shopping for loved ones or need ideas on how to spend your gift cards and cash, we've got you.Read Jodi Kantor and Adam Liptak's NYT piece, "Behind the Scenes at the Dismantling of Roe v. Wade"We're taking a break on 12/25, but check back in on New Year's Day for a very special edition of Strict Scrutiny!  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 legs. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. We have our annual Favorite Things episode all queued up for you, so don't worry. But in the brief period since we recorded that episode, some big things have happened at

one First Street. And so we wanted to talk about all of that breaking news before we turn to our favorite things. First, we are going to do a deep dive into that bombshell New York Times reporting that was brought to us by Jodi Kantor and Adam Liptak about the Supreme Court and the lead up to the court's historic decision in Dobbs versus Jackson Women's Health Organization. And joining us today will be Jodi Kantor to talk all about how she and Adam got to the bottom, or at least close to the bottom, of that Dobbs story.

And then we are going to turn to the Mipha-Pristone grant that the court took up last week. And we'll talk a little bit about what that means going forward and what it could mean for medication abortion access throughout the country. And then finally, we will turn to our favorite things, all of the things that you can drop in our holiday stockings and perhaps in your holiday stocking as well. So basically, this is our least favorite things and most favorite things episode. Even this first segment is a combination because hard hitting journalism that exposes the inner workings of the Supreme Court actually is one of our favorite things. It is. So the first piece of news that we wanted to cover is the New York Times' latest bombshell reporting on the behind-the-scenes maneuvers at the court regarding Dobbs and abortion rights. And with us today to

discuss that story, which is co-authored with Adam Liptak, is Jodi Kantor. Listeners, Jodi's name should already be familiar to you. Not only did she, along with her New York Times colleague Megan Toohey, break the Harvey Weinstein Me Too story, just a year ago in November 2022, she, along with Joe Becker, broke the story about influence peddling at One First Street and the Hobby Lobby League. So let's just say that Jodi is really, really, really good at digging into stuff that people would prefer to keep secret. So welcome to the show, Truth Seeker Jodi Kantor. Thank you so much. So honestly, where to start with the reporting? There are a lot of things we could cover from it. So let's start with a bit before they took the case, or at least before they took the case publicly. at least before they took the case publicly.

Good caveat, Leah. Jodi, can you talk us through what you learned about the timing of the court's decision to hear Dobbs and its announcement of that decision? Because it seems like there's a little mismatch here. So one of the themes that Adam and I kept finding in our reporting is that Justice Ginsburg's death really hung over the whole process. And you can see just from looking at the public docket that there is a very close relationship in timing between Justice Ginsburg dying and Dobbs moving into position for consideration by the justices. And what happens is that first it's rescheduled, as you know, but these terms are a little arcane to the public. That essentially means the discussion is just pushed. It doesn't really happen. The discussion is delayed by the court. We found out that behind

the scenes, it was Justice Alito who was doing some of that rescheduling in the fall of 2020. And of course, Justice Barrett is just arriving at the court at that point. So some insiders had the impression that he was sort of giving her time to get settled. But then in January of 2021, the real discussion begins. And you're right, the timing discussion is sort of the most interesting thing about it. First of all, the discussion takes place, it starts on January 8th, 2021. I thought a lot about that as I was working on this story. I just remember thinking, wow, two days after January 6th, right?

So, you know, it's a very scary time in Washington. There's been this attack on democracy. But as you know, the justices follow their own agenda. There's a kind of compartmentalization from the news. And they're taking up the discussion of whether and when to hear Dobbs. And initially, there are five votes to grant. So that's, as you know, smooth sailing. That is, the case has more than cleared the bar to proceed.

All you need is four to grant. Exactly. The second discussion, though, is in a way more interesting because it's about timing. And that's where there's disagreement. Three justices, Justices Alito, Thomas, and Gorsuch, they wanted to move pretty fast. They wanted to hear the case that term. So think about that. Justice Ginsburg, who's the court's sort of foremost protector of abortion rights, has just died. They want to move ahead pretty much immediately. Now, as we know, not just from this reporting, but from the legal world, this is a sensitive issue in the law. So there's this timing

discussion with some disagreement. Justice Kavanaugh makes this, my understanding is that it's a pretty unorthodox proposal. It's hard. What I've learned is that it's hard to say what's orthodox and unorthodox at the court, because nobody really knows what happens inside the Supreme Court. I think it's safe to say that if it is unorthodox, it's definitely from Brett Kavanaugh. So this checks out. We believe that this is unusual. And what he says is that, listen, we can delay granting. We can relist this on the public docket through the spring.

And he's got a specific reason, which is that there are other abortion cases winding through the lower courts. And this will give them time to watch that. a specific reason, which is that there are other abortion cases winding through the lower courts, and this will give them time to watch that. But it has another effect, which is it is going to distance taking the case from Justice Ginsburg's death. It is also going to satisfy the concerns of, or may satisfy the concerns of, a very important person who is Justice Barrett. I think one of the most interesting things that Adam and I learned is that Justice Barrett was not, somewhat contrary to her public image, an automatic yes to hear Dobbs. She had hesitations from the beginning. And in this discussion, she said, if you hear the case this term, I'm going to change my vote from a grant to a deny. And she cites these

timing reasons. She says, I'm brand new on the court. I haven't even been here three months. She essentially communicates that she is not ready. So this relisting plan goes forward. There's this delay. The public doesn't know what's happening for months and months. There's a lot of agita on the outside about whether they're going to take the case or not. And then the twist is that even though they are going to hear it the next term, she switches her vote, and she's a deny. And it's only four votes that Greenlight dobs. It's all male justices. I mean, you know, I guess what to think about this, you know, obviously, it underscores that Brett Kavanaugh cares a lot about what people think about him, and maybe also the court, like, we know this from his entire essence, right? And like general persona. This is really giving the Meredith Gray of the Supreme Court. I mean, this is very pick me, choose me, love me behavior.

Yes, hands down. And it also has the effect of America's favorite father of daughters gave the ladies of the United States an additional year of rights. Should we now think of him as the greatest feminist on the Supreme Court for all time? Not an actual question for you, Jodi. But to be fair, what I think is also interesting is this window of persuasion that it opens. And listen, you know, what Adam and I talked about early in the process is we said, we have to report the facts and other people are going to have their interpretations. And that's the way we're going to do this because there are, I think, multiple ways to interpret this. And as you know, you can't actually mind rate the justices, right? We don't know. We don't know what many of them were thinking during this process. So it does create this situation where, in this case, it was Chief Justice Roberts and

Justice Breyer, I think, really did not want the court to take the case. They made the case against it. Part of Justice Breyer's case was public. You know, you heard it in that speech he gave at Harvard Law School. He's very open, I think, actually about the way he felt. And the argument we know that he used inside the court was partially generational. I mean, think of Justice Barrett at this point, I believe she's 48 years old, he's 82. He was a justice when she was a clerk. So that's the kind of generational transition you're seeing. And he's saying as kind of a respected elder of the court, you don't need to rush, you just got on this court, you don't need to do this yet. So I appreciate that we're kind of turning this over and over because I know what the facts that

Adam and I can report are, but I'm actually not sure we a thousand percent know the full meaning. I think this is wildly unorthodox. And I'm also not naive about, I mean, there have been many, many politically motivated timing decisions, I think, there have been many, many politically motivated timing decisions, I think, made by the court when it comes to cert grants. There was lots of speculation, you know, with still, I think, varying accounts of the decision making around when to take up Casey, for example. But there are lots of other historical examples, both distant and more recent, where I think people think that political judgment was brought to bear on the decision of when to take up a case. So that has happened before.

But to my knowledge, an affirmative vote being taken, and I think an affirmative misrepresentation to the public via the docket, that no vote has been taken because a case is still being relisted for consideration and vote, that is an affirmative misrepresentation that, to my mind, we are at least not aware of any precedent for that. And that also strikes me as just fundamentally different from kind of wink and nod decisions to wait before a formal vote has been taken. And so I do think that this feels new, and it does feel like misrepresentation. That also involves parties other than the justices. What were the clerks told? Both the chamber's clerks, like the recent law grads who helped the justices, but also the clerk's office within the Supreme Court that maintains the docket that is public.

The public does have access to it. It seems to have contained misrepresentations for this period between January and May. And all that does feel actually really new and different to me. Well, but then consider the fact that the votes do change. January and May. And all that does feel feel actually really new and different to me. Well, but then consider the fact that the votes do change. The result is functionally the same, but the score is different. Yeah. And do you have a sense for like, what change that is why Justice Barrett changed her vote when they finally took the vote later in May, you know, again, deciding to grant the case that they had already decided to grant in January, but do it publicly. And also in your

reporting, you suggest that the four men who stood firm on their vote to grant did so because they were betting that Justice Barrett would still be with them on the vote to overrule Roe. And I guess like, I'm just curious to hear your thoughts on whether you got a sense for what changed from Justice Barrett. But also, that reporting was so striking to me, because it is about the justices confidence and how the others will rule on cases not yet before them, that they haven't discussed in detail. Again, kind of this misleading the public angle when Republican senators have been telling the public, we have no idea how this woman who has decried abortion on demand might rule on the future of Roe versus Wade, and telling people it's just wild to speculate. And here

you have the justices doing it, and it sounds like they're pretty sure. So I wish I could answer your question about why Justice Barrett changed her vote. I mean, it's the right question. It's a fascinating question, in part because she's such an interesting, I think, an important member of the court. And I think understanding her better is a really worthy goal for all of us. The biggest hint we found was in this law review article we cited in the piece. You know, she, like many of the other justices, she has written a kind of treatise on when it's okay to overturn precedent and when it isn't. And you saw the quote in the story, she says that, you know, she makes this point that if precedent is changed too quickly after a change in composition

in the court, it could look like sheer power and politics prevailed instead of reason. So we thought it was worth pointing out that this was something she had thought about in the past. So anyway, I certainly wish we knew. I wish we knew. And it seemed from oral arguments that she seemed pretty firm in her vote on the merits. But again, I mean, listen, we are not pretending to have complete omniscience with this story. There's obviously a lot more we would love to learn. And, you know, that sort of brings us forward, I think, to the question of, were these five votes 1000% solid? We have reason to believe they were. I mean, the story starts with these really fast joins, you know, where

this coalition is coming together very quickly and without comment, then again, we know that, you know, in the past, justices have sometimes changed their votes. Maybe one more beat on Barrett. And I think your point, Jodi, like it is really important to try to understand better what makes her tick, I think is correct. And reading your story was just a reminder. I have said before on this show, probably repeatedly, that I just find it endlessly frustrating that she doesn't write in her own name a short concurrence that explains anything in her voice about what she thinks of this question, determinative join what she thinks about all of this. And the backstory that you tell only heightened the urgency of that question to me. And so I think it's so right that we all just need to understand her. And right now she's not really helping. I think let's pivot to not the kind of prehistory, not the taking up of the question, but the actual opinion in Dobbs. So as you start your story by telling, it is shockingly fast how quickly the circulated draft opinion picks up votes.

And memorably, right, one of the most jaw-dropping details in the story is that Justice Gorsuch joins within 10 minutes of the circulation of the draft opinion by Justice Alito, which I think is 98 pages. He's obviously a speed reader and a historian. Yeah, no, these are the questions. How do we understand the join in 10 minutes? say one thing, you sort of allude to this, it's not unprecedented, nor I think is it improper in all circumstances for there to be side conversations and potentially even side consultations about draft opinions. It happened sometimes when I clerked there. A justice I think is not disabled from sending to one person in order to do some, you know, kicking up the tires of some reasoning

as they're working through an opinion. But is the suggestion that there was an entire side conversation that was happening between Alito and the other justices in the majority to Grant, including Barrett, who had initially had been a vote to Grant, such that they had all fully immersed themselves in the draft before the circulation? And I have my sort of suspicions that that, I'm not sure that even could be true, but is that your sense of how the votes likely came so fast, that they'd all already read and endorsed all of it? What we say in the story is that that's apparently what happened. And I think that's as far as I can go.

But as you say, it's not an unusual practice, which is, again, how confident was Justice Alito in his ability to hold those five votes together? He had lost one of those people on cert. Now, granted, voting for cert is very different from voting on the merits. But, you know, this is the seesaw of the Dobbs story, right? On the one hand, the five votes looked really solid. You know, on the other hand, is there a possibility that there was some wobbling? Sure. And then, you know, what we can really say is that we know that the Chief Justice and Justice Breyer really wanted to change the picture during the merits phase. I mean, we tried very hard to explain to

the reader because the math of the court is so arcane. But essentially, through the way they count votes, the Chief Justice only needed one more vote to change the entire outcome. It couldn't have come from a liberal. We learned that Justice Breyer was contemplating joining the Chief's 15 week position, that wouldn't have made the difference because the vote couldn't have come from the liberal side, it had to come from from a leader's coalition. But yeah, I mean, one more person and the entire outcome would have been different. Can I just say something about like the 10 minute join and the possibility of like pre circulating an opinion, getting back to something you said earlier, Jodi, about kind of like the craft and the care of carefully constructed opinions, or let's say, not so carefully constructed opinions. Alito circulated a 98-page draft in February. Ten minutes later, Neil Gorsuch joins it.

You're telling me that, like, Justice Alito took all the care necessary to actually look through all of the history, right, produce a draft with enough time to circulate among his colleagues to allow them to do all of the site checking and all of the parsing through all of the relevant sources that Neil Gorsuch was confident enough within 10 minutes to join it. I mean, like that just strikes me as so not judicious. And let's say hypothetically, for whatever reason, I don't know, Justice Alito had been pre-writing this opinion overruling Roe for like the last decade maybe and had like circulated it the day after, right? Like Dobbs has argued and then maybe Gorsuch, right? Like has two months with it before he like signs on. Still to join in 10 minutes strikes me as just a slap in the face to his colleagues and also to like the American public and women,

just the lack of care and concern for norms and judicious behavior. It's like that just struck me as kind of appalling. On the timing thing, I totally agree, Leah, even if there's pre-circulation, I suppose unless he's literally been writing it for years, I would not discount the possibility. But either way, to read it carefully, if you care, and actually to review the 16th century sources included, and to actually take time- And the statutes, all of those statutes. All the state statutes from the 19th century, and to take time with the lines of doctrine, equal protection analysis, the reliance discussion.

Law review editors take more time with a law review article than they did with this opinion. No, there's no way. Yeah, there's no way they could have done it. Even if he circulated it within days of the oral argument, there's no way they could have done a careful review. I do think Leah's correct. Also, they were like, this is perfect. No changes.

Like, what? None of them requested any changes. But Leah's right. I mean, like, I do think that this was an opinion many years in the making, like, even if it was only in his own fevered mind. Like, he'd been thinking about this for a while. But the point about the two months, like, for the other chambers, there was no fact checking done at all. We are always interested in learning more about this and more about the court. And I think especially in the places where this, you know, conversation is naturally passing into a little speculation as opposed to what we know for sure.

If there's anyone out there who wants to add information, I'm going to give you the best way to get to me and Adam, which is actually through the New York Times tips line. You can Google it. It's nytimes.com slash tips. I mean, my job is to build people's confidence in telling the truth. And I do think it's important that, you know, the historical record on this is correct. So if there are people who hear this who want to help or have other information about the court that they want Adam and I to understand, please do get in touch. And that includes you, Justice Alito. If you would like to write an op-ed explaining how you actually spent decades crafting this opinion and did thorough site checking, we know you have a soft spot for the opinion pages of flagship legacy media print.

You know he's taking that to the Wall Street Journal if he writes that op-ed. Come on. Can we tag back to Justice Breyer and the effort to broker a compromise? And I think it's really important that you help to explain the math to the public. I think we saw some elements of that math at oral argument where the Chief Justice was trying to float this compromise position whereby the court would uphold the challenged Mississippi ban, but would stop short of overruling Roe and Casey. And Justice Breyer, I think, joins the effort to try and get that compromise moving. And apparently, it might actually have worked, or at least have softened some of the people in the middle. And I imagine the ones in the middle are probably Brett Kavanaugh and or Amy Coney Barrett, or at least one of them.

But then everything hits a wall because the draft opinion is leaked to Politico. So did you get a sense in your reporting about whether there had been any headway with these justices in the middle that were the targets of Justice Breyers and Chief Justice Roberts brokering? And in fact, did the leak just sort of stop this and kind of arrest that process of compromise as it was just beginning to gather steam? We can be way more confident in talking about the effect of the leak than we can in seeing what might have happened if it didn't happen. The effect of the leak was to render these efforts pretty much hopeless. I mean, there's a reason why these votes are secret. They protect justices who may want to consider changing their votes. In our reporting, we didn't find some dramatic moment in which, you know,

one of the five yes votes is, you know, contemplating becoming a no. We would love more information. But I also think it's a very hard question to answer. Because it's a hypothetical, right? It's a possibility that was cut off. And we'll never know how things would have been different without the leak. I don't know, I got a sense that in that ninth minute, you know, before the 10th, when he joined Neil Gorsuch was really hesitating. But maybe that's just me reading between the lines. So we should also say like, a lot of this story that you report is unfolding at the same time as the Supreme Court is handling SBA, you know, the bounty hunter law that effectively nullified the protections of Roe versus Wade in Texas before the court formally overruled Roe.

And your reporting contains some, again, just eye-popping details about what happened in that case. One is Justice Sotomayor's final memo or message to the conference, which was just kind of gut-wrenching, you know, where she wrote to Alito and the rest of the conference, you know, what a pity that we cannot do the right thing. And then there was this other detail, which is during the negotiations over whether to stay this law before it went into effect September 1, Justice Gorsuch was like out of touch and couldn't be reached except by Sam Alito. So like with just a few hours until midnight, you say the court was split 4-4. Neil Gorsuch hadn't written. He doesn't check in that evening. Justice Alito reported to his colleagues. And then like he just says, yeah, I'll decline to intervene as well. What was going on there? I mean, they knew this

petition was coming to them, and he just like disappears. I mean, for me, that episode is really about two things. One, it's about just the portraiture of the moment Monroe really begins to fall. Because as you know, this Texas, it's like, the justices are preparing to hear Dobbs, right? This couldn't be a bigger deal. The attorneys on both sides are prepping. You know, this is getting all the treatment that a major case gets. And here this Texas law comes and races ahead. And it's this extremely restrictive abortion bill. It all but bans abortions in the state of Texas. As you know, it's got this very unusual enforcement mechanism that makes it pretty much exempt from federal review. And when it goes into effect, Roe is basically going to be

dead in the second largest state in the country before the Supreme Court has even really been able to hear the full question. And so part of that reporting for me was just about like in a way being present and being historical witness to this happening. And then the second part is the way it happened, which is this is a shadow docket case. And so this episode gives us a really rare look at what is happening inside the shadow docket and how chaotic it feels in contrast with the kind of orderly procedures of the court's usual operations. And so listen, I can't tell you where Justice Gorsuch was or what the explanation was for his absence. As you can see in the story, we asked and didn't get an answer. And also, it had no substantive effect on the law because the

court declined to intervene. It went into effect. They made an announcement the next day. But I think the mystery of it is almost what's compelling because it's this major moment when the law is changing and it's happening in this kind of chaotic scramble to midnight season. We were absolutely riveted. You had us with Justice Alito at the printer. I'll just stop there. It was amazing. We loved it. Thank you so much for this really important and probing deep dive into the court's inner workings. And thank you for showing the public that they can and should expect more in terms of transparency from the court. And some of what you have revealed through your reporting, I think, presents real questions about whether the court has been truly transparent with the public. And I think that's important for you to have put on the agenda. Well, it's a pleasure to join you. Thank you so much.

Our second piece of breaking news is that the Supreme Court, to no one's surprise, granted the government and the drug manufacturers cert petitions in the medication abortion case. So that means the court will be hearing that case this term. And we wanted to highlight a few notable things about that grant. So first, reminder that Judge Matthew Kazmirik in the district court had actually revoked the FDA's approval of mifepristone, which dates back to the year 2000. His ruling, had it gone into effect, would have rendered mifepristone an unapproved drug. Now, the Fifth Circuit reversed that ruling, basically finding that the challenge to the original, you know, 23-year-old approval wasn't timely. But the Fifth Circuit also reinstated a bunch of restrictions on mefapristone that the

FDA, the expert agency that has studied this question, had deemed unwarranted. And those restrictions, if they go into effect, would dramatically alter the availability of the drug. They would prohibit telemedicine, they would require in-person pickups and prevent distribution of the drug under current labeling. So those are incredibly consequential restrictions. And if the Supreme Court affirms the Fifth Circuit, all of those would go into effect. But it's important to remember that at least as of now, the stay of the Fifth Circuit's order remains in place and will remain in place until the Supreme Court decides this case. So nothing in the current landscape with the availability of Mephepristone will change until the Supreme Court actually issues its decision. And interestingly,

the court did not agree to hear the Alliance Defending Freedom's cross petition, which had asked the court to review the Fifth Circuit's holding that ADF could not challenge the initial approval of mifepristone, rendering it an unauthorized drug. So that is perhaps some good news as well. It is. But I want to sound a note of caution. I think, you know, we have all kind of speculated that we think the most likely outcome in this case is that the court will dismiss the challenge, finding that the plaintiffs, you know, this group of anti-abortion doctors lacks standing. And, you know, that will be legally correct. That will be good in that it will do away with these

additional restrictions, you know, on Mifepristone. But that will leave open the possibility of a future Republican administration's revival of the Comstock Act, because it would mean the court wouldn't resolve whether the Comstock Act could be interpreted in a way to prevent the distribution of medication, abortion, and potentially other drugs. And, you know, this ruling, if it is what I think it will be dismissing the case on standing, might blunt public concern on these issues in the lead up to the next presidential election. In fact, I assume if Brett Kavanaugh thought the court would actually go along with the Fifth Circuit's ruling, he just would have delayed publicly granting this case

until next term. And so it would be heard after the fucking presidential election. And we should say the federal government asked the court to take this case now. I think they should have. But there's also the Republican-led state's motion to intervene in the district court. And so it's possible, right, if the U.S. Supreme Court says these plaintiffs don't have standing, the district court and Fifth Circuit will come back and say, well, this other group of plaintiffs might have standing and then just do the whole thing over again, again, after the 2024 presidential election. So that's my sour dour note. I think that's an important note of caution to sound. It's also worth noting for our listeners that the Comstack Act is an 1873 statute that prohibits the

distribution and interstate commerce of any articles that have a quote unquote, immoral purpose. And historically, that was used to prevent the distribution in interstate commerce and through the federal mail service of anything like information about abortions or contraceptions, the articles themselves, erotic, anything. It's been in a state of relative destitute for the last 50 years or so, but it could be revived to address the question of sending abortion pills through the mail. And so that is the note of caution that Leah sounds, and it's a good one. We should also note that the court took a bunch of other really important cases, cases

that we're going to spend a lot of time talking about in the new year. So if you're excited about them like we are, which is to say we're excited about covering them, we're not actually excited about them. But please be sure to recommend this podcast to your friends. But to give you just a taste of what's going to be on the docket for next year, the court granted certiorari in a case that will decide whether a bunch of January 6 related convictions will actually stand. The case is called Fisher versus United States. And it asks the court to consider whether a conviction under a federal obstruction of justice statute that prohibits obstructing federal proceedings and investigations

requires proof of evidence tampering or other impairments of evidence, or if it can be replied in the context of disrupting an official proceeding, like, for example, the certification of the Electoral College. A number of January 6th defendants have been convicted under this law on the theory that the statute applies broadly to any kind of effort to interfere with an official government proceeding. But this particular defendant, Mr. Fisher, argues that the law, which was passed in the wake of the Enron controversy, is really only intended to apply to obstructions of federal investigations where the obstruction involves evidence tampering, as was the case in Enron. So

the question is going to really put it to the textualists on the court, because the broad text of the statute, I think, could apply in the context of obstructing congressional proceeding. But these defendants are basically arguing for a purpose driven approach to the statute, which is to say that it was intended to deal with Enron, not to deal with January 6. So that's going to be huge. And it's also going to have real consequences for the January 6 election interference indictment that Jack Smith has filed against Donald Trump, because one of the four charges against Donald Trump is that obstruction of an official proceeding. Well, it's one is the obstruction. The other, I think, is conspiracy to obstruct. So I think they're both I think two of

the four are kind of tied up in or at least connected to this petition that the court has granted. So there's certainly Trump implications for this case. And separately, Jack Smith has attempted to leapfrog the D.C. circuit and bring to the Supreme Court in a request for cert before judgment the question of whether Trump is – I hate that I have to say this like it's a serious legal argument. But Trump says he's absolutely immune from criminal prosecution because the court has had some cases in which it has said some kinds of immunity attaches to the president, but certainly never absolute immunity in criminal matters. It's just a far-fetched argument. Kate, that's more of a case of first impression because we've never had a president who's been criminally indicted, least of all four times. But the really stupid argument is that the double jeopardy argument is the truly stupid, stupid, stupid argument. And they've got to hear that one too.

So that's true. But that one, I honestly think there's no chance anybody on the Supreme Court will go for. And I think that the absolute immunity from criminal prosecution argument is one that the court will consider seriously and should, if it has any integrity, dismiss without much, you know, with a set by 72 vote at the very least. And that's a should and an if and all that. But in any event, I think there's a real chance because Smith is asking for expedited consideration. And the court granted that expedited consideration hasn't granted the petition. But this week, I think Wednesday, Trump's team has to respond. And so if the court wanted to, it could grant this cert before judgment and schedule a special session the way remember it did two years ago in January. It scheduled very, very fast consideration of the test or vax mandate for large employers. It could do the same and schedule an early session in January before they take the normal bench again.

And I really think they should because otherwise Trump will drag this argument out until there is no way for a trial to happen before Judge Chuck can before the election. So this is, I think, a really important point, just the court's capacity for expedition. Like this court can move fast when it wants to. And it has moved fast. Like Bush v. Gore is a paradigmatic example of the court moving very, very quickly. It needs to move quickly. I mean, I think he's ultimately hoping to delay this until after the election. And then he'll win if you know if that happens, and he'll just make all of this go away. So I mean, the court really has an opportunity here to step in and make sure that the American people have a clear answer about whether a candidate for president is someone who actually should be wearing an orange jumpsuit.

One other petition that the court has already agreed to take, perhaps because this court's shamelessness knows no bounds, the court, ostensibly with Justice Thomas participating, will also decide whether the federal bribery statute prohibits payments to state and local officials for actions the officials already took without requiring evidence of a quid pro quo. In that particular case, the petitioner, the defendant, received $13,000 from a government contractor to which he had successfully steered two contracts worth more than a million dollars. Cannot wait to hear what Clarence and Sam think about your friends giving you stuff after the fact after you've

given them some pats on the back. Lisa Blatt is also the counsel of record for the defendant in this case. So you know this argument is going to be one hell of a good time. I just worry the court is running out of corruption statutes to completely decimate. Like there's just not that many statutes left that they can. It will decimate them further. I mean, Leah, if you weren't going to steer these contracts to this defendant, they were going to be steered to someone else. So he might as well have taken them. Right. And again, like if you just want to give tens of thousands of dollars to government officials, isn't that basically your right? I mean, it's not unconstitutional to give a gift. Exactly. All right. So we also wanted to take the opportunity to circle back on the story of Kate Cox. Kate Cox, as listeners will remember from the last episode, is the mother of two who received a fatal fetal diagnosis, went to the ER multiple times with cramping and leakage, and requested an order that she could receive an abortion under Texas's medical exemption.

A trial court granted her that order. The Texas Supreme Court stayed it. And after we recorded our last episode, Cox left the state in order to get an abortion. When Kate Cox left the state of Texas to seek an abortion elsewhere, that likely mooted the case. But the Texas Supreme Court nonetheless released its decision. And in that decision, it explained why it was vacating the lower court's order allowing Kate to get an abortion. And in that decision, it explained why it was vacating the lower court's order allowing Kate to get an abortion. And in doing so, it basically ensured that Kate Cox would not be able to get an abortion in Texas. But I want to call out the opinion, because it is one of the most gaslightingly heavy judicial decisions I think I've seen of late. We've

received several questions about it. And so we want to briefly note what it said and what it didn't say. So first, the opinion says that Texas's abortion restrictions allow doctors, but not courts, to determine whether a patient's bodily functions are at significant enough risk to warrant an abortion under the medical exemption provision. This is categorically insane and ignores the reality of what it is like to have a fetal diagnosis and then be in a position where you have to terminate the pregnancy in order to preserve your own fertility and the possibility of future children. So there's that. And it's not doctors who actually determine any of this. It's actually

law enforcement officers who are threatening prosecution, as they did in this very case, if the doctors were to perform the requested abortion on Kate Cox. Recall that Attorney General Ken Paxton issued a threatening letter to three Houston area hospitals where Kate Cox's physician had admitting privileges, warning the hospitals that if Kate Cox received an abortion there, there would be both civil and criminal liability for the physician and for the hospitals. And leaving that to the side for the moment, in the event that there would be a prosecution, it's up to courts to then decide whether the medical exemption was actually applicable.

But that is all of no moment to the Texas Supreme Court because the court basically used this idea that it's all in the doctor's hands. And the only problem here was that this doctor didn't say some set of magic words as an excuse not to grant any relief of any kind here. And also notably, it didn't have to say anything at all because she had already left the state and this was a moot issue. So this was just gaslighting for gaslighting sake. They thought about it for like 10 minutes and then fired this one off all on the 10 minutes is the magic time frame for issuing huge decisions about women's bodies. The opinion also said that maybe the doctor just didn't use the right words here that would

actually have brought the exemption into play. So the doctor did didn't use the right words here that would actually have brought the exemption into play. So the doctor did not say verbatim, Ms. Cox has a life-threatening physical condition, or say that, quote unquote, the doctor was exercising her reasonable medical judgment, and that in that reasonable medical judgment, an abortion was necessary because Ms. Cox had the type of condition the exception requires. But the doctor basically said all this, did not say the exact sequence of words that the opinion suggests needed to be said. But reading the opinion, I don't think it's possible to conclude that the court would have allowed Cox to get an abortion, even if her doctor had said those words, and in part of because

what Melissa just outlined. Yeah, and also because the court went on to say, quote, a woman who meets the medical necessity exception need not seek a court order to obtain an abortion, end quote. As if to suggest, again, that a court will never grant a judgment saying an abortion falls within the exemption, you know, unless and until the abortion is performed and the doctor risks prosecution and crushing liability. And yet the court had the audacity to say, our ruling does not block a

life-saving abortion in this very case if a physician determines that one is needed under the appropriate legal standard. Again, while the state's chief fucking law enforcement officer is threatening all of the hospitals with prosecutions and liability. Yeah, I mean, the opinion insists that the exception is predicated on a doctor's acting within the zone of reasonable medical judgment, which is what doctors do every day. That was a quote from the opinion. But again, the chief law enforcement officer of the state is threatening prosecution. The exception does not give doctors the ability to exercise reasonable medical judgment as this case lays bare. And even as the Texas Supreme Court insists that the opposite is true, there is absolutely no latitude. This law gives a doctor to exercise reasonable medical judgment and to do so secure

in the knowledge that they are not going to face crushing civil liability and potential criminal prosecution with savagely long sentences and monetary penalties attached. So yeah, like we said, this is one of the most gaslighting opinions I think that we can recall ever having read. We have some court culture updates, so we're going to start with those, but then we will get into our gift-giving guide, our favorite things for the holiday season. Tis the damn season, so write this down. First up, our favorite things court culture edition. You know what we love?

Democracy. You know what we also love? When progressives care enough about state Supreme Courts to make a difference. You know what we also also love? When state Supreme Courts are about to do something to benefit democracy. We also love cheese. And this is a segment that really brings all of those loves together. And that's why it's one of our favorite things. If it wasn't already clear, we are going to start by talking about the Wisconsin Supreme Court, and particularly the case that is pending before that court challenging the state's legislative maps. So before Thanksgiving, the Wisconsin Supreme Court heard oral arguments in the case challenging the state legislator's state legislative maps. Now, the maps are not being challenged on the ground that they are a partisan gerrymander. Though they are, yeah.

But that's actually not the argument that the court is considering. The argument before the court is basically just that the districts in the maps are not contiguous as required by the state constitution. And that just basically means that they are drawn in ways that are logical and continuous as opposed to broken up. And that's a requirement in state law in Wisconsin and in, I think, basically every other state. So the argument right now is just that the maps are unconstitutional on the grounds that they do not comply with that requirement, not because of the partisan gerrymandering issue. Yeah, and they don't comply with that requirement because some districts have detached territories, which as the advocates noted, is extremely uncommon in the United States and districts. We know that this is a SCOTUS podcast, but as we've said many, many times, the courts writ large, state, federal, etc., are just so important.

And this case is super important since it has the potential to break Wisconsin's extreme gerrymander that is locked in Republican control of the state legislature, even when Republican candidates don't get a majority of the votes. And Wisconsin Republicans are so agitated, exercised about potentially losing this undemocratic, gerrymandered advantage that they actually thought about impeaching newly elected Justice Janet Protasewicz so she couldn't hear this case. And the Republican-affiliated or conservative justices, or at least some of them, brought that same energy to the argument. We wanted to give you a sense for how things went, so here we go. Justice Rebecca Bradley, perhaps the biggest Karen on any bench, state or federal, was ready to go, whatever it is she does, right out of the gate. So let's play literally the beginning of the advocate's argument. Good morning, and may it please the court.

The Wisconsin Constitution's redistricting requirements are not optional. Counsel, where were you? Where were your clients two years ago? Because we've already been through this. Redistricting happens once every 10 years after the census. All of the issues that you're bringing actually could have been brought before this court two years ago. So why did your clients sit on their rights? We granted intervention to basically anybody

who wanted to participate in the litigation I know your your law firm participated in the litigation in Johnson where were your clients why did they wait two years uh good morning Justice Bradley uh the court's uh September 24th 2021 order that granted the Johnson original action petition set an October 6th deadline for intervention in that case. That was well before the legislature introduced publicly its map. It was well before any party in the Johnson case submitted their map proposals, and it was months before this court ordered the legislature's map into place. There was no possible way the Clark petitioners could have known what their legal claims were on October 6, 2021.

Good morning, Justice Gabbard. Like trying to be Midwestern nice in the face of whatever it is she was serving. Like she really sprinkled on that Laura Ingraham sugar onto her Wheaties that morning. No, no, she had some bad cheese curds. Like that was bad cheese curd energy. Okay. And within the first 10 minutes of the argument,

she was not just obliquely making reference to things, you know, related more to her colleagues than to the argument or the advocate before her. She was basically attacking her newest colleague outright. So let's play that clip here. Everybody knows that the reason we're here is because there was a change in the membership of the court. You would not have brought this action, right, if the newest justice had lost her election. No, Your Honor, that's not right. I reject the- Well, Law Forward actually announced to

the media in April after the justices' election that they would be bringing this very case before the court. And wasn't that based on that justices' pronouncements about the maps being rigged? No, Your Honor. I don't think anyone said that this case would not be brought, which is, I think, the premise of your question. What I was going to say is that I reject the premise that the issue of whether or not contiguous means not contiguous. I don't see that as a partisan issue. It is just the plain text of the Constitution. And this court's decision and all of the opinions in the Town of Wilson case suggest to me, I think rightfully, that this is not a controversial question. That's also how she attempted to end this argument, with the last advocate to appear before the court.

So let's play that extremely normal clip. Counsel, I didn't get an opportunity to ask prior counsel about the due process issue that I think both of you have raised. So I'll ask you if you consider this to be a fair tribunal that will independently and impartially consider your arguments

in this case when three justices on this court ruled against your clients and a fourth justice conveyed her predetermined position on the Johnson case is by campaigning on a mantra that the maps adopted in Johnson were rigged and saying she agreed with the dissent in the maps case. It's interesting when only one justice on this Court has in a legal writing on this case actually called it this case rigged.

Excuse me, Justice, I would appreciate the courtesy of you not interrupting me, and I Only one justice on this court has in a legal writing on this case actually called it this case. Excuse me, Justice, I would appreciate the courtesy of you not interrupting me, and I would like to hear a response to my question. Consistent with the provisions of the attorney oath. Just a moment. You've been asked a question. Please answer.

All right. Are you finished with your question? I am. Thank you. All right. Well, we've reversed. We have reserved the question of what implications might flow from the disposition of the recusal motion. We're not offering any additional argument on that because that's been resolved at this level, and perhaps it will become the subject of appeal, perhaps not.

Extremely normal is Justice Rebecca Bradley's middle name. You know, a few notes on these clips. You know, it's notable that the lawyer is basically like, I don't want to go there, lady. Like, stop it. And you can hear Justices Jill Karofsky and Anne Good Bradley, Anne Walsh Bradley, trying to tone this down. We'll come back to this in a

little bit. Like they're saying, Rebecca, you're at a 12. We're going to need you down to like a three girl ASAP. So that's kind of more tonal. The substance of what she was saying was also pretty out there. So at one point, she and that's Justice Rebecca Bradley again, likened the challenge to the maps, including the fact that some of the challengers, but not all of them, are seeking new elections rather than just new maps for the next elections. Anyway, she likened those arguments to efforts to throw out the 2020 election. And that's not a joke. So let's run that tape. That's an extraordinary remedy, which in the past, when it's been requested in Trump v. Biden, this court rejected.

It's an absolutely extraordinary remedy. And it sounds, you know, there's many intonations about democracy throughout the briefing. I can't imagine something less democratic than unseating most of the legislature that was duly elected last year. A few thoughts here. Did she really reject that argument? You know, I'm not so sure, Melissa. I mean, just to recap, that case that she cited, Trump versus Biden, was four to three. And Justice Bradley, girl, you were in dissent in that case. Like, this is not something that you should be rehashing. And again, just to note, Justice Bradley specifically talking about quo warranto remedy, not necessarily about the merits of this case, i.e. unseating versus requesting a mapmaker help the court evaluate the proposed maps.

But the Wisconsin court wouldn't have to do that. It wouldn't have to unseat the representatives at all. It could just order new maps for the upcoming assembly elections when all assembly members are up for reelection and the new maps for half the senators who have elections because Wisconsin Senate terms are every four years. So again, she's like talking about stuff that doesn't even need to be relevant here, which is, again, extremely, extremely normal. At some point, she seemed to take particular umbrage at the fact that the litigants were challenging the map, which is a map the court had been involved in. There was this kind of like, how dare you suggest we might have made an error quality to some of her questions.

And just to remind people of the background, the state Supreme Court, so this court, actually selected the map in previous litigation after the governor and state law, including the Constitution. So I understand your argument is that we didn't spend enough time in the majority opinion in Johnson 1 addressing contiguity. So we wanted to touch on some recurring themes in whatever it is Justice Bradley has going on. One is, you know, we mentioned the hostility she exhibited to her new colleague, Justice Protasewicz. She was also a little aggro with her colleague, Justice Karofsky, at one point asking her when Justice Karofsky was participating in the argument, are you arguing this case? So let's play that clip. It's okay to usurp the legislature's constitutional mandate to redistrict, but it's not okay for the court to—I'm not following your argument at all. It doesn't make any sense. I'd like an answer to my question, Justice, first.

I think it's because the legislature was a party. Are you arguing the case? I mean, the state courts don't have to be lockstepping with the federal courts or the U.S. Supreme Court in any way. That's definitely right. But I mean, Elena Kagan has, I think, really charted the course of arguing cases from the bench. And that is pretty uncontroversial at this point. So Justice Karofsky tries to get the argument to the merits rather than having Justice Bradley attacking her new colleague, Justice Protasewicz. So this was earlier in the argument. Since we are here today, and since one of the issues is contiguity, I'd like to ask you a couple of questions regarding contiguity. And I think what you were saying, Kate, is that Justice Bradley seems to be irritated that Justice Karofsky is doing the kind of thing that happens at the Supreme Court, namely the Supreme Court justices do at arguments when a justice asks a gotcha question that they think is a gotcha question but has an answer. Justice Karofsky will sometimes interject to

try to get the argument to the harder stuff. And I guess they don't like this. Another time that happened is when another justice asked the governor, wasn't the governor also trying to do partisan gerrymandering and secure partisan advantage? And Justice Karofsky interjected like, no, not really, because we had directed the parties to abide by the least change principle vis-a-vis the maps that were already gerrymandered for Republicans. Can we go back to that whole point about Justice Bradley basically attacking her newest colleague, Justice Janet Protasewicz? Justice Janet Protasewicz was like, okay, that's how you want to play this? And she got in some pretty good blows of her own.

Do you know of any Wisconsin Supreme Court case that decided the original, and I emphasize original meaning, of contiguous in Article 4, Sections 4 and 5? Your Honor, as far as the original meaning, I think Johnson decided it not once, not twice, but three times, and I'm trying to get to that, why Johnson was correct with respect to its approach to contiguity. What is important in the constitutional text, contiguous is an adjective, and you still have to decide what it's modifying, and then that verbal phrase to consist of that precedes it. And I just want to stop you for a second can you tell me where in Johnson one two or three you found language addressing the original meaning your honor I don't I don't think the words original meaning uh appear in Johnson but in accurate thank you

that's a pretty sick burn from her yeah I know I know respect I like it you know from the Justice who said a W in protosewitz and two L's for losses and Kelly, like I like this justice, Janet, I like it. And just kind of want to offer a tip of the hat to her, you know, participating like this while her colleagues and the Republican legislature were just like relentlessly attacking her for the high crime of winning an election with progressive values. High crime and misdemeanor of winning an election. Yes. Okay. So maybe one final clip, which is the Republican justices spent a lot of time caricaturing the argument the challengers were making. How many Republican seats are fair?

How many are too many? And Sam Hirsch, who was arguing the case, had a very nice rejoinder to that that we wanted to play. What would be neutral? What's the acceptable range of Republican or Democratic-leaning assembly districts or Senate districts that's within the permissible range? The key question is which maps are most likely to support rather than thwart majority rule. So it's not about the percentage of designers in your question.

What is that? What is that? Can you be more specific? What is the percentage of designers in your question. What is that? Can you be more specific? What's the percentage of majority rule? How many Republicans are permissible? How many Democrats? I'm sorry, Your Honor. Go ahead. To be really clear, look, this is a very, very hyper-competitive state, and which party's candidates get more votes in a given year

shifts from election cycle to election cycle. In a year where Republican legislative candidates get more votes in a given year, shifts from election cycle to election cycle. In a year where Republican legislative candidates get more votes statewide than Democratic legislative candidates, they should control the legislature. And vice versa, in a year where Democratic legislative candidates get more votes statewide, they should control the legislature. It's that simple. It's called majority rule, and I hope the court stands up for it. Hey, dolts, that's majority rule.

It's called democracy. Look it up. All right. Now, we've done some court culture. We've talked about Wisconsin. We've vindicated our love of cheese. We've hailed Jill Karofsky, our favorite cast maestress slash justice of the Wisconsin Supreme Court. Now

it's on... Or Becky Dallow too. You can have multiple. There are a lot of cast maestresses. Multiple favorite things as we are about to say. Wisconsin is literally replete with jazzy justices who are amazing. Overflowing. Overflowing.

A cornucopia of amazing lady justices who are amazing. Overflowing. Overflowing. A cornucopia of amazing lady justices. But now let's get to a cornucopia of gifts I'd like to see in my stocking. All right. So if you're listening, family members, here we go. So Leah, I'm going to let you start because I want to warm up and get limber. Okay. Okay. Sounds good. So these are, I think, more ideas for what to give to others. Sorry, sorry. But like, one thing is personalized or unique stationery. I just think it's amazing. Like I got some, no surprise, Taylor Swift cards that I am using to like send out notes. And I just, I love them. They make me happy sending them out. I love getting like personalized stationery from others. A friend of mine who's a public defender has stationery that says her name on it, as well as the case citation for Gideon versus Wainwright, the case establishing

a right to counsel. Melissa, you have delightful personalized stationery. It's just, I love that stuff. So that's one of my ideas. Another maybe is a foot massager or like muscle massager. I just think that's like really nice to put under your desk or to have for like after workouts when you're like getting ready to fight the patriarchy physically. You know, it's nice to have one of those like muscle relaxers to help you recover after. Yes, that's what I'm talking about. It's pretty great. Yeah.

And they have like some of the price points are pretty high on like the big ones, but they have small ones that are like under 200 bucks. And they really, really work if you are like going to lift some very heavy weights to just channel your rage and your sore afterwards. They can be nice. I don't know about a foot massager, like the one that you can just put your feet on. Yes. No, put your feet in.

Yeah. Like, yeah. Interesting. Yeah. Those are actually a lot less expensive than the Ther on? Yes. No, put your feet in. Yeah. Yeah. Interesting. Yeah. Those are actually a lot less expensive than the Theragun, too. Yes, they are. They're much less expensive. A few other ideas.

One is give yourself or help your significant other or partner have a weekend with friends. I just think that making time and space for that is just really energizing for the rest of the year. I basically think back to the amazing weekends that I had with some of my friends this summer, mostly at the Heiress's Happy Place, Sarah McClain's Knockout, Heather Cox Richardson's Democracy Awakening, Steve Fladdock's Shadow Docket, Katherine Webb's House of Odysseus, Marissa Meltzer's Glossy, Katja Hoyer's Beyond the Wall. Those are some of my favorite reads from the last year. I loved Glossy. That was a great one. It's so good.

I love Marissa Meltzer. I think she's amazing. Yes. I know. I haven't read it. I should read a great one. It's so good. I love Marissa Meltzer. I think she's amazing. Yes. I know. I haven't read it. I should read it this year. It's so good. I'm going to be on the beach for a week over the holidays.

It's about the rise of the Glossier empire. It's really good. Oh, yeah. Some other ideas, more crossing over into law territory, Substack subscriptions. So we talk about Lawdork run by Chris Geidner. One First run by Steve Fladdick. Abortion Every Day by Jessica Valenti. Yes.

For sure. Let's shout out Karen's Corner on One First. One First Street. It's a delight. It's delightful. It is. If you have access to it and the know-how, making some custom musical beats of your favorite SCOTUS clips.

We suggested, or Kate suggested, she wanted audio of this clip from the Jarcacy argument made. So let's play the clip. Really have wide repercussions. I know, FTC and others, I'm aware. EPA, agriculture, I mean, it's really all over. FERC. FERC. FERC and Mekas Prevost. And a strict scrutiny listener stepped up to the plate, offering this listener-made audio. Fur. Fur. Fur. Fur can be extreme.

Fur. Fur can be extreme. That's pretty great. I couldn't love it more. It's just delightful. I kind of want to just put it on as my soundtrack for all of my upcoming writing projects and just, like, get excited. I mean, there is a kind of house music quality to it that I didn't know you really, I didn't realize this was your. My metier. Genre.

Yeah. Your metier as it were. For writing sometimes. Yeah. Yeah. I mean, it's like, it's got a very jock jams kind of vibe. Well,

it's a Brett Kavanaugh. Isn't that appropriate? Right. I mean. Ferk. Work, Ferk. Work. Truly.

Thank you. That was an amazing, amazing holiday gift from you to all of us. So thank you. If she knew your name, she'd leave her husband for you. The marriage is safe. All right. Since you've shamed me, Leah, these are all gifts I would like to give other people. First up, I think it's nice to have a journal. I know people like to take notes on their iPad

or their iPhone or whatever, but I like to write things down. And like my husband says that I write down things and like my handwriting is like very precise and he says it looks like serial killer writing. But I like to like sometimes go back and look at like all the things I've written like I'll write down like ideas for articles and outline them in my serial killer handwriting and so when I write these things down I love a Shinola journal they're so nice they come in either our spiral bound or regular bound and they have this beautiful linen cover and when you buy, you're supporting Shinola, which is a Detroit company. And I love Detroit and I want to support Detroit. So I love those Shinola journals. They're awesome. And again, my favorite thing to do for myself, but also for other people is to give them skincare.

And my favorite, favorite, favorite skincare brand is True Botanicals, which I love so very, very much because it's absolutely delightful. But I have recently gotten into a new skincare line called Biography. And in particular, I love their night and day duo of face oils. So fantastic. The nighttime oil is called Petty Grudges, which is like, hello, I feel seen. I love that. They are used by none other than the other MM, Meghan Markle. And I peeped them watching Harry and Meghan on Netflix. And I saw the bottle on her dresser at Frogmore Cottage. And I zoomed in on my computer in order to find out what it was. And it was biography. And I decided to try them. And I love them. So that's fantastic. Highly recommended. And I think right now they're doing some kind of promo where you can get 20% off the little trial set of the day and night face oils.

My third favorite thing, which I think is very good for the lawyer set is my remarkable tablet, which I use for taking notes and annotating law review articles. I love it. It's fantastic. I like it because what I don't want to write in my serial killer handwriting in my journal, and I want to like upload something into a Word document. This is perfect for that. So I don't have to take the extra step of typing it out. I got this tip from Asamudia James at the University of North Carolina. She had one. She's doing all kinds of amazing things with it. I got one. I absolutely love it. But what I do most of the time on it is read law review articles. So I really love that. And then my favorite thing that I did this year was I made the New Year's resolution to read more fiction, not law review articles, but actual

fiction, like fun stuff where I can imagine an alternative world where judges adhere to precedent and don't want women to bleed out in parking lots. And so I got a Book of the Month Club membership. That was a suggestion from Melody. She gave me her referral code. So she got some free books for it. So a win-win for both of us. Every month I get to pick a new set of books, which I love. So I got Hester by Lori Liko Albanese, which was a retelling of The Scarlet Letter, which was fantastic. Black Cake by Charmaine Wilkerson, which is now a Hulu series. That's fantastic. I haven't read that. It's really good. I also got Daisy Jones and the Six by Taylor Jenkins. Read that. Love that. Love that. Okay. And I love the Amazon Prime series and also I love the album the Daisy Jones and the six album is a banger for a fake band like they sound it is a full media experience it is amazing

it's absolutely if they came and played a concert I would go I don't care that they're a made-up fan I I bought a t-shirt I will go I think it's real I thought it was fantastic there and then I got into a whole Taylor Jenkins read like hole. I just jumped into the hole. I read Keri Soto is back, which was amazing, and a bunch of others. So I really like those. And then one of my favorites recommended by Melody was Lessons in Chemistry, also now an Apple TV series.

Fantastic by Bonnie Garbus. I really liked it. I liked it a lot. I loved it. I thought it was great. And then if you're definitely into reproductive justice and you would like to imagine a more progressive future, I thought Take My Hand by Dolan Perkins Valdez was actually amazing. It's basically a fictionalized account of the sterilization case, Ralph versus Health and Human Services.

The Ralph sisters, yeah. The Ralph sisters. And it was just so beautiful and Health and Human Services. The Ralph sisters, yeah. The Ralph sisters. And it was just so beautiful and moving and highly recommended. I also loved Demon Copperhead, which is basically a retelling of David Copperfield by Barbara Kingsolver, who won the Pulitzer Prize. Also read The Guest by Emma Klein, which is all about like shady, weird stuff happening in the Hamptons. Definitely good. Because I loved it so much, I thought Book of the Month Club is something we should share with our strict scrutiny listeners. And Book of the Month Club has come through and offered us

a promo code just for you all. So the Book of the Month Club gave us a promo code, SCRUTINY, and they said that you could use it to get your first book for just $5. So head on over to bookofthemonth.com and use code STRUTENY to get your first book for just $5. So yeah, that's what we're going to do this year. We're going to read books, we're going to take care of our skin, and we're going to write things down in serial killer handwriting. And that is how we are going to dismantle the patriarchy. Sounds like a plan. These are good Melissa tips. So I'm going to pick up with books first. A couple of the ones that I was going to mention,

you already mentioned Melissa, the Barbara Kingsolver's Demon Copperhead. I loved, you know, we just talked about in one of our recent episodes, we talked about the case involving the Sackler and Purdue Pharma bankruptcy settlement. Demon Copperhead is not only retelling of David Copperfield, but very elementally about the opioid crisis and an incredible book. And I feel like I'm a Barbara Kingsolver completist. I

think I've read everything she's written. And it was gratifying to see her get, I thought, the well-deserved Pulitzer for this book. Okay. I also loved, just in terms of things this year, Abraham Verghese's The Covenant of Water, which was really beautiful. I really liked Rebecca Mackay's I Have Some Questions For You, which is one of the few novels that I've read that is largely about podcasting. It's got making a podcast as the profession

of the lead character, and also there's a podcast that is at the heart of the narrative. I enjoyed it. You don't see much drama in podcasting. That's very meta of you, Kate. It was. I recommend that. Hernán Díaz's Trust was so weird and so great. I loved that. Lauren Groff's The Vaster Wild.

That was really good. I just like, I'm such a sucker for a survival novel. No matter when it is set, I just love a person against the elements. I just do. And this was a reminder of that sort of genre. Ann Patchett's Tom Lake, which I listened to on an audiobook read by Meryl Streep, which was phenomenal. And then I can't actually remember if Rachel Aviv's Strangers to Ourselves is a book I read last year or the year before, but I really loved that as well. Okay, skincare.

I have a serum that I got as a gift this year that is Ursa Major's Mountain Glow Serum that I love, although I now definitely want to try the biography outline that you mentioned, Melissa. And then two really decadent bath products that I also got as gifts and I would never have imagined buying, but I'm so glad I own. They're both by, I don't know if it's Osea or Osea, you know that like skincare O-S-E-A line, makes what calls itself a pillow mist, which is just like a very pretty glass spray bottle that you can like spray on your pillow before bed. And it just creates this very soothing spa scent in your bedroom. And I find it like really conducive to like peaceful winding down. And they also make a shower mist that you can spray in your shower.

And it also feels like you're like at a fancy like spa or something in your shower. And they're not like a super high price point. So like after you get all pumped up from your Brett Kavanaugh first. Yeah, I go into my shower. I put on a loop of the Kavanaugh, like electronic music or listener made, and I spray some shower mist. And I'm just like, that's my happy place. No, I have not done that.

And I don't think I will. I was going to say the pillow mist is how you unwind after like, you know, club dancing to Brett Kavanaugh. Two more things. There's a protein powder I've been using called cachava that is really good if you mix it with like ice, water, milk, yogurt, whatever. Really good. You need more protein with age, turns out. And that is a really good protein.

Many of them taste bad. This one tastes great. And then I drink a lot of chai. I drink tea and chai and not coffee. And Kolkata chai is like a chai line that has a couple of shops in New York, but you can also now just order boxes. And it's like not super high sugar, but like really dense, awesome combination of spices. And I've gotten into that this year. And this is like sort of related to Melissa's kind of a serial killer note-taking, enemies list making making or related at least, which is it's kind of like a productivity hack that I think is for me new this year, which is just listening using a voice reader to a lot of content that is, you know, not podcasts or audio books, but articles and sometimes book manuscripts.

So I use a reader called Voice Dream, but I've also heard one called Speechify is really good. And I find it really, really helpful to just like be able to sometimes take in audio content of things I really need to read, but I just don't have time to sit down to read. And I've gotten very used to like the soothing sound of the robot reading to me. I mean, it's no Meryl Streep reading and pageant, but I recommend it. You guys don't do that? I haven't, but I'm definitely open to trying. Yeah. Are you still Pelotoning? So I did want to talk about this. So I have a bike, but we have it upstate and I just have not been there very much this fall. And I've also just

been running much more. So yes, I'm using Peloton a lot, but I'm mostly doing the runs and then sometimes like the strength classes and stuff. So I feel like I've been like using a lot of different instructors than when I'm mostly in the bike. Here are the people I'm mostly running with these days. Hannah Frankson, who also does a lot of bike classes. She's great. I like her. Does great running classes. I love her. I'm doing a lot of friends with Susie Chan. Oh, I love. You love the British ladies. Okay. Apparently. Well, they're the real like long. I guess that's true. Actually, I guess I do have a type. Those are the three I most run actually. I guess I do have a type.

Those are the three I most run with. I also run with Robin Arzon and Olivia Amato and sometimes Maddie Majocomo. But I guess – I like Olivia's Taylor Red ride for sure. She has a really good – at least one Taylor Red run and I think another. She's got a couple of Taylor runs. Yeah, sorry. I meant the Taylor Red run, not ride.

Yes, that run. Yeah, yeah, yeah. I really like that. She has rides as well. Oh, okay. Okay. I ride more. I Run, not ride. Yes, that run. Yeah, yeah, yeah. I think she might have both. She has rides as well. Oh, okay. Okay. I ride more.

I don't run just because of like ankle problems. But I still really like Cody as a cycling instructor. I wish he would run. Can we please? No, he dances. He's not a runner. He's a dancer. He's not a runner. He's a dancer.

He would have to do like 75 minutes, a little short jog. It would be so fun. I just like, I love riding with him. It's always a pick me up, always a pep talk. I also really like Emma Lovewell as a cycling instructor. I always like PR on her rides, I think. Or that's like where I get my PRs. And then I'm also into their strength classes.

I love Adrian Williams' strength stuff. Zaddy. Yeah, I really like. He just runs too. Yeah. Did you say Zaddy? I like Emma's core program. I also like Rebecca Kennedy for strength classes as well.

Those are definitely my favorite strength. I also do some Pilates. I like Aditi Shah's 1989 Taylor's version Pilates class. So that's kind of my Pelotons. Allie loves Pilates classes and barre classes are great too. I'm not as into barre, but I do like her Pilates stuff. So I've fallen a little bit off the bike.

Not literally, but I just haven't been doing the bike as much. When I do do the bike, I think I do Cody the most and Hannah Frankson. I like her Tabata rides. But we bought the Peloton Tread. So I actually really love that. Yes, and so I've been doing a bunch of stuff on the peloton

tread I love their hikes and their walks and power walks and they had this great learn to run program that was I did and that was really fun but I love Jocelyn Thompson rule like Stan a Jamaican British queen she's amazing I also really enjoy um Jermaine I forget what his last name is yes Jermaine Johnson I like his strength stuff I love him he's great on strength too I've been doing a bunch of strength training too and again love Adrienne I've been doing Callie Gullickson I don't know if I meant to some people find her annoying I think it's just like like she doesn't do squats that I don't want to do so I don't mind doing squats with her. So I actually look up what are the exercises that you're going to be doing before I even get in.

And if it's some kind of weird lateral curtsy squat that's going to mess up my ACL, I'm like, no, thank you. And I just move on. But I love their outdoor content. So Kate, I don't know if you did their outdoor runs when you were training, but I think they're great. They don't have that many outdoor runs. So I think I've done all of their outdoor runs. So now I just do indoor runs and run them outside. But I wish they would do more.

I love their outdoor runs. Robin Arzon did an outdoor run that had like Drake, Lil Nas X. It was like fantabulous. She has one just Beyonce outdoor run. Oh, yeah, that's great. Short, like 20 or 30 minutes. That is a fantastic run I've done multiple times yeah so I do those a lot when I'm like walking in the city like going places like and I get there so much faster and I feel like okay I did something that's

great that's a good I've never so they actually give you some coaching while you oh yeah they're like faster bitch and I'm like oh okay highly motivating. We're such people. Highly motivating. No, like, Jess King is like, if you're able, if you're consenting, imagine my hand on the small of your back urging you on. And I'm like,

okay, you're allowed to do that. Sure. Love it. I do like her. I don't think she's ever asked me for permission to put her hand

on the small of my back, but I would grant it if she did. Well, it was an outdoor walk habit. Try it. It was great. Have a try it. It was great.

You know, it's also a nice time of year. Give donations to organizations, you know, in your name or others' names. We've obviously been talking a lot about the work that the Center for Reproductive Rights has been doing. You know, their work and the work of abortion funds is really important right now. Some organizations that have been involved in the ballot initiatives to secure reproductive freedom are Red Wine and Blue, as well as Reproductive Freedom for All.

There is also the Trevor Project, super important in light of the wave of legislation targeting the queer community, or Crooked's Leave Trans Kids Alone Fund and Project. There's a National Women's Law Center, as well as some organizations that are helping incarcerated persons like Rights Behind Bars or the Second Look Project, as well as organizations that we have had guests on this show before, like the MacArthur Foundation,

MacArthur Justice Center, and the Appellate Project too. So in addition to seconding everything Leah just said, I'll mention a couple of the big global public health organizations, Doctors Without Borders, Partners in Health, both really, really important organizations to support media. It's been a brutal, brutal year once again. Enormous layoffs in like all kinds of media outlets. So if you have like forgotten to renew your pledge to your local NPR station, do that before the end of the year. New outlets that are cropping up because there are some that are covering local politics, so critically important. The City is a new NYC-based online magazine that is doing great reporting. Bolts Magazine, which we've featured on the show before, which is one of, if not the best sources of information about state and local politics, elections, democracy,

also a great place to support. So throw those into the mix as well. I would also like to shout out NPR. I still support KQED, which is my local NPR affiliate in the Bay Area. I suppose I should also branch out and support WNYC here. Yeah, I've switched to NYC after BEZ, which is the Chicago affiliate for many years, and maybe I should just spread it out a little bit because they're all wonderful. I just kind of grew up on KQED, and so I really love that one. I would also encourage people to support The 19th,

which has been doing absolutely amazing work covering reproductive rights. It's a women-run newsroom, and it's absolutely fantastic. I would also highlight some of the organizations that I work closely with as a board member, the Brennan Center for Justice, the Public Rights Project, which is doing amazing work around the country, bringing affirmative litigation to enforce rights at the state and local level. Also, the Guttmacher Institutes, whose research right now is so important in this landscape where reproductive health is so precarious. Planned Parenthood,

Federation of America, If, When, How, both great reproductive rights organizations. And then finally, the NAACP Legal Defense Fund, which does so much amazing work. But in particular, I wanted to highlight the work of their Marshall Motley Scholarship Program, which provides scholarships to law school for students who are committed to returning to the South to be civil rights advocates in that region of the country where civil rights lawyers are really in short supply. We talked about this on the podcast with Joanna Schwartz when we discussed her book, Shielded. But it's just so important to have this next generation of advocates, and they are really doing a great job, the LDF, to make that happen. And let me just throw one more in in terms of you mentioned a few organizations on whose

boards you serve, Melissa. I'll throw in the Stevens Foundation, which makes summer grants to law students doing public interest work, in particular at law schools that don't have subsidization or funding for public interest summer jobs. And it's in a real growth period. And so that's a great place to support as well. So we wanted to give a birthday shout out from Madeline Peterson to her daughter, Ariel at UCLA, who is studying to take the LSAT in April. And Ariel, I hear you're interested in post-conviction and appeals work. So kudos to you. That is awesome. And that your golden birthday is coming up. So a very happy birthday to you. Happy birthday, Ariel. One quick programming note. The court is off for the holidays and we will be off next week, but we have a very special episode lined up for you New Year's Day and you won't want to miss it. That was just a little teaser, just really,

that Melissa cracked up, kind of all we're going to tell you right now. Clear your calendar, New Year's Day. As we get ready to go into 2024, we just want to remind you 2024 is a huge, super high stakes election year and there is so much to keep track of there are important voting deadlines that you have to observe volunteer shifts that you should sign up for emergency therapy that you're going to need and apparently in the middle of all of that they still expect you to show up for work and do the things that you are paid to do so this is why crooked and vote save america have created a 2024 planner to help you stay sane and organized all through 2024. It is filled with all of the important dates that you have to keep track of.

It gives you much needed motivation as well as fun stuff to help you keep from losing your mind. So head on over to the Crooked.com store right now to get your planner and then spend all of January 1st just writing in it in really meticulous serial killer handwriting. Do it. We will miss you next week, but please stay tuned for the new year. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Littman, Melissa Murray, and Kate Shaw, produced and edited by Melody Rowell. Our associate producer is Ashley Mizuo, audio support from Kyle Seglin and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Herringer and Ari Schwartz. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show,

please rate and review us. It really helps. Do you remember growing up in the 1980s and 90s where there were a zillion television shows that were all about true crime? Like people doing like really weird stuff, killing their partners, killing their wives, killing bosses, poisoning people. I just remember watching endless stories of this. And guess what? Now all of that knowledge, which has been baked into my brain, has an outlet because the world of true crime TV, all of that stuff that makes you scream with terror and fear, is now part of a new comedy podcast called I Think Not. I Think Not is a comedy podcast that walks us through some of the wildest stories that were ever covered in our favorite true crime TV shows, from I Dated a Psycho to Deadly Wives, all the way back to covering every single episode of the Investigation Discovery series, Disappeared. This podcast has something for everyone. So for example,

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