Strict Scrutiny - BONUS: Strict Scrutiny x Why Is This Happening?

Episode Date: January 19, 2022

The ladies of Strict Scrutiny join forces with Why Is This Happening?, hosted by Chris Hayes (aka Mr. Kate Shaw).Late Justice Ruth Bader Ginsburg once said, “it’s hard not to have a big year at the Supreme Court.” With that in mind, we thought it would be good to do a gut check as 2022 promises to be one of the most important years in the Court’s history. We like doing new things here at WITHpod, so we’re excited to share our first crossover episode with the hosts of The Strict Scrutiny podcast, Chris’ wife Kate Shaw, and her co-hosts Melissa Murray, and Leah Litman. Between the possibility of Roe v. Wade being overturned, historic potential rulings on voting and gun rights, and more contentious political battles, the year ahead will certainly be one for the books. Follow us on Instagram, Twitter, Threads, and Bluesky

Centering the court in our political lives is something critical and actually, you know, actionable. I don't think tomorrow Neil Gorsuch is going to write an opinion that says, I declare Donald Trump king and emperor forever. But I do think they will and have issued decisions that enable democratic decline, enable autocracy, and further undermine democracy to a point where we will no longer recognize our government as a legitimate, healthy democracy. What explains what has happened more recently has a lot to do with what happened over the Obama administration and the failure of the Obama administration to get judges nominated and confirmed because of the recalcitrance of the right. Hello, and welcome to a very, very special crossover edition of Why Is This Happening slash Strict Scrutiny Podcast with me, your host, or co-host, Chris Hayes. And just one more note before we dive in here, we recorded this episode before the court had even heard the challenge to the

OSHA workplace vaccine mandate, and then they issued that decision after that. So we don't touch on any of that because this all took place before that argument and decision was handed down. Hey, everybody. Today is very special. Melissa Murray, who you're going to hear from in a second, described it as our first ever conjugal podcast, which cracked me up because I was like, whoa, wait, no. But then it's true that conjugal really is just an adjective that means marital. And the reason that it's our first ever conjugal podcast is as if you listen to Why Is This Happening? or if you listen to Strict Scrutiny, I think we have listeners from both right now in this intro. You know that the Shaw Hayes household is a two-podcast household. Well, it's actually three because our oldest daughter is now doing a podcast. Well, technically four. Kate also has a rational basis for a few. That's true. Well, who knows how many podcasts are in the house?

For those who don't know, I'm Chris Hayes. I host All In on MSNBC weeknights at 8 p.m. I host this podcast, Why Is This Happening?, which tends to be a sort of a long-form interview podcast. And today we're doing a special merger with Strict Scrutiny, which is hosted by the aforementioned Kate Shaw, who is the love of my life and my wife. And she's a law professor at Cardinal School of Law, Supreme Court contributor at ABC. She co-hosts Strict Scrutiny and Rational Review as well. She's a former Obama White House lawyer and a former Supreme Court clerk for Justice John Paul Stevens. Melissa Murray, who's a professor at NYU Law, faculty director of Birnbaum Women's Leadership

Network, which has a mission of supporting gender equity in law school and the profession. She's also a co-host of Strict Scrutiny, an occasional, well, frequent guest on my program at MSNBC. And Leah Littman, who's assistant professor at University of Michigan. She focuses on constitutional law and federal courts. Blogger for Shall Take Care, co-founder of Women Know Law, which is true. There are women that know law aimed at increasing diversity and equity in law. Also, the Strict Scrutiny podcast and one of the best legal TikTokers that you will ever encounter. Can I also say the two of us are not the loves of your life? So we just want to make that very, very clear.

There's only one love of your life here. I'm glad. I'm glad. Well, that gets to an interesting sort of constitutional interpretational question, which is like, if I don't say you're the love of my life, does that necessarily mean you're not? You know, like it's like an enumerated rights issue. I thought it was very clear that that was implied by me only saying that about Kate. Well, it's so that statutory interpretation canon, was it azurus generum or expressio unius? Or just negative inference,

right? Any of the above can work here. Right. It's in Justice Scalia's book. For my own marital situation, I just want to clarify that there is only one love of Chris Hayes' life, and it's not me. So be clear. Yes, it's a conjugal podcast just with Kate. So it's really good to have you. I'm a big fan of strict scrutiny. I get a lot of my legal knowledge from it. I get a lot of my legal knowledge from Kate, most of it actually, and from your podcast. And I thought, we haven't done a legal podcast on why this is happening in a while, but I think it's probably shaping up to be probably one of the most important years in Supreme Court history, 2022. I don't think that's an overstatement or hyperbole. And I thought maybe we'd start with a little bit of

just like, I mean, your listeners tend to be, you know, law nerds who are like very- But cool law nerds. Cool law nerds, sure. But law nerds who like are very focused on law, know a lot about it, and are probably like keeping up week to week with the cases. For folks that are general kind of news consumers but may not have been as up to it, like let's just start with if you were – I'm going to maybe go around and say like if you had to give me your one paragraph description of this last term of the, you know, Roberts Court, like how you would characterize it to someone who was sort of kind of like, where are we? How's the court doing? What's the court up to? How do we feel about the Roberts Court? I'll start with you, Leah. So this term, the court is poised to eviscerate access to safe and legal abortion. Indeed, it has already done so in the second most populous state of Texas. It is also poised to basically make it impossible for states to regulate guns.

And the court is getting really ready to make it impossible for federal agencies to enact rules and regulations of the kind that have just been so commonplace and dominated the workplace, health and safety regulations. And it is doing so in cases that will make it really hard to address global problems like climate change or, say, the coronavirus pandemic. That's bleak. Yeah, no, that was kind of like the PG-13 dark version. I actually think it's probably worse than that summary, but it's big and it's bad. Yeah. You know, it strikes me, Melissa, that what Leah just said is like, those are all three of those, you know, essentially kind of gutting the regulatory state and its sort of legal

mechanics, gutting, essentially outlawing abortion and limiting reproductive autonomy of women and pregnant persons and making it so that everyone has to carry a gun at all times. Basically, these are long standing conservative projects. And there's this feeling, I think, with this court where there's been so long in my life of covering the court of like the warning of the wolf coming closer and closer to the door, particularly on Roe. And for a whole bunch of reasons. And it just feels like 2022 is a year that like the wolf shows up at the door, basically, particularly on these really longstanding, multi-decade conservative projects that they've been chipping away at.

I think that's right. And to coin a phrase from Justice Scalia, this wolf comes as a wolf. They're not hiding the ball on this at all. And I think we can think about the last couple of terms as table setting, preparing for a party of five and then eventually a party of six. And now they have this conservative supermajority. And the real question is, how fast and how furious will they be in getting to the end of, you know, what is this conservative legal movement's to-do list and how fast will they want to prosecute that? And that's really the only thing that's standing between us and the abyss is really their own appetite for how fast they will go about this. You know, it just seems like they are poised to do the most right now. And, you know,

I'm just surprised that there isn't more public outcry about this because definitely bound up in all of this is surely a broader question about the court's own legitimacy, which, you know, for the court is an existential crisis. And I just don't see the public sort of cottoning on to the idea that what has changed about this court over the course of the last couple of years has nothing to do with doctrine, has nothing to do with jurisprudence. It has everything to do with the composition of this court is and who has managed to install conservative stalwarts on this court. And I think, Kate, the indicator, the big indicator, and I'm getting this from the three of you as much as anyone and other commentators about like there's a question of like, well, how aggressive are they going to be to Melissa's point?

Like they know they have the 6-3 majority. There's Roberts particularly we know is like pretty concerned about the reputation and optics of the court just as a sort of political sense. And I think when Texas designs this law with this crazy bounty hunter system, this Rube Goldberg green machine, that's obviously totally awful and sort of offensive to basic common sense and judicial principles that's designed precisely for the purpose of evading the court in joining it essentially, or stopping it. Right. And it comes before the Supreme court. And I felt like that decision was a big indicator to a lot of people like, oh, they're really, really going to do this, because they could have been like, obviously, we have to stop this, and they did not. Right. And so you're talking, of course, about Texas SB-8, and absolutely. So

if the court had wanted to appear, you know, somewhat moderate and institutionalist, they could well have at least allowed the challenges, one or more of the challenges, to SBA to proceed, especially because they are on the precipice of overturning Roe anyway, in the Dobbs case, the Mississippi case. And so I agree that the strong signal that the decision basically to allow SBA to stand sent was that they are not interested in caution or incrementalism. And I say they. I mean, you asked about John Roberts. I think John Roberts is probably still interested in all of those things.

Well, he doesn't side with the other five in that, right? The math of this court right now is that it actually doesn't much matter what John Roberts wants in terms of how the court proceeds, in terms of substance or pacing, because he can be outvoted by his five more conservative colleagues. And we should say, look, like, we are in the middle of the first full term of this new court, right? Which is, you know, my old boss, Justice Stevens, he wrote in his last book that the court, you know, he called the court by the name, not of the chief justice, but of the most recent addition to the court. So, you know, because every justice kind of transforms the court. So this is the Barrett court, right?

Now, that doesn't mean that she's the median justice, but she has been. And that's, I think, again, he would say that about every new justice, but it is just so true here. Like, it's hard to remember a more consequential substitution than Amy Coney Barrett for Ruth Bader Ginsburg, maybe Clarence Thomas for Thurgood Marshall in 1991. Right. I think you have to go back that far before you see a swing like this. And I think that we are beginning to see just how transformational that appointment has been and will be. So that's all pretty bleak. I mean, first of all, let's take a step back and talk about why we're here before we go forward, which is, babe, you said this to me the other day about this point, which I thought was a really important one, which is like,

in some ways, they've been after this forever and they keep failing, right? So like the story of the conservative legal movement, and particularly Republican nominees to the court, is this story, if you look at it from the perspective of someone who thinks abortion is murder and also should be on, you know, not protected by the constitution illegal, right? The sort of Lucy in the football, they keep getting tricked into these nominees, Sandra Day O'Connor, Anthony Kennedy, David Souter, John Paul Stevens, like all these Republican nominees who, when the time comes to do the deed, don't do it. But something changed, right. Because we had lots of Republican nominees before. And you still get the court upholding Roe and Casey with Republican nominees, you know, writing the in the majority there.

Something is different about this crew than before. And by design. Right. Like it's not an accident that they got here this time after learning from the failures of the past. I would love to hear all of you guys talk about what happened, what changed, why didn't it not work before, and what have they done now to get themselves to the point where, like, they're going to do it in 2022. Two words, maybe four words, Leonard Leo and Mitch McConnell. You know, Leonard Leo is the person who was very much affiliated with the Trump administration and helping them select judicial nominees. He was also one of the founders of the organization known as the Federalist Society.

And part of the Federalist Society's mission was to help develop and construct a pipeline of prospective judicial nominees and help them to identify people who would be the kinds of judges or justices that they wanted them to be. You know, there were often slogans, as you were saying, you know, no more David Suiters, no more Anthony Kennedys. And they learned from that that you aren't going to appoint people with whom you're not super familiar about what their positions are going to be. And so we arrived at a point where the Republican Party and the conservative legal movement understood that they were only going to be appointing people who they were very confident would reach particular results on the issues most important to them. And the nominees

that we got were very much a product of that apparatus and them understanding, you know, what they did wrong previously. And the other big player is, of course, Mitch McConnell, you know, who held open the seat for Donald Trump to fill. We would be living in a very different world if Merrick Garland were on the Supreme Court instead of Neil Gorsuch. And by holding open the seat, you know, he also arguably changed the calculus of the 2016 presidential election when a bunch of voters went to the polls and elected, you know, a Republican president because Republicans promised that they were going to appoint justices who would overrule Roe versus Wade, as well as other decisions. So I think that those are the people that gave us the court that we have today. And gosh, is that paying them dividends, you know, many times over, and it will be for decades. I mean, the amazing thing

about that is it's the only promise Donald Trump's ever kept in his life, like literally the only one. It's like it was like so clearly transactional, obviously transactional. But he understood that this was like, oh, this is important to you guys. Knew nothing about it, cared nothing about it in either direction, I don't think. I mean, he formally had called himself pro-choice, but basically said like straight up, this is a litmus test. And Leo, Leonard Leo helped him with that. Like here are 10 people we might appoint. And there's also this way in which Melissa, like it's almost, it's funny. I think about like Alias, which is a show we used to watch or like the Americans or

like a spy show where there's something even over and above of the grooming and the pipeline of the federal society. It's like, we're going to send you into a foreign country and have to make sure that you won't be a double agent. Like, you have to prove to us, there's this like thing that we need to get out of you, this thing that we have to instill in you, that when you go in there, you're not going to let that place transform you. You're not going to go over to the other side. They figured out some way to do that, some sort of spy training to like make sure that like, these were the hardest of the hard core and nothing was going to stand in their way. Well, so let me add a couple of different

flashpoints to add to the ones that Leah mentioned. So I think it is about the rise of the conservative legal movement. I think it is a backlash to the, quote unquote, moderation of Souter and Kennedy and O'Connor. And to be clear, Kennedy and O'Connor were not always moderates. So, I mean, this idea that they were just like, you know, wishy-washy liberals all the time, I think is deeply, deeply overstated. But I also think you have to think about what the collegiality of the left has meant for the court, because John Roberts and Samuel Alito, you know, they're nominated by George W. Bush, and they are very much steeped in the conservative legal movement when they come before the court as nominees. But they also have these sterling credentials.

They've, in the case of John Roberts, have clerked on the court, Harvard Law School, you know, like all of the boxes are checked. And I think, you know, for the left, you really couldn't take down a nominee in the way that they tried to take down Clarence Thomas and failed, and the way that they successfully took down Robert Bork without more. And so they went along with it. Like, you know, there were some negative votes, but, you know, these guys have good credentials. I just don't believe in what they're serving, but they would make great justices. So we heard a lot of that. And I think that explains what happens during the Bush II era. But I think what explains what has happened more recently has a lot to do with what happened over the Obama administration and the failure of the Obama administration to get judges nominated and confirmed because of

the recalcitrance of the right. And so they eliminate the supermajority requirements for lower federal court judges, and then it's removed for the Supreme Court judges. And now what you have is the requirement of a simple majority to install a justice on the Supreme Court, which means that you don't have to put up a moderate nominee or even a nominee who sort of looks moderate and has the sort of trappings of collegiality, you can put a hardliner on there as long as you know you can get your 51 votes to get them over the bar. And that's what's happened. Maybe a couple of additional thoughts.

I mean, one, your question about what serum has inoculated this new crop against, you know, maybe moderating with the institution. And, you know, we should say, obviously, these justices are new to the court. And that's probably part of it, too, right? Yeah. So I don't know long term. I mean, I think I probably I am sort of dispositionally more optimistic about these the court to a place of moderation in the way many, many conservatives who have come before him have done so. And I think it's right that none of them were kind of groomed and to ignore, that even conservatives who are, you know, avowed conservatives who when they are nominated to the court have moderated, have shifted leftward over their time on the court. And there has been a little bit, you know, the occasional, you know, Justice White, like movement left to right, but far fewer instances than the kind of leftward migration. And I would not rule out the sort of long term possibility that that could happen. Moderation could happen at least with a Kavanaugh.

I don't see any real chance of it with Gorsuch. And I'm not so sure about Barrett. Again, I wouldn't rule out. But this is like my unshakable optimism in like the kind of like intellectual emptiness of some of the theories and methods that these justices profess to adhere to, that like at a certain point that that will become evident to them and they will have to change. But, you know, there's a lot of carnage that we are looking at in the interim. And it is just maybe one more point about, you know,

how we have gotten to where we've gotten. It is, you know, it is a combination of luck and chance on the part of Donald Trump, right? Three appointments in one presidential term is astonishing, right? So Barack Obama nominated three justices, appointed two justices in eight years. So, but that's the other point, right? So it's a combination of luck and chance and ruthlessness and ruthlessness on the part of Mitch McConnell in terms of filling those vacancies. But of course, the ruthlessness only makes any difference if you have the vacancies

to fill. Also, we should also say one more thing that I feel like always gets lost over this in terms of ruthlessness is like Anthony Kennedy looked at Trump and was like, yeah, that guy, I want that guy to replace my like that. And like he was just a loyal soldier in the end, like whatever he wrote about, you know, gay rights or, you know, his very highfalutin language in his line of cases that, you know, leads to marriage equality. Like, in the end, it's like he was in the tent. He was on the team. He understood what was asked of him and he did it. And like, that's another reason, you know, whatever like independence we think Anthony Kennedy had, he made the choice that he made, you know, and got what he wanted. To hand a seat very deliberately to Brett Kavanaugh, right? Yes. It seems.

But I think that gets to another factor, which is there are different kinds of nominees that Republican and Democratic presidents nominated. You know, you couldn't get Justice Ginsburg to step down during Obama's presidency because she thought she was irreplaceable, no matter the overtures and the signals that, you know, the administration and people were trying to make to her. Whereas catering to Justice Kennedy's ego and saying we're going to replace you with one of your favorite former clerks was enough to get him to step down. And we are seeing something similar, you know, play over and again with Justice Stephen Breyer, with people telling him you need to step down. You need to go. There is a chance that Democrats will lose the Senate, you know, in the midterms, if not before. And we know Republicans are not going to confirm your

replacement. And he's like, you know what? Let me instead go on a PR tour telling you about how great the Supreme Court is. We'll be back after this quick break. I was going to go to this later, but let's just do this now. First of all, there's an odd they're going to lose the Senate. They're one hard attack from losing the Senate right now as I speak to you at every second with numerous septa and oxygen senators that make up their zero vote majority, their one vote majority with Kamala Harris. But like the Breyer thing is like,

to me, the Breyer thing, it pulls together a lot of the strings here of like when we're having this conversation, how do we get to this point? And one of them was like, their side was more committed and more ruthless and prioritize this more as the ultimate project of all of it in a way that the left never did. And I think in some ways that's because the

Democratic Party and the center left coalition has a lot more things they substantively want to do. And so their attention gets divided. And I think that was true of the Obama years for sure. When, you know, I mean, I think Kate can speak to this a little bit, but like, but it's also like Mitch McConnell, all you want to do is cut taxes and confer judges. Like the court was the thing. There wasn't some other project. They're not like, well, we got to pass a big climate law or the country's going to burn. Like there's a million things that have to be done. Well, they want to pass restrictive immigration laws, right? Like they did want to do some other things. Yeah, that's true. But the Breyer thing is like, it's like the combination of ruthlessness focus and then like team player-ness. Like all three of those things seem to me to be part of why we're here.

And the team player-ness is the thing with Breyer right now that I think has left everyone scratching their heads. Well, they're able to prioritize a kind of set of collective goals, whereas I think the left is very much individualized. And I mean, like, just as Ginsburg sort of thinking about what is her legacy, who will be able to replace her and do what she has been doing, as opposed to who can just sort of keep this progressive coalition intact for the next 15 years. I think that's a big part of it. I mean, there is a kind of weird selflessness that I think is part of their project that just is not part of the left's project. You mentioned this before, Melissa, about this court and sort of we've gotten to this point.

They have the six-year majority and how – and I think this is such an important point. All three of you have made it in various podcasts. I'm just like there's nothing changing legally, right? Like it's a little like – it's like when the CDC guidance came out and it was like, well, we're now five days. And it's like, well, is there data? It's like, well, just we're changing it because, you know, things changed. And when you look at all this stuff, particularly on reproductive rights, but a whole bunch of stuff, it's like, what it looks like is a legislature of nine. And what happens if you have a legislature of nine, if you're in, you know, let's say you're in a town that has a city council of nine and the right wingers get a six three

majority and they're going to come in and they're going to say like, our, this is what our order of business is. You know, we're getting rid of the mask mandate that the liberals had before. And we're going to increase the sale tax and get rid of the city income tax. And we're going to do all these progressive things because that's our agenda. And the point is like the court isn't supposed to be that, right? I mean, at least in its self-conception or at least the way we think about it in the three branches, that's like not simply this super legislature of nine that when it flips over, they come in and it's like, okay, well now the right winger is in charge and they're going to do this. And yet it looks more and more like that. Why, Kate? Like,

what has changed? You guys have sell merch that says Star Decides for Suckers, so that's part of it. But like, or has it always been that way? And I'm being overly romantic about the previous iterations. I mean, I think maybe both. I think it's always been, you know, there's been a degree of mythology around the court standing entirely outside of politics. And I also think that justices have kind of endeavored in good faith, historically, to seek to interpret the law and the Constitution in ways that do not follow directly from their policy preferences and sort of ideological commitments. And I am not sure, I don't think we're seeing that with this crop of justices. I do think that they have, many of them, been sort of steeped in a worldview that sort of

has been, I think, kind of originalism and textualism, the kind of leading methodologies of the legal right, are in many ways these kind of methodologies that to me are kind of retrofit around a set of results, right? So they have been constructed to produce a particular set of extremely conservative outcomes. And so maybe they are acting in good faith when they say that they are simply deploying these methods to reach neutral results. But the methods themselves have, I think, been constructed precisely in order to reach those results. And so whether they're acting in good faith or not doesn't much matter, because each and every time they take this, you know, ostensible toolkit to kind of, you know,

and bring it to bear on a particular legal question, it's going to produce the conservative result. And there are now, you know, five or six of them, depending on the legal question, committed to this, you know, ostensible set of methods that will inevitably produce a set of results. And I do think that, you know, Melissa mentioned sort of legitimacy crisis early in the hour. And, you know, I do think that to the extent the court has always been understood to stand to a degree outside of politics, it has been able to act in ways that are in tension, sometimes with majority preferences, and sometimes to the good, and been heeded by the political power structure and the population when the court has done that, right, again, sometimes acted in tension with majoritarian preferences. But when all it looks

like is, you know, a super legislature of nine simply channeling the preferences of appointing presidents, where there's a, you know, a deeper and deeper kind of disconnect between the majority preferences and the preferences of those nine justices for, you know, the court, right? So there are six of nine justices are appointed by Republican presidents, you know, all but George H.W. Bush presidents who lost the popular vote. Now, that doesn't make them illegitimate as appointees, right? Our electoral college system is the problem. But there is that, right, in terms of a disconnect between the public and what these justices represent or channel. And then things like Brett Kavanaugh's confirmation votes represented, you know, were cast by senators who represented 45 percent of the public and what these justices represent or channel. And then things like Brett Kavanaugh's confirmation votes were cast by senators who represented 45 percent of the public, and

55 percent of the public's senators voted against Kavanaugh. And yet Kavanaugh's on the court. And again, that doesn't make him illegitimate, though you could think he's illegitimate as an appointee for other reasons. But it's a defect in the system. But it helps, I think, explain why there is a chasm, I think, that is growing on a lot of issues between the preferences that these justices are channeling and the preferences of the public. And I think it's a real problem. Well, and also, like, it seems to me that that disconnect is partly a culmination of this project. It's a culmination of these institutions in American life that heavily weight certain, particularly rural minorities, that they're

running this sort of minority coalition. And it's a thin, you know, it's not like they're running from 40 percent. They've got 45 percent of the country, 44 percent of the country reliably. But they have institutions that now give them a six-tree court and, you know, are always within spitting distance of the Senate. Melissa. I think it's more than that, though, because as you say, our whole system is sort of designed so that the majority does not get its way all of the time. And there are all of these different fail-safes baked into the system to allow for these principled minorities to have their, and I don't mean minorities like in a racial sense, but like actually numerical minorities to have a say so that the mob doesn't overrule things. I think the problem here, though, is we've

never necessarily thought of the court as weaponized in that project of minoritarian rule. And I think what we've seen over the last couple of years is exactly that. So, I mean, if you think about the Affordable Care Act, for example, you know, Donald Trump came in, guns blazing, I'm going to overrule, I'm going to repeal the Affordable Care Act. And then you have John McCain famously voting thumbs down on it. So they fail to repeal the Affordable Care Act through ordinary majoritarian politics. And what happens next, someone files a lawsuit in a Texas district court to challenge the Affordable Care Act. And so you see this shift from legislative politics to a kind of judicial politicking where they use the courts as a means of achieving what

they cannot achieve through ordinary majoritarian politics. I mean, the place where this seems like it cashes out the most is on reproductive choice in Roe and particularly with the Texas law, because there's a few things happening. One is how far they're willing to go on this. Second of all, the sort of precedential question, which is like, the precedent is clear. I mean, I'm not a lawyer, but I can apply it. Like, obviously, these laws are unconstitutional. Literally, a robot or a program could tell you that because it's just not, it's not a close call close call so and then there's the point that like and this gets to something melissa said like the combination of mass politics and legitimacy and outcry and like i gotta say that we covered texas a lot melissa i think i had you on the program about it but like there was kind of less public outcry than i thought there would be and i find

that unnerving and i wonder what signal it sends them. And I don't know how much that matters one way or the other. But the big question, if they overturn Roe, like what that means from a legitimacy standpoint, from a small D democratic politics standpoint, over and above the substantive fate of women's and pregnant persons, bodily autonomy and health and all of that stuff. Like, those are just really open questions to me right now. And I thought maybe I had a handle on them before, Leah, but I feel like the experience of the last few months, profoundly uncertain about what all this looks like come next year. I think it's important to understand the

reproductive rights and justice decisions together with the court's voting rights decisions on top of the kind of structural disconnect, you know, that our political system has created between people that win political power and majoritarian preferences. So we've already talked about how, you know, the Senate skews the system a little bit, but the court has played such a large role in allowing politicians to basically insulate themselves from public opinion and from voters, whether it's the partisan gerrymandering decisions where the court basically allowed politicians to select their voters rather than the reverse, or whether it's Shelby County, which eviscerated Section 5 of the

Voting Rights Act, or its last term's decision in Brnovich v. DNC, which significantly watered down the remaining protections of the Voting Rights Act, all of that has made it harder for people to actually push back against the court via elections. So what that has done is it has emboldened politicians to enact regressive policies that don't actually enjoy majority support and then face no political pushback from that whatsoever. And that also helps the court, too, because the court knows, well, OK, we're not facing any popular pushback. There weren't protests in the street when we allowed Texas to basically nullify Roe

v. Wade, an outlaw, safe and legal abortion. And guess what? Now we've also made it harder for people to elect politicians who would be in a position to actually do something about us and limit our power. And I think the combination of all of those things is extremely toxic and destructive to a representative democracy in which people actually are able to elect politicians and see their preferences enacted into law. You know, no one thinks we're a simple democracy, but I think most reasonable people would think and

should think that people should be able to select politicians and actually have their preferences register in elections. Although, just to follow up on that and to sort of play the devil's advocate on what the anti-Roe forces would say, right? I mean, they make an argument that's sort of the converse of that, which is they basically say, look, you liberals screwed up abortion want. But the voters of Alabama are going to want to outlaw Roe. And to their point, I think there are many states in the union where even if you did just a sheer plebiscite ballot initiative, you could probably outlaw Roe or outlaw abortion after six weeks in, I don't know, 10, 15 states just with, you know, like as an actual Democratic choice. And so like their argument on the politics of Roe is that it is, right? That it is like that they're the ones who are on the side of democracy. Yeah, no, I get that. But I also think everyone

acknowledges that there are certain rights that are fundamental to people's equal participation in society and government that basically enable and make possible a functional democracy. As, you know, I think the Solicitor General of the United States said at the oral argument involving Mississippi's efforts to overrule Roe versus Wade, you know, there are so few rights that are so central to women's ability to participate equally in society and so essential to their health care and bodily autonomy. So there are certain minimal rights, you know, that are necessary to make a democracy function. But on top of that, the court has done so much to make it impossible for voters actually to select the politicians to enact their preferences that we're not living in a world in which a post-Roe would actually reflect democratic preferences. Right. And that point about like the state legislature as the ideal object of right wing judicial practice and governance, because it's, it's not the people and it's not the government. It's a state legislature,

which like in a state like Wisconsin can sort of gerrymander themselves into this barricaded position where they lose. They don't win the election statewide, but they control, you know, Georgia's a great example. We very famously, Georgia just went for Biden and voted in two Democrats. And it's got super majorities in both houses

of the state legislature, partly because of the way that it's carved up, Kate. So it's like that Democratic disconnect, to Leah's point, just like playing all the way up and down the system. And then the court coming in being like, these, the real unit of governance, the real people to trust are the state legislators. Yeah, no, it's preposterous. And also, I think we should say, we have been now, we've been talking as though what the court is considering is whether to overturn Roe and just return to the states, right, the question of whether to permit or to prohibit or, you know, restrict and regulate in some other way abortion. And that is what Mississippi was asking the court for. But

there's a very strong desire on the part of many anti-abortion activists to go much further than that, right? And so I think, and to lay the groundwork, and they are, a lot of the amicus briefs in the Dobbs case, that's a Mississippi case that the court is considering right now, are pretty explicit about that, right? It is not enough from their view for the court just to say that Roe invented a right to abortion that exists nowhere in the Constitution, and that that error should be corrected, and Roe should be overturned, and the state should be permitted to decide, you know, and I'm not exactly sure what the reasoning of an opinion that says that looks like, but surely,

I think the upshot of it is that states cannot permit legal abortion to occur. And so that, you know, the Maximus version of Dobbs, it's actually a very anti-democratic, anti-states rights position. It is literally enshrining in the Constitution a different kind of right, but a right held by a fetus and not by a woman. And so I think that this, you know, this Democratic, like, decision or destination is like a stopping point. That's not really where they want to go. Well, and to follow up on what Kate said, I mean, I don't think this is just sort of an inkling of things to come. I think we saw shades of this in the Dobbs oral argument when Justice Clarence Thomas began talking about a case from the 1990s, Ferguson versus the city of Charleston, which was about criminalization of drug use by pregnant then

women, now I guess would extend to pregnant persons. But the whole idea there was that the use of drugs while you were carrying a fetus was an assault on the fetus itself. So, I mean, there are the seeds of a fetal personhood argument there. And he explicitly brought it into oral argument when it really wasn't on the table at all. I mean, it was sort of an off-the-wall kind of question that he made very much of the moment. And I think that's the tell. Yeah. And I would also just say, I don't have any judicial or legal expertise, but I do cover politics. And like, at least from the political side of like the anti-abortion movement, it's

always been a preposterous idea that like, you know, this is the sort of like the kind of suit and tie euphemistic version of the conservative politics. It's like, well, we just want to leave it to the states. And it's like, well, we just want to leave it to the states. And it's like, well, you think it's murder. And it's like, you're not going to just be like, well, then we're done. Like, it's fine. There'll be legal abortion. Like, they're going to keep pushing. Obviously, they're going to, there's going to be a national, you know, the first Republican trifecta at a statutory level and legislatively, Republican House, Republican Senate, Republican president is going to have enormous pressure to

pass a national six-week ban. And then that's not even dealing with what the judicial push will be to confer constitutional rights. So the idea that like, okay, we'll just leave this federalized system of abortion is like, is pretty plainly preposterous. Well, even a federalized system of abortion is deeply, deeply problematic. I mean, the whole idea that women have to leave the state in which they live in order to seek abortion care really raises broad questions of socioeconomic inequity. It also, I think, doesn't even take into account what states like Texas could do to prevent women from leaving the state in order to do that. I mean, it wasn't, you know, it was less than a generation ago that the state of Virginia not only had a ban on interracial marriage, but actually made it a crime for you

to leave the state in order to marry interracially in some other jurisdiction that permitted it. So, you know, this is just in my parents' generation. I mean, of course they could do more. So the idea of federalizing this as sort of some sort of compromise measure, that's not a compromise at all. That's just opening the door to do more just in an incremental way. If and when they overturn Roe, and it sounds like the three of you think they will, although the future is unwritten and we don't know what will happen. It's possible that they forge something to uphold the law, but they don't explicitly overturn Casey and Roe. I mean, I don't know. This is, I'm just saying we don't know what the future is, but let's say they do. We get to this question

of legitimacy and we get to this question of like how people view the court. And there's one way that I think of looking at the court and liberals view of the court goes the following. And I would love to get all of your responses to this. Basically, the Supreme Court is fundamentally a reactionary institution in American life, has been through most of it. If you go back and you look at all the decisions, particularly along questions of slavery and racial justice and racial equality and multiracial equality and all sorts of the things that we value in like a pluralistic multiracial democracy and also economic equity, They were on the side of white minority rule and capital time and time and time again against

essentially multiracial social democracy, democratic incursions on those two forces. And then there was like this period that just happened to coincide with the kind of like lifespan of the most powerful generation in America, which is the baby boomers in which the court wasn't that famously the Warren court, you know, basically starting in 54 in Brown and going through, say, I don't know, the late 1960s in which the court is for the only real time in its history in American life, like kind of on the side of like expanding rights and a lot of the things that like liberals care about. But that was an anomaly. And basically what's happened is that period suckered the left and liberals into viewing

the court as this kind of savior, important bulwark against discrimination and for rights, when fundamentally it's just a bad, corrupt reactionary institution that needs to be like manhandled by the Democratic branches the way that FDR bullied them and maybe expanded, maybe run over, maybe ignored. I don't know what the solution is. And liberals need to stop like basically like thinking this thing is good and is like gone awry and get real about what this thing is. So I think that's all very plausible. I guess my fear is it's not just nostalgia for the Warren court that is causing liberals to kind of tiptoe around the court or even view it favorably.

I mean, if you ask people about, you know, political figures today, it turns out that John Roberts is the most favorably viewed political figure. He enjoys majority support from both Democrats and Republicans. I mean, right. It's astonishing. This is the person who wrote the opinion eviscerating the Voting Rights Act, making it impossible to remedy partisan gerrymandering. I could go on and on. I mean, this is the person who had oral argument in the abortion case was like, oh, what's the difference between banning abortion at 24 weeks versus 15 weeks? Let's just put the

data aside. What are facts? And Democrats are like, yeah, he's our friend. So it's this inability to actually see what is happening before you. Maybe we're all just frogs being slowly boiled. I mean, you're wondering what happens if the court overrules Roe. Will it be that the media says, well, at least they didn't criminalize abortion and require all states to criminalize abortion. So actually, this is a quite moderate and institutionalist court. I don't know where the problem arises, but I just worry that people's inability to see what is happening before their very eyes is a big part of the problem. Maybe it's partially commentators and Democratic politicians' inability to communicate effectively what is happening before their very eyes is a big part of the problem. Maybe it's partially commentators and Democratic politicians' inability to communicate effectively what is happening.

But I don't think it's just this nostalgia for the bygone era of the Warren court that is doing it. I mean, I think that's a great point. And I basically agree. I mean, I think, Kate, and you and I, I think, come at this from slightly different perspectives or are more cynical. I don't know, cynical. I don't know, cynical. I don't know what the right word is. Join the team. We're with you. She's always very optimistic.

No, I know. But I find it a ballast in my life both intellectually and emotionally. But we don't have a conjugal podcast with her. No, but I mean like I guess part of it is like, I think liberals have an institutional fetish, you know, like they like. And I think and so here's here's the sort of devil's advocate on the other side is like, look, you can be super cynical and super legal realist about all this. These people are essentially political operatives who put on robes almost as a like cosplay to like fool everyone into thinking that they're not like the other people. Like there's it's literally like a visual symbolic thing. Like, oh, I put my robe on now. I'm no longer a political actor. Like, and that,

and that, that, and that, that works basically. And that the whole thing is like ridiculous, you know, priesthood sort of situation where like, there are just people who make decisions. But on the other hand, which I think is your view, and I would love to hear it from you is like, no, like the rule of law means something and star size means something. And judges are different than politicians. And when it came when it comes down to like the chips being down in democracy, if the court's going to be like, yes, Donald Trump, you get your coup. Like there's a certain level of integrity or something different about the way the law and the courts work that we could count on them more to say, you won't get your coup, Donald Trump, than we can say the House of Representatives.

Right. Yeah. So this is the, like, we've had this conversation before. Do you trust Brett Kavanaugh or Marjorie Taylor Greene more, like, in terms of, like, yeah, I mean, like, my, like, short answer is obviously I trust Brett Kavanaugh more, which is a very low bar, right? I will agree with you. I mean, look, in terms of your question about sort of the broader trajectory of the court, yes, I mean, I think that one way to understand the history is that there's a brief period of a couple of decades, really, in the 50s and 60s, in which the court kind of like actually realizes its true potential, that it fell way, way short of it previously and way, way short of author of, like, you know, it's really hard to suggest that the court has just been an institution for that is, you know, advanced injustice and inequality the one person, one vote cases, right? Like the court has been at important historical moments, the only actor in our incredibly dysfunctional system that has had the institutional role and power to actually disrupt deep democratic dysfunction and to actually facilitate the functioning of democracy. Now, again, for all the reasons that we identified, John Roberts sort of chief among them. I don't have a lot of confidence justices are steeped could actually make an incredibly

important difference in a moment in which they were being asked to accept some facially preposterous reading of the Electoral Count Act or the 12th Amendment. So I do think that it might matter there that they understand themselves to occupy a role different from sort of just politicians sort of maximizing power. I want to say two things. One is that I actually agree with you on this. So I do think that like, and I think it's purely like, I think your point about like acculturation, it's like purely a sort of like pure effect acculturation thing for the

same reason I think Mike Pence did it. Like who will look at you in what way reputationally as opposed to like some deep principle. But I do think that acculturation point is correct. I will also say that we're on Zoom and like Melissa and Lee are like, no, they're like shaking their head vigorously in disagreement at this point, even though on this one, even though I consider myself more in the sort of cynical camp, like I actually do agree with you. I think like when it comes to like, you know, is the Supreme Court down for a coup? I think even the conservatives are probably going to be less likely than some of the most, the like, quote, small D democratically elected

members of the Republican Party would be down for a coup. And so in that sense, I think even the conservatives are probably going to be less likely than some of the most, the like, quote, small D democratically elected members of the Republican Party would be down for a coup. And so in that sense, I think you could see it as like a guardrail or whatever. But Leah and Melissa, you guys don't seem to agree. Yeah, I was going to say, that's so romantic, Chris. Like, you guys should get a podcast. I think as lawyers, we are trained to believe in institutions. I think it's really hard to believe blindly in institutions after everything we've seen over the last couple of years, and especially everything

we've seen over the last 12 months. You know, I'll give you Mike Pence, like pulled up short of an actual coup, in part because I think he's part of a generation that does care about what other people think. But, you know, once you sort of take down that veneer of, you know, just social propriety and you normalize coup-like behavior, if you will, what's to stop the next person from saying, you know what, Yes. Like, I'm not certifying those results. I mean, I just think we are a kind of, we are a civility and norms-laden society where norms and civility are going out the window. And in the face of that, we're relying on these institutions to keep these guardrails in place. And what we're finding is that the institutions themselves are as bound by these norms that are eroding as anything else. And I just don't know that we can put our faith blindly in those institutions. And I agree that the court has often been a force for quite progressive change. It has also been really regressive, even in our own lifetime. I mean, look at the whole

trajectory of reproductive rights. I mean, we're talking look at the whole trajectory of reproductive rights. I mean, we're talking about Roe hanging on by a thread. They have chipped away at it so substantially. I mean, it's a nub for most people in most of the country. And, you know, I think you can't look away from that. Like, it is a counter-majoritarian institution by design, and it is acting counter-majoritarianly. I also think it would be a mistake to suggest there are somehow totally independent and discrete norms that are uniquely going to prevent the court from going along with the slow and steady dissolution of democracy. Because think about, for example, the behavior we were alluding to in Wisconsin, where you

have Republicans thinking about how to basically allow the heavily gerrymandered legislature to assign where the state's presidential electors are selected. Guess where that idea has its roots in? In this insane doctrine that the Supreme Court pioneered and that a majority of the current justices may very well believe in, you know, that some justices signed off on in Bush versus Gore and that Barrett, Roberts, and Kavanaugh worked on as part of the Bush campaign. Or you think about Shelby County eviscerating the Voting Rights Act. I think that normalized the opposition to the Voting Rights Act, which had been previously renewed unanimously in the Senate. So I think that this court is vulnerable to the same kind of influence in the slow and steady erosion of norms that help

sustain democracy that Melissa alluded to. And they have also played a role in eviscerating them. I don't think tomorrow Neil Gorsuch is going to write an opinion that says, I declare Donald Trump king and emperor forever. But I do think they will and have issued decisions that enable democratic decline, enable autocracy, and further undermine democracy to a point where we will no longer recognize, you know, our government as like a legitimate, healthy democracy. Yeah. And the one thing I would add is just that like the one thing I do feel quite certain of is that if the election had been the same, entirely the same, and Joe Biden wins by 7 million votes, but it comes down to just Georgia

and it's 1100 votes as opposed to 11000. They 100 percent find a way to get the election. Donald Trump. No question. In fact, you know, like it's like it was the margins were too big. And, you know, Mitch McConnell gave this amazing speech when he voted to certify or voted to count the electors, which was basically like the subject of the speech was like, this is not how you steal election, you idiots. You look like clowns. And basically it's like Bush v. Gore is the way you steal. Like you have to dress this up in like plausible legal theories and legal claims. And you can't be like running your idiot sideshow with Rudy Giuliani's hair paste coming down his cheek and Sidney Powell saying the ghost of Hugo Chavez hacked all the machines or you look ridiculous. Get it together, you idiots. But the ghost of Hugo Chavez hacked all the machines, or you look ridiculous,

get it together, you idiots. But the sort of flip side was like, obviously, if it came down to 1,100 votes and they had a plausible legal theory in Georgia, like, who are we kidding about what this court would have done? Like, I have no zero, zero faith in them. Right. And that's what I'm imagining when I'm saying, like, is this court going to enable coup-hunt behavior and the destruction of democracy? And I totally, to be clear, I totally agree with the Georgia scenario. But they were not willing to accept, like, the original jurisdiction complaint filed by Texas, right, seeking to throw out the electoral votes of a number of other states, right? And that's something that— But neither was Mitch McConnell, right? And, like, if we're saying—

Yes, but on the other side of it, there were what, two dozen Republican attorneys general. I think that goes to like Kate's observation, like who do you trust, Brett Kavanaugh or Marjorie Taylor Greene? Like all of those claims look like they were written by Marjorie Taylor Greene. Yes. Like if they just come from the pen of Brett Kavanaugh or, you know, some Brett Kavanaugh-esque, you know, person with the right credentials and a veneer of respectability, I think it would have been fine. And that's your point, Leah. Okay. So this has been a bleak conversation. So that's what we do. That's our brand. Well, it's not, yeah, it's, it's, it's, it's rough out there, but so let me, let me, let's, let's end on this two things. One is like the Biden administration, if you're scoring things, they've been good on things they've been bad on.

I think particularly in the first year, if you were scoring the Obama administration, which like the Biden administration, and I think it's more than coincidence that the last two Democratic presidents have both inherited like a garbage fire of a country in crisis and do a lot to get them out. The Obama administration did not prioritize judges and didn't confirm a lot. And it was like, just like a real wasted opportunity. I think particularly in that first year, first two years, that can't be said of the Biden administration, which really has and Chuck Schumer has, and they have, they really have confirmed a lot. I mean, I, and, and from what I can tell, and this is again, not my area of expertise, but a lot of good folks and

people that I know and respect are on the show, like Dale Ho, who's been nominated. I think he's probably got a tough road for some reasons, but it does seem like, at least on that level, this thing that was happening, which is that the Democratic Party and Democratic presidents and the Democratic center left was not prioritizing judicial nominees and confirmations in the same way the right was, has corrected a little bit in the first year of this Biden administration. Would you agree with that, Kate? Yeah, no, I think we all agree. I mean, I think that they've done a terrific job. I think that we all wanted them to send up more appellate court nominees faster. But I do think that the numbers

at sort of the end of the year are excellent. And the sort of diversity, both racial and ethnic diversity, experiential diversity, a lot of public defenders, a lot of folks who have actually been like Dale, voting rights lawyers, or Myrna Perez in the Second Circuit, right? So, I mean, these are terrific candidates. And I think that one happy side effect of doing judicial nominations in a filibuster-free world is that you can actually, now that doesn't mean everybody gets through, but you actually can nominate real committed progressives, and at least some of them will get confirmed to the federal court. So I do think that now we all very much hope they will have an opportunity to fill a Supreme Court vacancy very, very soon. And that's how you really make a mark.

But on the lower federal courts, yes, I think they've done a terrific job. Yeah, I think I agree with Kate. They have done a great job of prioritizing that, getting people through. Shout out to Paige Herwig and Dana Remus, who have really prioritized that. I think one glaring gap, though, we have seen a range of experiences, including public defenders, including voting rights lawyers. They have yet to nominate anyone with a background that extends to reproductive rights. So I mean, it really does feel like with regard to that aspect of the civil rights community, anyone who talks about abortion rights is kind of the third rail.

That's interesting. What do you think, Leah? Yeah, so I agree. They've done a great job on that front. I also agree with that omission, which they could immediately and promptly correct by nominating Julie Rickleman to any district court in the United States, and the courts would be much better for it. She's the advocate who argued the Mississippi abortion case on behalf of the clinic. Julie Rickleman for the Fifth Circuit. Yes! Yes! And am I right that she's pretty young, Julie Rickleman?

Yep. Yep. I saw that the advocate who argued Roe at the age of, was it 26? She was 26 years old. Sarah Weddington. She and Linda Coffey. Linda Coffey did not argue it, but they worked on it together. And they were only a few years out of the University of Texas Law School the sound, the lawyer on the other side, that if people that are now

listening, why is this happening? If you go over and listen to strict scrutiny, it opens with sound of the oral arguments at Roe. Is it the solicitor? Is it Texas Solicitor General? He's like a DA. He's like a local. I think he's like the local DA. Yeah, he was a DA. And he basically opens with a joke about how when a man goes up against such beautiful women, he's bound to lose, right? They are going to have the last word. Yeah, right? They are going to have the last word. Yeah, that they're always going to get the last word.

Yeah. Two beautiful ladies, they're always going to get the last word. It's peak. It's peak Texas. It's a real good time capsule. Okay, so here's my last. Let's end here. How should normal citizens think about what they do?

Like, I don't want to be too like prescriptive, but I do think that like, I'm a normal news consumer and I care about democracy and I care about justice and I care about reproductive rights. I care about civil rights and voting rights. And like, there's this sixth street court. I can't, you know, I can't change anything about that. And it's not like, uh, the local congressional race where I can go knock on doors. And it's not like to the extent that there are other areas of life of political life where people feel like, well, I can do this. I can donate money or I can knock on doors or I can talk to neighbors about this or even organize a local level on, you know, they're trying to recall my progressive district attorney. Like the court just feels so out of the realm of democratic control.

And so it feels a little enervating. And I guess I wonder, like, and maybe there's no answer here, but like, what does, what do you do if you're like the average citizen thinking about this court and what it's going to mean? One thing to echo something that Leah said earlier is I think that you can actually try to sort of center the court in your political life in a way that it hasn't been previously. So to understand that the votes you cast, in particular for president and senator, have everything to do with the composition of the court. And so to the extent that you are somebody who is inclined to vote and to mobilize and to give money

and to attend rallies, with the court kind of front and center of that, like it should be. And on the political right, it has been for a long, long time and it hasn't been on the left. So I do think that both, now you're talking about ordinary citizens and not political players,

but I think this is true both of, you know, the individuals who, you know, staff and run campaigns for, you know, federal or state or local office. But I do think, you know, I think that it is, that there's a connection between the court and votes for, you know, state legislature as well. Like, again, to Leah's point, even if the court says that states can prohibit abortion if they want Like, again, to Leah's point, even if the court says that states can prohibit abortion if they want to, right, like actually voting to attempt to implement your policy

preferences with respect to the choices that those elected officials do make is something that also is connected to the court. So I think that sort of, yeah, again, centering the court in our political lives is something critical and actually, you know, actionable. I also think related to that point is trying to not necessarily disaggregate the question of politics from the question of what the court does. I mean, or even sort of doctrinal content. I mean, we're so used to thinking about, you know, this is about voting rights and this is about reproductive rights, when in fact, they're inextricably linked. Like, you don't get laws like SB8 unless Texas has been able

to completely gerrymander the process such that people who would speak out about SB8 are suppressed in doing so because of the way the votes are cast and counted. So they're inextricably linked to each other. And in fact, when you have control of a state house, you're able to pass these really extreme laws. I mean, they all kind of run together.

And I think thinking about them as part of a project of anti-democratic fervor, as opposed to these singular kinds of questions, is really important. And then I think if you're someone who is inclined to have a regular diet of media, whether it's MSNBC or whatever, to ask, like, what else? What else do we not know? I mean, you know, I just think about a couple of years ago when there was coverage of then the challenge to a Louisiana admitting privileges law. And, you know, the court upheld Roe versus Wade. That was portrayed as a massive victory on almost every media news outlet. And, you know, there were those of us who went on, but it was hard to sort of say in those soundbite periods, like, this isn't actually a victory.

It's actually a retrenchment in a lot of ways. And let me explain why. So I think if you're watching media and that's what you're consuming, ask, what else do I need to know? Come listen to Strict Scrutiny. We'll tell you what else we can't tell you when we go on MSNBC.

I guess to that, maybe combining them both, a way of kind of centering the court in your political life is just learning more about what the court does. I think no matter what the issue is you care about, I mean, just thinking about this term, climate change, gun safety, reproductive rights and justice, COVID-19 and containing the spread of a deadly virus. Those issues are all things the court is going to weigh in on. And I think the more people learn about the court, the more their views on it might change. And don't just read the headlines or read kind of the main press outlets about what the court is doing, because that I think can and does obscure, you know,

what is actually happening there, as Melissa suggested. My one action item is if the poll, if Gallup calls you up, don't tell them you approve of John Roberts' job. That's a really important action item to anyone listening to this. Leah Littman, Melissa Murray, and Kate Shaw, who are the co-hosts of Strict Scrutiny. Wherever you're listening to this right now, you can just search Strict Scrutiny and subscribe to it on the same platform. Episodes come out once or twice a week, depending. Sometimes they do emergency episodes

three or four times a week. Usually when things are going terribly, actually, it's sort of a negative indicator if there's lots of Strict Scrutiny podcasts in your feed. But you should definitely check it out if you enjoyed this conversation. Guys, thank you so, so, so much. Thanks, Chris.

Thank you. Thanks for having us. Once again, great thanks to my wife, Kate Shaw, and her strict scrutiny co-host, Melissa Murray and Leah Littman. If you'd like that conversation, we've had Kate on the program two other times. You can search for those in the WithPod archives. Tweet us with the hashtag WithPod, email WithPod at gmail.com. Why Is This Happening is presented by MSNBC and NBC News, produced by the All In team and

featured music by Eddie Cooper. You can see more of our work, including links to things we mentioned here, by going to NBCNews.com slash Why Is This Happening.