Strict Scrutiny - Break Glass in Case of Emergency

Episode Date: July 11, 2022

It was a long term. It's over. Leah, Melissa, and Kate recap what all happened, what we maybe learned out of it, and what we have to look forward to.  For a transcript of this episode go to https://crooked.com/podcast-series/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 necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and what remains of the law and legal culture in the wake of the term we have just experienced. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw.

And welcome to our term wrap-up slash recap episode. Slash post-mortem. Honestly, given what lies ahead for next term, it just feels like we are looking ahead at more slashing and burning. So hard to know exactly how to describe what we just experienced. But this does feel like something of a break glass emergency moment. We have been doing this podcast for three years now, and there have been some dark moments along the way. But there has not been a term like this one, not just in the last three years, but I think also in our lifetimes. And Melissa and I are older workers, so it has been a while.

Speak for yourself. I do feel aged like 20 years in the past month. I mean. Yes. You know who hasn't aged though, Kate? That dang guy. I was thinking moist and dewy, the word the adjective I was going to use.

The drinking the blood of his enemies just gives him eternal youth. That's obviously what's happening. We are speaking, of course, of Justice Samuel Alito. I thought you were talking about Voldemort. Pick your poison. Who we repeatedly compliment

on his excellent skin. And that's the only thing we repeatedly complimented on ever. Okay. So maybe let's start by ticking through what happened in the last week of the term. And it is just really an astonishing amount when you sort of list it out like this. So in the span of one week, from June 23rd to June 30th, the Supreme Court in Dobbs overruled Roe versus Wade and set in motion the near total prohibition of abortions in many places in the country, including in some places for children who are raped and become pregnant as a result of that rape. That was set in motion immediately upon the court's overruling of Roe. Next, in NYSERPA v. Bruin, the court struck down concealed weapons licensing regimes

in states in which a quarter of Americans reside, which will definitely make it easier to carry guns around crowded places. In West Virginia v. EPA, the court severely restricted the EPA's authority to regulate greenhouse gas emissions and basically announced a supercharged version of a doctrine it had previously talked about, but never really in this way, that will likewise make it much harder for administrative agencies to address new or developing problems in climate and beyond. In Castro-Huerta, dramatically undermined tribal sovereignty. In Vega versus Taco, dramatically undermined Miranda. In Kennedy versus Bremerton, basically tore down the wall between church and state, at least when it comes to public schools. The court also came pretty close in Texas v. Biden to directing President Biden to continue the Trump-era Remain in Mexico policy, thereby basically replacing the president with the federal courts when it comes to setting immigration policy and engaging in foreign relations. But because they didn't do that and only installed the federal courts to oversee the entire administrative state in West Virginia v. EPA,

that means we have a moderate institutionalist court, right? The fact that this was even on the table has to be, as I just put it, on the list of insane things that happened. Well, the list of insane things that happened is essentially Leonard Leo's to-do list. And maybe they're leaving, replace the president with unelected federal judges for next term. So just so there's more to do. And that's just the last seven days. The last seven days of this term. I mean, I can't even wrap my head around that.

Imagine having that many consequential things on your to-do list. Like I put things on my list like, you know, get staples, things like that, just so I feel I've accomplished something. But wow. Lock my dog. Yes. Imagine having like literally dismantled democracy on your to-do list and being able to check it off with the help of the Supreme Court and its six to three conservative supermajority. So listeners, we did some pretty in-depth overview of many of these cases as they came down. And so today we're going to discuss this last year in a more thematic way. We're

going to hit on some of the things we didn't have a chance to cover as we did those recaps and previews. And we're going to touch a bit on what's on deck for next term. So again, previewing the rest of the to-do list. And we're also going to talk about what we have deck for next term. So again, previewing the rest of the to-do list. And we're also going to talk about what we have planned for you this summer. So we'll talk a little bit about what we're going to do about all of this. So let's go. Okay. So first top line takeaway for the term has to be credit and all credit to Leah. This is the YOLO court. This is a court in an incredible hurry. So last term, do you remember we were doing this recap and we sort of used a metaphor of an express train versus a local train, right? All the conservatives we knew were going to the same place, but

there was a real question about whether they were going to take a slow and incremental and gradual path there or just like hit the accelerator as fast as humanly possible. Do trains have accelerators? Have I mixed transportation metaphors? Anyway, basically to go as fast as possible to the destination. And I think it's pretty clear now we are on the express train, right? So. Oh, we're definitely on the A train between 59th street, 125th. It is. And yeah, yeah. And you're like, oh shit. I thought I was going to get off on the upper west side, but now I'm at 125th. You're not getting bagels. You're not stopping at Barney's. Congrats.

You're going to 125th Street. So that's absolutely the answer. So there is this rock-ribbed conservative supermajority, and they are not just luxuriating in that new configuration, taking their time, deliberately focusing on a small group of targets, calibrating the change they make over time to, say, minimize chaos and maybe insulate themselves from public reaction. All these things, you know, I at least thought were possible, but they're not. They're trying to do it all as quickly as possible, as aggressively as possible, without any seeming concern regarding kind of public reaction and public pushback. And that, it feels like any playbook that one might have consulted about sort of historical relationships

between the Supreme Court and public opinion and the political branch's reaction and those things tempering the court's eagerness to move the law quickly, none of that applies anymore. So I feel like we are in wholly uncharted terrain. Can I say something about this? Because with regard to abortion and Dobbs, I had said earlier in the term, like the

one thing that I think might give this court pause is the fact that there's a midterm election coming up in November. And I doubt the chief justice wants to see millions of Americans going to the ballot box with Rose death on their lips. Like what a naive idiot I was, right? Like I'll say it. Like I was like, surely they have to care about the political optics of this. They don't. And then I really credit you, Leo, with this. The reason why they don't, as you reminded me, is that there is no way to register your objections if the Supreme Court has already helped to dismantle the infrastructure of

democracy. So again, check, check. Like they've actually insulated themselves. Don't have to worry about those votes in midterm elections. Those pesky voters. Make it unlawful to vote. Boom. Lest you think that's an exaggeration, we will discuss a Wisconsin Supreme Court decision

toward the end of the episode. Again, we've often said like, you know, people don't say when they were wrong. Like, I will actually say I floated the possibility early on in this term that maybe the threat of political blowback would be enough to restrain this court. No, no, this is not a court capable of restraint, in part because they've cut the cords on all of the restraints themselves. So yeah, so I'm just, my bad. But it was a totally justified prediction based on the of the restraints themselves. So, yeah. So I'm just, my bad. But it was a totally justified prediction based on the way the court has historically behaved. And it's just that this court has decided

to radically break. No, no, you can cancel me. Cancel me. Where no one's canceling you. And I think that was justified, but I think it is right that they have, they have changed the script so dramatically. And, you know, we're saying, you know,

there's no way to actually register your objection at the ballot box and to skip ahead to the end of the episode. We're going to come back to this point, and we are in no way saying that it's not unbelievably important to continue to register your objection at the ballot box. But the court has absolutely made it more difficult for those popular preferences to actually be translated into electoral success, and that is an enormous problem.

Exactly. We will repeatedly underscore that notwithstanding the court's best efforts to, you know, breed cynicism and disillusionment with the political process in our institutions, and again, to just like raise the obstacles to voting and the standard for actually, like registering preferences, allowing a political majority to win political power, it is so important to continue voting and get other people to vote as well. Okay. So second theme is this term was a million years, a million years long. Like every day, it was the 30 rock. What a week. Lemon, it's Wednesday. Meme. Like every single day, every single week. I mean, think about how this term

started last summer. It started with the court invalidating the CDC's eviction moratorium. I had forgotten about that. Oh, Melissa, wait until you hear the story. I am about to recount. And then Texas SB8. Remember how in the dead of the night, the court just refused to do anything, allowed Texas's SB8 to go into effect. That was back when I was a younger worker. Texas's SB8 is the law that prevented abortion providers in Texas from providing abortions more than six weeks after a person's last period. After the court allowed that law to go into effect, Justice Alito went on an angry tirade about how Adam Serwer, the wonderful reporter at The Atlantic, was unfairly attacking Justice Alito on the court for nullifying Roe, which he, Justice Alito, definitely did not do. Yes. Exactly. Yet.

Exactly. Exactly. Get the timing right, Adam. I hadn't done it yet. And then, you know, Justice Alito gave that deranged enemy speech, accusing everyone who criticized him, you know, of being unfair and mean toward him. And they were the real threats to institutionalism and our institutions. And that was the beginning. That was the beginning of this term. And

the entire, the entire arc of that storyline, like Texas SBA, Justice Alito's rant, the Dobbs leak, you know, the ultimate release of the opinion in Dobbs just perfectly encapsulates this theme and trend we seem doomed to repeat for eternity, where, you know, Republican appointed justices and Republican commentators are talking heads, as well as some supposedly liberal ones say, what are you talking about, you crazy libs? We're definitely not doing that crazy thing, and we definitely have not done that crazy thing yet. And then all of a sudden it's like, yeah,

okay, we did that crazy thing, and it's fucking awesome, and you must respect us and treat us with deference and tell us how awesome it is, libs. Like, that's the meme. That was this year. That is the arc. When you put it like that, Leah, oh my God. That's the cycle that we are trapped in.

This is the bad place. The Groundhog Day of grievance. Yes. Okay, so also casting our memory back, since this is like a little waltz down memory lane from this term. Do you remember it was also at the beginning of this term that Maskgate happened? Remember the justices returned to the bench?

And Nina Totenberg reported that the reason Justice Sotomayor was not attending arguments, she was telephonically participating, even though she was in her chambers in the building, was because some of her colleagues... Nina would not want you to say telephonically. Well, she does not like that. I don't really understand her objection there, but we can return to that. She was, I don't know, calling in, zooming in. She was participating remotely in oral arguments from chambers though, like down the hall. And the reason, Nina reported, was that Justice Gorsuch, who Justice Sotomayor typically sits next to, refused to wear masks after the

chief suggested in some fashion that the justices wear one. So that all happened. We then had the OSHA test or vax case in which the court, remember, scrambled to set oral arguments in the first week of January. So, you know, despite Alito's rantings, the court actually seemed a little bit to respond to public criticism of the court's incredibly active summer on the shadow docket, in particular the COVID shadow docket. So heard those arguments and then a week later decided that OSHA lacked the authority to require large employers to have their employees test or get vaccinated because COVID isn't just a workplace hazard. I mean, the logic was so bad. I had to kind of go back to the

opinion and remind myself that's literally what the court held, but it is. I'd forgotten about that too because COVID is over. No. Anyway. Another theme for this term, and it's reprising a theme that we have highlighted in previous term recaps, but stare decisis is for suckers, which given the big stare decisis is for suckers energy we got this term, I think we have to expand it to stare decisis is for suckers

and precedent is for punks. Because like, yeah, I mean, we just like make it bigger because they certainly made it bigger. But we also saw a new theme, statutes are for suckers too. So in her final blistering dissent of the term, Justice Elena Kagan walked back her famous line, we are all textualists now, and said that this court is only textualist when textualism suits its preferred outcomes. And she specifically noted that when textualism would lead to upholding a claim of administrative authority, the court just does something else. And I think we can encapsulate this theme by saying not textualist, but textual-ish. Oh, I like it. Yes. I like it. Textual-ish. Yes. Textual-ish. And we saw this, you know, not just in the major EPA climate case, but also the court's decision

in Cummings about whether emotional distress damages were available for certain types of discrimination claims. There, you know, there's a pending petition for rehearing that says the court didn't even acknowledge or account for the current updated correct text of the statute. This was also evident in Justice Alito's and Justice Thomas's writings in federal criminal cases, where they would urge the courts to just discard all cases interpreting federal statutes when those cases would lead to the defendant winning. In particular, I am thinking of Taylor. Okay, another theme of the term is that I think it is now crystal clear that Amy Coney Barrett is no moderate centrist. I'm not sure we really needed this much evidence. But of course, when she was appointed.

Kate, this can't be true. This cannot be true. I was promised there was a moderate institutionalist court, a 3-3 block of moderate institutionalists, that she was very, very different from Justices Thomas, Gorsuch, and Alito, and that as a liberal, I should support her because reasons. Because feminism, I think, is one reason. Yes. Also feminism. I forgot about that one. Right. Feminish.

Oh, you're on a roll, Melissa. So this is our first full term with her on board. And the data is pretty clear that, no, this is no moderate centrist justice. This isn't even a Roberts-Kavanaugh style justice. Not that those two are moderate centrist. Like a gaslighting conservative. Right, yeah. We'll get there just in a Datsun, not a Tesla. Yeah. No, she there just in a Datsun, not a Tesla. Yeah.

No, she's definitely in that Tesla. We'll get there at 55 miles an hour, not at 65 miles. So one kind of category of evidence for this is, you know, the court's major decision in Castro Huerta versus Oklahoma, the decision basically clawing back a lot of the court's foundational cases on federal Indian law, you know, that Oklahoma basically launched against the court's decision in McGirt versus Oklahoma that reaffirmed the existence of reservation boundaries. So, you know, that piece of evidence is there. Definitely. And I think in addition, we have both Patel versus Garland and Shoup versus Twyford. Those are both cases in which she was part of a five-justice Republican bloc with Gorsuch and the liberal justices in dissent in both cases ruling against an immigrant in removal proceedings and a defendant in habeas proceedings. So she is perfectly happy to supply

the fifth vote. If there are swing justices in the conservative bloc on particular issues, it's pretty clear they are Roberts and Kavanaugh and Gorsuch. I mean, in a very small subset of cases for each of the three of them. I do not want to refer to any of those justices as swing justices, because I feel like that moniker was used to refer to justices whose votes were frankly, like up in the air, who you didn't know how they were going to rule on particular issues in particular cases. Whereas I feel like going into this term, and even before we heard the arguments in these cases, it was like, well, obviously Justice Gorsuch is going to be with Castor Huerta, you know, in Castor Huerta. Obviously the chief and Justice Kavanaugh are going to say this Fifth Circuit remain in Mexico decision are too insane.

Like they're not swing justices in the sense that like... They're strange bedfellow justices. Yeah. I guess I'm not sure about, but Gorsuch and Patel and Shoop versus Twyford, those I think were not necessarily predictable going in. So maybe we should say occasional crossovers. Is that fair? Because I agree.

Like I think that they sometimes vote against the conservative block that will always contain Alito and Thomas and then some rotating cast of characters, typically all of the other four, not always all of the other four, and they will occasionally cross over. But I guess my big point here is that Barrett really actually doesn't seem to be in the ever-crossing-over category. It's really just Roberts and Kavanaugh and Gorsuch on different issues. So there were also some revealing cases that underscore, I think, that point. So there's

Torres, the sovereign immunity case in which she voted with Justices Gorsuch, I think, that point. So there's Torres, the sovereign immunity case in which she voted with Justices Gorsuch, Alito, and Thomas for a very muscular notion of state sovereign immunity that would basically immunize states from lawsuits for violating federal laws when those lawsuits are brought by private citizens. There was also Nance v. Ward. Again, she was in the dissent minority in that case together with Justices Gorsuch, Alito, and Thomas. In that case, she would have said people who are challenging how the state is going to execute them must use a procedural mechanism in which they, you know, are definitely going to lose, basically forcing them into a losing

procedural maneuver. And so just, again, in the spirit of Melissa, your mea culpa, you know, revisiting some things you have said, got an anonymous comment that I think is very well taken in which, in our Dobbs episode, you know, I provided some of my feelings about the self-designated liberals and pro-choice commentators who supported the nominations of Justices Kavanaugh, Gorsuch, and Barrett. me that maybe I spent a little bit too much airtime on the person who testified in support of Justice Gorsuch, given that Justice Gorsuch's confirmation didn't really change the composition of the court. And the fact that as we have just pointed out, Justice Gorsuch does seem to have like somewhat independent views on issues of federal Indian law, as well as in some criminal issues or like immigration law matters as well. Whereas the same cannot be said of Justice Barrett. So I point well taken anonymous commentator. You're canceled. Yeah,

again, like, well, I am willing to admit when some things I said need to be revisited, unlike, say, some men's, all I will say on that point. While we're just copying to naivete or mistakes that were made, I mean, ours are pretty minor. I mean, that was a pretty minor mea culpa, Leah, and expecting the court to be attentive to an election is also pretty minor, I think. Anyway, back to themes. So another theme that I think characterized Justice Barrett's first full term on the court is in the areas where it counted, in the areas where she had the opportunity to supply a crucial vote to check something off of that Federalist Society to-do list. SB8, Dobbs, Bruin, campaign finance, religion. Justice Barrett was in lockstep with the conservative bloc the whole way. There was no wavering, no departures. She had some really interesting colloquies at oral argument. I mean,

I was astonished by this in the Carson versus Macon oral argument. Like I never in a million years expected Young Life to enter the chat and it did. And I'm still thinking about that. You know what's so interesting? Can I just, all those cases you just mentioned, Melissa, SB8, Dobbs, Bruin, Cruz versus FEC, the campaign finance case, the big religion cases, Kennedy and Carson. I don't think she said, I don't think she wrote in any of them, interestingly. She didn't. working on cases. But it's pretty interesting that she is like just quietly supplying the required vote in so many of these cases. I mean, some of them, it's the sixth and not the fifth vote, but not really saying anything like in a written opinion of her own. I could say something, but I won't. I am also restraining myself. Listeners, let your imaginations run wild. Another theme that we have kind of alluded to, or I think some of the prior themes

relate to is this idea of a jurisprudence of victimization and grievance. And I'll try to explain kind of what I mean by this. Grievous prudence. Grievous prudence. I love it. Our next article, you guys. Yes. So honestly, this actually relates to an article that I have coming out in the fall. Although it's about a more narrow subset of cases than the point I'm going to make here. So part of what I think is going on in these cases, and I'll describe what's going on in a second, is, and this relates to the idea that the court going on in a second is, and this relates to the idea that the court just like doesn't really care about public opinion is there is now

this alternate universe that exists, you know, for the justices to evaluate their facts in, for the justices to test their legal claims in, and a distinct subset of public opinion they care about, right, like conferences where their friends and like fellow travelers attend. And I think what this does is it has allowed them to discount the views and in some instances assume bad faith and just like utter irrelevance of anyone who doesn't share their bottom line conclusion or their worldview. And, you know, the this here that I'm talking about is this attitude of, you know, we don't really care about the facts or, you know, our factual misrepresentations, whether it's their completely unhinged dicta in Martinez-Ramirez that the litigants conceded they lost under the alternative standard,

whether it's the very striking, overly aggressive, in the words of the Ninth Circuit judge, deceitful false narrative they spun about the religion public prayer at school football games case, Kennedy versus Bremerton, or whether it's their attitude toward stare decisis and precedent, you know, their complete willingness to just say, well, we don't really care about the reasoning from that case, or, you know, developing an analogy with that case, because we just think that case is wrong. And it just leads to this, like, fuck the facts, fuck the law, fuck your feelings, we don't have to care about anything you think because we will get affirmation about our again like statement of the facts our worldview our analysis of the cases you know where where we

want to is does it even matter though the fact that there is this external affirmation like it's you know fuck the facts fuck the law fuck your feelings and fuck you libs because there are six of us and we can do what we fucking want i mean i know that's true that's that that might be right but i still think people want some support and some validation the echo chamber yeah yeah and again particularly when people within that echo chamber have launched this very odd like delegitimation campaign, you know, directed to Justice Sotomayor. I think increasingly, I have seen it directed at Justice Kagan, where you have commentators trying to criticize her writing style and tone and rhetoric. And obviously, we saw, you know, the conservative legal movement's treatment of, you know, Justice Jackson, and this effort to just undermine all of them, again, as well as anyone with the kind of

different priors. Related to that observation, Leah, I think this jurisprudence of grievance, the grievous prudence, if you will, also led to some really striking and jarring tone moments in the term. I'm just like, just nasty, nasty stuff. I mean, what was so striking to me in the Dobbs dissent was how the liberals really lamented the loss of the sort of open-minded conservatives like Souter and O'Connor and Kennedy. And the counterpoint to that was really the way that Justice Alito came for Justice Breyer in his concurrence in Bruin, which was like, you know, hey, you idiot with all your statistics and your thoughts about gun control. How do you account for the fact that one of the mass shootings near the top of your list took place in Buffalo?

Obviously, this New York law didn't help with that. I mean, so ghoulish. I mean, like, less than a... Like, was it even a month after Buffalo when that opinion came out? I think it was just a month. I think weeks, yeah. It was, I mean, it was, like, literally weeks

after this massive tragedy, and he was just sort of like, yeah, obviously gun control didn't help with that. I mean, it was just like just weird and ghoulish and directed at this man who is leaving the court and is by all accounts been a really nice and generous colleague, even if he doesn't share your views. Well, and the other kind of counter to that is the majority in Dobbs itself, in which Justice Alito just like bitch slaps Justice Kennedy, Justice O'Connor, and Justice Souter and their plurality opinion up and down, zero respect. And it's nasty. I think it's a little less personal

than the Thomas Bruin majority opinion, but the Alito majority in Dobbs is pretty nasty with respect to the dissent, right? We're accusing it of failing to engage with a long tradition of history, which is just completely bullshit. Of course it engages. They just read the history differently. The dissent is not, and identify any pre-Roe authority. There's just a nastiness. And you contrast that with anger, but not ad hominem in its articulation and kind of sorrow that permeates the joint dissent in Dobbs, but also things like Sotomayor's public statements about her good, her warm relations with her colleagues at the ACS convention. Like

they're just like that. There's so much asymmetry. It's like we could spend a whole episode on it, but just like the sort of tonal asymmetry between the way the liberals on the court talk about and deal with their conservative colleagues and the way the conservatives disrespect the liberals on the court is really striking including the chief justice of course okay as one of the liberals yeah so true um had you all forgotten about the leak i almost had like that was like 150 years ago investigation is going oh i mean i think it's going as well as the Buckingham Palace investigation into Meghan Markle's bullying. I mean, the clerks from this term are all leaving now. So hopefully with their phones.

Oh, God. Hopefully with their spirits not completely shattered. I mean, I do wonder about how the clerks, the liberalices are are holding up considering how hard this last stretch has been on like all of us on the outside i can only imagine how hard it has been for them i think there is some value to people leaving the court with a clearer eyed view of what the current court is many more leah lipmans in the making well there's a silver lining. We found one. Start your podcast. Work out your feelings. It will all be okay. There's a T-shirt for that.

Another theme for the term that I'm still trying to wrap my mind around is this whole selective federalism. You know, federalism for the, but not for me. Federalism for Arkansas, but not for me, federalism for Arkansas, but not for California, New York, Illinois, or any of those blue places. So this is all to say the court was very, very happy to invoke federalism in Dobbs and to insist that all they were doing was a neutral settlement that returned the question of abortion to the states for democratic deliberation a la laboratories of democracy. But where were these

laboratories of democracy in Bruin? They had basically been blown up like a Breaking Bad meth lab. The court stepped in and decided that New York's effort to deal with the question of concealed weapons was simply not something that should be subject to democratic deliberation, but should be invalidated by judicial fiat. And so, you know, this is all really interesting when you think about the debates about congressional action to protect Roe and, you know, how we need to be mindful of the prospect of congressional action to prohibit abortion nationwide. So, you know, on the one hand, we have people talking about codifying the protections of Roe. And the president's saying he supports a filibuster exception to do that.

So it's like, you know, people are speaking in really serious terms about doing it. People are speaking in really serious terms. And we also have Brett Kavanaugh suggesting, well, this is just back to Democratic deliberation at state legislatures or in Congress. So, you know, inviting some democratic deliberation at every level. So this is all to say there is a kind of selective and itinerant commitment to federalism principles that we've seen from this court. And, you know, there's every reason to believe that this court would invoke federalism and limits on congressional power if the issue was about a federal statute that sought to protect something like,

say, abortion, but would uphold a statute that sought to prohibit abortion. There's just no principled understanding of how federalism works here. And I don't know, I think that's a major takeaway for this term and something to think about as you think about how to respond to what we've actually seen. No, it is so disheartening to kind of respond to people's questions about, well, what about, you know, federal action? And I have to just answer, well, it depends if the federal action is to protect abortion, I think it's vulnerable. If it's to prohibit abortion, I think it's fine. And there's no legal... Likewise, it works the opposite way for guns to prohibit guns, bad. Like just to inject another theme that I think is like directly related to this, the attack on precedent, the attack on statutory text, the selective commitment to federalism, to textualism, to originalism, like whatever you want to call it, is, I think, an attack on effective governance. Like the Supreme Court has become a chaos agent. You know, how are agencies supposed to govern? The Loki court.

Yes, like they are a chaos agent because how are administrative agencies supposed to govern if you just know, well, the court might just throw up its hands and say, we don't like this exercise of administrative authority, therefore it's a major question. Agency, you can't do this. How are states supposed to govern if the Supreme Court has required them to engage in this, you know, historical methods inquiry that is completely unworkable, rather than telling them to go gather evidence and support their policies, you know, with, again, actual evidence and empirics? How do people know their rights when, again, the court is just engaged in this, we don't care about precedent, we're not developing sensible distinctions with prior cases?

It just makes everything up in the air and governance, individual behavior, everything more difficult. What was it that Justice Kennedy said? Liberty finds no refuge in a jurisprudence of doubt. But what about a grievous prudence of doubt? Well, I mean, like... No, it's a grievous prudence of certainty, right? Like, that's the other thing. That's the thing. It is a grievous prudence of certainty

because exactly as you were saying, Kate, right? Like, when someone says, like, well, could Congress enact a federal abortion ban? I'm like, sure, Justice Thomas has limited views of the Commerce Clause, but he'd be like, well, Congress is protecting fetuses, so this seems fine to me. But could Congress enact a statute, you know, protecting abortion rights? That is unclear. And that asymm dates are selling fast. So join your fellow friends of

the pod at live shows in Nashville on Friday, October 12th, and Atlanta on Saturday, August 13th. You can visit crooked.com forward slash events to get your tickets now. Okay. So other kind of like big thematic takeaways. One thing that we should mention, and we're going to do a deeper dive on this on a summer episode, but I think you have to note the important theme of the term that was just basically a clean sweep by individuals challenging rules or laws or policies on the basis that those rules or laws or policies undermined religious freedom, right? So religious claimants won in every case they had before the court. And in many of those cases, you had the bulldozing of precedents in this area that had previously been understood to enforce limits on government funding of or active support of religion. So right in Carson, we saw the demise of the main scheme that funded private schools, but, you know, didn't allow those state funds to flow to parochial schools.

Yet in the Kennedy versus Bremerton case, a big sweeping victory by a high school football coach who wanted to pray midfield after football games. We had in Shurtoleff, a big sweeping win for Remember Camp Constitution. This was the religious organization that wanted to fly the Christian flag over the Boston City flagpole. And then finally, we had a win for a death row inmate in Ramirez versus Collier, who wanted his pastor in the execution chamber with him. So in Ramirez, let me hasten to say, I think that was, and we all thought that was the correct outcome, but it is really a striking trend that there's now, you know, the batting average is a thousand of religious claimants before the court this term.

Also worth noting, this religious energy is not just confined to the court. So we're taping this on Friday the 8th. On July the 7th, Thursday, there was a hearing in Mississippi on a challenge to an abortion law that was about to go into effect in that state. And the proceeding began with the court calling a chaplain to say a prayer, which the chaplain did. It was apparently a quite extensive prayer that basically said, you know, this isn't about law, it's about God. And the court subsequently allowed the Mississippi law to go into effect, prompting the governor of Mississippi, Tate Reeves, to tweet, today we wake up in a state where the church doors are open and the abortion clinic's doors are closed. All the glory to God the Father. Amen. Prayer hands, prayer hands.

This is the chief executive of the state. Yeah. And you can see not only the way what the court has done is emboldening this kind of rhetoric, but also I think emboldening, you know, participants in the broader kind of constitutional culture to all of a sudden realize, well, if we are a religious entity and we have always understood, say, we're bound by state or local non-discrimination principles, we can't discriminate on the basis of sexual orientation, that's just, you know, that's life in a pluralistic society, right? To kind of channel Joshua Matz when he was on our show in June. I think those entities are actually now taking a look at this court and thinking like, huh, we can change our policies and I bet we'll win. And so I think that it is just having unbelievable ripple effects that even cases that are not litigated, that don't end up in the Supreme

Court, like it's having profound impact on individuals and institutions, like way, way more than the small group of cases that we are talking about. This is a point I think that we have underscored at various points during this term, but it's worth thinking about again. There were four religion cases this term, right? So Ramirez, Carson, the Kennedy case, and then Shurtleff. I don't know that we've ever had that many in a single

term, certainly not since we've been doing- Well, and not when the denominator is 66. Like, that's a big percentage of the cases. Yeah, it's a really big percentage. And I think that speaks to the difference a six to three conservative supermajority makes, right? So when it was just a five to four majority and they had to worry about where the fifth vote was coming from, especially if they wanted to do something extreme, they wouldn't take those cases. Now they have five. They know they have five for this. And they're just emboldened to take all of them.

So, I mean, this is sort of part of Leah's point about being on the A train and going fast. But it's not just in terms of speed. It's also in terms of volume. Yeah. Okay. So a couple of other points. One, I think we have to stop and talk for a minute about how laughably bad the law office history on display in some of these cases is. I mean, look, we spent time when the decisions came down talking about the selective reading of history in Dobbs, the abortion case, and Bruin, the gun case. But there's been a lot more commentary that's come out since we initially responded to those opinions. And then I think there's like use and abuse of history on display in a lot of other opinions that got less attention this term. So Bruin, we've talked about the gun case. Leading Second Amendment historian

Saul Cornell, who's at Fordham, had a great piece in Slate calling the majority opinion in NYSERDA versus Bruin one of the most intellectually dishonest and poorly argued decisions in American judicial history and referred to it as an example of a court in serious intellectual and moral decline. Joseph Blocher and Daryl Miller had a really good piece in the Times about how bad the history in Bruin is, but more how problematic the method announced in Bruin is in terms of what lower courts are now in charge of doing, and how non-transparent, as compared to, say, you know, debate at the federal level about what, you know, passable gun package would look like, which we all just saw. That is a laudable example of how to try to do gun policy. Instead, what Bruin sets in motion is a method in

which a group of judges and their law clerks sit down, try to connect historical gun laws that they find themselves or get in amicus briefs presented to them. And the judges and clerks are supposed to try to connect those laws to circumstances today and decide whether a regulation survives, you know, and I'm going to quote their op-ed here, whether a regulation survives this historical test will depend almost entirely

on whether an individual judge thinks a regulation written to deal with a modern problem looks like a historical one. It is an I know it when I see it approach to historical analogy. And it's one that we're not going to really have as as members of the populace, any insight into. And by definition, it excludes considerations of the costs and the benefits of different kinds of gun regulations. A couple more things to highlight. One, in Dobbs, since we last recorded, there was a statement

issued by the American Historical Association. The statement reads, the opinion inadequately represents the history of the common law, and despite mentioning history 67 times, does not meet the standards of historical scholarship. So that was quite a statement. Yes. I did a program on Dobbs with the American Historical Association this week with a couple of other scholars. And as a thank you, they gave me a membership, a yearly membership to the AHA. And I was just thinking like, I wish I could re-gift this to the court. I'm good. But yeah. Alito, Thomas, like who is the most deserving? Who is the most in need? Oh, Alito. I think Alito and Thomas definitely would be the ones to whom I would re-gift my membership. I think the AHA should just literally send some free memberships over there and just see what happens.

That's a very, very good suggestion. Yeah. There's some webinars you guys can get on. And there were other cases that didn't elicit these kinds of impassioned responses from entities like the AHA. But in Carson v. Macon, the main school funding case, the court basically says that another case, it was distinguishing, it didn't overrule, but it really narrowed this previous case, Locke v. Davey, that involved a prohibition on state funds for actual ministerial training.

And the court basically said, well, Locke's reasoning expressly turned on what it defined as the historical and substantial state interest against using taxpayer funds to support church leaders. It is clear that there is no historical and substantial tradition against aiding private religious schools. So, again, this kind of really, really history and tradition bound analysis is largely what doomed the main program at issue in Carson. That was also true in Kennedy, the Coach Kennedy case, in which the court, while it, as it discarded the lemon test that had previously... Technically abandoned?

No, technically recognized previous abandonment. Yes. Which, what? Anyway, so that's... Precedents had been abandoned. Nothing active was done here. Exactly. No, the passivity of the construction is really quite revealing. The precedents had been left at a fire station after birth. Just jungle book lemon. Safe haven lemon.

That's right. It was just left at a fire station and nobody used it. Therefore, it's over. And as Leah pointed out when we talked about Kennedy, I mean, part of what is so insidious about this like passive had previously been abandoned construction is it completely removes the obligation to explain why you were overruling a prior case. It just like says, well, we already abandoned it, so we don't need to run through any stare decisis factors. We don't need to explain forthrightly to the public why we are so changing the rule. We are just going to pretend that already happened.

You know who doesn't have to explain their reasons to the public? The fucking king of England. And like, that is how the court is behaving. It really is. Like, I'm a king, right? You plebes. I don't have to bother. Well, I mean, even if they did have to explain,

they've already overruled Casey where all of those factors are enumerated. So it's like they didn't even exist. But they don't even need to make the case that Lemon was egregiously wrong, right? Like that's the only thing they seem to care about now. Do we, you know, deeply disagree with it? And they didn't even have to do that. So like the previous abandonment test or the previous abandonment like move is in some ways- Don't call it an abandonment test. It is a safe haven for precedence test. Stop calling it that. Call it what it is. Like, do not be burdened by the difficulties of precedent.

And of overruling them. Yeah. If you don't want the burdens of precedent, drop it off at a police station or a fire station, and some other country will adopt it. Some other constitutional system will take up your abandoned precedent. I don't know. This analogy is bizarre, but I kind of love it. Oh, I think it works. It's pretty great. The one thing about Lemon, just to finish that, is that, you know, the court also basically says, instead of this Lemon test, we're going to analyze an establishment clause case, insofar as we even believe there is still an establishment clause, with reference to

historical practices and understanding. So it is very central to the Kennedy opinion as well. I mean, the legal test that the court has imposed in every case this term is do originalism be original-ish? Like that is the legal test. That's not the test. The test is like, do me and five of my friends agree with this? Yeah, well, that's what it means to be original-ish, not originalist. I have to add to the law office history example, you know, Justice Gorsuch's completely unmoored musings, and said, although it is more entertaining to play amateur historian, right, you actually need to work on the technical legal issues before you accept the courts. Didn't know such thing. Worth noting that no one on this court actually has a PhD in history. And it shows. Like I said, the AHA is here for you. Some other top lines, these come from the SCOTUS blog stack pack. So this is where they collect empirical information

about the term. Although we should note that these statistics do not include numbers from the shadow docket, which I think might skew some of these considerably. So first statistic, only 29% of the cases this term were decided unanimously, the lowest rate of unanimity in the last two decades that SCOTUSblog has been tracking such things. So again, so much for our consensus-driven, nonpartisan court. Another statistic, about 30% of the court's rulings on the merits were decided in a six to three vote. So much consensus. Of those 19 decisions, 14 were polarized decisions in which all six Republican-appointed justices were in the majority and all three Democratic-appointed justices were in dissent. Surprising.

Another statistic, Chief Justice John Roberts and Justice Brett Kavanaugh were in the majority and 95% of the court's decisions. So weird for swing justices. And 93% of the non-unanimous decisions. Roberts and Kavanaugh were each in dissent in only three cases this term. Justice Sotomayor, however, was often in dissent. She was in the majority, only 58% of the court's decisions, and only in 41% of its non-unanimous decisions, the lowest percentage of any justice, and she dissented in 27 cases. The two lawyers who argued most this term were, not surprising, U.S. Solicitor General Elizabeth Prelogger and Texas Solicitor General Judd with two Ds, Stone. Each argued five cases before the court. I feel like we've devoted enough airtime to Judd with two Ds. Let's move on. It's going to have three Ds by next term.

Okay. So one thing I wanted to mention briefly is we're interested in taking a look at who the justices are citing in their opinions. And so we asked our terrific summer intern Anushka Chander to help us compile these numbers. And she's got some initial findings that are pretty interesting. Okay, so first, Dobbs. The majority opinion had like 60-ish citations whose author's identity we were confident of, and of those, 51 were male, nine were female. So it's a pretty striking asymmetry in terms of who is writing. Maybe not that surprisingly, the 17th century treatise. I mean, if you're going to withdraw reproductive rights from some group, why would you cite them? Right. Yeah. They shouldn't even be writing, really. It was a pretty entertaining exercise to try to figure out the identity of some of the unnamed authors, like the unidentified author of

a 1732 article in a publication called Gentleman's Magazine that I am trying to get my hands on to see what other gems it might contain beyond the source for which it was cited, which is its reporting of the conviction of one Eleanor Beer for destroying a fetus in the womb of another woman. So I'm really hoping that the librarians at Cardozo, who I've asked to help me with this, will be able to get me a full copy of the 1732 issue of Gentleman's Magazine. I'm not a real historian, but I'm going to go out on a limb here. You're an honorary member of the AHA. You have every... Now I am, as long as I don't give away my membership.

But I am going to go out on a limb and suggest maybe those writing for Gentleman's Magazine are gentlemen. Probably gentlemen. I have taken the liberty of putting that in the chart. Anyway, so that's pretty interesting about the numbers in the majority. In the dissent, so the joint dissent in Dobbs had 42 citations, 36 of them were to women. You know, we observed the lack of women's voices as authors, right? You know, as named, identified authors of the opinion, but the citations actually, when you drill down, really do reflect women's voices. So that includes, as we've mentioned, previous strict scrutiny guest Greer Donley, who was cited along with her co-authors Rachel Reboucher and David Cohen. The dissent also cited previous guest Diana Green Foster, and many, many other women

scholars and researchers are cited. So 36 of 42 is really quite striking. In the dissent. In the dissent. Let me just repeat that part. One other amazing finding was Gorsuch's concurrence in West Virginia versus EPA. So it's short, that concurrence, but really chock full of citations. And it has actually 27 scholarly citations

to books and articles and things like that. And it is just man after man after man. 26 sites are to men. Guess who the one woman is? I think I know. I have an idea. Well, if you had found a way to like troll Ruth Bader Ginsburg, I'm sure he would have. But no, it's to Professor Amy Barrett. And it is just like administrative law is a field with so many amazing women scholars. It honestly feels like this is a deliberate effort to only cite men with numbers that are that stark. So I have another idea that I think that this reflects, which is how the Republican appointed justices use citations, which I think was on display in the Justice Gorsuch concurrence in West Virginia

versus EPA, because remember, in that concurrence, he is responding to Justice Kagan's dissent that cited recent historical scholarship, including from Mick Bagley and Julian Mortensen, who we had on this podcast to discuss their article, you know, that debunked the idea that Congress could not give authority to administrative agencies. And Justice Gorsuch is like, well, sure, you have these articles doing extensive historical research, but there are articles coming to the other conclusion, and just like string sites a bunch of articles rather than engage with the merits of the argument that is like a substantive analysis of the underlying historical materials. And the reason why I think that's representative is they are, again, going back to my jurisprudence of, or grievous prudence is what

we're calling it. Going back to your grievous prudence of certainty. Right. The grievous prudence of certainty, as well as this idea of this alternate universe, they are citing their friends, their friends who confirmed their worldview, and they also use this citation practice to elevate voices of people they agree with. No Democratic-appointed justice uses citation practice remotely like that. They are not trying to highlight particular people's voices. Justice Kagan cited Nick and Julian's article together with other recent ones because it's really fucking good legal scholarship that engages with the historical materials, you know, and it's just, I, yeah, it annoys me. giving out multi-thousand dollar book prizes to conservative authors. And the left doesn't do this. Maybe it should. Mackenzie Scott, there's a book prize for you if you want to get on it. But that's just not something that they do. But to Leah's point, what this reminded me of was

Lisa Heinzerling's book review in the Michigan Law Review that I think Leah, you may have talked about last year on one of our episodes, which was a review of Richard Lazarus's The Rule of Five, Climate Change at the Supreme Court, where he sort of recounted the litigation in Massachusetts versus EPA. And she wrote this like completely searing book review, which is like, hey, I was there. Women were there. Like, it's called The Rule of Five Guys. And when I read the Gorsuch concurrence in West Virginia versus EPA and, you know, saw all of those citations, like, that's the thing that stood out for me. Like, this is The Rule of Five Guys again. And I think she actually is cited in the majority opinion. I'm going to double check that because she's definitely not cited in the Gorsuch dissent. Yeah.

So she gets cited in the majority, but very conspicuously not in the concurrence. I mean, you had one woman, Kate. What more do you want? That's enough. Like, hello. Thank you, sir. Thank you, sir. Okay.

So I want to do a quick rant about January 6th and the role of lawyers. And we have been so focused on the Supreme Court for the month of June, we haven't had a chance to talk much about the January 6th hearings. But the committee has held six hearings. There are two more expected this month. In a functioning democracy, they would be absolutely game-changing, and they would eliminate entirely the prospects of former President Trump ever returning to political office. But we will see whether they have that effect. And, you know,

we have heard a lot of really shocking revelations that we don't have time to really go through, but we have also heard from lawyers, right? So we have heard, for example, from Pence's attorney, Greg Jacob, who testified before the committee on the same panel as retired Judge Mike Luttig. We have heard from former White House lawyers like Eric Hirschman, not in live testimony, but in recorded depositions about the kinds of theories that John Eastman was pushing inside the Trump orbit. We are recording on Friday. Today, former White House counsel Pat Cibolone is testifying in closed door sessions with the committee. And I'm glad these former Trump officials are talking. It is incredibly important that they are doing so.

But I remain pretty furious that they did not do so immediately. Trump was impeached on January 13th, right? The people we are hearing from now knew all of this when he was impeached and when the Senate held a trial the next month. They knew there was a ton of incredibly damning information the senators were not hearing about as they decided whether to vote to convict or acquit. And they didn't speak up when it might have resulted in Trump's conviction and disqualification. And I don't think the testimony now in any way absolves them of those failures. And so we are now facing the possible presidential run of an avowedly anti-democratic candidate. But that presidential run is just one of a number of threats to our democracy. And so I just want to kind of briefly mention something that we noted when the court granted

cert in this case last week. So this is the North Carolina case Moore versus Harper. And it is a case in which the court will consider a legal theory that would really empower state legislatures to act in profoundly anti-democratic ways, right, like regulating elections in ways that might violate state constitutions. There is an extreme version of this theory that says that state legislatures can cut voters out of presidential elections

even after they've voted. And the idea that legislatures in the states possess this kind of power is baseless and profoundly dangerous. And it's a theory that looks and sounds maybe more serious than the far-fetched claims of like stuffing ballot boxes that Trump was largely advancing in late 2020. But the theory can only look that way if lawyers and legal professionals mask it with that professional sheen, which is why I think it's really important that lawyers and the legal profession condemn this

radical idea because, you know, certain versions it, were the court to adopt them, would risk throwing our country into the kind of crisis we barely managed to avoid in 2020. And lawyers are in a position to actually work to avoid bringing about that result. And so end rant, but I do think that as we are in the run-up to this really important case this fall, and there will be other really important election cases, lawyers are in a unique position of actually working to safeguard the rule of law and not to participate in undermining it. I think, I'm really glad you gave us that summary, Kate, because we've been pushing off the January 6th hearings because there's been so much going on at the court. But I mean, I think you just gave like a really sort of important deep dive about how all of this stuff kind of comes back to the same core. Like there is, I think, a plot afoot to completely dismantle

the processes of democratic deliberation, not just to insulate the court from blowback, but perhaps even to dismantle democracy as we know it. And I think it's really important that people sort of see the connections between these two things. It's easy to talk about them in silos, but all of this is interconnected. And the court is in a really important position to deal with all of this, as you suggest, and indeed to facilitate the conditions with which something like this might happen. So yeah, I mean, I put it all under the rubric of is democracy constitutional, right? I think that is what the independent state legislature... Is it explicit in the Constitution? Funny you ask. Is it deeply rooted in our history and traditions? I mean, like, that's kind of what the independent state legislature theory, either the warped

variant or the narrower account and more raises. But that's also how I conceive of the Voting Rights Act cases that the court will hear next term, whether Congress can require states to take racial polarization and the prospect of diluting the votes of racial minorities into account when drawing legislative districts, like they are asking whether a multiracial representative democracy is constitutional. And I could go on with other cases that I think raise that question, but I think that is a unifying theme in what we are seeing in the January 6th hearings, as well as on the court's docket.

And of course, Ginny Thomas, who sits somewhere between the two. So what to do, as promised, we said we would discuss this, what to do with the shitstorm we find ourselves in. Wanted to canvas a few options for our listeners. Option one, don't worry. Don't worry, sweet pea. Everything will be fine. Several elite lawyers and fancy law professors are whispering soothing sounds of the court isn't so bad in your ear and I clerked with or I taught this justice and I promise you they definitely won't require you to undergo a forced birth, or even if they do, you could just fly to another state to avoid it. You could believe them, pour yourself a ginny tonic, and sit back and enjoy. Because the road to Gilead is definitely not paved by a bunch of smiling men telling you not to worry your pretty little head.

An equally attractive possibility is to just give up, right? The court is in the firm grip of a quite extreme group determined to reshape American law. The Democrats are not doing much of anything about it. So why bother? You could have long discussions on Twitter and at hipster gatherings about how the two political parties are really all the same. Because, right, footnote, Dr. Joanna Breyer definitely sends insane emails about detaining people in barges off of Guantanamo Bay and encouraging people to overturn the results of elections. So that is the second option. Watch the world around you continue to burn. So option three is to wake up and do something. This involves organizing to protect your rights, you know, participating in efforts, petitions to amend state constitutions to protect voting rights, to protect reproductive rights and more.

As part of that, that involves getting involved in state Supreme Court elections. There are huge important elections that will affect the balance of state Supreme Courts that are on the ballots this year in North Carolina, Michigan, Ohio, and Montana. Next year, those elections will be in Wisconsin and Pennsylvania. These could not be more important. On the day we are recording this episode, the Wisconsin Supreme Court, as I alluded to, ruled 4-3 with four Republican justices in the majority that ballot drop boxes are illegal. This is not a drill, people. You know, just other things that kind of go in this bucket are getting involved in learning more about state and local DA elections, state legislative elections, find local organizations on the ground who are already doing this work and get involved, or you can start your own. So I can actually get down with that option. I can get down with that option. I wish we had time to talk about the Wisconsin case

because it is so fascinating and so important. And that court has issued a lot of decisions that are just so profoundly anti-democratic. And here, the fourth conservative vote doesn't join some of the more insane parts of the majority opinion. You mean the parts of the majority opinion that call the outcome of the 2020 election into doubt and draw analogies to North Korea and Syria? Don't forget Iraq. And Iraq. Because analogies, right? Not courts forte, but ballot drop boxes are somehow like North Korea. I mean, literally has to be read to be believed, but that's what the opinion says.

What the hell is happening in America's dairy land? What is going on? Nothing good, except in the dissent in that case, which is very powerful. Very powerful dissent. But yes, but there is not a starker illustration out there of how important state courts are right now than that that was a 4-3 decision and that the balance of that court is going to be on the ballot in 2023.

So let me recap the options for those who may have tuned out. Option one sucks, right? Option one is just like literally letting them lull you into complacency because they keep telling you nothing's going to happen. Everything's going to happen. So literally gird your loins. Option one sucks. Option two also sucks. So don't do that one either.

Option three is literally the only option that works here. So wake up and do something. And I hear you. Like you voted, you voted for Joe Biden. And things haven't worked out exactly as you planned. To be fair, we've gotten some things. We may not have gotten everything. That doesn't mean we stop voting. Voting, to quote Stacey Abrams, is not magic. It is medicine. And you keep taking it and taking it every day because you fucking want to live. And I cannot emphasize this enough. Like as a black woman, I get the importance of voting.

Like I wouldn't be here in this podcast booth if people before me had not voted literally for their lives. And so I just do not buy this view that we can absent ourselves from the democratic process because things have gotten rough. And like I hear you, things have really gotten rough. We have to redouble. We have to get other people to vote. We have to get involved. We have to stay active. And we can't despair. I mean, we can get on this podcast and talk about how totally effed up everything is. And that's where we leave it. This is therapy. It's cathartic. Get it out here because we need the hope to keep going

because literally in the vacuum of hope is where they live. That is where they live. Yeah. And you can organize to vote and continue to vote while also organizing to demand, you know, the Democratic Party do better, right? Call your senators and representatives about these issues, about the Supreme Court's decision. Call your senators about judicial nominations. Ask them what they are doing to schedule more hearings,

fill vacancies, and bring nominees to the floor and vote to do the same. The patriarchy not going to smash itself. And there are lots of different organizations you can channel your energies through. Pod Save America, Crooked Media's Vote Save America is a great plan. Sister District Project, if you want to really take your efforts to the state and local level, Sister District Project is doing amazing work trying to turn states and localities blue. That's a great place to intervene. But Lee is exactly right. The patriarchy is not going to smash itself. It literally wants to drink unicorn blood and keep going. We have to cut off the supply of unicorn blood. No, and I'm glad, you know, you mentioned

hope, Melissa, which is like, you know, I thought that Rebecca Traster, the day after Dobbs, had like a beautiful meditation about the necessity of hope. And she quotes the prison abolitionist Mariam Kaba on this, who has written often that hope is a discipline. And so Rebecca quotes Dahlia Lithwick asking, what does it mean, the opposing imperative of honoring the feeling of being shattered while gathering up whatever is left to work harder? And Rebecca sort of offers it means doing the thing that people have always done on the arduous path to greater justice, find the way to hope, not as feel-good anesthetic, but as tactical necessity. I've read that essay a number of times since Dobbs was released. So what do we have going on this summer, in addition to hoping, wishing and hoping and activating and organizing and coalescing and moisturizing. While the Supreme Court is not

hearing arguments or releasing decisions and argued cases, we will still have weekly episodes. We are tentatively calling this strict scrutiny summer school because the court needs some, let's say, remedial lessons on the law. We will have... Wait, wait, wait. So instead of constitutional vibes, we're going to be teaching constitutional law. It is. That is true. Amazing. That is the plan. Amazing. We will have some deep dives on issues that come up frequently at the court like election litigation, the death penalty. We also have some book talks. We will also do some deep dives on issues that the court heard this past term and maybe look ahead to some issues on this upcoming term as well. Also, in the spirit of wrapping things up, wanted to review our outstanding invitations to join the podcast in case some of our invitees have extra time this summer.

Cole is really excited about these. Definitely, you know, released invitations to Taylor Swift, Elena Kagan, Regé-Jean Page. I was imagining a group episode with all three of us. I think Justice Jackson will have to be on the episode with Taylor Swift since she is a Swifty. I also did want to issue a new invitation to Cody Rigsby, Peloton instructor. Hey, boo. America needs a pep talk that only you can provide. I want to co-sign the Cody Rigsby invitation.

I want us to find our light, fix our wigs, and let's go. Put theigs, and let's go. Let's put the Britney on and let's go. So yes, Cody. So he's amazing. I don't ride the bike very much. We do have one, but I usually go on runs, and I sometimes run with Peloton instructors.

Cody does not do runs. Does he just not run? No, he doesn't. I wish he would. You might like Jess King. She does a fun run. Yeah, I do all the runs, but the conspicuous absence of Cody is creating a

little hole in my life. I guess I got to do the bike more. I think you got to do the bike. I mean, I really love Cody XOXO. And like I said, we should also reissue our invitation to newly retired Justice Stephen G. Breyer, because we would love to have a regular segment here where you answer questions from the public. And I think you would like it too. And we're willing to say that we may have been a little hard on you at the beginning of the term. It seems so long ago. It's like a million years ago. We've actually forgotten it because we're so deep in the Breyer hive right now. But we would love for you to come on the show, Justice Breyer, and answer questions from our listeners. Talk about your pot roast. Talk about whatever you

want. You can do it. We want to hear from you. We'd love to have you. Additional guests that we would love to have, and I'm just going to reissue this invitation, Meghan Markle, the Duchess of Sussex. We'd love to hear your thoughts on comparative constitutional law, the difference between the United States and the United Kingdom. I can say as someone of Jamaican descent, a former colony, I have been watching with rapt attention the absolute implosion of the British government over the last couple of days. So would love to talk about it with you.

Would love to talk about the various lawsuits your sister has filed against you, all of which seems spurious and a waste of judicial resources, which we can discuss in more detail. So please, we'd love to have you on here and we can talk about whatever you want. One additional wrap up on a somewhat optimistic, uplifting note, you know, we don't do that, Leah. Well, I'm gonna try for whatever it's worth. Okay. I feel like right now, I am balancing between fixating on this sentence from the Joint Dissent and Dobbs, which said, closing our eyes to the suffering today's decision will impose will not make that suffering disappear. But also balancing that against the

need to find my people and find ways to kind of reset and stay sane amidst all of this. And so I just wanted to express how wonderful it has been to be doing this podcast with both of you. I feel like it has helped keep me sane and helped keep me going and like allowed me to do all of these things because it's just like, again, it's so nice to have your people and feel not alone. And I hope we offer some of that to our listeners as well. I'm literally tearing up now. Yeah, this has been this has been an unbelievably hard ride, but it has been a source of great comfort to be able to digest and process this, all of it with the two of you. And we'll keep doing this. We are sisters in law.

Yeah. Kate, I literally did start tearing up at this talk Melissa and I did where at the end of it, I was talking about how speaking to people like the Jewish faith and in the Jewish tradition about accepting fights, you are not going to win in your lifetime. And I definitely started like choking up. And thankfully, it was at the end. Was that this morning? Yes, I know. Speaking of it's been a million years. That was this morning, Melissa.

Well, OK, well, I think it's like Rose a clock. So let me read the closer and let's get out of here. It's been Rose a clock since September. September 1st was the beginning of Rose a clock. Oh my God. That's right. That's right. All right. We're going to close it out. Strict scrutiny is a crooked media production hosted and executive produced by Leah Littman, Melissa Murray, and me, Kate Shaw produced and edited by Melody Rowell substitute producing today by Catherine Fink, Audio engineering by Kyle Seglin. Music by Eddie

Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz. Digital support from Amelia Montooth. And summer intern support from Anushka Chander. Thank you.