Strict Scrutiny - Dude Process, Not Due Process

Episode Date: July 27, 2026

Huge news for lawyers: You can now listen to Strict Scrutiny for CLE! More info at crooked.com/strict_cleFriend of the Pod Emily Amick of Emily in Your Phone joins Leah to break down the week’s legal news, and the various and sundry ways due process is getting railroaded by Trump, the courts, and the terrible (mostly) men therein. While no discussion of bad decisions would be complete without the Fifth Circuit, we also have an appearance from Senator Josh Hawley, whose effort to limit information on medical abortion options has disturbing links to the playbook used against gender-affirming care. Then, Leah speaks with Kalpana Kotagal, Commissioner at the Equal Employment Opportunity Commission, about being the lone Democratic appointee after Trump fired the others, and the work of the Commission in a post-independent agency world. Check out Emily’s Substack, Instagram, and her book, Democracy in Retrograde.Favorite things: Leah:The Off Campus Series, Elle Kennedy; Game of Rogues, Julie Anne Long; Andrew Tate's Empire of Abuse, Heidi Blake (+ Blake’s interview with WITHpod); Autonomy News; this decision from the Hawaii Supreme Court; Subpoenas About Reporting on Qatar Gifted Air Force One Are Withdrawn After Argument in SDNY, Matthew Russell Lee (Inner City Press) Emily: Careless People, Sarah Wynn-Williams; The God of the Woods, Liz Moore; Ride or Die (Amazon Prime); Smitten Kitchen’s zucchini pasta Get tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

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Welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your sole regular host for today, Leah Lippman. We're still on summer break and summer schedule, hot, strict scrutiny summer and all. So while Kate has been holding down the fort for the last two weeks, this week is just me. And joining me today and the guest host chair is Emily Amick. Emily is former council to Senate Minority Leader Chuck Schumer, but better known to you all as Emily in your phone on Instagram and Substack. She's also the co-author of Democracy and Retrograde, a self-help guide to building a better civic life for everyone. Welcome back to strict scrutiny, Emily. Hey, Leah, I'm so happy to be here.

I am happy you are here as well. We should say we are recording this on kind of a hotspot on Emily's phone, so unclear exactly what is going to happen, but that is a situation and that's how committed we are to getting this to you. You know, technology is, and, you know, making life wonderful, but also challenging us at every moment. Indeed. So later in the episode, you'll hear a conversation I had with Equal Employment Opportunity Commission Commissioner, the sole remaining Democratic-appointed EEOC Commissioner Kalpina Kotigal about the follow-out from the court's decision in Trump v. Slaughter and the demise of agency independence focused specifically on the EOC as a formerly independent agency. But before that, Emily and I are going to chat legal news, and we're going to cover a lot of immigration-related developments in the courts and the executive branch.

And I think the basic themes of the episode are going to be dude process instead of due process. and why are men's? And I should just say, bring on the emails telling me I am too mean to men. I can take it. I just got back from vacation. I am happy. Don't send me those emails because I already know. No, just me.

Just me. Well, I mean, I already know. I hear this all the time. You know, men, I think they should just stop doing bad things and then we won't be mean to them anymore. This is my theory. That sounds like a plan. I'm a lot with that.

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Like everyone teaches, everyone learns, everyone wins. Okay. Now, the segment I am calling due process down slash due process in retrograde, and yes, that is a callback to Emily's great book, Democracy in Retrograde. So the New York Times ran a story documenting its analysis of hundreds of cases that have been brought by the Trump administration against protesters and immigrants, often related to dubious allegations that people supposedly assaulted immigration officers and the Times analyzed more than 500 cases. And of the 400 that have already wrapped up, almost half went nowhere,

either because defendants were acquitted or charges were dismissed by courts or prosecutors. As the Times notes, that's like an astonishingly bad record for the federal government, which rarely loses in criminal cases and resolves more than 90% of those cases through guilty pleas. And the Times concluded that, quote, the review suggests that the administration's use of the law has often been less about protecting federal agents than about providing legal cover to cow protesters and immigrants into submission. You think? Yeah. And, you know, these cases are getting dismissed. 191 are dismissed. 22 acquittals. Normally in prosecution, there's a 90% success rate. So we're seeing, you know, what is obviously these prosecutors are bringing cases they

know they can't win. And in a huge number of these cases, in a shocking number, the people that they are going after there was no assault. There was no even touching of these federal officers. People are driving their cars and beeping and yelling things and then getting accused of these shenanigans. And this is clearly part of this ongoing effort by the administration to use the idea of threatening the public from going against immigration officials. They don't want the oversight. They don't want all of us to be recording these bad acts by these immigration officials. And there was sort of a little bit of time that they started letting up on immigration enforcement. But I think as we've seen from recent killings in Texas and in Maine, they are clearly ramping back up again. Yeah, no, they are back at it.

And even though most of these cases resulted in dismissals or acquittals, which is terrific, we should still say, like the process of undergoing all of that is still a punishment. And, you know, it's important not to ignore that. But the federal government still seems to be really looking for a way around the due process freaks that are the grand juries, juries, law, and federal courts, because it is now trying to make use of an entirely different court that has never actually been operational, and that is a so-called alien terrorist removal court. That court was created by Congress in 1996, and it's a court with five federal judges who were appointed by the chief justice, and it reviews applications for the removal from the United States of, quote, alien terrorists. The Attorney General or

the Deputy Attorney General files those applications under seal, and actually the government can try to remove someone on the basis of secret evidence, national security information that the individuals will never see, and that allows the United States to quickly deport foreign nationals deemed to be, quote, alien terrorists and maybe some of their family members. And it defines, you know, as, quote, alien terrorists, not just people who have committed terrorism, the people who plan to. You know, this is very much a conceptual cousin of FISA courts. And it's fascinating to me as someone who worked in anti-terrorism litigation for a very

long time. I had never even heard of this secret court. And of course, that's because it's never been used. And so why would you hear of it? I loved the line from the judge in their decision in this case. I want to read it. It is so sassy. and lawyers in the audience will appreciate this.

The answers persuaded the court that the government could benefit from the opportunity for more thoughtful consideration. Help me help you. What do you go back and reconsider? So, you know, this is like an interesting thing to comment on because fundamentally we know nothing. We don't know who is being charged, what they are. Like what is terrorism with this administration, you know, in their effort to go after quote unquote, left-wing terrorism? Who knows what this person is being accused? of. As commentary, this is also confusing, because on the one hand, you would think, okay, this is

part of the administration's efforts to fast track their deportation efforts because this secret court moves conceptually quicker. However, it's also a court that employs Article III judges. Yes. Who are not going to engage in the shenanigans that these Trump loyalist deportation officials, You know, the Trump administration, as a side note, has ramped up their hiring of immigration judges. We are almost at 200 so far in this fiscal year. That is more than the three previous fiscal years combined. You know, they are clearly trying to ramp up the system.

That's something we're going to discuss more later. They've also fired nearly 200 immigration judges. Of course, there's multiple pending lawsuits for discrimination against women and people. people of color for being fired, we can all guess what's happening there. Right. Yeah. It should say our friend Steve Vladick has a great explainer on the alien terrorist removal court if you want to learn more.

And as Emily, you were alluding to, while it does allow for more expedited procedures, there are also some additional protections, like the fact that it's staffed by Article 3 judges. But I do want to get to the ramp up you were alluding to, which is the administration taking a by any means necessary approach to depriving people, often new citizens. of their due process rights. So Boston's primary NPR news station, WBUR, actually where we recorded one of our first live shows, side note anyways. I know it was so fun.

They had a super important story about the developments in immigration proceedings. The administration is initiating mass proceedings. Immigration lawyers are calling these mega master's hearings. The WBUR story focused on Boston, but additional stories have described the same in New York and Chicago. Basically, the administration is loading up immigration. dockets, just to take one example. One immigration judge had more than 100 people's immigration cases on her docket one morning. Obviously, several times the typical case load. And, you know, she would call in about a dozen people every half hour. That is shocking. You know, and these people are not being

afforded what I would consider a proper due process, right? Like, they are not being given translators to help them understand what's going on. And it is part and parcel of this larger project we're seeing. I'll say the Washington Post also recently reported on the conditions under which people are being held in detention. And they're reporting that more than 80 people are being kept in a single detention room. There's increasing needs for hospital visits. Of course, we've all heard the stories about what's been going on in the sort of ICE detention camps overseas, but this is overseas. Emily, Texas is not overseas. I grew up in Texas.

I understand the mistake. I mean, like, this is a state where Ted Cruz, you know, is elected. Right there, right? We can all talk to my therapist later. But, you know, it's also happening in these detention facilities in New York, for example, where people are just being crowded in. And this is something we'll talk about later, which is the detention itself is, is meant in the horrific conditions is meant to be a deterrent because this administration wants

people to quote unquote self-deport. And this too seems to be that is like the max hearings, the mega masters, it's part of an effort to ramp up deportations, you know, in addition to those self-deportations because this ramping up could generate removal orders because what the administration is doing, they take a huge group of people that have hearings that might be scheduled for, you know, the next several years. and they send them a letter that a physical letter rescheduling all of their cases to next week. And some people probably aren't going to be able to get to there. And they will miss court.

And then they will be ordered, removed, deported in absentia. And then, right, they can say, well, we get to remove them. Okay. So the administration has really been on this anti-due process kick, which borders are Tom Homan made clear in an impromptu presser. We'll play some clips in Emily. I'll get your reaction, though I also have some thoughts. Yes, let's do it. Let's do it.

It comes on to one simple fact. These people fail to comply with law enforcement. Even some of the major chiefs in this country who don't necessarily agree with this administration, says you always comply with law enforcement. But the hateful rhetoric that ICE isn't a real law enforcement agency, I see these signs that resist. ICE are the, you know, let's abolish them. They're fascists. when you keep that hateful rhetoric up for a year and a half,

there's going to be that percentage or that left population that it's going to be emboldened to take action because they're not real law enforcement. See, I should resist them. All they had to do is simply comply with law enforcement. If you don't like what law enforcement did you, then go to the court, sue, call the ATSA.

Do whatever you want to do. We should always comply in law enforcement. If they did, they'd be alive today. Emily, what do you think about that? Like, hey, if you don't comply, we'll kill you. You die, right? Obey or die? I was in my mind while he was talking, thinking about like, what are we going to talk about Bivens now?

You know what I mean? And like, are there malicious prosecution claims that could be brought here and blah, blah, blah. But like, oh, I'm sorry, Tom, you're just murdering people. Right. What does it fucking matter if you're dead? What is Renee Nicole Good or Alex Pretti, supposed to do when the agent is shooting at them, like file a habeas petition? It's just, like, it makes zero sense. And also, like, his agency doesn't obey court orders, right? And so to have him

yammering on about how people need to obey or die is a little fucking rich. Yeah. And this is something we see from the Trump administration in many, many instances where it's essentially, I don't know what I would call it, regulatory gaslighting, perhaps, which is like, he's like, the problem is you guys, and you are just claiming we're all fascists. And so it's your fault. We have to kill you. Exactly. Exactly. It's like, it's just a brand of abuser politics. Yeah, 100%. Like the problem is not me, right? The problem is not my violent use of force. The problem is you pointing out I am violently using force, right, and attempting to tell me to stop. Right. And this type of gaslighting is, It's so interesting when you're reading the litigation and you see it going on in the litigation as well

in so many different areas coming out of this administration and their efforts. And as now we've had 18 months of the new Trump administration, we really are getting this long record of where they're going things. And I think to a significant degree, we're finally seeing the realization of, you know, ADF and that ilk's efforts for impact litigation and how they've been changing things. The precedents are there from Trump one. And it is getting to the point where it's like, what is real anymore? Right. Yes. Right. Exactly. It's wild. So speaking of just like making shit up in courts, so we've thus far kind of mostly been focused on the executive branch in immigration.

But there is some going on in the courts as well. So the Fifth Circuit, America's Worst Circuit court also jumped into the fray. The Fifth Circuit decided to get up to no good in some cases that are related to the big mandatory detention issue that has been making its way through several courts, an issue on which there is now a circuit split that will likely be resolved by the Supreme Court in the near future, which should cause a chill down the spine of everyone who cares about civil rights and liberties. Emily, but since you gestured to this, the detention conditions, could you remind people like what the issue in these cases is? So last summer, around July of 2025, ICE adopted this unprecedented mass detention policy in which it would

say it would not only would, but it had to detain tens of thousands of people who had been in the U.S. for a long time. People, these are not people who have criminal records, right? They're just like people who have been living here, people who have children, people have been contributing, and they're going to be held in detention without bond, subjecting essentially them to indefinite detention. So for the last like 30 or so years, most administrations have understood a provision in federal law that required the government to detain without bond only people who crossed the border illegally. And recently. And recently, right? Like there's two provisions. Are you in A or B? Are you an applicant for admission or are you a person arrested in the interior?

And now the Trump administration has been arguing that mandatory detention without outblon applies to everybody. Because if at any point you enter the U.S., you are then an applicant for admission, and it doesn't matter whether that's one month or 30 years ago. And having U.S. citizen spouses or children or perfect attendance at check-ins, that doesn't matter. And the vast, literally hundreds, 400 federal district judges have rejected this argument. But nonetheless, we are having a circuit split.

there's been a really complicated sort of argument over a substance and process and constitutional questions and different courts are deciding these cases on different merits and different legal grounds. And so I think you're 100% right, whereas like there's only one outcome here. And that's, I don't know, hopefully Roberts writing a decision. I don't even know if that would guarantee a correct outcome. But there were, have been some previous immigration cases where the court was skeptical of theories that reversed, let's say, several decades interpretations of immigration law. So at least there is that going for it. But as I said, the Fifth Circuit waited in. But actually, like, even a panel of the Fifth Circuit

concluded the federal government could not indefinitely detain without bond all of these people because doing so would violate the federal constitution. But because this is the Fifth Circuit, where both the Constitution and all good things go to die, the en banc Fifth Circuit vacated that opinion within a week and set the case for a super fast en banc rehearing this fall, like rehearing before the full court. But even that was not enough. So the federal government filed with the Fifth Circuit

what it called a motion to stay district court judgments, did that more than three months after the district courts had entered said judgments when in the interim, the people in those cases had been living peacefully in the United States at home in their communities with family and friends. And the federal government asked for a stay from the Fifth Circuit when they had not asked the district court for a stay, which under the appellate rules, you are supposed to have to do in order to get one from the appellate court. The government also asked for a precedential

order to block all due process habeas claims by people in the Fifth Circuit even before the en banc court fully considers the merits. And the Fifth Circuit granted it. But in true Fifth Circuit fashion, this is what I'm talking about when I said, making shit up. They issued a state. published decision with zero reasons and zero opinion. This makes zero fucking sense. A precedential published state order with zero reasons is not a thing. It's like if the Fifth Circuit just stood up and said, I declare bankruptcy, but they were like, I declare there's no due process. That's, I think, the equivalent of what they did. And as far as I'm aware, and as far as other people I've spoken to about this are aware, like, this just has not happened

elsewhere. I do wonder where this appellate court got the crazy idea that they could go ahead and just impose their views ASAP on the litigation before actually resolving the issue. That was me looking at you, John Roberts and SCOTUS shadow docket, but the Fifth Circuit really took this to the next level since they are always the worst and doing the most. I don't know. I don't know, Leah. It's not a thing. It's not a thing. It's not a thing. And like, what is there to say? Like, you're not supposed to be doing this. Your judge is supposed to be issuing decisions from which we can understand your reasoning and rationale and from which we can establish precedent. And it's like, no, it's just like fiat, dicktots, right? Like, this is not precedent.

It's just, it's just she is too stunned for words, you guys. Yeah, it is Michael Scott. It is Michael Scott serving as a judge. That's what it is. It is right. And I feel really, really bad because for the people who are being impacted by this. There was a brief moment in which there was a 90-day clock on this detention. And people were, they had their lawyers trying to get them out. And my understanding is people who got their papers in in time are being able to get out under that 90-day clock for the brief duration for which it was the presiding law and now their SOL.

And, you know, as we talked about earlier, it's like being in detention is in and of itself a punishment. Yes. Yep. And again, it's because the goal of the administration is to force people out of this country as quickly as possible. In the same way, these masked ice agents that looked like really shitty characters in a video game are physically assaulting people when they arrest them. It's because you should want to not be arrested. I just saw, you know, by ice agents. And that is why they're doing it over and over and over again and why they hired these absolutely bazonkers.

people. I mean, this this guy in Maine who murdered someone when you look at his. Multiple ex-wives coming forward saying it's crazy. One of the ex-wives is like, I have been telling law enforcement for many, many years that he should not be employed in this capacity and no one would listen to me. I told you this was going to happen. It's like, it's so very bad. I just saw a video right before we started recording of a mother whose child is being taken by the. these mask men and she's just screaming, hysterically crying. And I was, we got on this call and I was, I was a little, um, stopped for words because I had just watched this video and, you know, this isn't, I'm not saying this is new information.

We've all seen these videos over and over again, but every single time you see them, it's just so appalling. Yes. It's so appalling that I literally lack sufficient words to describe my feelings about it. Yeah. And like you can read the descriptions, you can watch the videos and even like reading the description of the child in the bluey pajamas, right, asking for their parent who has just been shot and killed by it. It's excruciating. But you have to read it. Like you have to watch it because this is happening. And right, you need to know and you need to be able to tell other people about it in order to make clear this is not how we want things to work. Well, and I think that the administration has made some very strategic moves with regards to. lowering the temperature a little bit to get people to not pay attention. Exactly.

And then they're starting to ramp things up. Stephen Miller is, as always, a evil and strategic human being, and he is masterminding behind the scenes, in my opinion. Yeah. Strict scrutiny is brought to you by Zbiotics. Between work, family responsibilities, and everyone needing something from you all day. Oh, and then there's, you know, the state of our constitutional democracy. Getting together with friends can feel like a form of self-care.

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That's 50% off your first order at Sundaysfordogs.com slash strict. Sundaysforogs.com or use code strict at checkout. Back to the Fifth Circuit because they were not done even after doing all of this precedential, unreasoned, presidential stay order that is an opinion without reasons. So they also sitting on Bonk decided they are going to decide whether this federal statute that prohibits people with felony convictions from possessing firearms violates the Constitution's Commerce Clause on the ground that it potentially exceeds Congress's power to enact laws under the Commerce Clause. If you're thinking, wait, a federal gun law may be exceeding Congress's powers under the Commerce Clause. Where have I heard this before? It would be in a concurrence

by Clarence Thomas, who floated this idea in Hamani. Because if taken seriously, it would mean that a bunch of other federal laws, like federal civil rights laws, also violate the Constitution's Commerce Clause because Congress doesn't have the authority to enact them. Yeah. Also child pornography laws. Yes. Child pornography laws. Explosives, biological weapons, IP, financial regulation. Like, they're all resting. Like, we're not going to have commerce laws? A bunch of regulatory laws? protecting like health, safety, welfare. Right. One of the judges, I think, said,

can felons from the other 11 circuits now flood the Gulf Coast to rearm themselves? Oh, God. Thomas does this, right? This is his concurrence and dobs, wakes me in my nightmares at least once a week when he said, let's reconsider Griswold loving Obergefell, etc. He didn't say loving, but I put that in there. Once Griswold goes down,

They all go down, Justice Thomas. But, you know, he loves to make these little signals of how he'll decide future cases. And Himani was a harbinger. I think that our Second Amendment interpretation over the last couple of years has been inconsistent, I would say. That's a generous, generous word, but yes. And with Himani, I think we saw, you know, what this court. its plans are with the Second Amendment, and that is to slowly eradicate any form of gun violence prevention legislation we have in this country. And if this case goes where Justice Thomas wants it to go,

it is, again, chilling. I fundamentally don't understand how it could happen. Like, to get rid of the Commerce Clause hook, you're gutting everything. I do think it's a type of thing that Justice Thomas would want. I don't see the other justices standing with him, but it is chilling nonetheless. Totally chilling. And the Fifth Circuit is into it. They too are Jonesing for a Commerce Clause freak off. But it's not just the Fifth Circuit. Unfortunately, like other circuits are also trying to make a run for America's worst circuit. And that includes on due process issues. So let's just go to the second circuit for a second. They decided to get in on the anti-due process wave. In a unanimous opinion, that court weighed in on one of the cases where a non-citizen had been swept into the

administration's anti-Palestine fervor. This particular case involved Moshen Madawi, an individual whom the Trump administration decided to detain, arrest, and begin trying to remove when he showed up for his regular and required immigration check-in, a naturalization interview. You know, and essentially what this case is deciding is that the government can use detention as punishment, right? And that is fundamentally. It's, you know, self-deport rather endure the grinding aftermath of a removal order. And that's what this is allowing. Right. Because what they say is the federal courts, they cannot hear the constitutional claim that Madawi raised to challenge his detention. They were like, no, you have to do that in the immigration proceedings. But if you have

to do that in the immigration proceedings, it's not going to be resolved until they decide whether to remove you, i.e. you are going to be detained potentially throughout that super lengthy process. One of the Trump appointees on the panel, Judge Monashy issued a real pick-me concurrent, suggesting that even if the detention claim could be separated from the deportation claim, like the petitioner was arguing he couldn't be detained for reasons unrelated to why he couldn't be removed. The petitioner still couldn't challenge his detention because indefinite detention without legal review, I guess that means due process these days. That's why it's due process rather than due process. And that wasn't even the only audition this week. So Judge Lawrence Van Dyke of I made an

am a sexual video dissent showing me assembling a gun. And I once used the phrase, this case is about swinging dicks in a judicial opinion fame. He issued a dissent from a ruling where the Ninth Circuit said at public school could reprimand a social worker who displayed anti-trans books that the state views as discriminatory and Judge Van Dyke in dissent wrote, quote, the school official's real interest in censoring the speech in this case is something nefarious to give children the false impression that all the adults in the school personally share the same woke perspective. Like using woke in a judicial opinion, it's just he could not be trying harder if he tried. Second Circuit, not even the only one trying to make their turn as America's worst circuit

court in what could be a preview of the Supreme Court's upcoming case. about whether states can ban the AR-15 platform and other semi-automatic rifles. The Third Circuit invalidated New Jersey's ban on assault firearms. Their large-capacity ammunition magazines that can hold more than 10 rounds of ammunition. And a concurrence by another Trump appointee, Judge Mady, cited Thomas Aquinas, like the original originalist. I don't know why that guy's views have anything to do with the Constitution. History and tradition. Right.

History and tradition. but like on some separate track than the Constitution itself. And it also cited perhaps to explain what the F is going on work on what's known as common good constitutionalism. This is the idea propounded by, you know, people on the right who don't think originalism is reactionary enough that maintains the Constitution should be interpreted in ways that advance the common good. And what do they think advances the common good? you know, authoritarianism, subordinating women, discriminating that's racial minorities, et cetera, et cetera, because those are the outcomes, right? The common good constitutionalism seems to be achieving. It's almost like they want a living constitution. Almost, almost, right? But of course, they would never say that. Scalia rolling in his grave. I realize they want a living constitution, not a dead constitution, but they want all of us to be dead. Yeah. Right. So both and. A living constitution based on the ideas of a bunch of dead people.

Yes. Yeah. That they, what they say those ideas are, right? Like not, not representative. Yeah. You know, in, in even the abortion litigation or the, what I foresee as the upcoming contraception litigation that I also shows up in my nightmares. You know, they're like, oh, no one was having abortions. Like, on what planet are you on? You know what I mean? Right. I guess no men were having abortions. Right. Yes. Like, that's right. Right.

That was what they determined. And that necessarily resolved the entire case for them. Yeah. Because if men weren't doing it, what is the point? It can't be good. I mean. And, you know, what is sex differences anyhow? Right.

It doesn't matter. And we're seeing that legally as well. Yes. Indeed. So maybe just for more. men's. Let's go to the lightling round of news that I'm just calling the men's category. Like, are the men's okay? First, I have another clip to show you. You've probably already seen this one, though. It's from Steve Scalise. It's gotten a good bit of publicity, but we couldn't not include it in

the show because it's just so fucking absurd. And this is him attempting to defend the Save Act, a federal law that would disenfranchise many, many people by requiring them to, among other things, have proof of citizenship to vote. When you think about something, like Save America, which is at the heart of democracy, just saying, show picture ID to vote. For God's sake, you can't go get pasta at Olive Garden without a picture ID. Why not be able to show a picture ID to vote? I don't know, Lee. Last time I went to Olive Garden, they did not ask to ID me.

This is the question. I want to know what is he doing? What the fuck he is doing at an Olive Garden and with his all you can eat pasta that they were asking for his ID? They're like, sir, that is too many breadsticks. I just, I want to know what is too many breadsticks or what do you have to do to get carded at the all you can eat pasta. Is he confusing drinking alcohol and voting? That could be. I mean, maybe he just goes to Olive Garden sloshed and so it all blurs together.

I don't know. I would say this. No one would look at Steve Scalise and think, is he under 21? Right. Right. So that also seems implausible. The whole thing. Big question mark.

Sometimes I wonder with these men, had he been to quote unquote olive garden already that day? Right. Well, since we are in the Are the Men's Okay segment, no segment like this would be complete without a mention of one Pete Kegg's breath. At this point, you've probably heard about Kegsbrough's new testosterone policy for the military, the no low T military, as he called it. or in his words, this is, I mean, again, you just like have to hear it and see it to believe it. I'm authorizing a new screening program for testosterone deficiency for our service members, ensuring you have the right testosterone levels to operate at your absolute best. Number one, this is so embarrassing for him. It is so embarrassing.

Like, especially when you see those videos of him doing his like little pushups and pull-ups and exercises. And like, I look better doing my bicep curls than peony over here. There's also, of course, a legal tie in here. And we are seeing, you know, I'm sure all of you listeners are immediately thinking, hey, what are you saying? That people in the military should be able to get testosterone. That seems inconsistent from your other statements. And you would be on the nose.

Judge Ana Reyes has made similar points that, It seems that the DOD's basis for treating trans men and other service members differently between this new policy and the military ban is a question mark that she wants to pursue. Obviously, it is pharmacologically the same intervention ongoing hormone therapy with monitoring. And on the internet, what we hear everyone say is like, oh, it sounds like gender affirming treatment. But, you know, it both is, right, like the availability of testosterone, but also isn't because to the extent this is like mandatory and enforced on people against their will. It's like compulsory rather than something you get with your health care.

I don't know what he's envisioning, but it's just all kinds of fucked up. Can you imagine like the test, the T rankings that are going to come out? Oh, God. You know, and like these service members are going to be comparing their T numbers. Their T levels. And I just imagine the way these men talk about women in the locker rooms are going to start talking about each other and their T levels. Yeah.

How big is your tea level? Oh, my God. Spilling the tea might unfortunately take on a very bad additional meaning. Also, it's just like we're in the middle of a $37 billion unconstitutional war. Pete Hegseth, don't you have other things you should be doing? No, this is his number one priority, maintaining a high tea military. Strict scrutiny is brought to you by Onskine. We've talked before about why OneSkin.

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He decided to make a referral to the Department of Justice in which he asked the DOJ to investigate Plan C. That is the informational, educational resource that provides information about how to access abortion pills by mail from anywhere in the country. It's run by a nonprofit health campaign. Holly says the website is in violation of federal law, in part because, it recommends off-label use of the drugs and also how to access the drug in states that have abortion bans. This is, let's say, a dubious allegation slash interpretation of federal criminal law, but the point is it's federal criminal law and it's a threat that carries with it the prospect of jail time. And I wanted to highlight that because it underscores something we have talked about

on the pod that had been flagged by a wonderful, relatively new independent news source that we've also highlighted before. And the point is this, we are all in this together, trans rights edition, because if you think that these goons and weirdos are going to limit their vitriol to trans people and transports bands, you have another thing coming. What Holly is trying to do here is run the same playbook against medication abortion providers that the Trump administration has been trying to run against providers of gender affirming care, accusing them of criminal conduct by making available or recommending prescriptions for off-label use, i.e. for a drug to be used in ways other than the manufacturer labels the drug.

That allegation is behind some of the Trump administrations, harassing subpoenas for medical records. related to hospitals that provide gender-affirming care. And it was a playbook that could always be used against other health care providers, disfavored ones, specifically reproductive health care providers, as Garnett Henderson warned in March over at Autonomy News. That's a relatively new independent news site. Again, autonomy news, great new website whose work we've highlighted before, previously they're reporting on the temporary fallout from the Supreme Court's delay

in issuing their medication abortion ruling from this past spring. Emily, I know you had also been following other developments on their relationship or connection between trans rights and abortion rights. Yeah. And frankly, there's just so many different things I could talk about right now. I don't even know which one to start with. Before I get into answering your question, I do want to say, I have some good news on this topic. Oh, yes, the ruling and validating the restrictions on Mipha Pristone.

Yes. Rare, I feel, to be able to say something positive. So we have a good case. From a federal court. Yeah. So we have a good case coming out of Virginia that essentially says FDA restrictions on Miphyprostone are capricious. And they need to be, the FDA needs to go back and make sure that people have, there's new regs to make sure that people have access to Miffa Preston as an abortion medication. And it's a really good decision.

And it's really well written and really interesting. It is also inevitably going to be setting up the circuit split. that we are going to see that will run this case up to the Supreme Court. But I think that that's what we've all been expecting all these years. There's multiple other cases against the FDA, trying to get the FDA to overrule the 20-year allowance of Miffitt-Pristone. You guys have discussed this many times on this pod. I'm not telling you anything you don't know,

though I remain passionate about the topic. But, okay, so there was one other case that the Supreme Court granted cert. in this case called International Partners for Ethical Care, Inc. versus Ferguson. And this is about a bunch of parents are bringing this case because the existence of homeless programs for runaway children and those programs offering gender affirming care to those runaway children, the mere existence of that is a threat to their parental rights. and one of the things they cite in this case and that we saw some of the Georgia's picking up on is a Texas case called DeAnda and that is about the parental right to not have other people handing out birth control to teenagers.

And for those of us like me who are fixated on the overturning of Griswold as a long-term impact litigation strategy, that case sort of sticks out there as one of the first things to fall. But there's just a complete and utter overlap. I mean, the Venn diagram is a circle between these anti-birth control cases and the trans rights cases because the goal, like parental rights and also religious freedom are the two main arguments they are going to be using to take all of this down. And we're seeing it across the spectrum in all of these cases. and it's about health care and it's about the right bodily autonomy.

And, you know, there's a lot to be said when we're thinking about the future of contraception litigation from Scrametti, right? Like the recent Supreme Court case on trans rights. And so I think that when we're going back to one of my favorite topics, like the Dobbs decision of history and tradition. And who gets to decide what is constitutional in this country? It's a bunch of dead men, apparently, except for when they're not. But that's fine, except for when it's for the common good.

But that is the infrastructure that they are setting up under which they are going to decide these future cases. Yeah. I should say, again, as Emily was saying, so much to say about the relationship between, you know, these different rights that are under attack. I did a YouTube short video with Kate Riga at Talking Points memo last week, you know, and we covered even more of it. But on the R-the-Men's okay, another frequent flyer in this segment from the liquor DEI cabinet, and that would be RFK.

And now diarrhea. Two words that apparently do belong together. So in case you haven't heard this one yet, America's in the shudder, there is an outbreak of explosive diarrhea that's been traced to a foodborne parasite. And some contact tracing suggests the parasite might have, you know, gone through, right, or been distributed through some lettuce from a Taylor farm. So the actual lettuce has tested negative and there isn't a positive test on that lettuce. I want to say one of my takeaways from this whole thing is I have personally been so confused about what's happening. Like I too don't want the explosive diarrhea, so have been on an individual level trying to figure out

what to avoid. And it's like you don't even know who to trust because first the FDA says it's this lettuce, then they're like, it's Taco Bell. I don't need Taco Bell. So that's fine. And then like, no, wait, it's bagged lettuce. And then it's like, no, it's not bagged lettuce. And of course, you know, there's lots of other information in the ether.

The FDA was supposed to have a food traceability final rule that was going to be implemented. But at the beginning of the Trump 2.0 term, the FDA announced an intent to delay the implementation of that. Coincidentally, just, you know, around the same time, the head of Taylor Farms made a very, very large donation to make America Great Again pack. coincidental almost surely. It was about tariffs, apparently. And to combine that with the gutting of the FDA done by the Trump administration, it's like this is a huge problem. We are not seeing the public communications, the tracing of things.

RFK said on a podcast like, oh, there's an explosive diarrhea outbreak every summer. It's just same old, same old. There is not an explosive diarrhea outbreak every summer, at least as far as I know. Not as far as I know. And, you know, I'm going to go out on a limb here and say, actually, I would like to see the government working to end explosive diarrhea outbreaks. You know what I mean? And explosive diarrhea. It sounds like a winning message.

I have heard it is very bad. Like it is, people are like, it is, this is not your normal explosive diarrhea. Yeah. You know, I said, uh, R of K part of the DEI cabinet. We've called it Dix X husbands and imbecils. Now maybe diarrhea for every one. one through incompetence. Also, measles are up, so so much going on.

Well, and I read today that the thing is now being traced to cilantro and parsley in North Carolina. So it's going to new vegetables. I think, you know, once it gets to the berries, the berry mamas will end this. And I hope that's the case. Gary mamas, we need you. Okay. Save me from the explosive diarrhea.

Yeah, I don't even want to know what Maha has to say about this, but yeah. They're probably like, it's a cleanse. Yes. Just going down our list of men's just because why not this behavior seemed to fit on the list. It's been reported that Bryson DeCambeau, a golfer reportedly wanted Donald Trump to intervene after he received a penalty at the Open Championship. Like, he threw a temper tantrum, refusing to sign a scorecard, holding the tournament hostage and apparently relayed his request to Donald Trump. again, are the men's okay? Like, this is not, like, if you lose some sort of sports match, the solution is not to call the president to have him rig it for you. And yet this seems to now be

a go-to move. You know, one more thing for me to hate the Trump administration about, they're making me have to learn about sports. Just so you can understand how they're fucking it up too. I had to pay attention to the FIFA red card of it all. What a nightmare for me. Yeah. The hardship, the burdens, the burdens we all carry. You know, one last one, and this is definitely in a different category, which is why I put it last, but still wanted to note it. Andrew Tate and his brother Tristan were re-arrested in Miami, and British officials are seeking their extradition on charges of rape and sex trafficking. Instead of attempting to describe who Andrew Tate is and what he and his brother have allegedly done, I want to re-recommend Heidi Blake's piece from the New Yorker, Andrew Tate's Empire of Abuse. I really don't think it is coincidental that the brothers came under subsequent scrutiny after that piece came out, given how deeply it was reported and all of the allegations, horrifying allegations it describes.

Mr. Kate Shaw, aka Chris Hayes, also did a. Why is This Happening podcast episode with Heidi Blake about her reporting? So definitely check out both of those. And the Tate, I don't know which one, one of the Tate. said... Taints. Did you say taints? I'm going to use that. That's good.

Thanks. I'm finally catching on to the scrutiny name calling. It's taken me a couple episodes. You keep it classy, right? And keep it subtle. And then you just slide it in. And then it gets picked up in the lingo. The taints.

The taint brothers. Catching on before you guys know it. I'll be one of the gals. One of them was like, we called Baron. Why we thought that you'd get this solved? It's like, oh. I mean, look, when, You look at the people who are surrounding the Trump brothers and who they spend their time with.

This is not shocking, right? That these types of men would assume that they can call and get special treatment. And, you know, per the previous segment on the sports of it all, clearly the Trump administration does offer people's special treatment. And so I can't imagine why they wouldn't expect this to happen. and they got special treatment the first time. Why won't they get special treatment this time? And to be clear, these people deserve to rot in hell. And I hope they are served with indefinite detention, which is apparently now legal.

Unfortunately, I'm not sure it's for men's like the Taint Brothers. Unfortunately not. But, you know, they do a due process, not due process or something like that. Yeah. So, Emily, before I let you go, would you like to share your, favorite things, your recent favorite things with our listeners? I would. I'm always trying to, I'm always reading a few good books. One book that I'm very, very late on, but I did just finally finish this week was careless people. Ah, yeah, it's a good one. It was a very good book, and I highly recommend. I

thought that that was a very, very good read. On the more fiction side, I also, again, very late on it, finished God of the Woods. Oh, yeah. I love that one too. An excellent, excellent book. It is my book club book. My book club always chooses excellent books. And so that, those are two of my suggestions.

There's also a new show that I just had a brain freeze on. Ride or Die, which is Octavia Spencer and Hannah Waddingham. And it is so, so good. I haven't finished it yet, but I highly recommend that series. It was a real pleasure. And I do believe multiple years ago I was on your pod and I made the same suggestion because it is my single favorite summer recipe, but it is the smitten kitchen zucchini pasta. Yeah.

Yeah. And you know what? You know what it is? It's still incredible. You know? For new listeners, they get the benefit of this too. For new listeners, make a little tomato guyette with like heirloom tomatoes and then serve it with the zucchini pasta with fresh fetichini.

and it is to die for. And pretty much what I live, maybe is sweet corn also, and it's just the perfect summer meal. Yeah, that sounds delicious. Yeah. Okay, so I will go in a similar order. I'll start with the books.

So I was on vacation. I read the off-campus series. Enjoyed it immensely, except for Book Four. I didn't love Book Four. I also read Julianne Long's, new one, Game of Rokes, loved it.

And now the more serious ones, going to re-recommend Heidi Blake, Andrew Tate's Empire of Abuse, and Chris Hayes and Heidi Blake on her reporting. Also recommend Autonomy News, the new website. They're doing important reporting. There was a great state Supreme Court decision out of Hawaii that really captured the Aloha spirit. It rejected the idea that the Hawaii Supreme Court should interpret their state constitution in the same way that the U.S. Supreme Court has interpreted the federal constitution. the Hawaii Supreme Court said they weren't going to adopt the guidance of a court that defines federal due process, you know, that honors the work of 1857, i.e. Dred Scott. And called, you know,

the Roberts Court's actions, quote, white noise, said they only see white, just pages and pages of these Kendrick-level disses and grievances. Definitely worth checking out. And then on a slightly lighter note, one other law stuff. The transatlish, and the reporting out of the federal court hearing involving the administration subpoenaing New York Times journalists. I don't know if you saw this, the ones like reporting on Trump's use of the Katari jet, the Amal UJet or whatnot. Okay. The government ultimately withdrew the subpoenas of the journalists.

And the hearing sounds completely epic. So Matthew Russell at Intercity Press reported this. Here's some of what apparently unfolded. So the judge says, you didn't tell the judge that the subpoena was about reporters, about the New York Times? Federal government lawyer. We did not. It was an oversight. Later, we did legal research. Incredible, right? This is supposed to be, like,

the best U.S. Attorney's Office in the country, the Southern District of New York. And they're like, yeah, we didn't really do legal research before we, like, saw the subpoena, we, like, did it after. Later, we asked Chad Chupit. Indeed. Indeed. At another point, they seem to suggest, like, they had accidentally subpoenaed the records of one of the reporter's mothers. So the judge is, like, you're saying there was no attempt to find out these were the numbers of and spouses, and the lawyer says, that was an error. We own it. That was a mistake.

Not in furtherance of the investigation. Oopsies. You know what? Here's the thing. If any of you listening ever have felt imposter syndrome, I hope that this story kills that for you. Oh, yeah. You know, just no. It takes nothing now.

Apparently, you can just bring it. Don't do legal research. Don't figure out who you're going after. It doesn't matter. It's fine. You just tell the judge whoopsie oopsies. Exactly. Exactly.

So fire off those subpoenas and see what comes. Maybe. Make the box happy. It's hot subpoena summer. I mean, at least you get the headline, right? Right. Exactly. Exactly.

The box news segment. Yes. Well, Emily, thank you again so much for joining. Again, listeners, Emily Amick. You can find her on Instagram and substack at Emily in your phone and get her book, Democracy in Retrograde. And we hope to hear more from you soon. Thanks, Leah.

I appreciate it. And now stay tuned for a conference. conversation I had with EEOC Commissioner Kalpena Kodakal. This episode of strict scrutiny is brought to you by Alloy Health. Here's something nobody tells you. The skin changes that start near 40s aren't just aging. They're hormonal, specifically estrogen loss. Estrogen naturally helps maintain collagen, support elasticity, and keep skin hydrated. As estrogen declines, skin gets thinner, drier, and more crepey. And this isn't like the good kind of Nutella creeps. It means your expensive cleanser, retinal,

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cashback for eligible Rogers Red Credit Cardholders. And more savings to your bottom line with lower transaction fees. Give your business a real edge with Rogers Red Partner program. More than a point of sale, a sign of smarter business. Learn more at Rogers.com slash Red Partner. For this segment, I am delighted to be joined by EEOC Commissioner Kalpana Kotagal. On the podcast, we have talked about the momentous significance of the Supreme Court solving separation of powers in Trump versus slaughter, by which I mean the cavalier demolition of independent

agencies and the fallout that's likely to have. And we wanted to bring that to light slash life by talking about the specific fallout at one formerly independent agency, the EEOC, Equal Employment Opportunity Commission. Welcome to the show, Commissioner. Thanks, Leah. I'm super glad to be here. Thanks for having me. So for those who might not be familiar, can you share a little bit about what the EEOC is and why the agency matters? Yeah, I absolutely can. I should just say at the outset that I'm only speaking for myself here today, obviously not for the commission as a whole. You know, we at the EEOC have our roots in the Civil Rights Act of 1964 and in the Civil Rights Movement. We've thought of ourselves for a long time as the nation's premier civil rights agency. And our job is basically to

enforce the federal civil rights laws, right, which protect from discrimination on the basis of a bunch of different traits like race and sex, also disability, gender identity, sexual orientation. The list goes on. We are, we're a charge-based agency, right? So what that means is that workers file charges and then EEOC staff investigate those charges to determine whether the civil rights laws have been violated and then they might negotiate with employers to seek release. You know, we also bring litigation, particularly in cases where the discrimination is really egregion. or systemic or where those workers may not be able to secure counsel outside the agency, just to give you a sense of scale and scope, you know, to underscore the fact that discrimination is real

and ongoing, we received more than 88,000 charges of discrimination last year alone and secured more than $660 million in relief for workers. So we're a little agency, but, you know, we punch way above our weight, I think, in terms of relief. You know, I think a lot, I think a lot these days and have thought for a long time about sort of what the role of this agency is in modern times. And, you know, I think about the Civil Rights Act is really giving voice to some of our nation's highest ideals. And I think we know that that promise has not yet been fulfilled. And also I think that underscores just how important it is that we have a fair and impartial EEOC, and I know we're going to talk a lot more about that now, you know, in the wake of slaughter.

So let's go to that fair and impartial EEOC, because while the slaughter decision just came down, it's actually reflected the status quo for some time since the Supreme Court and Trump v. Wilcox had allowed the president to fire the heads of several multi-member commissions. That order came down on the shadow docket. So Trump had also fired Democratic appointees on the EEOC and the firings were challenged in litigation, but Wilcox allowed the removals to proceed while litigation proceeded. And in any case, after Slaughter, the former EEOC commissioner dropped their lawsuit. All that is to say, you've been the lone Democratic commissioner at the agency for the past year and a half. So how has the president's removal of your

fellow Democratic commissioners impacted your work? Yeah, it's been a, it's been an interesting year and a half, as you can imagine. We've been really focused. since January of 2025, when my colleagues were removed, you know, unprecedented by the president. Our presence at the agency, my team and I, feels like a huge, it's a huge privilege, obviously, but a huge responsibility. And we're thinking about it in terms of the importance of continuing to abdicate for marginalized worker communities, but also to describe to express an affirmative view of civil rights, like one that's actually grounded in the law. You know, there remain workers across the country for whom the EEOC might be their only option to get relief for egregious harassment

or for pregnancy discrimination. And so I think that hasn't changed, you know, from one administration to the next. On the one hand, on the other hand, you know, there's a lot happening. And I think that means that my job at the agency has been to advocate for transparency as the administration rolls out these major changes to the way the agency has operated and to its priorities. And then I spend a lot of time advocating on behalf of our career staff who are increasingly doing more with less, really under the gun as so many federal workers are. and then I think really just constantly being vocal about the demands of the law, the reality is, of course, that every day my staff and I have to weigh whether voicing dissent is worth getting fired by the president. It's a strange way to go to work. And it's obviously not about me. It's not about my employment. I think it's really about the vital work that the agency does and that our workers do. And, you know, I think the reality is that if I'm fired or when I'm fired, there won't be anybody left at the agency to point out, you know, when the EEOC is straying from its mission and when it's abandoning its responsibilities. And I worry all the time, right, about the public being left in the dark. I want to come back to the straying from the mission in a little bit. But brief detour, I don't want to go jacques on you.

But do you have any idea why you have not yet been removed? I mean, you know, it's a great question. The White House, as you might imagine, has. hasn't really kept me in the loop on their thinking. But I think the bottom line is that I was the most – I'm not. I'm not. I'm not on the signal chats. You know, I was the most junior of the Democratic commissioners. And so I think that's probably part of it. And then the other part is that if they removed all three of us, their path back to quorum, which is to say their path back to their ability to move this regulatory agenda and their litigation agenda would have gotten, you know, farther away. So I think those are probably the two reasons.

I think, you know, the one thing I would say here is that when Congress confirms a third Republican commissioner three is quorum at the EEOC, I think it's likely I'll be fired. And then there won't be a Democrat left at the agency. Yeah. So we'll come back to how they are using the agency because this isn't a case where they might want to just have the agency do nothing, which is an important part of, you know, the loss of independence. But, you know, you express concern about the agency missing its mission, right, ignoring its mission. So when the EOC is straying from the law, who's getting rolled here? Yeah. I mean, you know, I think Congress, there's no question just as a starting point, right?

And I know that you all have talked about this, like the what's the role of independent agencies? You know, Congress has been, was clear, right, that there was a value to. to having agencies that had bipartisan representation, that there were some issues like civil rights, for example, or consumer protection that should be above partisan politics. And I think we've lost the thread there. I know, I think the other folks who are getting rolled, not surprisingly, are the American public, right? Civil rights enforcement is better when it has input from both parties. And that's been lost. So since the American public is all. also losing out here, I did want to focus on some of the reporting we've seen about goings

on at the EEOC and how the loss of independence has led to the loss of civil rights protections. And so just to tick through some examples, the Department of Justice's Office of Legal Counsel issued, what is in my view, a bogus memo asserting that disparate impact liability is unconstitutional. It's also been reported that in September, the EEOC administratively closed all charges that solely implicate disparate impact pursuant to the president's executive order. So can you talk about what disparate impact is and why those changes matter for workers? Yeah, I mean, I think disparate impact is just a perfect example, right? It's a perfect encapsulation of what happens when a civil rights agency loses its independence. It's no longer

enforcing worker protective laws that happen to be in this case disfavored by this administration. You know, when we think about disparate impact, right, this is the way that we can challenge that civil rights agencies and advocates can challenge policies that look neutral on their face, like, for example, a strength test or perhaps the use of AI screening tools, right? That's the one I think we're going to be hearing a lot about. They look neutral on their face, but the reality is that they have an unfair discriminatory impact on certain groups. And that's what disparate impact allows us to challenge. It's not new, right? I mean, it goes back to 1971 in Griggs and then was codified in the statute in 1991. And it's interesting. It was enforced during the first Trump administration. Yes. There's a, you know, big $20 million settlement from the EEOC involving a physical abilities test at Walmart that was discriminating against women workers.

So, you know, I think there's no question. And we can talk more about the details of that OLC opinion memo. but there's no question that the loss of disparate impact means that we're losing this vital tool to root out the kind of discrimination that's, I think, often hardest for workers to see. Yes. Right. And that's part of why, even if the charge is dismissed by the agency, just letting the worker, you know, still file suit is maybe not a great substitute because they might not be in a position to see the bigger picture, right, and be able to assemble the full case. That's exactly right. There's like, I think. two things. One, these are often expensive cases, right? Because they involve complex statistical analysis, because they might involve retaining expert witnesses. This was something that I did before I joined the commission. This was the kind of litigation that I did. But as you say, also, the EEOC has much better information about this kind of discrimination than workers do.

This is the kind of stuff that workers, it's the hardest thing for workers to be able to spot. Yeah. Okay. So since you mentioned, it the OLC memo, alleging that disparate impact liability is unconstitutional. So I guess I would be curious to hear you talk a little bit more about that because in my view, the issuance of that memo is really a key example about how the loss of independence is directly tied to this weakening of civil rights. I think it's such a good point. You know, the part of the story that there are a bunch of pieces of the story here that I think worth bringing out. But the first thing that I would note is that DOJ's OLC issued that opinion at the request of the EEOC's chair. So, you know,

it came from a request from this agency, this very agency that is supposed to be enforcing the law when it comes to disparate impact. You know, there are a lot of things about this memo that are bogus, but I think it really is at odds with the law. Honestly, honestly, you know, if you look as more as recently as 2015, right, in inclusive communities, the Supreme Court is recognizing the power and the validity of disparate impact. That was obviously a Fair Housing Act case. I've had to read that, that opinion memo multiple times because it's quite frankly unintelligible, right? I mean, there's the ratcheting up of the standard for what it takes to prove disparate impact based on nothing that I can tell. And then there's this constitution analysis.

And after Congress specifically ratcheted down the standard in response to a Supreme Court decision, perfect example about how Congress is getting rolled here. That's totally right. It's in the 1991 amendments to the Civil Rights Act. Congress did that to respond to 1980s decisions like Ward's Cove that it disagreed with. So, I mean, yes, perfect example of how Congress is getting rolled. Perfect example of how this Department of Justice and this EEOC are fundamentally disregards. the law. You know, I think when you like think about it, it feels, I mean, you know, we can look at Project 2025, too, but to me it really feels like the outcome of this memo was predetermined. Yeah. Since you mentioned Project 2025, and we are talking about the loss of independence resulting in the loss of civil rights, you know, one particular trend that has been observed is

the erosion of LGBTQ rights in particular. So it's been publicly reported that the commission is not investigating worker complaints of harassment based on gender. identity. The agency also rescinded its harassment guidance, which explained that discrimination based on sexual orientation and gender identity is unlawful. What does that backtracking do? Yeah. I mean, to me, it's quite, I mean, it's devastating, right? It's shameful that the very agency that is supposed to be protecting the rights of these workers is abandoning them, in particular, trans workers. A couple of things have happened that I think are worth talking about at the EEOC. Last year, the agency directed, the chair directed staff to dismiss seven cases that the EEOC had investigated and filed on behalf of trans and non-binary workers.

You know, the kinds of harassment that these workers endured, it doesn't matter what your sexual orientation or gender identity, right? No one should have to endure this kind of harassment. You know, and I don't have to go into the details, obviously, but people being referred to as it. all kinds of unwanted touching and sexual advances. And imagine, right, like if you or those workers, they had their civil rights violated, they came to the agency that's supposed to protect their rights. And then they are literally re-victimized by having the agency abandon them in the process of their cases.

I think it's obviously shocking, right? And it's really disheartening. You mentioned the harassment guidance, the rescission of that. That was literally done because it referenced protections from harassment for LGBTQ plus workers. A couple of other things that I think are worth noting. The agency has been reported is refusing to investigate or to develop for litigation charges that arise under gender identity, right? Discrimination on the basis of gender identity. And so they're basically not being investigated and they're not being developed.

for litigation. You know, we don't have to, we don't have to drill too deep into the Bostock opinion, right, to see quite clearly that, that LGBTQ plus workers are protected from discrimination under Title VII, including harassment. But the agency has left them and I think in particular, trans workers to fend for themselves. I think one thing I would want to just make sure that folks here is that even as the EEOC is backtracking, it's super important for employees. not to do that, not just because there are courts, but also because a future Democratic administration is going to come down on this and probably most significantly because it's just the right thing to do. Indeed. Speaking of right thing or wrong thing, last week, the EEOC held a commission meeting on a proposal to rescind demographic data collection. The EEOC has collected race and sex data from large employers for 60 years using the data to investigate race and sex discrimination.

You argue that the proposal is, quote, an attempt to weaken equal employment opportunity and to undermine progress for women and historically marginalized communities. Why is that? Yeah, I mean, data tells, data is just, it's so important, right? It tells us so much. It paints the picture. And this is data that the agency has collected, as you said, since 1966, right? It's data that our staff used to drill down further to look for trends to understand where problems might arise and to use the agency's incredibly scarce resources in the most efficient and effective ways.

This is in Project 2025, this rescission. So, you know, not surprisingly, the commission is now proposing to rescind this data, despite how important a tool it is in our toolbox. I really see this as part of this larger attack from the administration on civil rights protections across the government. You know, this notice of proposed rulemaking, it just came out publicly to rescind this data. It offers, you know, as you might imagine, a number of explanations for the rescission, including the DOJ OLC memo on disparate impact. None of them are particularly. No, that's right. That's exactly right.

None of them are particularly compelling. It's quite remarkable. It takes the position that collecting demographic data somehow forces employers to make hiring and other employment decisions on the basis of protected traits. So hard to understand what the connection is there. There's literally no foundation or evidence for this, right? There's not one scrap, not one example of an employer somehow engaging in unlawful discrimination because they've collected and reported this demographic data for 60 years. They're also making these constitutional arguments under underlying grounded in equal protection clause that, again, don't have any basis untethered from Supreme Court precedent. You know, what this is going to mean in reality, right, is that a short-staffed agency, tight resources to go get this data from employers for particular cases, right, is going to require more information requests, more subpoenas, you know, more battling in court with employers who aren't going to want to produce it so much for government efficiency, right? Like this is, this feels like

the exact apotheosis of that. And I think really is going to just make it harder for the agency to enforce the law to protect workers. So the loss of data is going to hurt civil rights and harm workers. I guess just to make it concrete for people, is there an example of how this kind of data has been used to protect workers? Yeah, there are a bunch, as you might imagine. Point just to one. We just settled a case in May of this year, $5.5 million settlement involving a big trucking company.

It resolved allegations that for at least a decade, the trucking company had been hiring less qualified male applicants over more qualified female truck driver applicants. And if you look at the court filings in that case, it's quite clear that an analysis of that EEO1 data is what contributed to the EEOC finding cause that discrimination had occurred, right, in bringing this lawsuit. I think the other thing that is just important to say here is that there's no question that the administration is recognizing the value of getting demographic data when it serves their interests, right? Last year, the chair of the EEOC demanded that 20 law firms produce a ton of demographic data to the agency, you know, in line with these investigations about their DEI practices. And, you know, just recently the Education Department has announced that it's going to require universities to produce all kinds of demographic data to so-called, you know, test their compliance with SFFA.

So there's no problem getting data in other circumstances. I want to say one more thing before I stop, which is that just because you stop collecting the data doesn't mean that the discrimination goes away. Exactly. Right? All that happens is that we kneecap the agency, makes it harder to prove, makes it harder to prove, makes it harder to enforce the law, and leaves workers behind. Yeah. Since you mentioned, you know, the investigations into DEI, you know, as we were kind of alluding to up top, one possible explanation for why the administration doesn't want to deprive the EEOC of a quorum is that they would also perhaps like to weaponize the agency. So not just giving a free pass, you know, to some people to violate the law, but also maybe sicking dubious interpretations of the law, you know, against people and institutions they don't care for. And that has often meant taking this administration's culture war grievances and running them through the agency, particularly the attacks on DEI. So I guess,

Before we just briefly talk about the weaponization concern, you know, what are some obviously legal DEI efforts? Yeah, I mean, there are a bunch, right? And this administration has come for them. I think the thing about DEI practices is that the devil is always going to be in the details and it's always going to be in the execution, right? Like it has to be done correctly. But there are a whole set of practices that if carefully undertaken are lawful, right? Like expanding and broadening applicant pools, right? That's an obvious one. What about recruiting at HBCUs or standardizing interview questions and hiring and motion criteria to make sure that everybody is on the same page or using skills-based hiring, right, rather than relying on particular credentials. All of these are DEI practices. You know, so too is looking at demographic data, doing compensation analyses. All of these things help to decrease legal risk. And I think about them as really fostering, these are the things that actually foster a true meritocracy, right? These are the things that break down barriers to equal opportunity to ensure that every single worker, regardless of their background, has a chance to

work, to contribute, to contribute to their families and their economy. So there's like a whole raft, I think, of DEI practices. And the risk of rolling them back, right, is that we erase gains in the workplace that have been made for women and people of color and people with disabilities. And the list goes on. Yeah. So mentioned, you know, that one possible way of weaponizing the agency is basically doing these attacks on DEI. And the chair of the EEOC, Andrea Lucas, famously did a direct-to-camera video urging white men to submit complaints of DEI discrimination for money. Can you elaborate on how, you know, this kind of speaks to the stakes of the loss of independence and, you know, how the agency or commission can be weaponized? Yeah. I mean, I think it's quite

clear that this agency is just increasingly an arm of the White House. Like, I think that that's quite clear. Just to give you one example beyond the ones that, you know, you've mentioned about the chair's video, we have a new at the EEOC, a new national enforcement plan, which enshrines these priorities, these priorities of the administration, including remedying what they describe as DEI-related discrimination. It also includes defending the quote-unquote binary reality of sex. You know, this is where the decision not to investigate disparate impact is enshrined. It also makes explicit that the EEOC is not an independent agency. So, right, these things are like clearly going hand in hand. I think it's worth really noting that under the guise or the language

of prioritizing even-handed enforcement, which is what this chair likes to talk about, the reality is that the agency is redirecting limited resources toward prosecuting this administration's grievances and protecting this administration's most favored groups. And I think we see that happening on a day-to-day basis. Well, obviously, there's a lot more to say. And actually, if you would like to hear more, you should check out YouTube where I'm going to have an additional expanded conversation with the commissioner. But for now, Commissioner Kodagal, thank you so much for taking the time to discuss what the loss of independence has meant at the EEOC. Thanks, Lee. I appreciate it.

It's clear that the sole remaining Democratic appointee on the EEOC is also one of my favorite things. So add that to my list and that she should be one of all of our favorite things, although the fact that there is only one remaining Democratic appointee, not so much. Strict scrutiny is a crooked media production. Our show is produced by Melody Raoul and Michael Goldsmith. Jordan Thomas is our intern. Our team includes Matt DeGrope, Ben Hathcote, Johan. Hannah Case, Kenny Moffitt, Eric Schute, and our music is by Eddie Cooper. Our production staff

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