Strict Scrutiny - Flags, Feuds, and Roberts' Rebuff

Episode Date: June 3, 2024

Melissa and Kate recap the Supreme Court's latest opinions and catch up on the latest drama from the Alitos' flag-flying fiasco.We’re giving one lucky listener the chance to win a pair of tickets to our SOLD OUT show in DC on June 22nd.Here’s how to enter:Subscribe to Strict Scrutiny’s Youtube channelLeave a COMMENT on our most recent video episode with YOUR favorite Strict Scrutiny moment. [LINK MONDAY’S YT VIDEO HERE]The giveaway starts TODAY and ends June 7th at 11:59pm PT. We’ll be picking a winner on/around June 10th so be sure to keep an eye on your comment. For the full rules, check out the link here: http://crooked.com/strictgiveawaydc Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our legs. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts today. I'm Melissa Murray. And I'm Kate Shaw. Of course, the biggest legal news right now is that former President Donald Trump has been convicted on all 34 felony charges in the hush money election interference case in

New York City. That news dropped after we finished recording this episode. But never fear, Melissa went on Pod Save America to break it all down with the guys, and we dropped that episode in our feed too. So if you haven't listened to it yet because it's not our usual Monday morning drop, definitely check it out. But for today's episode, here's what we have in store for you. We will start with the opinions the court issued last week. We will then cover some court culture, including an update from the court's most stalwart feminist, Get Excited. And finally, we will do a little bit of podcast doom-scrolling to remind you of the many terrifying and hugely consequential decisions still outstanding in the month of June. But first, opinions.

First up on the opinion front is Cantero v. Bank of America. The question presented in that case was whether the National Bank Act preempts the application of state escrow interest laws to national banks, which involved a nuanced federal preemption question. Specifically, the question here is whether state laws requiring the payment of interest on national bank escrow accounts were preempted by federal banking laws, like Dodd-Frank. In this case, the petitioners had obtained home mortgage loans from Bank of America, a national bank chartered under the National Bank Act.

The loan contracts required the borrowers to make monthly deposits into escrow accounts, but Bank of America didn't pay interest on the balances held in escrow. Instead, they informed the borrowers that the New York interest on escrow law was preempted by the National Bank Act. The borrowers then brought a class action suit in federal district court, and the federal district court concluded that nothing in the National Bank Act or any other federal law preempted the New York law requiring the payment of interest on escrow accounts. The Second Circuit, however, reversed, holding that because the New York law would, quote,

exert control over, end quote, National Bank's power to create and fund escrow accounts, the law was preempted. Well, the Supreme Court, in a unanimous opinion authored by Justice Kavanaugh, he contains multitudes, concluded that the Second Circuit did not conduct the kind of nuanced comparative analysis required by the Dodd-Frank Act and Barnett Bank, an earlier precedent that Congress had incorporated into the Dodd-Frank Act and that did not draw a bright line requiring federal preemption of conflicting state laws. The court ruled the Second Circuit mistakenly distilled a categorical test that would preempt virtually all state laws that regulate national banks. The court vacated the Second Circuit's decision below and remanded back to the Intermediate Appellate Court to conduct a preemption analysis that would be

consistent with the standards it articulated here. So Barnett Bank, that earlier decision, and any guidance from the Dodd-Frank Act. Just want to say this was a big win for Gupta-Wessler and John Taylor who argued this case. And incidentally, this big win puts kind of a dent in Lisa Blatt's winning record at the Supreme Court. And again, this is a loss for Lisa Blatt, but she still has a really insane record of Supreme Court successes. But this was a big win for Gupta-Wessler, who frequently takes on lots of these cases on behalf of consumers, particularly in the financial services industry. And it was a fun case. It has this kind of drive.

The interest on escrow issue sounds, you know, kind of like arcane, but it's also got this. Yeah, but it's got this like shades of like McCulloch versus Maryland, which I think we said when we previewed the case. It does. The power to tax is the power to destroy. Yeah, like what can states do vis-a-vis a federal bank? And here actually they might be able to do some things once a proper version of the preemption analysis is conducted. And of course, I'm sure, Melissa, you were thinking about this. I was thinking about this when I saw this preemption case come down. Like, are there tea leaves to read for EMTALA, the case involving emergency medical care for pregnancy emergencies? Because there, too, you have a question of a conflict between federal law, which requires stabilizing care, and state law in states like Idaho, which don't allow that kind of care unless the pregnant person is in risk of imminent death. I don't know if there were a lot of pleas to read here. Hard to say. I thought that was hard to say. Yeah. You know, look, like the state law wins, so that's no good if we're talking about Idaho state law.

But it was a sort of complicated statutory backdrop and the fact of this other precedent that had apparently been incorporated by Congress into the statute. So I mean, sort of sui generis enough that I'm not willing to draw any real comparisons that could lead to a prediction. I think that's fair. And I think it's almost irresistible to try to read, you know, hints about the big cases in these cases that they're going to decide this week, you know, in the first couple of weeks, maybe even of June. We might as well run it up the flagpole. And we did. We did. And it turns out a reasonable person wouldn't read anything in particular into the message that this opinion sends. Nothing to see here.

So you did there. We will get there directly. But first, a couple of other decisions to talk you through. The next case we wanted to cover was NRA v. Vulo, a case involving the question whether New York state officials unconstitutionally coerced companies into severing business ties with the NRA, that's the National Rifle Association, because of the NRA's political positions and really its sort of lone political position, which is the advocacy of guns. So in this case, the court ruled and ruled unanimously for the NRA in an opinion written by Justice Sonia Sotomayor, you know, is a pretty narrow ruling, essentially finding that at this stage of the case, which is the very earliest stage, the motion to dismiss stage, when all of the allegations in a plaintiff's complaint have to be treated as true,

the NRA had alleged a constitutional violation and also a clearly established one. So let's briefly walk through the facts of the case. They date back to 2017 when a state agency, the New York Department of Financial Services, and in particular its former head, Maria Vulo, opened an investigation into an insurance product known as CarryGuard, which, among other things, offered insurance to gun owners. And this was under an agreement actually promoted and co-branded with the NRA. And that insurance product included coverage for things like, quote, intentional, reckless, and criminally negligent acts with a firearm that injured or killed another person. And, look, it turns out that insuring intentional killings is a no-go under New York law, and so Velo's agency investigated and entered into consent decrees and imposed civil penalties pursuant to findings of violations of law. So all of that was fine.

It seems pretty clear that that investigation, the resolution of that investigation, is the kind of thing that regulators are and need to be fully empowered to do. But the question in the case is about what happened next. So after the tragic mass shooting in Parkland, Florida, Vulo and other officials at her agency allegedly decided to ratchet up regulatory tactics designed to target the NRA and entities doing business with the NRA. And again, allegedly, those tactics included threats and promises to pursue regulatory infraction investigations by groups that did business with the NRA and to look the other way in the case of businesses that severed ties with the NRA, along with guidance the power of government, weaponized it essentially against the NRA to try to make it essentially impossible for the NRA to do its work and to by coercing these third parties, right, DFS-regulated entities, to punish or suppress the NRA's pro-Second Amendment views and also its core political speech. So the NRA actually lost in the Second Circuit.

That court found the government. When it took all these actions, essentially against the NRA, the government was engaging in its own speech and its own law enforcement activities, and that even if some of the conduct might have been a little dodgy or a little close to the line, or maybe even did violate the First Amendment, it didn't violate clearly established law, which the NRA would need to show in order to overcome the shield of qualified immunity. And as we said at the outset, the court here reversed. The court treated this case as essentially a straightforward application of an earlier decision, Bantam Books. In that case, a state commission used its power to investigate and recommend prosecution to essentially prevent distributors and booksellers

from selling certain books. Justice Sotomayor, who wrote for the unanimous court, wrote that, quote, a government official cannot do indirectly what she is barred from doing directly. A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf, end quote. Importantly, though, Justice Sotomayor made clear that Vulo was free to criticize the NRA and pursue the conceded violations of New York insurance law. That is, she was free to criticize the NRA and actually do the parts of her job that were within the ambit of her duties. Justice Sotomayor then elaborated, quote, a government official can share her views freely and criticize particular beliefs,

and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the state to punish or suppress disfavored expression, end quote. And all of this seems right and important, even if, as we discussed in the argument recap for this case, it's a little hard to swallow the whole idea of the National Rifle Association getting to pierce qualified immunity here when it's generally so hard for many individuals to do the same thing when suing, for example, law enforcement for truly egregious constitutional violations. But this ruling about

the limits of a government's power to use the regulatory apparatus to punish and coerce speech seems important, especially as we grapple with the possibility of perhaps another Donald Trump presidency. I totally agree with that. I think that, you know, we had all sort of come around from initial skepticism about the NRA's claims to actually, before the argument and coming out of it, actually thinking the NRA was in the right and that there was an important First Amendment principle that the court kind of needed to vindicate here. And I do think that in particular in this moment in time when during President Trump's time in that is going to protect the notion that there are limits to government's ability to coerce speech. But that is not to say that government cannot take positions, cannot criticize the NRA, cannot suggest it's engaging in dangerous and destructive activity. But what happened here, essentially trying to use third parties to make it impossible or difficult for the NRA to function and disseminate its message, that crosses a constitutional line.

I think Justice Jackson actually kind of glossed on some of that in this very interesting concurrence that she filed here. In that concurrence, she staked out the position that a finding of coercion isn't by itself enough to rule for an entity like the NRA in a case like this one. There needs to be a separate finding that the coercion violated a speaker's First Amendment rights. And her claim, which is very straightforward, but also very insightful, is that the government is coercing all the time. That's what it means to enforce the laws. And coercion standing alone is not necessarily a First Amendment violation. And she, I think, in this concurrence, was being really attentive to thinking in the long term about the capacity of government. She also thinks that retaliation

claims, for example, are stronger than censorship claims. But she says that the lower courts can examine those separate threads of the case on remand. So she's really sort of being more nuanced about the facts. I mean, it's very big district court energy, I think, that she's bringing here, like really attentive to the record and to these sort of in the weeds practicalities of the case. I totally agree as to that kind of last point you were making, retaliation versus censorship. On the earlier point, I think she is, you know, very much like the finest of district court judges. But I do think she's making kind of a larger point that it's really critical that the court not hand down rules that disable the ability of government to function. And like some kind of two categorical rule that says coercion is always a First Amendment problem,

I think really does run smack into government's need to coerce constantly. Like civil laws, criminal laws, laws on the books are laws that require people to behave and to not behave in ways that are potentially incommensurate with their optimal behavior. And like that is the nature of law. And so she wants to be very careful that the court is not disabling government from communicating its own messages and coercing where necessary. I actually thought it was interesting that Kagan didn't join her here because that strikes me as a very Justice Kagan point about the importance of government capacity. But I also, you know, like her writing in this, I think, like really sharp and interesting and distinct voice. And so I thought it was useful. And back to tea leaves again, you know.

I mean, did you think this had big Murphy energy? Well, I mean, certainly they're related. And I just didn't know whether what Jackson was doing was sending up some sort of distress flag about the possibility that the court was somehow eliding the distinction between kind of, you know, pressure and coercion or potentially suggesting that coercion alone was enough to make out a constitutional violation. And that made me wonder whether the SG's office and others in the federal government were nervous about either the opinion writ large, the Sotomayor opinion or the Jackson concurrence, and whether that might suggest that they are in some danger of losing in Murthy, which actually coming out of the argument didn't seem to be the tenor. I thought that it likely was the case, you know, look, the conduct at issue, and that, just to remind listeners, is a case in which the federal government was involved with communicating with social media companies around topics like COVID misinformation and disinformation and trying to get them to take down misleading posts and things like that. And those allegations

are just totally different from the allegations of the abusive use of the regulatory apparatus that this case featured. But if there's any tea leaves to read here, I think that maybe there is some slight reason for concern about the outcome in Murthy if you think the federal government should win, which I do. But nowhere near clear enough tea leaves that I would say that Murthy is definitely a case the government is going to lose. So it's worth noting that the last two cases were unanimous decisions from the court. So if you feel the need to scratch your completely moderate 3-3-3, often consensus-driven court itch, knock yourself out. This is the moment to scratch it because we're all done now. We're done with unanimous opinions.

The next opinion we wanted to cover is Thornhill versus Jones. And this one comes with a more predictable 6-3 fracture. And the 6-3 divide is exactly what you think it is. So all of the conservatives on one side and the majority and the liberals dissenting. The case involved a post-conviction ineffective assistance of counsel claim brought by a criminal defendant. So yeah, not surprising that there were six conservatives in the majority. The 6-3 decision was written by Justice Alito. So it's basically a disaster

for criminal defendants. Here are the facts. And they're not great facts. But of course, like, Alito's, like, gratuitous recitation of that. It's such a classic Alito and Thomas move. They just need to give you all of the details.

And yeah, you're right. All of the details. Yeah, which are totally irrelevant to the question of the performance of the lawyer, which is really what the case is about. But never miss an opportunity to just really layer in these gratuitous, violent details in a criminal case where you're ruling against a criminal defendant. That's right. Flagging the facts.

So in this case, the defendant was convicted of multiple homicides under Arizona law, and at the time, the law in Arizona allowed for a capital sentence to be imposed if there were aggravating factors. The sentencing court found that there were such aggravating factors and imposed the death sentence. The defendant then sought post-conviction habeas relief in the federal courts on the ground that he had been denied effective assistance of counsel throughout his case. And after a winding path, including a stint at the Supreme Court where the court vacated a decision of the Ninth Circuit below, the Ninth Circuit, now reconsidering the case, held that under Strickland v. Washington, it was permissible to consider new evidence and that upon consideration

of that new evidence, there was, quote, reasonable possibility that the defendant would not have received the death sentence if the evidence had been presented at the initial sentencing. Well, the six to three conservative supermajority at the U.S. Supreme Court concluded that this reconsidered analysis by the Ninth Circuit violated what was required by Strickland, that the Strickland analysis was in error. So the court vacated the Ninth Circuit's decision below and, well, back to you, Ninth Circuit, like to do it the right way, do Strickland right. The conservatives obviously win the day here, but there are a couple of very forceful dissents that we wanted to note., quote, the majority unnecessarily goes further and engages

in the reweighing itself. The record in this case is complex, contested, and thousands of pages long. In light of this extensive record and intricate procedural history, this is not an appropriate case to reach and settle a fact-sensitive issue, end quote. And I don't think she's just talking about this case. I mean, this whole idea of the court sort of taking a de novo look of the record and essentially functioning as a district court and sort of parsing the facts itself is something that we have seen before in cases like Alexander versus South Carolina Conference of the NAACP, that big voting rights case. And Alito was very happy to mix it up in that case and get into the facts himself. And I think Justice Sotomayor, again, a former district court judge, is sort of like, we're not the ones to do this. Like, we don't have the capacity. And we also aren't close enough to the record to be able to do this kind of work. And perhaps we shouldn't. So I think that was a larger point

about a growing dynamic among the conservative justices in some of these cases. I totally agree that she was speaking more broadly and beyond just this case. I also think it's interesting that it was captioned as a dissent, which I guess is technically right. I thought that was interesting, too. She agreed that the Ninth Circuit got it wrong. So in some ways you could imagine captioning this as a dissent in part or partial dissent, I guess, because I think what she would have done is not affirm but vacate and remand, right, rather than reverse. the conservatives and maybe Alito first and foremost, to take it upon himself to reweigh facts in a pretty atypical way when we're talking about an apex court like the Supreme Court. And yet I think he is increasingly willing to do that. But yeah, so she, I think,

dissents from that project as much as from the result in this particular case. Maybe she's just dissenting from this job. Yeah. We'll get there. It does kind of sound like it on just the speaking circuit. Anyway. That was not the only dissent filed in this case. Justice Jackson filed her own dissent. And unlike Justice Sotomayor, she did not concede anything about the Ninth Circuit's Strickland analysis. In fact, she said that the court's characterization of the Ninth Circuit's analysis was totally wrongheaded.

In her view, the Ninth Circuit's analysis, though spare and concise, was not necessarily wrong, as the majority insisted. The court had followed Strickland, Justice Jackson said, and the majority's assessment of that analysis as erroneous, quote unquote, rings hollow. She also, for her part, joined Justice Sotomayor's critique of SCOTUS's new penchant for being a district court, writing, quote, the majority's real critique does not appear to relate to the Ninth Circuit's methodology. Rather, it merely takes issue with the weight that the Ninth Circuit assigned to each of the relevant facts. I agree with Justice Sotomayor that we are not the right tribunal to parse the extensive factual record in this case in the first instance. That is doubly true where the Ninth Circuit committed no legal error in reviewing that record to begin with, end quote.

Can I make a tonal observation before we leave this case, which is that- She is spicy. Yeah, so she definitely is. No, but I actually was going to say, I was going to talk about Alito's tone, which is Alito had a couple of moves in this opinion that really linked, I thought, this writing to another Alito writing that we are going to spend some time unpacking in our next segment. And both of those moves involve just the deflection of responsibility. Like he loves nothing more than shifting responsibility for his own actions onto family members, onto ethics codes, onto dubious characterizations of binding precedent. So he just says repeatedly here that he has no choice but to rule against this habeas petitioner. And there's like this, I think, like, look what you made me do energy in a couple of places.

So let me let me read just two quotes. One, he says, had the Ninth Circuit engaged in the analysis required by Strickland, it would have had no choice but to affirm the decision of the district court. And then when talking about the position of the court, the Supreme Court itself, he says, among other things, the Ninth Circuit all but ignored the strong aggravating circumstances in this case. As a result, we must reverse the judgment below. Now, maybe that's nitpicky. You're like, he's not, he could just say, as a result, we reverse the judgment below, but that we must reverse the judgment below, I think has this sort of subtle but revealing effect of shifting responsibility from the court, making choices about like how to read law and how to apply law to some other body, right, like precedent when it's convenient or history when convenient, like compelling the conclusion

that he is simply the vessel to the court reaching. And, you know, I don't even know, like, here... Almost like how women are just vessels. Right. Like, without agency at all. He has no agency. Yeah, yeah, yeah. He's a uterus, basically. And he's the nation's most messed up uterus.

In addition to the smallest man who ever lived. But yeah, he is essentially, that's right. Like, he is just performing at the whim of gerrymandered legislatures. And you know, what can he do about it? No agency whatsoever. Kate, you're revving me up. You gotta let me go. I think this is the time. We've been very patient. So we covered all of the opinions. I think we did them justice. Dutifully, yes.

Yes, no pun intended. We're going to take a quick break, but if this episode is making you excited, breathless, sad, I don't know, all the emotions really, please subscribe to us in your favorite podcast app and text this episode to a friend. Do not spit on your friend. Do not call your friend a fascist. Just text them about this episode and let them know where they, too, can download it at their leisure. And we thank you for your support. The spitting is not going to make any sense prior to our next segment. But I think the point is, there are constructive things to do with frustration. And one of them is to text an episode of this podcast to your friend. And there are less constructive things like spitting on your neighbors.

All right. We got all of the business out of the way. We did. It's time for some. What, the party? It's Crook's Routine after hours. No. Dim the lights. It's time for some court culture. is killing me that leah is not

here for this segment but we will try to do it justice in her absence because i'm ready to go like i'm literally lfg let's go okay first up we all know that jodi kantor is a relative newcomer to the scotus beat but who knew that investigative reporting into serial sexual abuser and movie mogul Harvey Weinstein would prepare you to cover the goings-on at one first street? In any event, even if that wasn't the typical trajectory to the Supreme Court beat, Jodi Kantor is making up for lost time.

She is bringing real can't-stop, won won't stop energy to her coverage of the court. Listeners, you'll recall that Cantor broke the first story about Martha Ann Alito's freak flag flying proclivities just two weeks ago. And then she followed that up with a second story about House Alito's second MAGA freak flag. Well, listeners, this week, Jodi has dropped the latest installment in the ongoing drama that I call The Real Housewives of Fairfax County. Jodi headed out to Fairfax County, the seat of House Alito, to delve into the unneighborly ruckus that apparently prompted Martha Ann Alito to hoist an upside-down American flag up her flagpole.

I didn't mean it to sound quite like that. Oh, my gosh. Where? Up her flagpole. You know what I mean. You know what I mean. It was the flagpole outside of her home. That's all. The flagpole outside of her home. That's all.

The flagpole outside of her home. Well, listeners, Jodi managed to catch up with the Alitos' apparently blue state loving liberal squish neighbors. And the story that she reported begins with a bit of a tease. Here it is. Quote, the police in Fairfax County, Virginia, received an unusual phone call on February 15th, 2021. A young couple claimed they were being harassed by the wife of a Supreme Court justice, end quote. Well, you've got me, Jodi. I'm here. I'm listening. I'm all ears. But listeners, did you check out that date, February 15th, 2021. Hmm. Well after the January 6th attempted coup at the

Capitol and well after the January 2021 timeframe that Justice Alito earlier provided in trying to explain how and why an upside down American flag came to grace his home. In his statement, Justice Alito said that Martha Ann flew Old Glory upside down to own the libs after their neighbors posted a, quote, personally insulting and profane F-Trump sign in their yard in January. Well, the neighbors here, according to Jodi Kantor's reporting, totally cop to posting anti-Trump paraphernalia on the property. Like, they are, yes, they're like, we hate Donald Trump.

We posted a Biden sign. We had an F Trump sign. We said you are complicit. All the things. And they also cop to mixing it up with the Alitos over Mrs. Alito's complaints about their various signs. Emily Baden, one of the neighbors, even admits to calling Mrs. Alito, quote unquote, the C-word. And what, listeners, is the C-word? The word that feminist jurist Sam Alito called,

quote, the vilest epithet that can be addressed to a woman, end quote. Is the C-word citizen? the c word citizen is the c word constitutional rights holder no according to charlotte york of sex in the city the c word is see you next tuesday wow i mean and she's just like yeah i said it what i mean it's like very oj energy if i did it i did it she she did i think though that this is not necessarily a fair representation of the sequence of events. So we should give the listeners a little bit more sense because she did not fly out of the front door. Folks go hard in Fairfax County. That's all I'm saying. That absolutely comes across in Jodi's report.

Do not sleep on Northern Virginia. It's not just Tyson's Corner and Sweet Greens. Like, these bitches go hard. They do. Martha Ann these bitches go hard. They do. Martha Ann, chief among them. But let's give a little bit more kind of narrative context because I actually do think it is really damning of the Alitos. I love how you're all encyclopedia brown about this. Like, okay.

Well, Jodi, like, investigated the hell out of this thing clearly. And there's a sequence of events that both I think makes Martha Ann look even worse, if that's possible, than the first two stories did. But also throws into real question the factual representations that Sam Alito made to the New York Times in some weird Twitter interview with a Fox News host. Those were never in question for me, Kate. So that's probably why I don't care. Okay. Well, I still think. I didn't believe him in the first instance. Okay. Well, I think that now it's really hard for anyone to claim they believe him, but let's explain a little bit why.

Okay. So as Melissa mentioned a couple of minutes ago, the neighbor's account does not align with the narrative proffered by House Alito. So basically what these neighbors are saying is that – okay, so this flag was flying in January, so it could not have been prompted by the altercation we were just talking about, which didn't happen until February. So they had posted the F Trump sign Melissa mentioned back in December. Martha Ann had complained about it. But if the inverted flag was in response to that, that is different from the story Justice Alito has told about the flag being a response to the altercation. And the C word. Involving the altercation involving the C word. So what Alito seems to be saying is there was an F Trump sign, there was an altercation with the C word, and then my bride had to hoist the flag.

Her honor impugned. Exactly. That's not how this unfolded. There was a sign, there was a flag, and then weeks later, there was an altercation. It's also really odd that if this flag was meant as a defiant response to these neighbors, even like, I don't know, through some time traveling, they couldn't even see the flag. The flagpole doesn't face their home. It couldn't have been addressed to them. They didn't actually even see it. It was other neighbors who photographed and talked about this inverted flag. So none of this actually adds up at all.

So listeners, all of this raises a question. Who do you believe? The neighbors or this guy? Roe versus Wade is an important precedent of the Supreme Court. It was decided in 1973, so it's been on the books for a long time. It has been challenged on a number of occasions, and I discussed those yesterday, and the Supreme Court has reaffirmed the decision, sometimes on the merits, sometimes in Casey, based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons. So back to Jody's most recent reporting. The neighbors say that on the day of Biden's inauguration, they drove past the Alito's home and Martha Ann, quote, ran toward their car and yelled something they didn't understand. The couple continued driving, they said. And as they passed the Alito home again to exit the cul-de-sac, Mrs. Alito appeared to spit toward the vehicle, end quote. And that was the same day that Washington Post reporter Robert Barnes came to the Alito homestead to inquire about the flag. And according to the Washington Post,

Mrs. Alito shouted at Barnes, insisting that the flag was an international symbol of distress and out of spite then hoisted a different novelty flag. It's unclear what was on this novelty flag, but basically her answer was, how do you like them flags, Robert Barnes? So there was a lot going on on January 20th. novelty flag. But basically, her answer was, how do you like them flags, Robert Barnes? So there was a lot going on on January 20th in the Alito's little neighborhood cul-de-sac.

Because, you know, it's also notable that Alito was one of the Supreme Court justices who declined to attend Joe Biden's inauguration. I just love all of this sophomoric semaphorex. It's all so good. Yes, it's so good. Okay, so that's what was happening in mid-January. Yes. So now fast forward to February 15th, and the young couple at issue in the story, Emily Baden and her then boyfriend, now husband, are out pulling in their trash bins after trash pickup when the Alitos stroll by. Martha Ann, upon passing them, uses an unspecified epithet, calls them fascists, and Baden says that she responded with something like this. How dare you behave this way? You've been harassing us over signs.

You represent the highest court in the land. Shame on you. Okay, so that's her sort of self-reported what I said to Martha Ann. Then she's asked, what about the C word? And then she says, okay, yeah, I'll fully cop to that. So at some point in her, you know, noble and patriotic speech, she also used the C word. Citizen! Not their exact.

Shame on you, C word. C word. So, yeah. um so yeah like this neighborhood is wild and full of narcs because another neighbor confirms hearing emily baden call martha and alito the c word which is curious we have another and it's an yeah that's another weird divergence because alito says it was the boyfriend who used the vilest epithet that can be addressed because the girlfriend didn't have a voice and everything was channeled through her partner, her male partner.

Right, it has to be him. Because that is the register in which like the auditory... It's like, I heard talking and I saw a woman and a man. So it must have been the man talking. It was his voice, absolutely. So... Wait, wait, wait, wait, wait. So that...

Again, I just, again, the boyfriend is the one that he says uses, quote unquote, the vilest epithet that can be addressed to a woman, end quote. Yeah. Anyway. I want to know what epithet she used, the unspecified one. I can only presume Jodi's working on reporting that. It was something with fascists. It's like the F word, don't you think?

F-ing fascist? It kind of rolls off the tongue. I want it to be something even more colorful than that. I don't know. Honestly, like, I think her crazy knows no bounds as far as we can tell at this point. So I don't know what she said. Maybe she called him a knave. I don't know.

Like, it's like... A fascist and a knave. I like that. Well, I'm sure Jodi will tell us if, in fact, that is what happened. Call in, Jodi. I mean. Let us know. Tips.

We're taking tips, too. This, honestly, I was so into this. I mean, because it did, it had a kind of soap opera-esque quality to it, I have to say. I mean, it really did feel like sort of reality TV. I was like, oh, my God, what's going to happen next? And then she spit on the car. What? I know. The combination of she's the one who initiates this, because your couple is literally pulling in their garbage bins. Like, you don't want to talk to a neighbor when you're out there,

like, in your slippers, bringing in your garbage bin, and have a neighbor approach you and start yelling at you and call you a fascist. And that's weeks after having run at you and spit at you. Like, this is the wife of a Supreme Court justice. And the conduct is so undecorous. It is wild. And this is – I feel like it's a little hard to square this version of Martha Ann with the version – do you remember 2005? Sam Alito is in his confirmation hearing. She is so disturbed by the questioning that he is subject to about activities at Princeton.

Keeping women out of Princeton, for those of you who weren't around in the 1970s. Those kinds of activities. That's right. And she essentially storms out of the Senate hearing room in tears. Weaponized tears. I mean... Calling the manager. You know, it is... That's right. So there are like these sort of angry tears she's it's probably why she's left she's gone to ask for a manager yeah with the dignity of one dr patrick jackson

who literally had to sit there while ted cruz accused his wife of basically being a pedophile and dr patrick jackson who could dismantle and dismember Ted Cruz with a scalpel, was dignified. He did not storm out of the chamber. He did not cry. He just sat there. Sartorial splendor. He had beautiful socks on. He had beautiful socks on. His beard was trimmed. Beautiful daughters next to him. He looked like a normal person. Just like just like, okay, this is politics. This guy is crazy.

I'm not going to do anything crazy, too. Yeah. So the question is, is it or is it not hard to square that Martha Ann with this spitting, flag-hoisting neighborhood scourge describing the story? I don't know. But I do feel like we have to give credit where credit is due, which is Leah, who, again, is not here today, had a sixth sense about Martha Ann. She called it. She did. I don't know how far back it goes, but we have receipts from January 2023 of Leah on Martha Ann. So let's roll the tape now. I'm unwilling to commit to Virginia Thomas being our favorite SCOTUS spouse, I think Martha Ann is really making a stealth play. And again, I'm unwilling to commit the air of Martha Ann erasure. So we're still in the market for

clever Martha Ann segment names if any listeners would like to offer those. Leah called it basically. I mean, Leah has been pushing us to always remember the ladies, and in particular, one lady, Martha Ann. Don't leave her out. And here we are. But that brings us to the next important development, as it were, in this whole saga. So Jodi Kantor's story runs last week on Tuesday, May 28th. On Wednesday, May 29th, the emperor struck back. That's right.

Justice Alito had words for those of you who thought that these flags at his home raised red flags. And surprisingly, these words did not appear on the pages of the Wall Street Journal. But that literally is the only thing that is surprising about Justice Alito's response. So let me lay a little context for you. The two leading Dems on the Senate Judiciary Committee, Senators Durbin and friend of the pod, Sheldon Whitehouse, sent a letter to Chief Justice John Roberts, basically asking, what the fuck, my dude? What is going on here? Can you please explain this? The chief did not issue a response. We don't know if he was planning to, but it turns out he was preempted, as it were, because Justice Alito decided to respond. And it wasn't a subtle kind of preemption. It was pretty categorical. It was pretty categorical.

And wow, was this a response. So the letter is publicly available. I urge you to Google Alito letter and it will pop up. But how does one describe a missive such as this one? The words epic, elegiac come to mind. This letter is destined to be memed. It will certainly give rise to doctoral dissertations about the law of coverture and the history of women's property rights. It will certainly inform episodes of the show Couples Therapy. I mean, it's just a lot. It's a lot. It's big, big troll energy.

And I expected it to be aggrieved and defensive and gaslighty and a little incoherent. And it was all of those things, as predicted. He always delivers. But I didn't quite expect it to be such a feminist tour de force. Yeah, I'm not sure I saw that coming either. I mean, wow. This is Germaine Sodding Greer. Like, Susan Sontag.

I mean, so feminista. Feministo, as it were. And not just an Alito bit feminist. Bigly, bigly feminist, right? It was. Explain. I know. The letter does contain multitudes.

But before we get into the substance, can I just pause to note, you know, you said a minute ago, Melissa, the initial letter came from Durbin and Whitehouse. And I do think it's worth underscoring that it wasn't even addressed to Alito. It was addressed to Roberts. Is he intercepting mail? Totally. It said to Roberts, like you said, you know, WTF, like it said a little more. It says, look, we think Alito needs to recuse. We would like a meeting with Roberts to discuss Supreme Court ethics broadly. But Alito literally like grabbed the mic and was like, I'm allegedly Finnish,

but Martha Ann had, I don't know. Everyone knows Martha Ann had the best album of the year. Deserves whatever accolade the Supreme Court spouse could possibly qualify for. That's right. So that was essentially what this was. He literally just grabbed the mic from John Roberts and didn't even really say that he was going to let John Roberts finish. He just proceeded. And I do think that that is meaningful and that he is telling the committee and the American people not to bother looking to or engaging with John Roberts because that guy has no real power anyway. And I thought that was actually an incredibly revealing move before you even get to the substance of the letter.

It's a jurisprudential cuckolding of John Roberts. Is John Roberts mad? He should be. He should be really fucking mad. Look, maybe he's working on albums that 10 years from now, the world will see we're all inspired by this moment. The Snake fam. John Roberts' Snake fam is going to come for Sam Alito. I don't know. I mean, I just feel like, I don't know. Maybe you sort of ride off into oblivion, vacate your seat, let Joe Biden name a new chief, and work on, you know, on your albums.

So let's get into the substance of this letter. Let's do it. First of all, per usual, the letter 100% throws Martha Ann Alito under the bus. So Justice Alito blames her as he previously blamed her. He blames her for flag number one her. He blames her for flag number one. He also blames her for flag number two, although he adds some amazing details that I think really give color to the story. So as to insurrectionist adjacent flag number one, he notes that he implored his bride to please take it down once he saw that old glory was flying upside down.

And Martha Ann was like, no, I do what I want. And for several days, it remained in that upside down posture while she refused to bring it down as her husband, a sitting member of the Supreme Court, had requested. And again, this detail prompts me to ask, why are justices who cannot seem to control their own wives so intent on controlling other American women? Or have I answered my own question? Is that really just the answer right there? Like, that explains Dobbs in a nutshell. Like, I can't control her. I'm gonna control all of you. Fine. Yeah. So that was a very interesting and tantalizing detail in the letter. As for the flag flying more generally,

Justice Alito basically suggests that his wife, Martha Ann, is some kind of hobby lobby, garden decor, gnome-loving weirdo who is, quote unquote, fond of flying flags. And to be very clear about how weird she is and outside of the norm, he notes that although she is fond of flying flags, he is not. Right. So he's the normal one here, which, again, says so much about this relationship. It really does. Okay. So let's drill down a little bit more. You, Melissa, were talking about dissertations on the law of coverture. There, again, is just so much to unpack here. So he insists in the letter that he and his wife own their Fairfax home jointly, and she therefore has the legal right to use the property as she sees fit. Feminism.

Feminism. And there's nothing – he literally says there is nothing he could have done to have the flag taken down more promptly. FYI, he also has a legal right to the property and what happens there too. Yes, except for when it's convenient for him to insist that he does not. But, I mean, in addition to Dobbs, which you alluded to a minute ago, you know, just to wind the clock back even further, this is the guy who, when he was on the Third Circuit, wanted to uphold the spousal notification provision in Planned Parenthood versus Casey, which would have said that husbands get to control the decisions. In order to get an abortion, ladies, if you were married, you had to first tell your husband about it. He was like, yeah, sounds great. That sounds right.

He was like, that's fine. And the Supreme Court, even though it actually did uphold a lot of the Pennsylvania abortion restrictions that were at issue in Casey, It drew the line there. struck that down hard. And in no uncertain terms,

we're like, no, that's just totally inconsistent with basic notions of autonomy and citizenship to be required like a child to go to your husband to get permission to have a medical procedure. But Alito was, you know, fine with that. So I think in his worldview, husbands can control their wives' uteruses and childbearing, you know, capacity and obligations, but not the fabric flying over their homes. Those are property rights, Kate. Real reliance interests accrue there. And those are obviously the most important rights.

Not in these inchoate reliance interests in abortion. Another historical aside about Justice Alito when he was then Judge Alito in that Third Circuit opinion, Justice O'Connor, who occupied the seat that Justice Alito now sits in, was the one who brought, I think, real anger and defiance to that spousal notification provision in Casey. She wrote about how allowing that provision to stand would endanger women who were in really unsafe domestic situations. And she was speaking specifically of domestic violence. That's what we're basically pitting here. Like she was the one who was like, no, this cannot stand. Whereas this guy as a Third Circuit judge was like, no, totally fine. You got to check in with us, ladies,

before you have an abortion. But if you want to fly a flag, like this is joint property. Like have at it. I think we can do about it. Feminism. So he basically says like, yeah, this is her, nothing to do with me. And that's as to the inverted flag in Fairfax. So he basically says like, yeah, this is her, nothing to do with me. And that's as to the inverted flag in Fairfax. But he says essentially the same thing about the appeal to heaven flag flown over their home in New Jersey. Basically, not my flagpole, not my freaks.

Like, it's just so bad faith and so gaslighting, like everything Alito does. But it's simultaneously like, I respect the queen with whom I co-habit, right? But also like, she cray. Like, isn't he basically saying both?

I feel like that is the dual message of this. But she's weird. Yeah. And it's sort of convenient that he... There was more here, though. So, Kate, what I thought was really interesting about this detail about the Long Beach Island house is that he answers a question that I think we had previously floated, which was, how does a public servant who makes about $270,000 a year, who has a wife who is not employed, afford two homes? Right? I mean, it's a reasonable question to ask.

Well, listeners, the answer, Justice Alito tells us, is intergenerational wealth. You know, the idea that if you don't have crushing student loans preventing you from buying a home and amassing capital, you can take all of that capital that you have amassed and you can then bequeath it to your heirs so that someday in the future they can buy a Long Beach Island vacation home where they can be free to fly their MAGA flags. And it has absolutely nothing to do with their husbands who have actually shit all over student loan relief because the vacation home is in your name only. You own it free and clear solely. He's not even on the title. That, ladies, is feminism. And yes, you have come a long way, baby. Alito out. Yeah, you own it.

You are really your grandfather and great grandfather. You built that house, right? And these unworthy borrowers of student loans, they don't build anything. They don't have a flag to fly. And a flagpole to do it. Nope. So there is more, if you can believe that, in this letter because Alito cites the useless ethics code that the justices purported to adopt last year. That letter doesn't cite the federal recusal statute, but cites the justices' own ethics code and says that because these events were all very legal and very cool,

any reasonable person would realize that the flags did not mean that the justices' impartiality might reasonably be questioned. And basically only rabid partisans who wanted to change case outcomes would think that these events involving these flags warranted the justice's recusal. And he goes on to say there's nothing in these events that warrants recusal. And moreover, he actually couldn't even recuse if he wanted to because the ethics code requires him to sit. I know we've already played a little bit of old tape on this episode, but I did want to play one more excerpt from an old episode, which was the episode where we dissected a little bit this new, quote unquote, ethics code. So let's listen to what we had to say about it when it dropped.

The Supreme Court adopted a kind of ethics code. And again, I'm using – They adopted a document captioned ethics code. Yes. An ethics-like code. An ethics-adjacent code. Yes. Yes. Yeah.

An anti-ethics code. A code of misconduct. A code of misconduct. Yeah. Yes. Yes. But it's – again, like, this is like the tone that I was talking about earlier in the habeas case, which is he suggests that I'm not like refusing these recusal requests because I am chomping at the bit to, you know, write an opinion siding with Donald Trump. It's oh, there's a letter. There's a new letter, Kate. Oh, my God. No. Since we started recording. Oh, my God. There's a new letter from Alito? No, it's Chief Justice John Roberts.

Oh my God, can we have a dramatic reading? Can we do that? Wait, what? There's a new, Roberts has written a letter. Okay, Chief Justice Roberts has entered the chat. All right, so he writes the following letter. I'm just like reading this in real time. I haven't ever read this before.

Okay, dear Chairman Durbin and Senator Whitehouse, thank you for your letter of May 23rd, 2024. Already it's on a very decorous tone. There's no spitting, no calling anyone a fascist. Okay. In regard to questions concerning any justices' participation in pending cases, the members of the Supreme Court recently reaffirmed the practice we have followed for 235 years pursuant to which individual justices decide recusal issues. History and tradition, bitches. We've been doing stupid, ineffective things for 235 years. Okay.

But also this code is like six months old. Like, come on. But go on. It is my understanding that Justice Alito has sent you a letter addressing the subject. Literally the understatement of the year. That's, but I feel like that's a pretty, I mean, look, the next paragraph, I just skimmed it to you all. Roberts is not riding it on a white horse to fucking change the course of history. Like, we knew that. But I do think that sentence suggests he might not be that enthusiastic

about the tone of the Alito letter. Like, he might be trying to distance himself a little bit from, he's like, I don't know what that guy said, but like, I guess he said some shit. I feel like that's what he's saying in that sentence. I think what follows is some pretty weak sauce from, but to be expected from the Chief Justice in name only. Of course. I must respectfully decline your request for a meeting. As noted in my letter to Chairman Durbin last April, apart from ceremonial events, only on rare occasions in our nation's history has a sitting chief justice met with legislators, even in a public setting, such as a committee hearing with members of both major political parties present.

Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances. Moreover, the format proposed, a meeting with leaders of only one party who have expressed an interest in matters currently pending before the court, simply underscores that participating in such a meeting would be inadvisable. Respectfully, John Roberts. Cece, the senior Republican members of the committee. Lindsey Graham, John Kennedy. Okay, first of all, it may be the case that a sitting chief justice may not have appeared before a committee, but we know that Clarence Thomas and Anthony Kennedy definitely appeared before a committee to talk we know that Clarence Thomas and Anthony Kennedy definitely appeared

before a committee to talk about Bush v. Gore. Steve Lattice writes about that in his great book, which we've talked about on the show. But remember, Melissa, that was actually, this is what they have to do, I think. That was a routine appearance to discuss the court's budget. And they got asked about Bush v. Gore during a hearing. So yeah, so during the next round of pro forma appearances for a budgetary discussion, they need to ask them about ethics. And I guess it wouldn't be the chief. It was Thomas and Kennedy last time. Breyer used to.

Breyer and Kennedy, I think, have both gone a bunch of times. So that, I think, is at a minimum something that committee leadership just needs to plan to do to press whoever shows up about this question. But I just think like it's the lip service to the separation of powers when the whole point is the separation of powers is wildly out of whack right now. The court is unconstrained in any way. What Congress is doing is trying to reinstate a modicum of control over the justices, not even what they do, but just in having a dialogue with them. And Roberts just loves to invoke, you know, these platitudes about the separation of powers to say, go fuck yourself. And like, this state of affairs cannot be sustained. Like, it just can't. The court thinks it is totally unaccountable, and it needs to be shown that that is wrong. So Jamie Raskin, who is a representative from Maryland, has an op-ed in The New York Times. Basically, he says that there are ways under existing statutory laws and sort of, I guess, you know, administrative or executive policies that you could force the justices to recuse themselves and that every avenue. This is basically the point of it. Every avenue must be considered and cannot be discounted because the situation has become so dire for all of the reasons that you suggest.

And Raskin has, I think, been really, really on this. But without controlling the House, there's only so much that he can do. But I thought that op-ed was really important. He's got a bill on an inspector general for the court, which I think is very much an idea worth pursuing seriously. But, I mean, if you needed more evidence that Roberts just like is not the man for this moment. If anyone continued to hold out some shred of hope. A man for all treasons, but not for all seasons. You know, the kind of shred of institutionalism that we saw in him and also his willingness to check excesses of, you know, his fellow judicial travelers and the Trump presidency. I don't know where that John Roberts is, but it's not in this letter. We've given him a lot of credit as being the member of the conservative bloc who is institutionally minded. And that's really been important. But he hasn't been doing it in these moments where it counts, like not with regard to Clarence Thomas, not with regard to Samuel Alito. And basically, the court's reputation is going to be in shards. Like, I mean, it's an interesting question. Like, you know, are they delaying announcing the outcome of Fisher and United States versus Trump? Because to do it now would be so weird given all of the news like I

don't know I mean rank speculation on our part to even and think about it but the fact that people are thinking that that could be what's happening underscores the real ethical quandary this court finds itself in where it like maybe they're delaying because everyone knows how stinky it would be to have those decisions come out right now when all we're doing is talking about whether the Alitos are in fact MAGA heads. Yeah. Especially if he's writing in one of the opinions, which, I mean, who knows. Anyway. So, Kate, what is the TLDR of the Alito letter?

I mean, I think that my queen, you know, will let her freak flag fly and like and feminism requires me to respect it. But also, like, she have the propensity to spit on people's cars I don't know what I'm doing inside the house like I'm kind of a little scared for him same but I actually don't care if something did happen I don't think I would care anyway um I think the thing that stood out for me with this letter is not just the throwing his wife under the bus and then rolling the bus over her four or five times. I think it's just the absolute troll energy of the letter. I mean, it is a big fuck you to American women. He basically reveals that he is pro-choice as long as the choice is about which flag you're going to fly. Like, I respect your choices to fly as many flags as you want.

He comes out and essentially suggests that Martha Annalito has a right to privacy, right? Not only does she have a First Amendment right to express herself, she has a right to privacy to do these things in the homes that she owns, whether jointly or solely. But she's the only one who does. And not once, not twice, but actually three times, the man who wrote Dobbs versus Jackson Women's Health Organization specifically notes that his wife is a rights holder entitled to make her own decisions and that he as her husband, honors and respects her right to do so. It must be nice. Yeah. Like, if we legalize polygamy, can we all marry Justice Alito and take part in this Martha Ann, like, rights situation? Because, like, that would be, maybe that's how we get our rights back. American women, right, did once have a right to privacy that encompassed the right to terminate a pregnancy until Sam Alito and his infinite

wisdom decided otherwise. So maybe that's the solution. We all have to marry Sam Alito. I mean, who's going to take one for the team for that? I don't know. But like, is it worth it? I don't know. It's a genuine question. But I mean, basically, she's the only woman, maybe Ginny Thomas, who has rights worth respecting. Well, given that another letter broke mid-recording, I don't know what either on the exchange of letters front or in Jodi Cantor's investigative files we are likely to see between now and our next recording, but whatever it is. I mean, I'm here for it. Yeah. Is there any other SCOTUS spouse news that we need to cover?

Not like that. I mean, there is one little piece of SCOTUS spouse news, which is that we learned in the last couple of days that Jesse Barrett, who is the husband of one Amy Coney Barrett, is part of the legal team representing Fox News in a defamation lawsuit. And it's yes, it is that Fox News, the one that, you know, has in recent years had a number of defamation lawsuits to fend off. Maybe this raises an eyebrow for some people. But I actually have two things to say about that. Yeah. First, on the Martha Ann Ginny Thomas Richter scale, this is nothing. But I also think like... This is like that earthquake in New York that happened a couple of months ago. This is less than that. And I was just like, like, everyone's freaking out. It's like... Yeah, well, you have spent many years in California. For many of us, that was our first

earthquake. So it actually felt pretty dramatic. Oh, I know. You all like, rest in peace, my mentions. You guys are all like, we don't have the codes for this. I'm like, okay, calm down. I'm just saying, just hold on. Get under a table and hold on. But I also think that it's important to keep perspective. And Jesse Barrett is a lawyer at a law firm that can have clients. Like, that's fine. You know, when there was a little bit of a furor over some headhunting work that Jane Roberts, the wife of the chief justice, was involved with, we had basically the same reaction on the show, which is it is OK for spouses of Supreme Court justices to have jobs, to have hobbies, to have passions, and to pursue them. We are not anti-flag. We truly are not. Nor are we anti-employed spouses. So I actually think that I'm going on the record right now and saying, I think Jesse Barrett can represent whoever he wants to. And hopefully, I think I worry about losing credibility if any event involving- No, we're not going to flip out over everything. We're not. No.

What you just said, though, did remind me of something I meant to say vis-a-vis the flag-flying Alitos. Yeah. We didn't say this earlier, but we cover almost every case the court hears.

And a couple of years ago, there was another... I think, was it just last term? Sometimes they run together. No, a couple of them. Yeah, there was Shurtleff versus City of Boston. And that was a case about whether the City of Boston, which made some of its public flagpoles available to be rented where private groups could put their flags on the flagpoles, whether they could prevent Camp Constitution from flying its flags on the flagpole.

And Justice Alito. We should say, though, Camp Constitution sounds like a secular, like, Constitution camp, but actually it was a Christian flag, and it's very much not a secular outfit. It's, you know, quite religious. Thank you for the context. So Justice Alito wrote a concurrence there. And again, this guy, it's almost like, does anyone keep records but us? So he wrote this concurrence where he basically said that, you know, when the government sandwiches a private flag between two flags that represent the city and the state, like actually public flags, one could reasonably infer that the private flag is also reflecting the views of the government, like that they're so inextricably intertwined because it's on a public flagpole, even though it's a private flag, and there are these other trappings of

public life around it, that that's the government's message. And you're sort of like, kind of similar here. Like, you know, I know it's her house, I guess, in Long Beach Island, but you live there with her, you're married to her. Is it really a stretch for individuals to infer that you approved this message? Yeah, yeah, no, and he, I think there he is saying that inferences drawn by passersby should not be sort of the determinative question. But no, I think the passage is describing, that's exactly right. The court writes me notes that people could make these inferences. Yeah, people may and understandably do. And I absolutely think that that's true about people walking by his house either in Santa

Vita or in New Jersey. In other news, another justice spoke of a somewhat more normal reaction to distressing and maybe even personally insulting writings. So on Friday, May 24th, Justice Sonia Sotomayor was at Harvard University, where she received the prestigious Radcliffe Medal from the Dean of the Radcliffe Institute, Harvard Law Professor Tomiko Brown-Nagin. It was a very festive event. There was a rollicking testimonial to the justice from EGOT winner Rita Moreno, who also narrated the audiobook for Justice Sotomayor's bestselling memoir, My Beloved World. And as a prelude to the conferral of the

Radcliffe Medal, Justice Sotomayor was interviewed for about 30 minutes by former Harvard Law School dean and her Yale Law School classmate, Martha Minow, who we might refer to on this podcast as the other other MM. Maybe she's the original MM. I don't know. Hard to say. In any event, Minow asked Justice Sotomayor how she coped with being in the minority so often on the court. And Justice Sotomayor had this to say. There are days that I've come to my office after an announcement of a case and closed my door and cried. There have been those days and they're likely to be more. Kate, the restraint. Yeah, she is graceful, elegant. When faced with personally insulting decisions from her colleagues, does she fly an insurrectionist flag? No, because she would be impeached.

She would be impeached. That's why. I was going to ask about what if she spat at her neighbors, but she would probably be impeached for battery. She'd be impeached for that too. Right. No, she goes, she walks back to her office like an adult and cries to herself, which is, I think, just a storm out of the chambers and tears she just goes back to her office and then she breaks down like like all of us do yes i think and we're all going to be well this is this i think this was more than just here's how i cope this was also like uh here's how you're going to be coping in the next couple of weeks she seemed to be telling us that we all ought to stock up on kleenex because it's about to go sideways at one First Street, right?

I mean, she's basically like, there's bad stuff coming. Yeah, which we knew, but now we really know. Well, so thanks for telling us, Queen. And many congrats on the Radcliffe medal. I was there. It was beautiful. Rita Moreno, who's like 92, was so beautiful and luminous and just like oh she was she's amazing um like wearing all white beautiful necklace just like queen do you think it's the

egot do you think it confers eternal youth i don't know but i want one i mean like she just looked so amazing justice for melissa you need your egot i do we need to when it needs to be when egotta is actually we need to throw the ambi in there. Yes, the eGOT. You're like, Rita Moreno does not have an ambi. So, well. You put the two of you together and we got it. She's like, I'm actually still okay. Before we leave, just a couple more notes.

We just, you know, again, Sotomayor was reminding all of us of, in general terms, how bonkers the next month is going to be. We will give some specificity on that point. The court has 29-ish opinions left to issue. Most of them are big, big cases. They include, but are not limited to, Trump immunity, prosecutions for many other J6ers, Mipha Pristone, EMTALA, the domestic violence and gun case, Rahimi, the bump stock case, Cargill, the future of the Chevron doctrine, agency adjudication, All that's outstanding. For just a month. Yep. Just a month. What a month. It's time to make some bad decisions. And we're going to be here for them and whatever else Jodi Cantor and Martha Ann have in store for us. So stick with strict scrutiny. The next opinions are going to come out this Thursday. and we just want to get you prepared in advance. We're probably going to have to do some self-care over the next couple of weeks. So we didn't want to announce this without Leah, but given that there's so many outstanding, momentous opinions to come, and we're going into the season of bad decisions, it seems fitting given the subject matter that we announce the official Strict Scrutiny Summer Cocktail, right? So last summer,

listeners, you know that we were sipping refreshing Ginny Tonics full of bitters, but it's a new season, bitches, and we have a new drink on tap. And it is the Martha Rita. That's right. You can make your own Martha Rita at home. You will need some tequila, some freshly squeezed lime juice, and some Cointreau or Triple Sec. Some people like to add agave for sweetness, but an authentic margarita is not really sweet. It is decidedly sour. So we recommend doubling up on the lime juice. Just put it all in the shaker, double up on the lime juice, shake it upside down. That's critical. And then take a frosty glass,

make it a little damp on the outside, roll the whole thing in salt. Not just the rim, the whole glass. And once the whole glass is good and salty, like your favorite Justice, pour the mixture in and then drink up and let your freak flag fly. That's how you enjoy the summer with a margarita. What do you think, Kate? That's a great recipe. I mean, I think you love a good margarita, don't you? I, too, love a good margarita. I tend to prefer mezcal. You could add mezcal.

I mean, it has a smoky, complicated flavor. I don't know that a smoky, complicated flavor works for someone who's at Hobby Lobby buying novelty flags. But if that's your jam, do it. When I was, you I was testing the various options for summer cocktails, I did think about a Martini. It felt a little elitist, I have to say. So I said no to that. I think

the Margarita is really where it's at. It's refreshing, it's salty, and it's a little sour. Would you enjoy it on the Jersey Shore? I feel like it's a good drink to enjoy on the Jersey Shore. Oh, 100%. GTL and a margarita. Yeah. Yeah. Yeah. Alright. Drink of the summer. I think so.

So, alright. Well, I think we will have to leave it there, but before we go, by the way, just in time for June, the Pride or Else collection just launched at the Crooked Store. It includes designs for everyone, whether you are leading the parade or showing up as an ally. Ally this month isn't about you, but you still get some merch. The collection also includes fresh versions of bestselling Leave Trans Kids Alone,

You Absolute Freaks merch that is evergreen, unfortunately. And most importantly, a portion of proceeds from every order go to Crooked's Pride or Else Fund in support of organizations working to provide gender-affirming care and life-saving resources to queer and transgender communities across America. Prep for pride at crooked.com. Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell with help from Bill Pollack. Our intern this summer is Hannah Saroff.

Audio support from Kyle Seglin and Charlotte Landis with music by Eddie Cooper and production support from Madeline Herringer and Ari Schwartz. And if you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, run a flag up the flagpole, upside down, and then rate and review us. It really helps.