Strict Scrutiny - How SCOTUS Distorts Democracy

Episode Date: October 3, 2022

It feels like we're still processing the end of last term, but alas, the first Monday in October is upon us. Kate, Melissa, and Leah kick off season 4 of Strict Scrutiny with a look ahead at what's sure to be another heinous Supreme Court term.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Lippman. And the band is back together. It feels good, but also anxiety-inducing, as we'll talk about in

a second. But we also know we have some new listeners. So we figured we'd do some brief reintroductions. So I'm Leah Lippman. I'm a law professor at the University of Michigan, where I write on constitutional law and federal courts. I am a huge Taylor Swift fan and reality TV aficionado, especially RuPaul's Drag Race and FBoy Island. My other passions include my mini golden doodle dog, making jokes about enforcing the Voting Rights Act. I'm not going to explain that right now. And also making sure all of America knows what Sam Alito is up to. I clerked on the Supreme Court and in the before times before there was a majority of forced birth advocates on the court, did some

practicing before the Supreme Court as well, including in Whole Woman's Health versus Hellerstedt, the case invalidating a pair of Texas abortion restrictions, and DHS versus Regents, the case invalidating President Trump's rescission of the Deferred Action for Childhood Arrivals program. Hellerstedt, we hardly knew you. On that note, I'm Melissa Murray. I'm a law professor at NYU. And before that, I was a law professor and sometime dean of Berkeley Law. I am an expert in reproductive rights and justice, constitutional law, and Meghan Markle and her in-laws, aka the royal family.

And my passions are my own family, my dog, a little bishpoo named Cole, who is perfect in every way, skincare, Supreme Court and otherwise, fashion, and again, Meghan Markle and her in-laws. And I clerked for Justice Sotomayor when she was an appellate judge on the Second Circuit. And finally, I'm Kate Shaw. I'm a law professor at Cardozo Law School in New York City, where I teach administrative law, constitutional law, and some other topics. Before law teaching, I worked as a lawyer in the Obama White House Counsel's Office. And before that, I clerked for Justice Stevens on the Supreme Court and Judge Posner on the Seventh Circuit. I live in Brooklyn. I am a running and yoga aficionado. I have three kids and a wonderful rescue dog who is perfect in a different way from Leah and Melissa's dogs, but perfect in her own way. All that means I'm perpetually underslept, totally clueless about TV references, and generally five minutes late to our recording sessions, although I was basically on time today, ladies. You were three minutes late, which is progress. My clock said 2.01, one minute late.

I was in the waiting room at 2. I really was. All right, Kate. It was bad bitch o'clock, and you were a little late. That's fair. That's fair. Before we get into the court, can we take a beat for a minute and just sort of ruminate on some of the things that have happened since we were last together?

I know you guys were together at Michigan for your live show, but I was recovering from the funeral of Her Majesty Queen Elizabeth II. And I just want to just maybe say a few things about that. Can we talk about our dear friend and strict scrutiny invitee, Meghan Markle, and her amazing funeral fashion and her single tear, that one single tear that she allowed to just like glide down her cheek. Like she was just serving funeral realness, like no jewelry. And like her in-laws were like doing the most, like Kate Middleton, the new princess of Wales was wearing this massive hat with a net and a bow and a pearl necklace, which looked like it had like a pearl vagina on it. It was weird, but she needed to edit her look. Kate looked beautiful, but she needed to edit her look. And Megan looked amazing. Is there a way this relates to the Supreme Court? Yes, because Meghan Markle was wearing this

glorious Stella McCartney cape dress that was black. And I have to say, I saw it and I was like, this is SCOTUS fashion. This is giving SCOTUS realness. I would love to see Sonia Sotomayor, Elena Kagan, Katonji Brown Jackson, maybe even Annie Coney Barrett wearing this cape dress to oral argument. Like make it longer, of course, but make it fashion. I feel like I didn't always know, but now do know that the justices don't like get an official robe in conjunction with their commission from the president. They just buy their own robes. And so there's like a little variation you can see when they're all standing together. So, Melissa, you're right. There is nothing stopping the Johnstases.

Not one thing. No, from adopting this insanely gorgeous cape robe style that the Duchess debuted. I think we should meet into some- What if one of them printed on the back of it. I don't care. Do you? No, because they care so much. But I think you're right about the messaging opportunities. Yes. Right. Of course, Chief Justice Rehnquist, you know, famously adorned his robe during the impeachment trial of President Bill Clinton with these three yellow. Gilbert and Sullivan. He was like, I'm serving Gilbert and Sullivan. And then he retained that robe for the duration of his time on the bench. And I don't think anyone

since has really undertaken any sartorial flourishes. I guess that's not true. The robe, that's true about. Ginsburg would, of course, don her famous jabos, you know, the dissenting one, the majority opinion one, when she was announcing opinions from the bench. But the robes have gone unadorned. And I think that needs to end. Yeah, I think this cape dress could be the this is the perfect intervention. And when your job is a little bit like attending a funeral every day for a whole year, like why not? We are here to witness the death of American law and democracy. Single tier.

Single tier. So that's a good, I think that's a good segue. Yeah. We are here for season four of the podcast on the eve of a new Supreme Court term. Wow.

How was your summer without rights? How was your first summer without rights? Was it good? Did you get a lot done? I think that's why it feels so surreal to be sitting here on the cusp of doing all of this madness all over again when it feels like we are still so deeply immersed in the fallout from the last term, right? We're obviously going to be dealing with the fallout from Dobbs and other cases for decades. And that is true in the sense of the profound consequences this term is continuing to have for people's lives and health and safety. For many people in many states, it has fundamentally upended access to medical care and control over reproductive lives. And we should be clear that

access and that control were tenuous for many people well before Dobbs. But since Dobbs, that has only accelerated. Fourteen states have banned all or most abortions. Other states in which litigation is ongoing are trying. The on-the-ground effects of last term's biggest decision are massive and they are ongoing. And it's not just the on-ground effects of the particular decisions. You know, the consequences of last term are also because the court's approach to law and the resulting chaos in the law and our government institutions it produces. And so we don't want to sit here and be like, OK, well, that was that. Time to roll up our sleeves, pretend like none of that happened and play this game again. Not suggesting anyone in particular is doing that, but some maybe are.

But, you know, we are not back to a normal court that acts like a serious judicial institution, and we have not somehow magically moved beyond the past term. It's worth pausing on that for a minute, just because if you are relatively new to following the Supreme Court, I think it is important for us to underscore that none of this is normal, right? It is not normal for the Supreme Court to torch prior cases the way it has in the last term. It is not normal for the court to do things like order executions to proceed, even when lower courts have put those executions on hold for various sound legal reasons. It's not normal for the court to second guess state and federal public health officials' decisions the way it did throughout the pandemic. But all of this and

more is where we are. But it is important not to become numb to how atypical and how anomalous all of this is. What's also atypical is all of these justices hitting the media circuits to say, everything is fine. It's all fine. Except for Elena Kagan, who's like, it, everything is fine. It's all fine. Except for Elena Kagan, who's like, it's not all fine. It's actually terrible. And this is really bad. So more for your this is not normal pile. But ladies, that was the last term.

This is the new term. And everything's going to be different, right? Yeah, no, it's not going to be different. That was me trying to be optimistic. it's not going to be different. That was me trying to be optimistic. It's not going to be different. It's actually just going to pile on. And there's more we can say about October term 2022. And indeed, we're going to spend most of this episode talking about what's in store for this term, drawing on what we've learned over the last couple of years. But I'm just going to say it. This term is merely

a continuation. Like, we got a hiatus. So where to start? The justices are going to resume hearing cases on the first Monday of October. That is normal. That is what they normally do. And this year, that is October 3rd, the day that this episode will be released. But prior to the resumption of oral arguments on Friday the 30th, the day that we are taping, the court actually issued a new photograph of the new Roberts Court featuring the newest justice, Katonji Brown Jackson. It's not the official photo because President Biden and Vice President Harris are in there, but still. So I just wanted to call attention again to some notes. We don't really get to see below the robes that often. So there's some interesting points here. First of all, our boy Sam really looks like he celebrated all summer long. Like when you lay waste to 50 years

worth of precedent, you deserve to tie one on. And it looks like he did. I mean, he looks a little weathered. I mean, am I wrong? No. He looks puffy, right? He looks like he had a few too many ginny tonics this summer. He just looked like he raged all summer. Yes. And he just had the best time. Like his skin looks red and a little mottled.

Like this is not what we're used to. So, again, this is not normal. I mean, usually this is a septuagenarian who's looking like he's 50 years old. Like he looks, again, weathered. He looks rough. It made me wonder whether, you know, he was sporting that beard for part of the summer. And I don't know if he was covering all of this up. And I wonder whether he might want to consider bringing that beard back because he does not. You can't hide the bags under the eyes. I'm just saying, right? Like the beard is not going to make that go away. Your whole face is covered in hair. But, you know, look, is it possible he looked as kind of terrible as he did

because he was standing next to the reflected light of the beautiful Katonji Brown Jackson standing next to him in the photos? That is possible. I mean, we're going to call this the Meghan Markle-Kate Middleton effect, I guess. It could be that. I will also call attention, like most of the men on the court got the white shirt with an either blue or red tie to convey that you are part of a nonpartisan institution, so blue or red, either one.

But not Neil Gorsuch. Neil Gorsuch decided to serve a new look, an L-E-W-K look. And he decided to come to this portrait wearing a blue shirt. And to which I say, continue to slay, Neil. This is the kind of iconoclastic behavior that allows you to be the most important voice on federal Indian law questions at the Supreme Court. So continue that. Justice Barrett was also serving fierce looks. She had a pair of red maroon-ish suede shoes.

Like, again, does not seem regulation. This is a new kind of turn for the court. So I thought this was a really interesting intervention. Are you supposed to have red shoes with your red robes? Is that a thing? I mean, I don't know. Justice Sotomayor, to Kate's earlier point about people getting to kind of wear whatever robe they want, she had a kind of satiny robe on. It didn't look regulation. I don't know how I feel about this. I love Justice Sotomayor. I don't love a satin robe. I did love Justice Kagan's outfit. She had this very sort of subtle

gold-linked necklace, and I really want a necklace like that. It looks really good. But the real headliner in all of this, our newest Justice, Katonji Brown-Jackson. And again, we never get to see below the robes. But in this picture, you got full-length Justices. And she was wearing a pair of chunky-heeled black pumps with an ankle strap and a little bit of tweed detailing. And I was like, OK, here we go. We have never seen this on the court before. And I kind of loved it. So

she was the headliner. It was a very strong start for her sartorial-wise. And I can't wait to see what the rest of the term brings. While we're overruling affirmative action, let's make it fashion. So maybe speaking about this upcoming term, let's look ahead to term themes, specific cases, and anything else we're watching for. We'll also do a general roundup of the vibes on the eve of this court's term. So some term themes I'm watching for or envisioning. To my mind, one question that really is a through line across several cases the court is hearing is the court will ponder the question of, is democracy constitutional? And part of that will involve assessing whether laws or doctrines that help facilitate the existence of a multiracial democracy are constitutional. See, you just said it, Leah. I think they're fine with democracy. It's that

multiracial part. I'm actually not even sure if they're fine with democracy. Like, I envision Neil Gorsuch and Sam Alito as the reply guys that are like, but actually we're a republic. Yeah, that Mike Lee line. Exactly, exactly. But these are the cases about the Voting Rights Act, which we'll talk about later, the independent state legislature idea. And this also concerns the cases about the government's power to remedy discrimination.

The affirmative action case that Melissa, you alluded to, as well as a case on the Indian Child Welfare Act. Those cases in particular will also prompt a, what I am envisioning to be a Dobbs leak style investigation led by the chief justice with maybe possible assist from Ginny Thomas that will look into whether Justice Thurgood Marshall is the real racist, since all of these cases ask some version of, is it discrimination on the basis of race to enact measures that take into account race in order to prevent further discrimination on the basis of race or to remedy past discrimination on the basis of race? Yeah, Leah, I heard it once said that the best way to stop discriminating on the basis of race. You know, Leah, I heard it once said that the best way to stop discriminating on the

basis of race is to stop discriminating on the basis of race. That would be the chief justice's famous line from Parents Involved in which he equated, you know, efforts to integrate schools that took account of race with Jim Crow era segregation. This is why I am jokingly suggesting these cases prompt the question of whether Justice Thurgood Marshall and other individuals that help secure desegregation, you know, were themselves engaged in racial discrimination. Food for thought, it turns out. And of course, the court will continue its quest to demolish our system of constitutional remedies and in the process leave important rights unenforceable. And I'm just going to put that one out there because this is a theme we will return to later.

OK, so in terms of big themes to watch, Leah, you covered a lot of them. Let me just throw in a couple of other things just to draw out the point you were alluding to. The court is poised to hear three cases at the moment. There could be more added to the docket. A Voting Rights Act, Merrill versus Milligan, which we'll talk about in a few minutes. The Harvard and UNC affirmative action cases we've now mentioned, and that we talked about at length with Michelle Adams last week. And the case about the constitutionality of the Indian Child Welfare Act, ICWA, that all have this very important through line. So they're about very different topics, right? Legislative redistricting, affirmative action, adoption placement. But taken together, they could

absolutely result in this being the term in which the court reads the Constitution's guarantee of the equal protection of the laws as outlawing efforts to eradicate discrimination. You said this before, Leah. I'm saying it again now. If it sounds crazy, I agree. But there is absolutely a view on this court, and I think it is likely now the majority view, that says all government use of race is equally pernicious and equally constitutionally suspect, whether we're talking about using race to build diverse college classes or ensure adequate representation to voters of color or to ensure Native children up for adoption have a meaningful opportunity to be placed with members of their tribes against a history of forcible removal of Native children and the deliberate destruction of Native families and cultures. But this view says the Constitution views all of that as identical to using race to entrench and protect white supremacy. And as Melissa alluded to, John Roberts has historically been the chief proponent of this view, and that is since way before he was the chief justice, right? So, you know, going all the way back to 1982 when he was a 26-year-old lawyer in the Reagan Justice Department, he was writing memo after memo opposing expanding the Voting Rights Act.

Then in 2007, once he's in a position to actually enshrine these views into law, he writes the opinion containing the stop discrimination on the basis of race by stopping discriminating on the basis of race language. In 2013, he authored Shelby County versus Holder, striking down a key provision of the Voting Rights Act. So look, I think his view is clear. And the big question to my mind is whether his concern about pumping the brakes somewhat on this, you know, what Leah has coined the YOLO court, will overtake his desires to finally see this 40-year effort bear fruit? My guess is no. Well, I think you're right. Let me add, as this entire term plays out, I think we should institute a little strict scrutiny drinking game. And the game is this. Anytime someone mentions the first Justice Harlan and his dissent in Plessy, you have to take a drink

because invariably the people invoking Justice Harlan are going to be the people trying to dismantle efforts to remedy past racial discrimination. But isn't that going to mean we are going to result in Sam Alito-

We're going to look weathered. We're going to look weathered. We are literally going to look like we were road hard and put away wet. We're going to look so messed up at the end of this. You're right. But to prove a point, I mean, like they're going to beat Justice Harlan with a stick until he's done. We may have to sacrifice our skin in service of making the point that this is unbelievable hypocrisy.

Or we're just going to have to do extra hydration for the whole term just to counteract the effects of this. It's going to be a lot of drinking. I feel like I'm ready, ladies. I think I'm ready for it, to do what is needed. So a couple of other themes just to highlight. One, I think, is we're going to see more history, like more history and tradition. And the best part of invoking history is that no one on this court actually is trained as an historian. So this is going to be fantastic.

I think we're going to see more selective invocations of history. So, you know, when Justice Thomas writes the opinion overruling Grutter and ending affirmative action in higher education, we're going to have this whole history about how the consideration of race itself is racist. But we're going to miss the whole history of how the Equal Protection Clause is actually drafted and ratified in the wake of a civil war fought about slavery and indeed, the racist act of owning people. And we're not going to hear anything about that. So I can't wait for that, like the perversion of history that we're going to get. Chef's kiss. I think we're also going to hear continued discussions of the court's legitimacy, perhaps by the justices themselves, but even by others. before a select committee of Congress about her text messages to the chief of staff of a former president during what was apparently an effort to overthrow the results of a validly conducted

election. So what you're saying is only maybe the first time. There was a whole flap with Melissa, unlike the justices is a rigorous historian. This is why she has membership in the Organization of American Historians. So good point. Good point. Abe Fortas's wife had some trouble. I'm Carolyn. I forget what her last name is. And so I actually haven't gone to look

and see if she was before a congressional committee. But I do know that there was some issue with Abe Fortas's wife and whether he himself had engaged in some acts of impropriety during his time as a justice. And I think it was actually what stopped him from being chief. Yeah, no, that's why exactly. So I didn't want to sort of

say broadly, it's the only time it's ever happened, because there may have been this little flap earlier. But I mean, in recent memories, certainly in my lifetime, I don't think we've ever seen a spouse of a sitting justice do this. Although, could you imagine if like Justice Breyer's wife, Joanna, had to go before Congress? Like, no, you can't because it would never happen. Although you just wonder whether if Republicans take back the House or the Senate, they're going to think like what goes around comes around. I'm going to require like poor Patrick Jackson to appear before a Senate committee or something.

Right. Explain why you kissed her on the head when she walked down the steps. Exactly. Exactly. And the socks. Explain your socks. Explain your socks, sir. So in addition to those themes, there are also particular cases we're watching. I'll just put a pin in the Voting Rights Act case, which will preview Merrill versus Milligan, as well as the independent state legislature case, Moore versus Harper. The cases about the availability of remedies that I'm watching are an important habeas case, Joan versus Hendricks, about whether someone who's convicted of something that

isn't a crime or sentenced to more time in prison than the law says they can serve has a remedy for that problem. And then there's an important spending clause case about whether individuals who are beneficiaries or participants in spending programs like Medicaid or whatnot can sue to enforce the conditions on those programs. And that's also an important case to watch that we'll discuss more when it is up for argument. Another big case that I'm watching is 303 Creative versus Alanis. I'm sure we'll all be watching it closely. It's kind of a sequel to the 2017 decision, Masterpiece Cake Shop, which involved a Colorado baker who didn't

want to bake a cake for a same-sex couple celebrating their marriage. This case involves the same Colorado anti-discrimination law that plaintiff here is a would-be web designer who claims she will be burdened by having to design websites on a non-discriminatory basis. Although no one has asked her to design a website regarding a same-sex wedding or any wedding, as far as I can tell. Nevertheless, right, she is arguing that the First Amendment protects her from complying with this generally applicable public accommodations law. And I think that whatever the court does here could have enormous implications for public accommodations laws broadly, right? Like laws that require providers of goods or services who enter the

marketplace to provide those goods and services on a non-discriminatory basis. These are laws the courts have enforced for over a century. A finding for this would-be web designer could have enormous implications well beyond this particular dispute, you know, in terms of our ability to reside together in a diverse and pluralistic society. Maybe the court could rule narrowly, but, you know, it's hard for me to see her winning without starting to unravel anti-discrimination law broadly. So this is a case I'm watching closely and incredibly nervous about. Just to add to this issue on 303 Creative, it's worth noting that this was initially filed as a case dealing with both free exercise and speech, and the court declined

to grant cert on the religious rights question, and instead is sort of thinking about this purely in terms of compelled speech. In avoiding the free exercise question, the court also avoided a broader issue that Lori Smith asked them to take up, and that is whether employment division versus Smith, that 1990 case dealing with neutral laws of general applicability and their impact on religion, is continuing to be a constitutional decision. So perhaps a little restraint from the YOLO court in how they granted cert on this, although they could just simply allude to the fact that Smith has been abandoned, as they have in other places, and just avoid it entirely. But I thought it was really interesting. And to Leah's point about rights without remedies, and this relates to Justice Thomas's concurrence in Dobbs,

whether or not we get a frontal challenge to Obergefell going forward, as Kate says, this case will have real implications for non-discrimination, anti-discrimination measures. And again, it may be the case that you can marry a person of the same sex, but you just can't go out in public with them or can't expect to avail yourself of services that are generally available to the rest of the public. Let me flag briefly two kind of lower profile cases that I'll be watching this term, SEC versus Cochran and Axin versus FTC. These are two administrative law cases, both involving administrative law judges. And they're both about your ability to challenge an enforcement proceeding that is ongoing. So, right, it hasn't ended and you haven't been fined or had some final disposition,

but whether you can challenge kind of midstream in order to allege a constitutional defect in the scheme. And the constitutional defect that the parties in both cases are alleging is that these removal limitations for both SEC and FTC administrative law judges are unconstitutional. So there's like threshold reviewability question, but the substantive constitutionality question about whether these positions of ALJ are constitutional has the potential to kind of further advance the project of a bunch of different cases that we've talked about on this podcast, including maybe most importantly, Selah Law. And that's a project that is basically

extremely skeptical about agency independence and basically emphasizes the importance of the president controlling everyone and everything inside the executive branch, right? Valuing that idea of presidential control much more than Congress's authority to design agencies in ways that are sometimes novel, right? C.C. Leah, who's written about novelty, but allowing Congress to respond to new and developing problems and needs, right? The court seemed to really undervalue that principle in the Constitution and to overvalue, I think, presidential control. And so I think these cases have the potential to kind of further advance that project. Some other cases that we're following, obviously, everyone is, of course, following the two cases concerning affirmative action,

students for fair admissions versus Harvard and students for fair admissions versus UNC. The two cases raise two very different but related sets of issues. The Harvard case deals with the statutory challenge to the use of affirmative action, race-based affirmative action in higher education admissions. The UNC case deals with whether the Equal Protection Clause permits public schools like the University of North Carolina to consider race as part of its admissions processes. I think we all know how this is going to turn out. I mean, I'm sorry if I'm like a total pessimist. But again, this this issue was taken up by the court in 2003, a very different court, a five to four court in which Justice O'Connor joined the liberals to uphold the affirmative action to write the decision overruling affirmative action and Grutter in a way that isn't like Dobbs, where it's like, huh, we just looked at this a couple of years ago in 2003. And now it's totally different. And what else is different? The whole composition of this court is different. So I think if they want to avoid legitimacy

questions, it's going to be, you know, they're gonna have to really contort themselves to write a decision that looks law and not vibes. And I'll be eager to see how they strike that balance. But I do think this is a done deal and affirmative action is going to be over. The real question, I think, going forward is, you know, it's going to spark a lot of litigation because this is focused on admissions, but obviously the use of race and other kinds of protected characteristics factors into just the operation of many institutions of higher education. And that will be an ongoing question. Another set of cases to flag for you, Brakeen v. Holland, which is four consolidated cases, all concerning the constitutionality of the Indian Child Welfare Act. That's a federal statute enacted in 1978 that does, among other things, establishes minimum standards for the removal of Native children from their parents and their families and establishes a preference for Native children who are removed from their homes to be placed

with extended family members or in Native foster homes. And the question in this case is whether these provisions of ICWA that prescribe these minimum standards, impose placement preferences, and record keeping requirements for child welfare proceedings involving Native children violate the anti-commandeering principle of the 10th Amendment, and whether they violate the Equal Protection Clause. And so sort of undergirding question here is whether Native status is a political category, as it has always been viewed as, or whether it is a racial category, which would be a very novel new determination from this young and restless court.

So maybe now we can talk about the specific cases that the court is going to hear the first week of this new term. So during the first week, the court is going to hear a major challenge to another administrative agency and the authority of the regulatory state, that case is Sackett v. EPA. So this case also continues, the court's steamrolling over the jurisprudence of Justice Anthony Kennedy. All the while, you know, Justice Kavanaugh gaslights us that he has the utmost respect for the justice and all of his opinions. Now, the question in this case is specifically about the EPA's authority under the Clean Water Act and how to determine whether certain wetlands are, quote, waters of the United States that the EPA can regulate. You know, last term, the court kneecapped the Clean Air Act, but why just stop there, right? Just do it all, YOLO, right? Like, yeah. The background here is in a

prior case, Rapa Nos versus United States, a majority of the court said that wetlands were regulable under the Clean Water Act. So kind of the math here is a little complicated, but bear with me for a second. So Justice Scalia wrote the plurality opinion in that case, and he concluded that wetlands were only regulable, right, the EPA could only regulate them if they had a continuous surface connection to bodies of water, like rivers or streams. So that was a very narrow view of the EPA's authority. Who's the real riparian here? I'm sorry. I couldn't help that. Sorry. Water-related, water-related for folks who are not steeped in the language. Yeah, so that is riparian. Inside joke. Sorry. Yes. That's not an inside joke.

I'm sorry. But there are probably listeners for whom riparian is not like, you know, a term that comes up all that often. Yes, no, I'm sure. That still does not make the use of the word riparian an inside joke. Who's the real riparian? You know where it's coming from. Just as Scalia is the real riparian. All right. Focus, people. All right. Focus. Okay, so back to this 2006 case. So Justice Stevens, in dissent, for himself plus

three others, so writing for four justices, took a very broad view of when wetlands could be regulated. And then Justice Kennedy wrote separately to explain that wetlands could be regulated if they had a, quote, significant nexus to more traditional navigable waters. So the Justice Kennedy opinion was the controlling one. So if you take the Kennedy opinion plus the Stevens opinion, that's five votes for the EPA having the authority to regulate at least where there is a significant nexus to more traditional navigable waters as compared to the really restrictive Justice Scalia vision of the EPA's authority. But here, the plaintiffs are basically asking the court to jettison the Kennedy test in favor of one that would make wetlands, surprise, surprise, much less subject to regulation. So they basically are asking the court to adopt the Scalia view that wetlands can be regulated only if they have a continuous

surface water connection to navigable waters. This would significantly limit the EPA's authority to regulate under the Clean Water Act. And the stakes here are really high. The EPA basically says that wetlands play an essential role in protecting, and I'm quoting from the Solicitor General's brief here, the chemical, physical, and biological integrity of neighboring waterways, including by filtering pollutants, storing water, providing flood control. So deeming those wetlands outside of the regulatory purview of the EPA would have significant compromising impact on the EPA's ability to protect water. And like what the EPA has done over the last half century to, you know, water quality has been absolutely transformational, right? Like you can swim and you can fish, you can drink like waters in this country that 50 years ago were, you know, just like absolutely polluted disasters.

Not in Jackson, Mississippi, Kate. Right. No. So considering the kind of serious water problems we have right now and flooding and sort of related issues to further kneecap the EPA at this moment would, I think, be potentially quite disastrous. And yet that is what these plaintiffs are seeking. Let me get this right. The petitioners are seeking yet another deregulatory slash anti-regulatory, anti-environmental ruling. And I'm guessing they're probably going to get it. Pour one out for the climate. Pour one out for the planet. Yeah. I will briefly just mention two smaller cases the court is hearing the first week of arguments. The first is an original

jurisdiction case, although not one involving riparian rights. Unusually, typically they do. But this is a case, so original jurisdiction cases are cases that are filed in the first instance in the Supreme Court. So if you're a state, you actually just file your complaint in the Supreme Court. You don't start in the lower federal courts like most people do. And the question in this case, Delaware versus Pennsylvania and Wisconsin, is whether MoneyGram official checks are a money order, traveler's checks, or other similar written instrument on which a banking or financial organization is directly liable. So the case is just about basically a dispute between states over which state can claim certain abandoned property, whether it's Delaware, where MoneyGram is incorporated, or the states where the MoneyGrams were purchased.

I kind of love this case. I kind of love this case. It's so petty. Honestly, I would prefer the court heard more of these kinds of cases. That would be a great use of its time. I just love that Delaware is like, give me all the abandoned money grams. I'm ready for this. Well, maybe this is like the anti-Texas move. Instead of Texas basically filing suit constantly in the Fifth Circuit or the district courts of the Fifth Circuit and occasionally directly in the Supreme Court, states that are not Texas can start filing suits that could occupy the Supreme Court in ways that are much less damaging and destructive than what they would otherwise get up to. Okay. Anyway, other case from the

first week that we thought we would just briefly mention, the court is hearing Arellano versus McDonough, which is a case about whether the one-year statutory deadline for seeking retroactive disability benefits from the VA is presumptively subject to equitable tolling. That is whether it can be forgiven depending on the equities of the case. So these are just like getting limber kind of cases. These are not big dogs, right? This is like hydrating, stretching, because Leah, what's the big case this sitting? The court is starting out the first week of the term with Merrill versus Milligan, which I think is the biggest Voting Rights Act case since the Supreme Court heard Shelby County v. Holder, the case where the court dismantled the preclearance regime of the Voting Rights Act, Section 5,

assuring us we didn't need Section 5 and the preclearance regime because we had Section 2. Well, this case pointedly asks whether Section 2 of the Voting Rights Act is going to continue to exist as we know it, and it will be argued by former strict scrutiny guest Dewelle Ross, along with several other terrific advocates. But that is the good news. It's kind of all downhill from there. So Section 2 of the Voting Rights Act prohibits election practices that result in a denial or abridgment of the right to vote on account of race. And Section 2 is often used for vote dilution claims. Vote dilution refers to instances where legislators draw districts in ways that dilute the voting power of some groups.

And Section 2 is concerned with drawing districts in ways that dilute the voting power of racial minorities. So let's unpack for a minute how vote dilution claims work. So we have talked on the show before about partisan gerrymandering, which is where legislators draw districts crack the members of that same political party by spreading them out into different districts to ensure that they will be in the minority in those districts and won't be able to elect the candidate of their choice. And when that happens, a political party can win a majority of districts, even though they lose a majority of the votes in a state. So democracy. Like I said, is it constitutional? Probably not. Probably not. And in addition to partisan gerrymandering, where districts are drawn

in ways to advantage a political party, there can also be racial gerrymandering. And racial gerrymandering occurs when legislative districts are drawn in ways that dilute the voting power of racial minorities. And this occurs in very similar ways, right? Through packing or cracking, a legislature might break up voters of color into as many districts as possible, ensuring that they are a minority in all of those districts, which prevents them from selecting candidates of their choice and having political power and political strength that is roughly commensurate with their representation among voters. Or they could be packed into a single district and then

spread out elsewhere. So there could be, say, one district with a majority of, say, Black voters, where their population-wide numbers would suggest that there would be like two or three majority Black districts. And to be clear, racial gerrymandering, which the court has determined to be a justiciable issue, and partisan gerrymandering, which it's determined has not a justiciable issue for federal courts, sometimes overlap in interesting ways, because quite often race and political preference or preference for a particular political party will coincide. So sometimes it's hard to tell whether you're partisan gerrymandering or doing racial gerrymandering at the same time. So a little cagey there. But Section 2 of the Voting Rights Act and vote dilution claims under Section 2 is designed to prevent all of this and specifically to identify those instances where legislatures could easily have drawn districts in ways that resulted in voters of color. So again, imagine a district where a legislature

cracked voters of color into many different districts so that there's no district or fewer districts where voters of color could likely put together a majority or a majority coalition. And that's essentially what happened in Alabama. Black Alabamans constitute over 27 percent of voters in that state, but they can only elect the candidate of their choice in one of seven districts, 14%. And given the demographic breakdowns where Black Alabamans live, it would have been very easy for there to be a second district where Black voters could have elected the candidate of their choice. And the plaintiffs here claim that the state's plan created one rather than two

minority opportunity districts by dividing, cracking the Black population in the southern half of the state amongst several different districts. And this case, like lots of others this term, implicates the role of precedent and stare decisis. So Thornburg v. Jingles, which we've mentioned on the show previously, is the foundational vote dilution case. And there the court described a vote dilution claim as a claim that a certain law or practice or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives. So Jingles identified three preconditions to this sort of vote dilution claim. So one, that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district. Two,

that the minority group is politically cohesive. And three, that the white majority votes sufficiently as a bloc to allow it to usually defeat the minority's preferred candidate. So if these preconditions are satisfied, the court has to then go on to assess the totality of the circumstances to determine whether a districting scheme leaves minority voters with less opportunity than white voters to elect representatives of their choice. So the state's lead argument in Merrill v. Milligan is kind of straight up, like, let's just do it and be legends in the sense that it would formally kill vote delusion claims under the Voting Rights Act. The state says in order to establish a violation of Section 2, a plaintiff must show that the state's enacted plan can be explained only by

race and racial discrimination, but that would require the plaintiff to prove intentional discrimination. And yet the Voting Rights Act was enacted to provide protections against unintentional discrimination. This provision of the Voting Rights Act was enacted in response to a Supreme Court decision that said only intentional discrimination was unlawful and the Constitution independently prohibits intentional discrimination. So the Voting Rights Act was supposed to go beyond that. And in fact, they would actually make it even harder to establish intentional discrimination under the Voting Rights Act than it is under the Equal Protection Clause. Like it just truly makes no sense. The state's alternative argument is where

all of the action likely will be in this oral argument. It's also the one that they featured at the stay stage. This is one of those cases where the court put on hold a lower court decision that found a violation of the Voting Rights Act. The state's argument is that to satisfy the first Jingle's precondition, a plaintiff must show the minority group is sufficiently large and geographically compact to constitute a majority in a neutrally drawn plan. And by neutral, the state means without regard to race. So the state is basically saying, look, you have to show that a state would have drawn another district in which voters of color would be in the majority or majority coalition without ever considering anyone's race.

Like show that a map drawn only by considering things like contiguous territory, natural boundaries, municipal lines or whatnot would have resulted in another majority minority district. And this is wildly inconsistent with precedent. The court has held that satisfaction of the first jingles precondition requires a plaintiff to show that its proposed districts, right, i.e. it's the proposed districts where voters of color would be part of the majority coalition, are reasonably compact and are otherwise reasonably configured. But it has never suggested that a plaintiff has to proffer districts that have been drawn without any consideration of race, right? Experts in these cases have understandably always drawn districts with a goal of showing there are compact, sensible, alternative districts in which voters of color would be in the majority. But they're not sitting down generating random maps and asking whether like a random map drawing simulation or software would produce a majority minority district. Again, who's the real racist here? Obviously, the black Alabamans who want to vote. Right. Who would like to elect someone with their... This was why I said it was the term theme, right?

Now, the reason why this argument is where the action is likely to be follows from a couple of things. So a majority of the court likely, probably, definitely views any effort to create a majority minority district as constitutionally suspect, if not per se unconstitutional, when drawn by a legislature. And so they'll probably say, look, requiring plaintiffs to draw or to use race neutral means prevents Section 2 from considering race in the redistricting process. Because as we all know, this court does not see race because our Constitution is colorblind. Drink. But this too. That ginny tonic hits the spot.

But this too would basically turn Section 2 into effectively reaching only intentional discrimination. Since the court would be requiring plaintiffs to show that but for race, the legislature would have drawn another set of districts. So that's not really the law after. It's literally what this amendment to the Voting Rights Act was designed not to do to respond to the Supreme Court. It's not the law, but this is the vibe. This is the vibe, Kate. The vibe is don't be the real racist, Kate, by considering race at all. 1982 Congress was the real racist, right?

Yes. And allowing these effects tests to be used. And Chief Justice Roberts is the modern day Thurgood Marshall. Think about that for a second. Yes, that's right. Yeah. The implications of this case are huge. And the Federalist Society is LDF.

Oh, God. Excuse me while I bomb. Drink. Drink. Yeah. Wow. The implications of this case are huge. They are about the representation of, you know, voters of color in the political process and the future of a multiracial democracy.

You know, the Voting Rights Act is what made this country into a democracy. And the case, Meryl, is about whether Congress can prohibit racial gerrymandering, or I guess whether some sort of racial gerrymandering is like constitutionally permissible or maybe required. You know, this is why, like I joked that a term theme is whether democracy and multiracial democracy is constitutional. But this case is about the rules for conducting elections, like what makes elections democratic, what makes a democracy a democracy and the rules about how political power can be obtained and should be obtained. And, you know, this term is just in

time for spooky season. and it's fucking terrifying. We've already gotten rid of partisan gerrymandering. We left that to the states and state courts, but they probably can't do anything because this independent state legislature theory fan fiction that we're going to bring up this term too. And now we're going to get rid of racial gerrymandering and not hear those because we're not real racist. So basically, we're on a full on press to distort the F out of democracy, just like break it all down. Let's just to be really clear, when we say we got rid of, we mean we invited all of it. Right. So we got rid of our ability to the populace to actually translate their desires to representation and policy. Like, it feels pretty tenuous.

But they just literally said that abortion rights should go back to the states for democratic deliberation. Are you saying that that was all a farce, Kate? Could there be a connection between these two things? Could there be? Could there be? My dog was so terrified, she just insisted on leaving the room.

I saw it, she fled. Yeah, she fled. She was like, I will like i will opt out take us with you stevie please thank you so now to the court adjacent news um new segment alert uh sammy charlito and the yololets that is like what is happening in the lower courts following the supreme court's lead uh How about Yolitos? Okay, that one works too. Yolitos also works. Speaking of Yolitos, when we speak of Yolitos, we can only be looking at Texas, or at least principally at Texas. There was another notable ruling out of Texas. So let's discuss Judge Reed O'Connor's invalidation of the Affordable Care Act's preventative coverage requirement for PrEP drugs.

So PrEP drugs are pre-exposure prophylaxis. These are drugs that individuals take in advance of sexual intercourse to prevent the transmission of HIV AIDS. And so he said that the ACA cannot cover these drugs on the ground that requiring health insurance for them facilitates homosexual behavior, that is a quote, and violated the religious liberty rights of employers who object to LGBTQ equality and homosexuality more generally. So this case highlights the looming challenge to other constitutional rights. That, again, is clearly in the wake of the court's decision in Dobbs. Don't tell Justice Alito, but definitely look at Justice Thomas's concurrence there. And again, this is a strong start from the Yolitos.

Judge Reed O'Connor is a big Yolito. So he is the judge who struck down the Affordable Care Act, also the Indian Child Welfare Act, as well as several Obama era regulations. And he also apparently was on the Federalist Society speaking circuit where he gave a presentation entitled The Future of Religious Liberty. And I guess this is the future of religious liberty. Sometimes when I read Reid O'Connor opinions, I think, is this Sam Alito's substack? And it's a thought that's crossed my mind. He literally is just like Sam Alito with like a trench coat on. And that's actually Rita O'Connor.

So in addition to siding with these employers' religious liberty objections, the opinion also finds that the individuals on the task force that recommended that this PrEP drug be covered were what are known as officers of the United States. These are part-time unpaid volunteers, but the opinion nevertheless found that they were both officers of the United States and indeed principal officers, so had to be appointed by the president and confirmed by the Senate, which is honestly madness. It's a mess. It's a mess. But that's also in Sam Alito's substack, a.k.a. Reid O'Connor's opinion on this matter. Judge O'Connor did not stop there, though.

So he had another doozy this week where he granted a temporary restraining order lifting a student's suspension for sexual assault. And this is noteworthy because the student actually admitted to being a rapist. But O'Connor said that the process was flawed because of gender bias. And I just want to emphasize, the student said in the proceedings, quote, it was difficult for me, hearing that I am a rapist again, but it is true, and I am very sorry, end quote. The judge said that the hearing was biased because one of the co-chairs of the proceeding had written something about how men are more likely to act in certain socially improper ways and, for that reason, acquitted the student of a second incident. All right. So in more fallout from the last term, we wanted to discuss Coach Kennedy's

adventures post-Kennedy versus Bremerton School District, a big case from last term. This was a case about the praying football coach. Recall that in that case, the coach argued that the school couldn't fire him for coercing students into prayer. And we use that phrase considerably because those were the allegations in the case and those were the facts as dutifully recounted in Justice Sotomayor's excellent dissent. But not in the majority opinion by Justice Gorsuch. Conspicuously absent from the majority opinion by Justice Gorsuch,

which characterized the facts really differently. Private prayers. And it turns out in somewhat suspect ways. So after his big victory, the coach got reinstatement papers from the school, and while school started, was instead, rather than actually resuming the job he claimed to really wish to return to, was instead up Alaska, meeting with former Vice President Pence, receiving engraved rifles at the American Legion Convention. As one does. And remember, the school district here had argued that this case was moot, that the court shouldn't decide it because there was no justiciable issue, because the coach, although he had been put on an administrative leave, did not appear to want his job back. And the fact is, the court didn't address this or didn't seem bothered by it at all. And yet the

facts have unfolded in ways that seem to bear out the school district's account of things. He is in Alaska. He is not trying to coach football anywhere. And so again, it really raises questions about whether the majority played fast and loose with the facts and indeed ignored facts that were inconvenient to its preferred understanding of this case. And Coach K, Coach Kennedy, not Coach Kavanaugh, Coach Kennedy responded, where else, on Fox News in an op-ed basically saying that we're trying to work it out so I can be back next year. But until then, until we work it out, I'm going to be on the conservative speaker circuit and getting rifles and whatever else one gets when one is on that circuit. So that's the fallout from Kennedy versus Bremerton School District. NYSERPA v. Bruin, the major Second Amendment case in which the court basically told lower courts to just, quote, do some loose originalism when assessing a Second Amendment challenge. And so here, a district court just did some originalism and declared unconstitutional a federal law that prohibits people who are under indictment for certain crimes from possessing guns. The person in this case had been indicted for burglary and jumping bail. And this is what happens when

originalist hotboxing is the law of the Second Amendment. For those of you who couldn't make it through the difficult audio of last week, originalist hotboxing is where a judge goes into their chambers, closes the door, rolls up the windows, tokes up on Federalist papers, and just asks themselves what the vibes are and does that. I'm just staring in Justice Scalia in Heller because this had been addressed earlier. Known squish, Justice Scalia. That's kind of where we are, honestly. That is kind of where we are. Rhino!

Like, obviously, liberal squish. It's so bleak. Oh, it's so bleak. All right. Well, so let's try to take a turn. I don't know if it's a happier turn exactly, but a turn of some sort, which is that we said, what's that you say? So we said that we would wait until Melissa was back to really discuss

Ginny. So here we go. Right. So has Ginny Thomas been up to anything since we last recorded, as we alluded to at the outset of this episode? Yes, she has. So what have we learned about Ginny's activity since we all gathered to chat? Well, we learned from the

Washington Post that Ginny Thomas, in addition to sending text messages to Mark Meadows, was also pressing lawmakers to overturn Joe Biden's victory, not just in Arizona, but also in Wisconsin. So two pretty big swing states. Weird, I guess. And we also know that the January 6th committee has reached an agreement for Mrs. Thomas to be interviewed. So yes, Virginia, there is a special committee. So she was interviewed last week. She had prepared a statement reiterating her belief that the election was stolen. Super curious if she also repeated the bit that Joe Biden was about to be off a barge off Guantanamo Bay awaiting trial for treason. Like, I appreciate her commitment to this, whatever it is, before a congressional committee.

So that's something. So she also apparently insisted during this testimony that she never discussed politics or any of her post-election activity with her husband. Good enough for me. All good here. And the interview. Right. I mean, look, we can stipulate that every relationship is different. We don't know anything about their internal dynamic. And I don't want to give the impression that wives are just simply appendages of their husbands and they don't have independent thoughts. But this is a couple. They do have independent thoughts, which they share and talk about. It is just totally, yes, it is so implausible to me, crediting her as an independent

actor with lots of thoughts and activities, many of which we have learned about in the last few months, that she was this convinced that the election was stolen, working this hard by phone, by email, who knows how else, to lobby every government powerholder that she could find to do something about this theft, and yet never mentioned it to her husband. It's just not credible. Ginny, who are you on the phone with? Just some folks in Wisconsin. Exactly. Like, what did you do today, Ginny? Made a couple of phone calls, wrote some text messages to Mark Meadows. Do you know him? Exactly. I mean, but seriously, like think about when you ask someone,

how's it going? Or how are things, right? I'll usually say something and then say, well, despite the creeping risk of fascism that we are facing, right? Because like people talk about what is happening in the world around them, particularly when they care about the future and fate of our country. Say what you will about Ginny, but she clearly cares. She cares. Maybe she just cares but she clearly cares. She cares. Maybe she just cares a little too much. Too much. That's like if Ginny Thomas was doing an interview. What's your weakness, Ginny?

I care too much. But back to serious business. So we do need to rename our recurring Ginny Thomas segment because when we were doing this, you know, last spring, et cetera, Ginny Tonic was the drink of the summer that Melissa coined. Yeah. Yeah.

But it's not appropriate right now. No, we're in the fall. It's not appropriate. I think for Ginny Thomas cocktail hour slash sweater weather, it's got to be a hot Ginny Toddy. What do you think? It's decorative gourd season. It's decorating. Pour yourself a hot Ginny toddy what do you think it's decorative gourd season pour yourself a hot ginny toddy and send a few emails text form text like form text remember these were just

mailed out mass texting this is not anything specific yeah but don't talk to your spouse definitely don't talk to your spouse about the treason that the presidential elect. Make sure there is a wall between your different workplaces. Yeah. Speaking of those workplaces, the other side of that wall. week we talked about the public remarks from Justice Kagan and the Chief Justice about the legitimacy of the court and the relationship between public opinion and the Supreme Court. And the reply guy on the Supreme Court, Sam Alito, decided to chime in and come for Justice Kagan. He's really functioning as just Chief Justice Roberts' anger translator, I think.

Sam Alito is a messy bitch who loves the drama. Because in a comment to the Wall Street Journal, Justice Alito said, quote, It goes without saying that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line. I mean, guess what, friend lines have been crossed and not just by Justice Kagan. Like the whole country has crossed a line, friend. Like maybe your opinion in Dobbs crossed a line,, right, a Supreme Court justice just emailing some comments to the Wall Street Journal crosses the line. I feel like we're like one week away from Sam Alito emailing the Wall Street Journal with some thoughts about

Lizzo playing like Madison's flute and like, you know, wanting his comments on that included too. I mean, his... I feel like half the people who complained about that never knew James Madison had a crystal flute to begin with. No, of course not. Of course not. Or that Lizzo was an accomplished flautist. Oh, everyone knew that. No, no, no. She's always played the flute. Of course we knew that.

But do you think the people complaining about it do? Yes. No, I don't think. I think a lot of people didn't. I mean, they would have complained anyway. I'm not saying they... But I think they somehow genuinely did not realize that she is a trained classical flattest. Yeah. In addition to being incredible at everything else. So Sam Alito's position is basically it is always improper, unfair, and now apparently a breach of constitutional norms for anyone to criticize him or question his decisions. Like he views voicing concerns about the court as a transgression. This is like big monarchist vibes, I have to say. I mean, I feel like King Charles might be on this tip, like mostly with regard to pens and other writing implements,

but maybe also just general criticism. They do have a similar vibe, don't they? I think so. Look, but to reiterate something that we mentioned last episode, lots of Republican appointees on the court have seen, you know, very fit to question the legitimacy of the court when they disagreed with the court's ruling. So it's a little rich for Sam Alito right now to be saying it crosses some, you know, heretofore, you know, never crossed line to be criticizing the legitimacy of the court.

And you guys said email. I mean, I'm so curious how he got this comment to the Wall Street Journal. First of all, it's telling that he picked the Wall Street Journal as the outlet to which he wanted to give this comment. But I'm just like, I thought he might have picked up the phone and just called someone. You guys think he emailed? Told someone at a cocktail party, like, run this? Maybe that was it. Yeah. Like, he knocked back another one of those drinks and just shot off an email. I mean, okay, that's, that's my work. That's how you think it went down? Yeah. Okay. I mean, I think it just goes to show like, not even the justices are over last term. So if you're not over it, either, you're in good company. Indeed. So to wrap up, maybe time to underscore that the YOLO court, it's a thing now. Like, it's definitely a thing because –

I mean, we coined the term and Leah coined the term. But, I mean, we really have to give props to the court for running with it. Exactly. They've made it, like, really take off. I mean, they're like, Leah, whatever you're throwing, we're catching. So Nina Totenberg, NPR correspondent and former strict scrutiny guest, appeared on Stephen Colbert's show to discuss her book, Dinners with Ruth. And she said, quote, one scholar calls this the YOLO court. And I appreciated that. That's all I'll say.

I mean, I like it when you get your flowers, Leah Lipman. And you deserve this one because you definitely put that out there. So deserving. And speaking of the Yolo Court and fashion and the fashion of the Yolo Court, listeners, it's here. You asked, we heard you, and we have answered. We finally have our new strict scrutiny merch. It launched on September 29th, and it's so fantastic. And if you're really sad about the court, I can only say two words, retail therapy. Console yourself about this new Supreme Court term that's going to be as bananas as the last one by getting yourself some of our new merch, wearing it for the first day of term.

While all of this is just going to unfold, at least you'll know that you are wrapped up in a gorgeous 100% cotton made for you amazing tee that makes clear where your allegiances lie. No law, just vibes or YOLO cord. And they're fantastic. I haven't gotten one yet. I'm very jealous, but it's coming and I can't wait. You can head to crooked.com forward slash store to check it out. And again, the merch only lasts as long as the merch lasts. So get it while it's hot. And one last thing before we go.

Crooked is bringing you the election coverage you love to hate with Crooked Radio every weekend in October on Sirius XM Progress and on the Sirius XM app. Join our lineup of podcast hosts, candidates, experts, and more, including strict scrutiny, as we break down all the issues that matter this November, dive into the conversations shaping our current political climate, and give the only 100% correct opinions in politics. You don't want to miss this. Subscribe now and get up to four months of Sirius XM. Can I add one more thing? Yeah. You do it. YOLO, right? You only live once.

You only podcast once. So we love seeing our strict scrutiny listeners out in the wild. And I really had the pleasure of meeting at a picnic last weekend. My new friend, Miles, who is the proprietor of Bubbles and Brew, which is like a mobile Prosecco Sauvignon Blanc Merlot-like thing where wine comes out of taps. It was amazing. I loved it. Just a mobile wine truck.

And Bubbles and Brew was at this mom's picnic that I attended. And I met Miles, who is a strict scrutiny super fan. So Miles, thank you for the ongoing flowing of Prosecco. You knew that this term was hard and last term was hard. It's just all going to be hard. And you kept my cup flowing. And I love it. Thank you for listening.

And thank you to all of you for listening. We really appreciate you. That's all we have time for this episode. Strict Scrutiny is a Crooked Media production hosted and executive produced by me, Leah Littman, Melissa Murray, and Kate Shaw. Produced and edited by Melody Rowell with audio engineering by Kyle Seglin. Music by Eddie Cooper. Production support from Michael Martinez, Sandy Gerard, and Ari Schwartz, and digital support from Amelia Montooth. You can find us on Twitter at

strictscrutiny underscore and on Instagram at strictscrutinypodcast. Meet us back here next week for recaps of the first oral arguments of the term and bring those drinks. Drink!