Strict Scrutiny - How SCOTUS is Making Project 2025 a Reality

Episode Date: September 15, 2025

Our fearless hosts continue to slog through this sh*tty shadow docket summer, covering an order from the Court okaying racial profiling by ICE officers, some ominous administrative stays, Amy Coney Barrett’s ongoing press tour through right wing media, and the lower courts’ continuing frustrations with this Supreme Court. Then, Leah and Kate speak with special guest Symone Sanders Townsend, co-host of MSNBC’s The Weeknight, about how the Supreme Court is carrying out key parts of Project 2025, and enabling and facilitating other parts of the government to do the same. Hosts’ favorite things:Leah: The Guatemalan Children’s Case and the Judicial Learning Curve, Anna Bower (Lawfare); What Should a Lower Federal Court Judge Do When SCOTUS Plays Calvinball? By Michael Dorf (Dorf on Law). Kate: Bonus 177: A Closer Look at Justice Kavanaugh's ICE Raids Opinion, Steve Vladeck (One First); Zohran Mamdani’s ‘Stop Sending Us Money” TikTokMelissa: “Trump’s Treasury Secretary Threatens to Punch Housing Official in the Face,” Maggie Haberman and Shawn McCreesh (Washington Post) Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 10/4 – ChicagoLearn more: http://crooked.com/eventsOrder your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesGet tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.comFollow us on Instagram, Threads, and Bluesky

Struck scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting some precedent, shattering norms, and dropping a few billion. The same people in groups that back Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and our lives. Church state separation is the bulwark that blocks their agenda. One of the last bastions of church state separation is our public. school system. So they are pushing vouchers everywhere. They're arguing for religious public schools.

Yes, you heard that right. Religious public schools. And they're arguing for it at the Supreme Court in a case that we talked about just this year, St. Isidore. If you're listening to us, you're already seeing the writing on the wall. You know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement because church-state separation protects us all. Learn more and get involved at A.U.org forward slash crooked. Mr. Chief Justice, please support. It's an old joke, but when I argue, 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. or fall next. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are your host today. I'm Kate Shaw. And I'm Leah Lippman. And because it's just the two of us, you might not want to have this on 1.5 speed or higher.

So... One point two might be tolerable. But maybe. Maybe. I'm going to get pretty amped, my guesses. But it's still summer pumpkin spice season, meaning the Supreme Court is in summer even though it's fall. So we will be covering legal news before we share a conversation we had with the wonderful Simone Sanders Townsend, host of MSNBC show The Week Night. That's a great crossover. But we talked about a craptastic one, and that is the crossover between the Supreme Court October term 2024 and Project 2025. On tap for the news, we have the latest. atrocities of the shadow docket and the atrocity that is Brett Kavanaugh's legal reasoning, as well as Barrett's fairly atrocious book appearances, and then the continued evolution of the relationship between the lower courts, the Supreme Court, and the administration. And we are recording this episode on Friday, so two days after conservative activist Charlie Kirk was brutally gunned down during a speaking event in Utah during the days since his murder,

the president, who the Supreme Court has spent the summer handing more and more power. to, has blamed those on the radical left and pledged retribution, which is literally the most dangerous and destructive thing a national leader can do at a moment like this. And they have arrested the person who allegedly shot Kirk, a 22-year-old white man, who grew up in a seemingly Republican household with guns, and who loaded a gun with phrases revealing someone who was deeply online and into online trolling. It was just a lot to see the violence play out amidst the easy availability of guns and online radicalization and misinformation while leaders and their allies whipped up hate against vulnerable groups and commentators valorize

and whitewash those who do. And seeing some of the coverage of this play out, you know, reports that unthinkingly parroted and then did not retract efforts to blame trans people for Kirk shooting, others that seem to almost create a permission structure for violence and targeting of Democratic leaders and progressives, it was terrifying. I was genuinely shaken. the morning after on Thursday when I went to teach. So I wanted to acknowledge this because I'm sure some of our listeners were quite shaken as well. But onto our regular programming, it is still shitty shadow docket summer. So that means last Monday, before it was even noon on the East Coast, the court released two significant orders on the shadow docket. One, clearing the way for some of the

Trump administration's more chilling exercises of immigration enforcement authority, and the other clearing the way for this court to continue to favor this president over actual precedent. And that was just last Monday. So the court released an unreasoned. And yes, we are including Brett Kavanaugh's writing in the category of unreasoned, an unreasoned order staying a lower court decision that had restricted the administration's plainly illegal immigration law enforcement in L.A. The court's order cleared the way for the administration to round up question and detain almost half the population of Los Angeles and potentially beyond.

So we're talking about the order in Nome versus Vasquez-Perdomo. And that's the case in which the Supreme Court said or functionally said, because it actually didn't say anything, that racial profiling is actually constitutional now. So this case grows out of the immigration raids that started in Los Angeles earlier this summer, basically roving patrols of federal officers, questioning people, detaining them, and then possibly sending them to immigration facilities. for further detention. We have likely all seen pictures of ICE officers

doing things like showing up at home depots and just trying to round up day laborers and evidently anyone they thought was a suspicious shade of brown. And the immigration stops and detentions were challenged in federal court and a federal district court issued a detailed opinion containing many findings of fact

based on actual evidence presented in court about what was happening in Los Angeles, including how ICE officers were rounding people up based on their skin color and shoving them into immigration detention and processing facilities where they were kept incommunicado in deplorable conditions for extended periods of time. And because the district courts of this country are places where things like facts and evidence still matter, the district court issued an injunction that said the government cannot stop individuals based solely on these factors or a combination of them. Their apparent race

or ethnicity, whether they spoke Spanish or an accented English, the type of location at which they were found, like a car wash or a bus stop, and the type of job they appeared to be working or seeking. And this case obviously concerns the Fourth Amendment to the Constitution, which requires the government to have what is called reasonable, articulable, particularized suspicion before it can even stop someone, much less arrest, detained, and deport them. So reasonable, articulable, particularized suspicion requires the government to show there is a reason to think a particular individual is in violation of the law. And the criteria that the government was using, the ones the district court found the government

was using, like skin color and where individuals are working or looking for work, are not criteria that are remotely particular to individual people, right? Some of the criteria described in this litigation applied to almost half of the population of Los Angeles. So these criteria don't distinguish U.S. citizens from immigrants who are in the U.S. with legal authorization from people who are in the U.S. without legal authorization. People in all of those categories might have brown skin, might speak Spanish, might spend time at home depots. And that's who ICE was indiscriminately rounding up, conducting these suspicionless questionings and arrests in these

roving patrols of immigration officers. And the Supreme Court did not report to disagree with the district court that this was happening. The court also didn't explain how on earth this would be legal Instead, the court once again issued an order putting on hold a carefully reasoned 50-sum-page district court opinion, which a court of appeals panel in another 50-some-page carefully-reasoned opinion had declined to disturb, with no explanation at all. As Justice Sonia Sotomayor wrote in her powerful dissent for the court's three Democratic appointees, and we're going to return to that dissent a few times during this episode, quote, we should not have to live in a country where the government can seize anyone who looks Latino, speak Spanish, and appears to work a low-age job. rather than stand idly by while our constitutional freedoms are lost, I descend. We've alluded to the Cav Courants, a separate writing from the great concurrer himself, which is the only writing that deigned to offer any explanation for why the district court's decision was stayed. And it was written only by Kavanaugh for himself.

He did not get any other votes for reasons that will probably become clear. Before we kill some brain cells by discussing, said Kapp Currants, we wanted to note the deep hypocrisy of what the court has done here. This is a Kavanaugh concurrence is like the worst kind of brain cell killing because it isn't even enjoyable while you're doing it. No, it's not. No, it's miserable and you get dumber. Yes. Like I award no points and may God have mercy on your soul. Exactly. But on the hypocrisy point that Leah just mentioned. So first, the court went ahead and basically told the government, yeah, if you can round up people based on their skin color. And that court, the court that just did that, is the same court that wrote the actual words, quote, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race. That is one of many lines and modes of circular reasoning

the court used when it limited schools' ability to consider race as a way of integrating institutions of higher education. And the line that I just quoted actually traces back to the parents-involved case. So if I follow the court's reasoning between these two cases, it is intolerable invidious discrimination

to consider race as a way of creating diverse institutions of higher education. But it is completely okay to consider race as you are hauling people off the streets into prolonged detention and possible removal. That is not colorblindness, despite them calling this colorblind constitutionalism. That is white supremacy. And this differentiation or relationship between the two came up in our conversation in the last episode with Professor Justin Driver about his book, The End of Affirmative Action. There are, in my view, also some clear historical parallels between the court's decision on these roving immigration patrols and some infamous pieces of history. One is the Fugitive Slave Act. That was a federal law that effectively

deputized white people to seize black Americans to kidnap them and render them into slavery. And black people who were seized under the Fugitive Slave Act were forced to prove they were freedmen. In other words, that too was an arrest first, prove second regime, also based on skin color. And the other one, of course, is Korematsu v. United States, which blessed the executive branch interning American citizens for no other reason that they were of Japanese descent. And remember, this is the same Supreme Court that during Trump 1.0 insisted that Korematsu was overruled and that if American citizens were ever being rounded up and detained on the basis of race or skin color, well, then obviously this court would step in and do something about that.

Yeah. So let me just read a little bit from Chief Justice Roberts' opinion for the court in Trump versus Hawaii, the case upholding Trump 1.0's travel ban. And I'm not going to read the whole thing, but there are, I think, a couple of choice excerpts that are worth discussing here. So Roberts is sort of indignant that Justice Sotomayor in dissent highlights and compares these facts and this case to Korematsu. So he says the dissent invokes Korematsu and accuses the dissent of just seeking some rhetorical advantage. And then goes on to say, quote, the forcible relocation of U.S. citizens to concentration camps solely and explicitly on the basis of race is objectively unlawful and outlawful and outlawful. outside the scope of presidential authority. But it is wholly inact to liken that morally repugnant order

to a facially neutral policy. The chief goes on to say, quote, that a sense reference to Korematsu affords this court the opportunity to make express what is already obvious. Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and has no place in law under the Constitution.

So I just want to actually highlight something from the first excerpt that I just read. So a friend of the show, Jamal Green, who teaches at Columbia, has a great, very short piece about how actually there's less to that passage than meets the eye. It's a piece in the Yale Law Journal

soon after Trump versus Hawaii. And he sort of says, if you actually read closely, so what Robert says is impermissible, is forcible relocation, U.S. citizens, concentration camps, solely and explicitly on the basis of race. You can imagine a John Roberts

wiggling out from under the weight of that language by saying, well, these aren't concentration camps. This isn't solely and explicitly on the basis of race. It's also language and Home Depot. And it actually sort of, the more you read that language from Trump v. Hawaii, and especially in light of much of what the court has blessed in the last eight months,

the scarier, I think it gets, that the court was as narrow in certain respects as it was in describing what exactly their overruling or purported overruling of Korematsu rules out. And it's not everything. And it actually may leave a lot of space for things like what the court. appear to bless here. Strict scrutiny is brought to you by Cozy Earth. Guess what, listeners? I'm entering my soft girl era.

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strict scrutiny with your favorite soft girl, Melissa Murray. Elevate your downtime with Cozy Earth. And now to Tweedle Dumb. So Brett Kavanaugh offered a concurrence, and it has some listical elements to it. Of course. But we have to go through it because it underscores the lengths, the court, and some will go in order to justify what the Trump administration has done. So let's start with his attempts to do facts. So first, Justice Kavanaugh offers up that when you think about it,

this is all really Joe Biden's fault. So he writes, quote, the government estimates that at least 15 million people are in the United States illegally, many millions illegally entered or illegally overstated, just in the last few years, end quote. There are no citations for these claims, just vibes he may have picked up from Steve Bannon's YouTube channel. Do you notice, as he's describing this crisis, he editorializes, that his unsourced numbers are extraordinary? I mean, it's like, you're not writing an op-ed, my dude, but he sort of maybe thinks he is. Anyway, so he continues, illegal immigration is especially pronounced in the Los Angeles area among other locales in the United States. About 10% of the people in the Los Angeles region are illegally in the United States, meaning about 2 million illegal immigrants out of a total population of 20 million.

What the fuck is he talking about? like especially pronounced in L.A. 10% of the population throwing out these numbers. Once again, zero citations. Like, maybe he's getting this from a signal chat with Stephen Miller. We just have no idea. Yeah. I mean, it's also, so L.A. actually has four million people in it. I mean, he's clearly talking about L.A. County, which gets much closer to 20 million. But I actually don't think these raids are happening all over the county. And he just also has what feel like baseless and incomplete and misleading characterizations of what is actually going on in in Los Angeles in terms of this enforcement effort, once again, the characterizations

lack any citations, and do not even acknowledge the contrary fact findings of the district courts in this case. So this is what Justice Kavanaugh, in his infinite wisdom, says, is actually going on in L.A., quote, the government sometimes makes brief investigative stops. If the officers learn that the individual they stop is a U.S. citizen or otherwise lawfully in the U.S., they promptly let the individual... I'm sorry, I can't even read this last year. I know.

They probably let the individual go. It sounds like what Justice Kavanaugh is saying is what, here's how ICE is operating. They are basically like the fresh-faced greenpiece canvassers you sometimes get flagged down by on the sidewalk, at least in New York City. They want you to make a donation. And if you're like, I'm in a rush, I'm sorry. They smile and say, okay, have a lovely day. Like, that is the picture of ICE enforcement that Kavanaugh wants you to believe is happening in the streets of Los Angeles. You were reading it.

I mean, that is some shitty-ass fiction. Like, sir, this is not a fucking Wendy. like this administration has deported citizens, the evidence in the district court described prolonged detention at immigration processing facilities. But Kavanaugh not only doesn't acknowledge this, he is so sure that his characterization

is in fact the accurate one, this, I don't know, fanfic that he's writing, he says it twice. So I already read one place he says it. He also says, quote, moreover, as for stops of those individuals who are legally in the country, the questioning in those circumstances

is typically brief, and those individuals may promptly go free after making clear to the immigration officers that they are U.S. citizens are otherwise legally in the United States. What universe are you living in? I mean, Justice Sotomayor, who as you noted wrote the dissent for the three Democratic appointees,

you know, absolutely let him have it. She wrote, quote, the concurrence relegates the interests of U.S. citizens and individuals with legal status to a single sentence, positing that the government will free these individuals as soon as they show they are legally in the U.S. That blanks reality, end quote.

And she describes how citizen plaintiffs in this very case, were not treated, as he so describes. Also, people do not walk around with their passports, or their immigration paperwork or anything else, and yet what the court has done is create a state of affairs in which a subset of the population, and not a random one, is going to feel compelled to walk around with some kind of paperwork, lest they be mistakenly sent into some kind of detention. And again, we know that what Justice Kavanaugh described isn't what is happening, in part because of testimonials of people who have been personally swept up in ice raids.

Here is a clip from one of those individuals. I was on my way to work, which I did every day, I cycled every day, and I was arrested by an ice officer and kind of kidnapped, I guess, off the street and taken to Chrome Detention Center. The conditions in Chrome were the most inhumane thing that I've ever experienced in my life. had nowhere for anyone to sleep. They weren't feeding people and they were very abusive to the inmates.

The holding cell that had us in for almost eight days was meant to have 10 people in it and there was at least 100 men. We were like sardines all just stuck on like a concrete, cold concrete floor. I want people to know that it's not just criminals that are being taken. It's like normal everyday people.

Like myself, like I had a correct visa. I had all my paper work together. I had a social security number. I paid my taxes. I've never been in trouble with the police before in my life, either in America or Northern Ireland. And still they took me. You know, I think they're just looking for numbers at this point.

And here's a clip of a news story we're counting a raid the day after the court issued the order. that we are discussing. The Supreme Court lifted the ban and so-called roving immigration patrols. This video of federal agents swarming a car and detaining people at gunpoint was captured in a Van Nuys parking lot this morning.

With weapons drawn, federal agents walked toward the driver's side of this red vehicle in a Van Nuys parking lot. Luis tells us he was in the area when he saw what was happening and began to film. That's when I saw this chaos, guns drawn, everything, was there screaming, like, oh, like, why are you guys pointing guns at us?

They were not doing anything. That's when they got closed. They broke the window. They dragged the guys out. And then the female, she said she was pregnant, but they were just all these guys gang up on her. There is so much wrong with this Cab Courants. We could write a dissertation on it. But we did want to tick through a few additional things before we offer some high-level

takeaways. So, first, Justice Kavanaugh attempts to suggest the court is being consistent here because the court had set aside some lower court. junctions against the Biden administration on matters related to immigration. So, treating all presidents fairly. And in support of that claim, he invokes United States versus Texas, a case about the rescission of the remain in Mexico policy, and also Biden versus Texas on immigration enforcement guidelines. But here is the thing. As I think our friend Steve Flodick was maybe the first to point out, the court, he seems to be invoking the ultimate disposition of those cases,

but the court denied emergency stays in these cases. So the big smoking gun evidence that Kavanaugh offers up to support, like, his big claims, actually point in exactly the opposite direction if we're talking about the court's intervention on the emergency docket. Yeah, Justice Kavanaugh also invoked the court's, I think, infamous decision in City of Los Angeles versus Lyons,

which ruled that a black man who had been placed in a chokehold by the LAPD at a time when the Los Angeles Police Department had a policy permitted. chokeholds could not obtain an injunction to stop that policy because who was to say if he'd be put in another chokehold? And in this case, Justice Kavanaugh says there's no standing because there's just apprehension that the plaintiffs might be swept up in an immigration raid. And I read this and I just screamed in 303 creative when he joined Justice Gorsuch's opinion allowing a fake wedding website designer to challenge Colorado's nondiscrimination ordinance because

she had reasonable enough fears it would be enforced against her. It is also, at the very most generous, Lions is a contested and controversial standing precedent. So to just trot it out, like it's just obviously the governing standard when it comes to standing, sort of brought to mind Justice Alito's invocation of Godaldig versus Ayelo to say there's no equal protection problem with abortion, prohibitions, or restrictions. I mean, they really want to make some of the worst cases ever decided by the Supreme Court. Great again. Oh, yeah. Seems obvious.

Justice Kavanaugh also wants you to know that common sense tells him that racial discrimination is okay. So he genuinely just says common sense supports what he writes in his concurrence here. So these practices are a-okay, according to Justice Kavanaugh, under this court's precedence. And common sense is commonly known as originalism, right? That's what he's doing there? Okay, great, got it. So Justice Kavanaugh also says the plaintiffs in the immigration case didn't need an injunction because they have other remedies available to them in, you know, case they are swept up in these roving patrols.

What, pray tell, are those other remedies, Brett? Because you have joined opinions holding that victims of civil rights violations cannot sue federal officers for damages when the federal officers violate their constitutional rights. So if it's not an injunction and it's not damages, what's left? For now, I guess you can exercise your First Amendment rights to say mean things about them after it happens, if you're lucky enough to be out? Well, that's only if you're a citizen, because apparently now, right, the State Department does not honor the First Amendment. Great point. All right, so maybe you have no recourse at all.

He also characterizes the balance of harms as between the federal government wanting to engage in this kind of profiling, which is apparently super important and compelling, against the interests of people swept up in immigration raids. And the way he balances those harms is by saying that the interest. of the affected individuals is merely, quote, an interest in evading the law, which really calls the question, like, are you Brett Kavanaugh familiar with the Fourth Amendment? It has long been understood to protect the privacy and the person of everyone, no matter whether they are guilty or innocent. That's not an interest in evading the law. It's an interest that we all

possess to be free from unwarranted, unjustified, suspicionless intrusions on our liberty. And and and the plaintiffs in this case are people who were lawfully present. So even on Justice Kavanaugh's reasoning, they would seem to have a pretty weighty interest in not being unlawfully detained, I'd think, but he offers no explanation on this score. Oh, gosh. All right. So let's step back and offer some general thoughts. I mean, the opinion read like policy analysis but bad policy analysis with these weird obvious legal errors, which again, like, raises a question we have posed before,

which is, do his law clerks hate him? Like, they let him do this. And it's got to be really embarrassing for the public to read these opinions. And the people who would ordinarily be shielding him from that embarrassment seem not to be doing that. Yeah, they are not doing great at that job. And it's so bad, I almost feel,

bad for him, like not really, but there's like a pity element as though he's so dumb, he doesn't realize it. And I just want to tell him, show yourself some self-respect and do not share your innermost thoughts with the entire country. Like, it read as a desperate, defensive effort to justify what Kavanaugh was doing. You know, our friend who you've already invoked, Steve Lattick, you know, describe this as Brett Kavanaugh rationalizing what he's done. And to that, I'd add, like, this reads like a guy who wants to convince himself. he's doing law and that he's the kind of judge who's respected by both sides, which was an image he really tried to curate and cultivate for himself as a court of appeals judge. And because he's just

not that smart, this writing works for him. Like, he can convince himself he's doing law, even though it would utterly fail to convince anybody else. So he's like, I'm doing great, sweetie. Yes. Did I use that properly? You did. Yay. I like varied it a little bit. Which demonstrates my mastery. I mean, on a Brett Kavanaugh scale, I guess I'll take it. All right. Well, we've already noted a couple of times, Justice of Mera's dissent. We're going to read two additional passages because it really is very powerful and we encourage people to actually just read the whole thing.

But here are a couple of other choice quotes. One. Quote, the government and now the concurrence has all but declared that all Latinos, U.S. citizens or not, who work low-age jobs are fair game. to be seized at any time, taken away from work, and held until they provide proof of their legal status to the agent's satisfaction. And here's one more. Quote, the Fourth Amendment protects every individual's constitutional right to be free from arbitrary interference by law officers. After today, that may no longer be true for those who happen to look a

certain way, speak a certain way, and appear to work a certain type of legitimate job that pays very little, because this is unconscionably irreconcilable with our nation's constitutional guarantees. I dissent. Yes, there is no respectful or respectfully in there, right? She's not respectfully dissenting and she shouldn't be. Her characterizations of what the court has done call to mind like one additional historical episode, and that is the Supreme Court's decision in Dred Scott v. Sanford, when the court infamously declared that black people could not be citizens because, and here we will quote

from the court in Dred Scott, that was because black people, quote, have no rights, which the white man was bound to respect, end quote. Yeah. All right. So we have been hard on Brett Kavanaugh and his intellect. And we have been inclined to favorably compare to him at least one of President Trump's other nominees, Justice Barrett. But she has not been exactly covering herself in glory on her press tour about her new book. And it has honestly left us wondering if we have just been grading her too easily on the Kavanaugh curve. So to take one example, Justice Barrett is on book tour and she recently appeared on Sarah. Isger's SCOTUS podcast advisory opinions. This is part of her promotional tour, which has really largely involved speaking to conservative outlets and journalists. And as part of her conversation on Sarah's podcast, they talked about the emergency slash shadow docket. And Justice Barrett's defenses of it, I found shockingly poorly thought out. We were texting as we listened to this. And I couldn't believe how thin and unreasoned, the answer should.

was giving were. So at one point, she says, well, courts of appeals have shadow dockets. And yeah, maybe, but they have been using them way more responsibly than you have, have not been doing what the Supreme Court, really only the Supreme Court is doing what it is done, which is granting in case after case extraordinary emergency relief for totally unexplained reasons. And she also tried to justify the lack of writing or the cursory writings on the shadow docket by saying, you know, we don't have the time to pour over words and get things right. It's an emergency docket. And again, if it's unclear and you're having to workshop the language to figure out what to say to justify granting emergency relief, emergency extraordinary relief probably isn't oriented. If it's not clear how the lower courts, you know, we're obviously wrong.

Like, you just don't grant relief. I just, and I do wish there had been a follow-up on that score, but it just sort of... She would never go to an outlet where that would happen. That would be kind of that sort of follow-up. I guess not. But it's just like then... So you guys can't agree. And her sort of, yes, there's a lock-in effect. She's had that a number of times. And, like, that's right.

Like, if you're going to do rushed, sloppy opinion writing, maybe it's best to stay your hand and not do it. But the obvious answer there is then don't intercede to disrupt what lower courts have carefully decided. Or don't insist that your weird things on the shadow docket have lock-in effect and scream at district judges and continue to stay orders in other cases. You just can't have it always, and they don't seem to appreciate. that. Joseph Barrett also went on Fox. There obviously is a pattern here, and she was asked, and actually, I think, a genuine question about the 22nd Amendment, which limits presidents to two terms. And let's play that clip. The 22nd Amendment says you can only run for office for two

terms. True. You think that that's cut and dry. Well, that's, you know, that's what the amendment says, right? You know, after FDR had four terms, that that's what that amendment says. Really, girl? This is textualism, because that was not reassuring. It says you can only run for office for two terms, and she, you can sort of see, obviously you are on a tightrope and you don't want to say anything that's going to suggest prejudging a particular case that might come before the court. But you just can't even say seems pretty clear. That's what the amendment says, and then just like, you know, it was a, it left open a possibility that I found deeply, deeply concerning

and didn't provide a whole lot of confidence in the even sort of easiest, seemingly easiest kind of answers that are going to come from this court. Yeah. And then in a CBS interview, she had one of the worst answers to what has been a recurring question that she should have anticipated, and that is, are we in a constitutional crisis? To which she said, no joke, quote, I don't know that I could give. of a definition of a constitutional crisis because I don't know that we've really faced one

in this country, end quote. She had acknowledged we have constitutional challenges resulting from deep disagreement. Girl, have you heard of the civil war? Like, this response perfectly encapsulates

one of the court's deepest, biggest failures, its inability or unwillingness to acknowledge the facts around them and that these are not normal times. Right, you could, there's a way to say that the system is under stress

and it has been under stress before, and I'm confident that we will make it. You know, you can keep it pretty general, but she sounded close about both the present and the past in a way that, again, was just really disheartening if you were hoping to get more sophisticated answers from her. Ladies and gentlemen, the originalists. You know, she had also a USA Today interview in which she insisted she's nobody's justice. And in all of these appearances, she has a very weird habit where she likens every aspect of judging to being a mom. You know, remember her concurrence in the student debt relief case, which was about babysitters and talking about how she runs her chambers

and this was on the podcast. She said it's like parenting. You emulate what you like and change what you don't. And then the USA Today interview in responding to, you know, a question about Justice Jackson's accusation that the Supreme Court's rules, the administration always wins. Justice Barrett said the court doesn't make decisions the way she might handle her children's disputes. like evening things out, I don't understand why she does this. And I just want to let her know, like, the country does not need mommy issues. And yeah, I think there is, in theory, a way to bring examples that are not like insane and ridiculous and obnoxious Neil Gorsuch examples to the task of trying to do public education and explanation about the law. But each time she has tried

in her opinions and in this interview as well, it feels like it misses badly and ends up belittling or infantilizing really serious stuff. And so I totally agree. I don't think this is working, and I think she needs to try another tack. So she's been very busy on the book circuit. I have not yet read the book. So we'll see if there's more to say once we have actually looked at the book with our own eyes. If my brains, they'll survive it. I mean, I don't think it's going to be like reading a Kavanaugh concurrence. I feel pretty confident. It's not going to do the same thing to our brains, but I guess we'll see. The bar is in hell. Speaking of, let's go back to the shadow target. Because the court was really on a roll this week, like a steamrolling all the way over kind of role over the district courts.

So we also wanted to note some administrative stays the court has issued in recent days. So administrative stays aren't usually or often necessarily signs of what the court might do on the actual stay. An administrative stay is meant just to block a lower court order briefly, like hit pause for a matter of days, so that the court has enough time to decide whether to issue a regular stay that will last until, like, the full request makes its way to the Supreme Court. But given how often they have granted actual stay requests when the administration is the one asking, and just given the subject matter here, administrative stays can be revealing. And one of them definitely was, so you remember Humphrey's executor, no, I don't know her, you know her, right? Right. Humphrey's executor, you're not just in danger, girl, you're dead. Or mostly dead. It's not all the way dead. It's sort of a princess bride dead. But Wesley came back and I don't think that's happening to Mr. Humphrey.

Okay, so let us explain on Monday. Chief Justice Roberts issued an administrative stay blocking a lower court ruling that had blocked the president from firing one of the commissioners of the Federal Trade Commission without cause. So that is a firing that would be in violation of federal law, as are many of the firing. that the president has carried out since taking office. But here, Humphrey's executor is more directly implicated than in many of the other firings that we have talked about on this podcast. So that case is the nearly century-old decision that upheld Congress's power to create independent agencies, to insulate heads of these commissions or independent agencies. And at issue in Humphrey's executor, specifically was a commissioner of the Federal Trade Commission, who was protected by law from being fired at will by the president who challenged his firing and where the Supreme Court upheld the

statute that limits the president's firing power. As we noted last episode, although the court had allowed the president to fire the heads of other multi-member commissions, thus ghosting Humphrey's executor because it hadn't even mentioned the decision, the lower court in this case said, look, Humphrey's executor is still the law. You, Supreme Court, haven't said it's overruled, so we are going to follow it. L.O.L. Jokes on them, of course. Story Decisis is for suckers. and, you know, real curious definition of irreparable harm that the chief seems to be working on here, you know, the president not being able to preemptively overrule

our decisions by Fiat is apparently now irreparable harm. Yeah. So that was an administrative stay. Doesn't necessarily tell us how this case will shake out, but it was a very telling one. And if that was not enough for just this one week, the chief also entered an administrative stay in the foreign aid litigation that we also talked about during our last episode. So this again is the case where a district court concluded that the

administration's freezing and canceling for an aid grant's violated federal law. And after some complicated proceedings in the appellate court, the D.C. District Court once again entered a preliminary injunction that would require the government to pay out the wrongfully withheld funds. And the D.C. Circuit denied a stay, meaning until the Supreme Court decided to get involved, those funds were ordered to flow. So that was the status quo. And then. And then the chief issued an administrative stay indicating, it seems like, the court is seriously deciding whether to grant a stay here. And we talked about this on the last episode, but we want to highlight again how utterly shameless, maybe even sanctionable, the government's conduct has been in this case. So we won't go through the entire backstory here, but we talked about how the government was pulling bait-in switches in order to paint the district court in an unfavorable light and suggest that it was making unreasonable asks of the government.

This episode, we wanted to give you a flavor of the kinds of arguments the government is making in this case for a stay. So as Judge Ali explained, the government rescinding these funds violates federal laws, including the impoundment control act. So here's what that law says, quote, any amount of budget authority proposed to be rescinded, or that is to be reserved as set forth in such special message shall be made available for obligation. Unless, within the prescribed 45-day period, the Congress has completed action on a rescission bill. you know, and so it goes. And here is how the government characterized and quoted from that same statute, the ICA, in its brief. Quote, if Congress does not complete action on a rescission bill rescinding all or part of the amount proposed to be rescinded within 40 days of continuous session after receiving the message, the ICA provides that the amount proposed to be rescinded shall be made available for obligation. If you want to replay that, you can, but it is the opposite of what the statute says.

Right. It totally changes the presumption about when or if the funds are available. But textualism, right? Am I right? And these are the kinds of arguments and behavior that the Supreme Court is rewarding. So we will see what the Supreme Court does in this case. Roberts crossed over and joined the liberals at a much earlier stage involving a different set of legal arguments. But in an earlier stage of the same basic disputes over foreign aid funds before Judge Ali at the very beginning of this administration. His voting the other way all these months later, after the kind of litigation conduct that Leah was just discussing, would be a really important and profoundly concerning indication of just how things have changed in the last eight months. All right. In other SCOTUS news, the court granted Solicitor General John Sauer's cert petition in the case challenging Trump's tariffs. The one that warned the court a year ago, the U.S. was a, quote, dead country. It made me wonder if that was a callback to Scalia. is describing the Constitution as dead, dead,

although he meant that as a compliment, and Sauer is saying it's bad, this is dead. Anyway, the court agreed to hear the case on an expedited basis. So arguments will be the first week of the court's November sitting, which means that we will get to talk about that argument in the tariffs case when we are doing our live show in Washington, D.C., as part of CrookedCon.

So it is now official. We will be at CrookedCon doing a live show on Friday, November 7th, during which we will be chatting about how the oral arguments in the tariffs case went. among many other topics. So there are tickets now available. You can get them at crookedcon.com, which I think I said, okay, it's very hard to say.

I think I hit it. Yeah. It does confirm that the Supreme Court's real job is just to be content creators for us. I'm happy for them to retire from that job. Yeah, same. I would much rather talk about other things. But I guess, yeah, the silver lining is that we will definitely not want for things to talk about at that show. Yeah.

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A bit of other news, the lower courts continue to do their jobs versus the administration, right? Like those are two key players right now. This is litigation that we haven't had a chance to discuss. There is just so much legal news going on, but a few weeks ago, specifically over Labor Day weekend, the Trump administration began to attempt to carry out a hurried slapdash effort, again, over a holiday weekend to deport a bunch of children to Guatemala. So a district court's 2 a.m. in the morning intervention is the only thing that blocked that effort. and a Bauer at Lawfare put together a spectacular piece describing how the litigation unfolded and what it says about how lower courts are responding and updating their approach to handling litigation against the administration

where that administration does not even act in good faith. So these district judges are learning from the things that went down with, say, Judge Bozberg in the district of D.C. So in this case, district judge halted this proposed deportation through a temporary restraining order. The children in this litigation, which is an insane thing to even say, but yes, these are children and they are trying to enjoin their deportation. And another judge is evaluating their request for a preliminary injunction. So we're going to continue to monitor that case. And there's already been one striking development. So as the government was attempting to hurry these children off in the dead of the night, it insisted to the district court in the emergency temporary restraining order proceedings that the children's

parents wanted them sent to Guatemala. The plaintiffs challenged this. The district court halted the deportations because the judge wasn't convinced. And now, after the judge blocked the government from sending children to Guatemala, the government has conceded to the district court that they don't have a basis for saying the children's parents want them sent back to Guatemala. So they would have done this in the dead of the night on a holiday weekend based on a lie, a falsehood. And in my view, like, this just totally kills the presumption of regularity. And it basically confirms that interim emergency TRO should almost be presumptively available against the government. and that conduct in this case, it feels like it should infect the government's representations

and conduct in all other cases, but we will see if courts are willing to at least relax this presumption of regulatory, if not flip it, as it seems like it should be flipped. In other news, a district judge in D.C., Judge Cobb, concluded that Trump likely acted unlawfully when he purported to fire Federal Reserve Board Governor Lisa Cook on the basis of allegations of mortgage fraud. The relevant laws only allow the president to fire government. for cause. Trump claimed he had cause because of this alleged mortgage fraud, which subsequent reporting by ProPublica has suggested multiple officials in Trump's cabinet have also engaged in the exact conduct that Lisa Cook is alleged to have done, which is namely just list more than

one home as a primary residence, not even clear there were any favorable terms that followed from that listing. And yet these other officials have, for some reason, I can't quite put my finger on, not been fired. Anyways, the federal judge in the case involving Lisa Cook concluded that the cause that the statute requires only includes behaviors and conduct engaged in while holding office. So whatever happened with the mortgage application far before a term of service in government, none of that supplies the requisite cause in order to satisfy the statute. So the court also concluded that Cook's removal violated the due process clause and the court pointed to some of Trump's social media posts in support of

that ruling, which is bringing back some very bad memories of the Muslim ban litigation, you know, when the Supreme Court was telling us whether we could consider Trump's statements, promising a complete and total shutdown Muslims entering the United States. But this is also an occasion to remember, Kate, your very excellent article beyond the bully pulpit presidential speech in the courts, although we should say, like, the court in the Cook case is using the social media posts quite differently than how, you know, social media and presidential statements came up in the travel ban. And the Trump administration is already seeking a stay of this opinion.

And I'm nervous for this case going on. Oh, yeah. So given the kind of winning streak with respect to these removals that the administration has been on. And I don't think we're the only ones who are nervous, apprehensive, frustrated with the way the Supreme Court is proceeding on the shadow docket because that same kind of frustration, or at least some frustration, has now officially bubbled up to the courts of appeals. We mentioned district courts, punching back. back last week. This week, the Fourth Circuit on Bonk heard oral argument in an appeal from one of the cases involving a preliminary injunction that SCOTUS had stayed. So just to remind people of how this works, the court grants a stay of the preliminary injunction. But all that means is that the preliminary

injunction is not in effect while the normal litigation process still plays out. So it is now happening that these cases are returning to the federal appeals courts, and some of them will be returning maybe back to SCOTUS, just without the preliminary injunction that the district courts had issued in place in the meantime. So here, the Fourth Circuit still has to issue a decision on the merits of the appeal of the preliminary injunction, even after the Supreme Court has granted a stay. And this particular case involved the challenge to Doge's access to sensitive social security records.

And suffice to say, the judges on the Fourth Circuit were not totally sure what the F they should do with this stay. We're going to play a montage of the frustrations. Here's one. The Supreme Court reversed our decision in terms of a stay here, and it seemed unusual in the order that they entered because they didn't simply enter a stay. They provided that the stay would continue regardless of what this court does, which seems a little unusual to me. Some judges floated the possibility of, hey, let's just pull a scotis. I don't see.

One answer to that would be to write a one sentence opinion that says, We don't really know how or why, right? We don't have to figure that out. It might be on the merits. It might be on the equitable factors. It might be on irreparable harm. We don't know. But we know what the answer is here.

The answer here is that the plaintiffs lose. Other judges, not so into that. The problem we have is the Supreme Court isn't giving us opinions. It's given us signals. And this so-called shadowed document, that document that's being put out here, we can glean and probably predict pretty accurately. If that's our job, is to predict the Supreme Court and call that a win, and I can tell you how we'll do it.

We'll just do it with the Supreme Court. You don't need this court. But you have to agree, as you answered Judge King's question, we have an independent obligation to consider the merits of this appeal. If it wanted to, it could have just told us you don't need to do anything else. We're going to go ahead and decide it for you. So if it's decided the merits of the appeal, then it would have done that. It didn't do that.

It didn't even tell us that. the problem we got is we have a Supreme Court. I'm not criticizing the justice. I'm just saying you're using a vehicle that's there, but they're telling us nothing. And they're leaving the lower courts, circuit courts, the district courts out in limbo as to guess what they are doing or to glean or predict what they're doing. That's a problem. We have an independent obligation. That's what we ought to undertake here. And we do so independently, even though some might want to predict or even you could accurately predict what the Supreme Court. I don't think we should guess that. We have a job to do. That's our constitutional duty. The Supreme Court has its

constitutional duty. We all should just do our job. The problem is that we're being asked to follow signals and signs. I mean, that's really not the way in which we like to operate up here. I mean, we're going to follow and do what the Supreme Court tells us to do, but there needs to be a clearer way of saying it. As I said, the Supreme Court didn't give us an opinion, gave us a signal at best. I agree with Judge Wilkinson on that. As to whether it's precedent, we follow it. I mean, we're going to try to do the best we can. Other judges liken this whole stitch to a traffic signal.

You know, you can go through an orange light. You can, you know, wonder whether when you go through that orange light, you're also taking a chance that you're going through red. And surely what the Supreme Court did must mean something. And even the federal government itself was hard pressed to explain. explain what exactly the Supreme Court stay meant. Not to argue against myself here, but I think one complication is, you know, the state order in this decision, the Supreme Court's stay order, I should say, said that we were likely to succeed on the merits, but precisely because there are multiple totally independent

reasons why we might be likely on the merits, and the court didn't explain which justices thought, you know, maybe three of them thought we were going to win on standing and three on APA reviewable action. So I'm not taking the position that it's strictly binding on this court. Is there a signal precedent? Again, I mean... And we will end with this for circuit clip. And now at the merits, this question seems to be, do we just accept yes, with nothing else?

In the Supreme Court, perfectly can do it. So yes, with nothing else, but they didn't get to the merits. And we do it all the time. We go back and reconsider cases because certain points were not considered. to ensure that this is an opportunity for the Supreme Court to do this. We go to the merits, we write an opinion that analyzes the merits, goes to the Supreme Court, and with great hope, we will get an opinion that will also follow that same reasoning

and give us not only precedent and reasoning, but will give greater confidence to the public that judges don't sit up here and just give you an answer and make it look like it's on one. side or the other that you did it. They didn't do that. There's a reasoning. But we are left here to say, well, do what the Supreme Court said.

Well, they just said, it just gave a state. It gave no reasoning. Somebody ought to give a reason. Some court, some judge, ought to tell the public, ought to tell the litigants in the case. Here are the reasoning. That's the way our system works in America. We just want to say Fourth Circuit, we hear you. And someone else heard you, too.

because someone did recently speak out in defense of the lower courts who are doing their jobs, a SCOTUS justice even. That SCOTUS justice was Justice Breyer. So the New York Times reported that Justice Breyer offered public comments in defense of Judge Young, the District of Massachusetts judge in the National Institutes of Health case, whom Gorsuch and Kavanaugh had accused of being part of an epidemic of district judges defying the Supreme Court. I mean, and I think he's Reagan appointee, Judge Young, if I'm not mistaken. Yes.

So, as we noted in the last episode, that Judge Young offered an apology in a hearing. And then last weekend, Breyer waited to say, quote, I never saw an instance where he, meaning Judge Young, would deliberately defy a controlling opinion or legal statement from our court or from the Supreme Court. I never had an instinct or a guess or a hunch or anything that he was doing anything like that deliberately. Sorry, Melissa's not here, so I'm the Thespian. You're doing a good Justice Breyer. Like, if you know Breyer's like, you know, kind of rhythm, cadence, it's not horrible.

So Breyer continues. He was honest. He was a straightforward judge, a very decent person, and a good judge. So thank you, Breyer, for riding to his defense. So Justice Breyer, you know, before becoming a Supreme Court Justice, was a judge on the First Circuit, the Court of Appeals that hears cases from the District of Massachusetts. So he served together, which Judge Young and would have reviewed his cases in that capacity. So he knows of which he speaks. That is all we've got time for, but stick around for a fabulous interview with the fabulous Simone Sanders County. an amazing MSNBC strict scrutiny crossover that is, alas, about a less than awesome crossover. Before we go, some announcements. You probably heard us mention CrookedCon over the last few weeks, but if you haven't, CrookedCon is your chance to join some of the smartest organizers and least-annoying politicians in America to strategize, debate and commiserate about where the pro-democratic movement goes from here, hopefully up.

We are excited to share a preview of the Crooked Con lineup, which includes Sarah Longwell, Hassan Piker, Fais Shakir, Brian Taylor Cohen, Jessica Tarlov, Senator Ruben Gallego, Andy Beshear, Representative Sarah McBride, Representative Janelle Bynum, Ben Wickler, and more. We are also going to close out CricketCon with a strict scrutiny live show. To come see us, get your CricketCon tickets at crookedcon.com.com. The ticket will give you access to the full day of conversations, panels, workshops, and you can end the day with our live show. Before they sell out, get your tickets at crookedgon.com. Strict fans, we are in session. So tickets for our... our Chicago live show on October 4th at the Atheneum Center are going fast, so get them while you still can. If you can't make it to Chicago, remember that we will be closing out CrookedCon on November 7th in Washington, D.C., with a live recording of strict scrutiny, the tour is already delivering

precedent-setting chaos, and West Coast is next on our docket, so stay tuned for that announcement soon. In the meantime, don't miss your chance to see us in person in Chicago or D.C. Grab tickets now at Crooked.com slash events. Strict scrutiny is brought to you by Birch. I absolutely love birch mattresses, and I'm going to tell you, I have a hard time sleeping, but the person in my house who has an even harder time sleeping is our son, who is a very light sleeper.

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Longer Time listeners will remember that last summer we did a series on Project 2025, trying to give people the download on the reactionary agenda that was being prepped to be implemented at lightning speed during a, at that point, hypothetical second Trump administration. We called it Disasterpiece Theater. And we tried to warn you all. And the segment on the general welfare was specifically called DEI for men with bad personalities, but disaster piece theater was a general title. That was an especially good segment. So, since then, a good amount of attention has been paid to how this administration is indeed carrying out many elements of Project 2025, the policy agenda they claimed at the time to have no knowledge of, no association with,

and no interest in. Well, Chenado Rebellion, shock me, shock me, shock me with that deviant behavior. So less attention has been paid since the inauguration to the way the Supreme Court is carrying out key parts of Project 2025 and at the same time, enabling and facilitating other parts of the government to do the same thing. So in keeping with our mission to try and inform people about what the weirdos are up to at one first street and how the court has its dirty little fingers all over the shitty-ass cookie jar we find ourselves in, today we're here to talk about the Supreme Court October term 2024 through the lens of Project 2025. And to do that, we're delighted to be joined by someone whose journalism and commentary did so much to try and inform the country about the impending doom that was the disaster piece theater of Project 2025. And that is Simone Sanders Townsend. Simone Sanders Townsend is co-host of the weeknight, which airs weeknights at 7 p.m. Eastern on MSNBC. Before joining MSNBC, Simone served as senior advisor for President Biden's 2020 presidential campaign, deputy assistant to the president and senior advisor and chief spokesperson, the vice president, Kamala Harris. and as the National Press Secretary for U.S. Senator Bernie Sanders 2016 presidential campaign.

Welcome to the show, Simone. Good greetings. I've had a lot of jobs. All of them fabulous and super impressive. Trying to save the country from doing the thing that it ended, including we also, the list was long, but also we omitted that you and our wonderful co-host, Melissa Murray, partnered on the Black Women in America Road to 2024 series last fall, which is also fantastic. Thank you. Yeah. So, and yet here we find ourselves. Look, we tried to tell you on multiple occasions. We tried to tell you. And now here's Project 2025. So I'm happy to be here. I will say it's so crazy because as folks may remember, Kevin Roberts, who is head of the Heritage Foundation, he was doing a lot of print interviews going on a little Fox News during the election. And this was around the same time that the Trump campaign had not really denied Project 2025, but they weren't trying to pay attention to it. And folks were putting it off as like, oh, this is just not a policy document. So I saw Kevin Roberts interview in the Associated Press.

And I remember on one of our show team calls, we were still doing the weekend. I said, we should ask Kevin Roberts if he wants to come on. Everybody's talking about Project 2025. He's surely willing to talk about it. We should invite him. And lo and behold, we invited him. And he said, yes, we did a wide-ranging interview with him. And the biggest takeaway I had from it was one of the first.

First things he said when he sat down. He said that, you know, Project 2025 is not about Donald Trump. It's about instilling Trumpism into every facet and level of the federal government. And he literally said to me, he said, you know, if President Biden were to take up Project 2025, we'd be happy with that. But we don't think this is his brand of policy. It's not his vibe. Correct.

And he went through all of these things that Project 2025 lays out in terms of the firings, in terms of the policy pieces around abortion and health care, everything. We were not stunned, but I think people who were watching it were stunned because it's one thing to read it on a page. But it's another thing to see someone sitting there defending the words that they wrote and the ideology behind it and saying, well, yeah, and also we want to go a little further. So I do think way back when people should have took it seriously what we were saying. saying. But now we are seeing it play out in real time. And just like during, you know, post, just like during reconstruction where the Supreme Court played a key role in rolling back all of that progress that was going to be made and underscoring the policy prescriptions that

helped dismantle reconstruction, that is exactly what this Supreme Court, in my opinion, is doing as it relates to the great, you know, gains that had been made over the last, I would argue, like 50 years. Absolutely. Project 2025 is a blueprint. Absolutely. And in many ways, the kind of redemption Supreme Court that was reacting to some of the gains of reconstruction took a number of years. It's kind of amazing how fast this court is dismantling. Now, it's not just the court since the Trump administration began for a second time. You know, we're talking about going back to things like, you know, Shelby County in 2013, even Citizens United in 2010. So with a decade, two-decade long project. But certainly the kind of warp speed in the last few months has been really striking. And I think partly it's because Project 2025 has had laid it all out, and implementation was really all that had to happen. Okay, so here is the game plan for this segment.

We're going to remind you all of some of the promises and plans in Project 2025 and then try to show you the way this court has been a key player in making Project 2025 part of the unfortunate reality we all find ourselves in. So let's start with one of the opening promises of Project 2025, a key fixation of it, if you will, and that is pornography. Simone, can you remind us, what did Project 2025 have? to say about pornography? Well, you know, if we can just go to our dear friend, Kevin Roberts, you know, who is the

president of the Heritage Foundation, one of the architects of Project 2025. And in Project 2025 and Kevin Roberts, a promise to America, this is what he says. We're going to quote it, talking about pornography. It has no claim to first amendment protection. Pornography should be outlawed. The people who produce and distributed should be imprisoned. Educators and public librarians who purvey it should be. classed as registered sex offenders, and telecommunications and technology firms that facilitated

spread should be shuttered. That's what they said. Okay, so how did the Supreme Court help these porn-obsessed weirdos out at Project 2025? So as we explained at the time of their decision, in Free Speech Coalition versus Paxton, the Supreme Court ratcheted down the level of scrutiny that is applicable to restrictions on porn. So the court held that laws that are designed, to prevent minors from accessing porn, their age verification limits that require users to submit documentation. Those laws don't trigger strict scrutiny, even when they burden adults' access to the material that they are constitutionally entitled to access.

Why? Because porn, according to the Supreme Court, isn't real free speech that's entitled to real First Amendment protection. So that is a perfect segue to this game we wanted to play because, again, we do in scare quotes. We try to make learning fun. and laugh so we don't cry right this is part of our sort of you know coping mechanism um but basically we want to ask who said it project 2025 the actual document or a scotis justice so we're going to pose some quotes and simone we're going to have you guess um you ready i'm ready let's do

it okay so and these are going to harken back to the pornography case free speech coalition versus paxton lea mentioned a couple of minutes ago and also just project 2025's position on Okay, quote, with the rise of the smartphone and instant streaming, many adolescents can now access vast libraries of video content, both benign and obscene, at almost any time in place with an ease that would have been unimaginable. Project 2025 or a SCOTUS justice. Project 2025. Good guess. Yes. Wrong, though. Could have been. This was Thomas's majority opinion in the Paxton case.

Easy to mistake for the actual document. Project 2025's. Very problematic for leadership. Yep. Okay. Quote, children suffer pornography invading their school libraries, end quote. Project 2025 or Supreme Court Justice? Project 2025. Ding, ding, ding, ding. That one is indeed. Project 2025 daddy, Kevin Roberts. All right, one last time. Also, is that true? Is that true? I mean, I don't know the last time I went to a library, and found a pornography section for the children. You know, I did some book events at libraries, and that didn't come up. No.

So, yeah. Turns out they think that things, that books that depict anything that break. We'll get, we will get to the Mahmood case. But for sure, with LGBTQ characters or themes, like, that is pornography in their mind. And, yeah, like, those books are, at least for now, available. in some libraries, and they find that, I think, offensive. Okay, one more. Quote, kids can get online porn through gaming systems, tablets, phones, and computers.

Project 2025 or SCOTUS? I think they, either one of them could have said it. I think that was a Supreme Court justice. That's right. So that's Barrett in the oral argument in Free Speech Coalition versus Paxton. That was impressive, Simone. Two out of three, one, they're basically all interchangeable statements. Yeah.

And one kind of point, just about the real world. implications of some of these Supreme Court decisions implementing the policy vision of Project 2025 after the Paxton case, the Fifth Circuit and then the Supreme Court allowed a Mississippi law requiring age verification for minors for social media to go into effect. This was a direct result of the Paxton case. And I mean, there's, I think, a real and an important policy debate to be had about kids and social media, not denying that at all. But allowing this law to go into effect, even though the Supreme Court itself said, at least as it's framed this law, it at least triggers some heightened First Amendment scrutiny and maybe violates the First Amendment.

But the court has basically said, no problem, put it into effect, which has meant that some social media sites and news sources have had to shut down their online operations in Mississippi, denying people access to certain news sources altogether because of this requirement. So the implications extend way beyond pornography and social media, which is what we were warning about when the Paxton decision came down. And it's intentional. And you know what? Using pornography is the scapegoat, if you will, or the Trojan who,

course, the vehicle through which to get this policy into place, there are people who maybe even self-avowed, you know, liberals or progressives, and say, well, you know, this isn't such a bad thing. Not understanding that it is not, as someone once told me, it's not just the action, it's the thought behind the action. And the thought behind the action is to get some more stuff up in there to undergird their authoritarian takeover. Yes. Okay.

So in addition to being obsessed with porn, Project 2025 was also obsessed with trans people. You know, interesting that the people's shielding associates of pedophile Jeffrey Epstein would be obsessed with porn and people's genitalia. But I digress. Simone, can you remind us, like, what are some of the things that Project 2025 said about, like, their plans for the trans community? Well, first of all, Project 2025 literally recommended banning trans people from the military. You can look at page 103 for folks that haven't read through the document. And it said that they wanted to restore standards of lethality and excellence, interest criteria for military service, and specific occupational career fields should be based on the needs of those positions. Exceptions for individuals who are already predisposed to acquire medical treatment, for example, HIV positive or suffering from gender dysphoria should be removed.

And those with gender dysphoria should be expelled for military service. They are using gender dysphoria as a placeholder for the word trans, which is problematic. And then on page 104, they literally write that they wanted to allow reverse policies that allow transgender individuals to serve in the military. They wanted to restrict gender affirming care of treatments for people who are under 19, which again, another little Trojan horse because it's not like people, they want you to believe five-year-olds are out here having sex changes. It's so crazy. And they recommended exercising, gender excising, getting rid of, pushing out gender ideology

from any of the curriculum within the military. They were very clear. Yeah. So all of that sounds familiar, in part because the Supreme Court has had something to say about all of this. A couple of examples. First, in United States v. Schilling,

a case where on the shadow dockets Godis allowed the Trump administration to begin implementing its ban on transgender service members with no explanation and in the face of a very careful district court opinion finding that the policy, the absolute ban policy, likely violated the Constitution, that, you know, another example of SCOTUS seeming to march to the tune of the same drummer as the Project 2025 authors was Scrametti v. United States, in which SCOTUS allowed the state of Tennessee to enforce a ban on gender-affirming care for trans minors. And finally, Mahmoud versus Taylor, a case I mentioned a couple of minutes ago, and we will return to, involved the court basically. finding that parents had a First Amendment right to receive notice and an opportunity to opt their children out of instruction that involved storybooks for kids that might contain discussions of gender identity or contain LGBTQ and here specifically trans characters. So we are going to...

I know we got another game, but can I just say that gender affirming care, people hear that and they automatically think something, like I said, five-year-old is getting sex changes. But gender affirming care includes therapy, right? It includes it in, it includes the mental health resources that people need. That is, that is the majority, frankly, of what we're talking about. Crazy. Right. Like, so imagine, right, if you are one of the well-adjusted people that goes to therapy. And tomorrow, the federal government said, nope, sorry, you can no longer get any therapy. Like, let me tell you, right? Like, the state of my, like, being and function would plummet. like that is that is a no go um but anyway so simone you did preview that we were going to play

our game once again so we are going to do uh the game to illustrate the convergence you know between project 2025 and the supreme court so i'm going to read a quote and simone you are going to guess project 2025 or supreme court justice so without further ado quote the number of children identifying as transgender has searched and medical professionals have increasingly express doubts over the quality of evidence supporting the use of puberty blockers, cross-sex hormones, and surgery to treat them, end quote. Was that, was that a Supreme Court justice? Was that Thomas?

Yes. It sounds like something he would say. Exactly. That was Justice Thomas's concurrence in Scrametti, in which he railed against the, like, self-proclaimed experts while an expert on health care for kids. All right. here's another. Quote, minor children, especially girls, are attempting to make life-altering decisions using puberty blockers and other hormone treatments and even surgeries to remove or alter

vital body parts. Project 2025. Okay, that one was Project 2025. Yeah, I don't think the justice actually went quite there, but they are so close in some of the Scrimetti writings in particular. And maybe I just tip my hand about the next one, but let me ask. Who said, quote, the treatment at issue are subject to a rapidly evolving debate that demonstrates a lack of medical consensus over their risks and benefits. That was the Supreme Court. That was also Thomas in Scrimetti.

Also, Thomas. Yeah. Okay, quote, there is no evidence that gender affirmative treatments reduce suicide, end quote. Project 225? Sam Alito, so basically the same thing during the oral argument in Scrametti. Yeah. I know. And, you know, they're in some ways maybe just getting started because next term they will have the Supreme Court justices will have the opportunity to do another solid for Project 2025 when they decide whether Title IX or the Constitution's Equal Protection Clause prohibits from banning trans athletes or maybe allows schools to ban trans athletes or maybe the Constitution and federal law requires schools to ban trans athletes.

athletes from competing, all of these things, I think, are on the table. Just like, just like they're not five-year-olds out here getting sex changes. There is not an epidemic, if you will, in basketball and soccer leagues and football leagues and football leagues across the country where you've got trans athletes in these schools and the schools just don't know what to do about it. And there's a raging debate among the parents. That's not happening. It's like a very small percentage. And I think it's important to underscore because this goes to, back to the point of what I was saying about reconstruction and the dismantling of it. The Supreme Court during that time, along with, you know, some members of Congress and, you know, the fact that the economy wasn't doing really well, they made decisions that still, that chipped away at the gains that were being made, chipped away at the 14th, the 13th, 14th, the 13th, 14th, the 15th amendments.

the Reconstruction amendments that gave way to the collapse of reconstruction. What the Supreme Court is doing, they don't got to hear this case. No. They don't have to hear this case. It's crazy. This is intentional, though, because, again, they're trying to, Project 2025, institutionalize Trumpism. How do we do that? Change the laws.

Yeah. Yeah. Yeah. So, all right, now we want to turn to a case. Now we've mentioned a couple of times, Mahmoud v. Taylor, but also some other matters for what they say about education in general, public education in particular, and just how they reveal the Supreme Court's alignment with Project 2025 on, again, both schools, but also LGBTQ rights. So just a quick reminder for our listeners, Mahmoud is the case that said parents have a right under the First Amendment to opt their

children out of instruction involving LGBTQ storybooks. Why were these storybooks objectionable to some of said parents? Well, let's turn to Justice Alito's majority opinion and or Project 2025. And And those things may shed some light on what exactly these parents were arguing. Let me start with one. Quote, gender ideology is being taught in curricula in public schools in the country. Supreme Court or Project 2025? Project 2025. That one was Project 2025.

You are so good at this. I thought, really, I had assembled some difficult, some difficult questions. I have to say. Well, you know, because the document, the project, the document was designed for them to make their case. So when we say it's a blueprint, literally a blueprint. So the language is something that could read like a statute or some suggested language for maybe an executive order

or all these different kinds of things from Project 2025. Yeah. So that's what it sounded like. It's crazy. How about this one? Quote, many Americans believe that biological sex. reflects divine creation, that sex and gender are inseparable, and that children should be encouraged to accept their sex and to live accordingly, end quote.

It sounds like it got a little, a little Christian, white Christian nationalism wrapped up into it. Is this Project 2025 as well? Good guess. It's Sam Alito. I feel like the Sam Alito Project 2025 divide turns out to be maybe the hardest, right, to separate, but that was in his majority opinion in Mahmoud versus Taylor, which is... Wow. Yeah.

Yeah. And, but of course, he hides behind this. Many Americans believe this, right? I'm not actually asserting. I don't believe this. I am ensuring this into the law, but that biological sex reflects divine creation. But certainly, the opinion grants parents the right to implement that belief, even at the expense of manageable public education for all that contains inclusive themes.

free pluralist student body and population. Can I just quote one that Leah pulled these together, and I just, you know, the project 2025 was 900 some pages long, and we all write it last summer, but certainly don't recall all of it. But this line, children are being taught to deny the very creatureliness that inheres in being human and consists in accepting the givenness of our nature as men and women, the sort of creatureliness that inheres of being human thinking about storybooks, and I was just like my kid, my youngest is still pretty small, like Thomas, the 10.

There's children's books contain creatures who are, in fact, not human, and I guess that's a problem, too. Justice for Bluey, okay? Justice for Bluey, it's actually crazy, but I will know. Justice for the Giving Tree? Just as for, is your mama llama? That was one of my favorites. Oh, those are. I love it, is your mama mama.

Just, there is just enough there, there for people. people to say, well, what is wrong with this? What is wrong with me having my child opt out of, you know, learning about anything that has to do with LGBTQ plus folks, anything that has to do with a book where there's two moms or two dads? And if we allow it for this, well, now you're going to let them opt out of the conversation about the Civil War? The school's going to allow folks to opt out of the conversation about January 6th or when the history class, like what, where is the line? And so again, another. Now, the Trojan horse people, Trojan horse. Yeah. So I think something else about Mahmoud versus Taylor that struck us as significant is how the court was conceiving of and maybe changing the role of public education, right? And the relationship between public education, students, and parents. You know, Simone, you've gestured two analogies to the Redemption Court, you know, which we're going to do actually an episode segment on and talk about, you know, some of the parallels between the redemption court and this court. But here, right, I think the court's, like, steady efforts to undermine and chip away at public education, right, are really an exact parallel because, of course, public education has been this major force, right, for socioeconomic mobility, right?

And pluralism in the country. And so I just don't think it's an accident that so many of the doctrinal developments and cases, right, are really putting public education in their crosshairs. Remember the court, and this I think is easy to forget because so much has happened in this last Supreme Court term, but the court just narrowly dodged deciding the question of whether states that had charter schools had to permit religious charter schools, which would really mean adopting the argument of this would be religious charter school would mean maybe imperiling the charter schools and larger public education systems in most of the states in this country. in the court only because Amy Coney-Barrant recused in that case. And so the tie at the court left in place the lower court opinion ruling against the religious charter school. Have we sort of dodged that potentially enormous additional blow to public education just this term? But there are other cases in the pipeline presenting the same question and we're likely to get another one in the same, I would say.

And they're doing it for a reason. Yeah, absolutely. This is a part of Project 2025, though. It is literally rooted in Christian national. And Kevin Roberts, our good friend Kevin Roberts, Dr. Kevin Roberts, not a medical doctor, by the way, very important point. He came from, before he came to the Heritage Foundation, he ran one of these kind of schools, one of these institutions. So I think people just might need to go back and watch the last couple seasons of The Handmaid's Tale, because it'll give you a very good idea of what's trying to go down. Yeah.

Yeah. The bat they'd like to see us on. Yeah. Okay. But like thinking about, you know, their orientation towards schools, like, We wanted to, once again, play this little game. Like, who said this about public education and, you know, the role of public education, either the Supreme Court or Supreme Court Justice or Project 2025. So, quote, in our schools, the question of parental authority over children's education is a simple one. Schools serve parents, not the other way around, end quote. Is it the Supreme Court? all those schools should serve the children, but that's another story.

Is this the Supreme Court? This is our friend, Kevin Roberts, Dr. Kevin Roberts, in Project 2025. All right. I've got another one. Quote, these matters impose upon children a set of values and beliefs that are hostile to their parents' religious beliefs. Oh, my goodness. This one is hard. This is the Supreme Court.

This is. Do you want to guess who? Thomas. Good guess. Alita. Alita. Yeah. Yeah. It had to be one of the two of them. Exactly. Exactly. Always one of the, yeah, whatever to call them. Maybe, you know, while we're on the topic of education, you know, Simone, Project 2025 had some designs or plans for the Department of Education. Can you remind our listeners kind of what they had to say there? Well, first of all, they wanted to get rid of it. Chief, chief, among their goals was to dismantle it and totally exit out. It's no surprise that, you know, the Department of Education came about through Jimmy Carter and all these years later.

They want to get rid of it. They wanted to talk about, they had all these recommendations about just how employees or contractors who work at schools should address. their students. And so that, you know, they literally put in a recommendation that they couldn't address a student with any other name, then the one that was listed on their birth certificate, unless they had the written permission of the student's parents or their guardian. They wanted to pass a federal bill of rights as it relates to the Department of Education where there was a parental rights and made parental rights like a top-tier right. And basically this kind of legislation, it would, it's just a little crazy, but they said that it would

give a fair hearing in court when the federal government forces, enforces any policy against parents in a way that allegedly undermines their rights. Again, using language that sounds very, very benign. However, it is very, very diabolical. But they don't even care about the education because they wanted a whole department eliminated in the first. That's right. There were like, there were some possible, you know, kind of uses to which they wanted to put the Department of Education. If we have to have the Department, here's what it should do. Some sort of like imaginative, diabolical kind of uses. But first order preference just eliminate the whole thing.

And guess what Scotis gave them a boost in their efforts to do? Basically eliminate the entire department. They sort of, they being Trump and the Secretary McMahon, they sort of said, well, we're not eliminating the department. They, on public and social media and elsewhere, did basically make clear that's what they were trying to do in an executive order and a series of directives suggested that they were more just radically shrinking the department and eliminating a number of components of the department, which made it basically impossible for the department to carry out its statutory obligations. And after a challenge to that effort was successful in the lower courts, lo and behold, SCOTUS, of course, got into the mix and allowed the administration to go ahead with its mass firings. and essentially dismantling of components of the department. So here I just want to read from Justice Sotomayor's dissent from the shadow docket order that allowed that dismantling to go forward.

She said, quote, Secretary Linda McMahon got to the department's workforce, firing over 50% of its staff overnight. In her own words, that mass termination served as the, quote, first step on the road to a total shutdown of the department. Rather than maintain the status quo, however, this court, the Supreme Court, now intervenes lifting the injunction from the lower court,

permitting the government to proceed with dismantling the department. Can I just ask a question? You know, as somebody that just used to do the talking points for the lawyers was not an actual lawyer. How can the Supreme Court justify this? Because on one hand, they did the same thing as it relates to the other firings within the government.

They basically said, oh, well, they can let people go. How they let people go matters. And so, right, they have to stay like, go, but these people who were let go can, in fact, sue, and that don't have to work its way through. But for now, you just don't get a job. It just felt like they were talking on two sides of their both sides of the coin here. But maybe that's the point. Well, I mean, like, well, I think that is the point. I mean, sometimes the Supreme Court explains why they're letting the administration do something and other times they don't. So in dismantling the Department

of Education, the court did not say one way or another why they were allowing this executive order to remain in effect, you know, in some of the other cases involving, you know, firings of federal officials. They said, well, like the administration said that what they were doing was legal, so nothing to see here. But I just think it kind of depends and is really case by case. But, yeah, here, though, as in specifically with respect to this, you know, case against McMahon, how can they justify it?

Like, literally they didn't even try because they came to because they, this is just they did it on the shadow docket. didn't explain. So to Major said a lot in her dissent, but the justices who allowed this stuff to go into effect didn't even have the courtesy to try to concoct a tortured explanation as to why this was like they don't care. It's almost like they don't respect us. Oh, like they're not doing law. Like that is also, I think, a viable theory. Just maybe two quick additional notes about the overlap. One is on Planned Parenthood defunding, you know, Project 2025. Obviously, kind of encourage states to defund plan parenthood, indicating that the Department of Health and Human

Services should, you know, issue guidance reemphasizing that states are free to defund plan parenthood in their state Medicaid plans. And just to remind our listeners in Planned Parenthood versus Medina, another case from last term, SCOTUS issued some guidance that emphasized that states are free to defund Planned Parenthood, booted out of Medicaid, and face no consequence because no one's going to be able to successfully challenge those moves. Project 2025 is there to encourage the president and the administration to take these actions, to remind states they won't face any consequences from the federal government, the executive branch either.

So you have the two hands working in tandem to really undermine the ability of Planned Parenthood to provide necessary health care services to millions of American women. Congress also weighed in on this, and they did the bidding. Yep. Teamwork. They did it. It's the dream work. Crazy.

The nightmare, the night of the bad dream work. And because this is all a YOLO project, there is more because so much of this is only possible by having an unbound unfettered executive project 2025 also had something to say about putting the president above the law. That's right. They went all in on the unitary executive theory and encouraged the next Republican administration to ask the Supreme Court to overrule Humphrey's executor and give the president, right, the unlimited authority just as fire people in the executive branch in violation of federal

law. And what did the Supreme Court say in Trump v. Wilcox and Trump versus Boyle? They ghosted Humphrey's executor and effectively overruled it on the shadow docket and said, yep, the president can fire people in violation of federal law, except when it comes to the Fed. But we'll see how that one turns out. So just to kind of wrap this all up, Project 2025, Tracker website says that after less than eight months, Project 2025 is 47% complete. 47% is crazy. To be very clear, 47% is crazy. As we are having this conversation, it has only been about seven months.

Exactly. And it's seven months. They have accomplished nearly half of the agenda that they wrote out for us for all to see. That's crazy. They have a few months left in 2025. I mean, how much more are they going to get done between the administration, the Supreme Court?

It's just wild. Simone, we really appreciate your time. We wanted to give you the last word on anything related to Project 2025, the Supreme Court, or the connections between them. Well, I just think it is really important that because Project 2025 was a blueprint, a blueprint is a plan. A blueprint is a vision. And the vision was so clearly laid out for everyone to see, including the Supreme Court justices. And it is not lost on me, like, the justices read, the justices watch the news, the justices are highly aware of what is happening in this country. And so if we don't think that, like, the justices didn't scan through Project 2025, we'd be crazy.

So as these cases have come before and will continue to come before this particular court, it is important to tease out the parallels. It is important to call, you know, the thing, the thing, to look at the words and see where they overlap and they align. And we can only conclude that this is, in fact, intentional. And history, as a mentor one told me, is on broken continuity. And just like they did during Reconstruction to use the full brunt and force of the government and the changing times and how people felt about the economy to erode progress, significant progress that made this country a multi, for the first time, a multiracial democracy, that is what is happening right now. And the Supreme Court is not just aiding or kind of helping. This conservative majority is absolutely complicit. Yeah.

And 53% of Project 2025's goals remain to be achieved. It is really chilling and, you know, and alarming. And people need to be aware of the connections. So Simone Sanders-Tounson, thank you so much for joining us today. Happy to be here. Once again, listeners, you can catch Simone on the weeknight, which airs weeknights at 7 p.m. Eastern on MSNBC. We've got to get you back on the show with Melissa next time.

Yes, yes. Thank you guys for having me. This is the first time, but not the last time. Indeed. And before we go, let's quickly do our favorite things. So I wanted to list the lawfare piece. You mentioned Kate by Anna Bauer, the judicial learning curve at lawfare. I just think it's a really important example of how some amount of resistance is honestly just documenting what is happening.

And really great example of this. Another Michael Dorf, what should a lower federal court judge do when the Supreme Court plays Calvin Ball, you know, as lower federal courts are struggling and probably under pressure from the Supreme Court, just to say Trump wins, you know, I think, you know, I applaud district judges who still tried to do their job, which is the law. And I think Michael Dorf makes a very powerful case that that's what they should be doing. I'd also highlight a footnote in a terrible decision by the 11th Circuit, which held it doesn't violate federal civil rights law to deny health insurance coverage for gender affirming medical care for trans people. But Judge Abuu, one of Judge

Biden's appointees to the 11th Circuit wrote a dissent, and it included this footnote. Quote, Justice Barrett, in her concurrence, Inscromete, proclaimed that transgender individuals should not be considered a part of a suspect class because such status is not marked by some obvious immutable or distinguishing characteristic. Interestingly, Justice Barrett's arguments raised the question of whether our case law has properly addressed questions around whiteness as an immutable characteristic. Our nation's history shows that not everyone considered white today was always viewed that way. And she kind of goes on to elaborate this.

I loved it. Judge Abuu, just call her the constitutional Karen and chef's miss. It was like judges, Democratic appointees don't usually write footnotes that spicy the way Republican appointees do. And it was maybe wonder whether Judge Burrow in the district of Massachusetts really spicy footnote 9 that we talked about last week. Like maybe emboldening other federal judges to get real spicy in their footnotes. I hope so. Okay. My quick favorite things, we already mentioned, Steve Floddix, piece on Kavanaugh's concurrence, excellent read.

If you haven't seen, please watch mayoral candidate, likely future mayors are on Mamdani's, stop sending me money video because his contributions are maxed out under our city mayoral matching scheme, so he needs hours but not dollars anymore. And he just made the most harming video telling people that, and I loved it. So watch that if you haven't. And finally, I am reading a beautiful short story collection right now. Usually I'm more of a novel girly than a short story fan. Like, I like them sometimes. But I absolutely love this collection. It's called The History of Sound, which is the name of one of the stories.

But they're all so far, so beautiful. That's all I got today. Melissa asked us to share, she unfortunately wasn't able to join this episode, but asked us to share her favorite headline, which was, quote, Trump's Treasury Secretary threatens to punch housing official in the face, end quote. And that was in the Washington Post. And it was at a members-only club in Georgetown. And this was, the housing official in question was Bill Pulte. So there's a tie-in. He's the individual who has unearthed this alleged mortgage fraud involving Lisa Cook. Strictney is a crooked media production hosted an executive produced by Leah Lipman, me, Melissa Murray, and Kate Shaw.

Produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. We get audio support from Kyle Seiglin and show. Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeline Herringer, Katie Long, and Ari Schwartz. Matt DeGroote is our head of production, and we are thankful for our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at YouTube.com slash at Strict scrutiny podcast. 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, please rate and review us. It really helps.