Strict Scrutiny - How the 303 Creative case threatens to roll back the 21st century

Episode Date: December 12, 2022

The Supreme Court recently heard 2.5 hours of oral arguments in 303 Creative v. Elenis-- the case about a Colorado website designer who doesn't want to create wedding websites for gay couples. The arguments were absolutely bonkers, with justices invoking kids in KKK uniforms, Black mall Santas, dating sites for people seeking affairs, and re-education camps. Leah, Kate, and Melissa recap the arguments and what they may portend for the future of LGBTQ rights.  Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Welcome back to Strict Scrutiny, your podcast about the Supreme Court, the legal culture that surrounds it, and the insane mall that it inhabits. Guess what, folks? The band is back together, as you can hear. Leah is back with us, and not a moment too soon. So we are your hosts. I'm Melissa Murray.

I'm Kate Shaw. And I'm Leah Littman. And I just got off a red-eye flight, so I'm not responsible for anything I say in this episode. It is what we in the business call off the record. That is the Katherine Hahn wink. Yes, if you didn't know this, podcasts can be off the record. This will be our first one. Yes, definitely on background. Chatham House rules apply here. Nothing we say can be used against us in any fashion. So we are going to spend the entire episode today recapping just one crazy case, because honestly, there's so much to say about it that we couldn't talk about it for less than

an hour. So that's 303 Creative versus Olenis. The mall reference should have given it away. But yeah, we have been doing this for a while now. And this is one of the craziest weeks we've had on the SCOTUS beat. And this argument is, you know, maybe the craziest that we have had a chance to debrief. So buckle up. It initially appeared to cement a solid Democratic majority in the Senate, which should mean judges, judges, judges, and more judges. But then Friday morning, news broke that Arizona Senator Kristen Sinema was leaving the Democratic Party and switching her party affiliation to independent. It's not totally clear whether this is just about the

inevitable primary challenge, although I think it's mostly about that. Nor is it clear, although she seemed to imply that she was still going to be caucusing with the Democrats like the other independents in the Senate, Senator Sanders and King. So TBD what this means for judges. But I don't know. I mean, either way, there are still a lot of confirmations to get done. So judges, judges, judges should be the order of the day. And I should say that even though she has been an incredibly unreliable Democratic vote on legislation, and actually some executive branch nominations as well, she's actually been decent on judges. So I hope that this is not a major bump in the road to getting all of the pending nominees confirmed and all of the open seats filled. As we've mentioned many times, there are a lot of people who are just waiting for their votes. Dale Ho, Julie Rickleman, the list is long. We're really excited. All these folks should be confirmed, if not by the end of

this year, at the very beginning of next. There are also some new vacancies to fill. We hear that George Hazel, who is a district court judge in Maryland, and Gary Feinerman, who is a district court judge in Illinois, are both leaving the bench, which is really interesting. They're both really great judges. And I hear on background that they are both friends of the pod. And to be very clear, what does a friend of the pod mean for this purpose? Well, it definitely does not mean that we have purchased a home across the street from their homes. And it does not mean... Nor does it mean we're flying them out to our second homes in Jackson Hole, Wyoming, which, by the way, I don't have.

Just a ride home after an intimate dinner for four when somebody falls ill. We might be offering that. I mean, again, it is a purely casual and social relationship, nothing more. But because it is a very casual and purely social relationship, we are very excited to see what comes next for these judges. So best wishes to them, and best wishes to the Senate Judiciary Committee to fill those seats. Biden White House first, right? And then Senate Judiciary Committee, but you guys know what to do. And maybe one more beat on this. I mean, I do think that the cinema defection should be a reminder that whether we're talking 51 or 50, like these margins are still razor thin.

And there are members of the Democratic side in the Senate who are not spring chickens. And I don't know, people leave the Senate occasionally before a term is done. Like it just, it's not the majority, whatever the actual number is. People get sick. People have surgeries. People get COVID and can't vote. Yeah, there's all kinds of things that happen. And so I just think they need to be moving with a sense of profound urgency on judges. Yeah, that's what I say to my kids in the morning when we're on the way to school. Like, can you please move with a sense of purpose and urgency? And they just look at me. I feel like the Senate does sort of the same thing, but we can continue to ask.

Let's get to the recap. So the court heard last Monday 303 Creative versus Elena's. And wow, what a way to start the week. This was absolutely bananas. It was scheduled for 70 minutes. It actually went for about two and a half hours. And honestly, it felt like two and a half years, dog years, right? So there were a lot of low lights that we need to discuss.

So Leah, can you first briefly recap this case so we know what we're talking about before we get into the absolutely bananas depths that the court took us to? Yeah. So this case is supposed to be about a would-be Colorado web designer, Lori Smith, who is challenging Colorado's anti-discrimination law. That law requires providers of goods and services to provide those goods and services on an equal basis, including prohibiting discrimination on the basis of sexual orientation, among other characteristics. Smith, however, says she does not wish to design websites for same-sex couples

planning same-sex weddings. And she says that this Colorado law, which by its terms requires her to provide her commercial services to all on an equal basis, violates her free speech rights under the First Amendment by compelling her to either speak or remain silent against her views. First up to the podium for this argument was Kristen Wagoner from the organization Alliance Defending Freedom, arguing on behalf of the would-be web designer Lori Smith. Sidebar, did you two note any interesting other names on the brief with her? So there was John Bursch, who defended the Michigan marriage law or prohibition on same-sex marriage in the Michigan case that was consolidated with Obergefell. And also Erin Hawley, who's a former law professor who

was married to Josh Hawley. So, you know, Wagner was not alone in this endeavor. Another thing to note up front, though sort of curious, but Kristen Wagner somehow managed to cast her argument in favor of Laurie Smith, the website designer, the would-be website designer. She cast her argument as one that was genuinely about respecting the values of pluralism and diversity. And I just wanted to flag that because that's going to be important as we go along. And yes, that would be the line from the would-be designer who wants to refuse services to clients seeking websites for same-sex weddings because she believes same-sex marriage is wrong or false, as she said numerous times. Not sure what that means. Wegener also repeatedly invoked the prospect of members of

other groups being forced into activities if Smith loses, like she would allude to the lesbian graphic designer or the Jewish baker or the democratic speech writer, and some particularly... I think that last one could definitely happen. Right, yeah. So we'll get into the fundamental misunderstandings of public accommodations law that were just rife throughout this argument, but some particularly egregious examples of this line or depiction from Wagner is when Wagner mentioned Lori Smith's, quote, LGBT friends, saying the law protected not just Smith, but also her LGBT friends. And she also said in her rebuttal that her argument is, quote, rooted in love of neighbor, just a little bit much.

It's an interesting take, I think. I mean, on the one hand, it reminds me of when, you know, that whole sort of line of discussion, like, you know, I'm 100% not racist, because look, I have my black friends here. Like, I'm reminded of this, because of course, I'm watching Harry and Meghan right now. And like, you know, there was that whole period of time after the Oprah interview, where Meghan accused the royal family of having been racist toward her. And then like every member of the royal family was kissing a black child for like five weeks afterwards. Like that's the kind of energy it was. And that's all I have to say about this line of argument. Okay. One more beat on at least the opening phase of this argument, which I think definitely was woven throughout, which is that in the opening, remember Wagner analogized Smith wanting to design websites for opposite sex but

not same-sex weddings to a, quote, black sculptor who carves a custom cross to celebrate a Catholic baptism but not an Aryan church rally. She says that sculptor, that is whose rights she is before the court trying to vindicate. And I just, you know, I think people heard a lot about the dystopian mall hypo and Black Santa, but you might have missed the Black sculptor asked to produce an Aryan cross like 90 seconds in. There was just so much white supremacist rhetoric just invoked throughout the argument. It was actually kind of stunning. And I do think people became numb to it. But that cropped up both, I think, you know, an early indication of what the argument was going to look like, but also an example of the argument Laurie Smith's lawyer was making, being framed as actually about defending the rights of people like a Black sculptor

being asked to produce racist sculpture art. I mean, Kate, you know, just like abortion and withdrawing abortion rights is about preventing black genocide and allowing for the expansion of the Second Amendment is about enfranchising and making true citizens of black men. This is really about black people. It's not about Christian evangelicals. It's about black people and redressing the racial injury that obviously would happen when a black sculptor is asked to sculpt an Aryan cross. I mean, the amount of material, Melissa, that will be fodder if you want it to be for your

many follow-on articles to your racing row piece in the Harvard Law Review, which is about the deployment of this logic. Racing the Constitution except for the Equal Protection Clause. That's what it's going to be called. Anyway. Oh, my God. Student editors, keep your eyes out for that. It's going to be lit.

There's going to be an asterisk. It's going to be like Equal Protection Clause excluded. Okay. Before we get too deep into the argument, let's try to introduce a few other themes that kept popping up throughout the argument. One of these themes was the difficulty of disaggregating speech from expression and creators, like people who engage in the creation of expressive content on the one hand, from those who are mere purveyors of ordinary goods and services on the other, which is important. Yeah, and it matters because there isn't really a question, although

I worry by saying there isn't really a question, I'm tempting faith that there will soon be a question. But at least now there just isn't a question about the fact that it's perfectly constitutional for a law to prohibit a commercial seller of ordinary goods or services from refusing to sell items or to serve customers under anti-discrimination law. That is, an anti-discrimination law can say the Apple store can't refuse to sell you an iPad because you're a queer woman. But the ADF says, what if the good or service you're selling isn't just some ordinary good or service, but something expressive or something that looks a little bit like speech, like a limited edition iPad with special Jack Phillips cake art on it. That's how ADF is attempting to introduce the constitutional

question in the case. Another really big theme in the case was the distinction between status discrimination, which ADF seemed or at least paid lip service to agreeing can be constitutionally prohibited under public accommodations laws, versus conduct discrimination, which ADF said is an entirely different case. So status discrimination is where you're discriminated against because of who you are. So discrimination because of sex or because of sexual orientation would be status discrimination. Conduct discrimination, on the other hand, is where you're treated differently because of what you do.

Again, a very interesting distinction of who you are versus your conduct entirely. And ADF is saying, well, public accommodations law can prohibit discrimination on the basis of status. And my client, Lori Smith, is not engaged in discrimination on the basis of status. And again, kept saying Lori Smith is not discriminated against people because of their sexual orientation. It's just she's discriminating because they're a man marrying a man or a woman marrying a woman that's marriage to someone of the same sex conduct rather than being gay or lesbian, which is a status. This is literally their argument. I'm just stating it. No, this is actually quite common. There are a ton of family law cases litigated in the late 90s, early 2000s, where lesbians or gay men are losing custody of their children. And the argument is,

we're not taking away your children because you're gay. We're taking away your children because you were engaged in a gay lifestyle or gay sex or something like that. But those arguments, right, were supposed to disappear after Lawrence and Obergefell recognized that in this context, there isn't a distinction between that conduct and status. That would not jibe with rolling back the 20th century, Leah. Here we are. But it did feel like this argument was unfolding in a pre Lawrence world. And Lawrence for, you know, nearly 20 years ago, struck down state like criminal prohibitions on same sex sex. And I thought kind of eradicated this false line between status and conduct. So, you know, if this distinction didn't make a lot of sense, as you

listen to the argument, or as we're describing it now, like you are not alone. But that is what the attorney for Lori Smith kept returning to. She would say things like, Lori Smith will serve LGBT patrons. She just won't provide wedding websites for them. And in addition to kind of the pre-Lawrence quality of this logic, it is actually the same line of argument that cake artist Jack Phillips used in Masterpiece Cake Shop, right? You know, he insisted that he was 100% happy to furnish a gay man or lesbian with a rainbow birthday cake because they were born. I just say no, and I'm quoting Jack Phillips here,

to wedding cakes. And the idea that there's some separation between status and conduct here is, as we're saying, just kind of ludicrous. And it reminds me of this moment at the Obergefell oral argument where I thought Justice Kagan was honestly gonna murder John Bursch, you know, who was on the brief, as you noted, in this case and had argued Obergefell oral argument where I thought Justice Kagan was honestly going to murder John Birch, who was on the brief, as you noted, in this case, and had argued Obergefell in defense

of states being able to exclude same-sex couples from marriages. So let's just play those clips here. It must be that you're drawing distinctions based on sexual orientation in these laws. Oh, gosh, no, because the state doesn't care about your sexual orientation. What the state cares about is that biological reality. I'm not asking about your reasons and whether you have any or not, but whether you have any or not, you are drawing distinctions based on sexual orientation. That's what these laws do. No.

A statute that facially classified based on sexual orientation would look very different. What these statutes do is they have disparate impact. And you would have to demonstrate then under Washington v. Davis and Feeney that there's some animus that motivates this. But as you said in Bray v. Alexandria, 100% impact doesn't necessarily mean animus. We still have to determine a discriminatory intent. What did we say in Bray, something about if you prevent people from wearing yarmulkes, you know that it's discrimination against Jews. Isn't that what we said in Bray? Same thing here. The Bray versus Alexandria case

that I was talking about was the one that affected abortion and your ability to have that, which on its face affects 100% of women. Sorry, the piece that I'm talking about said what I said. Right. I'm glad you played this clip, Leah, because again, we have been saying for a long time that despite Justice Thomas's concurrence in Dobbs, the fact of rolling that same-sex couples exist in the public sphere is actually a quite immediate and imminent threat. And I'm not sure that people appreciate that. But back to Wagner. So Wagner couldn't even hold down this distinction between status and conduct. So let's play a clip of her discussing this point with Justice Barrett. Ms. Wagner, can I ask you a question about a heterosexual couple? So in response to Justice Sotomayor's questions, I took it that your website where you say why a wedding website, you go through and it seems like careful, Ms. Smith was careful

to say things like, I fully customize the look, feel, theme, message, color, palettes, et cetera. say things like I fully customize the look feel theme message color palettes etc and then there's the engagement story page and inspired by a page inspired by you and written by Lori that captures and conveys the cherished storybook of your love so I want to ask you a hypothetical about a heterosexual couple that comes to your client and their wedding story you know that they want to write under the engagement story page, goes like this. We are both cisgender and heterosexual, but that is irrelevant to our relationship, which transcends such categories. We knew we were soulmates from the moment that we met, and on and on. Would your client publish that site?

Yes, she would publish the site because her objection, assuming that the marriage is between a man and a woman, she would publish it and that there's no message. Even though that narrative, I assume, is inconsistent with her biblical views about marriage. I really love it here when she just basically conceded that she would publish a wedding website for a straight couple to celebrate gay marriage, but she is 100% not discriminating on the basis of status. And even Justice Barrett seemed to want to phone a friend for her to intervene. So this was, I thought, a very devastating admission, but folks were right there with brooms and dustbins trying to clean this up, like clean up on aisle six. Yeah. And just to take a beat on the how devastating an admission it was, right, just to be crystal clear, this should mean that Smith loses, right? It should be kind of case

ending because it means that she actually is discriminating against people because of who they are, not because of what they're doing or what message they are allegedly sending. Because in the hypothetical, this is a straight couple sending the same message, but the initial reaction is, oh, their website is fine. And as you just alluded to, Melissa, Barrett 100% understood how devastating this admission was. And she specifically comes back to this question and is like, you misspoke earlier, right? Your client wouldn't publish that website. And at that point, the lawyer was like, oh, yeah, right, Amy. She wouldn't publish that website is what I meant to say. My bad. She's like, that was the off the record part of the oral argument, just on background. Back on the record, definitely wouldn't publish that website. So we're all in the same place.

Yeah. And a few thoughts on this, aside from the fact that you basically had ADF conceding this case involves discrimination on the basis of sexual orientation and status rather than whatever made up kind of discrimination they're trying to cloak it under. It's just like, okay, you want to call this discrimination on the basis of like conduct or message, but like, which men want to marry men, which women want to marry women, sexual orientation is defined by intimate attraction and intimate relationships with people on the basis of sex. Like even if you can define this as conduct, it is inextricably bound up with identity and status. It's just so stupid. Well, the stupidity seems somewhat lost on Neil Gorsuch, who did continually try to rehabilitate,

although I think pretty inartfully, this theory. So let's play a clip here. Except for that runs into all those stipulated facts in which the plaintiff has said repeatedly that she will serve everyone and she would deny everyone this kind of website. But denying everyone? Everyone, regardless of status. Right. Neil, my guy, seriously? She would deny a same-sex wedding website to everyone, apparently. But who is requesting a website for a same-sex wedding? Ostensibly people having same-sex weddings. And of course, to paraphrase the indomitable Elena Kagan, who adverted to another case, Bray, who is wearing yarmulkes? If you are going to discriminate against people wearing yarmulkes, who are you actually discriminating against?

And that kind of was the point here. There are some kinds of conduct that are so inextricably intertwined with identity that to discriminate on the basis of conduct is to discriminate on the basis of status. And Deputy Solicitor General Brian Fletcher, who had the last argument in this case, in defense of the Colorado statute, I thought very explicitly and really effectively made this point. There's also the stipulation in this case that Smith wants to post on her company website, quote, I won't make same-sex wedding websites. And in some ways that kind of gives away the game, right? Because it collapses whatever imaginary distinction there might be between status and conduct. It almost feels like Smith's entire argument seems to maintain that, you know, not just weddings, but same-sex couples and like LGBT individuals are somehow

conveying a message by their very existence. You know, like that's, I think, like the insidious core of the argument that they're making. It's also a pretty damning admission. It's sort of like, you know, the very existence of gay people is what I find to be the false or offensive message. And it's the false or offensive message. And it's a false or offensive message that she says offends like her religion. And it reflects to me like a somewhat impoverished view of religion, like really the core feature of your religion is that you don't want gay people to get married. That's it. It's not service to some community. It is not helping those in need. It's a defining feature of my religion. Something that is inextricably

linked to my religion is being opposed to people of the same sex getting married. And it's just, yeah. The fact that at its core, this is really about an objection to gay people. That is one of the many reasons this case is just so dangerous and that it could give license to discriminate against LGBTQ people in every corner of public life. I mean, that's what's at stake, I think, in this case. Yeah. And I mean, the entire argument had this horrible tenor to me, like a debate about the legitimacy objections to queer people's identity or like various parts of their identity and like which parts can you really legitimately object to. And it's occurring at this time where people are demonizing LGBT persons, particularly trans people. And the court is like legitimating those

objections as all of these things are happening. One of the things we've highlighted in earlier episodes is that the question of religious accommodation isn't actually a question here because the court didn't grant certiorari on the free exercise question. It's instead a speech case. And the idea is that the state of Colorado is making her say a message with which she does not believe on the basis of her religion. Does that make it even more profound? I mean, like if she wins here, can you basically just say any kind of law that requires you to offer fair treatment to everyone on any basis is basically forcing you to say something with which you don't agree? It's kind of a heckler's veto for everyone. Yeah. I mean, it's funny. I sort of had the same thought as I was listening to the arguments.

Remember, we speculated a bit about why they might have taken the speech question, but not the religion question in this case. And I was like, wow, one really diabolical explanation that we actually didn't. We didn't even see this. So they could do the most expansive and maximalist version of like everybody gets an exception to any public accommodations law. Like, honestly, as cynical as we sometimes are about the court, I think we genuinely did not realize that.

We missed it. That might be what's afoot. You got us. You got us. Have to be partial next time. Next time. We'll get there. To go back to the point that Leah was making, I want to highlight this exchange between Justice Gorsuch and Colorado Solicitor General Eric Olson that really, again, focused on this question of defining the plaintiff's religious beliefs in really singular terms, the opposition to the existence of queer people. So let's hear that.

No, what they say is we will not sell to anyone, anyone, a message that I disagree with as a matter of religious faith, just as a speechwriter says, or the press release writer, the freelance writer says, I will not sell to anyone a speech that offends my religious beliefs. But here, they are defining their service by excluding someone based on their... That's their religious belief. You can't change their religious belief, right?

And if that weren't bad enough, the justices at other points in the argument did seem to understand that identity is bound up inextricably with certain things. Like in the exchange we just played, Gorsuch is basically like, but objecting to same-sex marriage is a core part of this person's religious identity. You can't separate the two. And yet somehow these justices believe you can separate same-sex weddings or same-sex marriage from sexual orientation. Like, come on. This is what I meant by such an impoverished view of religion. It's just like, really? Yeah. In this oral argument, nobody really focused on the realpolitik of sexual orientation, discrimination, and its impact. Nobody talked about what's going on about, you know, the shootings at gay nightclubs and, you know, what this might mean going forward for actual gay people in the world.

And I think part of that is because there is no factual record here that would even give us a couple of gay litigants like we had in Masterpiece Cake Shop who we could talk about and whose injuries we could probe and who we could connect to Laurie Smith's refusal to provide wedding-related services. And so I think a large part of how this argument came off and why it was so bonkers in terms of the hypotheticals is that there are no real facts here. I mean, when you talk about justiciability and this idea that having a true case or controversy gives you a set of concrete facts on which you can actually make a decision. This is kind of what they're talking about. Everything here is totally speculative and hypothetical. Totally agree with that. And I think that our friend Dahlia Lithwick had a great column in Slate making like basically precisely this point that is part of the reason

they were so focused on Lori Smith as the beleaguered victim here and how they were able to stay so focused on her as opposed to like the queer people who will be impacted by the court's likely decision is that there actually weren't any other parties or players who were concretely involved in this particular dispute, although they will be, you know, inevitably impacted by whatever the court decides. But whatever, jurisdiction is for chumps. We got a new sweatshirt. Yeah. Let's move on to the next big theme. And that's the difficulty and really the impossibility of ruling for the would-be website designer, Lori Smith, in a way that doesn't lead inevitably to providers having a constitutional right to refuse service to customers on the basis of characteristics or conduct, wink, like race, sex, religion, disability. You know, Kate, I think you have said on a previous episode that this case could augur in kind of the end of the American experiment, or maybe that framing is a bit strong, but the prospects here are like genuinely dystopian. Right, because we've been talking to this point about the impact on LGBTQ people. But I think as

a lot of the exchanges, and we'll get to some of them in a minute, made crystal clear, the logic of this case is going to extend essentially to everyone who otherwise, in the absence of this intervention by the court, would enjoy protection under public accommodation laws as a matter of federal law and many state and local laws. So I don't think this, I don't think the court is going to be able to articulate. In some ways, like it's incredibly problematic either way, like either they could try to say it's okay to discriminate against gay people in a way it isn't okay to discriminate against other groups, which would be horrifying. And I don't think they're going to try, although, as we'll talk about, there were some kind of, like, allusions to that. So that's unimaginably horrible. And it's also, I think, really horrible

to contemplate them saying, well, you know, anytime you have an objection to anyone on the basis of race or religion or sex or disability or sexual orientation, you don't have to comply with generally applicable nondiscrimination laws. So both of these prospects are like really chilling. And I think they're both real. I think they are real. who, as we know, as we've talked about, is part of an interracial couple, talked about discrimination against interracial couples and the way in which, at least initially, a lot of the objections to interracial couples were rooted in religious objections. So she brought that up. Justice Sotomayor also peppered Kristen Wagner, the lawyer for the Alliance Defending Freedom,

with questions about whether ruling for Lori Smith would open the door to those who don't wish to serve those with disabilities because they have beliefs about eugenics. Let's hear that clip. It doesn't have to be religious because we're not dealing with the religious part of this. I don't want to speak that message. I too believe that two disabled people getting married, telling their story of how they got in love, I'm not going to serve those people because I don't believe that they should be married. What's the difference between that and I don't believe black people and white people should get married? What matters is what the objection is that the speaker is being asked to create, and whether the objection is...

But if I just, that's my objection. I don't believe they should be telling their story. If you don't believe they should be telling their story, and what they're asking you to do is tell their story, then you don't have to do that. I thought this was really important, and Sotomayor brought up disability on a number of occasions, and I thought quite strategically. And I think it was strategic because there is a

position, and Smith's lawyer didn't take it really explicitly, although she came close a couple of times, but that might respond to the kinds of questions about race and race hypos of the sort that Justice Jackson was posing, with a response that says that race is different under the Constitution. And so government has an interest in preventing discrimination on the basis of race that just distinguishes the race hypos from the sexual orientation hypos. But you can't say with disability that the Constitution singles out individuals with disabilities for special protection, at least the Supreme Court has not said that in the same way it has with race. And so I think it's important to press on it because Wagner is basically saying in this exchange that they could refuse on the basis of some kind of eugenics commitment. And if that's the case, then this case, you know, is not by any means limited to sexual orientation. Let's move on and consider some of the other hypotheticals that were offered.

And again, this is where things really took a turn, I think. So on the question of race specifically and whether this issue would open the door to discrimination on the basis of race and other characteristics, Justice Jackson offered up another great hypothetical that surfaced again and again, including in a bizarro Alito world, how that would play out. So let's play that clip here. Can you give me your thoughts on a photography business in a shopping mall during this holiday season that offers a product called Scenes with Santa? And this business wants to express its own view of nostalgia about Christmas's past by reproducing classic 1940s and 1950s Santa scenes. They do it in sepia tone and they are customizing each one. This is not off a rack. They're really bringing the people in and having them interact with Santa children because they're trying to capture the

feelings of a certain era. But precisely because they're trying to capture the feelings of a certain era. But precisely because they're trying to capture the feelings of a certain era, their policy is that only white children can be photographed with Santa in this way, because that's how they view the scenes with Santa that they're trying to depict. I will just say, initially, I found it really frustrating that as much time as was spent laying out this hypothetical and laying it out quite clearly that Wagner never actually answered this question. She seemed to be saying that this wouldn't be entitled to First Amendment protection, although it seemed to me it was clearly expressive, like sepia-toned, it's a wonderful life pictures.

But she didn't even really offer a direct answer to that. And the justices were so busy interrupting her and interrupting each other that she kind of skated off scot-free, never having answered it. And it was a really good question and a quite devastating hypothetical. I think that to the extent that she said anything, and I totally agree, she'd like never, they just didn't pin her down and force her to give a direct answer. At one point, she did come pretty close to saying that you can discriminate on the basis of sexual orientation in a way that you can't discriminate on the basis of race. So let's play that clip here.

I am sure and that the message isn't in the product. It's not in the photograph. But even if this court were to find that it was, the court would still have to protect the speech. And the court could draw a line in a different place as it has juxtaposed loving and Obergefell in terms of the beliefs between same-sex marriage. And here I think she is basically saying that opposition to gay marriage has this like protective cloak around it because of some Obergefell dicta that obviously Alito is really focused on and we'll come back to some of his invocations of that dicta, but that that's not true about loving, right? The case finding a constitutional right to marry someone of a different race. But then Wagner also sort of seemed to say the court would have to protect the speech, meaning she would have to protect the photographer who doesn't want to let the Black families participate in the staged photograph. So

I genuinely didn't know what her answer to this was. And I found it maddening because it's such an important question. Well, I mean, I wonder if this was just genuinely like they were oblivious and like so busy, like sort of interrupting each other that they didn't pin her down and it was just sort of an oversight. Or was this like a case of she had six co-counsel up there sort of steering the conversation in other directions. Yeah. And just thinking about the implications when we're asking, you know, could this case open the door to discrimination on the basis of race or against interracial couples? Like, just kind of think about where the GOP is now.

Like, if you think there isn't going to be a case about some goods or service provider refusing to serve an interracial couple. You know, Donald Trump is having dinner with Nick Fuentes, a white supremacist. Ron DeSantis is literally engaging in human trafficking to terrorize migrants. And it's not so far off to imagine some GOP-ster saying, like, I don't want to serve an interracial couple or I refuse to do business with immigrants or, you know, not an immigrant because of their status, just someone whose conduct included being born in another country, whose existence is expressing the message that you can be human and born in another country. And also like this line that like race is somehow different.

I mean, the First Amendment does not only protect like good, legitimate, honorable speech with like good faith objections. So it's just yeah i mean leah taken to its logical conclusion this means that reverend shank does not have to find good matches for an interracial justice and and maybe that's good for democracy i don't know i don't know maybe there's a silver lining here i don't know five Maybe there's a silver lining here. I don't know. Five dollars that's happening in the off the record justice discussions. Anyway, there's also a really weird moment where Kristen Wagner revealed herself to be something of a Broadway aficionado. And she also seemed to suggest that Lin-Manuel Miranda would endorse her argument. So at one point, she again was attempting to press this claim that her argument in fever of Lori Smith actually

served pluralistic values and that these values existed on both sides. So she made this point that the Hamilton production wanted a multiracial cast, and too blunt an application of the civil rights laws would have prevented that. And so the TLDR, it seemed to me, was Lin-Manuel Miranda wants this. And I just wanted to know if anyone could get comment from Leslie Odom Jr. or Renee Elise Goldsberry because I'm sure they were both like, what the fuck am I doing in here? Like, how did we get here? This is getting at just this utter willful confusion about how public accommodations law works, because ADF, Wegener, the justices seem to be saying, well, if Lori Smith doesn't prevail, then public accommodations law would prevent Lin-Manuel Miranda from having a multiracial cast for Hamilton. And it's possible the justices truly do not understand how public accommodations law works or what are protected

statuses under public accommodations law. It's like they kept wanting to ask the question, like, imagine a law that isn't a public accommodations law, like requiring a speech writer to write for an opposing political party. But that is not public accommodations law. Public accommodations law is like selling a muffin or operating a hotel, not writing a speech. And you can't, for example, say like a public accommodations law requires a judge to express views that they disagree with or like write opinions that they disagree with or write opinions that they disagree with because writing speeches or creating a play or issuing opinions are not public accommodations offered to the public writ large.

They're not commercial services. And they know this. The justices know this. A few terms ago, they specifically invoked this argument in City of Philadelphia v. Bolton when they narrowly construed a public accommodation statute to say certifying foster care couples was not a public accommodation precisely because it was selective, discretionary, right not generally open to the public. And it's just it's so dumb.

But this is why they have to matchmaking services are not a public accommodation. No, that that's that's art. That's art, Kate. I mean, this is why they are trying to blur that line between sort of ordinary goods and services and the sort of other kinds of professional services or blurring the line between expression and speech, right? I mean, because they want to be able to say that this is outside of the scope because it requires this sort of like it's expressive or sensitive or you know requires this kind of discretion it's not a croissant it's not a muffin it's something else when in fact it might be a croissant it might be a muffin like and justice kagan made that point at least at the beginning of the argument with you know what

about a just to fill out the form kind of website like that's not not expressive. Anyway, are we getting to the good stuff now? I know there's so much more to say even before we get there, but I do feel like we've all been very patient and we need to now arrive at the point when Sam Alito enters the mall. Santa Claus. Here comes Santa Claus. We were debating whether this is like, he has so jumped the shark that like we can't even deploy nicknames. But Melissa, you just sprung Santa Claus on us. I was going to prepare for that. Seared into my brain.

Let's play the clip and then let's have a little chat about it. Just as Jackson's example of the Santa in the mall who doesn't want his picture taken with black children. So if there's a black Santa at the other end of the mall and he doesn't want to have his picture taken with a child who's dressed up in a Ku Klux Klan outfit. That Black Santa has to do that? No, because Ku Klux Klan outfits are not protected characteristics under public accommodation laws. And presumably that would be the same Ku Klux Klan outfit regardless whether the child was Black or white or any other characteristic. You do see a lot of Black children in Ku Klux Klan outfits, right? All the time. Suppose that, I mean... Can I, can I, can I?

Yeah. Yeah, is that all right? Sure. So I'm just going to say the war on Christmas is obviously when Black Santa takes on the White Walkers of the KKK, right? Like what other explanation is there for this whole colloquy? You know, I'm usually the person who is propounding different nicknames for Samuel Alito, but I think it is worth unpacking just the different layers of horror that were at play

in this comment. I mean, on one level, it's like, well, you know, is it racist to laugh about dressing up black children in KKK costumes? Edge case. Yes, it is. Edge case. We'll get to the edge case moment in a second. And it's like, how far away are we from Sam Alito authoring an opinion that presents the originalist case for Santa being white. And, you know, based on this argument, it appears not Marr. And, you know, Melissa, as you were just alluding to, according to ADF, Santa turning away minorities is an edge case. Like the lawyer here twice really does say it's either close or the photographer can turn away Black families. So let's play that clip here. I say that that same clarity of the message

isn't in that photo, but there are difficult lines to draw. And that may be an edge case, but this is not. And Sam Alito really thought he won the argument with this hypo because it's not just that he brought it up once. He did it again. He's like, and now I would like to go back to my Black Santa example. And again, the specter of this happening at the same time that, you know, the Donald Trump is like elevating like white supremacists and Twitter is relaxing its content moderation and policies in ways that all evidence suggests is causing enormous uptick in white supremacy, racism, anti-Semitism on the site. And it's just happening at One First Street too. And I mean, what was happening at One First Street? Again, it is like it is reverberated

since the argument on Monday. But I do feel like it's worth spending a little bit more time on it because so Jackson offers this historically grounded example of white merchants wanting to exclude black and other non-white customers. And she, I think, very deftly constructs this question to make it about artistic production. So it does fall like squarely within what Smith is arguing. And rather than like pause to think about the implications of all of this, where does Sampta, where does bad Sampta's mind, Sam Alito's mind go? He goes to like children in Klan outfits at the mall. Like what malls does he frequent?

I mean, I feel like I have to interject here to recuperate the Garden State because there are a lot of malls in New Jersey and I've been to many of them, including one of my favorites, the mall at Short Hills. And I have to say, this is not happening at the mall at Short Hills. So I have to conclude that this is only happening in the mind of one Samuel Alito, right? So to be very clear, this is not a normal place to go. Like this isn't – I didn't think this was a normal place to go after that hypothetical. Like you go from It's a Wonderful Life immediately to black kids and clan costumes, leaving aside the whole idea that like his understanding of white culture is the clan.

I mean, that's kind of part of what's going on here. Did I miss that or did I make that up? No, I mean, because like this was part of the insanity. It's that to him, there's a correlation between kids in KKK costumes and being white such that maybe people in KKK costumes are protected under public accommodations law because it's a proxy for being white. And also he seems to suggest that Santa would only be offended by this if Santa was black. Were black, yeah. It's just like, no, like, Santa doesn't want, I don't know, I'm Jewish, maybe I don't know, but like, it feels like Santa is not cool with KKK costumes.

The other part of this is like truly gross was that, you know, on Twitter, there were conservative defenders who were like, Justice Alito did not bring up the black children in KKK costumes first. It was Justice Kagan. Justice Kagan was the racist here. And if you listen to the clip, that wasn't what happened. Justice Kagan wanted to clarify Solicitor General Olson's remark that the KKK costume and the wearing of the KKK costume wasn't a protected characteristic. And that would be the case

whether it was a black person or a white person in the KKK costume. But she didn't like change this to like, you know, I have a great idea. Let's talk about black kids in clown costumes. Like that was all our boy Sam Alito, fresh off a facial, deciding to bring chaos to this oral argument. Just like, again, to think about the analogy that he is drawing, right, with this hypo, because Jackson is talking about a Black family at the mall and this like fakakta hypo that Alito poses does feel like it's positing an equivalence

between that family and kids, whether they're Black kids or white kids, in Klan outfits. Like these are not normal modes of legal reasoning or argumentation. They just aren't. I mean, the hypo was so insane, it made it into the congressional hearings later in the week about Operation Higher Court and the Hobby Lobby League. So here's Representative Mondaire Jones in that hearing discussing this.

During oral argument this week in a case called 303 Creative, which threatens to undermine the rights of LGBTQ people in our economy to not be discriminated against. Justice Alito joked about black children dressing up in KKK costumes. His remarks caused many Americans to question his mental fitness. But even before his antics this week, Americans had reason to question his mental fitness. But even before his antics this week, Americans had reason to question his integrity. Also, I wanted to say something about the laughter in the clip, like the laughter you can hear in the courtroom. You know, on some level,

I'm sure some of it is an uncomfortable laughter, and I say that as I am an uncomfortable laughter, but when I do that, I say, just so you know, like, sometimes my response to discomforting situations is to laugh. So it's clear I'm like not laughing with someone. And it just feels like this horrible microcosm of a Supreme Court bar that has never practiced the muscle of questioning someone with authority. And instead, it has just become so normalized to look up to these justices and treat the court as normal that when you have a justice making this horrible hypothetical with racist, and he's laughing about it, that you laugh too.

It's just practice speaking up and saying something, people. It's just horrible. If you see something, say something. Right. And newsflash, when you see Sam Alito, you are seeing something. Say something. Okay, this actually feels like an opportune moment for an errata from last week. So we have to follow up on something that we said about the Percoco argument. And Leah was out. And so I blame Leah's absence for our potential oversight. I did say that I thought this was more on the Kavanaugh level and not the Alito level. That's true. No, that's fair. That's fair. Anyway, for folks who missed last week's episode,

we thought that a question that Alito asked about a term limited governor who was then replaced by his wife, but where the governor was really pulling the strings, might have been a reference to a Clinton conspiracy theory. But an astute listener wrote to us suggesting that the term-limited governor Alito was referring to might actually have been former Governor George Wallace. And honestly, in light of the conversation we're having today, that actually does sort of feel like it checks out. If you don't remember, George Wallace is the segregationist governor of Alabama who stood for his inauguration on the steps of the Alabama Capitol and said famously, segregation now, segregation tomorrow, segregation forever. And he later ran for president in 1968 on a

segregationist platform. And so the real question and the reason why I raise this is, why is all of this on Sam Alito's mind? Also, I would like to bring a pop culture aside. Angelina Jolie won a Golden Globe for her portrayal of Cornelia Wallace, who was George Wallace's much younger wife and the ostensible puppet in his third term as governor. And she won that for her 1997 portrayal of Cornelia Wallace in the biopic George Wallace with Gary Sinise. And it's a really good. So if you don't know anything about George Wallace, that's a great way to get up to speed. I've never seen it. I will. It's great. It's great. Yeah. So there's been a lot of galaxy brain on display already in this conversation. But speaking of galaxy brains, we have to at least briefly talk about Alito's discussion of the Josh

Blackman amicus brief. Let's just do it briefly, but we have to talk least briefly talk about Alito's discussion of the Josh Blackman amicus brief. Let's just do it briefly, but we have to talk about it. Just when you think things can't get any weirder, Alito raised some hypos from an amicus brief filed by law professor Josh Blackman. So we've spoken about this law professor before. This is the person who wrote a post on the Reason blog, or I think it's also called the Volunt Conspiracy blog, about how Jews, or at least Reform and maybe even conservative Jews as well, don't actually have real religious beliefs and therefore cannot have religious liberty claims. And so basically, it was sort of an end run around the religious

liberty grounded objections to abortion restrictions or prohibitions. And we flagged it before as, you know, completely cynical, really gross, possibly, definitely anti-Semitic take. But this is the guy that Justice Alito is quoting from. So were you surprised? I don't know. After everything else that had been said in this oral argument, this didn't shock me at all. I just chalked this up and put it on my bingo card. It wasn't the peak of weirdness, but it was pretty weird. So let's play this colloquy between Justice Alito and Justice Kagan, sort of inspired by some hypos in Blackman's Brief.

An unmarried Jewish person asks a Jewish photographer to take a photograph for his J-date dating profile. Is it a dating service, I gather, for Jewish people? It is. All right, maybe Justice Kagan will also be familiar with the next website I'm going to mention. So next, a Jewish person asks a Jewish photographer to take a photograph for his AshleyMadison.com dating profile. I'm not suggesting that. I mean, she knows a lot of things. I'm not suggesting that. Okay.

Does he have to do it? Listeners, like, is it funny to suggest your female colleague is on or is familiar with a website that enables men to cheat on their wives. I mean, look, as most women who have been subject to this kind of humor, air quote humor in the workplace, no, like it doesn't make the problem go away when the person then says, well, I'm not suggesting or this is just a funny joke. Ha ha ha. Like it invites people to think about you that way. It is extremely like dismissive. It just. Also, is it super sus that you don't know what J-Date is, but you do know in a very clear way what AshleyMadison.com is? Relatedly, is it super, super sus to broach such a hypothetical and connect it to your female colleague after a New York Times story dropped suggesting that a Reverend Schenck, for example, was deploying his best couple matching matchmaking skills

to influence you? I mean, this is all giving like 1970s key party vibes. Like, am I missing something? This is weird. Why would you even say that? Not like a key party with- Not a key party with Elena Kagan. He's not inviting Justice Kagan to it. No, he's just like, why do you know all of this?

We're not dragging Elena into the key party. But why do you know all of this? And why do you think you can talk about it in oral argument of all places? I'm just worried that like with each passing week, we are getting a closer and closer look into Sam Alito's mind. And it's somehow even more horrifying than I thought. Yeah. And in terms of all of these insane hypos, there is sort of a serious point to make out about them, which is that they kind of all go back to the absence of an actual factual record here, right? Like this case is in this

pre-enforcement posture. If there were real questions about what the Colorado Supreme Court might do and like what the law does and doesn't cover, they could certify a question to the Colorado Supreme Court, but they don't, right? They're just using these hypos to distract from real people and real harm. And, you know, sometimes hypos can be helpful here. They were like, you know, Jacksons, I think, were very helpful, like lots were, but many of them were just a distraction. So between Kagan and Sotomayor and Jackson, you know, Kristen Wagner had a pretty rough go the first part of the argument. You know, one clip I wanted to play is this exchange where Wagner was trying to make excuses for why she didn't answer Justice Kagan's hypotheticals

and Justice Kagan was not having it. So let's play that clip here. She provided a number of hypotheticals. So in terms of assuming- Just one, Ms. Wagner. Just the one. You could answer it. Not that hard, bitch. I also wanted to bring, again, this is in the vein of really wild statements. This occurred during the argument presented by Colorado Solicitor General Eric Olson, which is also where the Ashley Madison hypothetical came up. And I think that's why this sort of

skated under the radar a little bit. So Justice Gorsuch really wanted to revisit the plight of masterpiece cake shop baker Jack Phillips, who, remember, won his SCOTUS case. The court punted, saying that he had experienced animus or discrimination at the hands of the Colorado Tribunal that initially heard his case. But Justice Gorsuch reentered the chat to note that even after Jack Phillips won his case, he was required by Colorado to undergo compliance training to make sure that he understood and would comply with the terms of the Colorado public accommodations law. And Justice Gorsuch insisted that this kind of compliance requirement, this training requirement was akin to attending a reeducation camp. So let's hear that.

Mr. Phillips did go through a re-education training program pursuant to Colorado law, did he not, Mr. Olson? He went through a process that ensured he was familiar with- It was a re-education program, right? It was not a re-education program. What do you call it? It was a process to make sure he was familiar with Colorado law. Someone might be excused for calling that a re-education program. I strongly disagree, Justice Gorsuch. Thank you, Mr. Rawls.

And I mean, wow, like this, I think, flew under the radar a bit like the Aryan Cross at the beginning because people were just like reeling from Black Santa and the kids in Klan gear. But I don't think we should overlook that equating a training to bring you up to speed on state anti-discrimination principles, trainings that many people have to do all the time, trying to analogize those to re-education camps, which I gather is a reference to communist prison camps. Or the Cultural Revolution and Maoist. Communist prison camps in Vietnam, I think Maoist camps in China. Either way, that's what re-education camps refers to. And I think it just requires some pretty profound historical illiteracy and also to kind of reveal something about the sort of the intellectual milieu that Gorsuch is out of.

Oh, this is straight out of Fox News that talks about DEI trainings as like re-education. I mean, that's where this is coming from. So this is all part and parcel of that. So do they say re-education camps on Fox News? They might. I don't know. I mean, I'm not listening to Fox News all of the time, but I do think that conservative groups, when they talk about these mandatory trainings in the wake of Me Too or that require D&I training, they talk about them as like indoctrination, re-education, things of that nature. And again, equate them with an over encroaching state also when you say something like this and you're still only like the second or third most offensive justice oral argument i mean i think justice alito got one and two here exactly exactly like

one for black santa two for ashley mad, and three, Neil Gorsuch. Neil could only hope for a bronze here. Right. Like, dude, you're going to have to do a triple sow cow if you want to win gold here. Okay. All right. There was one point, I have to say, when, you know, Justice Jackson, who obviously went very hard at Lori Smith's lawyer. At one point, though, she did seem to maybe be floating like a Masterpiece Cake Shop-esque compromise that made me a little nervous,

honestly. I don't know that she was at all committed to it, but let's play that clip here. Isn't part of the problem trying to figure out whose statement of opinion it is when you have a public accommodation, when you have an artist for hire, right? Ordinarily, you would have an artist who, even though they're making custom, you know, things, they're making custom things based on their own views and opinions, and this is my art. But when you have an artist for hire and people come to them and say, here's what I'd like you to make, there's a question about whether what

they make is their statement or the customer's statement. So if it was clear that it was not their statement, let's say the gay couple comes and they say, we want God bless this union on our website. And the web designer says, that's fine, but you understand under our name at the bottom, we say on every website, we believe that marriage is only between one man and one woman, and we're going to put that on your website. Justice Alito says maybe that person will walk away, and it's clear that it's not their statement, then do we solve the difficult Justice Kagan problem of, like, who's making an expression here? Should we have that as part of our standard in the holding? Like, let's say we don't want to go as far as you're suggesting, perhaps, with the holding in this case. Could it be that we would say, you know,

the First Amendment protects the web designer's abilities to, you know, not have this kind of a same-sex wedding website only if it would be clear from, you know, a neutral observer or from the audience that having that website is their own expression. So, I mean, we'll see, right? Obviously, Justice Kagan and Justice Breyer were on board with what the court did in Masterpiece Cake Shop, which was, again, on a very narrow sort of grounds, as Melissa just described, to side with Jack Phillips, but to send the case back. And I think there was a lot of puzzlement at the time that Breyer and Kagan joined the conservatives there. And so I think it'd be unfortunate if this case involved some sort of similar disposition. I mean, an off-ramp

would be great, obviously, given how kind of cataclysmic the substantive options are here. But punting for another day doesn't seem to be the answer to me either. I also wanted to play another clip of Justice Alito. In addition to Justice Jackson perhaps floating this compromise, I think one of the reasons why she might be thinking of compromise, if she is thinking of compromise, is because Justice Alito was just really hammering the idea that this language in Obergefell around religious believers and their sincerely held objections to same-sex marriage is where this case begins and ends. So let's hear Justice Alito on that point. In Obergefell, did the court say that

religious objections to same-sex marriage are the same thing as religious or other objections to people of color. Also wanted to flag, at one point, Justice Alito basically elicited an answer from Colorado Solicitor General Eric Olson that revealed that Colorado actually was not going to try to stop Smith from including messages on her website that she disapproves of same-sex marriage. And now you might think that Sam would approve of this, right, as it shows the state trying not to intrude anymore on the expressive activities of its merchants then required by the important need to prevent the kind of discrimination that, you know, actually allowing merchants to refuse service would represent. But instead, Alito kind of had the opposite reaction, which is that he had this kind of hissy fit about how narrow the state's objection was. So let's play that clip here.

What I'm trying to understand is the breadth of your argument. And what I get is that you're making a tiny sliver of an argument. So the website can put anything on its website, even something that will blatantly or subtly tell a same-sex couple, well, this is not a service that I want. They can do that. Sam Alito is America's source winner. He just can't stand to win unless he wins in the biggest way possible. And everyone tells him how brilliant and principled his win is. It's just over it. So we've talked at length, obviously, about Smith's argument. We've talked about Colorado Solicitor General Eric Olson, the last advocate up to the lectern, Brian Fletcher, the Deputy Solicitor General, I thought was really strong. What'd you guys think?

I thought he was great. Yeah, I thought he was really great, particularly on bringing out the similarities between Lori Smith's challenge in this case and the Supreme Court's prior decision in Rumsfeld v. Fair when it had said, you know, law schools that have an objection to the military's don't ask, don't tell and recruitment policies are still obligated to give access to the military as part of their employment recruiting for law students. And Deputy S.G. Fletcher noted that that access oftentimes included writing messages, right, emails and, like, putting out notices that says, like, here's where this employer is going to be. Here's how you meet with them and, like, providing services for them. And I thought he was really great at holding a line that like, to the extent there's any speech here, it is only speech that is incidental to,

you know, conduct the provision of goods and services, right, that has to be given out without discrimination on the basis of status and, you know, correcting Justice Gorsuch when Justice Gorsuch was like, there's radical agreement here on the principles and Fletcher is like, okay, what are you smoking? And yeah, so I thought he was really great. In the very brief rebuttal, Laurie Smith's lawyer invoked kind of the specter of creeping authoritarianism, which, you know, that the Colorado anti-discrimination law represented. And my reaction was just like, yes, but not how you're suggesting, like literally the

opposite of how you're suggesting, like literally the opposite of how you're suggesting? Well, it was like one of Justice Kennedy's final opinions on the court was this concurrence in NIFLA versus Becerra, in which he likened, you know, California's law that required unlicensed crisis pregnancy centers to disclose the fact that they were unlicensed to the creeping specter of authoritarianism, while within the same week he voted to uphold President Trump's Muslim ban. I mean, just the dissonance there is off the charts. Right. Particularly when you have sort of wake of Dobbs, individuals being denied access to abortion care and being required, compelled to carry pregnancies to term. It just seems really clear. People have very different ideas about what creeping state authoritarianism is. Forced birth, nope, not authoritarian.

DNI training, uh-huh. Yeah, that's definitely what fascists do. This was literally a rollicking two and a half hour ride where you are literally strapped into a roller coaster that was made of popsicle sticks and you thought you were going to die several times and it just kept going and going and going and you couldn't get off. That's what it was like. And if this commentary isn't enough for you listeners, I would recommend Alexandra Petrae's piece in the Washington Post, which is titled, Welcome to the Supreme Court's Hypothetical Christmas Mall Village, in which she surveys this oral argument. And I won't do justice summarizing it, but definitely worth checking out. Here's a spoiler. She's brilliant. Black Santa is involved.

So listeners, obviously, this was an enormous, enormous case and oral argument. And this is on top of the fact that there was another enormous, enormous oral argument this week in Moore v. Harper. Obviously, we don't want to overwhelm you. And you've spent so much time here. And, again, Black Santa is the gift that keeps on giving. So don't worry. We are going to come back to Moore v. Harper. Black Santa will put another coal lump in your stocking next

week. And we will add our recap of Moore versus Harper to our favorite things to leaven it up a little bit, like make it a little lighter than it normally would be. And we'll talk about Moore versus Harper in that episode, which is coming to you soon. So just hold tight. This one lump of coal will be enough to get you through until then. So don't worry. Before we go, we wanted to let you know about one of the newest Crooked podcasts that you should all be listening to, Work Appropriate. If you've ever messaged a friend about a manager who won't stop texting after hours or a co-worker who keeps posting weirdly suggestive Austin Powers GIFs in Slack, you're not alone. On Work Appropriate, author and host Anne Helen Peterson sets out to find solutions

to these oddly specific yet completely universal listener-submitted questions. Whether you work in an office chair or a sixth grade classroom, the problems may be limitless, but so are the solutions. Listen to Work Appropriate now wherever you get your podcasts. New episodes drop every Wednesday. Dear Anne, I work at a government institution and one of my co-workers just asked me if I know what AshleyMadison.com is. How do I handle this? Yours, EK. Dear Anne, is it work appropriate to bring up Black Santa in some sort of weird, twisted hypothetical and invite everyone in a government office to laugh at your twisted racist hypothetical. Is that okay? Signed, Anonymous. She definitely needs to do a Supreme Court. Definitely. Definitely. I mean, I have to say, I went to the Moore versus Harper argument. Maybe

I'll talk about it when we recap the argument. But it was my first time like inside the building and, you know, since the pre-pandemic era. And I was kind of curious, like to do a vibe check on that bench. And it does not seem like a happy place to work. Like just the tension between the justices. What gave it away, Kate? I'm just saying there is, there is, it is even worse, I think, when you see it in the flesh than I realized. And I already thought it was really bad. There's just like the palpable tension between some of these like pairs of justices is like visible. This is the teaser for next week's recap of Moore versus Harper. Stay tuned.

Strict Scrutiny is a Crooked Media production hosted and an executive produced by Leah Lippman, me, Melissa Murray, and Kate Shaw. It is produced and edited by Melody Rowell with audio engineering by Kyle Seglund and music by Eddie Cooper with production support from Michael Martinez, Sandy Gerrard, and Ari Schwartz, and digital support from Amelia Montooth. Stay naughty and nice or Black Santa will come get you.