Strict Scrutiny - How the GOP is Trying to Steal the 2026 Midterms

Episode Date: August 11, 2025

Melissa and guest co-host Imani Gandy of Rewire News Group break down the week’s legal happenings, including how Texas Democrats are attempting to thwart that state’s gerrymandering efforts, college admissions in the age of Trump, and more Epstein fallout. Then, Melissa chats with Duke Law Professor Brandon Garrett about his book, Defending Due Process: Why Fairness Matters in a Polarized World. Finally, Leah speaks with University of Michigan Law Professor Richard Primus, author of the new book The Oldest Constitutional Question: Enumeration and Federal Power. Check out Imani’s podcast Boom! Lawyered.Hosts’ Favorite Things:Melissa: Tom Lake, Ann Patchett; The Midnight Library, Matt Haig; How the George Floyd Protests Changed America, for Better and Worse, Justin Driver (NYT)Imani: Palisade Peaches; Revenge; Death Stranding; Brit BoxGet tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 10/4 – ChicagoLearn more: http://crooked.com/eventsGet tickets to CROOKED CON November 6-7 in Washington, D.C at http://crookedcon.comBuy Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesFollow us on Instagram, Threads, and Bluesky 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

Strict 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 precedent, shattering norms, and dropping a few billion. The same people in groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church state separation is the bulwark blocking their agenda. One of the last bastions of church state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools at the Supreme Court in a case we've talked about on the podcast.

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Mr. Chief Justice, please support. It's an old joke, but when I argue men 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. Bonsorno and welcome back to Stricts scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host today, Melissa Murray, and I am back from a much-needed summer sojourn in Croatia and Italy. Yes, that is right, listeners.

I am the Neil Gorsuch of this podcast because I had the most fantastico time in Dubrovnik and Rome where I saw amazing art, ate amazing pasta, and regaled my friends with amazing tales of textualism and ice truckers. Just kidding about the last part. We never talked about the textualism. In fact, it was a vergonia, if you will, very missed opportunity. Anyway, folks, this is all to say that your girl is back, but I am without my trusty co-hosts, Kate. and Leah. But don't cry for me, stricties, because help is on the way. Happily, as part of our rotating summer respite schedule, I will not be alone for long.

In fact, I am joined today by a very special guest host, someone whom I've known for a very long time and have admired for even longer. So please give a warm strict scrutiny welcome to Amati Gandhi, the co-chief content officer at Rewire News Group, and the co-host of Rewire's absolutely terrific podcast. Boom, Lawyered. Thank you. I'm so excited to be here. I just have to tell this story to your listeners, because I don't know if I'm going to get another chance, but it was about 10 years ago that I was in the offices of Sister Song. It was like my, I was right in the beginning of my journey along the reproductive justice road. And they had, they had your copy of your reproductive justice textbook. And I was like, oh, it's Melissa Murray's textbook. I love her. And so I have a

picture of me from 2014 with your textbook like it must have it just come out so yeah like i think the first edition came out in 2014 right after hobby lobby um yeah like so it's so different now the book is literally only three pages it used to be like 346 like all the rights go i don't know all the rights all the justice gone gone um i'm joking listeners um there actually is still a textbook and it's still about 400 pages with lots of stuff, lots of stuff that this court has done. But guess what? All of that is to say that Amani and I are a great team, and we have a banger of an episode for you today.

As is our summer habit, we are going to start by recapping some of the news from the Article 2, Article 3, Vortex of Shame, and Gird Your Loins. There is a lot of news. Then we will have two terrific interviews for you. First, we'll feature my interview with Duke Law School's Brandon Gaines. Garrett about his recent book, Defending Due Process, which considers the age-old question. Is due process a pillar of the Anglo-American legal tradition or merely a luxury item that we can all do without? A legal burkin bag, if you will. After that, Leo will talk with her Michigan

colleague, Richard Primus, about his riveting new book, the oldest constitutional question, enumeration and federal power. How does that sound, Amani? Are we ready to dive in? Let's do this. I'm excited. Let's get going. quite me horrified because it's Donald Trump's America after all. After all. Anyway, let's start with some breaking news. And it is breaking news for real, for real, because we just got an opinion in JG versus Trump. So these developments in this case continue to come fast and furious. It is the case concerning the deportation of Venezuelan migrants to El Salvador under the

auspices of the Alien Enemies Act. That is that 1700s era wartime statute that is being used to deport migrants to a maximum security prison in El Salvador. And as you'll recall, listeners, in March, Judge Bozberg of the D.C. District Court ordered the Trump administration to turn around the planes that were heading to El Salvador and to return the Venezuelan migrants who were on those planes because the administration says that they are members of the Venezuelan gang, Trend de Aragua, to return them back to the United States for proceedings that accord with the requirements of due process. The administration, as we know, did not heed that order. Thereafter, in April, Judge Bosberg issued an order and an accompanying opinion, finding that

there was probable cause that some federal officials had willfully violated the temporary restraining order that he'd issued, meaning that those individuals could be found to be in criminal contempt. Bozberg offered the government an option to purge the putative contempt by asserting custody over the removed individuals or proposing other methods of complying with his order. And he also stated that if the government opted not to purge, it had to identify the executive branch officials who, being aware of the court's TRO, made the decision to persist in the deportations to El Salvador. Bozberg further stated that his next step would be, quote, to request that the contempt be prosecuted by an attorney for the government, and if the government declines or the

interest of justice requires that he would appoint another attorney to prosecute the contempt. So really strong measures from a judge who basically had it with people playing in his face. And then naturally, the administration took all of this personally. It appealed Boseberg's ruling to the D.C. Circuit seeking an emergency stay of the order or a writ of mandamus terminating the criminal contempt proceedings. The circuit quickly issued an emergency stay and took some time to consider the mandamus request. And then last Friday, the D.C. Circuit issued a 2-1 ruling granting the government's motion for a writ of mandamus and excoriating Judge Bowsberg for overstepping his authority. Now, the lineup should surprise exactly no one. The two judges in the majority were Greg Katz's and Naomi Rao, both of whom are Trump appointees. And then Judge Nina Pilar was in dissent and she is a Obama appointee.

That's right. We got this on Friday, just as we were about to tape. this. So we are literally unpacking this in real time. The ruling was issued as an unsigned procurium opinion, but both Judge Katsis and Judge Rao filed concurring opinions elaborating their positions. Judge Pallard also filed a dissenting opinion. And we haven't had a lot of time to unpack all three opinions, but I did go through them quickly. And I just have a couple of things that really stood out to me on this very quick cursory reading. First of all, Judge Rao really seems to think that the real problem here is district court judges. And as she writes, quote, the order forces a co-equal branch to choose between capitulating to an unlawful judicial order

and subjecting its officials to dubious prosecution. It's a very strange way of putting it, but please proceed. Your mileage may vary. This is incredibly wild, I think, especially in light of the fact that all of this is proceeding under the auspices of the Alien Enemies Act, which is a wartime statute, and no one has shown that it has any applicability during peacetime. So the idea that this is all plausible and fine, and it's the judge who's being unlawful seems just, again, really wild and crazy. It is doubly wild, I think, in light of all of the public reporting on Arez Ruveni's whistleblower complaint.

Erez Ruveni was one of the government's lawyers that was charged with presenting these materials to the courts. He was the one who dealt with the Ibrego-Garcia case in Judge Zedens' courtroom. He has said in many public statements in his whistleblower complaint that everyone was aware that Judge Bozberg wanted those planes turned around. And so the idea here that it's the judge, that's the problem, as opposed to DOJ officials, is really interesting. You know, the whistleblower complaint alleges that DOJ officials were intent on

completing the deportation, despite what Judge Boasberg had ordered, and they basically had no qualms about giving the court the middle finger on this. So, again, just absolutely wild in my view. Amani, would you think of the Katz's opinion? I mean, I thought the Rao opinion was out there, but what did you think? I mean, Judge Katz's opinion is no better, right? It reads like magical thinking, which is to say, it totally inverts and rereads the facts of the case and the government's interactions with the district court. Katzis writes that the government was not willfully defiant because Judge Bostberg never really asked them to turn the planes around, which, okay, that part actually did make me laugh out loud. I was like, um, like he literally was like

turned the planes around. Like he literally was like, hey guys, turn these goddamn planes around. I just literally, he writes, quote, in its show cause order, the district court itself disclaimed two of these three commands referenced in its oral order. It stressed that it had never imposed any freestanding requirement to turn planes around, and it repeatedly denied having imposed any overarching requirements to return suspected Trenda Aragua members to the United States. You know what, Melissa, I'll have what he's having. Yeah, he's, he's, it's the good stuff, for sure. It's the good stuff. This reminded me of the proceedings before Judge Bosberg, where, you know, Judge Boseberg had issued this sort of oral order, and then the lawyers were like,

well, you didn't put it in writing, so I wasn't sure that I was supposed to put, it just feels like it's the same move that the government lawyers were making before, only this time it's been translated into judge talk and now has been made part of the federal reporter. I mean, it is just absolutely wild, and I think shocking that it's coming from a member of judiciary commenting on the work of a fellow judge. Yeah, I can't imagine as a practicing lawyer being like, well, it was just an oral order from the bench, so who knows what I'm supposed to do? So I'm sure that more will come from all of this and we will continue to cover it, but

this was an absolute bombshell on Friday morning. Anyway, Amani, you know what I really hate? Please tell me. I hate it when you're president and you push a wildly aggressive, probably unlawful, and deeply unpopular agenda in the first six months of your administration. And Congress is like, you know what, champ, all of that sounds great. Keep doing you. And the voters are like, I don't know. I can't wait for the midterm so we can get some new people in here, flip the House of Representatives, and maybe get a less supine Congress, which then prompts you as president to think,

hmm, what could I do to avoid the midterm curse whereby the party in power loses seats in Congress? what could I do to maintain, maybe even expand my party's majority in the House of Representatives while keeping the people from using this upcoming midterm election to make their voices heard and achieve the policy changes that they want? By now, listeners, the answer should be obvious. What's a president to do? Maybe engage in a little off-cycle nonsenses redistricting among friends, or, if your mileage varies, a little light anti-democracy among friends. So again, if you are the president, you might in these circumstances prevail upon the pliant governor of Texas, for example, and ask him to draw some new districting maps in order to find you the president five new congressional

seats, enough seats to hold and even expand your house majority. And even though this is wildly unorthodox because we just did a census, the pliant governor here, Governor Greg Abbott of Texas, is fully on board. He is like, yes, sir, may I have another? No problem. Would you? you like fries with that. And here we are in the middle of Texas's new ploy to redistrict the state and give Donald Trump new seats and maybe even more authority in the House of Representatives to push his agenda into the remaining time in office. Yeah, it's great. It's really great. But let me add some additional context here. It's a good plan. It's a good plan. It's a fantastic plan. When Donald Trump came into office in January 2020, the House Republicans had the smallest

majority ever seen in Congress in the last 100 years. And it was a problem. And it was a problem for them. Like, not a huge problem, but a problem. But a bit of a problem. A little bit. Not only are the Democrats in striking distance to flip the house in the midterms. Even if the GOP maintained control of the chamber, a thin majority like the one that they

had in the 119th Congress makes it hard to be as aggressive as the president and handmade speaker Mike Johnson want to be. For example, the Republicans had a lot of trouble getting the big, beautiful bill through the house because of the narrow GOP majority. All you need is like Chip Roy saying asking questions and all of a sudden you're in deep trouble. So it makes sense that they want to expand their majority. So it's easier to pass new regulations on cryptocurrency, which they had a lot of trouble

doing with this thin majority in the house. The big beautiful bill would have gone through faster, maybe would have sounded less corny if like they'd had more of a majority to pass it. Who knows? But expanding, the majority certainly seems to be part of this, not simply just holding it, but actually making it bigger so that they can be more aggressive moving forward. Right. And that's because currently in the House of Representatives, the Republicans have a 219 to 12 majority with four vacancies. So it's not great for them, right? And that means that Democrats only need to win a handful of seats to win back the House in the midterm election. Winning back the House means that the Democrats would be able

to push back harder on the administration's policy agenda, have more robust oversight authority, and have the simple majority necessary to issue articles of impeachment, you know, if that sort of thing It's all coming together now. It's all coming together now. You definitely don't want a House in Democrat control. I can see it now. Right. And I'm not saying that anyone is worried about these things, right? Like, who's worried about articles of impeachment giving the rampant lawlessness running through this administration? But it does give a sense of the stakes and why someone would go to such extreme lengths to thwart democratic engagement. Well, happily, Amani, at least some Texans have a spine about this. So the Democrats in the Texas legislature recognizing

that Governor Abbott would need a quorum in the legislature to move forward with this plan to redraw Texas's maps, they decided that they were just going to leave the state. The most epic Irish goodbye in history. Absolutely epic. So they chartered a plane and they flew to Illinois literally to escape Greg Abbott. Absolute legends. But Governor Abbott is not one to give up, especially when he has a president to please. So Abbott ordered the Texas Department of Public Safety to arrest the Democrats and bring them back to Austin. But there's one small issue. The Department of Public Safety

doesn't have jurisdiction outside of Texas so they can't actually bring the legislators back, right? Federalism, you pesky federalism, you rats. And so Senator John Cornyn, Texas's senior senator, that is not the gentleman from Cancun. Oh my God, you are a real fan of the podcast. Oh my gosh.

We said that way back in the day when Ted Cruz went to Cancun. I can't believe you remember that. It's Ted Cruz, they're crying online for crying out loud. But John Cornyn called on the FBI to get in the mix to bring the legislators back to Austin. And according to Cornyn, the FBI agreed to help out. Great. And so it seems like there are some people who think this is a good idea.

Let's roll the tape. Should the FBI get involved? Well, they may have to. They may have to. No, I know they want them back. Not only the attorney general, the governor wants them back. if you look, I mean, the governor of Texas is demanding they come back. So a lot of people are demanding they come back. You can't just sit it out. You have to go back. You have to fight it

out. That's what elections are all about. Just like ridiculous. I don't want to be the turd in the punch bowl here, but I would really love to know what role federal law enforcement has to play in a state legislative dispute. But, you know, the president thinks it's probably okay here. and, you know, he seems to have a great grasp of these federalism principles, all to say that I think Leah, if she were here, would call all of this a vibe. Not necessarily law, but a vibe. No law just vibe. Isn't that y'all's catchphrase? We have many catchphrases. One of the many catchphrases. It seems unclear that the FBI actually has jurisdiction to intercede here and forcibly bring the legislators back to Austin, but John Cornyn says that they are getting involved, and, you know, whatever federalism be damned. In any event, Governor Abbott has taken a more traditional route to bring these recalcitrant legislators back into line. So last Tuesday, he filed an emergency petition in the Supreme Court of Texas seeking to remove from the legislature, Texas state representative Gene Wu, whom Abbott described as the quote, ringleader of the

derelict Democrats. According to Abbott, the legislators have abandoned their offices justifying their removal. The Texas court gave Representative Wu until Friday evening to respond. Now, it's not clear that Democrats have a long-term strategy here. Texas state legislative positions are part-time gigs, so these legislators have real day jobs and families that they will need to return to at some point. Abbott has until December to get these maps redrawn for use in the 26 election. And it's not clear that Democrats can hold out for four more months, right? And it's not clear that their families are going to want to hold out for four more months without seeing, you know, mommy or daddy. Right. They've done this before. This isn't the first time Texas Democrats

have fled the state, but usually it's meant to draw attention, public attention, and this has certainly done that. What is clear, though, is that if this absolutely brazen ploy to thwart democracy so that Texans cannot register their preferences in the midterm's works, it's going to embolden other state legislatures to similarly engage in mid-census redistricting to hold the House of Representatives for this president. And it's a race to the bottom. Like blue state governors have indicated that they are ready to respond in kind, although it's unclear whether they would be able to do so in time to counteract

what Texas is doing in the upcoming midterm election cycle. But they're ready, and this just builds and bills. and it goes straight to the bottom. It's also clear, I think, that a big portion of the blame for what is happening right now lie squarely at the feet of the United States Supreme Court, which in 2019 concluded that federal courts had no role to play in addressing partisan gerrymandering.

And that decision in Rousseau versus Common Cause midwifed what we are seeing right now. States literally going to the mattresses and doing absolutely insane shit to redraw district lines in order to consolidate one party rule. And again, it's the same court that is hobbling the Voting Rights Act, which, incidentally, turned 60 years old last Wednesday on August 6th. It's the same court that blew up the VRA's preclearance regime in Shelby County v. Holder in 2013 that hobbled Section 2 of the Voting Rights Act in Bernovich v. D&C. And now, in Louisiana versus Calais, which was held over from last term, this court could further whittled down Section 2 of the VRA by making it harder, maybe even.

impossible for states to draw majority minority districts to ensure that underrepresented minorities actually do have representation in congressional districts. So thanks, guys. You're doing great. Hell of a job. Got to love that white voters are complaining about two majority black districts. Get a grip. Nice. Speaking of brazen employees to thwart democracy, the Trump administration has reprised its quest to mess with the census, ostensibly to influence the allocation of congressional seats. Now, listeners, this requires us to take a little trip down memory lane. So listeners, you'll recall that in the first Trump administration, the president directed Secretary of Commerce, Wilbur Ross, to add a citizenship question to the census. And he said it was necessary

to do this because we had to enforce the Voting Rights Act. That became a catchphrase on strict scrutiny as well. Well, that ploy was rightly challenged in the courts and ultimately the Supreme Court shut it down, although only after Thomas Hofeller, a major GOP strategist who was known as the Michelangelo of partisan gerrymandering, died and his estranged daughter in the most epic act of pettiness and filial betrayal discovered and made public a cache of documents on Hofeller's hard drive that included reports that said that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats and consolidate certain states under Republican control. So that's the backstory of that. And although the court ultimately ruled that the administration's stated reason for adding the census question to better enforce the Voting Rights Act was quote unquote contrived and likely a pretext for.

for discriminatory motive, you don't say, it didn't actually rule on a related question. And that related question was whether the president can actually exclude non-citizens from the census, which brings us to 2025. On Thursday, President Trump made the following announcement on truth social. Quote, I have instructed our Department of Commerce to immediately begin work on a new and highly accurate census based on modern-day facts, figures, and importantly, using the results and information gained from the presidential election of 2024. Sidebar, not quite sure what presidential election results have to do with the census, but I digress.

He continues, people who are in our country illegally will not be counted in the census. Thank you for your attention to this matter. That's literally what it says. But what is clear is that a census that excluded, non-citizens would violate Section 2 of the 14th Amendment, which requires the, quote, whole number of persons in each state to be included in census data used to determine how presidents and members of Congress are elected. It also seems likely that the president taking unilateral action to change the census would violate the separation of powers. Article 1 of the Constitution

in powers Congress, not the president, to carry out the quote, actual enumeration. of the country's population in, quote, such manner as they shall by law direct. And in Title 13 of the U.S. Code, Congress directs the Secretary of Commerce to follow a once-a-decade census schedule. So what you're saying here, Romani, is that the 14th Amendment is like,

you've got to count everyone. And Article 1 is like, also Congress plays a role here. You just don't get to do this, you know, laterally. And the president's like, Constitution. I don't even know her. Like, what's that? Yeah.

Yeah. 14th Amendment? Never heard of it. Well, I mean, it's getting a major assist from the court and like completely undermining and whittling away the 14th Amendment, but we digress. In any event, listeners, it's unclear whether the president wants to change the 2030 census or whether this is about a mid-census headcount, like between two censuses. And whether this shift will have real effects on how we think about congressional apportionment or whether it's just, again, a head count. So I think what is clear, though, is we shouldn't look at this as a disaggregated effort, but rather should think about it in tandem with what is happening in Texas right now

in this effort to redistrict that state and maybe other states in advance of the midterm elections. This is all about trying to redraw these lines, redraw these districts, and consolidate control in both state legislatures and in Congress. strict scrutiny is brought to you by zbiotics pre-alcohol let me tell you if there's a surefire way to wake up feeling vacation fresh after drinks with friends it's with pre-alcohol zibiotic's pre-alcohol probiotic drink is the world's first genetically engineered probiotic it was invented by phd scientists to tackle rough mornings after drinking here's how it works when you drink, alcohol gets converted into a toxic byproduct in the gut. It's a buildup of this byproduct, not dehydration. That's to blame for rough days after drinking.

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So if you are unsatisfied for any reason, they'll refund your money, no questions asked. Remember to head to Zbiotics.com slash strict and use the code strict at checkout for 15% off. You want to know what else is going on here? When I hear about how the administration is burning birth control rather than sending it to needy people in Africa? Yeah. Tell me about it. Let's go.

The dismantling of USAID has had serious consequences for global aid efforts. And now the New York Times is reporting that the Trump administration is using the destruction of USAID to kill Trump. Two birds with one stone. That's efficiency. That's efficiency right there. That is very efficient. Doge.

Somebody called Elon Musk. Doge. Apparently, it's not enough to abruptly end global aid to developing countries. You have to really stick it to women around the world while doing it. The New York Times is reporting that the administration plans to incinerate over $19 million worth of contraception that was stockpiled in Belgium for distribution to third world countries under the U.S. AID program. $19 million. Just like burning it? You heard that right. Just like literally setting it on fire. Just legitimately setting it on fire. Rather than selling

the contraceptives to NGOs that are willing to take these materials off our hands, the United States would prefer to set these materials on fire ablaze because we're ending government waste, apparently. Wow. So according to the New York Times, quote, it is not clear why the government would not sell or donate the contraceptives. The department in its statement referred to policies preventing the U.S. government from providing aid to overseas non-governmental organizations, NGOs, that provide or help with access to abortions based on a rule that the Trump administration reinstated. That rule is what's known as the global gag rule or the Mexico City policy, which is a U.S.

government policy that restricts foreign NGOs receiving U.S. global health assistance, from performing or promoting abortion as a method of family planning, even with their own non-U.S. funding. Now, if you're wondering, what on earth might the Mexico City policy global gag rule, which deals with abortion, have to do with stockpiles of contraception? You are asking exactly the right question. So, Amani, I'm not quite understanding how all of this fits together. So please tell me how burning contraception helps limit the spread of abortion across the world. I mean, before I get into that, I think we need to talk about the fact that there's not a better

metaphor for this flaming dumpster fire of an administration's priorities than literally setting birth control on fire. Diaphram's a blaze. Right. A blaze. Flaming marinas everywhere. Flaming marinas. That sounds like a shot that you would have at a bar.

It is a good cocktail, right? I'd like a flaming marina. But let's be clear. This is obviously not about ending government waste. This is about punishing women and people capable of becoming pregnant. This is about letting ideology override science and basic human decency. Because when you're so committed to controlling people's reproductive lives that you would rather incinerate millions of dollars worth of contraception than dispatch it to people who desperately need it, that's really just performative cruelty. Because there's no reason why he doesn't just hand over all the contraception to Jared Kushner and let him sell it,

you know, put another $19 million back into his pocket. No, they're burning it. Allegedly. Allegedly. Allegedly. Allegedly. And you are absolutely right to tie this to the global gag rule, which has been proven over and over again to increase abortion rates and maternal mortality. So if this were truly about reducing abortion, the data just doesn't support these kinds of measures. But we both know, it's never been about reducing abortion, right? It's about punishing people, especially poor, brown, and black people for having sex,

for trying to live lives on their own terms, for wanting control over their futures. And to be very clear, back to your original point, like how does any of this have to do with abortion? All of this is undergirded by right-wing junk science that insists that certain forms of contraception

are actually abortifashions. To be clear, birth control pills are not abortifashions. IUDs, flaming marinas are not abortifashions, right? Emergency contraception is not an abortion. But conservatives have been running a decades-long propaganda campaign to conflate contraception with abortions so they can attack both at the same time. Because in their view, a fertilized egg is a person.

And if a contraceptive prevents that person from being implanted into the uterus, then that contraceptive caused an abortion, right? And this isn't an accident that they're using this junk science. It's a strategy for creeping fetal personhood. That is actually really efficient. You can strike a blow at global aid. You can strike a blow at reproductive rights. And you can make the push for fetal personhood all in one fell swoop.

Burn it to the ground. Yeah. And you can also own the libs, which is really like the driving force of most of what they do. Speaking of creepy person, oh, actually, you said creeping person. Not creepy personhood. Peeping personhood. That was my mistake. Sorry.

Freudian slip. Anyway, what's that I hear, Amani? I think it's the sound of America getting healthier. No. Oh, sure. Nope. It's just secretary raw milk slash baby bear carcass cancelling existing government contracts to develop M RNA vaccines.

So just a reminder that actual scientists, not brainworm hosts, agree that M RNA vaccines are the best line of defense in a pandemic because not only are they effective, they can be developed really quickly, allowing you to respond in real time to whatever the pandemic issue is and to respond to any mutations in the disease as they arise. Well, remember how much fun the last pandemic was? Really fun. It was a hoot. It was a hoot. It did get a little bit better when vaccines became available and you can leave your house and stop wiping down your groceries with bleach wipes. But that may be a thing of the past and we may have to go into the next pandemic and

seems likely that there very well could be another pandemic without the benefit of this technology because our Secretary of Health and Human Services has decided to cancel all of the contracts for developing further mRNA technology and vaccines. is all part and parcel of RFK Jr.'s vaccine skepticism, right? And particularly his distrust of the COVID-19 vaccine, which was an MRNA vaccine. He called COVID shots, quote, the deadliest vaccine ever made. And in a social media post last Tuesday, he claimed that MRNA vaccines are ineffective against respiratory illnesses, like the flu and COVID. Scientists, real ones, actual scientists, vigorously dispute these claims.

Right. So the MRNA vaccine, I think that's the one that's used every year to update the flu vaccine. Like it's an – yeah. Okay. Again, I got nothing. Yeah. And, you know, some people have speculated that these contract rescissions will prompt lawsuits. Yeah. And so I guess we'll keep you posted, meaning Melissa Kate. And Melissa Kate and Leah will keep you posted. All right. Again, the war on expertise continues. And in this case, while we're speaking of actual expertise, or rather disdain for actual expertise, it's worth acknowledging that the President of the United States recently fired Dr. Erica McIntyrefer, who was the commissioner of the

Bureau of Labor Statistics. And this firing took place after the Bureau released monthly jobs data showing surprisingly weak hiring in July and large downward revisions to job growth in the previous two months. So she had to revise the statistics, President Trump says that this shows that they were always cooking the books or whatnot, although it's my understanding that the jobs data request goes out, people fill it out, but sometimes people fill it out late, and so you have to revise the data as new information comes in. So it's not unusual for the Bureau to issue revisions to its initial predictions. But in any event, experts reviewing the reports and the revised reports surmised that the reports

indicated that the administration's economic policies were actually beginning to have a negative impact. And so apparently, the president decided to truth through it, posting on truth social that the country was, quote unquote, doing great. And I honestly think that would have landed better if he hadn't fired Dr. McIntarfer and instead had dressed up like a tiger and offered the whole country a bowl of frosted flakes. I would have enjoyed a nice bowl of frosted flakes. I would have enjoyed a nice bowl of frosted flakes but instead Trump decided to fire the messenger always especially if the messenger is a lady right and maybe disband the bureau altogether apparently if there are no bad jobs reports then there's no bad economy like if a tree falls in the forest is there a bad economy

like this is the same thing they did during COVID like if we just don't test we don't know who has COVID and that means there's no COVID like it's exactly yeah it's really bonkers for what it's Worth, Dr. McIntarfer was appointed commissioner of the Bureau by President Biden in 2023 after a long career at the Census Bureau and other agencies, where she served under presidents of both parties, including Donald Trump. So, wait, he'd actually, she'd been employed by him before. Yes. You're fired.

It's probably what he said. You're fired. Yeah. You're fired. But notably, she was confirmed to the position with bipartisan support. To this position. Among those who voted for her confirmation was then, oh, Ohio's junior senator, Mr. J.D. Vance.

Okay, so I love that. So she served under Trump before. She was confirmed with bipartisan support, including J.D. Vance, who is then the junior senator from Ohio. And now she's too partisan to have in this position, so we have to fire her, all because she seems to be predicting that these policies, like the tariffs, whatever, are going to lead us down a bad path economically. Yeah.

Yeah. Allegedly. Allegedly. Okay. We haven't even scratched the surface. We're still going on the news more to discuss. On Thursday, President Trump announced a new requirement that colleges and universities submit their admissions data to the federal government to verify compliance with the

Supreme Court's decision in SFFA versus Harvard. That decision required schools to end their limited use of race as part of an holistic admissions process. The government now is also requiring Secretary of Education. Ms. Education, Linda McMahon, to increase the number of accuracy checks on the data that universities submit and to take action against any university that submits untimely or inaccurate data. Just want to note, we are to think of the federal government in its quest for efficiency and streamlining government processes now deciding to be America's best admissions counselors

and actually going through and reading through admissions files. But I digress. The education department is also going to require universities to revamp their processes for collecting higher education data. That's known as the integrated post-secondary education data system, and includes details about admissions, enrollments, financial aid. All of this information, apparently, will be made more accessible to the public. That sounds pretty weird and suss.

But my real question in all of this, Amani, is how is the Department of Education reviewing this data going to know that universities have been compliant? What do schools have to show for the administration to be satisfied that they are abiding by the law, right? I mean, like, the way that race was used before is that you considered race among other things, like whether someone was a tuba player and you needed a tuba player for your band or whether someone was from Alaska and there was no one from Alaska in your entire freshman class. Like how do you disaggregate all of these different component parts of someone's profile

to say that the real reason they were admitted was because of race? Like what is going to show that this is all quote unquote merit base? Does every admitted student have to have a 4.0 and a 1600 on the SAT? Is that enough? What are we going to do about legacies and recruited athletes who don't have perfect grades and perfect scores? Like, what is the measure here? I'm pretty sure the measure is going to be how many black and brown students are at the school. Right? I mean, it seems to me like... So you're going to actually have to show a real diminution in the number of black and brown students. And then they'll be like, yeah, you're compliant. This is all about merit. Right. Before you have 5%, now you have 1% perfect, doing great. Because it's like...

Because it's about racial supremacy and racial hierarchy. It's not about merit. it's absolutely not about merit because if it was about merit you get rid of the legacies right exactly like lacrosse players from brin marr or whatever would be out on their asses right like it's absolutely not about merit we're not checking the gpAs of you know field hockey players what they're really after is fewer black and brown students and it's so annoyed me that they they hung the harvard case around like asian students next like oh there aren't enough Asian students and Asian students are complaining. And now the Asian student population is like,

well, I mean, to be clear here, the government's intervention in this arena is predicated on the fact that the government disperses federal funding to these colleges. So as a condition for receiving these funds, they now have to submit to this regime. But I mean, it's a real question about academic freedom, a real question about how universities choose to cobble together their classes,

like what they're looking for, what values. they're trying to pursue. And again, I think you're right. We're going to see real changes in what colleges and universities look like. Again, as they seek to show compliance with a metric that I don't think is really about metrics. It's really not. It's really not. It's about fewer black students, fewer brown students.

More legacies, more athletes. Well, I'll say, this is interesting. Linda McMahon said that this will now assure everyone that, quote, aspiring students are being judged solely on their merits, not their race or their sex. And is this going to mean that all colleges are going to be like predominantly female now? Because the data shows that women applicants are much better positioned for entry and admissions than their male counterparts. And in fact, there was a story in the New York Times after the SFFA decision that talked

about how male candidates were so hotly desired by the colleges that schools like Wesley and we're actually creating football teams so that they could recruit men where they'd never had these before. So, you know, if we're doing this purely on merit, I guess all the ladies are going to be going to college and maybe the men won't. You think that's what they have in mind?

I feel like white ladies, this is your time to shine. Just get in there and go to the best Ivy League school that you can. Something tells me that's not what they're seeking. Something tells me that's not quite what they're seeking. And honestly, in my view, I really think that people should be judged on race and sex, right? Like if you look at how Brazil has done their affirmative action program, they actually left, they had quotas, and they left open spaces for Afro-Brazilians based on the slave trade.

And now the schools in Brazil are very diverse. There's none of that, oh, but they're affirmative action babies and they're going to be stigmatized. The people who had spaces held for them actually did as well or better than like the more elite students. So it's really just this country's just refusal to divest from white supremacy and also it's refusal to give black people any sort of reparations, even if it means, hey, go to school.

It's okay. We're not going to kick you out. All right. We still have some more news. Like, just never ending here. Do we get a drink break? Like a cocktail? I really do wish we could have a cocktail, like a mid-news cocktail.

But let's continue. you. Okay. Last Thursday, a federal judge temporarily enjoying the administration's efforts to build an immigration detention center in the Florida Everglades. And conservation groups and the Miccosucky tribe sued Florida and the federal government on June 27th, four days after Florida began setting up what Governor Ron DeSantis called a, quote, makeshift detention center located right next to the Everglades National Park and within the Big Cyprus National Preserve. And if you're not from Florida, as I am, you won't know, but these are two environmentally sensitive areas within the state where there are some endangered species, lots of plant life that people want to preserve.

In any event, within days, a tent facility that would house 3,000 detainees was erected, and the governor insisted that the facility was temporary and that the Everglades would simply grow over it once the site was eventually decommissioned. So there wouldn't actually be a negative environmental impact, I guess. That seems like weird science, but okay. All to say, though, that Governor DeSantis on the state of Florida seem really eager to assist the Department of Homeland Security in detaining immigrants. And there's actually plans to open another facility, another detention facility in North Florida.

But at least for now, a federal judge has paused the administration's efforts to continue developing alligator alcatraz while she has an opportunity to have a hearing on what the environmental impact would be both for the state and the affected interests, including the tribal interests here. I feel like the sewage waste alone is going to have a pretty remarkable environmental impact. And now for the story that will not die, no matter how much the administration tries to distract us with Sydney's Sweeney commercials. La Fair Epstein. No, I can't do this anymore. We still doing this.

It's just the story that won't die. I think now we sound like Donald Trump. Like, it's a little story that won't die. It was Obama and in the Clintons and it was probably, I know, Andrew Cuomo and that Anthony Weiner guy. It was all those people. It wasn't me. If you've been watching the news coverage of Representative Mike Flood's

town halls in Nebraska, you know that folks want transparency on the Epstein saga. Take a listen to this. Why are you covering up the Epstein? files. Well, it seems that House Republicans are going to give the people exactly what they wants. Sort of. Last week, House Oversight Committee Chairman James Comer, who's a representative from Kentucky, formally issued a subpoena to the Department of Justice to release the files. And this was two weeks after a House subcommittee voted to compel the DOJ to do so. So as some people noted, Comer's subpoena was sort of pro forma. He had to do it, but he did it. So there we are.

So in addition to the demand for the Epstein files, Chairman Comer also subpoenaed documents or testimony from several high-profile figures who had either investigated or associated with Epstein in the past. And the list includes Bill and Hillary Clinton, Merrick Garland, Jim Comey, Robert Mueller, Jeff Sessions, Bilbo Biggett, like why is he in there? Alberto Gonzalez and Bill Barr. Curiously, the subpoena did not seek the testimony of Alex Acosta, the one of the one. one-time U.S. attorney in the Southern District of Florida, who, according to a 2020 DOJ report, quote, made the pivotal decision to resolve the federal investigation by having Epstein plead guilty to state charges and laid the foundation for Epstein to enter into a non-prosecution agreement. Not going to lie, seems like a weird omission. Like if we're bringing in all the people who are relevant here or simply had government positions in a period of time, might have included him. just a little bit.

One would think. Notably, Alex Acosta also served as Secretary of Labor in the first Trump administration, although he resigned from that position in July 2019 amidst persistent questions about his handling of the Epstein case when he was the U.S. attorney in Miami. The subpoena that was issued to the Department of Justice sets an August 19th deadline for the department to hand over its records on Epstein and Galane Maxwell, that is Epstein's imprisoned associate. So I guess we will see what will come from all of this. I'm sure it will be total and complete transparency. Oh, 100%. We're going to find everything out about Epstein and Galeen

Maxwell. No doubt. 100%. Okay. All right. That was a lot of news. And we didn't even have time to cover the TikTok Calico Critters copyright lawsuit, which is wild. And honestly, listeners, you've got to look that one up. What's up ahead for us, though? So how? How do you? having covered all that news, we've got good stuff for you now. We ate the vegetables. Now it's time for dessert. So right up next, listeners, is my conversation with Duke Law Professor Brandon Garrett about his recent book, Defending Due Process. Stay tuned. Strict scrutiny is brought to you by Stamps.com. Life admin. It is the worst. All of those tedious tasks that add up and are just no fun, leaving you with less time and less energy to focus on what you

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That's Stamps.com slash strict. Well, listeners, the second Trump administration has given us no shortage of legal news to cover. But perhaps surprisingly, A good portion of the news that we have covered since January 20th, 2025 has actually involved principles that we thought were pretty well settled. Among them, the notion that the government cannot detain you, deport you, or deprive you of some benefit without giving you the opportunity to be heard. As many of you know, in March, the Trump administration detained a number of individuals from student protesters to alleged Venezuelan gang members. And as the lawyers for those individuals

maintain, these detentions occurred in the absence of due process protections, meaning that the individuals did not have an opportunity to challenge the government's decision to detain them, nor did they have the opportunity to present evidence that would cast doubt on the government's rationale for those detentions. In an oral argument at the D.C. Circuit involving the detention of alleged Venezuelan gang members, Judge Patricia Millett of the D.C. Circuit questioned the government's neglect of standard due process protections. Let's roll that tape. No, but the point here was that there were plain loads of people.

I mean, it was also, it's a class action. There were plain loads of people. There were no procedures in place to notify people. Nazis got better treatment under the Alien Enemy Act than has happened here where the proclamation required the promulgation of regulations, and they had hearing boards before people were removed. And yet here, there's nothing in there about hearing boards. no regulations, and nothing was adopted by the agency officials that were administering this.

People weren't given notice. They weren't told where they were going. And they were given those people on those plans on that Saturday had no opportunity to file habeas or any type of action to challenge the removal under the AEA. And like, you've agreed that two of those airplanes, people were removed under the AEA. As importantly, Judge Millett said the million-dollar question out loud. Here she is again. The question is whether the implementation of this proclamation without any process to determine whether people qualify under it.

I mean, if the government says we don't have to give process for that, then y'all could have put me up on Saturday and throw me on a plane, thinking I'm a member of Trendaragua and giving me no. chance to protest it and say somehow it's a violation of presidential war powers for me to say, excuse me, no, I'm not. I'd like a hearing. He wouldn't say that. That actually is the question. Do we still have due process? And if we're not sure that we still have due process, does that mean that the government can deport any of us without notice a hearing or any other kind of procedural protections? With that pressing question in mind, we thought it would be a good idea to talk to

Brandon Garrett. Brandon is a leading scholar of the criminal justice system in constitutional rights. He's also the L. Neal Williams Professor of Law, as well as the founder and faculty director of the Wilson Center for Science and Justice at Duke University School of Law. And perhaps most relevant for today's discussion, Brandon is also the author of a new book, Defending Due Process, Why Fairness Matters in a Polarized World. So Brandon, welcome to strict scrutiny. Thank you. I'm so excited to be here. Well, we are so excited to have you because we wanted to talk about due process, whether it still exists, and if it's been imperiled, why and what we can do about it. So let's just level set a little bit for those in the audience who aren't trained as lawyers.

When we say due process, what do we mean? Well, and to be fair to those of us who are lawyers, the basics of due process don't actually come up that much in law school either because we just assume that it's in the background, that of course, the government can't just do totally random and arbitrary things to people. But that's the idea that the government shouldn't be able to do totally random and arbitrary things to people. And so the idea is you have a right to notice and an opportunity to be heard before someone who is impartial before the government tries to take your life liberty or property away. And a big part of the Constitution, namely the Bill of Rights, is actually principally preoccupied with the whole notion of due process. So there is an actual due process clause in the Fifth Amendment. but a number of the other provisions in the Bill of Rights, those are the first 10 amendments to the Constitution, concern questions of due process. So there's the Fourth Amendment, prohibition on

search and seizure, has real due process elements to it. The Sixth Amendments, right to counsel, the right to a trial if you are being charged with criminal charges. The Eighth Amendments, prohibition on excessive penalties, all of these things really focus on these core attributes of due process. So where did the framers get this preoccupation and how is it threaded through other parts of our legal tradition? Well, and so the due process clause is also a right that's so important. So nice, we said it twice. It's in the 14th Amendment because after the Civil War was thought to be crucial to make sure that just like the Fifth Amendment says you can't deprive people of due process as federal officials after the Civil War. It was incorporated against the states.

The Due Process Clause of the 14th Amendment says state officials can't take away life, liberty, or property without due process. But due process was referenced in the Declaration of Independence. It was well understood by the founders that you cannot live in a free society if the government can take things from you, including your liberty, including your life, including your property, without some kind of a fair procedure. Ideally, and typically in court with a jury. Not always if it's not a criminal case, for example, or if it's not a civil right,

but whether it's public benefits or your job or are you, going to be detained, charged with a crime, or held without a crime. All these things were understood to implicate due process. It came from an old English due process tradition. Over the centuries, the English courts had emphasized with more and more rigor over time that you just can't have local officials or main government officials doing arbitrary things to people. That basically like, you can have police. That's okay. But that doesn't mean you have to live in a police state. Right. Okay. So these are foundational principles and they go back very far in our legal tradition, all the way back to the Magna Carta, you point out in the book.

Why then, if they are so foundational, are they now under threat? So I talk about three reasons. One is due process in society. People don't value due process the same way that our legal system does. And I have a lot of research on that. But it's understandable that people sometimes want to just, you know, I want to be treated with fairness, but criminals, fraudsters, non-citizens entering our country. they shouldn't deserve all the same rights. It's very easy to other people and figure, like, they don't deserve all these niceties.

Like, sometimes we need to get results quickly, and we can't be occupied with everything playing out in court. Second is, judges have eroded due process protections and weaken them in different ways over the decades. And third, I talk about the dangers posed by technology, including AI stuff, but also algorithms. We see this in lots of different settings. The government can do things, not just to one person,

but to hundreds of thousands of people with the push of a key. So one notion that you bring up repeatedly in the book is this idea of what's known as Blackstone's ratio. Yes. And this is the idea that it is better for 10 guilty men to go free than for a single innocent person to be wrongfully charged and convicted. And this is sort of foundational. Blackstone, who was a giant of the common law tradition, said it. But as you note in the book, there are. these cutting of corners? And people were like, actually, I'm really concerned that the 10 guilty

people are going free, perhaps more so than I am, about the prospect of a single person being wrongfully convicted. Why is that? Yeah, so Blackstone, English jurist wrote his commentaries that, although Thomas Jefferson hated Blackstone, but very... But he liked other things. But he liked other things. And in general, there's this idea that if you're going to convict someone of a crime, you have to be very, very careful. And so our Supreme Court has many times cited to Blackstone, and one of the ways that they do that, they say, like, why do we have a due process standard that you can't convict someone of a crime unless you have evidence beyond a reasonable doubt? Why do we have that very high bar to convict someone? Jurors need a lot of evidence. They need to be almost 100%

sure in a criminal case. It's because... And the prosecution has to establish their case to that standard, which makes it an uphill battle for the prosecution. And they cite to Blackstone as part of that. Better to let 10 guilty people free. That's how sure we have to be if someone is going to be deprived of their liberty in a country that is a free country. But that said, so over more than a decade with my psychologist and lawyer friend Greg Mitchell, we've done these studies. We've surveyed about 15,000 people at this point. Adults in the U.S., people eligible to be on juries, giving them mock jury type scenarios.

And we've asked them this question, which error is more harmful to society? convicting an innocent person or acquitting a guilty person, or are they both equally harmful? And most people do not say, blackstone ratio, convicting an innocent person, that's the worst thing that you could do. That's horrible. That's a miscarriage of justice. Most people don't say that all we care about is public safety and not freeing guilty people. Almost everyone, like two-thirds of the people surveyed across over a dozen studies, over 10,000 people, closer to 15,000. Most people say both harms are equally serious. We care about due process, but we also care about the outcome. We care about public safety. We care about both. And Democrats, Republicans,

people of all ages, people of all demographics, people in different parts of the country, this is just a very widely shared view. People care about both. And you see it play out in public debates. People do not want to see serious criminals going free, but they also don't want to see people arbitrarily arrested for no reason either. Well, so if they're trying to hold these two things in equipoise, the safety of the public, as well as limiting the opportunity for wrongful convictions, why then are people more iffy on the whole idea of due process? It does seem that public safety often predominates in these discussions, not this idea that we're trying to hold these two things in balance. I think it's very easy for people to just assume, especially if they're told it, that this is zero-sup. Like, look, if you want to be safe in your community, we've got to lock them up.

And if we don't lock them up, then you'll be unsafe. So, like, if someone comes on TV and tells you that they're sending not their best people, they're sending the rapists, the criminals, like, you might legitimately think that individuals from other countries pose a threat to public safety, and you might be willing to cut some corners on due process for those individuals. I think people view it differently if they're told, oh, by the way, you know, if you convict an innocent person, not only is that horribly unfair to that innocent person, but but the guilty person now can act with impunity.

They know they're never going to get punished. It's actually both bad things just happened. You've harmed public safety and you've harmed someone's rights in a horrible way. It's not zero-sum. That's the reason why we have Blackstone's ratio. Like both bad things happened. If you're doing things arbitrarily, you're going to harm public safety and you're going to harm people's rights at the same time.

And you're going to erode trust in the justice system if you're doing that sort of thing. People aren't going to believe that the justice system is fair if we don't actually have due process. Yeah. if you care about public safety, the people who actually are harmful, why would they think that they're going to get punished if innocent people are getting punished? It's going to be bad in both respects. And I talk in the book about examples where this has happened, where we've actually implemented better due process protections and people are worried, is this going to be too expensive? We're going to give lawyers to people at bail hearings. That's lawyers are

expensive. And we're just going to like free more people from jail and there's going to be more crime. Instead, what we found is providing those due process protections actually help them and reduce crime. Fewer people in jail and less crime. Both good things happened. It was not zero sum at all. Okay. You mentioned bail very briefly. I want to come back to the whole question of cash bail, as well as the broader apparatus of fines and fees that often occur in the context of civil kinds of charges. They're not criminal necessarily. They're just sort of like traffic tickets or parking tickets or things like that, that as you know in the book have real consequences for due process. And this actually has been an issue that has gained a lot of traction over the last

couple of years. In the book, you mentioned the case of Damien Stini, who was a Virginia man who was literally so overwhelmed by the fact of a number of parking tickets that just sort of increased and escalated and basically made it impossible for him to have a driver's license, made it impossible for him to have a job, keep a job, all of these things. He was one of these activists, or in his name, activists managed to get the state of Virginia to do away with the imposition of those kinds of traffic fees. And interestingly, for longtime strict scrutiny listeners, the Supreme Court in this term addressed a case involving the question of attorney's fees in circumstances where you had a situation where a state of its own volition removed the whole

question of this apparatus of fines and fees, whether that was a win for purposes of the imposition of attorney's fees. That case was lackey versus Stinney. The Stinney was Damian Stinney. So again, lots of connections to the court, although not necessarily a direct one. But as you note in the book, fines and fees and cash bail have been a huge issue for due process. Can you say more about that and how the weight of these likely, for some people, not that consequential set of obligation, But for others, an absolutely crushing set of obligations that absolutely overwhelms them. Well, just like we can have public safety, we can have police without living in a police state, we can have prisons, and we can sometimes, you know, jail people for committing crimes without having debtors prisons, without putting people in jail or in prison just because they're too or poor to pay. And it had been the case that in almost every state, if you couldn't pay a traffic ticket, oh, failure to comply.

your license is taken away indefinitely. There have been a number of different jurisdictions around the country where people who couldn't pay the fees for probation supervision. You have to pay for your own supervision. You don't pay the fees? Back in jail. And the Supreme Court has said from time to time over the years that, wait a minute, no. Someone should not be deprived of liberty just because they're too poor to pay.

Like you have to do an inquiry. But these systems seem to metastasize. People like Damien Stinney cannot ease, they can't afford their own lawyers. If they couldn't afford a $70 traffic ticket, they can't hire a lawyer. And so unless the civil rights firm steps in and helps them, these things will go on. And, you know, local governments seem to think sometimes that, well, you know, we're going to make a lot more money off of these tickets if we have a big stick. If people have to pay their tickets, they have to borrow, they'll do anything to pay the ticket. Because otherwise, we're going to take their driver's license away forever.

In many states, even like, okay, so serious DUI, serious, you know, vehicular manslaughter, your license will be taken away as a punishment for a year or six months. But if you can't pay $70 for a ticket, indefinitely, it'll last forever. And many courts have not viewed this the way that the court did in Virginia, which led to that law being struck down under due process, and then the legislature got rid of it. Some courts have taken this very formalistic approach, and we need the Supreme Court to step in and do something about this. Some courts have said, well, if in theory on paper there's a way to ask the judge, to consider your poverty, even if judges never ask those questions, never tell any one of those rights, no one ever is told of the due process. If it's on paper,

maybe that's good enough for procedural due process. That's another reason why these systems have exploded around the country. In my state of North Carolina, more than one out of ten adult drivers have an indefinitely suspended driver's license. Wow. Just huge numbers of some communities, 50% of adult drivers don't have a license. Wow. Another focus of the book is the role that technology can play in cultivating the conditions under which due process might be curtailed. Can you say a little bit more about technology? And in particular, how do you think AI is going to shape the field and this whole question of due process in conjunction with algorithmic justice? Yeah, so we're hearing more and more calls to improve government by bringing

an AI so that we can like detect fraud or detect dangers. But there's a history of that and it hasn't gone well. There have been due process cases which have exposed some of the problems with AI, which is black box, meaning we don't know how it works. The developers themselves may not know how it works. A lot of people assume, because AI can be useful, and many people have played around with chat GPT, and wow, the machine seems pretty smart. That, like, machines can detect patterns that we can't, which is true. And so, like, we should use AI. It's valuable. But they're just terrifying cases where off-the-shelf systems were used. They're currently being used in facial recognition, they've been used to demote or fire teachers, they've been used

to flag people and take away their health care. And if it's the system as a black box and no one knows how the developer did it, even the developer may not know how their machine came up with its code, then how do you know? Why was your health care shut off? You're at the hospital and all of a sudden you get a $15,000 bill. Well, the computer flagged you. How? And how can you meaningfully challenge that if no one knows why the computer flagged you?

If you lose your job or you're demoted, well, you're a poorly performing teacher. Why? I've gotten awards for my teaching. Well, we can't tell you. The computer flagged you. Or the computer flagged your face. It says you're the one who held up the convenience store. I'm innocent.

How did the computer flag me? Can't tell you. It's a black box. That's the problem. The due process is just incompatible. If the system can't tell you what it did, then we shouldn't be using it in court, but these systems have been used by the government and have been used in court. courts are only slowly grappling with the challenges to due process that these technologies pose.

One of the things you talk about in the book, Brandon, is the political climate in which demands for due process may arise or demands to do away with due process may arise. So, you know, we've seen this before in the context of 9-11, the immediate wake of 9-11, where in the name of public safety and fighting terrorism, some people thought that maybe we should be a little more free and loose with due process protections. I think we've also seen this in the context of the Me Too movement, in the heat of trying to hold individuals credibly accused of sexual assault to account, there's been discussions of maybe doing away with the more robust aspects of procedural due process. How do we maintain a fidelity to these principles in a political climate that shifts and moves in its dynamic and where the demand for due process may wax or wane? I do think that people really want to be treated fairly, and it's easier to appreciate due process if you see yourself in the situation.

I mean, it's certainly like if you get a traffic ticket, you don't want to lose your license indefinitely. You want a fair chance to either pay the ticket or contest it. If it happens, it's one reason there's been so much movement around the driver's license suspension stuff. A lot of people drive. A lot of people can relate to it. People remember what it was like to be a student. Did I go to a protest as a student because I was caught up in the issue for the the day, I may not have even known what the protest was about, but I thought it was interesting. I wanted to hear what people were saying. It's much harder to value due process when it's someone

accused of something that he think is really despicable, and that's when it's most important. As criminal defense lawyers, we get that. Like some criminal defense lawyers clients are people that are widely deplored. And that's when the protections really, really matter. That's the challenge. Like people care about fairness when it applies to us. But from the third person's perspective, do we care more about process or do we care about cutting to the chase, cutting to the outcome. We don't know. It makes it harder. I'd also say, I mean, the phrase rush to judgment is really important. It's really tempting to rush to judgment when you see someone who you think did something terrible and kind of like, why do we have to wait? Why can't we

just do something about this right now? And that's what courts and lawyers are for. I talk in the book a little bit about Oppenheimer, who was deprived of a security clearance. And lots of people watch the movie. It was a really gripping movie, really about due process because you're not always entitled to a trial. It wasn't a trial. It was a hearing before this security board, but you're entitled to notice. He got noticed. We're going to take your security clearance away because we think you're a communist. He had a chance to respond, but it wasn't impartial, right? The hearing board was stacked with people who were out to get Oppenheimer. And that's consider now a great stain on our country's legacy. Like there have been public apologies.

But during that time, did people think at the height of the Cold War? Like, were they shedding tears over, you know, it's just someone's security clearance. It ended his career, though. And now, like security clearances, federal jobs, public benefits. There are all sorts of situations which don't involve deporting people, putting people in jail, jailing people, which nevertheless affects people's lives in dramatic ways. And you're not always entitled to a trial, but a kangaroo court hearing within an agency

that takes away someone's clearance, that can damage someone's life, their life's work, their reputation. And deprive us of their life's work. I mean, we were deprived of whatever. Robert Oppenheimer was going to do in the later parts of his career. And so in some ways, like, I think people know about wrongful convictions and understand why that's a miscarriage of justice. We've seen DNA exonerations in this country many times. But the hope is, like, we need to focus on these lower level things, the bail hearings,

the national security clearance hearings, the welfare hearings, Medicaid, these systems that take away lots of things from lots and lots of people. And yet, you know, it's not like courtroom drama. Right. I should note, the book is not all doom and gloom. You actually offer some very hopeful prescriptions for how we can strengthen due process commitments and firm up our own commitments to due process and making that explicit. Can you talk a little bit about some of these prescriptions? And specifically, can you tell our listeners how they, as ordinary people out in the world, can bolster due process protections right now? Ending zero-sum thinking helps. Just in your own mind, when you think about how people might be

rushing to judgment, like even just stepping in saying, like, let's see what the evidence is. Let's wait to see what the evidence is, and let's test that in a real hearing, a real court. Let's not prejudge. It's so easy to prejudge when you hear about terrible conduct. Insisting on due process in your own personal life is a good thing, and it might cause you to listen to people you disagree with more. But there's also the zero-sum thinking where, like, we shouldn't be paying for trials, for lawyers.

It's too costly. We need results in this day and age. And in fact, we need technology. Let's just let AI decide who committed fraud or who should be put in jail based on their risk or let AI decide if that's the person's face. We should be resistant to all of these things. And there's a lot of evidence that due process doesn't cost much. Lawyers are actually pretty cheap compared to the cost of jailing people for weeks, months,

years, detention facilities, really, really expensive. They're talking about what billions of dollars it will cost to ramp up immigration detention in this country. jails, incredibly expensive. And if you're holding people in these places, if you're taking away people's driver's licenses, turning from detention to things that affect people on the civil side, people can't get to work. It's enormously costly to the economy. People can't take their kids to school, or they're afraid to. They're afraid to go to the doctor. Like, these are a drag on people's lives, cutting off people's Medicaid benefits. If they're eligible, they will reapply

and they will get it again. But they may get medical debt in the meantime. It'll be really expensive to have to process people again. Like, just keep them on Medicaid. They're entitled to be on it. So we shouldn't be spending money on violating people's due process rights. It's costly, it's unfair, and we can be a better society if we dig into fairness. I hope, you know, I feel like we've learned those lessons the hard way many times before, and we may be about to learn them again. Excellence over efficiency or undue efficiency. Yeah, you know, the process really does matter, and the process may be technical, may sound technical, notice, opportunity to be heard, But this is about giving people a fair shake before the government does something to them.

I think that is something, actually, that we can all relate to. All right. Brandon Garrett, the book is terrific. It is urgent, and it is both maddening and hopeful. So thank you so much for the opportunity to talk about it. The book is called Defending Due Process, Why Fairness Matters in a Polarized World. It is timely, important, and most importantly, it is available wherever you get your great read. So hop down there and get one today.

Thank you. Thank you. Thanks so much to Brandon Garrett for that terrific conversation. Lots to think about in a moment where due process has never been more important and more urgent. Just after this set of commercials, we are going to have another fantastic book conversation. This time, Leah is going to be speaking with her Michigan colleague, Richard Primus, about his fascinating new book, the oldest constitutional question, enumeration and federal power. That is up next.

strict scrutiny is brought to you by cook unity okay as you know i got back from an amazing vacation in the greek islands and part of what was so amazing about it was the food their tomato and egg and onion breakfast situation and fava bean spread and fresh fish at dinner were to die for and while they might not have whole red snapper off the grill cook unities renown chefs make some pretty craveable delightful items too cook unity was made for adventurous eaters with countless global cuisines from more than 160 award-winning chefs. Explore an ever-expanding menu of small batch meals, all tailored to your lifestyle, dietary needs, and cravings.

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cookunity.com slash strict free. Terms and conditions apply. Go to cookunity.com for details. For this segment, I am delighted to be joined by my colleague Richard Primus, the Theodore J. St. Antoine, Collegiate Professor of Law at the University of Michigan Law School. We're going to be talking about his new book, The Oldest Constitutional Question. Welcome to strict scrutiny, Richard. Yeah, I'm delighted to be here. Thanks for having me. Of course. So I didn't want to spoil the surprise by revealing what the oldest constitutional question is by summarizing the book. So could you tell us what is the oldest constitutional question that your book is about?

Sure. So the oldest constitutional question is how to divide power between the national government and the states. The traditional answer is that it's a matter of the enumerated powers of Congress, right? The Constitution enumerates a bunch of congressional powers. And the Orthodox view is that Congress can exercise only those powers, everything else is left for the states. So by enumerated just for our listeners who might not have gone to law school, you're referring to mostly Article 1, Section 8, which is Article 1, the section 8, which is Article 1, the section. of the Constitution that deals with Congress. Article 1, Section 8 says Congress shall have the power to and then lists out a bunch of powers just to kind of frame that. Yeah, Article 1, Section 8 has 18 clauses. All the clauses list congressional powers. Strictly speaking, the Constitution doesn't enumerate the powers. Strictly speaking, that would mean the powers are numbered. They're not actually numbered. We use it metaphorically to mean something like listed in the text. The big bulk of them is an Article 1, Section 8. And then there are a bunch of them scattered elsewhere through the document.

Yes. Okay. So the full title of the book is the oldest constitutional question, enumeration and federal power. I didn't read it to give it away. But this issue, what enumeration means, the scope of Congress's powers, the balance of power between the national government and the states has come up in several significant cases, some quite recent. And one of those cases is kind of my origin story in some respects.

So, Richard, could you tell us when did this idea about what it means for the federal government to be a government of enumerated powers come up. And maybe we can start with United States versus Lopez and the issue there. Sure. Lopez is a great place to start. And sometime I'd like to hear how it's your origin story case. Not Lopez. The one we'll talk about next is my origin story. Okay. Okay. So Lopez was a landmark decision in which the Supreme court struck down the Federal Gun Free School Zones Act of 1990, that the act prohibited the carrying of firearms within a thousand feet of schools, subject to a bunch of exceptions, but basically prohibited the carrying a firearms near schools. And the government defended Congress's authority

to enact the law by saying that it was part of Congress's enumerated power to regulate commerce. The third clause of Article 1, Section 8 says the Congress has the power to regulate commerce among the several states. And for more than 50 years, there had been a broad understanding of the commerce power under which anything that in the aggregate affected interstate commerce could be regulated by Congress. So really that means at the very least any purchase and sale of goods, because even though my sale of a tomato to you doesn't affect the market for tomatoes, if you multiply it by everyone else in the country who's selling tomatoes to everyone else in the country, you've affected the market interstate.

And the government said, in this case, that violence in schools considered in the aggregate affected commerce. And as an empirical matter, that's obviously true, right? It forces schools to spend money on security, and that affects the market for security personnel and equipment. It affected insurance rates, which is also an interstate market and so on and so on. But the court majority was skeptical. And I guess why are they skeptical or what was the anxiety? The anxiety is everyone knows, right? This is Conlaw 101, that the enumerated powers are supposed to be limiting.

The point of having the powers written out in the Constitution's text is to limit what Congress can do and leave a bunch of other stuff for the states. And the worry was, if the commerce power is really broad enough to cover things because they are reachable, if in the aggregate, they affect interstate commerce, then pretty much everything people do would be affected by interstate commerce and would be within the reach of the Commerce Clause. Now, that still wouldn't mean that Congress can do anything. Congress can't establish religions, but it would mean that unless there's some affirmative prohibition, Congress could reach pretty much everything with its enumerated powers. and that can't be right. Right. So you can hear that particular anxiety and this intuition that, of course, it has to be that enumeration and the scope of those enumerated powers can't allow Congress to do everything in these questions from Justice O'Connor as well as Chief Justice Rehnquist. If this is covered of what's left of enumerated powers,

what is there that Congress could not do under this rubric if you are correct? Well, what would be, if this case is, if Congress can reach under the interstate Congress bar, what would be an example of a case which it couldn't reach? Well, Your Honor, I'm not prepared to speculate generally. As I previewed, the case I was referencing as part of my origin story, National Federation of Independent Business versus Sebelius, the constitutional challenge to the Affordable Care Act. So I have talked some about how my time at the Supreme Court spawned this podcast. I clerked both at the Supreme Court and at the U.S. Court. appeals during years when those courts heard these challenges. So, Richard, how did this enumeration anxiety come up in NFIB? So in NFIB, the question was whether there would be anything that Congress couldn't reach with its enumerated powers if those powers were sufficient

to authorize the individual mandate of the Affordable Care Act. The individual mandate required people to carry health insurance. And the critics of the law said, wait a minute. These people aren't engaged in commerce at all. You're saying that this law is valid because it's a regulation of the market for health care, and we understand that health care is commerce, but if you can dragoon people into the market for commerce by telling them that they have to buy something, you could use the commerce power to regulate pretty much anything that people do. It's, again, hard to think of what would be beyond the commerce power categorically.

if this were permitted. So you can hear that concern reflected in this question from Justice Kennedy. Then the question is whether or not there are any limits on the Commerce Clause. Can you identify for some limits on the Commerce Clause? And then this prospect of the federal government being able to require people to engage in commerce and the implications of that theory was thought to tee up the dreaded broccoli hypothetical, which you can hear Justice Scalia spin out here. Could you define the market? Everybody has to buy food sooner or later. So you define the market as food. Therefore, everybody's in the market. Therefore, you can make people buy broccoli. Okay. So Richard, you've already alluded to this idea that the fact that it's a list leads people to think, well, the list can't include everything. But why do people think there has to be something that Article 1 or the Commerce Clause in particular or the combined set of Congress's powers doesn't authorize Congress to.

do? So there's a complicated set of reasons. It's not just one thing. It's a whole way of thinking about the Constitution. And with a tip of the hat to Wisconsin's David Schwartz, we can call this way of thinking enumerationism. Enumerationism is not a single proposition. It's a bundle of things that travel together. So first is the idea that Congress can only do things that are enumerated. And where that idea comes from is the fact that there is a list which creates that intuition and also a traditional understanding of the founding on which the founders were very keen to limit the federal government. They were worried about making a federal government that was too powerful. And so they adopted the mechanism of enumerating the things that Congress could do specifically in order to

limit Congress. And there's a canonical origin story here that most of us know that says that the framers initially did not include a bill of rights in the Constitution because they trusted the enumeration of powers to do the necessary limiting work. In fact, they didn't want to include affirmative prohibitions like no laws establishing religions or abridging free speech because that would give people the wrong idea about the Constitution. The right idea was the limit is built into the fact that Congress is only allowed to do these things. And that origin story, and that sense of what the Constitution is for, and that a bunch of other things built up on top of that have created this sense that, of course, the enumeration must be limiting. Okay. So now I want

to shift to what this account gets wrong. So maybe we can tick through just a few of the different kinds of sources and constitutional arguments. that you analyze? So can we start with text and structure? I think that's related to this question of what's the point of enumerating congressional powers, if not to limit what Congress can do? Yes, because the thesis of the book is that enumerationism is a flawed way of understanding the Constitution.

These propositions aren't facts about the Constitution. They're the way the Constitution might look if you looked at it through a particular lens, and it's a distorting lens. So, for example, the 10th Amendment does a lot of work here. The 10th Amendment says the power is not delegated to the United States are reserved to the states or to the people. This is conventionally read as if it contained the word enumerated, where it contains the word delegated.

But it doesn't. The 10th Amendment doesn't say the power is not enumerated in this document. are reserved to the states. It says the power is not delegated by the Constitution. Powers can be delegated expressly or implicitly, and this language doesn't decide between those two things. In fact, the Congress that proposed the 10th Amendment beat back two separate attempts to include the word expressly before delegated. That doesn't tell us that delegated in the 10th Amendment means expressly or implicitly, but it tells us that people at the time understood that it could bear the broader meaning and that Congress rejected the attempt to confine it to the narrower meaning. So although

we think of the 10th Amendment conventionally as standing for the proposition that Congress can exercise only its numerated powers, the text actually doesn't say that. We read it to mean that because we think we know that that's supposed to be the right answer and the text says something sort of like it, so we make the text say that. Similarly, the opening of Article 1, the vesting clause of Article 1, Article 1, Section 1 says, all legislative powers here and granted shall be vested in a Congress of the United States. And since the 1990s, there's been a very powerful school of thought that reads that also as confirmation of the idea of enumerationism. People say, look, the Constitution doesn't say Congress has legislative powers. The Constitution

speaks of the powers here and granted. That tells us that the only powers Congress can exercise are the ones that are expressly written here. Here's the problem. That reads the text as if it said only the powers here and granted are vested in the United States. And it doesn't say that. It says all legislative powers here and granted are vested in the United States, which might mean these and also others. But we have learned conventionally to ignore that possibility because we think the answer is supposed to be that Congress can exercise only its enumerated powers. So related to this, we think we know the answer.

I kind of wanted to shift to the historical account, which you gestured toward earlier, which is we think that enumeration was a device to constrain a federal government that the framers, ratifiers were concerned, would run amok. So I appreciated in your discussion of the text and structure. You weren't saying that the 10th Amendment or the vesting clause necessarily means Congress could conceivably exercise any power that isn't explicitly prohibited. And your approach to the history is similar. But could you tell us a little bit about why the conventional historical account, which is enumeration is a device to limit powers and that kind of bolsters this interpretation of the text is incomplete, at least? Yes, because the history is profoundly ambiguous, right? Let's start with something that's not ambiguous. The Bill of Rights story, that's a fable. It never happened. Here's what I mean. During the ratification of debates, prominent federalists, including Hamilton in Federalist 84, argued that the reason the

Constitution didn't have a bill of rights was that it was built to use the enumeration as the constraining mechanism. Constitutional culture takes that as a sincere explanation. But contemporaries did not. There's very little evidence that anyone at the time was persuaded that that was really the reason why there was no bill of rights. In fact, anti-federalists started baiting federalists during the ratification debates to try to get them to repeat this argument because it was so transparently a lousy argument that they thought if they could, the more they could get the

federalists to make this argument, the more people would think that they shouldn't trust the federalists. Because the argument made no sense and was understood at the time to make no sense. The Constitution already contained a bunch of prohibitions, no bill of attainder, no ex post facto law. So it didn't really make sense to say we shouldn't have any affirmative prohibitions. And it was really obvious even at the time that if you were concerned to prevent a government from being too powerful and you were going to limit it by enumerating its powers, you wouldn't give it the power to tax and the power to raise armies. That's plenty enough for the national government to be oppressive. So it seems that the federalists who argued that's why there's no Bill of Rights

fooled the future, but not their contemporaries. The better view of the founding goes something like this, I think. The basic project of the Philadelphia Convention was not limitation. It was empowerment. The problem they went to Philadelphia to solve was that they had a national government that was much too weak, right? It governed too little, not too much. That was the Articles of Confederation. Yes. The basic problem with the Articles of Confederation was that it produced a government that governed too little, not too much. So they went to Philadelphia to create a stronger national government. And the enumeration, like so much else about the Constitution was fundamentally a device for making sure that the new government would be powerful

enough, right? Think just commonsensically, why would you put a bunch of powers in writing? It's not implicitly to rule out things that are not on the list. It's to make sure that the things that are on the list are ruled in, right? Get your authority in writing. Understood that way, the enumerated powers might be the floor and not the ceiling of what Congress can do. And there were a lot of people at the Philadelphia Convention and in the ratification debates who thought of the enumeration that way. Not everyone. There was disagreement among the founding generation about how powerful the federal government should be. And the framers wrote a constitution that neither said, and by the way, this is the floor, nor, and by the way, these powers are all

there are. But it's quite clear that the major project was empowerment, that it makes sense to enumerate a list of essential powers if the goal is to create a more powerful federal government, and that there were important architects of the Constitution who understood those powers as a floor and not a ceiling. So another line that people often point to that relates to this enumerationism is the famous words of Chief Justice Marshall, enumeration presupposes something unenumerated. And people like to invoke that as a basis that Congress doesn't under its enumerated slash delegated powers or the commerce power have the ability to regulate everything. So what have we gotten wrong about that line? So much. John Marshall did say this, right? In the great case of Gibbons versus Ogden, the steamboat case, he wrote, the enumeration presupposes something not enumerated. The first problem is he wasn't talking about the enumeration of federal powers. He was talking about the enumeration within one clause of Article I,

Section 8, within the Commerce Clause, actually, which enumerates three kinds of commerce, commerce among the states, commerce with foreign nations, commerce with the Indian tribes. And he was arguing this enumeration implies that there is also some other kind of commerce other than these three. And he made an argument about that. Now, you might think, okay, fine, Richard, but that's a trivial distinction, right? He's still arguing that enumerations presuppose things not enumerated. His argument would work just as well if you applied it to the set of congressional powers as a whole. But that's not true, right? We all know some enumerations, presuppose things not enumerated.

And some do not. There's no iron law here. I'm a big fan of the Arnold Lobel children's stories about Frog and Toad. There's one called A List, on which Toad writes a list of the things that he's going to do today, and then faces all kinds of problems because he didn't write down things like,

go to sleep at the end. A list of things that you're going to do today might not contain everything. that you're going to do today, you might write a grocery list and get to the grocery store and buy something else that you didn't put on the list. Whether any particular list is meant to be exclusive depends on facts about that list and not simply is something that follows from the fact that there is a list. So having marshaled at least some of the case against enumerationism, I have to ask, do you think you can convince the Supreme Court or you will,

would convince the court if enough people sent them this book. Not a chance. Not a chance. No, no, no, no, no. Enumerationalism is a deeply entrenched element of faith in the way that the present generation of constitutional lawyers thinks about constitutional law. I learned it as a one-ell, right? You learned it as a one-el.

all the members of the current Supreme Court learned it as one else. It's deeply embedded in our constitutional culture. And justices of the Supreme Court are fully grown adults with fully formed worldviews. And I don't think that books like these by law professors change those worldviews all that much. I had really hope Sam Alito would radically change his worldview when he read mine, but, you know, I take the point. Well, your book is different from my, Leah. You may have more success than I, but I am a little bit less ambitious, or, well, maybe not less ambitious. Or diluted. Well, differently ambitious. I would say this. For the present generation, I would like to induce doubt. I would like, if I can't get people to give up enumerationism, I would

would at least like thoughtful people who learned enumeration and think it makes sense to confront something that makes them say, you know what, maybe this isn't the only way of looking at it. Maybe there are limits to this view, and I think that's really important because since I think that enumerationism has the tendency to be destructive, it makes a big difference whether people in power think of enumerationism as a fighting faith that must be upheld at all costs, or something that I kind of think, but that I'm willing to balance against other reasonable things because I shouldn't be too sure. And then the larger ambition is for the future. If I can persuade enough people in the present to think of enumerationism as just a lens for thinking about

constitutional law rather than the real truth and as a flawed lens and that there are better lenses, then maybe the next generation of people who learn constitutional law will think about it differently and we might get change over time. So can I ask you to elaborate on that last point just for a little bit as a final question? Because I think oftentimes when people learn more about what is happening at the Supreme Court, they become despondent. And they think, what can I do? Because the justices aren't going to listen to what I say, even if I have very persuasive arguments. And so if it's not about convincing the Supreme Court, what does the process of affecting change, constitutional change look like or how does it work? It works over a long term. I mean, believe me,

I know the frustration that you're describing. I remember when I clerked at the Supreme Court several weeks into the term, there was a case that I worked on. And I thought I understood the case really well. And I thought I really understood what the better arguments were. And my side lost the case. And when it was over, I thought, we didn't lose the case because the other side has better arguments. That's not what happened. We just lost the case because there are more of them than there are of us on this issue. It's frustrating, right? But you need to come to terms with it because there's no system in which you win all the time. This podcast is my way of coming to terms with it. Yeah, right? And like, and like in the present environment where like people with

views, like your views and like my views, lose an awful lot. It's especially frustrating and in a large way. Like, there's a republic at stake here, right? The thing is, positive constitutional change happens over a long period of time. Imagine that we were constitutional lawyers, not in 2025, but in 1925. And we thought, You know, Jim Crow is a really big problem. There's formalized segregation throughout much of this country, and it's unjust, and it contravenes what we understand to be the best reading of what the Constitution already requires. Why can't we get the courts to see anything here?

And if we thought in terms of what we can convince people now or next year or even five years from now, we would be despondent. Change came. It took 30 to 40 years. from that point. But part of the process of bringing about that change over a long period of time was that people kept making arguments. They kept showing the logic of a better way of thinking. They kept arguing about the weaknesses of an existing way of thinking. And you persuade some people and you persuade some more people and you persuade some more people and you win some elections and you

appoint some judges and you change the way lawyers are socialized. That happens over a long period of time. So Richard, thank you so much for joining us. Listeners, the full title of the book that you should, if not send to all of the Supreme Court justices, then send to all of the young lawyers who need to be socialized in this deeper understanding of federal power is the oldest constitutional question, enumeration and federal power. Again, Richard, thanks. much for joining. Leah, thanks for having me. All right. Many thanks to Richard Primus and Leah for that really insightful conversation. I know I feel better about the status of the oldest constitutional question, and I hope you do as well. Before we take off, it's time for my favorite

segment, Amani. It's called Favorite Things. This is where we review and recommend the books, shows, meals, whatever that brought us joy over the last week. So I want to invite you to give us some of your favorite things. But to give you a moment, since I'm springing this on you at the last minute, I'll go first. So you have some time. Okay? Sounds good. All right. So my favorite thing this week was vacation. I'm not going to lie, vacation is now one of my absolute favorite things. I went to Debravnik and Rome, and it was glorious. Debravnik is an absolutely gorgeous city, the pearl of the Adriatic, lovely people, beautiful beaches, and Rome. What can you say about the Eternal City. I literally ate my weight in Cassio Apepe, and I don't even like pasta. I don't even

eat pasta in this country, and I was eating it like it was my job in Rome, and it was truly fantastico. Also, as some of you might know, 2025 is a Jubilee year, which is when Catholics are encouraged to make a pilgrimage to Rome, to confess their sins, and process through the four holy doors, which are doors of four prominent basilicas in the city of Rome. And so, So our trip not only coincided with the Jubilee, it coincided with the Jubilee's Youth Week. And Rome was literally flooded with young people, young Catholics from all over the world

who were making their pilgrimages. And they were so lovely and warm. And they would just spontaneously burst into song. It was like the von Traps were everywhere. They just like start singing. And they would occupy different parts of the city depending on what country they were from. So all of the Spaniards and the Portuguese would be at the Spanish steps.

and they'd be singing these Spanish songs. I mean, it was just really lovely, and they were fantastic, and the energy was really great, and the weather was fantastic. And while I was gone on this vacation, I managed to read some books, no opinions. The first book I read was Tom Lake by Anne Patchett, and just going to say, this was a recommendation from Justice Elena Kagan, not to me personally. I don't have a personal relationship in that way with her.

She made this recommendation at her 2024 address at the 9th,000. Circuit Judicial Conference, and she specifically recommended that the audience listened to the Tom Lake audiobook, which is read by Meryl Streep. So I took her advice. I did download the audiobook, and I listened to it. It was really good. Meryl Streep was wonderful. But on this vacation, I happened to come across an actual physical copy of the book, Tom

Lake, and I just started reading it. And even though I know the story, I thought the book was even better than the audiobook. It was just so beautifully written, the characters are memorable. I almost felt like maybe my voice was better than Meryl Streep, at least in my own head. Sometimes that happens. And the book is truly first rate, highly recommend. I also read The Midnight Library by Matt Haig, which was a recommendation from some of you listeners. And it was a great recommendation, really wonderful, thought-provoking and engaging even on vacation.

And now that I'm back in the country, I'm back to reading all of the papers and the news, as you saw from this long-ass episode. of news. And I want to recommend two pieces from the New York Times. The first is Yale law professor Justin Driver's review of William Chatterton Wilson's recent book, The Summer of Our Discontent, which considers the cultural impact of the George Floyd killing in the summer of 2020. Driver's Review is titled How the George Floyd Protest changed America for better and worse, and it is sharp, critical, and unsparing in its uncount of the many things that Driver thinks that Wilson overlooked. I think Justin Jarver is a terrific writer, an amazing wordsmith, and this review makes that

so clear. I will be using the phrase, drive-by-appropriia, as often as I can, going forward in the next couple of weeks, so be prepared for that. And the second piece I want to recommend is Jamel Bowie's The Death of the Fourth American Republic, which focuses on the Voting Rights Act at 60 and its role in actually making America democracy. as well as the role of President Trump and John Roberts in their mutual efforts to unmake the Voting Rights Act and its legacy.

It is urgent, timely, and a must read. All right, that's a lot of stuff. But I was on vacation, so I did a lot of reading. It was great. I was going to say, your favorite things are just way more interesting than mine because mine is like palisade peaches. It's stone fruit season in Colorado right now. I love that.

Okay, what are palisade peaches? They're so good. They're just from this particular area in Colorado, and I'm telling you, and I apologize to any of your listeners who are from Atlanta, they are better than Georgia peaches. Oh, stop. They are better than Georgia peaches. And you can just drive around. People are selling them on the side of the road. I was driving around with my parents and the Rockies.

And literally, I saw a stand. And I was like, you turn. Everyone was like, ah, as I made this dramatic turn. So am I going to call Jared Polis up and, like, find me 11,000 palisade peaches? Yeah. Okay. Yeah. I mean, they're so good.

So are they just sweeter? They're really sweet. They're really juicy. Some of them are like, like this big. They're huge. They're like eat over the sink peaches, right? Are they white flesh or yellow flesh? Yellow flesh.

Interesting. And they make an amazing cobbler. I made the best cobbler last week. Oh, I do love cobbler. Don't even understand. How do you take the skins off? How do you take the skins off? You blanch them basically.

Do you blanch them and put them in an ice bath? Yeah. Blanch them, put them in an ice bath, peel. skins off. Bing, bang, boom. It's so easy. It's so easy. Okay. I'm writing that down. Another thing I've been doing, I don't know if you remember the show, Revenge from 15 years ago. Oh, yes. With Emily, what's her face? Emily Van Camp. Yes. So my girlfriend has been watching it. And so she started me watching it. So now we're both watching it in different areas of the house. Oh, wait. Madeline Stowe, too, is in that. Madeline Stowe. Yes. And Henry Zernie,

who was in like the earlier Mission Impossible movies, who's really good as like just a nasty white guy, rich white guy. I just love treacherous rich white people television, right? Like rich white people in the Hamptons or wherever just doing really dodgy shit. Right? You'll love Sirens then because that's the whole vibe. I'm writing that down. Sirens. Yeah. So I've been watching a lot of revenge and I'm a video gamer. So I've been playing a lot of video games. What video games do you play? What video games do you play? It's a game by Hideo Kojima and it's bizarre. Like I can't even begin to explain it to you, but it does star Norman Redis, who is Daryl Dixon. The Walking Dead. In The Walking Dead. So he's the main character. He's also the father of Helena Christensen's eldest

child. Only child. Yeah, out of town. I didn't know that. You're welcome. But there's one particular like cutscene where he has to like, after delivering all this stuff, he has to go and take a shower. And I never skip that cutscene. I'll tell you that right now. Norman Reit is in the shower. Yes, please. This is a PG show most of the time. This is a fan. family establishment. Anyway, all you see is butt cheeks. It's no big deal. His peaches, as it were.

His palisade peaches. His palisade peaches. And aside from that, I just have to recommend if, like, I know streaming services are a nightmare these days with like some of them capitulating to Trump and like others, you know, just having garbage shows. Britbox. I have to, I love Britbox. I love Britbox.

I love Britbox. I've been watching a lot of Poirotro now. I've been watching all of the. I get the Christi Marple series. And then there's this really adorable series starring Stephen Moyer, who was in True Blood. You know, Sooka is mine. That guy? I don't know if you ever watched True Blood.

But anyway, he's married to Anna Pacquine. Yeah, they met on the show. They met on the show. Exactly. So he plays this really kind of nerdy art detective. Like he's a cop and like the arts department of the arts department of the police station. And so he goes and investigates all these art crimes. And it's a very different character than anything I've ever seen from him.

And it's kind of adorable. It's called Art Detective, and it's new on Britbox. I love Britbox. Okay. These are all fantastic. It's such a delight to be here with you today. And like, I'm sorry we had so much news to run through. Like it was like, it's okay. I love news. Well, it was a lot of it. But yeah, thank you for having me. It was so much fun. I've been an admirer of yours for over a decade now. So it's always fun. Feeling is so mutual. I will say, when I was on Twitter, I loved your Twitter. Where can we find you these days on social media? I'm on blue sky, exclusively on blue sky.

What's your handle? Yeah, I like, my handle is angry blacklady. That's social. You just look me up, Imani Gandhi or Angry Black Lady. Also, I have to say, since I have the opportunity, and I think some of your listeners might be interested, I am launching my own podcast next month. Okay. I'm listening.

They're giving me my own podcast, Melissa. Okay. And guess what the name is? The name is called Bitch Listen, colon, an Angry Black Lady podcast. Isn't it the best name? It's an amazing name. It's an amazing name. And I have to give credit to my boss, Mallory, because she's a black woman.

And I can tell you that none of my other prior bosses would have let me name my podcast. Bitch, listen. So it's going to be great. I'm hoping to have you on at some point. It's going to be mostly an interview show about reproductive justice, about black family surveillance, about criminalization of pregnancy, about me and my life. My first guest is going to be Francesca Ramman. We're going to talk about being late stage queers, so that's going to be fun. And I'm just really looking forward to it.

So, Bitch Listen. It launches September the 25th, I believe. And I hope your listeners will give me a chance to see if I can do this thing on my own. Bitches Listen. Bitch Listen is coming your way on September 25th. That is Imani Gandhi of the Rewire News Group and the co-host of Boom, Lawyard, and the upcoming solo host of Bitch Listen. Yep.

Thanks so much for joining us today. Thank you so much for having me. Before we actually factually go, I have a little housekeeping for all of you. First up, in case you missed it, listeners, Cricket Media just announced it's a first ever CricketCon in Washington, D.C. That is the first annual, or in your case, once in a lifetime chance to join America's smartest organizers and least annoying politicians to strategize, debate, and commiserate about where we go from here.

hopefully up. On Friday, November 7th, Cricket will be joined by some of the most influential names in politics for a full day of conversations, workshops, and live pods as we all figure out how to build the big pro-democracy movement we need to defeat rising authoritarianism before or maybe after. It's already too late. If you like this podcast, and I know you do, you're definitely going to love CricketCon. And while we can't say officially that we're going to be at CricketCon, I would say that they're going to be at CricketCon. I would say that the there is a very strong chance, wink, wink, that we will be at CrookedCon. So get those tickets while you can.

Head to CricketCon.com for tickets, line-up announcements, and more. That's C-R-O-O-K-E-D-C-O-N.com. And we have a discount code that you can use to buy your November 7th tickets early. The discount code is freedom and content, all one word, all caps, and the discounted tickets are limited, so move quickly. And if you are so excited about CrookedCon and you know you've got to get your CricketCon fit together, guess what? I've got great news for you. The Cricket store's big summer sale is here and everything is 20% off. So if you need a new friend of the

pod tea or a no law just vibes tea to show up at CricketCon with your best glow up, just head on over there. Merch is a great way to support the pods you love and the network you love without having to buy a meme coin or a golden phone with our faces etched on it. And right now, everything is on sale. So shop 20% off everything at crooked.com forward slash store. Strict scrutiny is a Cricket Media production hosted and executive produced by Leah Lippman, me Melissa Murray, and Kate Shaw. It's produced and edited by Melody Rowell. Michael Goldsmith is our associate producer. Jordan Thomas is our intern. We get audio support from Kyle Seiglin and Charlotte Landis and music is by Eddie Cooper. We get production support from Katie Long

and Adrian Hill and Matt DeGroote is our head of production. We are thankful for our digital team, Ben Hethko, Joe Matoski, and Johanna Case. 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, and you can find us at YouTube.com forward 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 really want to help other people find the show, please rate and review us. It really helps. POMAYOR.

Thank you.