Strict Scrutiny - How Trump is Using the IRS to Resegregate America

Episode Date: September 14, 2026

Melissa is joined by guest co-host Rashad Robinson, political strategist, media advocate, and former president of Color Of Change, to run through last week’s legal news, which involves SCOTUS’s latest shadow docket shenanigans, campaign finance fights, and Missouri Republican efforts to push a mid-cycle congressional redistricting plan that could eliminate a Democratic seat. Also: a Strict Scrutiny history lesson on the “segregation academies” created across the South in resistance to school integration, and how new proposed regulations from the Trump administration have the potential to utterly remake education and turn the dial back to a time when American education was racially divided. Then Melissa, Leah and Kate sit down with Niko Bowie & Daphna Renan to talk about their new book, Supremacy: How Rule by the Court Replaced Government by the People. Enter the giveaway for Supremacy here!Favorite Things:  Melissa:Rashad Robinson’s From Presence to Power: How to Take On the Fights That Matter--and Win; Where the Girls Were by Kate Schatz; A Marriage at Sea: A True Story of Love, Obsession, and Shipwreck by Sophie Elmhirst Rashad: U.S. Open specifically Coco Gauff, Frances Tiafoe, and Ben Shelton; ADULTS, The Scrub Episode (FX); The Disappearers by Marlon James  Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season. And this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. And we need you to amplify their voices before the Supreme Court. Court gets its hands on this case. We've already talked about on the podcast how the Fifth Circuit decision allowing this practice was total BS. I mean, it had to liken the Ten Commandments to basically like a poster, almost suggesting, oh, what, you triggered Libs? But the reality is there's a human

cost of Christian nationalist policies like these Ten Commandments laws, as well as the decisions the Supreme Court hands down. Public schools are supposed to be accessible to all. They're not supposed to be instructing on the state's preferred religion or the state's edited version of scripture. Visit a.u.org slash 10c to learn more about this case and how you can help join the fight to protect church state separation. 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 understanding. 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. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host today, Melissa Murray, and the court is still on summer recess, which means that we at strict scrutiny are still keeping summer hours, which means that I am delighted to be joined by a fantastic guest host today. So please welcome Rashad Robinson. Hi, Rashad. Hey, Melissa. It's great to do with you.

We are in the midst of greatness. Rashad is an expert political strategist, a media advocate, and the former president for the Amazing Change Organization, Color of Change. For over a decade, he designed and executed winning campaigns that shifted corporate behavior, reformed the criminal justice system, and advanced racial equality. And right now, he is on a book tour throughout the United States promoting his recently released book, from presence to power. There it is. How to Take on the Fights that Matter and Win. That's the important part. In the book, Rashad argues that visibility and

having a seat at the table aren't necessarily sufficient for true social change. They're good to have. But what you need is visibility, a seat at the table, and structural influence. This book, provides a practical framework for actually building that kind of structural influence and creating the opportunity for lasting systemic victories. All to say, I cannot think of a better person, Rashad, to join me today to break down this week's legal news and help us think about how we move beyond our current moment, because what a moment it is. Absolutely. Absolutely. So good to be with you and so good to do this. Yes. Okay. So here's what I have on tap for today. Rashad. We're going to start with us discussing some legal news, including the Trump administration's

plan to use the IRS and tax-exempt status to re-segregate American education, because why not? Make America great again by going back to 1953. After that, we are going to bring our listeners a fantastic conversation that Kate, Leah, and I had with Nicholas Bowie and Daphne-on about their new book, Supremacy, How Rule by the Court replaced government by the people. The Bulls, book is out tomorrow and we cannot recommend it enough. And as always, after that book interview, we will end things by talking about our favorite things. So Rashad, think about some of your favorite things from this week that you want to share with our listeners. But let's get started with the news because there is a lot of it. So listeners, we've been covering all of the courts

summer shadow docket shenanigans and this week was no exception. Because on the Friday of Labor Day weekend, exactly the kind of time where you would want to be a lot of the time where you would want to bury a big news item, the Supreme Court decided to release another shadow docket ruling. And predictably, this ruling was another big win for the Republican Party ahead of the midterm elections. Let me set the scene for you. On June 30th, 20206, the Supreme Court issued a decision on its merits docket in a campaign finance dispute called National Republican Senatorial Committee versus FEC. In that case, the court invalidated a campaign finance law that limited coordinated expenditures by political parties on the ground that the challenge law that restricted that kind of

coordinated expenditure violated the First Amendment rights of political parties. When that decision was announced, Leah Kate and I said that it would have real impact on campaign spending in the run-up to the midterms. And lo and behold, your favorite Cassandra's were absolutely right, because on the Friday before Labor Day weekend, this court decided to issue a shadow docket ruling where it cited its recent decision in NRSC versus FEC, and this particular shadow docket decision concerns the new guidance that the Federal Communications Commission Media Bureau issued in March 26. So what did that guidance do? Well, traditionally, under federal law, political candidates are guaranteed deeply discounted ad rates in the weeks leading up to an election. But the new guidance

that was issued in March 26 extended those discounted rates to certain party coordinated. ads, not just to individual candidates. And predictably, Democratic candidates across the country took that personally. Four of them, Representative Kristen McDonald, Rivett of Michigan, Senator John Ossif of Georgia, Sherrod Brown, who is running for a Senate seat in Ohio, and Roy Cooper, who is running for a Senate seat in North Carolina, all joined forces to file suit challenging the new guidance. These Democratic challengers sought expedited review at the Fourth Circuit, which they received, and where they prevailed. The government, with the National Republican Congressional Committee and the National Republican Senatorial Committee as interveners, decided to go to Daddy Scotus to ask Scotus to please

stay the Fourth Circuit's ruling is too unfair to us. And shocking nobody, Daddy Scotus granted the requested relief, concluding that the Fourth Circuit lacked statutory authority to hear the case because the FCC had not yet issued a decision on the candidate's application for review. Of course, the candidates went to the Fourth Circuit without waiting for a decision from the commission because, one, it's pretty clear what the commission's ruling on its own guidance would be, and two, the election is literally, in a couple of months, time is ticking, and this is a pretty critical question. All to say, the court also determined that the Republican Party committees had demonstrated that if the lower court ruling remained in place, they would suffer irreparable

harm because they would not be able to access the more favorable ad rates. Quote, thereby hampering their efforts to reach the electorate in the critical weeks leading up to the midterms. The court, again, citing its June decision, NSRC versus FEC, said that this injury would, quote, implicate the GOP committee's First Amendment rights to speak and coordinate their political activities freely. Because that is really what the First Amendment is for, making sure that ads are deeply discounted for political parties. And again, this is such a big. deal, Rashad, and I think it's getting absolutely no play at all. What's the impact of allowing parties and the Republican Party in this particular case, which already enjoys a huge asymmetry in

campaign funding right now against the Democratic Party? What's going to happen if they now have the opportunity to coordinate these ads with deeply discounted rates? I mean, it absolutely gets to shape what is possible. Right? So in this current cycle where so much is baked in. So much is baked in, around who the candidates are and sort of what the race looks like, right? We, what we're going to see is it creates less opportunity for mistakes on the Democratic side. It, you know, whether or not you can, you know, really hire folks, whether or not you can sort of mount a real effort, the type of range of issues that actually get covered.

You know, similar to what's happening with jurymandering, this actually sometimes dictates the term of the actual election. Whereas, like, it may feel like, you know, elections will still happen. People will still run for office. But who gets to run how it's shaped, all gets determined by how much money is in play. And the trick that we've got to really pay attention to is right now we have an election where the Democrats might actually have the wind at their back in some of these places. And we can't sort of take maybe wins that come under these unfair rules for believing that the

rules are not actually fair. And that's the biggest mistake that we can. can have is that like some Democrats win even under these unfair rules and we think okay well we we figured out how to like the playing field is level it's not actually level and so you know one of the things that happens sometimes oftentimes when Democrats sort of win in these type of situations is that they don't go back and get the structure reform that they actually need to get they kind of continue to try to operate in the system to sort of figure out how do we raise money from the corporations that we need how do we get the big donors. And I was just at a big donor fundraiser that a friend of mine had. I didn't have the

money to like, you know, put money behind it. Wait, you're not a Democratic way. No, no, I'm not a democratic way. And it was, it was interesting being sort of at this event, where they were asking for 400 and something thousand for the coordinated campaign. And it was a DSCC event. It was for ASEF. They were asking for the, and then you could, you could max out your 3,500, but you you could also go up to 400 and something thousand for the coordinated campaign. And I was just thinking, like, who can actually really legitimately participate and engage in ways that are meaningful? I have some ideas. And how many people now get kind of put out from the process and how many people's voices actually are just outsized as a result.

It's such a good point. I mean, one, you know, obviously this decision applies to any political party. So if the Democrats, and again, this goes to your point about not reforming the structural and systemic asymmetries, the Democratic Party could be. in a situation where it outperforms the Republicans in terms of fundraising and they are in the driver's seat and, you know, maybe they would want to do these kinds of coordinated ads. So I want to make that clear. I understand that this could apply on both sides. In this particular election, it really doesn't because the Republicans have actually outraged the Democrats by quite a wide margin. So there's a huge campaign finance asymmetry at play

here, which surely the Supreme Court recognizes. But the point that you're making, why do we have these asymmetries in the first place? And does this court decision merely exacerbate a playing field where certain voices sound louder and sound in a louder register than others? Like, maybe this shouldn't be the state of our politics in the first place. I mean, if the first question is always going to be from the coordinating committee or for the head of the party in the Senate or the House is like, who can raise enough money to be competitive, not who has the best ideas, not who can galvanize people and engage, but who can raise money, we start to really limit what... That's such a great point. This actually puts more hands in the party's central organizing as opposed

in individual candidates and makes the importance of the party much more outsized more so than it already is. And yeah, and what we've seen over the last several years is, you know, insurgent candidates exciting younger people, inciting, helping to sort of move people who might not be registered to vote to actually register and feel passionate. And if more of the power gets centralized with the party and the party apparatus, that will not be a good thing for democracy. And it certainly won't be a good thing for the type of wave elections that are going to be necessary to truly get to the numbers that are required for us to be able to win structural reform, where we get enough actual seats in the Senate, where we have enough power in the House,

where we have enough people on our side. We don't get. to that if money really limits the range of debate, but also limits who can actually run. Strict scrutiny is brought to you by Cozy Earth. I'm psyched to tell you how much I love cozy Earth. I change into my Cozy Earth bamboo, stretch-knit wide leg pants every night at home. No joke. They're my decompression evening comfy wear. It's cooling fabric, but also soothing. I just love it. I remember the first time I felt the fabric. It's an easy stretch, nothing yucky, and it just has this cool, comforting feeling to it, and it works in the summer and the winter. Unclear how it can be so temperature versatile, but it is. And as an added bonus, you can try it because it's super low pressure and risk-free.

There's a return in exchange window if the fit isn't right, and the pieces are backed by a warranty against manufacturing defects. Head to cozy earth.com and use my code scrutiny for up to 20% off home and sleepwear. That's code scrutiny for up to 20% off on home and sleepware. And if you see a post-purchase, survey. Please be sure to mention that you heard about cozy earth right here. This episode is sponsored by Better Help. If I could wake up tomorrow and be better at one thing, it would probably be, I don't know, putting things out of my mind, like just being able to compartmentalize stuff so I can chill and relax without having to do everything I can to handle it immediately. If I could choose a second thing, it would be small talk. Not great at it, not good at it. Honestly, not even really

possible. Better is a feeling and it's defined by you. And for Better Help, it's a Better Help therapist who really gets you. It's a focus on global, emotional well-being with thousands of therapists and millions of members in over 100 countries. It's progress. That could be getting better at handling stress and work or small talk, especially with strangers. Sign up and get 10% off at BetterHelp.com slash strict. That's betterh-e-l-p.com slash strict. Let's talk about some other kinds of structural reforms. The president has some ideas about some structural reforms. Actually, they may be restructuring the entire constitution in order to allow the president to restructure the election to be completely in the control of the federal government.

So on Sunday, September 6th, the Trump administration filed a shadow docket request to have the Supreme Court clear the way for the new U.S. Postal Service rules on the president's executive order relating to, quote-unquote, election integrity to go forward. Just to refresh you, the court had earlier granted the administration's request to stay a lower court's injunction barring the implementation of the so-called election integrity executive order on the ground that the challengers' claims were not yet right because the USPS had not yet promulgated rules for implementing the EEO's terms. Well, the USPS issued those rules, predictably, and the lower court weighed in. And now this question is back at the court for what will likely be the final showdown.

on this executive order. The administration's request was referred to Justice Jackson, who is the circuit justice for the First Circuit where this case arose. And Justice Jackson set a speedy timeline for this requiring responses on the petition on Wednesday, September 9th. We are taping on Thursday, September 10th. And it's likely that we will get some kind of decision here. So we're still watching for that.

And maybe we'll break in at some point later in this taping, Rashad, to have some breaking news on that front. But regardless of the court's decision here, the fact that this has dragged on for so long and has been such a back and forth between various courts and the Supreme Court, this is surely unsettled some voters who might be inclined to vote by mail, who may have to vote by mail because they have jobs or they're away or whatever. Are there going to be real impacts, regardless of how this turns out on voter turnout, on the Democratic Party's ability? to turn out, it's voters. And if you were on the ground in many of these states that are in the crosshires, so these are all the purple states that may be swing states for this president,

what do you do to galvanize voters in this moment where everything seems so unsettled and there's so much chaos? I think first you have to tell a really clear story to the people you're reaching about why there's so many attempts at making it harder for you to vote and what these folks' goal are, what's behind it. I think you're, you're not. I think you're a lot of, you're You're going to have to pick a really clear and have a really clear answer for people that may have to change. Is fascism a very clear message? No. People don't understand that.

I get it. I get it. I get it. People don't understand what it means. It actually has to get way more specific. We have to get it down to like kitchen table issues, in my opinion, that, you know, for the people. Donald Trump wants to prosecute a war with Iran and your gas prices are going up and they want to allow that to continue to have. Absolutely. For the people that fascism works, they're already going to be paying attention and they're already going to be with us. For the people that this is going to be one more thing that makes it confusing and they may throw up their hands, it's one more sort of step in the process. You know, listen, I've been dealing with this for a while because, you know, back in 2020, you know, when Vanita Gupta, Shirley and I, the three of us in our organizations, had won a lot of

rule changes at Facebook in terms of how election disinformation and census disinformation would be handled on the platform. Donald Trump went on Facebook and sort of launched into a whole tirade about vote by mail being illegal. And Mark Zuckerberg. Even though he votes by mail. Even though he votes by mail. And Mark Zuckerberg did not pull down those posts, even though we had set these policies.

And they kind of like had this sort of Trump exemption. They had all these policies. anytime Trump violated them, whether it was something around like, you know, the looters and shooters posts he did around the Ferguson's activist, when the looting starts, the shooting starts, all of these, like, violations of the policies. And I remember being in this meeting with Mark and Sherlin and Vanita that I talk about in the book, where Mark was trying to explain that, like, vote by mail wasn't, was under contention and maybe not actually legal to Sherlin, who was like, you know, like, you don't get to tell me

about how voting actually works. Yeah, I said, like, Charlene Eiffel is a lawyer and a litigator for many years. Mark Zuckerberg made a great app. He made a great app, and he didn't actually finish his undergrad. And there's like,

and there's, he didn't go to law school. And I was as the non-lawyer in the room, you know, very much trying to sort of just, you know, back up how it would be, sort of how would implicate on the ground. But they, but Mark also votes by mail. And we see all of these folks, right, that he doesn't show up to his local, the local school down the street in Palo Alto to vote. And so we ended up in this, in these roundabout conversations.

Voting at a school sounds poor. I just want to say. Yes. Yes. Yes. Not for mega donors like him. And also saying you're going to fund a school and then not actually funding it. Oh, shade.

Right. I mean, it's what happened. It's what happened. And so I still have to say that. This level of mis and disinformation and confusion around vote by mail, something that has like, that people have done for decades. It's just, it has happened and it has worked and it is a process and it is used by rich people and people with a lot of power.

Well, it used to be used by Republicans. This was for military voters who were abroad. You know, once again, when the rules don't favor them, they change the rules, whether than actually trying to reach the voters and engage the voters. And so this is a problem that there's so much sort of uncertainty around how you can vote and where you can vote and the process. And it will put one more extra burden on already taxed organizers in an environment where we are sort of under the gun. But also these attempts are happening because they know that they are behind. They know that they are on the ropes.

They know that they're not going to be able to win if they don't, you know, go on TV and promise people $5,000 or something crazy. And so that is, that is what we are seeing. We're seeing the behaviors and the antics of people who are losing and don't actually have a legitimate strategy to reach voters to win. Well, the point about the chaos, I think, being the point. I think is a very good one because like where there is chaos, where there is confusion, people aren't going to go out. I mean it's already hard, I think, to vote. Like people are like, what do you mean it's hard to vote? It actually is really hard to vote. Figuring out your precincts moved and this, that, and the other. And then you, you know,

they make it hard, right? Like we don't have a national day for voting. Other systems do. They make it hard. This kind of chaos makes it even more difficult to sort of figure out what's going on and to exercise your right to vote. where I think this chaos is even more pronounced is in the show me state, Missouri. So get ready. This one is a doozy, Rashad. So in other election-related news, listeners, there is some shit going on in Missouri. And it involves our friend, Coach Kavanaugh.

And I don't even think it's his fault. That's the best part. For once, it may not be Brett Kavanaugh's fault. Listeners, you know that the president has this whole scheme to maintain control of Congress and keep Republican control of the House of Representatives. because impeachment. And that scheme involves doing a little totally normal, not at all unprecedented or unorthodox mid-cycle redistricting. Well, the GOP in Missouri were all on board to give Daddy Trump exactly what he wanted a new congressional map for Missouri that eliminated one Democratic

congressional seat. And on September 3rd, when this map was challenged all the way up to the Missouri Court on a range of issues, including the Missouri GOP Secretary of State's refusal to put a ballot referendum on the ballot to address whether or not voters in Missouri wanted this new map that was drawn at the behest of Donald Trump. On September 3rd, the Missouri Supreme Court issued a decision blocking the state from using the new Trump-ordered maps in the upcoming midterm elections and requiring the state to use the older map from 20. that was the one drawn in the traditional decennial census. So what usually happens after the census, you redraw the map. The Missouri Supreme Court said you can't use this new Trump map. You have to use the

older map that was drawn in 2022. And predictably, the state's GOP, led by its Secretary of State, Denny Hoskins, went to the Supreme Court to try and block the ruling. And again, the whole point of this is wild. They're like, this is totally unfair. People use. the new maps in the primary, he totally lays out the point that the reason why people were using the new Trump-ordered map in the primaries, because he did not put on the ballot for the election, the voter referendum. And in Missouri, there is a constitutional provision that apparently says, you cannot have the new maps go into effect. If there's a voter referendum, that would say, no, you have to wait for the referendum to be voted on. And because he dragged his feet on the

referendum and then just allowed the new maps to be used, he's kind of responsible for the mess that he created. That doesn't matter, though, to our friend Denny Hoskins because he decides he is going to go to the United States Supreme Court to try and get the Supreme Court to block the Missouri Supreme Court's ruling. The petition was directed to our friend, Coach Kavanaugh, who serves as the Circuit Justice for the Eighth Circuit, and Coach K, without even referring the matter to the full court just denied Denny Hoskins' request. Snap? Like, this was not what Denny Hoskins was hoping for. He was basically like, I'm not about to get involved in Missouri State Constitutional Matters. I am Brett Kavanaugh and I am not in it. He was out. So then Hoskins and the GOP in Missouri

decide to file a Hail Mary suit in the Missouri Federal District Court challenging the use of the 2022 map in the upcoming midterm election. And again, the rationale is that, you know, that using the old map that was drawn after the decennial census in the traditional manner would disenfranchise voters who, because of Denny Hoskins' own machinations, voted under the new Trump-ordered map in the primary elections. Again, you cannot make this shot. But I will also say the Missouri Supreme Court was totally on to Denny Hoskins. They made sure to note in their September 3rd decision that, quote,

the secretary's delay in certifying the referendum for the ballot created the confusion, expense, and practical difficulties of which he complains. Shorter Missouri Supreme Court, sit your ass down. Anyway, okay. Despite the fact that Hoskins was complaining about lying in a bed of entirely his own making, Trump appointed U.S. District Judge Stephen Clark issued a temporary restraining order that appears to require the use of the new Trump-ordered map in the upcoming midterm election cycle. So let that sink in for a minute. A district court judge is now saying F you to both the Missouri Supreme Court and the United States Supreme Court, or maybe just Coach Kavanaugh, but basically a lot of middle fingers being shot here. Okay, a lot going on. And again, the United States Supreme Court basically said we're not going to second guess the Missouri Supreme Court's decision. So this is two high courts, the U.S. The U.S. Supreme Court's decision. So this is two high courts,

U.S. Supreme Court and the Missouri Supreme Court getting bench slapped by a district court. Like, you hate to see it. This is some stuff. This is like dynasty level. So where do things stand now? Well, a citizen's group that opposes the Trump-ordered redistricting that's called people, not politicians, intervened in the case, and they are appealing Judge Clark's TRO ruling to the Eighth Circuit. At the Eighth Circuit, a panel of three Republican appointees, including two Trump appointees, David Strauss and Justin Smith, ruled that the district court's TRO requiring the use of the new Trump-ordered map could remain in place. So they refuse the intervenors' request for a stay of Judge Clark's TRO. The intervenors are now headed to the U.S. Supreme Court to try and get a stay and an

administrative stay of Judge Clark's TRO pending an appeal. And again, there's so much stuff going on here. The Missouri Supreme Court has taken all of this personally, and they have issued an order for Secretary of State Denny Hoskins to show cause as to why he should not be held in contempt of court for violating the Missouri Supreme Court's September 3rd decision and oral arguments on that question were heard on Thursday morning. I wish I had been in that courtroom because that was going to be a bench slapping of epic proportion. So we're waiting for the Supreme Court's ruling. We're waiting for a bench slap from the Missouri Supreme Court. court. Rashad, what does this mean if you are a voter in Missouri right now? Are you just confused beyond belief and maybe just sitting it out and watching your stories at home on election day? I think you are absolutely confused that you had one set of options in the primary

that don't show up in your general, that strategically they've gotten us in this place now where we are fighting to keep maps that weren't great in the first place. Right? And so like, and so now we're like in this place, it's like, oh, the old maps. Let's keep the old maps. Yeah, the 2022 maps, to be very clear, weren't that great. No, they weren't. They were. They were.

They were. Absolutely. And so now they've just moved. They've changed the floor and the ceiling on us where now we are like fighting for something that we don't even want to, you know, that we didn't like in the first place. And so this is once again, the type of confusion, the type of chaos, the type of things that in this election cycle is what happens when folks don't actually have a plan to actually reach voters,

engage voters, and convince them that their policies and their leadership are the things that people should get behind. So I think this is such an important point. They don't have a real plan for getting us out of the economic mess we are in. They recognize that there is malaise among the voters. And instead of just trying to convince people, they're playing dirty. I mean, and I do think the chaos is the point. I mean, this is such a brazen move. I mean, literally, and the district court facilitating it.

Like, I mean, this is wild. The idea of the district court basically being like, F you to the Missouri Supreme Court, F you, Coach Kavanaugh, is just wild. I mean, like, people are out of their minds. But there's so much chaos. And I think that's kind of the point, right? Where there's chaos, that too, is an active way to suppress the turnout. You know, and as a, you know, as a non-lawyer who sits at this

and looks at it from the outside, the forum shopping that happens with these cases of like, and this is not just in this situation, but so many of these cases where folks are going out trying to find a judge that will step in and do the thing. And it does a lot to like have to, but I think they got a lucky break getting this.

They got a lucky break here, yes. And so, and so helping the public even understand, like, you know, Brett Kavanaugh says this, the state Supreme Court. says this. We've got a federal judge that says this. It feels like you need a PhD in civics to even understand sort of like, how does this all work and how and how does this even make sense in terms of like who actually has the final say? And in the end, like what gets implemented and what gets enforced by who? Like who holds the actual power in the end? What should Democrats in Missouri be doing

right now. Democrats in Missouri should be doing everything they possibly again to like explain why they are doing this. It's so hard to explain. Like I literally drew a flowchart for this. Not the details, not the particular details

of the court case but the underlying reason of why they don't want to like operate under the rules that they were already winning under. They were winning under in Missouri. They were winning under the old rules. They controlled statewide office. They controlled the legislature. They controlled sort of the state as a whole. And so the fact that even with all of that control,

they still had to change the rules because they have failed so badly in terms of their leadership that they needed more sort of a deeper, unfair situation. Well, and this president needed more, right? I mean, it all kind of goes down to. his effort to restructure Congress to prevent control of the House going to the Democrats. Yeah, yeah. And so, you know, the redistrict thing that he's calling on all the states, it almost feels like a parody of itself. It feels like something that would, that if, you know, 10 years ago, 15 years ago, someone had wrote this up as like a screenplay, it would probably get sent back as saying it was just too unrealistic.

So listeners, as promised, we knew that there would be some breaking news. And of course, we got a decision on that question about what map Missouri is going to use in the upcoming midterm elections. The court this Thursday afternoon once again prevented Missouri from using the Trump-ordered congressional map in the November election. The state will have to use the 22 map, the traditional map drawn after the 2020 census. That map, again, as we're and I just mentioned is not fantastic, but it does have the advantage of keeping in place a seat that traditionally has been held by a Democrat in the Kansas City area. So Secretary of State, Denny Hoskins and the Missouri GOP have been thwarted. The Supreme Court has, in a very brief order, decided that Missouri's Supreme Court's decision will stand. Before we go to break, I have some great news from the crooked universe, because folks, We are so excited about the launch of Crooked's newest series still counting. Hosted by the excellent journalists who brought you the 538 podcast.

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Well, I have another parody for you. This one involves the IRS and the new regulations that, in my view, are basically a plan to resegregate American education from K through 12 all the way up to college. So, some of Lund folks, it's time for a little strict scrutiny history. So, listeners, in the wake of the Supreme Court's 1954 decision in Brown v. Board of Education, which desegregated America's public schools, the South engaged. in what was known as massive resistance. TLDR, the former Confederacy, wanted to continue doing a little light Jim Crow. One of the ways that Southerners dragged their feet on integration was by creating what were known as Segregation Academies. So these were all white private schools

that served as alternatives to integrated public schools. And one of the things that made these SSEG academies so attractive to many Southern families was that they were relatively affordable, even though they were private schools. So how's that, you say? Well, many of these SED academies actually operated as tax-exempt organizations, meaning that the federal government gave them a tax break because they were a quote-unquote charitable organization. And because money is fungible, the money you save on paying your taxes can be directed to your operating costs, allowing you to lower the cost of attendance and keep tuition relatively affordable. It was such a good model that it even migrated to higher education. So Bob Jones University in Greenville, South Carolina,

basically operated as the higher education analog of a SIG Academy. You love to see it. All right, there is one wrinkle here. So by the 1970s, the IRS get hip to the fact that money is fungible and they're basically subsidizing discrimination. And so they decide that private schools with racially discriminatory policies will not qualify as tax-exempt charitable organizations under Section 501C3 of the Internal Revenue Code. In 1971, just a year after these IRS regs took effect, Bob Jones University, low and behold, began admitting black students. But only if those black students were already married to someone of their own race.

Unmarried black applicants were still rejected and not admitted to Bob Jones. That changed in May 1975, when following additional legal pressure and some court rulings against racial exclusion in private schools, Bob Jones University allowed unmarried black students to apply and enroll. Very big of them. But Bob Jones University still drew the line at permitting interracial marriage and dating on campus. And the IRS took that personally, revoking the school's 501C3 status. Bob Jones took that personally and the school suit, along with a group of segregation academies, arguing that the IRS regs prohibiting tax-exempt institutions from discriminating

violated their freedom of religion because, according to them, the ban on interracial dating and marriage was rooted in their fundamentalist interpretation of the Bible. Shorter, Bob Jones, Jesus made us do it. In 1983, the Supreme Court issued an 8-to-1 ruling against Bob Jones University, upholding the IRS's power to revoke the tax exemption of institutions that are engaged in discriminatory practices. Well, folks, fast forward to 2026 and the IRS under the auspices of the Trump administration has now issued new regulations that it maintains are in the spirit of the Bob Jones decision, as well as consistent with the Supreme Court's 2023 decision in Students for Fair Admissions v. Harvard.

Under the new regulations, an institution's tax-exempt status may be revoked if the institution engages in race-based discrimination. There are some notable exceptions. The proposal, the IRS website notes, would not prevent a private school from maintaining a religious mission, curriculum, or program of religious observance. Religious schools may continue to select students based on genuine religious affiliation or membership to remain consistent with federal law. The IRS website goes on to note that the proposal allows schools to continue expanding educational opportunity to assist disadvantaged students using race-neutral criteria such as family income, geographic location, first-gen status, individual hardship, military family status, or academic achievement when

awarding admission or financial assistance. They may not make decisions or confer benefits on the basis of race, color, or national, or ethnic origin. So here's my question. What counts as making decisions or conferring benefits on the basis of race, color, or national, or ethnic origin? According to the New York Times, which covered the regulations, this could include, quote, offering targeted support to black or minority students. By my reading, that could be anything from scholarships that are intended to target minorities or to recruit minorities, or even sponsoring affinity groups for underrepresented minority cohorts. In reporting on this, most of the media outlets have really focused on the impact of these proposed regulations on higher education. And again, that's not surprising

given how diligently this administration has prosecuted its zeal for ridding higher education of quote unquote, wokeness and illegal DEI. As we know, this administration armed with its own breathtakingly broad reading of SFFA versus Harvard, a reading, I should add that no court has credited. The administration is sought to dismantle DEI throughout higher education from admissions criteria to affinity programming for underrepresented groups. But here's the thing that no one is covering. This is probably, to my mind, the most impactful aspect of these new regulations. They will also implicate K-12 education. So these regulations apply to all tax-exempt institutions, including the thousands of private schools that provide K-12 education for millions

of American students. And I get it. For many, many years, these private schools were regarded as the bastion of the preppy elite. But over time, they've actually become, much more diverse serving a wide range of students. And indeed, in the era where public schools are increasingly segregated, I'm looking at you, New York City public schools, private schools have actually become enclaves of racial gender and socioeconomic diversity. And that is largely because many of them have incorporated the programming that's needed to support a diverse cohort of students, like student and parent affinity groups, scholarship funding to recruit certain groups of students who are otherwise underrepresented. Under these new regulations, I think these kinds of

interventions would prompt the revocation of tax-exempt status. And taken in that view, I think these regulations have the potential to utterly remake education from K-12 all the way up to college, turning the dial back to a time when American education was truly racially divided in every sense. And the irony of all of this is that the administration is using Bob Jones University versus United States to underwrite this. The administration says all of this is consistent with Bob Jones University, as though having a black student union is exactly the same as prohibiting interracial dating or marriage on your campus. Again, I'm not saying that these regs couldn't be challenged.

I'm not saying that if they were challenged, the challengers wouldn't prevail in a corridor. You know, part of the Bob Jones decision says that, the institution's policies to be found problematic under the IRS regs would have to be a violation of quote-unquote fundamental national public policy. Not clear that having a black student union violates national public policy. But I don't think we have to get to a court case for this to be impactful. All you need is a bunch of schools whose entire financial model is predicated on being a tax-exempt organization. They will roll this back just because they don't want the smoke from the administration. they don't want to take the chance.

And once they roll the stuff back, they're not bringing it back again if it's later determined that these regulations were wrong. So Rashad, this is a lot to get your mind around. If the media isn't even covering the K-12 aspect of it, how do we get ordinary people to understand what is at stake? Because I want to be really clear. These are proposed regulations. There's an open public notice and comment period where the American public can weigh in

and say what they think about this and whether they support this. How do we get people to understand that we are literally going back to 1953 with these? Well, I think we have to talk about that we are going back to 1953. We can't talk about this as IRS rulemaking. We have to talk about this is, what does this mean for my kid's school? You know, I have a lot of experience in this, particularly in this sort of rulemaking process and mobilizing public comment, whether it was sort of at the FCC around net neutrality, whether it's been around many of the sort of mergers,

the AT&T T-Mobile merger or the Comcast merger. And in each of those situations, you have to get very clear to the heart of sort of what's at stake. So like, what does this be for my kid's school? Sort of getting to the lift experience and then helping people sort of understand what the public comment and rulemaking period

actually means and what it doesn't mean. And being able to mobilize enough energy to like make sure that it impacts like how politicians show up, how the media shows up, what stories you can collect, how you can build a large enough public response and engagement, because the rule period in and of itself may not actually mean anything if you don't surround it with the type of sort of energy and public outrage. But, you know, in the net neutrality fight, which once again is a very sort of complicated issue of like the Communications Act and Title II and making sure

the kind of ways in which internet is classified is very different than sort of making sure that the content that I want to see isn't held back or throttled by the internet provider. And getting really clear about that, I think, is important. I think they're counting on the fact that people are going to look at this and be like, oh, it's Harvard. Or if you can think about K through 12,

they're like, it's private schools where everybody talks like this and everybody wears an house called and it's like Buffy. But this could affect charter schools. We are seeing the increasing privatization of K through 12 education as more and more parents, including minority parents, want diversity for their children. And they're not finding it in public schools because of the resegregation of American public schools. It actually isn't an elite problem. It's a bigger problem, I think, than many people appreciate. And, you know, the investments that has really gone into, like, getting black parents and black organizations and,

churches on board with things like vouchers and charter schools. Like that, this is a moment, right, for that to be called out, right? For those folks to be engaged that people have been sold a story that, you know, is quite problematic in some respects about sort of what a voucher program or sort of a full charter program would actually provide at large. But people have one of the best for their kids. and in many cases have walked through this process only to get to this point of watching sort of public resources be privatized.

And now we're at this place where, like, you know, many of these people that have sort of taken this opportunity are going to perhaps be shut out or not actually get the things that they thought they were going to get. You know, your point that I think is really important. And I see this in my advocacy work as a whole. is that when the administration sort of goes down this road, particularly around diversity, all of the sort of compliance in advance that happens, that is sometimes even worse than the actual policy, the changes that happen, you know, many of us who run advocacy work right now, you know,

in order to get certain grants, you are partnered with a lawyer that the foundation wants you to work with, right? And I have been on the other side of these calls where we'll have a plan or a project and I'll get the feedback from the lawyer and I have to ask, go back. And, you know, I love my lawyers. And they will, just for the audience. And they will say things. This is not just a lawyer audience. Absolutely. We have rage. We have rage. Good, good, good. But so the lawyers will say things like, you know, I don't think you want to do that particular thing because you might be explaining. your strategy. So let's say I want to put out a newsletter about the issues that I'm working on around diversity with a bunch of groups in there. And the lawyer might say, you may not want to put all that out there on paper because you may not want your opponents to see what you're doing. And my question is like, is that legal advice or strategy advice? Is that legally not the thing I should do? Or you making a strategic call because the lawyers now have outsized power over the advocacy that we're doing?

And so if every single advocacy step that we have to take has to go through a set of lawyers that are not looking at all of these things, even through a legal framework, oftentimes through a risk-assessed framework, what ends up happening is so much of the sort of creativity, the advocacy, the pushback can be really reduced because we are now trying to avoid risk. And if you're starting from a place of avoiding risk, no great social change, no great sort of move that has like overcome something has started by Martin Luther King Jr. was not a management consultant. No, he was not a management consulting. But our movements are now in in this sort of management consulting risk assessment of like in a lot of the sort of creative projects and plans that have come in many of these schools to attract diverse students and to, you know, support parents have not come through the lens of first a risk assessment. they've come through people trying to be creative to solve a problem.

And what we're going to end up with is that all of these things are going to be about risk assessment and we're going to actually lose the innovation that actually leads to the type of things that actually help us solve real problems. And for those of us who care about social change and progress, that's not going to be a real problem. Because on the other side, what we are watching is them take all sorts of innovative steps to do whatever they can, to throw all sorts of things at the world. wall in order to be able to stop us from being able to have inclusive spaces. And on our side, we are doing deep risk assessment to not like harm or upset the Apple card. And that of itself

means that we are starting from a place of loss, from a deficit from a place, and not from a place of aspiration and push. And that also means it becomes harder to mobilize our people, get our people excited. Because if you are, you don't get people excited about risk assessment. You get people excited about plans and projects that they are willing to stand up and fight for, even if they may be risky. That is how advocacy and activism works, and that's how it attracts people onto our side. All right. Rashad is going to stay with us, but next up, Kate Lee and I are going to talk to Daphne Rana and Nicholas Bowie about their new book, Supremacy, how ruled by the court replaced government by the people. Strict scrutiny is brought to you by Wild Alaskan Company.

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That's wild-alaskan.com slash strict for $35 off your first order. Thanks to Wild Alaskan Company for sponsoring this episode. And for this segment, we are thrilled to be joined today by professors Nico Bowie and D. Ranaan to discuss their new book supremacy, how ruled by the court replaced government by the people, which is out tomorrow. Niko is the Louis D. Brandeis, Professor of Law at Harvard Law School and a former law clerk to Justice Sonia Soto-Mayor. Daphna is the Peter B. Monroe and Mary J. Monroe, Professor of Law at Harvard Law School and a former clerk to Justice Ruth Bader Ginsburg. Welcome to the show, Nico and Daphna, although I think it's technically welcome back to you, Nico.

Thanks so much for having us. Yeah, thank you for inviting us. Well, we're delighted to have you. And together, the two of you have spent several years developing a comprehensive challenge to the major separation of powers narratives that have fueled the rise of judicial supremacy. In 2022, you published a really influential article in the Yale Law Journal titled Separation of Powers Counter-Revolution, which documented how, and I'm going to quote here, modern separation of powers law is premised on a misunderstanding of what the separation of powers is. It is a great article. I've assigned portions of it in my constitutional law courses, and it traces the rise of the flawed understanding to the lost cause myth that emerged in the late

19th century when an ascendant, White South, violently returned to power after the Civil War and was hell-bent on ending reconstruction. And your new book, Supremacy Bills Upon That Important Work, it offers a fascinating and in our view urgent new history of the Supreme Court. And it's a history that challenges a lot of our most basic assumptions about the court's role in our democracy.

And it also shows how the immense power that the court now wheels was seized, a kind of power grab by the court rather than given. The book starts with a striking claim, quote, was written in the name of we the people. Yet we have lost the ability to give meaning to its words. Instead, nine robed lawyers have claimed the power to make the rest of us live under whatever rules they say the document requires. You then go on to describe how, quote, the Supreme Court has played

a starring role in the unraveling of our democracy. Niko, can you elaborate on some of the court's threats to democracy and rights that you had in mind when writing this book? Sure. So I think a good illustration of the problem is the Voting Rights Act. So even before Congress passed the Voting Rights Act in 1965, 100 years before, Congress wrote a 15th Amendment designed to protect the ability of black people to vote, and the Supreme Court interpreted it so narrowly that states for years enacted laws like literacy tests or poll taxes or other restrictions that basically disenfranchised the Southern Black population. And when Congress passed the Voting Rights Act, it was after people like John Lewis marched in Selma. Marchers died in the name of winning the right to vote. Congress debated it at length,

and they enforced the 15th Amendment differently than how the Supreme Court had interpreted the amendment to that point. And the statute was incredibly important. It extended multiracial democracy. throughout the country. Future Congresses in 1970 and 1982 reaffirmed the Voting Rights Act by the time Congress most recently reenacted the Voting Rights Act in 2006. It was just an overwhelming vote signed by George W. Bush. And yet, in 2013, five justices decided that the Voting Rights Act was not constitutional, or at least a key component of it was. And just this past term, the court has finished off the rest of the law. And the question our book asks is, what gave those five justices that kind of power? Why is it that we can have this incredibly important statute that Congress has

passed over and over again, but five people claim this authority to declare that statute unconstitutional. And it's not as though there's anything in the Constitution that says you can't have a voting rights act. The language they're interpreting is Congress can pass appropriate legislation. So it's kind of who gives them the authority to say what is and is not appropriate. So one of the points that you make really emphatically in the book is that there are real dangers associated with the court's interpretive dominance. And obviously, the Voting Rights Act is a great example of this. You say it in this way. Quote, This form of governments has a name, judicial supremacy.

And although Americans treated as if it were natural, something expected by the Constitution's authors and accepted uncritically since the Constitution's ratification, in reality it is anything but. Daphne, can you elaborate on that, I think, a sort of upending of the conventional wisdom, that this isn't something that was given or conferred to the court. This is actually something the Court has affirmatively taken for itself and expanded over time. Yes, absolutely. this is something that the court has taken for itself, and Americans across history have pushed back. So we start with the anti-slavery abolitionists who really developed an understanding of what we call democratic constitutionalism,

an idea that we want the Constitution to be an anti-slavery document that's foundational to our most deep and fundamental moral commitments. And the way to get there is we have to reject the power of the Supreme Court to have a final say over these kinds of questions. And so you see Frederick Douglass in letters with Garrett Smith kind of developing this theory of democratic constitutionalism that's saying the intentions of the framers are not what matters. The words of the Supreme Court are not what decide the meaning of the Constitution. What we need is a politics that will change who is in power in Congress. And Congress has laws at its disposal from the guaranteed clause to a range of provisions in the original Constitution. only amplified with the Reconstruction amendments to give multiracial democracy genuine meaning in our

country. And that was the vision of the founders of the Republican Party. That was the vision of the the party of Lincoln, the creed that Lincoln brought to government that we see throughout Reconstruction, Charles Sumner, Thaddea Stevens, we see the embodiment of this idea manifest in the first civil rights laws passed, the first federal agencies that are administering what members call practical freedom, the first vote protections. And we see it again in labor leaders

pushing back on the idea across the early 20th century that the court gets to decide whether what we have is a constitution that focuses on the property rights of corporate power or that enables the labor movement through democracy to vindicate commitments through federal laws like an eight-hour workday prohibitions on child labor, a federal income tax. We see it also in the arguments of early civil rights pioneers that are saying,

look, we have these old statutes from reconstruction. They're still on our books. And if we have a Supreme Court that actually is willing to enforce them, we can vindicate these equal protection guarantees. So this is a vision, this more democratic constitutionalism that we trace throughout American history and that we offer us, this is our constitutional story. This is our constitutional tradition. And we don't need to imagine that Marbury began and ended the conversation. We'll get to Marbury in a second. But was this vision of democratic constitutionalism that you are describing, you know, a departure from the 1770 framers understanding of how the court would operate? No. I mean, one of the surprising things that we've

found during their research is, you know, we went into it thinking of Marbury v. Madison the way a lot of people think of it, where the Supreme Court announced it had this power to strike down acts of Congress, and everyone was like, great, I guess it has this power. But what we found is as people first made that argument, there was a tremendous amount of resistance, including among members of the Constitutional Convention. You know, James Madison later said, I definitely did not intend that, as well as, you know, the members of Congress and the public who realized presently what it would mean. Because, you know, they had just written this Constitution and voted for this Constitution that, in theory, empowered people to elect Congress to give meaning

to what the Constitution meant. There was no federal government in, you know, 1789 when Congress first met. They had to create the thing. They had to decide, what can the President do? What does our court system look like? What kinds of protections do? people have. And they weren't just making it up on the fly. They were defining what the Constitution meant. And when the Supreme Court in Marbury said, hey, we think we should be able to defy federal laws, a lot of people resisted that, or they just ignored it. And part of one lesson that we hope people who read the book come away with is the first time the court actually disagreed with Congress about what the Constitution meant was not Marbury,

but Fred Scott. Fred Scott was the first time that Congress said, here is what we think the Constitution means. It means that we can ban the spread of slavery in federal territory. And the Supreme Court said, no, you can't. We're interpreting the Constitution to say that's not possible. And it wasn't as though the Republicans or the abolitionists of the time just, you know, gave up and said,

I guess we have to wait until, you know, the court members retire. They said, who gave them this authority? And if anything, Congress has a duty whenever it sees the court issuing bad decisions or bad interpretations of the Constitution. Congress has the duty and the power to enforce an alternative interpretation. And that's what Congress did. Five years after Dred Scott, Congress passed a law. to ban slavery in federal territories.

Precisely where Dred Scott said, Congress lacked the power to do that. So speaking of designing the thing, I wanted to note, first, this is a rare summer episode where all three of us are here, which speaks to exactly how much we love this book. Another testament is that I volunteered to do a giveaway

for someone who is not a strict scrutiny co-host. So we are actually writing a giveaway. If you get a copy of supremacy, you can enter a giveaway. the form will be on the show notes and enter to win some of the merchandise designed to reflect the book's inspirations.

I'm wearing a T-shirt. It says overruled judicial supremacy and there is also a mug. So again, if you order the book before Friday 5 Eastern, you can enter the giveaway on the show notes. Can I win the giveaway

because I did order my book and... No, I'll just gift one to you because you are a co-host. Okay, I would like to be on that list as well. It's a really nice shirt. if you're listening and not watching. So definitely get on that if you happen not to be lucky enough to co-host the show with Leah.

Or have written the book. Or have written the book. I guess the authors get free of a free shirt to do, but everybody else got it by the book to enter the giveaway. Okay, so I want to pick back up where you left off, Nico. So you guys pose the sort of twin set of questions that you say the book aims to answer. So first, if the power of the court

to review the constitutionality of federal statutes has been widely viewed as dangerous since the beginning, why is it taken for granted today, second, when the court invalidated important federal legislation, how did Americans respond? Now, Nico, you were just talking about in the wake of Dred Scott. It's not as though everyone said, well, the court has spoken, like the answer is that Congress lacks the power to ban slavery. Congress responded.

Lincoln, when he was president, responded. It was not as though everyone decided that the question was settled. So I think that you've spoken a little bit to that. What about the first question? Daphne, let me bring you on this. So if this power has been viewed as so dangerous since the beginning, as you were elaborating earlier, why is it so taken for granted today that the court rightly possesses this power? Yeah, so judicial supremacy or the power of the court to set aside and invalidate federal statutes,

really takes on verve and regularity in a reaction to reconstruction that we describe as really a double helix of anti-black racism and anti-labor politics. So what we see is a rise of influential, many of them are politicians who turn on the Republican Party itself and develop a kind of splinter party called liberal Republicans. Several of them are influential newspaper editors at the time that start to turn their back on reconstruction and to weave together a story that is the lost cause narrative that originates in the South that a kind of reckless Congress has turned its back on constitutional traditions and run amok in empowering multiracial democracy in the United States. And they're weaving together this story with fears at the time of the Paris Commune

and the growing in the north of a labor movement that's starting to see some of their statutory goals being met at the federal level. And so you have writers describing multiracial legislatures in South Carolina as kind of the new Paris commune that it's come to the United States. And the force that liberal Republicans turn to to put an end to all of this reckless democracy is the court because they're losing elections, right? So they're actually running for federal office and losing, but what they have is significant influence on the court. And the court during this time starts to just unwind the legislation of reconstruction and more generally to assert its power and its preeminence in regulating the boundaries between federal and state power. And it's doing this in a range of

cases and it's doing this in an increasingly aggressive and muscular way. And we lose what we had during reconstruction, which was a Congress willing to tell the court no. And a Congress willing to stop the court from putting in jeopardy its most consequential laws. So during the height of reconstruction, when the landmark Reconstruction acts that bring Black suffrage to the South are in the crosshairs of the court,

members of Congress are debating. How do we protect our laws from the court? Do we pass a supermajority rule that says, actually, you need a significant supermajority of the court before you can set aside a federal. law, the author of the 14th Amendment, John Bingham, is putting this proposal on the table. You have some members saying, actually, we want to protect our legislation entirely. We can say that the Reconstruction Acts are political questions and that the court shouldn't

get to second-guess them at all. So Lyman Trumbull, the author of the 13th Amendment, is putting that idea on the table. And ultimately, what Congress does is it enacts a specific jurisdiction strip. So it prevents the court from being able to decide the constitutionality of reconstruction in the particular McCartle case before it. and the court then complies with this. So what you initially had was a politics and a Congress willing to tell the court no. And to tell the court, we are protecting our laws and our interpretations of the Constitution.

Once you lose that political ability and the narrative develops that actually we need a court to protect our property rights from democracy, right? and we need to protect our white citizens from what has developed as a two thick conception of multiracial democracy in the United States, the court starts to wield that power with regularity. Sounds very familiar, Daphna. Speaking of judicial power, I think it's important, I think, to do some table setting in terms of definitions.

So Article 3 of the Constitution speaks of the judicial power and best the judicial power in a Supreme Court and the inferior courts that Congress may create. Judicial power is not quite the same as judicial review. In fact, the term judicial review is a relatively recent vintage. It was coined in the 20th century. You argue in the book that the conflation of the judicial power with judicial review obscures a really critical distinction between two ideas about judicial power, one of which was settled by the Constitution. And the distinction that you are describing is what you term vertical review versus horizontal review. Can you explain the difference between these two types of review and why it matters for our purposes? Yeah, sure. So put yourself in the shoes, I guess, of a member of Congress

after the Civil War. So you have just seen one example of the Supreme Court striking down a federal law that was Red Scott. And at the same time, there are all of these state legislatures who are full of people who are really hostile to the idea of enfranchising black citizens. So on one hand, the court is a threat. It is a threat to federal legislation. But on the other hand, all of these states are in a position where they can really defy your legislation, like new voting laws, anti-discrimination laws, and other protections of civil rights. And so for those members of Congress, they argued that the role of the court is not to invalidate federal law, which is really dangerous, but it is to enforce that law

against states or presidents or, you know, federal agents or anyone else who would violate it. And that's the difference between horizontal review and vertical review. Horizontal review is this power the court has asserted to defy federal legislation, whereas vertical review is the court's power to enforce that legislation against others. And so the Constitution does say that federal courts have the judicial power, but at the time, the relevant courts that people were thinking about were English courts, and English courts have never had the power to strike down acts of Parliament. But what they did have the power to do was enforce those acts of parliament against

lower subordinate governments. And that was kind of the argument among members of Congress when they tried to regulate the court because they saw the court's role as being basically one of enforcement and interpretation, at least interpreting federal statutes. But in the wake of the court's assertion of this power to basically defy federal laws, the kind of thing that the court was doing was pretty one-sided. Like, if you think about what kinds of decisions was the court making with respect to federal laws, there's the general counsel of the American Federation of Labor in the 1920s reviewed this question, and he wrote this report about it. And he was like, this is terrible. You know, the court is saying Congress can't pass an income tax.

Congress cannot ban child labor. Congress can't protect the rights of immigrants in states. Congress can't protect the right to vote. It can't stop racial discrimination. Congress can't prevent monopolies. It was very one-sided, and the members of the court were explicit about their goal. Justice Joseph Bradley at the time was really vocal. It's like, our job is to protect minorities.

The minority we have in mind are property owners. These majorities are out there trying to steal from them under the red flag of socialism, and it is our job to stop them. And so for the AFL, their position, as they put in their legislative campaigns, was we want to stop the court from reviewing these federal laws, but we want them to enforce these laws as they were intended. We want them to enforce the anti-monopoly laws, enforce the child labor laws, enforce the pro-labor laws,

because we need a federal legislature that's capable of democratically legislating. So I want to get into some of the history surrounding Dred Scott in particular and the rise of judicial supremacy and its reinforcement of white supremacy just to give people a taste for part of this story. So I think some people might be familiar with this, many not. There was actually a pre-Dread Scott campaign to make this, that is the lawfulness of slavery and Congress's power to ban it, a question for the federal courts. Can you talk a little bit about that? Yeah, and it was actually a very concerted effort by the president-elect Buchanan as he's getting ready to govern. And he'd really like this question of whether Congress can restrict the spread of

slavery to just go away. So he writes a letter to his friend on the Supreme Court and says, can you guys just decide this as a judicial question? And the initial response that he gets, is probably not because it's a legislative construction that's been in place for a pretty long time. But then he gets better news, which is actually I think you're going to be happy with what we're going to do in this Dred Scott case that we're sitting on.

Then Buchanan goes before the nation and says, I'm going to cheerily submit to whatever the Supreme Court does. And lo and behold, what the Supreme Court does is say, actually, Congress, you don't have the power. to limit the spread of slavery and federal territory

because that would violate the property rights of enslavers. And so the Buchanan campaign was, this was a judicial question. It's finally settled by the Supreme Court. Nothing we can do in politics about it. And you make the point that he basically just lies and says, I don't know what the court will do, I will abide whatever it is.

But of course, he knew exactly what the court was going to do because he had a direct line into not just the chief judge, but he's corresponding with at least one other individual justice. So that episode is wild, and there is so much more like it in the book that we haven't had a chance to get into today. So we are going to have to leave this conversation there. But I think we've made pretty clear from just how incredibly current so much of these dynamics sound that this is much more than just a work of history. It is incredibly relevant to conversations that are happening right now about how to respond to the Supreme Court's undermining of our democracy. It is happening now. It has

happened before. And to talk about all of that, Nico and Daffna will be back in the hot seat for Thursday's episode of our Hot Scotus Reform Summer slash September. So definitely don't miss that conversation. Niko, Daphna, thank you so much for stopping by to talk about the book. We are all really excited for what you'll have to say about Hot Scotis Reform Summer. Listeners, this book drops tomorrow. Supremacy, how rule by the court replaced government by the people. You can get it Everywhere you get your books, we are going to be getting our copies from bookshop.org, but you can get it anywhere. Make sure you get one, though, incredibly important now, today, forever. Thanks so much for having us. Thanks so much. Supremacy drops tomorrow. It is a must read. Make sure you put it in your

cart at bookshop.org. Rashad, I want to come back to something that we do in every episode. We always end by discussing our favorite things. I just want to say one of my favorite things. is not just you, Rashad, but the First Amendment, right? I love the First Amendment. And I am especially enamored of freedom of the press, this idea that we have a media that can call our government to account, what it needs to be called to account. You recently kicked off your book tour from presence to power in New York City with Jane Fonda. And Jane Fonda, who continues to be a badass, just relaunch what is known as the 1A Committee. So the Committee for the First Amendment, which is inspired by the original committee that stood up to the Hollywood blacklist in 1947.

You've been working with the committee to address concerns about the imposition on First Amendment rights, the growing concerns about censorship, and, of course, the growing consolidation of media presence and power within certain media organizations. And you've really focused on the potential consequences for the First Amendment that may flow from the proposed Paramount Warner Brothers merger. what's at stake for ordinary Americans and the constitutional order from a mega merger like this one? Well, I mean, the consequences of putting more and more power, more and more of the channels that reach people, you know, under the umbrella of a single family, you know, already owning CBS, then we'll have CNN. more studio power,

it will reduce sort of the type of content that can create it, the range of voices. Obviously, it will have economic impact, but it will have absolute impact on sort of free expression of voice. And we've already seen this family make really deep overtures directly to the president, directly to those in power about sort of what they will do

with this channel. We've watched the FCC do something that, you know, as a person who's been, you know, there on multiple mergers and climate periods and pushback, the sort of speed at which the FCC moved, you know, on this merger was just, you know, like something we've never really seen. The fact that we do have state attorney generals really speaking up and standing out, I think is a testament to how unpopular. No, Rob Bonta has been all over this in California. He has been excellent. And even we are watching sort of. of astro-turf campaigns, sort of attack him, go after him, you know, create lies about,

that they really can't defend attacking the opponents. And they always do a set of these steps, right? They sort of lie about the actual facts. They try to discredit those people that are working on it. They try to buy off opponents, which they've done. And then they get to the fact where they try to find some sort of settlement that still allows them to do all the things that they want to do. And, you know, what's been really important about the committee for the First Amendment and Jane Fonda, who's 88 and tireless and is like... I don't think she'd want you to tell her age. Or she... No, she talks about it. And she's actually... She's a better man than I. She talks about it. She's a real one. She's a real one. She is here. She celebrates her birthday loudly and

publicly. Good for her. And she's... And I think I think I think I... I think about it as I talk about it because I like to remind any of my friends who talk about being tired or talk about how the work is too hard. I like to remind them. Jane has been doing the work. Doing the work. And it's been clear about the racial justice implications, the gender justice implications. But we'll get on the phone and call any celebrity.

We'll get on the phone and call any media executive. And, you know, she and I, I got to be her, her dad. date to the Oscars this past year where we went and we wore buttons. I know. It was kind of the most surreal moment of my life because you know, you know, there would be no reason for me to go to the Oscars anyway,

but if I had somehow gotten to the Oscars, nobody would really talk to me, right? Like, why would I be there? But like, you're there with Jane Fond and now everyone wants to come over and talk to you, so you're there and like, you know, like, you know, Usher and Nicole Kidman and all these people and Jane just... Not Usher. No, I mean, like

they want to come over and they want to talk to Jane, and And Jane's like, you should know my friend Rashad, who's working on all these, like, important issues. But we wore the, we wore the stop the merger button. Oh, great. The 1A buttons. And we went out and we talked, really talked about blocking the merger. And over time, continued to sort of build energy of a merger that was supposed to just kind of sail through.

And fighting to protect the First Amendment, fighting to protect the First Amendment isn't abstract, right? If we talk about the amendment and abstract. But it actually has real. on who owns the channels, who can be attacked. And so, and Jane has been there. I was in L.A. when Don Lemon was arrested and I called her that morning to say, hey, Don Leman was arrested. He's out here in L.A. for the Grammys.

And she was like, well, are we going down to the jail? And I was like, Jane. And so we went down to the jail and she, you know, she went out and she said they got the wrong Don. and talked about her history with CNN, being with Ted Turner at the time and what it meant to have 24-hour news. And so her history, her understanding of the industry, her connection to people,

and her ability to speak and take risk, in my opinion, as an activist, once again, creates more space. It creates more opening for others to raise. their voice. And we need that in this era. The First Amendment is incredibly important, but the First Amendment needs an army. It needs a defense. It needs advocates. And the Committee for the First Amendment is one of those. Certain parts of the First Amendment already have that army, but we need one for the free press. We need. We need the one for free press. Yes.

Right. So I'm going to start my favorite things by saying that story about you and Jane Fonda like kicking it at the Oscars. Maybe my favorite thing this week. I love that. Also, one of my favorite things this week is Rashad Robinson's From Presence to Power, how to take on the fights that matter and win. It is a fantastic, practical, practical guide for how we get out of this mess. And I recommend it to all of you. This week, I also read a marriage at sea, a true story of love, obsession, and shipwreck by Sophie Elmhurst. Truly amazing.

And just a reminder to so many women, always choose the bear. If you get to a husband who's like, let's go take a trip on a yacht around the world. world and we're the only crew. Girl pick the bear. Also, want to say, I really, really had a great time at Sarah Lawrence College where I was on Tuesday, September 8th, talking to those students about the Constitution, the school years just started there. And I ran into some fantastic stricties in the wild. So I just want to shout out Halliday and Owen, who are Mainers. Owen is a first year at Sarah Lawrence, and they are great stricties. And we really are appreciate them. So Roshad, I'm going to invite you now to tell us about your favorite things.

Yeah. So as a New Yorker, I have been enjoying as much as I can, the U.S. Open. And in particular, sort of the having three black folks in the finals, you know, the fight to open up space and opportunity, you know, is important, changing the written and unwritten rules. I grew up on, you know, Eastern Long Island in the 80s and 90s, and there was just such a clear message sent about what spaces were for you and what were for you. And each of these folks

have had a different path to getting to these semifinals. Say their names, Rashall. Yeah, Coco, Francis, Ben. And, you know, like, and, you know, Coco, Francis, and Ben, each of them have had a really different... I'm still gassed about Taylor Townsend, too.

Oh, Taylor Townsend, too. And I love Taylor Townsend. And all of them have had really, have really just opened up, opened up, I think, hope and possibility and become a possibility model. And I just, I love that because, you know, activism and this work is not just like

creating the space of opportunity, but people have to then go into it, have to make it their own, have to show that it's possible. And I was going to say, I tried to make tennis my own. It did not work. No, not me, me either.

It was never for me. Another one is adults, the TV show adults. It's on FX. It is a show about Gen Z. And I feel like it makes me feel like I'm 400 years old, which I think is good for me sometimes. Yes, it reminds me like I'm not a young person, which I think is healthy.

But, you know, in this second season, they had an episode called The Scrub, where the 20-somethings are having to sort of go on to their social media and scrub all of their content if they want jobs and figure out because they're unemployable for these things, right? They're on these platforms. They're told to like be themselves, be authentic, build brands. And now they're getting to the place where they need jobs and they've like had these

videos that, you know, or have these pictures. And it's done in such a funny and interesting and irreverent way. And it and, you know, the five kind of five, six, yeah, the five. Five main characters are diverse and interesting. You have a Muslim character, South Asian character. You have a black queer character. And that is also so rare to have a main character who's black and gay and gets to be messy and funny and annoying. Not just the, not the sidekick, the main, one of the main characters.

It's a five, it's like a friends five. It's like a friends in that way. And they're all dealing with real economic uncertainty. They're not living in a really fancy apartment in the village. They are like living in a parent's house. And they're all struggling to make ends meet dealing with health care issues. And I think it's just an important show that sort of shows some of what's happening in this environment through a funny lens and getting to see, you know, these characters created.

And then the final thing is a book that I have just started to get into, but I am sort of like captured. I've been listening to it and reading it. But it's the disappears, but by Marlon, by the great Marlon James, who, you know, a great Jamaican. Absolutely. A great Jamaica. And one of my other dear friends, who's also Jamaican, is one of the readers of the audiobook, my friend, Anno Okira, who's doing the, doing the first part of the book.

And so it's good to hear Ano's voice. Anu and Marlin came to my pride party this year and I was like talking about my book And he was like talking about Like all like I got Jane Fonda's my date I got Marlon James coming to my pride Like what do I have? I have a dog I mean I mean I mean I mean you have a come on Melissa

But yes but no but um But he was talking about his book and I was like talking about book And I and just and just like seeing the sort of just incredible piece of just the work of art that is this book. It is truly a work of art. It is truly a work of art. And it is like it is something that I think is so needed and so necessary in this moment. And telling this story, I just urge people to go out and get it.

I'm in and I'm doing listening and reading. And I can't wait to get all the way through it. But I just want to recommend it and recommend sort of anything by Marlin, who's just in a incredible author. Rashad Robinson, thank you so much for coming and helping me today on strict scrutiny. You are always a delight. Listeners, the book, in addition to The Disappears, which again, I highly recommend as well, please also pick up Rashad Robinson's From Presence to Power, How to Take On the Fights

That Matter and Win. This episode has been chock full of great books, supremacy by Nico Bowie and Daphneur. And, of course, the U.S. Constitution. Which I keep saying, which I keep saying our books go together so well. They go together so well. Like, read the U.S. Constitution. It will help you really understand how the rules work, how the written and unwritten rules work, how we get to like what actually, how things actually are enforced and implemented

and worked. And then I think my book does help you think about then what do you do about it? And so they've got this constitution. Now what. Yes. Now what. From presence to power. From presence to power.

And so, yeah, it's just, thank you for having me. It's just always great to be in conversation with you. So delighted. Thank you for coming by. Hey, Stricties. I know that this episode has been chock full of fantastic books for you to read, but I have one more. Our friend and Crooked Maven, Alex Wagner,

has a fantastic new book out. And it's all about the origin story of this goblin Supreme Court. The book is called The Steel. four right-wing hardliners, one Republican presidency, and the raid on America's courts, and it drops tomorrow, Tuesday, September 15th, and you can get it wherever you get your books. And if you are excited about this book the way I am, please come out and join me and Alex. We will be in conversation on Tuesday, September 15th from 7 to 8 p.m. at McNally Jackson Books at Brooklyn Studios. That's one DeKalb Avenue in Brooklyn, New York, the borough of Kings,

and we're going to be breaking it all down and talking about this fantastic new book. So add another one to the pile compliments of your friends at strict scrutiny. Listeners, that's all we have for today's episode. We will be back in your ear holes very soon because, of course, you know, the Supreme Court's going to Supreme Court, can't stop, won't stop, and we will be there to break it all down for you. Thanks so much for joining us today. Strict scrutiny is a crooked media production. Our show is produced by Melody Rowell and Michael Goldsmith.

Our music is by Eddie Cooper. Our team includes Bat DeGroote, Ben Hethcote, Johanna Case, Kenny Moffitt, Adam Lippard, and Eric Schupe. Our production staff is proudly unionized with the Writers Guild of America East.