Strict Scrutiny - Hunger Games for Legal Hackery

Episode Date: July 14, 2025

Katie Phang, independent journalist and trial lawyer, joins Leah to run through the week’s legal news–and there’s a lot of it! They unpack, as KBJ puts it, “this Court’s demonstrated enthusiasm for greenlighting this President’s legally dubious actions in an emergency posture” and break down the latest thirstiness from the judges angling to be Trump’s next SCOTUS pick. Then, all three hosts are joined by Strict Scrutiny’s official roadie, Chris Hayes, to talk about his book, The Sirens' Call: How Attention Became the World's Most Endangered Resource. Hosts’ and Guests’ Favorite Things:Chris: What we won on Election Day, Zohran MamdaniKate: Mamdani, Trump and the End of the Old Politics, Ezra Klein & Chris Hayes (NYT); Moral Ambition: Stop Wasting Your Talent and Start Making a Difference, Rutger BregmanMelissa: Dirty Dancing; Ruin Their Crops on the Ground: The Politics of Food in the United States, from the Trail of Tears to School Lunch & Skimmed: Breastfeeding, Race, and Injustice, Andrea FreemanLeah: Bury Our Bones in the Midnight Soil, V.E. Schwab; Bone Valley: A True Story of Injustice and Redemption in the Heart of Florida, Gilbert King; Beyonce’s Cowboy Carter tourKatie: A Lawsuit against Alligator Alcatraz! (Katie’s Substack) 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 VibesFollow us on Instagram, Threads, and Bluesky

Strict Street News brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting precedents, shattering norms, and dropping a few billion. The same people and 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 our lives. Church-State separation is a bulwark that blocks their agenda. One of the last bastions of Church-State separation is a bulwark that blocks their agenda. One of the last bastions of Church-State separation is our public school system. So they are pushing vouchers everywhere. They are arguing for religious public schools. Yes,

you heard that right. Religious public schools. And they argued for it at the Supreme Court last term, which we talked about a lot on this podcast. If you're listening to us, you already see the writing on the wall. You know that we can and we must fight back. Join Americans United for Separation of Church and State and their growing movement because church state separation protects us all. You can learn more and get involved at au.org slash crooked. a fresh take that sharp thoughtful and it's informative for you closer to the headlines and conversations that are shaping our world the front page the zeitgeist all in 15 minutes or less here's the scoop from NBC News listen

daily wherever you get your podcasts. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your favorite Supreme Court justices, favorite Supreme Court podcast. No, we are your podcast about the Supreme Court and the legal culture that surrounds it, and this is our first summer episode. And as promised, we're going to bring you a debrief of Supreme Court and legal news,

followed by a super fun conversation about a terrific recent book by someone in the Strict Scrutiny multiverse. Yes, after this new segment, you will hear Kate, Melissa, and me talk with our roadie, Mr. Kate Shaw himself, Chris Hayes, about his latest New York Times bestselling book, The Sirens Call, how attention became the world's most endangered resource. But before we get to that conversation, I am delighted to be joined by first time guest, long time great, Katie Fang, who's going to help me break down the legal latest. Katie is an independent journalist and trial lawyer.

You can find her with her must follow commentary at her YouTube channel, Katie Fang News, which will be in the show notes, and at her sub stack at Katie Fang. Welcome to the show, Katie. First time long time. Big fan. We could not have a better first summer guest. I am thrilled. This is like the best early birthday present ever.

So yay. So Katie and I are going to discuss Jester's Wildly a lot, but we'll make it punchy. So that's going to include the latest- No way. There's a lot to cover. Yeah, I know. Who would a thug? Latest on the Shattered Docket, some goings on in the lower chords, and then some Emile Bove and Ken Paxton just to top it off.

So listeners, start your engines. Let's get to the crazy. We'll start with a brief moment of silence, like one second, maybe millisecond, to mark the end of the marriage of one Texas Attorney General Ken Paxton and his wife, Uber right-wing state Senator Angela Paxton. Okay, that's all the silence we need. Angela announced their conscious decoupling with an epic Twitter post as all healthy marriages end. It read, today, after 38 years of marriage, I filed for divorce on biblical grounds. In light of recent discoveries, I do not believe that it honors God or is loving to myself, my children, or Ken to remain in the marriage. Katie, you're a trial lawyer. What does it mean

to file for divorce on biblical grounds? That's what I was just about to say. I didn't remember learning that in law school. Now I will say the caveat is I did not attend law school in the state of Texas, although I did go to law school in the state of Florida, which is often a hold my beer kind of moment between the two states. They're competing on a race down to the bottom of hell together. But that I, you know, I did, and I do a lot of family law. And I will say I have never seen a petition for dissolution of marriage on social

media, but you know what? It is the 21st century. And of course she'd put it on the cesspool, which is X. But biblical grounds suggest the consistency of the Ken Paxton biblical knowledge allegations, like I biblically knew her. And so I suspect that there have been more revelations, yet another biblical reference that I'm dropping here. I think that there's been some new revelations. That being said, what's fascinating is you said it, you know, Ken Paxson's wife was definitely having her own meteoric rise to fame and to power politically being the spouse of Ken Paxson. There was definitely the hitching of a star to a wagon there or wagon to a star. And I think that for her to say that she's done is, I think, a big, big deal because he has done a lot, allegedly, a lot of bad stuff.

It wasn't the impeachment, right? It wasn't the alleged corruption. The fraud, the whatever. It couldn't be that. It was the biblical stuff. But you know what's fascinating though is it just kind of highlights though, Leah, the hypocrisy of the GOP, that you can have all of these stains and still be the attorney general of the state of Texas and to still be a politician. And you know they're incredibly forgiving when it comes to their own. Yeah, like of course it's the guy who is furiously searching

for husbands and boyfriends to terrorize their wives and girlfriends by filing wild anti-abortion litigation, right? Who would be the one that needs to have his marriage dissolved on biblical grounds? Makes you wonder how much weird stuff did Judd with 2D Stone have to do in order to be fired from that office. But we're going to leave most of the Ken Paxton coverage to our friends at lawyers behaving badly. And that takes us to the Supreme Court. So the Supreme Court stayed on biblical grounds, of course, a significant decision of the lower courts. That's a joke. They did bother to explain themselves on this one, and it wasn't on biblical grounds. But maybe before we get into that detail, we thought we'd answer a question we've received a few

times, which is, I thought these clowns were done. They finished the term. Why are we still hearing about them, Katie? I mean, why are we still hearing about them, Katie? I mean, why are we still hearing from them? I mean, you would think that the destruction had some cessation or expiration date like my milk does, but apparently not. I thought these people like wanted vacation. Did Clarence not get the memo on where Harlan's yacht is this summer? Because Did Clarence not get the memo on where Harlan's Yacht is this summer? Because I mean, why are we still getting this? But you know, we've talked about this a lot and I've talked about this with Steve Vladeck, another friend of the show.

You know, the emergency application process, I've equated it to a little boy running to hide behind his mother's skirts. Anytime the Trump administration gets something that they don't like, they run to hide behind his mother's skirts. Anytime the Trump administration gets something that they don't like, they run to hide behind mama's skirts and that constitutes your ultra conservative majority SCOTUS. But this one was a little weird. And if we're talking about the American Federation case, I mean, for Katandji Brown Jackson, who in full disclosure is a friend that I went to high school with, you know, for her to be the lone dissenter on this one

was really startling. Yeah. And so I don't know what's going on. Before we get to too much of that detail. Oh, sorry. Yeah, no. We'll unpack what the case was about and the dissent, for sure.

But yeah, I mean, we're still getting all of this stuff because the shadow slash emergency docket is can't stop, won't stop. You know, the government is still going to be filing all of these requests for emergency relief, even after the justice is finished, releasing their opinions and argued cases, which is part of the reason why we are still

going to be in your ear holes throughout the summer. So with that background, the specific shadow docket order, as Katie suggested, was Trump versus American Federation of Government Employees. And this order came in one of the cases challenging the regime's mass firing of federal workers and its restructuring of Government Employees. And this order came in one of the cases challenging the regime's mass firing of federal workers and its restructuring of the federal workforce. So the plaintiffs in the case challenged the president's

executive order directing agencies to plan for large scale reductions of force in the Office of Management and Budget and Office of Personnel Management's memo instructing agency heads to submit reduction in force and reorganization plans and the agency's plans that followed all of that. But the basic gist of the legal challenge

is the president and the agencies OMB, OPM, and DOJ acted without congressional authorization in ordering agencies to engage in these reductions in force. Congress laid out a specific method for doing reductions in force and reorganizations, and this ain't it. And because only Congress has the authority to do radical restructuring of federal agencies

in the federal workforce, the president and agencies can't just go at it on their own. And the government's position in this litigation has been, what do you mean the president ordered agencies to do this without regard for the relevant statutes? The agencies just so happen to come up with reductions in force after the president ordered agencies to do this without regard for the relevant statutes. The agencies just so happened to come up with reductions in force after the president directed them to do so and told them to follow the law while doing so.

The district court rejected that argument based on the facts. The court wrote, quote, the evidence plaintiffs have presented tells a very different story that the agencies are acting at the direction of the president and his team. So based on that finding and others, the district court found the executive order and the implementing OMB and OPM guidance unlawful

and issued a preliminary injunction. Ninth Circuit declined to stay that preliminary injunction. And that's when the Supreme Court comes in. So last Tuesday, the court issued a stay. It offered its conclusion, but not so much its reasoning. It said, quote, because the government is likely to succeed on its argument that the executive order and memorandum are lawful, and because the other factors bearing on whether

to grant a stay are satisfied, we grant the application, end quote. How helpful. So court's decision, 8-1. We'll get to Justice Jackson's dissent in a second. But Katie, what did you make of the court's order? Well, thanks for no favors. Once again, the very limited explanation being provided, the summary kind of casual like, well, hey, they're going to succeed on the merits. So let's just

disregard everything the district court did. It is so incredibly arrogant to me and it dovetails with the Katanji Brown Jackson dissent we're about to get into. I take umbrage with this idea from SCOTUS that the work that's being done on the district court level, it could just be summarily disregarded. It's work. There is some heavy lifting that is being done by these trial court judges. 50 plus pages.

And it's like, are you supposed to just say, well, hey, we think that the Trump administration will ultimately prevail, so to hell with what you just did, district court judge. It is just such a slap in the face of all of the heavy lifting that's being done. And again, like I said, it kind of just goes to the crux of the KBJ dissent in this case. Yeah, no, I mean, the district court did this in camera review. The Supreme Court looks at none of this and just says, well, our vibes, our read, just kind of different. And listeners are probably curious about the fallout that

is the upshot of this order. Basically, what it means is the Trump regime's widespread massive scale layoffs and reorganization are no longer blocked. We've just gotten news that the Department of State plans to lay off a ton of diplomats and foreign service workers. But the plaintiff's case, that is,

the case that is challenging these reductions in force and reorganization, can proceed against the individual agencies. That is, the plaintiffs can argue that any individual particular agency's plan for a reduction in force and reorganization is unlawful. And there were 22 other agency defendants' names. So this would require them to show

that each of those agencies adapted illegal reductions in force and reorganization plans, making it harder for the plaintiffs to really stop all of this. And I wanted to talk about the vote breakdown, which appeared to be 8-1. Justice Sotomayor issued a short opinion concurring in this day. She wrote, quote, the relevant executive order

directs agencies to plan reorganizations and reductions in force, quote, consistent with applicable law, end quote. And it's like, I'm sorry, my This Policy is Consistent with Applicable Law t-shirt is raising questions that are answered by my This Policy is Consistent with Applicable Law t-shirt. It's circular. It's like you're answering the question with the question.

And it doesn't help me to say that. And I think that's what really is upsetting, because there is no recourse now beyond the Supreme Court. And so we look at these opinions, and not just as lawyers, just as Americans. We're looking at these opinions for guidance. Why? Because now we can maybe retry or re-strategize or reconfigure

the way that we're going to approaching litigation in the future. But when you leave us hanging like that, it's a really bad cliffhanger. And the problem is you now have people that are unemployed. And that's what troubles me too. I feel like this ivory tower energy is now coming from this opinion. It's the, well, y'all are down there and we're up here. And you know, the fact that a district court judge did all of this work to be able to determine the ultimate impact and did as a finder of fact, a credibility determination, which is also critical here that you do not get from the Supreme Court when they sit again in their ivory towers and make these decisions.

It's just a very humbling thing to watch that happen in a bad way. Yeah, I mean, it seems like just last month when Samuel Alito was ranting about the appellate otherworldliness and the removal of appellate judges from the realities of trial courts, but the justice sotomayor concurrence was super puzzling to me because it basically says, well, the administration says that what they're doing is legal, so therefore it's legal. That seems to turn the presumption of regularity into something that is basically irrebuttable. We're not just presuming regularity.

We are declaring regularity and insisting on it. And the Supreme Court's order, that's just a conclusion without an explanation. And so that leaves us to actually understand what's going on by looking to the dissent by Justice Jackson, which is yet another tour de force that sounds the theme she has been ethering the court and the administration with. Katie, you already kind of started talking about the dissent

and I cut you off just to get all of our listeners up to speed. No, I'm sorry that I jumped. No, no, no, no, no, no, the dissent. That's where you should start. That's where you actually get the information. Well, sadly, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no,

no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no, no that temporary, practical, harm reducing preservation of the status quo, which was the injunction, right? In this case, whatever, was no match for this court's demonstrated enthusiasm for greenlighting this president's legally dubious actions in an emergency posture. I mean, she covered the waterfront, the emergency application, disingenuous emergency application.

The fact that this is a temporary injunction. This is just an injunction, which is just a bandaid on status quo so that these cases don't have to be rushed to the Supreme Court and they can be measured and determined on the facts on the record. But she really excoriated her colleagues. She included the ones that we normally

are looking to for sanity because they joined in on the majority opinion. Yeah, no. And that is underscoring a theme that she has raised several times, which is the extent to which the court is just in the bag for the administration, or at least giving them favorable treatment.

And she really takes issue with what you were also highlighting as problematic about what the Supreme Court did, which is the Supreme Court giving a big middle finger to the lower courts and their fact finding. So as she explains, the issue in this case is whether what the federal government is doing is a massive restructuring at the direction of the president and OMB, or on the other hand, minor workforce reductions

that are being initiated by agencies and assessed to be consistent with their statutory obligations. And as she acknowledges, you need facts to answer that critical question. And the district court made a ton of factual findings and the Supreme Court does not explain how they disagree, where they disagree, which fact findings they disagree with.

And that seems to be the basis for their decision. So what people need to understand is these injunctions in these contexts are based on evidence. There is the presentation of evidence to sustain these injunctions, to grant them, to deny them. And in the course of considering the evidence, the judge not only relies upon whether or not the evidence is admissible in the first instance, but also again is able to make a credibility determination that is a luxury afforded to a trial court judge that normally if you were in a jury trial setting for example, the jury would be

the determiner of whether or not you know there's a credibility issue. But there is a uniquely situated person in this instance which is the district court judge. This is a part of that judge's job to do this. And so when you are not, the Supreme Court is effectively telling the district court judge, you did your job wrong. But hey, we're not gonna tell you how you did your job wrong. So did you take umbrage with the facts themselves or do you take umbrage with the process

within which I obtained the facts? Or like you said, so eloquently, it's just the big middle finger because we don't really care about the work that's being done by the lower courts. So now we have this fissure between the lower courts and the Supreme Court. And here's, we haven't even talked about this.

Let's just skip over the appellate courts. Right, yeah. Because who the hell cares about what their role is in some of these determinations. And fundamentally, I love the fact that Katandjah Brown Jackson keeps it real. She says, there are very real harms that are coming from the overturning and the dismissal of a temporary salve, a temporary bandaid while we let the facts sort

themselves out. And it's funny because we haven't heard a lot about Doge lately. I mean, really we haven't. It's always kind of been some other horrific federal agency that's been doing something massively wrong like DHS, ICE, et cetera. But we haven't heard a lot about it, but we all know that motivation and intent is an incredibly relevant part of this analysis. And that is, again, the luxury afforded to a district court judge to be able to assess. And now we're just summarily kind of cloaking this administration with a presumption of decency when we all know

that that's not the case. Yeah. And maybe just to unpack, you know, you were referring to this as like a temporary salve and band-aid just to explain for our listeners, you know, the different stages of litigation. So here the district court had issued a preliminary injunction to prevent the federal government from firing so many people and restructuring the agencies. And one reason to do that is because if you allow them to do those firings and that reorganization, and then at the end of the case you conclude it's illegal,

it's really hard to unwind that. And so part of the- Put the genie back in the bottle. Exactly. Quick, quick, quick. Exactly. part of the- Put the genie back in the bottle. Exactly. Quick, quick, quick. Exactly. Part of the purpose of these preliminary interim relief is to preserve a status quo to allow the courts to collect

the facts and determine whether what the district court has concluded kind of makes sense as a permanent answer in the case. So Justice Jackson's writing is consistent with her public statements from last week. Katie and I have been reading from her dissent. Let's hear her in her own words. At an event sponsored by the Indianapolis Bar Association in Indiana,

Justice Jackson was in conversation with a district court judge, and she was asked what keeps her up at night. And we'll just play her response. What keeps you up at night? I would say the state of our democracy. I would say that I am really very interested in getting people to focus and to invest and to pay attention to what is happening in our country and in our government. She's a talker now. She's saying a lot of stuff.

Talk about keeping it real. I am here for this. I'm like, oh. I was surprised. I'm like, look at her go. She don't care. I love it. I absolutely love it.

But the punchline or bottom line of this shadow docket order, to me, is a continued war on the lower courts that is being waged by both the Supreme Court and the Trump administration. And this notion that district courts have to follow the rules, even the ones that the Supreme Court makes up and won't tell them about. But of course, the court itself and Trump, they don't have to follow the rules. That seems to be what Justice Jackson is saying the court has done. And again, it's the lack of guidance that troubles me too. Yeah. Because now it becomes a little bit of a free for all. One of the luxuries you get from reading a Supreme Court opinion is again, you get to go back to the drawing board for future cases. And we refer to

Supreme Court cases as the ultimate case law, right? And that's the precedent as defined by any lawyer. So if I'm trying to figure out how to present a case, if I'm retained to represent a group of plaintiffs, I'm gonna go to a Supreme Court case and say, okay, this was attempted and they lost. In this instance, it is a black box, a black box of an opinion, but this is what we're getting

from these emergency shadow dockets. It is wild that not only is it punting the regular audit of SCOTUS to be able to address these cases, but they're creating all of this kind of perpetuated lack of knowledge, lack of clarity, lack of transparency. And how do you not have transparency in the law? That's the part that I don't understand. Yeah, law, but make it secret.

So it's not the end of this case challenging the massive firings and reorganizations, but it makes the plaintiff's case in challenging that so much harder. So now let's move on to the lower courts, i.e. the courts who are actually doing the whole law thing, at least some of them. We had some, I think,

welcome developments in the challenges to the president's illegal attempts to deny people birthright citizenship. And specifically, a district court in New Hampshire certified a nationwide class action and blocked the government from applying that order to anyone in the class, which includes anyone potentially subject to the order.

Katie, what should people know about this district court decision? I suspect you teed this up in this order, Leah, because coming off of what we just said about we look at Supreme Court decisions to get some guidance, as we are aware, back in June, towards the end of June, there was a decision from the United States Supreme Court authored by Amy Coney Barrett that basically said nationwide injunctions are, no, they're

a little bit suspect now, can be used in limited situations. But hey, class actions are a vehicle by which a nationwide injunction could be used. So what did very smart, very capable lawyers do? They immediately filed new lawsuits to be able to get class actions certified, a group of people to be able to represent an entire class of people across the United States. They tried and they went to a federal judge in New Hampshire. And in disclosure, Leah, I am a part of Democracy Defenders Fund, which was one of the lawyers and lawyers groups that was representing the group of plaintiffs here. I myself was not in court for this.

However, a federal judge in New Hampshire said, well, hey, I'll see your request for a class. I will narrow it though. It's a little bit much what you're asking for, but not only will I certify a class, but I also will enter a nationwide injunction on that executive order. But I'll give the federal government seven days to be able to appeal. But you know, Leah, it's again, we derived this theory of a strategy based upon a Supreme

Court decision that gave us a new roadmap, which was incredibly helpful. No, I mean, if the Supreme Court was basically going to use the possibility of class actions to blunt the effect of its ruling and to reassure people that it was no big deal, that was going to generate class action litigation, where judges would award the prospective class nationwide injunctions.

And the question to me now is whether the administration chooses to take this all the way up back to the Supreme Court and how quickly and what the court would do and whether it would deign to reach the merits this time. As you noted, the judge stayed the order for seven days to give the government time to appeal. So it's going to the appellate courts ready or not. And I think the question is just what happens after that.

I do think that the judge in this case, Judge LaPlante, did a really nice job because he narrowed the class because that was an argument from the Trump administration lawyers that it was a kind of an overly broad stretch. It was an overreach to protect too many people in terms of the certified class. I think the fact that he narrowed it, one, and two, the language of the injunction tracks the language of the executive order. It's very clear that the people who are the beneficiaries of the nationwide injunction are the ones that would have been subject to the executive order entered by Donald Trump or announced by Donald Trump back in February of this year. And so I think that this federal judge was reasonably anticipating the appeal process,

one. And two, your point is well taken. I do not think the Supreme Court is prepared to deal with the substantive issue of the birthright citizenship because we need to remind everybody tuning in. There is still other litigation that is still pending on that because the CASA case, the one that we just talked about that had that Supreme Court opinion at the end of June, that case is still winding its way through the judicial system as well. So this was another case. This was Barbara in quotes, Barbara versus Donald Trump, president of the United States in

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guarantee so if you're 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. So that is the news out of a district court in New Hampshire. Moving on to another court that might also be teeing up some issues for the Supreme Court, that is the Eighth Circuit. So the Eighth Circuit recently denied

en banc review that is reviewed by all of the active judges on the Eighth Circuit in the case about whether Section 2 of the Voting Rights Act has a private right of action. That is the question is whether the Voting Rights Act can be enforced in litigation brought by private parties, like citizens and voting rights organizations, or whether instead it can only be enforced by the Department of Justice, which, as we know,

not so interested in enforcing voting rights as opposed to voting wrongs right about now. The Chief Judge Smith noted in dissent in the Court of Appeals case that over the past 40 years, there have been at least 182 successful Section 2 cases. Of those cases, only 15 were brought solely by the attorney general. So not allowing private parties to enforce the Voting Rights

Act, that really kills what remains of the Voting Rights Act. And this issue, whether Section 2 can be enforced, is now headed to the Supreme Court. The plaintiffs are asking the Supreme Court to grant cert and review the case. And I'm sure only good things will happen from there. No?

Well, what's left of the Voting Rights Act? Yeah. Honestly. I mean, we don't know what they're going to say to that question in Louisiana versus Calais, which they put on the docket again for next term. I just feel like the chipping away

is eventually going to leave absolutely nothing left on the bone. There will be no substantive meat left on the bone. And I think the primary concern is not actually, ironically, it's not the substance or the merits of it. It's the Department of or the merits of it. It's the Department of Justice in and of itself. I think the decimation of the Civil Rights Division at the Department of Justice has

turned equity on its head and equality on its head. Your point is well taken that if you do not have a Department of Justice that is seeking to protect civil rights pursuant to section 1983 of our federal statutes. If you don't have a Department of Justice that thinks that its civil rights division actually has to protect civil rights, then this becomes a free for all. And my greatest fear is, again, what happens to what's left of the Voting Rights Act? Yeah, no.

We are all going to be watching for that. So now back to some good-ish legal news. And it is, once again, out of the district courts, which are the place to be. So we got a temporary restraining order in Planned Parenthood's challenge to the provision of the big bad bill that prohibits Medicaid recipients from being reimbursed for care

that they receive at entities that provide abortions and that receive more than $800,000 in Medicaid funds in, you know, one fiscal year. So Katie, I guess let's start with that provision that is the provision in the big bad bill. You know, can you explain what that does? So the big bad bill has a specific provision that goes after non-profit organizations that generated $800,000 or more in revenue from Medicaid payments in the 2023 fiscal year. So there are non-profit health centers, right, that not only provide abortions, but they also provide other medical care. I think that's a big footnote here.

There's a big misconception about clinics like Planned Parenthood and other health care centers and health care clinics that even though they may provide abortion services, that that's all they do. But in fact, they actually are usually centers within neighborhoods and clinics within neighborhoods that provide essential health care services from mental health services to birth control to abortion and to other things. And so basically this big BS bill, as I like to call it, but I'll be polite because this is your show. This big BS bill though is an attempt by the Trump administration to end run having to deal with something that frankly

was already dealt with, which was the Hyde Amendment. So the Hyde Amendment says you cannot use federal funds for abortions, right? So that's already in existence. But the Trump administration says, if we include a funding slash in the big B bill then we're gonna basically Gut planned parenthood because now they won't be able to get the funding that they need and the lawsuit that was brought

Essentially says please let's dispense with the stupidity here We all know you're really coming after Planned Parenthood because there's really only us that generates more than $800,000 in income in Medicaid payments. Ha ha, we figured you out. Yeah, and so just to take that one step further, the significance of this provision,

it's kind of a backdoor abortion ban because it will defund and close clinics in blue and purple states, not just red states because if you defund Planned P in blue and purple states, not just red states, because if you defund Planned Parenthood, if you starve them of the funds that they would receive for providing care to Medicaid patients, that is not just going to close clinics in red states. That is going to close clinics across the country as they reallocate resources. And I think in that way, it's similar to the targeted regulation of abortion providers legislative strategy

of regulating abortion out of existence. Because if you force the closure of a clinic, then no abortions. And that seems to be the point. So I wanted to read a statistic because I really like numbers. More than one million patients in 43 states receive healthcare services at Planned Parenthood that are covered by Medicaid. That's a lot. That's every year. So to your point, it's not just red states, it's red states, blue states, purple states. It's 43 states out of 50 states that are going to be impacted by this.

And I think it's incredibly insidious because it's not for a failure of imagination on our part, Leah, but this is some pretty creative stuff that they do. And what's incredibly disturbing is this 900 something page bill has these types of things baked in where you have to, again, extend your thought process strategically beyond just saying, well, how does this work? What is this nonprofit? What is this amount? No, no, no.

They are trying to get around and create basically a nationwide abortion ban because Planned Parenthood is again the only provider that would meet these threshold financial requirements under the BBB. Yeah. So a district judge issued a temporary restraining order which pauses that provision under the BBB. Yeah. So a district judge issued a temporary restraining order, which pauses that provision of the BBB for 14 days from July 7. And that means patients will be reimbursed for care

they receive at Planned Parenthood. And Planned Parenthood will receive funds for the care other than abortions that it provides through Medicaid. And we will obviously be watching that case to see what happens from there. So after we recorded, late on a Friday, I should add, in order to prevent subsequent breaking news, we got some late breaking, post-recording legal news.

But it's good news, so not going to complain. And going to let you know about it. The news is this. A district judge in California issued a temporary restraining order that limits what ICE and DHS can do as part of their roving patrols in Los Angeles. This is a super important ruling in that if followed and implemented and upheld, it will reduce the amount of terrorizing that DHS is able to unleash on LA. A few quick details about the ruling.

There didn't seem to be a lot of disagreement between the government and the plaintiffs about what the law actually is, that is what the law allows the government to do. So the district court actually starts out the opinion by laying out the agreement between the parties, bullet pointing the things they don't dispute. The opening paragraph says, quote, the federal government agrees roving patrols without reasonable suspicion violate the Fourth Amendment and denying access to lawyers violates the Fifth Amendment, end quote.

The dispute, in other words, is about the facts, i.e. whether DHS is detaining people without reasonable suspicion and then denying them access to lawyers. And the district court concluded plaintiffs submitted enough to substantiate their request about what is happening and to get a TRO. The district court wrote, quote, what the federal government would have this court believe

in the face of a mountain of evidence presented in this case is that none of this is actually happening, end quote. You would think that this would be the kind of ruling that would or should hold up on appeal in the event the government tries to appeal a TRO, which ordinarily isn't appealable, but appellate courts let you appeal temporary restraining orders that are

functionally the equivalent of injunctions. Anyways, as Justice Jackson's scorcher of a dissent in the Union of Federal Workers case indicated, the Supreme Court is not above second-guessing district courts on the facts, even when the fact-finding process is on the up-and-up and even when the facts seem to line up as the district court found them to be. Still, the temporary restraining order is great and welcome news. And this is what it actually prevents DHS from doing. ICE, DHS, Border Patrol, they can't stop and question people

solely based on their race or ethnicity, speaking Spanish or having an accent, being at a specific place, like being outside of Home Depot where day laborers might gather, or doing specific work, such as landscaping. Side note for our listeners, an old Supreme Court decision, Bregnone-Ponce from 1975, had actually permitted some racial profiling in the enforcement

of immigration laws, but at the border and functional equivalents. Elsewhere, like LA, the government has to identify specific articulable facts in order to justify stopping and questioning people. On the basis for the government's arrests in this case, the court remarked, quote, defendants, that is the government, do not explain why fleeing upon seeing unidentified masked men with guns exiting from tinted cars without license plates raises suspicion." When ICE doesn't identify themselves, there are consequences.

The temporary restraining order that the judge issued also directs the government to immediately provide people who are detained in the basement of federal buildings with access to lawyers and confidential legal calls. So great news, LA, about this order. And again, in a sane functioning legal system, this should be the kind of order on which a district court gets a lot of deference, the kind of order that stands. The Trump administration, as I was saying, did not argue that these kinds of stops were legal. They just claimed, in spite of all the evidence, that

it wasn't actually happening. And we usually let district courts resolve facts in reasonable ways, but we will see whether the administration gets the Supreme Court on speed dial for this one. And speaking of the Supreme Court, back to the original recording. So auditions continue apace for the role of America's next top SCOTUS justice. And among the auditions is, of course, the one being done by Fifth Circuit Judge James Ho, who issued a concurrence to his own opinion in a death penalty case. Hey, it worked for Neil Gorsuch, anyways.

He doesn't have enough to do. My bro, it's like, we saw you in your very lengthy majority opinion that you drafted. We needed you in a concurrence. What the hell? He's going to do extra credit. So this case is actually back from April, but we haven't had a chance to cover it yet.

And the case involves some individuals who were sentenced to death in Louisiana, and they had tried to challenge Louisiana's lethal injection protocol. And one death row inmate sought to reopen the case to challenge the state's new nitrogen hypoxia protocol. So the case is about the interpretation of federal rule of civil procedure

60, which governs motions to reopen. And not content to rest there, Judge Ho filed a concurrence to his own majority opinion about the interpretation of federal rule of civil procedure 60, which governs motions to reopen, and not content to rest there, Judge Ho filed a concurrence to his own majority opinion in a case about federal rule of civil procedure 60 and motions to reopen. And what did he say about, in this case on civil procedure, involving the death penalty?

He wanted to stake out his position about how the terrible, horrible, no good, very bad district courts are doing too much to control Donald Trump's unlawful actions. He literally just goes off on the proceedings in Trump versus JGG, the Alien Enemies Act case. I just got to respect the hustle. I don't know.

Well, I mean, it was the best part of his concurrence as a lying down and spitting up in the air moments of him saying, quote, it is often said that the judiciary is a co equal branch of government, but that's wrong. Well, what do you do, buddy, for a living? Because last I checked, that's what we do. So he then goes on to say- He prostrates himself in front of the president. That's what he does. We're not an active branch.

We're a passive branch. And under the constitution of our founders, the judiciary is the least powerful branch. I mean, bro, like maybe you need to find a new job because this is your job as a judge last I checked as a member of the judiciary. But that type of self-flagellation. Yes. Ooh. Like really, like he needs therapy.

Yes. But what's horrific is, to your point, this guy is shortlisted all the time for SCOTUS. All the time. And I'm like, should be happy, fellow Asian American, maybe being considered for a big role, not so happy. That is James Ho. Just gonna put that out there. And he is not the only Fifth Circuit judge trying to put his

name in the hat because Judge Andy Oldham also got on this shtick and he filed a lengthy dissent to the Fifth Circuit's decision to reaffirm that federal law is indeed supreme, and that Chief Justice Marshall got the whole federal supremacy thing right and McCullough versus Maryland. So the Fifth affirm that federal law is indeed supreme and that Chief Justice Marshall got the whole federal supremacy thing right in McCullough versus Maryland. So the Fifth Circuit concluded that Texas's SB4, which basically allows the state to countermand federal immigration

law, is preempted by federal law. And Judge Oldham filed a lengthy dissent. What to make of this dissent? So it cites White House press releases, including one called Promises Made, Promises Kept. It cites Fox News several times, at least five. And it cites anti-immigrant talking points from executive orders. Katie, who do you think has the edge here?

Judge Ho or Judge Oldham? Oh, listen, I think Ho wins the gold medal. But I think Oldham's saying, I respectfully but wins the gold medal, but I think Oldham saying, I respectfully but emphatically dissent. Oh, okay, well that's gonna change my mind now because you emphatically dissented. He spent a lot of time on his love for Texas. Like Texas this, Texas that.

I wonder if he consulted Ken Paxton and his wife. I mean, it was a love song to Texas. Yes. It was wild. It was a love song to Trump immigration policy. Well, yeah, and it's like, you know, they're standing in the way of Trump, America. Like the whole thing read like a project 2025 Trump campaign

for illegal immigration enforcement. It's what it is. But to your point, it's who's gonna outdo the other when it comes to the beauty pageant. Tyra, where are you? We need you Tyra. Send up the bat signal to figure this one out to send somebody home.

Yeah. Okay, so this is what's coming from the guys already on the federal bench. We also have some news about the guys who may yet still be on the federal bench, specifically one, Emile Beauvais, nominated to the Third Circuit. So Senator Durbin released a trove of communications and documents provided by the whistleblower, Mr.

Arez-Rouveni, who alleged that the regime plotted to defy court orders and that they plotted to smear Kilmar Abrego Garcia as they resisted efforts to return him. Recall that Rouveni alleged that Emile Bovet, a nominee to the Third Circuit, had said the administration planned to say, quote, fuck you to the courts in the event the courts prevented expulsions to El Salvador

before they were carried out. Most self-hating judges, between him and Judge Ho. But anyways, the allegations more generally describe Boves machinations to defy court orders. And so now he's provided, he's turned over to Congress these text messages, phone records, and emails with his colleagues at various federal departments. I guess, Katie, I'll just start by asking

high level thoughts on this recent document dump. Bro has receipts. Ravenny is impressive. I mean, he's like every law professor's dream, right? It's like, save all your notes, write everything down. I mean, he's the king of no spoliation of evidence. I am like, wait, there's more? It's like, do you want the ginsu knives too?

I thought there was plenty before the first time Emil Bovi went and testified. And the fact that there's more stuff that we're getting to see. And the crazy thing is I have to ask like, how did he keep these things? Cause you know, he got walked out of that place. You know when he got dismissed,

DJ was like, email cut off. We're gonna escort you out. But he kept all of this stuff because he knew when he got dismissed, DJ was like, email cut off, we're gonna escort you out. But he kept all of this stuff because he knew, all kidding aside, Leah, Rez Ravini knew that this was gonna come back to bite somebody and it wasn't gonna be him. He's like, I am not gonna be able to hold it in the bag. But what's startling to me is how it is a direct refutation

of Emil Bovi's credibility. And it's crazy, because I mean, I did a video on my YouTube channel about this. And I said, if Bovi makes it to the third circuit and he doesn't agree with one of his fellow brethren on the bench, is he gonna turn to that judge and say, fuck you? Like, I'm serious.

How is that gonna work for him? But this is alarming, alarming that his, as in Bovi's DNA and fingerprints are on Kilmar Abrego-Garcia's fate. And the fact that he knew, and he was directing other official agencies to disregard judicial orders, is of course part and parcel for this administration,

but is a huge red flag. But I fear, Leah, I fear it's still not gonna be enough. Yeah, so just to highlight the evidence that substantiates Rouveni's allegations of Beauvais saying fuck you. So there are texts in which he and other people are saying, this doesn't end with anything but a nationwide injunction and a decision point on fuck you. And guess it's time to find out time on the fuck you.

They are referencing the comment. So it seems to have been a thing. And this is not just an indictment of Emile Beauvais, although of course that is in some ways the most relevant, given that he is nominated to the Third Circuit. There are text messages during the hearing with Judge Boesberg in which Rouvenne seems to make clear that the lawyer arguing in front of Boesberg

lied. There's one text message that says, oh shit, that was just not true in reference to his co-counsel saying I think it was Drew Ensign, I think. Exactly. In reference to Drew Ensign saying he doesn't know whether there are plans to actually bring about the AEA removals.

And then someone else said, it's a question if Drew, that is Ensign, the lawyer arguing, gets out without a sanction. Like when you are wondering in real time if you're going to get out without sanctions, something has gone wrong. Well, and also one of the things that actually is removed from the Reveni credibility issue is the fact that Arrez Reveni's boss actually emailed and said that the office of the director of the attorney general, obviously the deputy attorney general,

which basically said it was Emil Bove was instructing those federal agencies that it was totally okay for them to deport these detainees, disembark, deplane them in El Salvador. And that was a direct, direct contravention to what Judge Boesberg did. I, Leah, am upset that they got the administrative stay on the appellate court level, which would have, which, which stopped, effectively stopped Judge Boesberg's contempt inquiry.

Because I know for a fact that Judge Boesberg would have done some damage to Emile Boves. And so as I say, timing is everything. Yeah. So Katie's referring to the decision by the DC Circuit to pause Boasberg's order or decision finding probable cause for criminal contempt. And he would have proceeded further. Like this evidence could have come out earlier.

He might have made findings that Emile Bové did indeed direct other federal officials to defy the court order. He might have made findings that Emile Bové said, fuck you, to the courts. But he wasn't allowed to actually consider the facts because the DC Circuit stopped that in its tracks. One more middle fingers to the district courts. Exactly.

One bright spot of this document dump is that Friends of the Pod turned up in the odd courts. Exactly. One bright spot of this document dump is that friends of the pod turned up in the oddest of places. So after Reveni texted, quote, guess we are going to say fuck you to the court, super, his colleague responded, well, Pamela Jo Bondi is not you. And I love that they're listening to the pod so they know, say her name, it's Pamela Jo Bondi.

It's not just Pamela Bondi. So. Pamela Jo. Exactly, PJB. So this is how the Republican Party selects its judicial nominees through something like a Hunger Games for legal hackery, but it's not the only way to select political officials.

We know the crooked listeners and Vote Save America volunteers have been inspired to run for office for a variety of reasons. So we thought, what happens when we ask folks in our network to run? Vote Save America is running a first-of-its-kind pilot program to recruit our audiences, you,

in Arizona, North Carolina, and Texas to run for office. That means candidates for school boards, city council, county commissioner, town clerks. That's like election production, state legislature, and more. This is how you build power. So if you want to learn more, you can sign up at votesaveamerica.com slash run. Okay, so this is probably about all we have time for for this particular episode. Katie, we always are ending these, I don't know, surveys of the foster clock around us with things we've recommended, things we've read, seen, watched, and liked over

the last week. So, I wanted to put that question to you before we say our goodbyes. So, I mean, I probably should say something a little bit more uplifting, but I am paying particularly close attention to the alligator Alcatraz concentration camp. It is literally less than 40 something minutes away from where I live here in Florida. And there have been a couple of lawsuits that have now been filed, one from an environmental impact standpoint that I have covered on my substack, And then one that was just filed yesterday by a group of state representatives that were denied access to conduct state statute,

torily authorized unannounced visits. Because there's gonna be an imminent dog and pony show tomorrow or over the next couple of days where there will be a scheduled visit. And by all accounts, the detainees are saying that the conditions are abysmal at Alligator Alcatraz. So I am keeping a very close eye on that. And I invite other people to look at the cases and consider the litigation because it is a very interesting collision between the federal government and the state. And

frankly, anything involving Ron DeSantis and his political demise makes me very happy. And if you want to again follow along with that litigation, you can follow Katie at her YouTube channel, Katie Fang News, or at her sub stack at Katie Fang. So my recommendations from this last week would be as follows. So V.E. Schwab's Bury Our Bones in the Midnight Soil is this totally unexpected, surprising work of fiction

that I didn't see coming. Highly recommend if you really want some escapist distraction. Also love Gilbert King's Bone Valley. I got an advanced reader copy of that. It's coming out this fall. He's, of course, the author of Devil in the Grove. And it's just this book, Bone Valley, is just terrific.

Finally, I got to see Cowboy Carter, and it gave me life. I'm so jealous. Oh, my goodness. Just everything. So Katie, thank you so much for joining us. We really appreciate you breaking down all of this legal news for our listeners. Thank you for the hospitality.

And just a huge fan of all of yours, and especially of your book, Leah. So thank you so much. Thank you for the hospitality and just huge fan of all of yours and especially of your book, Leah. So thank you so much. Thank you. Strict scrutiny is brought to you by Cozy Earth. Guess what, y'all? It's summer. And not only am I having a hot strict scrutiny summer, I'm just hot because it's hot at

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Go to CozyEarth.com and use code SCRUTINY for up to 40% off bestselling temperature regulating sheets, apparel and more. Trust me, you will feel the difference your very first night. Sleep cooler, lounge lighter, stay cozy with Cozy Earth. Launch Lighter, stay cozy with Cozy Earth. We are delighted to be joined today by one of our favorite collaborators, Chris Hays, whose fantastic new book, The Siren's Call, is so good that we'd want to discuss it even if Kate

wasn't married to him and even if he wasn't our trusted roadie. Chris, welcome back to the podcast. Thank you, that means a lot, Leah. That sounded so genuine, Chris. No, I meant to be sincere. He's a sincere guy. I was sincere. I meant it genuinely, it doesn't mean a lot. All right, okay.

So let's get right into it, Chris. The Sirens Calls central premise is that attention has become a commodified resource that is extracted and exploited in what you call the attention age. And you analogize it to the way that labor became commodified and was extracted and exploited during the industrial era. So we've seen this before, only now we're seeing it with attention. In your own words, you say, what you're arguing here is that the scale of transformation we're experiencing is far more vast and far more intimate than even

the most avid critics have understood, because this process of attentional resource extraction produces a wide array of negative consequences. So I am someone who is always seeing my attention divided. What are the negative consequences of attention being a scarce resource? I think the most profound at a kind of soul level is a sense and a feeling of alienation.

And that term is the one that Marx uses to describe the way that industrial era laborers felt about their labor, right? That people have always worked. They've always toiled. the way that industrial era laborers felt about their labor, right? People have always worked. They've always toiled. But the difference between, say, being a cobbler shoemaker who makes a shoe and pours yourself into the process of making

a shoe and at the end of the process has a shoe to sell, that's a very different experience than being on an assembly line stamping soles into shoes 10 hours a day. And in some ways, the transformation from one to the other was the experience of a thing that should be internal to you, the sum of your total effort and toil being extracted outside of you so that you're alienated from it. And I think when we think about attention, it's kind of inseparable

from the very heart of what it is to be a conscious human being. I mean, William James takes up this question in the 19th century precisely because he rightly, I think, understands attention as inseparable from consciousness and free will, right? The ability to put your mind's focus where you want to put it is kind of what makes us human, right? I mean, you know, a sea slug in a lab will just stimulus response, stimulus response, but the ability to exert dominion over our own minds is very much at the core of what it is to be human. When that faculty, which is the ability to exert that dominion, starts to degrade, starts to be taken from us, then I

think we suffer something at the most profound level of ourselves. Like what we are as humans gets taken from us. And I think endemic to the inner life of almost everyone in the attention age is this feeling of alienation. So can you say more about the dehumanizing aspect of the attention age, like kind of concrete examples, about how this manifests? Well one of the things I think that's happening is that like everyone's literally getting dumber. And I actually this is a sort of

interesting thing like the metrics by which we measure people's cognitive capacity intelligence are rightly the subject of tremendous amounts of controversy, imprecise, and in all these different ways. But one of the things we've been seeing across the globe is a decline across every country in scores on some of these basic aptitude tests and cognitive tests about people's literacy. And I think that the thing that's necessary to process

and think is the ability to sustain attention. And when you start to take that away, then you really start to strike a deep blow at people's ability to do cognitive work. And I think all three of you are teachers and professors, and all three of you are teachers and professors, and all three of you are like extremely, extremely top tier law schools, where you're getting the people whose faculties are the most intact, who sort of run through

this gauntlet to get to that. Well, you are. I mean, to get to that sort of spot. I'm not sure they would take that as a compliment, the people whose faculties are most intact. But I mean, I think it's probably true. And I still think it probably manifests in your classrooms all the time and with students and I think you

know this idea that we're now gonna have this new wave of AI that creates that sort of institutionalizes all the shortcuts away from cognitive effort is also like particularly dispiriting in this sense but I also think it has it also has really tactile consequences for the media and information environment we live in. So one implication of this is that in competitive attention environments, you tend towards the sort of lowest common denominator of compelled attention.

So what does Times Square look like, and why does Times Square look the way it looks? Well, Times Square is a place where people's attention is being fought over in a very competitive marketplace and so you get bright lights and interruptions. The same of a casino floor, right? Increasingly all competitive attention markets look like that and they work against other forms of communication or media that look different. Can I ask about that? I mean, is it now that it's not just that you can walk into Times Square and you're being assailed by all of these different things that

are competing for your attention, now you can walk with your phone. Exactly. And your phone is like, I'm thinking about that article that came out, I guess, a few months ago about how college students can't read a book. Like, they're just not trained to sustain attention long enough to be able to finish a lengthy reading assignment.

And so it sort of revamped the entire structure of curricula, even in higher education. Are we making ourselves dumber with smartphones and other technology? I think we almost certainly are. And I think that the experience of Times Square or the experience of the casino floor is increasingly the experience of Times Square or the experience of the casino floor like is increasingly the experience of inner life and to be clear here we're talking about six seven eight hours a day depending like what who's

doing the measuring like this idea that I think ten years ago more and more you can make this distinction between IRL like get offline go touch grass and you know the internet like the internet was one sphere IRL, like Get Offline, Go Touch Grass, and you know the internet, like the internet was one sphere, IRL was another sphere, and those spheres kind of contacted each other throughout the day. Now it's like there's no distinction really between the two. It's one seamless live reality, and that seamless live reality is most of our waking time time or a sizable portion for some most, some half, some slightly less than half, is spent in a competitive attention market

whose job is to extract our attention whether we want it to or not, and then to sell that attention to some third party. And that is going to have profound effects on what we can do with the sort of miracle and gift that our attention is. Yeah, so will you say a little bit more about that, Chris, the way that our entire social and political and economic order has been restructured around attention? And I think you make this really profound point in the book

about the difference between getting and keeping attention. So can you walk through that? Yeah, so we have these sort of two faculties for attention, one's voluntary and one's involuntary and the involuntary one is the root of the of what attention is because if you're walking across the street scrolling through your phone and a car honks because it's about to hit you the whole point the thing that attention has to do from evolutionary perspective, is to wrench you away from the phone towards the thing that's about to put you in danger, right? So the reason we have this faculty is so

that we can recognize danger, and is so that we can be interrupted in some deep sense. So involuntary attention, which is, you know, the whale of a siren down the street, the crying of a baby on a flight, the honk of the horn of a car, or a waiter dropping a tray of glasses, that's one form of attention. The other form of attention is voluntary, right? Which is, you're deciding right now,

as you're listening to this podcast, that you want to listen to this podcast, and you're putting your focus on it right now. The issue is that if you're in competitive attention markets, it's much easier to grab someone's attention than to hold it. So think about it this way. Almost any person, if there was a room, let's say an auditorium of a thousand people, and you said, look, your job is to go in there and get on that stage and just get everyone's attention.

Like anyone can do that. It's sort of trivially easy, like, where anyone who's ever raised their glass and hit the fork against it to be like, hey, everyone, toast time, right? Like, you can get attention very easily, but if you said, okay, your assignment is to go into that theater of a thousand people and hold their attention for an hour, well, that's a much, much more difficult proposition. Because it's easier to grab than to hold, what it means is competitive attention markets tend to drive towards iterative grabbing of attention. I call this in the book the slot machine model, right? Someone you know people legendarily will sit at slot machines for six eight ten or twelve hours

They're not being told the story right there. There's no narrative arc. They're not spellbound by their attention being held instead The slot machine is taking three second bites of interruption and repeated interruption. This sense of selecting in competitive attention markets for iterative interruption, you know, that is what the infinite scroll of the internet now has become. I mean, I don't even think it's an accident

that its actual interface is like a slot machine. Like, I mean, it's scrolling in front of you. You're sort of like awaiting the dopamine hit of the cherries, which is like the funny video or something that's provocative or interesting or titillating or whatever it is. And so you have this selection effect because it's speaking to some deep part of our wiring. And the comparison I use in the book

is the same way that we have certain evolutionary inheritances when it comes to our appetites that are exploited by companies like Coca-Cola or McDonald's, which can sell their product anywhere in the world, right? In any context, you can get people to drink sugary water, because there's a deep part of us that reacts to that. There's something similar happening with attention and what happens to attention capitalism when it's deployed at scale. And remember, the scale we're

talking about here, you know, Metta's got 2 billion users, right? Like, ByteDance has something in that universe, billions of users. I mean, this is on a scale that almost no corporation has ever been selling a product at. So, Chris, in the book, you make the point that no one wants mere attention. In fact, you say, quote, we want recognition. And attention is a poor substitute. How do we distinguish between what is mere attention and what is recognition, which from your telling

seems deeper and more substantive and meaningful. Yeah, I think this is one of the most central points of conflict and despair in the social media world that we've constructed, which is not only can we pay attention to people, people can pay attention to us. That social attention. And in some ways, that social attention is from the moment we come into the world, that social attention. And in some ways, that social attention is, you know,

from the moment we come into the world, we need it. I mean, a newborn baby is helpless, and it will die without attention. It has to be attended to. And that attention is the thing that brings care, you know? In fact, newborn babies have this trick, right? They can cry. And it's not an accident that, like, that cry is very, very

hard to ignore if you're ever around a newborn whaling uh because that is the means by which it attracts attention and that attention is necessary for its survival so we are creatures that are social creatures and we're we need social attention to live from the first moments of life. And what that means is that the platforms have kind of weaponized this against us by engineering social attention into the very foundations of the platform, when someone tags you, responds to you, your mentions, your notifications.

All that is sending this bit of information, someone's paying attention to you. There's experiments that show in a setting where like a cocktail party where you're focused on the conversation in front of you, someone says your name across the room, it leaps into your consciousness because that social attention is such a profound part of who we are that it's even wired into our perceptual apparatus. The difference between that and recognition is that I think the thing we want as humans is to be seen as humans by other humans. Like the weird thing about attention is that it's mere. It's necessary but never sufficient. So

like what you want in a relationship, in a friendship, in a collaboration with colleagues, in a romantic relationship, right, in a friendship, you want care, reciprocity. You want to be seen as human by another human. You want all these things that are profound and deep about recognition. Attention is the merest level of it, but it's necessary to get the other stuff. And so what we're being fed online is the merest thing

that is easy to kind of mistake for the deeper thing. It's like a sort of like synthetic version of something, right? Like a synthetic drug that replicates endogenous chemicals in our body. And that mismatch between like what we're getting and what we actually crave, I think describes a lot of people's extremely compulsive behavior online, particularly as regards social attention.

OK. Let me maybe pivot for a minute. So I obviously know the book super well. So I'm just like asking you to talk through some of my favorite parts of the book and kind of insights in the book. But I really like the parts of the book. Now, it's not a book that's about Donald Trump and you spend most of the book not talking about Donald Trump, but then you have to. And so he is in some ways like this kind of product of and paradigmatic exemplar of the kind of

attention age figure. And you talk a bit about Elon Musk as well in the book. So can you just talk through the way you discuss those two really important players in the book? And then maybe let us know, has your thinking about either of them changed? Right? So you finished writing the book a year plus ago. I'm trying to remember the exact timeline, But obviously, there have been a lot of developments involving

both Trump, who has become president again, and Musk, who bought Twitter. I think he was purchasing Twitter and newly running it, as you were kind of putting the galleys of the book to bed. So any and all of that. So I think in Trump's case, this is someone who recognized very early on how powerful attention is. Also, one of the things that distinguishes attention

from other forms of human relations is that it can be positive or negative. Like there's no such thing as really like negative care or negative love, negative reciprocity. Like the things that we think of as positive aspects of human relationships are positive, but attention can be negative or positive. I mean, someone can be screaming at you on the subway or they can be flirting with you and like those are both forms of attention

Donald Trump is such a I think just profoundly Broken person at such a deep and fair level that he doesn't really distinguish between them where he wants attention so badly that he's willing to take negative attention in ways that are truly kind of pathological and unnatural for most people who don't like negative attention. But I think via this deep instinctual aspect of his personality, he made the discovery that attention is basically the most important resource. And if you collect it to yourself, you collect tremendous amounts of power. I think Elon Musk didn't start out with the same brokenness of Donald Trump, but he got it somehow. I think by being online too much, like I literally think Twitter broke him profoundly and he became addicted to attention in a way that was totally compulsive and pathological, but

also led him to the same insight that I think Trump had, which is about the power of attention and even negative attention, that if you collect enough attention and even if it's negative, you aggregate power yourself. I do think that his arc is really interesting to study in contrast to Trump, because I think Trump has natural charisma, which I think aids him in a way that Elon Musk is the opposite

of charisma. He's the least charismatic human being I've ever encountered. He's a negative void of charisma. He's just- Have you met Sam Alito? You're right. Actually Alito is in a very similar category. And so I think that they have the same insight and some of the same pathologies, but ultimately Trump has a natural talent

for getting attention in a way that Elon Musk doesn't. His is born purely of the kind of pathologies and addictions of his very obviously and documented addiction to social media, which he posts on all hours of the day and night. I feel like you are channeling Bane. You merely adopted the dark. I was born in it, molded by it as you were talking. OK.

So I wanted to ask, you've talked both in interviews about the book, but also the book itself about how part of your job was staying on top of rapidly developing news and how that forced you into this world of attention and the attention economy. And I guess I wanted to ask for your advice, because I feel like a lot of what people are being asked to do right now is to stay tuned into politics, right, and engage in public information and public education.

And these situations can be quite rapidly developing, like as a vote is unfolding and people are all of a sudden calling on you to call certain representatives and whatnot. So how do you balance the competing demands of this rapidly evolving political hellscape in which we all need to be tuned into and participating in and informing ourselves and others about with the reality that of course in order to form deeper engagement and engage in deeper thinking you need to check out of that at some points and like toggle back

and forth between the two. Yeah it's a really great question I mean I would say my first answer is just like if you listen to strict scrutiny why is this happening watch all in and then like make some time to read Lawless and the Sirens Call. Like, that's basically a good comprehensive set of information sources. No. And case New York Times op-eds.

Yes, I mean, obviously, when Kate pops up in the New York Times, you've got to read that too. But no, I think that fundamentally, it's a great question. I mean, I tell people this, which is kind of an admission against interest, which is that you don't really need to follow the news all day every day. I think, you know, one thing I think about is like, there's a kind of a natural logic to the idea of morning news radio or like the morning paper, or

you read the paper later that day when you get home, there used to be, you know, back in the day, it'd be morning papers and evening papers. Morning paper and the evening news is another combo you could do, right? I do think that setting time aside where you actually pay attention to the news and try to digest it in some way that is more than just the kind of barrage

does make kind of sense. And I do think the constant plugged in can have kind of diminishing returns after a certain point, even though obviously from the perspective of my employer, it's better if you will watch our network all day, which I get. But I do think that, yeah, I do think there can be diminishing returns. And I do think setting time yeah, I do think there's there there can be diminishing returns And I do think setting time aside

I mean one little thing I write about in the book which I do think is interesting is reading the physical paper is so much better than Reading it online or reading it mediated through social media I saw this really funny thing the other day were like the Sunday shows all did rounds of interviews where there was a lot of questions about Zora Mamdani and some Democrats said some pretty bad stuff about him and that got clipped and it went viral. And I saw people like, why are Democrats paying it like they're about to pass this terrible bill and why are Democrats only talking about Zora Mamdani? It's like if you go back to the interviews, like there were tons of exchanges about the bill. back to the interviews, like there were tons of exchanges about the bill. The thing that got people's attention was the controversy of Arundhati, which then got

clipped, but the actual original source of the interview was not just about Arundhati. In fact, it spent a lot of time on the bill, and one thing that happens is when you get information and news totally mediated by social media, you can lose that context very, very easily, which is why I think that doing things like reading the newspaper or listening to strict scrutiny all the way through, even about cases that are not the big cases, is actually just a really useful way to get information.

I mean, because they're all big cases when you get right down to it. That's right. Strict Steautony is brought to you by Cook Unity. I hate cooking. I absolutely hate cooking, and I especially hate cooking in the summer when an elaborate meal just makes your kitchen feel like you are in the third circle of hell. That's why I love Cook Unity.

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player in the age of information. age, but on strict scrutiny, I think we are of the view that the Supreme Court is also a major player in the age of information. So yes or no, do you agree with us? The right answer is obviously yes. And then I will ask you to elaborate. How exactly is the court a player in this ecosystem? Is the court more susceptible to public pressure because attention is more fluid and performative than it's ever been. How does all of this impact the world that we occupy and our views of the court? So I agree with you that it's as important as the other institutions and in some sense, it's more so.

But I also think it has the most interesting relationship to attention. I think they generally don't want a ton of attention. I mean, there are definitely divas among them and in that sense. But I think institutionally, one of the things that you find in TV is that it can be hard to do stories about the court because you

have nothing to show. Like there's so many times I've done a court segment when I look up at my return monitor it's the first when they sit for their they pose their term portrait there's a still photo and then there's b-roll and we're just we're re-racking the b-roll over and over as I talk about the case because it's like there's no images. There's a reason they don't let cameras in the courtroom. There's an admirable part of that and a devious part. The admirable part, I think, is that I

think there's genuine concern about the court as an institution being pulled into the same set of attentional incentives that the rest of the branches are. Controversy raises money, for instance. And so you get real nutty figures who are trying to raise money and say wildly outlandish things because they will you know They can win a primary or or get eyeballs that way. So I think there's a there's a sort of wise

Fear of being pulled into that ma but there's also something devious which is that they don't want really attention because attention also is related to like democratic accountability and They don't really want democratic accountability. Part of that is by design, but I think part of that's their desire at this moment. I do think it would transform fundamentally the court in really fascinating ways if we had video of oral arguments, if you could watch them live.

It's interesting to think through what the implications of that might be. I do think it's really interesting the sort of experiment that we've had with, you know, starting with COVID where we got live oral arguments and got to listen to them. You know, we've been able to sort of screen them on MSNBC where they show the pictures, the faces when the person is talking, but it's not the same, obviously. And I think that's a very, it's a really intentional relationship to attention on the court.

Can I ask one quick follow up to that? Yeah. So obviously, we are kind of doing our part to try to draw attention to the court. I'm curious whether there are strategies, to the extent that you're right, and I think you are, that the majority would prefer to have less attention focused on what it is doing.

This kind of three-democratic appointee block is going to be in dissent for a long time. And I have kind of occasionally wondered whether they need to be playing a different game vis-a-vis the public's attention. And I'm not sure if you agree with that or have sort of thoughts about what that might look like. That's a really interesting question.

And I hadn't thought about it in those terms. But I also think you're probably right. I mean, one of the things I've been thinking about in the political sphere is that there's sort of different rules for like incumbents and challengers about attention. You know, you see this sort of reflected in political conventional wisdom, for instance, that the, you know, the person leading the polls wants to do fewer debates and the person behind the polls wants to do more debates, right? If you extend that logic, right, to the 6-3 court,

it's like they're the challenger. They're the ones behind the polls. They should want more attention. And I think that's right. And I think it's interesting to think about how they might go about doing that. Again, one of the things we've learned is that all these are just norms.

I mean, there's no one. The Supreme Court doesn't have a boss, which is why you can like violate, you know, federal gift reporting requirements and all basic common-sense ethics and, you know, take trips that you don't disclose and things like that. You could just give interviews about cases, like the day that they happen, you could have a media availability. Who says you can't?

Come on, strict scrutiny. We repeat the invitation. Yeah, I mean, and I think that obviously, even as I say that, I'm like myself, I'm a little aghast at it. Well, but here's the thing. The Republican justices sometimes appear on Fox to promote their books, as do other Republican appointees.

They also appear on podcasts. Or they like appear at, you know, I mean, it is, it is very funny to me, like where these rules are and aren't like what you can do and say and what you can say and do in books and all of it is this kind of like none of it's written down, but there are these sort of unwritten rules and you can like give this almost sort of like comically petty bitchy speech in Notre Dame, you know, if you're a Supreme Court justice, but like it would be crazy to go on like my show,

the night of Casa, if you were Katanji Brown Jackson and be like, this sucks, but like, why not? Right? I mean, and why are they, why are they different? I mean, in some ways, right? I mean, and now you can argue, as I sort of say this out loud and argue with myself, I mean, you can argue that if you had to do all over again, maybe Alito would take back the Notre Dame speech, right?

Like, did it redound to his benefit to give this sort of petty speech where you're calling out specific Atlantic writers and also saying, how dare you accuse us of deciding these shadow docket emergency questions on SB8 because we want to get rid of abortion before you actually go ahead and do exactly that. So I don't know.

Did it rebound to his benefit? But I do think there's a really interesting question about, I think you guys are so your sort of fundamental insight here is that there's a mismatch between the amount of the attention the court gets in its power. And part of the project of what ICU guys is doing is shrinking that distance to bring attention to it, because that's a necessary first step in healthier court,

broader democratic, small d democratic accountability. And so I do think it's interesting to think about that in broader terms as like how that can be wielded with the six-three minority. It's really interesting question. So maybe shifting from problem to solution and to the thing the Supreme Court is supposed to be doing, which is law, what legal or constitutional concepts

do you think we might need to revisit in order to effectively deal with the growing wave of attention-based manipulation? Maybe there's some possibility of using antitrust to focus on attention monopolies, or your book talks about the First Amendment being a potential barrier to effective regulation. So can you elaborate on possible legal concepts that we might have to rethink as we are thinking about how to address this? Well, I think what's interesting is

that a lot of attempts to deal with regulating attention run up against the fact you're regulating speech. And that's a real thorny issue. I did think that the court allowing the, well, this is funny, the court allowing the TikTok ban to go into effect, which then we've all decided, talk about no law just vides. Like we've all just decided the law doesn't apply,

including all of the members of Congress of both parties and both chambers that voted for this law and everyone, which was a lift and they passed this law and now everyone has just unilaterally decided doesn't matter. It's so insane that this has happened, but I digress. But when the court allowed the ban to go into effect, they're finding, which was unanimous, which is that like this kind of, I mean, obviously it was partly on national security grounds, which I always get a little like, worried about and kind of gets

my back up a little, but that the idea that platform, total platform regulation, right, independent of content doesn't do enough, like do enough, like there are speech interests, but largely spares the speech interest in such a way that that's a useful avenue for regulation. Like for instance, I mean, this would obviously get challenged, but like it would be interesting for the law to regulate how many hours a day people could look at the platforms.

Like that to me doesn't like is there a speech issue there? It's not clear to me there is, right? Like we're not saying like you could you could watch all of the worst stuff you want for those six hours. We're just saying that there's actually and then you know age age restrictions are the other question. And again on age restrictions there are live issues I think even before court, before the appellate courts, on the speech implications of those. And I think I part ways with some progressive folks

on this question. I'm much more in favor of age regulation on this stuff than I think a lot of the line that comes from, say, the ACLU and others. Just as Alito is just going to say that parents have a fundamental right to raise their children in the manner of their choosing and they can watch Bible TikTok as long as they want. Yes, exactly. Yes, I think that's right. I think if you like if you challenge it

on a religious grounds, like my kid has to watch Bible TikTok all day. Can I throw one more thing in that I've heard you talk about is like space, just age. The fact that once upon a time, smoking in restaurants was extremely normal and natural. And we have obviously basically banned that. Limitations on public phone use. Now, I don't know if you're talking about that as social norms or law, but I've also heard you talk about it

in kind of an interesting way. Yeah, I think of that more as a social norm that's enforced. Although if you extend out the analogy with smoking, obviously that was both. It was both, right? First it was restaurants being like, we're not going to have smoking, and then it was law. I do think that before you get to the law, the social norm,

there's all this focus on schools and classrooms, understandably. But I also think that the focus on kids ends up being a little bit of this displacement of our own anxieties and also onto subjects with less autonomy than us So there's this kind of thing of like we should take their phones away It's like the consensus view of like they should not be in front of the phones all day It's like well, what about us? And I do think that there's you know, because they have their whole lives ahead of them

We're on the b side of life chris like there's no hope for us wow I saw a very funny joke about this about someone like on there you know that the old cliche about no one on their deathbed is like I wished I worked harder and I saw some joke about like being on your desk bed and be like I wish I could have scrolled more if I had to do over again, I would have scrolled more. But no, I think that creating adult norms around this that are similar to what we say about the classroom. I mean, I found myself recently in some context

of adult conferences. And it's just crazy for people to be sitting on, like with their phones out. And I do think that something I do think will happen, and I'm wondering how much AI actually speeds this up, is that I would love for us to arrive, because it is a collective action problem, that certain public places, certain public environments

are just phone free. That means you just don't take them out as a matter of practice, or there's actually some cubby system, or yonder bags, or whatever it is, that you just check them. And that's just like, and so when you're at a restaurant, people don just, you check them and that's just like, and so when you're at a restaurant, like people don't have their phones out.

Like that's just like, and again- We saw how well that worked in White Lotus. Yeah. We haven't watched a lot of people. Oh, sorry. Oh, of course you haven't. Kate and I are like in the same. I know, I know, I know, yes.

Of course, this is how it starts. This is the root of all of it. No, the summer we were going to, we were catching up slowly but surely. But yes, I think, I do think that like, that like and then you know it is interesting to think about what legal implications that might be. Like I said before, I increasingly believe even in the months since the book was put to bed and come out that like a lot of the problems here may be so exacerbated by AI and become so bad so quickly that the whole thing kind of blows up a little bit.

We'll see. All right, so I think we have to leave it there. Before we let you go though, we have recently started ending episodes by identifying a couple of things that we read or watched or did in the last, say, week and want to share with our listeners. So do you want us to go first? Do you want to go first, Chris? I'll go first with something that will, by the time your listeners hear this, might be a little dated, but is fresh to me, which is one of the things I thought was really interesting

about Zerun Mondani's campaign for mayor was the way that he sort of used social media and particularly like direct to voter communication, sort of not relying on intermedia areas, but going direct to voters with these short form videos. And after he won, there was a round of takes in the amongst the take mongers like myself, people slinging various takes back and forth about what it meant, which was the kind of classic mediated political discussion.

And I thought it was really interesting that he put out his own take on his own win today in a long video where he did the thing that all of us as pundits do which is like look in the cross tabs of like the precinct level data and who won this and how did you win and and he's like here's my take on having just done it on how I won and made some really interesting and good points but both the content was, but also this idea of the politicians sort of reasserting authorship over their own story. I thought was really interesting because the post-election take circle is such a tradition.

I agree. That was great. And actually, I'm going to go next and also mention something Mamdani content related, which is a conversation that you, Chris, had with Ezra Klein and his podcast just after the election that kind of takes this lens of attention in the attention age and brings it to bear on Mom Donnie's campaign and win. And it was a great conversation. So really recommend that.

And then I just have just started. So I don't really have a full assessment of the book, but I started reading Rutger Bregman's moral ambition, which is much more like how-to self-help-y than I realized. It is really just like a how to kind of reconceptualize your relationship to ambition and to focus on literally just prioritizing making the world a better place every day with the choices you make, but I really like it so far. So that's my other recommendation. So I am going to do a read and a watch. I rewatched Dirty Dancing, which I love. I remember watching it at summer music camp at FSU.

I was the first cheer viola. And it was amazing. And I think every time I come back to it, I'm always surprised to recall that there is a huge abortion storyline. And it's just like, it's, it's not really like baby doesn't have an abortion. If I'm rooting it for you, that's a real problem. You should have been watching it a long time ago, but it's, it's,

the whole plot is animated by this question of an illegal abortion that happens. And then sort of propels the plot forward. So I love going back and watching things I haven't seen in a while, and I'm always nostalgic. I read this week a fantastic book by a law professor named Andrea Freeman. The book is called Ruin Their Crops on the Ground, the Politics of Food in the United States

from the Trail of Tears to American School Lunch. And it is a James Beard award winner. I didn't even know James Beard. I was just about to say. She got to meet Padma Lakshmi. I love that. I love that for her. Andrea is probably the most important legal scholar

working on questions of food justice in the country right now. And this book really is a tour de force. She had another book a few years back called Skimmed, which was about the way in which the pet milk company marketed infant formula to the black community during the 1950s. She's done amazing work on this

and related it in really interesting ways to both our history of enslavement and racism and segregation, but also to our current moment of deep, deep income inequality. Chris, thank you so much for joining the podcast. Chris Hayes is the author of The Sirens Call, How Attention Became the World's Most Endangered Resource. And if you only know him as our roadie or the host of All

In with Chris Hayes on MSNBC or the Why Is This Happening podcast, now you know he's also a brilliant thinker and author. host of All In with Chris Hayes on MSNBC or the Why Is This Happening podcast. Now you know he's also a brilliant thinker and author. Chris, thank you again for joining us today. Oh, it was such a pleasure. Thank you for having me. And before we go, a few housekeeping notes. So the media might have moved on from Trump's reign

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