Strict Scrutiny - Is SCOTUS Letting Trump Meddle in the Midterms?

Episode Date: August 31, 2026

Kate and Leah break down last week's atrocious shadow docket order on the President's wildly illegal executive order concerning elections and absentee ballots, which furthers the administration's effort to, as Justice Ketanji Brown Jackson warns, "foment chaos ahead of the November elections." Then, after touching on other legal news from the week, Leah speaks with former Governor of North Carolina—and current Senate candidate—Roy Cooper about the Court’s gutting of election law and what he’ll do about it when he’s elected. Finally, we kick off Hot SCOTUS Reform September with a conversation about docket reform featuring One First’s Steve Vladeck. Look out for our bonus series on Supreme Court reform every Thursday in September!Favorite things: Leah: Pumpkin spice latte season; Taylor Swift’s Icon Session; Operation Metro Surge resistance takes center stage in State Fair art (MPR News); KBJ’s dissent in Trump v. California Kate: Paradiso 17, Hannah Lillith Assadi; Ordinary People, Extraordinary Times, Skye Perryman; The Political Supreme Court, Rachel A. Shelden; End Times Fascism, Naomi Klein and Astra Taylor; meeting Mikey Friedman and learning about Page Break; Dolly Parton tributes Take the Strict Scrutiny survey.New Strict merch available here.You can now listen to Strict Scrutiny for CLE credits in California, New York, Texas, Pennsylvania, Illinois, Virginia, North Carolina, Georgia, Washington, and Oregon! More info at crooked.com/strict_cleGet tickets for STRICT SCRUTINY LIVE on November 6th in Washington, DC: Crookedcon.comBuy Melissa’s book, The U.S. Constitution: A Comprehensive and Annotated Guide for the Modern ReaderBuy Leah’s book, Lawless, now out in paperbackFollow us on Instagram, Threads, and BlueskyFor a transcript of an episode of Strict Scrutiny please email [e-mail]

Strict scrutiny is brought to you by Americans United for separation of church and state. It's back to school season, and this year, five million children across Texas are going to be greeted by the Ten Commandments in their classrooms. Yes, you heard that right. Texas politicians passed a law requiring the Ten Commandments in every public school classroom, forcing their religion on every kid in those schools. 28 families in Texas, supported by Americans United for separation of church and state, are taking the fight to the Supreme Court. and they need you to amplify their voices before the Supreme Court gets its hands on this case. And we all know what the Fifth Circuit did.

Obviously, they let Texas get away with all of this. They're going to go up, but we're going to fight to get them taken down. That's Texas public school parent, Ted Lowe. Ted and Rebecca Lowe are an interfaith couple. Ted is Jewish, and Rebecca is Christian. And their kids are in Texas public schools. The story they tell in this video is moving, and we hope everyone hears and shares it. Look, there is a human cost of Christian nationalist policies,

like these Ten Commandments laws, and the decisions the Supreme Court hands down. Every child deserves access to public education, where they aren't subject to state-impose religion or religious instruction or coercion. Public education is supposed to be open and available to everyone. It's supposed to foster pluralism, not one specific religion. Visit AU.org slash 10C to learn more about this case and how you can help join the fight to protect church-state separation. We talked a little bit about this case on our regular episode last week, but there's so much more to be said and to learn about the people who are fighting back. Mr. Chief Justice, may it please support. It's an old joke. When I argue, men argues against two beautiful ladies like this, they're going to have

the last word. She spoke not elegantly, but with unmistakably. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet or for our necks. Hello and welcome back to strict scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm Kate Shaw. And I'm Leah Littman. Which means you have two of your regular hosts here today in the summer rotation. And don't worry, all three of us, meaning the two of us plus Melissa, will be back together very soon. But for today's episode, we will discuss some legal news. Definitely the you kind of the news, mostly focusing on the Supreme Court's atrocious shadow docket order on the president's wildly illegal executive order concerning elections and absentee ballots.

After that, we're going to introduce our next bonus series, which will start this upcoming Thursday. That's right, as our attempt to take the edge off the fact that summer is done and fall is here, every Thursday in September, we're going to have a bonus episode on Supreme Court reform. Each episode will focus on one particular reform in death. We're calling it Hot Scotus Reform September. So please be sure to check those out. I at least I'm really excited about them. Are we going to make hot Supreme Court Reform September happen, Leah? I don't know.

That was my effort. This is the beginning of our effort. Yes, well, all of you need to help us out. And today we're going to motivate that initial installment, that particular segment, by sharing a conversation that Leah had with Roy Cooper, who is running for Senate in North Carolina, and who will talk about how the Supreme Court has influenced his race. Then you'll hear Leah talk with Steve Flodick about one kind of SCOTS reform, and that is docket reform. So that will give you a taste for the series, which will then unfold for the rest of the month.

Also, peep the t-shirt that Leah and I are both wearing. Can you see it? Can you see it? This is how you make hot scotis reform September happen. I feel like maybe we need to cut off the sleeves. Will that be more? And my, like, teenager would probably also trim it to make it like a crop top, which I think They work well for their shirt. Yes. Definitely. So the T-shirt that Leah and I are both wearing, we're going to need a bigger court, cute, comfortable, pick it up. It is available in the Crooked Store. We will have a link to where to buy it in our show notes. It's a great shirt, but more importantly, it's a really important topic. And we're going to stay very focused on it for September and beyond. Yes. And one more thing before we get going, we want to hear from you. So we want to know what you like about the show, what you love about the show, and what you'd like to see more of. This short, Survey will help us better understand what matters most to strict scrutiny listeners, including your favorite segments and what new content or experiences you might be curious about.

Your feedback will help us think through the future of the show. So go to crooked.com slash strict survey. It takes just a few minutes to share your thoughts with us and thank you. And if you hear my dog's thoughts in the background, I apologize. She's been very sick. So she's at home with me. And she just, anyways, she's a little bit more expressive than usual. I'm sorry. If you hear an undercurrent of stress beyond just the kind of looming beginning of the Supreme Court term in Leah's voice, that's probably why Stevie's been under the weather.

Indeed. Okay, well, we're going to come back to crowdsourcing, right, some sort of dog health questions. But in the meantime, as Leah mentioned, we're going to really focus today on the Supreme Court and the election executive order that Trump is trying to implement. So regular listeners will recall that we talk to election law expert in our friend Rick Hassan about the absentee ballot slash election. executive order when the government first filed its stay application at the Supreme Court. During that conversation, Rick and Leah accurately predicted what the Supreme Court would do. So today we're just going to have their number. We just do. However bad you think it's going to be, sometimes it manages in the execution to be even worse.

And I feel like that did happen here, even though you did have the sort of number in broad terms, but we will describe. But before we do that, let's just maybe briefly remind listeners of the background and then bring people up to speed on the kind of dizzying array of very recent developments. Okay, so background. As part of the multifaceted multi-front attack on elections and democracy designed to lock Republicans into power, oh, forever, back in April, the president issued a wildly illegal executive order on elections that purported to do a few things. First, on absentee ballots specifically, it directed the postal service to initiate a rulemaking to limit what kinds of absentee ballots will be delivered, requiring certain barcodes, and may be providing that the Postal Service would only deliver ballots in states that had agreed to certain terms for how elections would be conducted.

The order also directed the Department of Homeland Security to establish a list of citizens to send to states to state's to determine eligibility for voting. And the order included a threat that maybe the Postal Service wouldn't deliver ballots at all in states that didn't use DHS's list as opposed to the state's own lists. And just to be clear, the state's own lists are sure to be far more accurate. So this was punishing election officials abiding by more accurate election administration procedures. Okay, we're not done, though, because the order also directed the Attorney General to prioritize investigation and prosecution of state and local officials who allow people to vote who aren't authorized to do so. And allowing people to vote who aren't authorized to do so seems like something election officials wouldn't do. But the threat embedded in this part of the executive order is basically holding the possibility of criminal, penalties over state and local election administrators to try to incentivize them to err on the side of not allowing people to vote, even where those people are eligible to do so.

Especially if the federal government might use DHS's less accurate lists to make allegations about who is and isn't allowed to vote. 100%. So multiple lower course blocked the executive order, mostly on the ground that the president has zero authority to regulate absentee ballots and how state officials conduct elections under the Constitution, states have. have authority to regulate federal elections. Congress can impose rules if it so chooses. The president cannot, but attempted to do so anyway. As ever, the federal government ran off to Daddy Scotis after these lower court decisions, and Daddy Scotis delivered for Trump and the Republican party with an evil, cowardly, percureum opinion. That adjective, string of adjectives, probably suggests it was the work of one John G. Roberts is my guess. But their precarium opinion

blocked one of the lower court injunctions against the executive order after the Supreme Court's decision in that case, another lower court that had blocked the executive order in a different case vacated its ruling blocking the executive order in light of the Supreme Court's own order. The reasoning in the Supreme Court opinion, such as it is, is basically, what's the big deal? This executive order doesn't hurt anybody. I mean, this Supreme Court can somehow, with a straight face, in one breath say the president has all of the authority, and in the second breath say he just issued an executive order, but that doesn't mean anything. That's not a law. So no one can go to court to challenge it. I mean, truly that is what the court, and I totally agree, this is obviously

a Roberts production, even though it says, per curiam. But the claim that this order doesn't really do anything or hurt anybody is clearly contradicted by evidence in the record, which, of course, the Supreme Court doesn't care about these days, but really should. And it also is contradicted by factual findings specifically that the district court made, including that states were already diverting time and resources to prepare for the executive order to be implemented, and that some states had already spent millions of dollars printing absentee ballot envelopes that didn't comply with the executive orders, demands, and thus might have to reprint all of those envelopes. Okay, so the district court found all of these things, but district court findings,

the Supreme Court doesn't care, so it didn't even engage. I don't care, do you? No, I really don't care. Clearly don't. That, I guess, was a TLDR of the Percurium opinion. But in terms of what else it contained, in addition to just declaring that the plaintiffs were not likely to be injured and therefore didn't have standing so the case couldn't be in federal court at all, it also said, just in a belt and suspenders kind of way, that the case was brought too soon. Because who is to say what might happen because of the executive order, maybe nothing or maybe only super legal things. That seems totally plausible. This aspect of it was also completely unhinged. So a mere, mere two months ago, the Supreme Court, in an opinion by John G. Roberts, handed the president greater control over federal agencies, which the court insisted were merely just arms of the president. So the idea that these agencies would just shrug their shoulders at the executive order seems a little inconsistent with the whole unitary executive infection slash infestation slash idea or theory. whatever it is. It's like we knew the chief didn't actually read his opinion in Slaughter because of what he wrote in Cook. And now we really, really know he didn't read his own opinion in slaughter. And then add to that, you know, as Justice Sotomayor's dissent noted, the federal government itself conceded that it might use a state's failure to rely on DHS Homeland Security's approved voting list as evidence to support criminally investigating or prosecuting state election officials. So it may. It may be a lot of may have once been the case that the legal status of this executive order and its directives were unclear, but in a world with the unitary executive, especially when we're dealing with commands to law enforcement and DOJ, which the court said are purely executive and subject to plenary presidential control. The EO directive in that world just looks different.

Can I say that just, I think that's a really important linking of not just slaughter the president controls everything the executive branch case, but also, as Leah was just alluding to, Trump versus United States, the president is immune, like forever and for everything case, because there is a lot of really problematic, wildly problematic language in that case about the president's complete control over law enforcement. And I think this executive order has to be read in light of that decision as well. Completely. And somehow it gets even dumber because two days before the Supreme Court issued this order suggesting we couldn't possibly know what might happen because of the executive order, the Postal Service had already.

announced a rule that did the very things the executive order called for, which are illegal. But we just say, the court didn't even acknowledge this. The Supreme Court, Leah, cannot be expected to read both its own earlier opinions and rules issued by federal agencies in the very matter under review. That is way too much to ask of them. It's the summer. They're not even sitting. They're also busy boys, and I'm not sure Brett Kavanaugh can read. So a lot of complicating factors going on here. All true. Speaking of things to read and people who read them, since they can read. I somehow decided to make myself dumber by reading the brief that was filed by the federal government to defend the postal services rule. The brief is insane. Like both, I mean, the rule is insane

as is the defense of the rule. So the brief likens the rule on delivering absentee ballots to postal service regulation of transporting cremated human remains and animal remains, as well as explosives. These are the analogies. I am less of a massacist, so I have to confess I did not read that brief, but I feel like just from your description, that tells you a lot about what they think of voting. Exactly. Right? It's either dead, right? Or it's dangerous. Right, right. That's in a word how they feel about participation in our democracy. Okay. So I think, as is hopefully becoming clear, the Supreme Court's reasoning in this per curiam opinion is also deranged because it is willfully blind, not only to the existence of a rule, it doesn't mention, not only to its own prior cases,

but also to everything we know about this administration. And specifically, that this administration does more wildly illegal stuff in a day than we can possibly talk about on weekly, you know, hour and a half long podcast episodes. This administration is not operating in a normal, regular, orderly process. And so the idea that here of all places that this rulemaking would follow some totally legitimate and kind of normal procedure that would result in a carefully vetted and very legal rule is obviously delusional. And I think Delulu is actually how you would put it, Leah. Exactly. And just like to add a cherry on top, it cannot be the case that it is both so unclear how this executive order will be implemented and who knows nothing might happen because

of it and that it is an emergency warranting extraordinary relief that the president can't implement the executive order because as a reminder, this is an emergency application, this is the shadow docket that is supposed to be the standard the administration is required to satisfy. And there is still more to say about how awful and appalling and just craven and cynical the Supreme Court's intervention is. So what the court did gave the administration a win that is hopefully temporary and hopefully superficial.

But it's a win nonetheless. And the court's intervention reinforced the president's deeply dangerous and destabilizing campaign against absentee ballots as well as the integrity of elections. And it allowed the administration to claim a, quote, win for this wildly illegal executive order, which purports to get the president authority over elections. that he does not have at a time when the president is laying the groundwork for undermining confidence in elections and questioning the results of an election. And a win, even a temporary one on this executive order has a potential to move the Overton window on the president's authority over elections, the integrity of our elections, et cetera. And as we talked about when we talked with Rick, in this respect, the Supreme Court's actions in this case are, I think, deeply analogous to what they did in birthright citizenship, where,

there too, in the court's first encounter with a wildly illegal executive order, a different one, the court handed the administration a procedural win, saying the lower courts were wrong to block the illegal birthright citizenship executive order via nationwide injunctions. And the idea that the executive branch is somehow injured and irreparably so, if it is told that it cannot do something that is wildly illegal is on its own a ridiculous concept. And then you add to that, the Supreme Court buying the administration's victim narrative, which emboldens the executive further because it's reinforcing this idea that it's the lower courts, not the president, that are overreaching and out of control. This also buys the administration

time to potentially accomplish some of its goals, which in the birthright citizenship case meant buying them time to further destabilize the guarantee of birthright citizenship and manufacture arguments against it. Absolutely. And I think we will be, you know, feeling the consequences of that for many, many years. Here, the effects maybe felt much sooner than that because the delay in light of the fast approaching midterm elections means there is a very real potential to create chaos and uncertainty about how those very elections and obviously critical elections will be conducted, which could actually create problems in election administration and certainly could depress turnout. Otherwise, Rick has mentioned, and it's important to add,

mobilization can respond to these kinds of suppressionary tactics. And so it could be that people respond in ways that overcome whatever suppressive effect these interventions have, but that is not a reason not to be deeply, deeply concerned. Okay, sorry, that was a long kind of ground-laying wind-up. Here is what has happened most recently. So on Thursday night, a Massachusetts district court judge, Judge Talwani, issued a new temporary restraining order. Okay, so this is in the new case filed after the Supreme Court's Monday night ruling, and the new case challenges the Postal Service order itself, the one that Leah mentioned, actually had already been issued by the time the Supreme Court's order came down but went unmentioned in that order. Okay. So the earlier

challenge was to the EO itself. This new challenge is to the order implementing some of the provisions of the executive order. And this new temporary restraining order restrains, right, blocks the implementation of this rule. And I think actually there are two cases consolidated before Judge Talmani, if I'm not mistaken, one brought by a group of states and one by a group of organizations led by the League of Women Voters. So I think that is where we are right now, a temporary restraining order in effect as of Friday afternoon. As you mentioned, you know, there's a great write-up at the election law blog that Rick runs. This district court opinion I thoroughly enjoyed. It was extremely shady.

You know, it was like, oh, you know, the U.S. Supreme Court in its order suggested that my too early injunction. might block the Postal Service from issuing a regulation. Nope, didn't do that. Also, by the way, guys, you didn't even mention the regulation that you, right? Anyways, love that. So that is the current state of affairs. And I think it's safe to say there's a lot of uncertainty because we're not sure what the Supreme Court will do here, creating this weird Schrodinger's executive order situation where the ostensible rules governing the upcoming midterm elections are changing and still might be changing by the

You know, there was a period when the executive order was reportedly in effect and the Postal Service announced it was and then it wasn't and who knows, maybe it will be again. And before the district court issued this subsequent order blocking the Postal Service regulation, North Carolina said it had submitted its mail ballots to the Postal Service to comply with the new Trump rules for the November elections. Again, kind of teeing up the conversation you'll hear later between me and Governor Cooper about how the Supreme Court's anti-democratic hygiene. banks are really influencing, right, how democracy and elections work on the ground in the upcoming midterms. And I think Justice Jackson also wrote a dissent. Justice Sotomayor wrote one too. And I think Justice Jackson really summed it up perfectly when she wrote in her dissent, quote, in the end, what makes today is that is the Supreme Court's ruling so off base is the court's lack of situational awareness regarding this equitable judgment. It treats the government's

day application as if the whole point is merely to demonstrate that the plaintiff's claims are not justiciable. Taking its eye off the ball, the majority misses the government's actual objective to secure our imprimatur for its effort to foment chaos ahead of the November elections, end quote. Yeah, it just brushes away some of the kind of procedural and legalistic overlay that a case like this often comes wrapped in. And you're just like, this is what is happening. This is what the government is trying to do. And this is what is at stake. And I really appreciated that. So we have no idea what the next time. couple of days or weeks will hold. I mean, there, I think, is a very real and wildly concerning

possibility that the court may have put elections between Iraq and a hard place. So initially, the Supreme Court said the challenges to the executive order were brought too early. But now we have a new challenge and they can't possibly take the off ramp of, well, there's no rule to challenge and there's no actual injury. And that, I think, means there's a very real possibility. The court will say this subsequent challenge is too late, meaning too close to the election, under the Supreme Court's lawless Purcell case and principle, which forbids federal courts, at least in theory, at least when the Supreme Court feels like enforcing it, from changing election rules too close to an election. Well, forbids federal courts from changing rules in a way that makes the election actually democratic and expands ballot access and voting rights. They are not prevented.

Exactly from constricting it. Forgive me. That is actually the correct definition of the Purcell principle. Peak law. Obviously, right. And what is so chilling about it is that if they are faithful to their own lawless principle, there is a real chance that they allow this wildly illegal executive order to go into effect, not because they can bring themselves with a straight face to say the president has this power. I actually don't think a majority of them even could do that, although two or three of them, I'm sure could. But they might just say, well, you know, it's just there's this principle out there. And the order is there.

Federal courts can't do anything to change it now, even though the order is the thing that would be changing the status quo, obviously. But I don't know, this is a very, very scary state of affairs. And even separate and apart from what might happen, you know, when this case goes back up to SCOTUS, as it surely will, the original Procureum Order that we were just talking about also contained some passages that might signal that some parts of the executive order might actually be substantively okay, including the threat of criminal investigation and prosecution of state and local officials. So here is a concerning quote, the injunction purports to forbid the Attorney General to implement the president's, enforcement priorities as to those same states, again, echoes of the court's basically boundless conception of presidential power over law enforcement from Trump versus United States. And yeah, I mean, that part, which is on its own super concerning. I think we're only not talking about it much because so much else in the order is insane. But even if none of the rest of it

goes into effect, that alone would be an enormous problem. Yeah. And assuming the order blocking just the Postal Service rule stands or the Supreme Court. court lets it stand, you know, what happens to other parts of the executive order like these directives to investigate and prosecute state and local officials? That is, even if the court says, yes, you can challenge this rule, the injunction against it isn't too late, then are they ever going to allow anyone to challenge the other parts of the executive order? I don't know. Yeah. And so we've covered a decent amount of ground, but Leah actually did a short YouTube rapid reaction video to the order when it first came out on Monday night, aired on Tuesday morning.

And so if you want to go a little bit deeper on some of what we're covering and also, you know, the profanity actually has been pretty light in the last like 20 minutes. Like there is definitely more in the YouTube version, Leah's version. So fire up YouTube if you want a little bit more depth and spice. And we also wanted to shout out other people really doing democracy's work, providing speedy, accurate coverage and translation of what the Supreme Court has done in this case and so many others. And that includes Chris Geidner at Lawdorke, who did a great write-up on Monday night. our friend Steve Vladek, who you will hear from later on this episode at 1 First Street. And also our friend Cherylyn Eiffel, who's got a just totally indispensable substack, who wrote up a response to the course order Monday as well. Yeah. And she wrote something that I just wanted to underscore.

She said, quote, first, don't tamp down on the significance of the court's action in this case, end quote. So, like, even if the court ultimately doesn't allow this executive order or at least some of its parts to go into effect, like what they did here is just. egregious. Totally. So we will obviously stay very focused over the course of the next week or even more on what the administration may be the First Circuit, because this is a Massachusetts district court order that came down on Thursday, and then ultimately the Supreme Court does on this executive order and the litigation challenging it. I have a feeling we may be coming your way with more rapid response videos as circumstances require, so stay tuned for those. But in the meantime, let's move on to the rest of the week's developments. Strict scrutiny is brought to you by

the Knight First Amendment Institute at Columbia University. The September marks a quarter century since 9-11 and the inauguration of the global war on terror. Many of us will be reflecting on the losses of that day and on how its legacy still shapes lives in New York, across the country, and around the world. To reflect on the meaning of these events for the freedoms of speech and the press, the Knight First Amendment Institute is hosting a two-day symposium, the Forever War and the First Amendment. The event will take place on September 9th and 10th at the Lee C. Bollinger Forum at Columbia University in partnership with Columbia University's Simon and June Lee Center for Global Journalism, Harper's Magazine, and the Columbia Daily Spectator. Join us to hear from leading journalists, scholars, lawyers, and activists whose work has helped shape public understandings of this era, including M. Gessen, Lydia Pullgreen, Phil Clay, Steve Cole, Harry Kunzru, David Cole, Nicole, Nicole Hemmer, Aziz Rana, Prem Thakar, and Moa Maudo, Old Slahi.

Registration is required, whether you're joining in person or watching the live stream. Learn more at night Columbia.org. That's night with a K. This episode is presented by Planned Parenthood Federation of America. If you listen to the show, you already know. This administration, Congress, and the courts have spent the past few years making it harder to get health care in this country, and it's patients who are paying the price. Take the Supreme Court. It paved the way for states to exclude Planned Parenthood health centers from state Medicaid programs in Medina v. Planned Parenthood. This undoubtedly violates patients' right to get care from quality providers that they choose. And last year, the Trump administration and Congress defunded Planned Parenthood, trying to shut down Planned Parenthood and block patients

with low incomes from birth control, cancer screenings, STI testing, and more. That's why Planned Parenthood is fighting back, but fights like these take resources and supporters like you. No matter the size, your donation makes a difference, helping Planned Parenthood meet this moment and protect patients' access to care when and where it matters most. If you believe all people should get health care, no matter their income, donate now at planparenthood.org slash defend. So in other happy news, a Supreme Court justice appeared on a podcast. Maybe this is why they didn't have time to read their previous opinions or the rule. Technical difficulty is logging onto the podcast.

Exactly. Exactly. Exactly. Exactly. But this podcast's appearance kind of gave an absolute middle finger to everyone who cares about Supreme Court ethics and integrity. Because Clarence Thomas made an appearance on Ted Cruz's podcast, Verdict with Ted Cruz. So take a listen to one of the clips from the first segment here. It's also an opportunity to say you're one of the people who actually stands up, particularly at times when others seem to wither.

And I appreciate it. And more personally, when my wife and I were under attack for obvious reasons. You and Mike Lee and some of the other friends would stand up, Senator Kennedy, et cetera. So I would really appreciate that. Justice, that is very kind of you, and especially for you to observe that I stand up in the face of criticism and attacks. That is powerful coming from you because you're someone who knows what that's like. I just want to say I really did the TMSA this time by listening to this, Oh, I listened. I actually did. No, I did listen. I thought I was going to sort of do the masochist sort of dirty work for the team. And I only listened to the first installment. Did you listen to both? I listened to part of the second. And then I just turned it off. I was like, I've done enough. I've done enough work here. But the clip you just heard would be Clarence Thomas, a very neutral, impartial, definitely not political justice of the Supreme Court, thanking a Republican senator, Ted Cruz for defending Thomas when Thomas and his.

his wife were, quote, under attack, by which I'm pretty sure Thomas is using to refer to when he was being criticized for receiving luxury gifts, including many undisclosed personal jet trips from a Republican mega donor and more generally having a billionaire BFF slash benefactor in Harlan Crow. Yeah, that was a wild moment. You know, Justice Thomas loves to talk about the unfair attacks that he has endured. And so when he sort of launched, I've heard a lot of his bits before. And so I thought he was going to talk about the unfair attacks. That's in obviously scare quotes that he endured when Anita Hill disclosed that he had sexually harassed her. But then he mentioned Ted Cruz and Mike Lee coming to his defense.

And so I was like, wait, wait, that timing doesn't work. Oh, I guess he means the more recent unfair attacks around billionaire large ass. Yes. But this is a wild conversation. And I don't know if you felt this way, Leah, but it's like he is such a fascinating figure. And he's got so much both obvious intelligence and charisma and is such a profoundly broken and damaged and furious and bitter. person. And it's like, it's genuinely moving when he talks about his childhood in abject poverty in pinpoint Georgia. Like, it really is. His memoir, my grandfather's son was actually really, really good. And

Ted Cruz starts the interview by being like, you wrote a great autobiography. And that doesn't quite explain why Ted Cruz felt the need to also write a biography apart from like maybe selling books. But also it's like, we've said this before, but like people will do a lot to avoid going to therapy. And it's just like there is rarely a person you will hear talk about themselves. And going on Ted Cruz's podcast is part of that avoidance effort. I guess so. Anyway, it would. It was a wild conversation. Well, who knows, maybe Ted Cruz will get a free PJ trip to Cancun out of this.

Guy can dream. Yeah, totally possible. I mean, has he actually not? I feel like he's probably received one of those in his life. But pure speculation on my part. In any event, the conversation, just the appearance at all on this podcast just felt like a real epic level of trolling. And seemed to display without expressly touching the topic, real contempt for people trying to push. for ethics reform at the Supreme Court.

Yeah. Okay, onward because we do have other legal news to cover. Last week, Leah and guest host, Somal Trevetti, talked about the extradition request from Minnesota to Texas to have Texas extradite a former ICE agent who had been indicted in Minnesota for firing into a home and then lying about it. Well, there have been some developments because we have our first federal district court ruling in that case and it sides with Texas. shocking because it's a Texas district court and a Trump appointee, and the siding with Texas is in a completely sort of bullshit procedural way, which is basically by concluding that we don't know that Texas Governor Greg Abbott won't comply with this extradition request. So the issue isn't ripe. Basically, says the court, Abbott hasn't refused Minnesota's request to sign an extradition warrant. He just hasn't responded yet. That is different. And so the case isn't ripe. where why do I feel like this logic sounds familiar? Yeah, using procedural, oh, it's just a little too early. Who is to say what might happen?

And therefore, let's enable some lawlessness. She ringing some bells, not sure where this could be coming from. But the court's reasoning is just utter BS because the lack of a response is functionally equivalent to a no. It means the former ICE agent is not extradited to Minnesota. And in fact, it resulted in the former ICE agent's release from custody since Texas law only allows the detention, you know, for 90 days. And then it just expires. And it expired. Guy was released. Who knows, maybe he too took a PJ trip to Cancun. Can't rule it out. And, you know, what Texas is doing here is, I think, like a real breakdown just in the idea of this is a union that we are a United States where states don't nullify the valid enforcement. of another state's laws in some sort of weird political brinksmanship, you know, especially when we're talking, again, about, like, conduct that occurred in the state that is actually trying to enforce its own law. Right. And occurred in the state is an important distinction between this effort, which is a legitimate one and an effort by, say, Texas or Oklahoma. Have they both tried? I can't now recall but to extradite providers of medication abortion who aren't anywhere near their states, in fact, are in places like New York. Those are very different kinds of extradition requests than this one where Minnesota says, this is. This agent shot someone in our state.

Can we please have him so we can prosecute him entirely different? And it makes Texas basically a safe haven for federal lawlessness. Totally. Exactly. And you can get away with it. You're not, yeah, you're going to have to face justice wherever the misconduct allegedly occurred. Okay, a handful of other pieces of news, good, bad, and ugly. This first one, pretty good.

So we got an order in the challenge brought by the Department of Defense. We're going to keep calling it. That's cancellation of a contract with Anthropic. And in a nearly 60-page ruling, a California district court held that the government had unlawfully retaliated against Anthropic for constitutionally protected activities. Here, those activities involved speaking up to caution about the ways its technology might be misused or abused. So just recall this dispute arises out of Anthropics seeking assurances from the Department of Defense that its AI not be used for full. autonomous weapons or for domestic mass surveillance, which I gather it had some reason to worry that it might be used for. This request was such an affront to the Department of Defense and the federal government that they canceled their contract with Anthropic and designated them a supply chain risk, which I think is the first time the federal government has ever so designated a United States company. And it shouldn't require some kind of applause when a company stands up, you know, for its own bottom line, because it's ever so designated a United States company. because it's been cut off from this enormous source of business. But given how much of corporate America has decided not to fight back in the face of the administration's lawlessness, I am glad that Anthropic decided to file a lawsuit and that they got this, you know, they notched this first win. Yeah.

So this is going to move on to ugly. Last week, the Fourth Circuit throughout a $42 million judgment that had been awarded to victims of torture in Iraq's Abu Ghra prison. This is a case that had previously gone to trial and resulted in a significant verdict and a war that had been upheld by the appeals court. But last week, that appeals court concluded that in light of the Supreme Court's decision from last June in Cisco Systems v. Doe, which gutted the alien tort statute, you know, there the court said that victims of human rights abuses and torture couldn't sue, right, a corporation that had allegedly aided and abetted the surveillance, torture, and abuse. The Court of Appeals concluded that in light of that decision, it would have to reverse its prior decisions and throw out the award. It's just awful and it's an important reminder that the harm inflicted by many of the court's decisions really only start when they are handed down and just multiply from there, like some sort of weird infestation. Totally. And speaking of the fallout from Supreme Court opinions, we need to flag some developments involving still, for now, Fed Governor Lisa Cook.

recall that last June, the Supreme Court ruled against the Trump administration's effort to fire her by social media post. But the administration does not appear to be letting that stand as the last word on whether the president has the power to fire Cook. So last week, Cook submitted a letter responding to the White House's latest indications that it may move to fire her. They basically asked her to defend this series of allegations, spurious allegations that she had engaged in mortgage fraud. she submitted a lengthy letter sort of detailing and responding to each of the allegations against her, making clear just how absurd they all are. But given, again, that the White House decided not just to cut its losses after SCOTUS ruled against it and seems maybe interested in continuing to try to pursue her, I wouldn't be at all surprised if they tried to fire her yet again. it seems really clear that the kind of process the Supreme Court said had to be followed in the case of removing an official like a Fed governor is not satisfied by saying write us a letter. Like there has to be more than that. So even on the court's own logic, which definitely like did not totally foreclose them trying again, but even on the court's own logic from that cook opinion, I can't imagine that this stands as like sufficient process to justify firing her. But I don't know. It feels as though they're going to take another run at her. So the case may be back before SCOTUS before long.

Yeah. Speaking of our president, the poster, the president posted something where he purported to rank all in his mind past presidents in different categories. Obviously, at the top is himself the greatest. After that, there was a category for great, the near great, the average, the below average, and the failures. Some observations about this ranking. Ronald Reagan is just missing. I don't know if you like forgot that this guy A famed rhinolea, that's why

Well, but like he put other You know rhinos Or people he views as rhinos Obviously in certain categories There's some Democrats who did I mean like even contemporary sort of political terms Who were like FDR was like in great I think right? Yeah so he was in great

You know and then Clinton was an average Obviously Biden and Obama are failures But one of the ones that like Or a few a pairing that stuck out to me is Andrew Johnson the Confederate sympathizing president who tried to nullify reconstruction is listed as average.

While Ulysses S. Grant, Union soldier, is below average. And it just makes you wonder what led to this ranking and what corners of the internet did he get this from? I mean, I couldn't tell whether you're surprised by Andrew Johnson being average

and not being higher or not being lower. I was surprised he wasn't higher. Right. So actually if Trump knew. He didn't think he was successful in ending Reconstruction quickly enough. Right, right, or fully enough. Yeah, yeah. Okay, that's fair.

I wondered with Grant, the reason that he was ranked below average actually had nothing to do with Reconstruction, but maybe was that, you know, so there's all this famed corruption in the Grant administration. I think it turns out, you know, historians feel differently about this. Chernow is like a really big Grant defender and says, like, it wasn't really his corruption. It was like underlings he didn't sufficiently supervise. But I was thinking maybe Trump false grant for failing to really get in on the corruption, letting the underlings get all the benefit. And so maybe a little bit more personal sort of grift and corruption might have bumped him at least to the average category. I see. Just a theory.

Yeah, no, it's plausible. Totally. So that is all of the legal news. We are going to cover this particular episode. Now you can stay tuned for my conversation with Governor Roy Cooper about how there is still some aftershock and blast radius from many different Supreme Court decisions that are playing out on the ground in North Carolina with respect to democracy and elections. And then stay tuned for a conversation with Steve Fladdick. And then after that, at the very end, we will give you our favorite things. Strict scrutiny is brought to you by smart credit.

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show, Governor Cooper. Glad to be with you, Leah. Thank you so much. So as a Democratic governor of a purple state, you actually vetoed several Republican-supported bills that would have restricted ballot access and otherwise made the Democratic process less Democratic. Can you talk a little bit about that? You know, I think that often the Republican legislature was looking at ways to stop people from voting who they didn't think we're going to vote for them. And there's unfortunately been a long history of those attempts in our state. It's fortunate that we've had the courts that have often stopped the worst of the worst. There was a famous Fourth Circuit decision saying that they had discriminated against black voters with surgical precision, trying to figure out when and how black

voters voted and then trying to restrict those ways to vote. We don't have the good court backup that we used to have now. So that's a real concern going forward. We've already seen this legislature and now our new Republican State Board of Elections to restrict Sunday voting, to restrict voting boxes on campuses. And obviously, we have seen their handiwork in extreme partisan gerrymandering at the command of the president here just lately, trying to draw districts where the representatives get to choose their voters instead of the other way around. And that's not the way we should do things. I'll tell you, there's two things that I will work mightily on when I get to the United States Senate. One is overturning Citizens United

because of the amount of money involved in these races is unconscionable and it's got to stop. And secondly, finding a way to outlaw extreme partisan gerrymandering. I think those two things could help everyday people by the policies that will be passed as a result of them being passed. And it'll also help save out democracy. That's for sure. Yes. No, it gives people more power by making the country more democratic. You mentioned the loss of the courts as a backstop.

And I just wanted to say a little bit more about how that has really affected North Carolina. So the Rootov versus Common Cause decision, the case that said federal courts can't do anything about partisan gerrymanders actually arose out of North Carolina and was the Republican legislature's effort to get away with something that targeted black voters with remarkable precision. And in the wake of Shelby County dismantling the preclearance process, that's when the Republican legislature passed that voter suppression bill that the federal court, appeals did say, you know, targeted black voters with surgical precision. And then when the Republicans gain control of the state Supreme Court, that court allowed the legislature to get away with the voter identification law as well as, you know, is partisan gerrymander. But you also mentioned Citizens United and money in politics. And voter suppression and impeding ballot access aren't the only ways that Republicans with the help of the U.S. Supreme Court are shaping the upcoming midterm.

So one of the big Supreme Court decisions from the end of last term that got a little crowded out by some of the other big decisions like birthright citizenship was NRC, the National Republican Senate Committee, versus FEC, the Federal Election Commission. Just as a refresher, that decision eliminated what were called party coordination limits. And that cleared the way for political parties to fork over money to candidates. And that allowed the mega rich to be able to pass more than $500,000 directly to candidates using parties as a conduit versus the $7,000 they were previously limited to giving to a candidate directly. Roy, how has the court's demolition of campaign finance affected your race in particular?

Oh, significantly. But I have to, you mentioned a string of cases. And I have to just point out one that I think is really important because North Carolina did have the case in front of the U.S. Supreme Court, where that court had a chance to outlaw extreme partisan gerrymanly. And it was a close vote. And they ended up saying that it's too subjective. And that's why they didn't do it. And that's not true. I mean, you can use standard deviation.

I mean, you can look at ways that districts are drawn in a way where they are too extreme in their partisanship. And just to have you know, briefly, Democrats controlled the state Supreme Court in North Carolina. They found that under our state constitution that extreme partisan gerrymandering was unlawful. And we sent seven Democrats and seven Republicans to Washington. That's who we are. We're a purple state. We're a purple state. And then Republicans took over the court and overturned it.

And now we're back to 10 to 4. I don't know what will happen this time. But that's just wrong on its face. This latest Supreme Court decision just allows more big money. It allows more billionaires and the most wealthy people to get into. the system. And with these joint committees now that can be set up, it's virtually unlimited as to the amount of money that they can spend on these races. Already, it's unconscionable the amount of money that is there. This gives them a new avenue to just simply levy the parties. And already, you know,

the RNC has, what, 130 million? I don't know that the DNC is in debt. So my opponent, Michael wantley was the former RNC chair. So he's going to be first in line to get this money. And then another kicker, which I know you know about, is the fact that there is another case going on where the FCC said not only are these joint committees okay, but we're now going to require TV advertisers to give them the lowest unit charge, which can often be a big, so now not only do the big money want to come in, they want to discount while they're at it. So the money can go even further.

That's right. So that case is going to go to the Supreme Court. And that will affect these small dollar donors who work really hard to try and elect candidates who are going to care about them. Knowing all this is coming at us, we encourage people to go to Rory Cooper.com. You can see my policy proposals, but you're going to also. give us some help here to help us fight back against this big money that's now being allowed in more ways by the U.S. Supreme Court. Really frustrating. Yeah. And just to link what the FCC is doing also to the Supreme Court, you know, the Supreme Court essentially ended independent agencies

giving the Trump administration more control over what these agencies do. And now the combination of the end of party contribution limits and the end of independent agencies have created this world. where the RNC and other campaign committees can now spend all of this money on your opponent's ads and get a legally mandated discount while they are doing it. And again, this is not democratic. It is allowing people in power to write rules so that they can stay in power. The FCC now is controlled by Republican Party, by the Trump administration, has no independence. How in the world would it just come up out of the blue and send. a letter to television stations saying that you have to give a discounted rate to these new big money joint committees. I mean, just out of the room, no case, sending a letter to them. This is what you have to do in clear violation of the law. Right.

Because the law limits it to candidate committees. And John Ossoff and Sherry Brown and myself and some House members, we sued. to say, wait a minute, that's not what the law says. And the circuit court agreed with us saying, this law is pretty clear. But now it's likely to go to the U.S. Supreme Court. They're arguing some standing issues. Of course. The law is black and white. And the discounts should be limited to the candidates who are limited in the amount of money that they can get, which is the way the rules should be. And this is where our grassroots contributors can make a real difference. And what the FCC and the Republicans and the Trump administration are trying to do

is to make their contributions less effective by giving the billionaires and the big money people the very same discount that candidates now get. Yeah, no, that is just kind of wild. You know, this court unfortunately has a, let's say, a tendency. to use the idea that no one has standing or no one is injured by this anti-democratic behavior to allow some anti-democratic behavior. So fingers crossed, that does not happen with the FCC challenge. But it's not just, I don't think, like the influx of dark money that is the result of the Supreme Court's decision is also what this dark money is doing. It's generating all kinds of shady and not in a good way, like borderline deceitful ads.

Is it not? There's no borderline about it. They're out and out false. They're deceitful. They've got attack ads running against knee now in North Carolina on crime. One of the cases is a case that was in South Carolina. I heard in South Carolina by a South Carolina criminal who is led out of South Carolina jail. And that's somehow my fault. I'm pretty sure the Republican-controlled legislature tried to limit. your power, not give you additional power over South Carolina, if that's, if that's not right. It's so absurd. And the irony of it is that I am the only one in this race who actually prosecuted violent criminals and who actually were to keep them behind bars. But they have no relation to the truth. And they're able to put these hundreds of millions of dollars.

And if you say the same lie enough, then people can start believing it. But, you know, you talk about being tough on crime. My opponent, Michael Wiley, who, you know, when I asked why he was running, he said because the president asked me to. And it's clear that he will do and say whatever the president tells him to do and say, regardless of whether it's good for the people of North Carolina. But he says he's tough on crime. Yet he appointed to an important repulsive.

Party position, a convicted child molester who served six years in prison for his crimes, was on the sex offender registry, and he did this over the objection of a number of Republicans who said, we can't have this. This position allowed him to be in contact with children and young people, and he did it because the guy could raise money. And that's putting politics in front of public safety. And certainly, I think that's the real soft on crime when you're talking about Michael Watley. Yeah. Well, listeners, hopefully this has been an informative conversation about how the Supreme Court's anti-democratic hijinks are already affecting democracy on the ground and also highlights the importance of ensuring the Supreme Court and the Republican-controlled legislature don't

get away with these anti-democratic hijinks. Governor Cooper, thank you so much for taking the time to join the show. We really appreciate it. Thanks, Leah. All the best, okay? Thank you. And if you want to learn more about how we can possibly fix this Supreme Court and what it is doing to our democracy, be sure to stay tuned for my conversation with Steve Fladdick on Supreme Court Reform, which is next. Strict scrutiny is brought to you by Quince. Back to School, back to school, which means it's time to get some quince. Those are the rules. Quince specializes in everyday staples that work harder, like their ultra-soft, organic cotton teeth. in premium Mongolian cashmere sweaters. They're versatile, timeless, and transition seamlessly

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Quince has become my go-to for everything from hotel quality bedding and bath essentials to premium cookware and travel must-haves. Upgrade your every day. Go to quince.com slash strict for free shipping on your order and 365-day returns. Now available in Canada and the UK, too. That's Q-U-I-N-C-E.com slash strict for free shipping and 365-day returns. Quince.com slash strict. Hi, everyone. I'm here with Steve Laddick, professor at Georgetown Law, author of the one-first substack that's frequently

in our favorite things, the best-selling author of the Shatter Docket, author of this year's Harvard Law Review Forward, and also some kind of field marshal, according to Judge Edith Jones of the No Good, Very Bad Fifth Circuit. Welcome back to strict scrutiny, Steve. Thanks. Although I actually, it was Mitch McConnell, who called me the field marshal of the academic project to undermine the federal judiciary. My bad. What Judge Jones said was much worse. Okay. Fair enough. I guess that's why I went with that one.

So this is actually a very special segment. It's an introduction to a series we're going to be running, starting on Thursdays, as bonus episodes from here on out. The series is about Supreme Court reform. Yes, it is hot Supreme Court. Court Reform September. And to kick it off and get you interested, we are starting with Steve. So the basic conceit of the series is as follows. Each episode, or segment in this case, we'll focus on one kind of Supreme Court reform. We'll go through some standard questions, what the reform is, what it would address, what are possible legal issues with it and whatnot, so that you are equipped with a lot more information about Supreme Court reform than you are now. You ready, Steve? Born ready.

For this topic, you indeed were. Okay, so we're going to start with some more general questions. I wanted to ask you first, what is one of your least favorite things about the court or one of the biggest things that you think has gone wrong at the court? Hmm. I have so many things. It's like there's like that notebook, right? Things that this report has done to piss me off. And it's a long notebook. I guess I would I would put a lot of things. under the general umbrella of things have gone wrong because Congress has taken its hands off of the court. And, you know, this is a real theme of my upcoming book, The Court We Need, which is that for a lot of our history, for better or for worse, Congress did lots of things big and small, basically to nudge the court and to leverage the court. And the court, in turn, was a regularly looking over its shoulder or for much of its history up through the ceiling at Congress. And that I think, you know, a very big, big part of what has gone wrong with the Supreme Court is that Congress has stopped. You know,

Congress doesn't control the court's budget the way it used to. It doesn't control the court's docket the way it used to. It doesn't control the justices travel or the court's calendar or anything else about the court the way that it used to. And the result is, you know, as someone I know once said, the YOLO court, because, you know, part of why the court can live once is because it doesn't have to worry about repercussions for almost anything. And that's new. And I think that's actually the source of a lot of the mischief with the court we have. Okay. So then maybe going a little bit more specific, just to the past Supreme Court term, I guess, still ongoing. What is your least favorite slash worst thing the court did last term? Yish. Again, it's so many options.

I know. I know. It's like asking a Mets fan, right? What is the thing that has gone most wrong with the team this year? Your answer is like everything. I'm going to go in a bit of a weird direction and say that I actually think the worst thing that the court did this term was the series of emergency docket rulings in redistricting cases. Because whatever you think of the substance of Calais and the courts, you know, to my mind, deeply problematic interpretation of Section 2, the Voting Rights Act, the zeal with which the court moved to put it into immediate effect in Louisiana and Alabama and the sort of machinations the court had already undertaken in the Texas and New York.

redistricting cases really lead to me are the biggest black eye that the court gave itself this term because it just looked so transparently partisan and it was such an obvious breach from the court's own prior commitment to what it claimed was a principal that I would say, you know, for as bad as, you know, I think slaughter was and for as problematic, I think, four dissenting votes on the constitutional question. And Barbara were, I actually think that this was somehow worse. Okay. So in both of your answers, you alluded to shadow docket, Supreme Court's docket. And the reform I wanted to talk to you about is, of course, docket reform. So I guess first, just basic, what do we mean when we say docket reform? So I think people actually mean different

things. You know, I tend to think of docket reform as an umbrella conversation that basically has at its core Congress reasserting more. control over which cases the Supreme Court hears and potentially how it hears them. And so that's, you know, you could view that purely as a merits docket question about Sir Shirari. You could view that as an emergency docket question about sort of tightening up the standards or even limiting the court's formal authority. But however you frame it, it's all to me about, you know, Congress doing more basically to tell the court what it can and can't hear. Right. And just to underscore certiorari and merits docket, you know, maybe for people who might be listening into this, not knowing a ton about the court, the merits docket just refers to the set of cases that the court hears with oral argument after full briefing. And the vast, vast, vast majority of those cases come from the certiorari docket. And that means they are discretionary. The Supreme Court itself chooses which cases it's going to hear and which cases to put on that full merits docket.

Right. 55 of the 56 cases, the court decides. after plenary review during the current term, right? Of the 56 signed decisions we got in argued cases, 55 of them were cases the justices chose. Only Calais, as it turns out, was not. And even in Calais, they rewrote the questions presented. So, you know, this is a dominant future of the Supreme Court's docket over the last 38 years.

But, Leah, as you know, this was not always so, that Congress used to actually exercise much more control over every case the court heard and over the means by which it heard them. And that's, to me, the heart of the conversation about docket reform. So can you give some examples about what you're referring to when you say Congress used to exercise a lot more control over the kinds of cases that the court heard and also in what capacity it heard them? Sure. So until 18901, so for the first basically 101 plus years since the court started in 1790, the court had zero control over its docket.

There was no discretion. There was no Sir Shirari. Basically, the cases the Supreme Court heard were cases within its mandatory appellate jurisdiction that a party took to the court on appeal or that the lower court judges certified. That was a common procedure in the 19th century. What that meant was that there was no, oh, we don't want to take this case move available to the Supreme Court. If the court had jurisdiction and if the right party invoked that jurisdiction, the justices had to decide that case. So much so that Chief Justice Marshall will say in Coens v. Virginia in 1821, literally, we have no discretion to not hear cases. It would be treason to the Constitution if we declined to hear a case within our jurisdiction. That was how things worked all the way up until the late 19th century, at which point it became a huge problem because the court had too many cases it had to hear. But that was the norm for the first century. And no one never suggested it was unconstitutional. Indeed, it was just the way the court operated. Right. And then after that, you know, Congress kind of begins to give the Supreme Court a little

bit more discretion, but still establishes some cases that they decide, you know, the court has to hear. And there is now still a mandatory docket, but it is much smaller, you know, relative to what it once was. That's right. I would say two quick things on that. So the first is the most common, it gets a little nerdy if you go all the way into the weeds. But by volume, the most common source of mandatory appeals, appeals the Supreme Court had to hear in the 20th century were cases that went to the so-called three-judge district courts. So challenges to state or federal laws on constitutional grounds where Congress said, we don't want a single federal judge to be able to do this whole thing. We want a combination of— Cough Matthew Casimiric.

It's almost like they anticipated this problem. You know, history doesn't repeat. It just rhymes. Right? And the three-judge district court was a staple of, you know, challenges to state laws as early as 1910 and challenges to federal laws as early as 1937. And what's fascinatingly is Congress scaled that back rather than actually radically restructuring the court's jurisdiction. So that by the time we get to the last real reform of the court's jurisdiction in 1988, Congress had already gotten rid of three-judge district courts in almost every context, except the ones we still see today, except a. small number of campaign finance cases and certain but not all challenges to congressional

district in. Yeah. Okay. So then what problem or problems would this kind of docket reform where Congress just exercises more control over what the Supreme Court does, kinds of cases it hears? What problem or problems would it address? So I think the first problem, and this is the most obvious and I think indisputable one, is how much the court's docket has shrunk.

So, you know, I mentioned 56 was the total number of signed decisions this term. That's, I think, the sixth or seventh straight term all the way back to COVID, where the court hasn't even gotten to 60 decisions in argued cases. The 60 number is interesting because before COVID, the last time the court had decided so few cases was 1864, you know, just a few years ago. Right. Not even Justice Thomas. I know, right. But not even Justice Thomas was on the court yet. Right.

And I mentioned that because, you know, a lot of folks will say, wait, you want this court deciding more cases? That seems like a bad idea. But the key is the justices right now can take almost any case they want. The problem is that the cases they're not taking that they should. And so, you know, the first problem it would solve is you would have more of the court's docket. And we'll talk about sort of specific ways to do this. But more of the court's docket would be sort of cases that aren't just these. red meat, culture war, you know, super ideologically divisive cases where, frankly, love or hate the court. It only has so much capital, right? And it only has, I think, so much of an ability to handle those cases as opposed to more, for lack of a better word, like nerdy, lawyerly cases that don't make headlines. Yeah. Okay. So then now maybe let's shift to some specific docket reforms just to give people some examples about what that might entail. And again, docket reform could encompass so many different. specific proposals. So we're just going to kind of tick through some. I know that you have, you know, endorsed or expressed support of and others that are just kind of out there in the ether. So maybe let's start with some of the proposed reforms to the shadow docket, emergency docket.

Because obviously when people think of what has gone wrong with the court's docket, they often think of the shadow docket. I would say thanks to you, but it's really thanks to them and what they have done. But anyways, okay. So. I'm very happy to give them the credit for that. Yes, me too. So one suggestion that I think you have written about is that Congress could codify the legal tests or standards for when the court can actually grant relief or certain kinds of relief on the shadow docket. Could you say a little bit more about what you might be envisioning and why you think that might be a good thing? Yes. So it's already the case that when the Supreme Court is granting or denying an emergency application, it's exercising appellate jurisdiction. It's exercising jurisdiction Congress has already conferred by statute. You know, the court is not ever especially careful about which statute it's using in those cases.

But I think the really important point here is that it's a concession that this is all controlled by Congress in the first place. And, you know, Leah, as you know, one of, I think, the most sort of consistent doctrinal critiques of the court's behavior on emergency applications in recent years is that the justices are not consistently following what they have. previously said are the criteria for the different types of emergency relief. You know, Congress writing them down wouldn't force the justices to follow them, but it seems like it would be a salutary development to say, we mean it, right? Congress could define irreparable harm. Yes. And in the process, you know, I think get rid of the court's deeply problematic view that the government is irreparably harmed whenever it's enjoined. Congress could say, that's not true for purposes of emergency relief. Congress could require the court as Justice Jackson has urged it to have to balance the equities, even when it thinks that, you know, the merits are going to drive most of the analysis of whether to grant emergency relief. You know, I think there's more debate, and you and I may even disagree a little bit about whether Congress could require the court to write, for example, in these cases.

Yeah, I was going to ask you about that one. Yeah, I mean, you know, I get a little squeamish about Congress telling the court how to do its job as opposed to telling the court what powers it has. But you and I have always fought about United States v. Klein and where the Article III line is. I don't think it's worth getting lost on that sort of very fringe academic debate. The real point is Congress could do a heck of a lot to clarify what the tests are and to basically nudge the court to actually follow those tests, even if. if it's not going to sort of go all the way toward, you must write a 20-page opinion in every single case. Yeah. So I'm not going to, you know, go down the rabbit hole of, you know, what is a specific legal issue with Congress maybe requiring the court to issue an opinion or explain itself. But I do just want to flag that there is potentially one. And what that suggests is there might be some, let's say, constitutional challenges to statutes or legislation that attempted to carry out some docket reforms, you know, that you might think is a good idea.

on this requiring explanation bit, you know, I'm personally of the view that I think they should require some explanation, maybe not like a 20-page opinion, but something about the merits, the balancing of the equities, and irreparable harm, maybe not before they grant relief, but within a certain period of time after, at a minimum. I mean, I think it's a salutary policy idea, right? I just, my concern is there's so little, plausible, constitutional objection to everything else we've talked about to this point, right? And so I think it's part of that's just a risk tolerance question for the policy reformers, which is, you know, codifying the standards, redefining irreparable harm. Like, there's no viable constitutional challenge to that versus like, would you also include provisions that could plausibly be challenged? And that's, I think reasonable folks will disagree about that.

And yet you and I both know someone will discover an emerging literature that they will themselves manifest and create. Don't be that. You say discover. I was going to say conjure. But. Right. But so, no, but I don't want to lose the more important point here, which is that, you know, this is true of almost any particular docket reform conversation. There are so many different pathways that would raise just zero constitutional, zero reasonable constitutional hackles. And I think we can flag for folks that whether Congress could force the court to write or not would be one of the ones where there would be a serious constitutional question. right? But could Congress ratchet up the standard? Could Congress redefine irreparable harm? I just think there's no question. The answer to that is yes. Yeah. Okay. So now I want to go to Merritt's docket, like regular docket, and ask you about some reforms there. One, I guess, is the ones you were kind of alluding to about requiring the court to hear some set of additional cases. And in part because I imagine people will have the reaction that you were gesturing to, why would you want this court to hear more? Could you just kind of spin out some, examples of possible expansions to the mandatory jurisdiction docket or other ways of requiring the court to hear cases that might not concern people, given the current court. Yeah. So there are two big ones.

And there are others, too. But these are the two that I think are the most easy to defend and will, I think, be most accessible to folks on the ground. So the first is, Lee, you know this, and I teach this. the federal circuit courts have long had the authority to certify questions to the Supreme Court. I would make that mandatory. And to be very clear, not so that any panel could certify anything to the Supreme Court, but so that a majority of the active judges of any court of appeals after deciding a case could say, and we think the Supreme Court needs to resolve this question.

Now, you could sort of structure that reform to avoid, like justiciability problems, by saying once a cert petition is filed, you take the vote of the judges and that, right? But every time I talk to circuit judges about docket reform, they all, no matter who appointed them, they all have their own pet issue where they're like, I really wish the Supreme Court had taken this up or we could really use guidance on this. And it's never some big political or ideological, you know, sort of pet peeve. It's actually like some technical question about bankruptcy law or about Johnson v. Jones and what you? you can appeal as part of qualified immunity denials.

Right. I mean, you know as well as anyone. There are dozens of circuit splits out there that the Supreme Court just won't take up and won't resolve. And, you know, some of those cases will have an ideological valence, but many of them won't. And so the first thing I would do is I would give back some power over the court's docket to the courts of appeals. And, you know, folks might say, even the Fifth Circuit. And I was just about to say, can't wait to see what the Fifth Circuit dreams up. But the reality is the Fifth Circuit's all right. pretty good at getting cases on the Supreme Court's document. Oh, yeah, for sure.

This is not giving them a power. They have not already seized for themselves. Correct. And so, like, is it possible? Lower courts will abuse it? Yeah. I think having it be a majority of the en banc court reduces the abuse potential. And I also suspect some norms would evolve within this process.

But, you know, Leah, you remember back when folks were trying to get the federal sentencing guidelines before the Supreme Court, before Booker and Fanfan. And the Second Circuit tried to certify a case called Peniranda to the court. And they were like, yeah, L-O-L. There's actually, you know, a non-ideological Fifth Circuit case about old statutes of limitations for federal kidnapping offenses where the Fifth Circuit split like eight to eight. Right. And we're like, hey, Supreme Court, we need you to take this. So they tried to certify it. The Supreme Court said no.

Those are the kinds of cases where I would empower circuit courts. And, you know, if that adds 15, 20 cases to the court's docket per term, oh, no. Like, you know, I think we'll be all right. Right. Okay. So now I want to ask you what I think of. Wait, can I, can I one more? Sorry, I said there are two categories. I just want to throw out the second category just in case it's helpful. Also, you know, for all of the sort of court's effort to completely disengage from the death penalty. Yes. And to not take up, you know, 11th hour stay applications in capital cases. it seems to me that it would be a lot easier to sell that if we had required the court to do at least one pass on the merits of all capital convictions and sentences in the United States. So, you know, I think there's an interesting question, Leah, whether it makes more sense to have that be on the first appeal or whether it makes more sense to have it be on the appeal of the state post-conviction proceeding.

But one or the other, right, so that the Supreme Court, by the time a case comes back as an 11th. our capital application, the court has some familiarity with the merits. Yeah. Okay. So those are what I, I don't know, in my mind think of as substantive, right? They affect the kinds of cases that the court hears. But there are also possible docket reforms that affect how the court decides these cases and what we learn about them. So I'm just going to rattle off some. I'm not going to ask you to take a position on all of these or tell me whether you think there are reasonable constitutional arguments. But I would be interested in hearing your take on what others. that are in the ether that might be worth considering our. So some of the ones I've heard, one, forcing the court to tell us in advance what opinions they are releasing. So if they say we're releasing opinions on Thursday, tell us Wednesday at noon what we're going to get. Maybe requiring them to disclose certiorari votes, right? Who voted to hear a case? Maybe Congress weighs in more on the criteria for certiorari. You know, that would help determine. Yes, please. Yes. Okay. So it sounds

I like you like that one. What are other ones that are on the table and maybe worth just considering? I mean, codifying on the cert threshold, right? I mean, so, you know, the so-called rule of four, which, you know, we teach our students that it takes four votes to grant certiorari. Spoiler alert, it's not a rule. It's not written down anywhere. You know, I would, if I were Congress, I would seize control of four votes for cert, of five votes for certiorari before judgment, before the Court Appeals is even ruled of six votes for a summary reversal. I mean, I would, I would write all that down. I would codify the criteria in Rules 10 and 11 of the Supreme Court's rules for when the justice is Grant Siriorari. Again, not because that will necessarily force the

just the justices to follow those criteria, but at least then it's not just, you know, information they're already controlling. You know, you mentioned the timing. I would actually think a bit about codifying the court's calendar a little more in detail than just, oh, the term starts the first Monday in October. You know, I've argued for years that the court should get rid of its April argument session. Congress could do that. So, you know, just lots of ways in which Congress could tweak the do. You know, there are things Congress could do, I think, to require the court to actually consider more informed popperous cases, which have fallen completely off of the cliff on the court's docket. Just so many different things that if we're going to have this conversation, we might as well

have the full conversation. And just to sort of drive home one point, if we're going to talk seriously about docket reform. We should talk about how the docket has not just shrunk, but how it shifted. Yes. Right. And which cases have disappeared. You know, not this term, but during the October 2024 term, the court didn't decide a single direct appeal from a state criminal conviction. That's insane. And so, you know, I think any sort of full, like, comprehensive study of how the court's docket has shifted will also, I think, lead us to find other places where we think the docket can and should be reformed. Yeah. Another significant shift. you know, ProPublica reported that this was the first term where the court released more kind of matters on the shadow or emergency docket, you know, that it did on the regular docket. Okay. So in the course of this conversation, we've already kind of answered some of the questions I was going to pose, namely what would be needed to make this reform happen, legislation. If legislation could make this reform happen, is there a possibility the Supreme Court would eat it or some of it into the sun? Yes. So, Steve, I will leave you with one final question, which is, let's imagine Congress.

tomorrow adopts all of your desired reforms to the Supreme Court's docket. Why wouldn't that set of reforms be sufficient, even if it is necessary? It's a great question. Let me tell you and take 10 minutes to answer it. So you know well that I think that the principal problem with the current court, as I said at the top, is that it's just not accountable. Docket reform is a step in the right direction, but it's just one of the levers that Congress pulled over the first 200 years of the court's existence. And so, you know, do I think Congress reclaiming control over the document will have positive effects? Absolutely. But it won't change that the justices can still take whatever cases they want, right, beyond the ones they have to take. It won't change anything about the

justice's behavior off the bench. And it won't do anything to basically reassert the idea. that the justices need to look over their shoulder when the side cases. So, Leah, if Congress were to go down any of these more controversial paths in docket reform, requiring opinions or requiring publication of vote counts, what's to stop the court from striking that down, right? Right. Formally, the answer is nothing. Practically and historically, the answer was that the court can win individual battles with Congress, but it cannot win a war with Congress. And, you know, it's the specter of after the court strikes down statute one, Congress comes back in statute two and goes even harder.

Like, that's how you get the court in line. And so docket reform isn't, you know, a decisive battle in a war between Congress and the court. You need Congress to also be in a position where the court is worried about what happens if it starts striking down these reforms and frankly, Leah, any of the substantive reforms that are almost certainly going to be part and parcel of any serious conversation in Washington in which docket reforms even a piece. Awesome. Well, Steve, thank you so much. If people want to learn more about docket reform and want to hear more from you, where should

they go? So, sadly, I write about this more than any rational person should in my newsletter one first, which is at stevevelladik.com. I also have an article in the BU Law Review from last year called Fixing the Supreme Court through its docket, and this is going to feature fairly significantly in my upcoming book, The Court We Need, still searching for us. subtitle, but the current subtitle of which is what's really wrong with the Supreme Court and how to fix it. Amazing. Thank you again, Steve for joining. Thanks for having me. Thanks again to Steve Latic for joining me

and us to kick off hot SCOTUS reform September. Obviously, SCOTUS Reform September, one of my favorite things. And I have some additional ones. Number one, it's pumpkin spice season again. We are so back, bitches. I love pumpkin spice, but I'm not ready. It's the only consolation. for the end of summer. And it turns out that adding pumpkin spice together with a new horchata flavoring with Starbucks and my usual caramel is epically delicious. Have you to guess how many grams of sugar are in an horchata extra? The limit does not exist. And that's why it's amazing.

That's why I'm able to do all the things. Well, like this episode, notwithstanding my poor sick puppy. Another favorite thing. Taylor Swift's icon session at the Grammys, beautiful. So she brought the piano from the Erez tour and performed a mashup that is absolutely beautiful. You have to listen to it. Also, home state of Minnesota, its state fair is beginning and seeing the anti-ice entries in the Minnesota State Fair, specifically the arts and crafts. competition where they make like anti-ice posters out of crops and seeds. Love it. Absolutely loved it. That is the most beautiful Minnesota. That is like literally a distillation of the ethos of Minnesota in just the best possible way. Exactly.

They know how to do organization and resistance. Also loved, though didn't love the occasion for it, Justice Jackson's dissent in the election executive order case. And as teased up top, I would welcome any advice. How do you solve a persistent cough in a poor pupper? X-rays all clear, right? It's not pneumonia. Nothing in her lungs. Heart seems fine.

She's been on antibiotics. Had her trachea checked, right? That looks fine. She's taken a course of steroids. And the poor thing is still coughing. Maybe it's the beginning of the semester and you're gone too much. Well, but I had to stay home with her a bunch this week because she's so sick. and she can't go anywhere.

Aw, poor pup. All right. Well, yes, listeners, please share any home remedies for doggie cough. Okay, on to my favorite things. I really enjoyed the novel Paradiso 17 by Hannah Lilith Asadi. I have a few books on my shelf that I've just gotten, either galleys or newly published copies of, and I've really enjoyed starting them. That's Sky Perryman's Ordinary People, Extraordinary Times, Rachel Sheldon's The Political Supreme Court, and Naomi Klein and Astra Taylor's, End Times, Fascism. I'll pick those up wherever you can.

I also met Mikey Friedman and learned about this effort called page break, which is written up in the Times, but I sort of saw it and didn't fully appreciate it. It's this amazing sort of series of weekend retreats where 15 strangers get together and read an entire novel aloud at like a Hudson Valley retreat over the course of a weekend. And it turns out like reading books aloud with strangers is incredibly fun and like generative. And you're – anyway, it sounded actually quite amazing. We don't, like, read aloud very much as adults. Yeah. I mean, like Passover satyrs and, like, on July 4th, like, I was with friends in Wisconsin, and we ran around at campfire, and everybody read a sentence from the Declaration of Independence with our children,

and that was actually really fun. So there are, you know, occasions, but it's rare. But anyway, so that – I just loved the idea of it. It's a page break as the organization. And then finally, the incredible outpouring of love and kind of remembrances at the passing of the extraordinary Dali Parton has been both heartbreaking and so beautiful. And also just such an important reminder of the way that Dolly Parton used her platform and her wealth, which is to buy millions of books for libraries and for children, to fund HIV-AIDS research and advocacy, to getting her COVID vaccine on live television. Like, the list is very long. And she was just, like, so fierce and fearless.

And all of the writings and conversations about her have been such a powerful reminder of what it can look like to use a platform to address injustice and alleviate suffering and make the world better. And it was also a reminder of just how little there has been of that in the past two years by people with these enormous platforms. I mean, actually, I should say Olivia Rodriguez, I think, is a notable exception, especially recently. But I just kind of hope that this sort of post-Dolly moment serves as a call to more people in positions of power and wealth to follow in her footsteps. So one additional note before we go at Crooked, we believe the answer to right-wing authoritarianism is, at least in part, a big fun pro-democracy. movement, and that's what CrookedCon is all about. So we're hosting strict scrutiny live in Washington, D.C., on November 6th. That's one day before the all-day CrookedCon event. CrookedCon takes place just after the midterm, so there's going to be a lot to discuss, like

wondering aloud why the universe has cursed us with both Samuel Alito and Clarence Thomas at the same time. You can join us for all the jurist nonsense you can handle. Tickets for strict Scrutiny Live and All Day CrookedCon are available at CrookedCon.com. Strict scrutiny is a Crooked Media production. Our show is produced by Melody Rowell and Michael Goldsmith. Music by Eddie Cooper. Our team includes Matt DeGroate, Ben Hethkoat, Johanah Case, Kenny Moffitt, Adam Lippert, and Eric Schute. Our production staff is proudly unionized with the Writers Guild of America East.