Strict Scrutiny - Is TikTok’s Time Up?

Episode Date: January 13, 2025

Leah, Melissa & Kate dive headfirst into an already busy 2025 by detailing the Republican attempt to steal a North Carolina Supreme Court seat, looking at the just-argued TikTok case,  parsing through Donald Trump’s various legal challenges, and more. Then, the hosts speak with Michelle Adams, professor of law at the University of Michigan about her book The Containment: Detroit, The Supreme Court, and the Battle for Racial Justice in the North.To support disaster relief efforts in Los Angeles, you can make a donation at votesaveamerica.com/relief Follow us on Instagram, Threads, and Bluesky

Mr. Chief Justice, please report. 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 podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Litman.

And I'm Kate Shaw. And here's what we have in store for you today. We have a lot to cover. We have been on break for the last month, and the last 48 hours alone have felt like a whole year. That is because the Trump administration hasn't even started. And yet, things already seem to be imploding pretty quickly.

So we are going to defer talking about some of the implosions that we've seen happen over the last month until future episodes. So tie a knot in your mental handkerchiefs for that. But today, what we have in store for you is also really juicy. We have a stay tuned update on the race for a seat on the North Carolina Supreme Court. Then we're going to recap the argument in the TikTok case before the Supreme Court.

We are also going to cover oodles of court culture. That includes Donald Trump's sentencing and attempts to avoid it. Including a very Freudian cert petition from future SG John Sauer and future Deputy Attorney General Todd Blanch. More on that later. We're also going to get to Eileen Cannon taking the cake

when it comes to utterly baseless lawless nonsense in her effort to prohibit the Department of Justice from releasing Jack Smith's report on the federal election interference case against Donald Trump, and other red flags, which will include Sam Alito, as well as the Chief Justice's year-end report. And finally, as a perfect palate cleanser,

and to prove that intelligent life does still exist within the legal profession, we're going to have a discussion with Michelle Adams about her fantastic new book, The Containment. First up, the North Carolina Court Watch. Listeners, you'll recall that there was a very close election for seat on the North Carolina Supreme Court back in November. After several recounts, the incumbent candidate, Justice Allison Riggs, a Democrat, was up more than 700 votes, 734 votes to be precise,

over her opponent Jefferson Griffin. And Griffin took that personally. He is seeking to have more than 60,000 votes thrown out on, would we even call them technicalities? I think to be a technicality, you actually have to be of the law in some way. Right. Technically part of the law would be a technicality.

So these are really, he's seeking to have them thrown out on vibes and feelings. His, his agree, I mean, Fifi's, Fifi's and also Jefferson Griffin is like straight out of the Confederacy cast. It's an excellent southern villain name and he appears to be an excellent southern villain. So what specifically is he seeking? He is trying to have these 60,000 votes thrown out on a few different, again, I don't want to call them theories, but here are the things he is saying, that the votes of some overseas voters, including those serving in the military, shouldn't be counted because they didn't include copies of their driver's licenses and a photo ID

when they submitted absentee ballots. Only problem for Griffin is that federal law, which governs overseas voting, does not require them to do so. Griffin also argues for disqualifying the votes of tens of thousands of voters who registered under old North Carolina forms that didn't require them to provide a social security number or a driver's license, even though you were not required to show your social security number or your driver's license to vote in North Carolina, nor were you when they registered. So naturally, the North Carolina Board of Elections rejected those arguments because they were specious. And this prompted Jefferson Griffin to file suit against the board's decision

in North Carolina State Court. The board removed the case to federal court where a Trump appointed federal judge decided to send it back to the state court because apparently it should be no big thing for the North Carolina Supreme Court to ultimately decide its own next member. But back to the North Carolina Supreme Court watch. So we have previously described the North Carolina Supreme Court as the new Yolo Court rising. This is the court that when it flipped to Republican control immediately said you could not challenge partisan gerrymandering in state court and that the state's voter identification law which the court had previously invalidated was now valid. So we already knew they were just not into the whole democracy thing and now they might be angling to steal the election

for the Republican candidate. Basically, they are calling to restart the steal to the extent it ever stopped because Alison Riggs won that seat. And yet the North Carolina Supreme Court has stayed temporarily, at least, certification of the election because they thought or suggested Griffin's horseshit arguments were substantial and worthy

of consideration. And they are going to hear oral argument about whether to full on block certification and throw out votes and install a Republican Supreme Court justice later this month or early February. And a part of me wonders, is this a trial balloon for something national? I'm going to ask you not to manifest authoritarianism on the pod.

It is only January. That's fair. Whether or not this is a trial balloon for something more national, it is, I think, an indication that the only reason we didn't see something like this on the national level, right? So this episode is coming out on Monday. Last week, January 6th, went off without a hitch. And why is that? Because Trump won, right? There is definitely a contingent of the MAGA coalition that will claim that any

election they lose is stolen. And I do think that there are real national consequences to them potentially prevailing here. I mean, these 60,000 voters voted, their eligibility to vote wasn't challenged before the election. Usually, you have to raise challenges prior to an election. And their votes, importantly, were counted in other elections, not challenged because guess what? Republicans won. And it seems to be the case that they're, I think, testing the waters of this effort to throw out votes after an election without having made any of these arguments before the election because the election did not break their way. of this effort to throw out votes after an election without having made any of these arguments before the election because the election did not

break their way. That's because Republicans are winners, Kate, and only Republicans are allowed to win political power. I see. Thank you. That's the principle. That makes sense. But people should be outraged.

I mean, I think we are going to face a challenge over the next four years of moderating our outrage levels and figuring out what to go all in about about but this is something that feels worth screaming at the top of your lungs about and agitating and taking to the streets it is a full-on effort to steal and overturn an election. Absolutely agree with that and I think that it seems possible that some of the members of the North Carolina Supreme Court actually on some level do see that. So we got the order temporarily, stopping certification and agreeing to consider the case.

No surprise, Justice Anita Earls dissented from that decision. But one Republican justice concurred to say the decision to hear the case shouldn't be taken as a view on the merits. And then there was another dissent by another Republican justice. And I actually want to quote just like a sentence from that dissent and here's what it said. In my view, the challenges raised in this petition strike at the very heart of our state's Purcell principle. The petition is in effect post-election litigation that seeks to remove the legal right to vote

from people who lawfully voted under the laws and regulations that existed during the voting process. And so if you don't want to take my word for it, I'm just a podcaster, that is a Republican justice on the North Carolina Supreme Court. So we have him, we have Justice Earls, and we have a concurring opinion seeming to remain open-minded about the merits of the case. And I think it's because obviously Riggs is recused. If there are three justices who reject this effort, that is enough to allow democracy to continue. So it really does feel like democracy hangs by a single vote in North Carolina right now, which kind of seems to be the vibe this week.

Yeah. This show is sponsored by BetterHelp. What do you want your 2025 story to be? Every January brings you 365 blank pages waiting to be filled. And we know at least some of them are going to be in the horror genre this time round. But you still have to write your own narrative within that. So in 2025 maybe you're ready for a plot twist, or maybe there's a part of your story you've been wanting to revise. You can think of therapy as your editorial partner, helping you write new chapters and create the story you deserve to live.

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faves, the original, or do I mean original-less, Yolo court. That's right. Why not both? Well, yes. Why not? That's right, folks. We are going to talk about the Supreme Court, because last Friday, the Supreme Court heard

on an emergency expedited basis a request for an emergency injunction of the federal law that would effectively end TikTok access in the United States by preventing US apps and platforms from servicing TikTok unless TikTok's current owner, ByteDance, divests and sells the company to another entity. The federal government defends this law by arguing that the law, one, prevents the People's Republic of China, which effectively controls ByteDance, the parent company of TikTok, from accessing data on individuals in the US and also that

it prevents the PRC from covertly manipulating what US users see. The government argues that under the First Amendment, these rationales don't trigger the most surging review, that is, strict scrutiny, because the rationales aren't about preventing certain kinds of speech, even if that would be the effect of the law. Basically, the government's argument is that even though the law regulates a media entity, TikTok, it is not actually regulating the content that the media entity provides or the viewpoints espoused in that content. Instead, the government argues it is just regulating a characteristic of the medium, that is, who owns it? They're not

saying you can't have TikTok, they're just saying that it needs to be divested so it's not owned by a Chinese company and actually, according to the federal government, controlled by the Chinese government. By contrast, TikTok and TikTok users represented by Noel Francisco and Jeff Fisher, respectively, argued that the law is subject to strict scrutiny because it was motivated in part by a concern about what United States users could access content curated by China. And they also point to evidence surrounding the law's passage, where certain legislators said they didn't like that users were

seeing certain kinds of content, specifically pro-Palestine content on TikTok. And if that's the point of the law, that's obviously suspect under the First Amendment, because it evinces a desire to suppress certain views. And having sketched the basic arguments, I want to say that what brings me no pleasure to report this, that Noel Francisco made a good argument in his brief. Fisher too. I mean, but I'm happy to

praise Jeff Fisher. That doesn't bother me. It actually pains me to say that I found myself more persuaded by Noel Francisco than Elizabeth Prelogger, especially on her way out the door. But anyway, regardless of the strength of the respective briefs, Francisco arguing for TikTok definitely had rough going during the oral argument. I think the three of us though might have had somewhat different takes on just how rough. I thought the argument was pretty brutal for him and TikTok. And I don't think there are five votes

to issue an emergency injunction against the law. So the justices seem to be focused on a couple of themes here. The first was that the law just operates on ByteDance, a foreign corporation, which is to say that the law simply tells ByteDance that it can't own TikTok internationally. That is to say that if TikTok goes down, it's not because of content or anything related to the content.

It's simply because ByteDance is the international owner, and it refuses to actually sell or divest itself as its interests in TikTok in the United States. I have to say, this struck me as somewhat in tension with the court's previous decision in NRA versus Vullo, where the court basically said you can't indirectly operate on a third entity in order to basically penalize the views of another party.

So there, the Supreme Court said that the New York officials could not threaten insurance companies in order to prevent them from doing business with the NRA because the officials allegedly didn't like the NRA's views. And again, there's sort of a similar structure here. Again, if you think part of the motive is they didn't actually like the content on the algorithm, it shouldn't matter who they're operating on so much

if that was their motive. Tandem for a minute. My former Cardozo colleague Alex Reinert has a great new paper on Fulo, although not on this aspect of it, about kind of pleading standards. So I'm just going to shout that out here. But back to the TikTok argument. So a second theme the justices seem to be focusing on

was that the law doesn't prevent TikTok US from operating. It just says that the law prevents them from operating based on or with ByteDance's specific algorithm. In other words, they could go out and find another algorithm. That's all that's at stake is the current algorithm being used by ByteDance. At one point, Sam Alito likened ByteDance and its algorithm to, quote, an old shirt, when a new shirt might do,

and other social media companies might be able to come up with a platform, and multiple justices referred to TikTok as a, quote, website. These and other moments really made me think back to a classic moment from the oral argument in Google versus Gonzales, which we thought we would remind you of here.

Yeah. So I don't think that a court did it over there. And I think that that's my concern is I can imagine a world where you're right that none of this stuff gets protection and you know, every other industry has to internalize the costs of its conduct. Why is it that the tech industry gets a pass? A little bit unclear. On the other hand, I mean, we're a court. We really don't know about these things. You know, these are not like the nine greatest experts on the internet. I mean, I'm never mad about an opportunity to pull that old chestnut out. Really love it.

But I actually thought they seemed more on top of TikTok than they have in previous social media cases. More than I expected. Like, they seemed to understand what was going on on TikTok. A lot of mention of cat videos. Yeah, right. They knew they knew there were a lot of cat and dance videos. Which shows they have the general oeuvre of the app.

And there were also moments where some of them at least showed some tech and social media literacy, like Justice Kagan, for example, mentioned Blue Sky. We previously joked about the Kagan egg we all knew was on Twitter slash X, or at least used to be. So where is she on Blue Sky? She's definitely there. And I have to say, I thought she was obviously she pretends to cast her. I thought she was pretending to cast about when she was like, what are the new ones again?

Oh, right. There's that one blue sky. And I was like, I'm sure you've been checking it all morning. You are definitely on blue sky. I see through you. It was kind of funny, though, that like they know the general gist of it, but they literally have no idea how social media works. Like, let's just get a new algorithm. Like, that'll be easy. Just like, we'll just run out to Target and we'll get us a new algorithm and start TikTok US afresh. Anyway, back to the argument.

The third theme that really came out here is the government's invocation of national security. And this really kind of focused on the looming threat of China in the New World Order and the idea that China is a foreign adversary. And therefore, the United States federal government has a compelling interest in restricting their control over a platform that has a massive audience in the United States. And here, it really seemed to matter

that most of the justices on this court cut their teeth as lawyers in the executive branch and thus seem very inclined. I mean, again, I don't think 100% it's a slam dunk, but certainly there were strong indications that some of them are very inclined to defer to the government's determination, at least in this context.

That seemed especially true about Chief Justice Roberts. I mean, I'm just going to interject here to say that I was a little surprised by how conspiracy theory-ish and low-key, sinophobic John Roberts's questions were. It really just seemed like he watches a lot of 24, and he is deeply, deeply concerned about China putting an earworm in your brain and taking all of your data. Yeah, or Homeland or Jack Ryan. He's just like binge watching all of these spy shows.

Yes, yeah. And then finally, as the last theme, the justices seemed more inclined to focus on the whole issue of data collection and as a rationale than content manipulation. And obviously, that idea is that China can get users keystrokes, contact information, and videos, and then potentially save them and deploy them for blackmail or other kinds of national security interventions. And again, recruitment, espionage, those kinds of things.

Yeah, all of those things. Again, 24-style shit. And it's not surprising that the court was really focused on that, because those interests are more removed and independent from the question of content and the interest in preventing content manipulation, and therefore further field from the whole question of the First Amendment.

Yeah, and there were a lot of justices, I thought, who were actually really skeptical about this content manipulation, justification. Even lot of justices, I thought, who were actually really skeptical about this content manipulation justification. Even Roberts, Kagan. I mean, there were just a number of moments where they seemed. But Gorsuch was dubious about, I think, all of the government's arguments. But there was more consensus.

And I imagine that if they do rule for the federal government, they're not going to ground that ruling in a content manipulation rationale. Yeah, so those were the general themes. A few other assorted thoughts. At some points, there was a concerning suggestion that this law has nothing to do with the First Amendment and doesn't trigger any scrutiny because the law is

about corporate form. That is, who owns the corporation and not speech. And that just cannot be right because what if Congress wrote a law that required owner divestiture of X or the Washington Post, a hypothetical that was directly floated in the briefs in the argument. And the justices and the advocates

understood and wanted to say that that wouldn't be permissible, which is nice to hear, because of course, what if Congress required that we sell our interest in strict scrutiny to say, Sam Alito, that seems bad. But even if it's just about foreign corporations, there's Politico, BBC, Oxford University Press that all have foreign ownership.

And Solicitor General Prelogger acknowledged that sometimes speaker-based targeting or laws can be content-based if they are premised on, well, what are the owner's views, in which case it would be subject to strict scrutiny. And she also distinguished social media companies from newspapers. She was as ever fantastic.

And by the end, it seemed like the justices got this, hence their interest in the data collection rationale rather than content manipulation. And I have to say, I'm going to say another nice thing about Noel Francisco. I don't know what has gotten into me today. But I thought that he made some pretty strong statements about the kind of categorical impermissibility of the

idea of the federal government seeking to force ownership changes or otherwise interfere with broadcast media and some of the ones that are, you know, the BBC or actually I didn't realize that Politico had a non-U.S. owner, but that came up a couple of times in the oral argument. But other entities were name-checked, the Washington Post and X and CNN and MSNBC. And I just hope that some version of that rationale or important qualifier makes it into whatever the justice is right here. And I actually did think it was important that Francisco came out as strongly as he did on that point.

And yes, he's representing a private client here and was making those arguments presumably because he thought they helped TikTok. But he's also Trump's former Solicitor General and I think does have cred remaining in that world. And so I actually really appreciated those presentations. Yeah, I mean, there's some possibility honestly that the justices don't write anything in the case and just deny emergency relief and allow the merits of the law to come up later. And given what was happening at oral argument, I'm not sure that would be the worst thing ever. at oral argument, I'm not sure that would be the worst thing ever. During the United States federal government's argument,

Kagan, Gorsuch, and Roberts evince some skepticism just about the content manipulation rationale. They noted that it would suffice to have a disclosure about how TikTok is Chinese-owned and the algorithm is subject to Chinese control and that everybody knows that social media companies manipulate content. So there was that whole line of discussion.

But still, the court has the option of upholding the law based on the data collection rationale. Though it would have to say something about the fact that the law also seems to be motivated by a rationale that is about speech, and that could and should trigger First Amendment scrutiny. And so how they decide to do this balancing act I think is going to be really interesting. And will I think direct the way we think about how they're going to interact with other social

media platforms going forward, especially since they've basically avoided any big pronouncements on how the law and the Constitution ought to interact with social media platforms. So do we want to venture some predictions maybe? As I mentioned, I think the court is going to deny the request for an emergency injunction. The question to me is just the vote breakdown. I think Justice Gorsuch was the most skeptical of the law, maybe after him, Justice Sotomayor. I just don't think there's a way for them to get to five for an emergency injunction based on what seemed to be happening at the argument. LESLIE KENDRICK There did seem to be some possibility, and I don't think we've talked

about this yet, that the court considers some sort of temporary or administrative stay. The federal government was asked about this. Prelogger was initially noncommittal about it, and then later Alito pressed her, and she basically said, kind of like, you guys can make up whatever you want, I think is what I heard her to answer him. I'm on my way out, right? You guys just turn the lights off when you're done. Thanks. Exactly.

And, you know, look, if they want to placate Trump, and especially if Trump starts making noise about this case in the next couple of days, I don't think it's out of the realm of the possible that they try to do something to punt on this until the beginning of the Trump administration, whether they could do that in a way that's not totally lawless, I think, not totally clear.

But I would not rule out that possibility. If they do, that is like bow to Trump's preference on the basis of who knows what, this would seem to vindicate the ultimate instantiation of the unitary executive theory, right? The one true executive theory that is unitary, not just in a single moment, but across time and space, and that it's always Republican and always Donald Trump. That part.

I think this, yeah, that this would be pretty decisive evidence that that, in fact, is the real unitary executive. Yeah. Well, related to that point, Leah, I actually think given Donald Trump's level of interest in this case, and we'll talk more about that in a minute, I think there's very likely to be some kind of showdown between whatever the court does here and the incoming Trump

DOJ. Because if they decide to uphold this law, the Trump administration could simply say, like, I'm not enforcing it. And then you kind of have this really interesting Cooper versus Aaron showdown. Who is your true king here? Is it me?

Or is it this constitution of which you speak? So that's, I think, going to be interesting. I also think, just as a practical matter, kids are going to lose their minds once the TikTok goes away. Sales of VPN software will skyrocket as teens and others flock to traditional browsers. They're like, why can't I hold this in my hand? And they try to figure out how to get into the Chinese server in order to see all these

dances again. And so, yeah, I think ultimately what's going to happen as a practical matter is like, I think they're going to spin off a TikTok US arm and it's going to be purchased and the algorithm is going to be purchased by some private equity firm. That's what prelogger said at the end, like they're right now they're trying to win in the Supreme Court so they don't have to do anything. And if the Supreme Court does not give them what they want, then there's a very good chance they just actually do proceed as the law contemplated and find another buyer and everyone gets to watch their dances, no harm, no foul.

We'll add another king to our tech broiligarchy. I can't wait. Maybe not another king. Who will it be? Maybe someone in the tech broiligarchy will purchase it back. That's true. Right, yes.

All right, obviously this is a very high profile case and was always going to attract a lot of amici attention and outside attention. But we did want to draw your attention, listeners, to one specific amicus brief. And that specific amicus brief was literally filed by our favorite friend of the court, one Donald J. Trump.

That's right. John Sauer, the guy who argued Trump's immunity appeal and who is Trump's immunity appeal and who is Trump's nominee to be the Solicitor General, filed a brief on the president-elect's behalf and Noel Francisco gave that brief a shout out in his opening argument because it's very pro-TikTok. I take it that the shout out was just a Hail Mary to get Sam Alito's vote because the brief is utterly insane and wild. You know, at a 10, Alito's vote, because the brief is utterly insane

and wild. At a 10,000-foot level, I think the brief is ultimately incoherent and lawless, because it asks the Supreme Court to pause, maybe stay, maybe enjoin, unclear what the mechanism is, the effective date of the law in order to give Trump more time to just work this whole thing out in the political process, in part by delaying the effective date of the act. The brief had real, I alone can fix it vibes. I mean, just put me in, coach.

I will solve this with, I'll solve this whole thing. The vibes it was giving me was, these guys huff a lot of paint. Um, like the problem with letting Donald Trump fix this law is that this is not how any of this works. Like the court could only enjoin the law in part if it concludes the laws unconstitutional. It seems as though Trump is asking the court to do this so he himself can do something unconstitutional and potentially unconstitutionally suspend the law. At one point, Justice Sotomayor brought this up saying,, saying, I'm a little concerned about the suggestion

that someone wouldn't enforce this pretty clear, specific, targeted prohibition in a statute. So those were big picture concerns. I also had some smaller nits. In addition to thinking the entire thing was banana republic nonsense, it reads, quote, such a stay would vitally grant President Trump the opportunity to pursue a political resolution. What does it mean to vitally grant something?

It's just word salad. There are other specifics in the brief that are worth pointing out. It further cites Trump's, quote unquote, consummate deal making authority, end quote, as a reason to suspend the law to allow Trump to work this out. I honestly would have given him street cred for this if he had cited the art of the deal. If he had cited the art of the deal, I'd be like you're a fucking legend John Sauer. It's not like beneath him, like this brief is definitely happy to cite art of the deal. I mean like just go just fucking go do it. Just cite art of the deal. That was a missed opportunity. It was right there. Anyway, the full quote is that quote,

President Trump alone possesses the consummate deal-making expertise, the electoral mandate, and the political will to negotiate a resolution to save the platform, end quote. And maybe the world. Instead of citing the art of the deal, John Sauer chose to substantiate the claim of Trump's consummate deal-making authority by maintaining

that Trump's first term, quote unquote, highlighted by a series of policy triumphs achieved through historic deals, and he has a great prospect of success in this latest national security and foreign policy endeavor, end quote. Oh my god. I mean, that's the general tenor of the entire brief. I am going to just read a couple of other select quotes.

OK, try to keep a straight face. Please. Quote, President Trump is one of the most powerful, prolific, and influential users of social media in history. Missed opportunity to say the most powerful. Missed. He's going to get dinged for that. I bet Trump is not happy with that qualifier. That's right.

Consistent with his commanding presence in this area. Okay, next quote. President Trump is the founder. I mean, there's a factual claim here, but he of course is going to be embellished in the most preposterous terms. He says, President Trump is the founder of another resoundingly successful social media platform, Truth Social. I mean, Americans of all stripes, this is the handiwork of the next Solicitor General. I just can't imagine putting your name to a document like this and walking with a straight face into the Solicitor General's office assuming he's got to be confirmed by the Senate, but I'm sure he will be. Exhibit A.

He's going to have to be a Senate questionnaire. This should make him unconfirmable. I think the Senate Judiciary Committee just needs to read excerpts from this brief to him. Please, staffers, make that happen. Yeah. I mean, because basically the proposed per curiam order that this breach is suggesting is basically something that reads, quote, recognizing the boundless genius of Donald

J. Trump, we merely shred volumes of settled law and delay the congressional deadline, end quote. So ordered. Yeah, we cannot rule out the possibility that John Sauer, in his first argument, if he is confirmed as Solicitor General, would ask the court to do something like take judicial notice of the fact

that Donald Trump is the greatest president ever, who won with the biggest margin ever, and draws the biggest crowds known to humankind. I think that gets five votes. This is a brief. I don't know, four. Definitely four. At least four, as we'll talk about in a bit.

This is a brief that functions as fan service. Only fan service. We're like a week into January. I can't believe this is our life. OK, I know we've already delved a little bit into the substance, but let's go a little deeper. Because on the actual substance, this brief is a little terrifying.

So it maintains that the law is constitutionally suspect because it is a legislative encroachment on presidential powers. Why, you ask? Because Congress made a decision about TikTok in a bipartisan fashion. And apparently, making decisions on policy is something that only the president can do.

Didn't Congress do this precisely because Biden tried and kept getting fatted down by court? I mean, Biden did try to do something to address TikTok through executive action. But of course, he's a Democratic president. So that is a salient difference. And why else is this congressional action here to legislate a problem?

Well, because it requires the president to make certain determinations by following certain processes, specifically an interagency process. And that can never be OK. So there. This is clearly an extremely expansive view of presidential power that would disable Congress from acting across a range of matters. Which seems to be the point. Like very Reichstag burning. Yeah. And this is coming from the incoming president and you know his

nominee to be Solicitor General, the lawyer for the federal government, the United States briefs for the next four years are going to be really fucking epic, if this is any indication. Because we can all hear a sound in the distance, and that is Elena Kagan's head exploding, or maybe her absolutely demolishing some Sauvblanc while murdering a punching bag at the prospect of having

this guy lawyer for the federal government for the next four years. The other sound you're hearing is Elizabeth Prelogger just sitting there smoking a cigar singing, you could have had a bad bitch. Oh yeah. Truth hurts. Like what a step down. What a downgrade. We actually need to have a real huddle ourselves and with Melody about what we're going to do about the, because we played a lot of prelogger audio on this podcast for good reason. We're going to play this shit too. Whatever.

It's going to be all diss tracks. All diss tracks. Fair enough. OK. All right, let's put aside Justice Kagan's understandable audita for the moment, because will none of you bitches think of Sam Alito and what he is going through? This man is being pulled in two directions. On the one hand, he desperately

wants to ban speech and joy and K-pop inspired dances. On the other hand, he wants to give DJT a political win by allowing the president and king to save TikTok. So what is a justice to do? Strict scrutiny is brought to you by Zebiotics Pre-Alcohol. I've had to face it, after a night with drinks, I just don't bounce back the next day like I used to. I used to think I had to make a choice. I could either have a great night or a great next day. That is, until I found pre-alcohol. Zebiotic's pre-alcohol probiotic drink is the world's first genetically engineered probiotic. It was invented by PhD scientists to tackle rough mornings after drinking. Here's how it works. When you drink, alcohol gets converted into a toxic byproduct in the gut.

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strict at checkout. Zbiotics is backed with 100% money back 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 a code strict at checkout for 15% off. Now for some other core culture we wanted to tick-tock through. So as suggested up top, red flags abound in this core culture segment, including the first bit, which is going to concern friend of the pod, Samuel Alito, and friend of the president elect, Donald Trump. So ABC News reported that on the day before, Donald Trump filed his request with the Supreme Court to stay his New York sentencing for his felony convictions. He had a phone call with one Samuel Alito. Hmm. Curious.

So the phone call Alito said in a statement to ABC was because, here I'm quoting Alito, William Levy, one of my former law clerks, asked me to take a call from President-elect Trump regarding his qualifications to serve in a government position. Levy is reportedly being considered for positions such as general counsel of the Department of Defense. Alito continued, we, meaning he and the president-elect, master dealmaker, we did not discuss the emergency application he filed today and indeed I was not even aware at the time

of our conversation that such an application would be filed. We also did not discuss any other matter that is pending or might in the future come before the Supreme Court or any past Supreme Court decisions involving the President-elect? Okay, so here's, of course, you guys are going to just like laugh me off the show, but even if that's true, he doesn't say the conversation was limited to this reference check, right? Like they could have talked about the stolenness of the 2020 election. They could have, right? I mean, I don't... Flags. Could have talked about retirement plans. They could have, right? I mean, I don't- Flags. Could have talked about retirement plans.

They could have talked about flags. I don't know, but it's not, it is a very careful statement. And again, maybe that's, it's ridiculous, even to credit it as potentially true, but even if it is, I'm not sure it's as exculpatory as Sam Alito seems to think. So I gave a quote to John Karl in the ABC story, but I will say that I was asked about the general topic

of a justice talking about a law clerk and then a follow-up question about talking to the president or a president-elect about a law clerk. And I said, look, justices do give references. That's definitely true, but it is highly unusual if it's a president or a president-elect, especially Donald Trump. But now that I know the full context of the story,

including the fact that the law clerk in question is a former official in the first Trump administration, I would like to officially ratchet way, way, way up the concerns that I had about the propriety of the conversation. I'm going to just offer this assessment. Justice Alito is literally playing in our faces. Like one, I had no idea he was going to file a petition before us. Like, sir, do you, like, have you been alive for the last eight years? Like, this man is the most litigious person on the planet.

What are you, of course he was going to file a petition at the Supreme Court. So- Everyone knew it was coming. It was reported that it was coming. Everyone knew this. Anyway, so he's basically just like, I've been asleep, like, rip fucking Van Winkle for the last five years. Anyway, so there's that. He's basically just like, I've been asleep, like rip fucking Van Winkle for the last five years.

Anyway, so there's that. It also beggars belief to think that the president elect, who at the time was preoccupied with his presidential transition, picking terrible nominees for various offices, trying not to become the first felon president, saving Tic Tac with his master deal making, and also orchestrating the largest mass deportation event

on day one, that this guy has the time to make general reference calls. But also maybe invading some foreign countries or launching plans to invade several foreign countries. This is the guy that has the time to do a reference check for someone who actually served in his first administration anyway. This is so fucking dumb.

Stop treating us like we're stupid. Yeah. Jeez. Anyway, it was playing in our faces. It was trolling the whole fucking dumb. Stop treating us like we're stupid. Yeah. Jeez. Anyway, it was playing in our faces. It was trolling the whole fucking country. Trollito. So Trump is also well known for staying on message and not deviating from the topic.

So we should be very confident that he stuck to only talking about the reference and that there would be no tangents whatsoever. Did you see the Times follow up, which is that when they first got on the phone, Trump was confused and thought that Alito had called him, which made me think actually there is a little bit more to the story than, I mean, in all the ways, but even in terms of like the kind of choreography of it that maybe technically Trump placed the call or his staff did, but actually that's that Alito reached out

to indirectly elicit the call. You know, this reminds me of Wilbur Ross being like, no, no, the Justice Department asked us to put the question about citizenship on the 2020 census when actually the record revealed that they went to DOJ, the Trump underlings at commerce went to DOJ and said, please ask us and then, so maybe this was like that.

On the other hand, maybe we should assume everything was fine because Donald Trump and Samuel Alito are well known for staying within ethical lines. So we shouldn't at all be concerned that the president-elect and one of the Republican justices, who cleared the way for him to appear on the ballot and ensured he would face no legal accountability before the election, had a phone call

as the president was asking the court to stave off ballot and ensured he would face no legal accountability before the election. Had a phone call as the president was asking the court to stave off the limited legal accountability he was going to experience. Basically, House Alito clearly making a new flag. And instead of vergonia, this is just a gigantic middle finger that says, F you to the rule of law and all of you suckers who believe in it. So there we are.

All right, speaking a friend of the court, Donald Trump, let's tick through some of the various updates in the legal cases against Donald Trump. So let's start off first with America's Next Top Scodus Justice Eileen Cannon and her various legal cannonballs. So as you know, listeners, Special Counsel Jack Smith prepared two reports to be transmitted to Attorney General Merrick Garland. And these reports were about the two

federal cases against Donald Trump. One was the January 6 election interference case. The other was about obstruction and the misappropriation of classified documents and their storage at Mar-a-Lago in a bathroom and other unsecured locations around that beach house. And then the plan was that Attorney General Garland, once in receipt of those reports, would decide whether or not to release them. So enter Eileen Cannon, who decided that, in fact, it is a decision for her, America's next top SCOTUS justice, whether these reports should be released. And to be very clear, the documents case is no longer pending before Judge Cannon because she dismissed it. The case is currently on appeal to the 11th Circuit, which is not Eileen Cannon. And to underline that point, when you dismiss

a case that is subsequently appealed, you no longer have jurisdiction over, meaning any power over, that case. But that did not stop Eileen Cannon. LESLIE KENDRICK Despite the fact that she does not have jurisdiction over the case, Judge Cannon issued an emergency order, that's order in air quotes, temporarily blocking transmission of the reports to anyone outside of the Department of Justice. In issuing the order, she also blocked the release of the report concerning the January 6 election interference case, a case that was never under her jurisdiction. That case was under the jurisdiction of Judge Tanya

Chetkin of the DC District Court. No matter. Judge Cannon contains multitudes, and she blocked that one too. Has she just appointed herself to the DC District Court and elevated herself to the 11th Circuit to give herself appellate jurisdiction over her own cases?

Like, is she going to stay the TikTok man while she's at it? Maybe she's the consummate dealmaker here. Right. Don't count a lady out. Yes. Yes. Her consummate dealmaking authority, her consummate legal acumen.

This is the definition of lawless. Like, she has no jurisdiction, no power or authority over the case. She can't just insert herself into executive branch prosecutorial deliberations, which I was led to believe were exclusive executive branch functions under Trump versus United States, the immunity ruling. And this order is two pages, says nothing about why she has jurisdiction in a case she has dismissed that is on appeal and has no analysis of the merits.

So last Thursday evening, the 11th Circuit, which actually does have jurisdiction over the case right now, denied Trump's motion for emergency relief to block release of the reports. But it also refused to vacate Judge Cannon's order, which lasts through today, that is Monday. So the co-defendants and Trump may ask the Supreme Court for emergency relief to take effect after Cannon's lawless, jurisdictionless, whatever we're supposed to call what she did, order thing expires. I guess just to sum it

all up, it's a mess. It's likely headed to SCOTUS where I'm sure they will improve matters dramatically. Can I just say one thing? Again, I think A.G. Garland could have done a little more here. So the reason why A. why AG Garland doesn't want to release the Mar-a-Lago's document report is because there are two other co-defendants that are discussed in it. And it's very likely that once the Trump DOJ comes in,

they're going to dismiss those cases against Walt Nauta and Carlos de Oliveira. So why doesn't the DOJ just dismiss them now? I'm just saying, just dismiss them now, and then you don't have that issue and just release the report. Because I actually think there is a public service in having the American public know what happened, who is involved, what they might know or think about,

what Donald Trump might have been doing or wanted to do with those documents. I think that's important in the same way that the election interference stuff is important. Yeah, but I think in some ways even more so because we had the whole January 6 committee and its report and the the same way that the election interference stuff is important. Yeah, but I think in some ways even more so because we had the whole January 6 committee and its report and the public hearings as to the election interference. I think people know less, apart from like they know obviously the insane photographs, but they know less about that story

and it would be useful for it to be a part of the public record. So in any event. All right, so speaking of Trump demanding presidential treatment in the lead-up to assuming office when he's not, in fact, yet the president, and also speaking of lawlessness, Donald Trump's nominee to be Solicitor General, John Sauer, who we were just talking about, along with Todd Blanch, who is his pick to be the Deputy Attorney General, filed another banger of a brief asking the Supreme Court to block Trump's sentencing on the New York State charges against him, for which he has already been convicted. Trump's claim seemed to be that in light of the Supreme Court's decision in Trump versus United States, he was immune from those charges, which, you know, there was a little bit of evidence that related to his time in office, but the conduct for

which he was convicted way predated his time in office. And at least so far, the immunity ruling from last summer does not extend to pre-presidential conduct. Unitary executive in time and space, Kate. For Republicans. Yeah. I'm sorry. I'm catching up.

All right. I'm going to interject here just to say that there's a really kind of funny side note to put out there. And again, this sort of just relates to the level of lawyering that's going on. On page 22 of the cert petition to the United States Supreme Court, future Solicitor General Sauer and future Deputy Attorney General Blanche made a pretty unfortunate typographical

error. In referring to President Trump, they regrettably left off the T in Trump. So the sentence reads as follows, quote, when he communicated with the public on Twitter during his presidency, President Rump possessed actual authority, end quote. I am not making fun of this.

Really, I'm not, because we've all been there. There's many, any lawyer can talk about a time when they allowed statute instead of statute not because we've all been there. Any lawyer can talk about a time when they allowed statute instead of statute to remain in a brief or maybe pubic instead of public. The possibilities are boundless. It could happen to anyone. But I'm kind of glad it happened to them

because it was pretty funny. It was really funny. To the substance of the petition and the court's response, in a five to four decision on the shadow docket, the court rejected claims of pre-presidential immunity, noting that the arguments Trump raised could be addressed in the ordinary state appellate process, given that they were challenges to evidence that

had already been introduced. And observing the New York judges' stated plans to give Trump an unconditional discharge, meaning no real penalty, meant that the sentence was unlikely to impose on Trump's duties as president-elect. So basically, five justices said that Trump's claims of needing presidential immunity were pretty weak sauce, given the likely penalties here.

And still, Donald Trump managed to get four votes for his argument. Where in the Constitution does it specify pre-presidential duties, president-elect duties? It doesn't. Basically, by just one vote, SCOTUS narrowly rejected the claim that this president can do whatever he wants, whenever he wants,

in whatever way he wants. Once again, democracy hanging by a single vote. And let's talk about who the five and four votes were. So the chief and Justice Barrett joined the three Democratic appointees in the majority, ruling against Trump. And Justices Thomas, Alito, Gorsuch, and Kavanaugh were in dissent.

It should also be noted that on social media, the face-eating leopards were pretty much going after Amy Coney Barrett's face. I mean, the misogyny, again, not my favorite justice, but even I was like, whoa, these are your people. And they were going all in on her. She's not smart. She's dumb.

She's a DEI pick. I was just like, I thought you only did that to us. Apparently not. Yeah, I mean, a part of me wonders when or if Donald Trump is going to go on an angry tirade about how the chief votes with the four women on the court, just going all in on the men's. He's no Arnold Palmer. Right.

Exactly. You know, my first thought on seeing that it was a 5-4 vote was, this is shameful. And then I quickly corrected myself to realize it's just shameless. The BS in the court's order goes beyond the fact that Trump's petulant tantrum received four votes. It's also that one of those votes was from, wait for it,

Justice Alito. That's right, the very same Justice Alito who had spoken to the president-elect about the president-elect deciding whether or not to hire one of his former clerks that the president had actually earlier hired in his first administration just two days before. It's just a reference check. No big deal.

And just in case you're not familiar with how this kind of shadow docket works, there is no requirement that the justices who disagree make their votes public. Sometimes they don't. So this was a choice by the four dissenters to let the world and probably really mostly one person know they would have granted

Trump's request here. So it was a choice. I think it was a display of loyalty. I had been foolish enough to think that Sam might experience some brief period of vergonya after the revelations of his phone call, but nope. And it's genuinely chilling. LESLIE KENDRICK He had to establish his loyalty and cred so that he could remain in contention for the title of future Prince of Greenland and eke that out from the White House's pet ferret, who might also be wanting that. That's Elon Musk, in case that wasn't clear.

So a few other thoughts about this order. I think the court and the chief should receive zero credit for rejecting this application on a 5-4 vote. You do not, under any circumstances, have to hand it to the court that guaranteed Trump would face zero accountability for the insurrection, ensured he'd be on the ballot, and then ensured

he wouldn't face trial before the election. I am looking at you, New York Times, which called the decision a, quote, surprising show of independence. Come the fuck on. They wrote in the order that the sentencing was only OK because it was meaningless. Like he was going to get an unconditional discharge,

and it would be remote. Should we just call him president, unconditional discharge? I think that has a nice ring to it. It does. I like it. It goes with bone spurs. It does go with bone spurts.

The fact that Trump got even one vote was going to be concerning. The fact that it's four is just, wow. As you were saying, Kate, democracy hanging by the balance of one vote. The court is just one vote away and occasionally has a majority, if not a super majority, for just acting like an instrument of a one party state.

It's basically functioning as a PAC, a political action committee for the Republican party. And John Roberts did nothing about Alito's participation. You know, again, speaking of why he shouldn't get credit, like he should have told Alito, recuse yourself bitch and he didn't. And Alito could have recused his- What if he did and Alito was like, make me.

And then John, like I don't fight. What do you do? He would just say, I'm not fucking releasing this order while your name is on it. And Alito's vote didn't even matter. His refusal to recuse, his insistence on still participating is just rubbing the corruption in our faces.

It is an ostentatious defiance of any norms of ethics and law. It is just a middle finger to the rule of law and a sign of how powerful they feel themselves to be and what they think they can get away with. They are definitely feeling themselves. I do have a question about whether the Chief Justice and Justice Barrett would have gone along with the liberals in rejecting this petition if the Trump Alito phone call had not come

to light the night before. I mean, again, I just like because the phone call looked like such shit. Like the optics were so terrible. You think even they might have been like, Whoa, like again, like we got to go the other way. It's possible. Yeah. I mean, I hope that

Without the phone call we have the same vote and that this was too much even for the chief and Barrett But I don't know does it remind you of the disposition in the census case? Remember like at oral argument in the census case it seemed totally like the chief justice was on board to allow them to put the question on the census and then that revelation came out about the Republican strategist and that cache of documents that made the whole thing look so nefarious. And then the Chief Justice wound up writing an opinion. That was sort of, I guess, gradually. Adding a portion to the already written opinion

that's been really coming here with other parts of it. It felt really tacked on. Right. That was like an actually opposite outcome from what I have been saying. Yeah, what I already have written. And one other thing this reminded me of is the recent reporting on Fisher, where remember,

the New York Times and Joe Biskupic said Justice Alito initially had the assignment in Fisher, the January 6 insurrection case. And then all of the information about his affinity for Stop the Steal flags came out. And all of a sudden, the chief ended up with the opinion. I mean, I think bottom line, we don't know, but it does. It certainly underscores how important journalism is

and revelations about the court in particular. So we've had great scoops from ProPublica, from the New York Times, ABC, now getting in the mix. And I hope they all stay on this beat. Yeah. So just to again bring this all back, this order suggests there are four votes for the proposition that if Donald Trump wants it, it's constitutional. At the same time, it is unconstitutional for Donald Trump to face accountability.

We knew going in, the sentence was going to be unconditional discharge, and yet four justices still wanted to halt it. But John Roberts wants you to know that the real threat to the judiciary and its reputation is people criticizing the court and raising questions about the court's ethics and integrity. That's right, listeners. We are now going to talk about the chief's year-end report.

And we have a couple of questions. Is this just deluluness or just straight up gaslighting? Hard to say. Either way, it doesn't inspire a whole lot of confidence about the steady hand of one John G. Roberts at the wheel as we stand at the precipice of Trump 2.0. So the year-end report is vague. It is gauzy.

It is passive aggressive. It's also full of false equivalencies. It details both the drop in the public support for the court, as well as the rise in threats against federal judges, as though those things are the same and somehow related in some particular way. We want to make our position here very clear. The drop in public support for the court

perhaps is healthy and justified because the court is really doing some crazy stuff. Threats of physical violence against judges, that is unacceptable. So it is not hard to draw a distinction between these two things. You can criticize the court and its members for having emotional support billionaires

or maybe taking phone calls that they shouldn't. And you can also abhor the prospect of people trying to hurt federal judges doing their jobs. So not hard. And yet Roberts manages to collapse this distinction by suggesting that serious critics of the court are responsible for both of these developments, right, like the drop in public support and the increase in threats to

judges, right? So he suggests that suggestions of political bias in the judges' adverse rulings without a credible basis for such allegations might be responsible for threats to judges. He does also nod to the First Amendment and the importance of public debate. He writes, judicial rulings can provoke strong and passionate reactions. Those expressions of public sentiment, whether criticism or praise, are not threats to judicial independence. Also, there's literally a credible basis

for such allegations. How Solito was flying stopped the steel flags. Also, Roberts later seems to conflate criticism with intimidation, such as when he writes, quote, attempts to intimidate judges for their rulings in cases are inappropriate and should be vigorously opposed. Public officials certainly have a right to criticize the work of the judiciary,

but they should be mindful that intemperance in their statements when it comes to judges may prompt dangerous reactions by others, end quote. Dude, have you read any of Justice Scalia's writings or your own fucking dissent in Obergefell, the marriage equality decision lately, which you referred to as an act of will, not legal judgment. He said it relies on the court's own desire to remake society,

was a naked policy preference imposed under law, et cetera, et cetera. So this lack of self-awareness, petty passive aggression is pretty stunning. John Roberts does not see it, or he's not willing to acknowledge the possibility that perhaps the court itself and its decisions and the conduct of its members is really

what's at the root of this drop in public support. And the suggestion that strong criticism of the court should be tempered because of what third parties might do is actually genuinely chilling when you think about the role that dissent generally has played in just ventilating other viewpoints within our society over space and time, I mean, history and tradition. People have been allowed to say, that sucks.

Well, I thought the court was so protective of the First Amendment. It turns out just for billionaires. It's like the executive power, but only for Republicans. Basically, John Roberts isn't happy that people have lost confidence in him and the institution. He is nominally in charge of. And people have lost confidence in it because of a series of lawless partisan actions by Roberts and his colleagues,

like four justices insisting their king can face no consequences at all for no apparent reasons whatsoever. But Roberts wants everyone to know that the loss of confidence is not his fault, it's yours. Because having declared presidents lawless kings, the chief wants to make sure Supreme Court justices are kind of as well, like they too are above criticism. It's gross. Strict scrutiny is brought to you by Cook Unity. I'm a planner, shocking I know. And

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That's 50% off your first week by using code strict or going to cookunity.com slash strict. Alright, onward to a more enlightened and nuanced writing by someone far more thoughtful than John Roberts. For our final segment, we are delighted to have a special court culture segment that confirms that yes, intelligent life still exists on this planet. We're going to be talking about Michelle Adams' fantastic new book, The Containment Detroit, the Supreme Court and the Battle for Racial Justice in the North. The book is an in-depth look at the many forces that went into the case that is largely responsible for the defanging and whittling down and then

weaponization of Brown v. Board of Education. The book is a fantastic read, it is exhaustively researched and riveting and beautifully written, and it illuminates the many different challenges that are part of any change. At a time when the Supreme Court recently took a big step toward reinforcing segregation by making affirmative action programs prohibitively difficult to sustain against legal challenges, the book helps us understand how we got here. And also here to help us understand how we got here

is the book's author, Michelle Adams, the Henry M. Butzel Professor of Law at the University of Michigan. She is a former colleague of Kate's at Cardozo Law School and a current colleague of Leah's at Michigan, as I just said, and my former neighbor in Brooklyn. So Michelle, welcome back to the show. It's great to be here. So Michelle, in the preface of the book,

you write that this project partially grew out of your experience as a con law professor, where you would talk to your students about Millikan versus Bradley, the case on which the book focuses. You say that Millikan is really important, but you felt that in teaching it, you weren't conveying that importance to your students,

which is why you decided to write this book. Can you give our listeners a sense of Millikan and why you think it is so important for the way we think about race, segregation, and integrated society today. I think Millikan versus Bradley is the single most important case in understanding what happened to Brown versus Board of Education. We all take a tremendous amount of pride in Brown.

It's part of our civic religion. It's part of what we think about when we think about American citizenship. And then we start asking questions. And the questions are, why are our schools so segregated still? What happened to Brown? Millikan versus Bradley unlocks a huge portion of what the answer to that is. And I think that's one of the reasons why it's so important. Could you give our listeners like a sense of what the case of Millikan is about? That is, what it was a challenge to and why it had the potential to really change the makeup

of American schools. So let's go back and let's tell the story. And this is the story that I tell in the book. And I do it in a narrative style because I'm really trying to pivot and open this story up to as many readers as possible. But let's go back, if we will, to 1970, and a moment when the Detroit Public School Board

decided that it wanted to basically integrate the schools. And so it adopted a very limited integration plan and sort of all hell breaks loose. And the state of Michigan actually passes a law that voids the limited integration plan the city had decided to adopt. And it feels kind of southerly, feels kind of selfish for the state to pass a law like that. And the NAACP gets interested and they end up suing saying, well, you know, you can't have a law

that basically says you can't integrate the schools. It feels like what they do in Mississippi, not what we do here in Detroit. But what happens is the case gets much more complicated really quickly when they decide they're not gonna challenge that state law, but they're gonna challenge the existing segregation in Detroit's school system. And that's when it gets bigger. And the question becomes, how do we prove that there's been a

Brown violation essentially in a Northern urban school district? And you have to really focus on the fact that this is a moment of just extraordinary possibility, right? The Supreme Court basically issued Brown in 54, issued Brown II in 55. There's a case called Cooper versus Aaron, which has to do with Arkansas in 58. And then there's a case out of Virginia, the Green case in 68. And that's really all there was.

So when it comes to this idea we're going to show that there's a Brown violation in the North, the Supreme Court hadn't said anything yet. And so the question becomes, well, what do we do? How do we prove this case? And you've got these talented lawyers who are trying to figure all this stuff out. And if it had just been that one law

that voided the integration plan, it would have been an easier case. But this is about why are the schools in the city of Detroit, which have about 275,000 students, why this was segregated, how do we prove that case? And they say, one of the things we got to deal with is housing, because one of the big reasons why the schools are so segregated in Detroit is because the neighborhoods are so segregated. So if you have what you say is a neutral rule of neighborhood

school rule, you're going to go to the school where you live, then you're actually incorporating the underlying residential segregation into the schools. Now, the defendants said, hey, that's not a problem because we didn't cause any of the segregation in the neighborhoods. And we don't, how did that happen? We don't know. It's got nothing to do with us, right? It's a big mystery. This is a case for the FBI, as Chris Jenner would say, that segregation. And so they say, you know what? We're going to have a big housing case within a school case.

So it gets really interesting really fast. And the housing case, which is about 10 days in the school case, basically is the story of Northern Jim Crow. They basically put Northern Jim Crow on trial. So it's redlining and segregation walls and racially restrictive covenants and two separate brokers associations and no co-broking and all this kind of stuff. And it's all the things that happen every day all around the country, not just in Detroit. And you've got this district court judge

who initially thinks the NAACP get out of my courtroom, but he's open to facts. And so they put this housing case on. Open to facts? Yeah. I was about to say it again. The evolution of this judge is part of the story. You mentioned it's partially like a story of possibility.

And it was like, well, there used to be a time when you could convince judges based on facts and principle to rule against their priors and it was an inspiring story that read a little bit like fiction though it happens to be non-fiction but yeah. Yeah I mean the thing about this guy is it's really interesting because he was he was a the the democratic party had a very strong conservative wing and that's where he was. This guy considered himself to be a conservative, but he's a very mid-century sort of open-minded conservative and he didn't understand how segregation happened, but the lawyers explained it and it's a moment of great pride that we should

all have in great lawyering to put on a 41-day trial and to explain the mechanisms of Northern Jim Crow and what was happening in the city of Detroit. Okay, so that's the long story background to what happens. Judge sort of has a come to Jesus moment, decides that in fact, yes, the school district is very segregated. They prove their case. Then the question becomes, well, what should the remedy for that be? Right? So the schools are about 2 thirds Black, white folks are continuing to leave the city. This judge thinks Brown really matters. This judge takes Brown seriously.

This judge thinks that meaningful integration means meaningful integration. And there was a lot of information that came out in the trial that suggested that the suburbs, in terms of residential segregation segregation were benefiting from it and engaging in it. In fact, the containment, which is what my book's title is, is really the idea of residential segregation that's kind of spreading and spreading and spreading. And so by 1970, the containment line is the is the jurisdictional boundary of the city of Detroit. So he says, listen, I got all this information in the case,

I think we need to have meaningful desegregation. And he says, let's basically create a desegregation plan, a metropolitan one for the basically all of southeastern Michigan. About 800,000 students would have been involved. Around 50 separate school districts would have been involved. It would have been the largest metropolitan inter-district desegregation plan in the history of the United States. We want to ask about the Supreme Court and to go deeper on a couple of things that we talked about. Can I just actually take you back for just a minute and ask? So we came into this asking you about the kind of your pedagogical endpoint, talking to your students

about Millikan. But it's not just as a law professor that you come to this material, right? This is the world that you bring to life in the book is a world you know well as a child of Detroit. So do you want to talk a little bit about that kind of entry point into the story you tell? Yeah, I will do that and then we'll get to the Supreme Court. So I am from Detroit. I was born in Detroit in 63. While this is going on in the early 1970s, my parents had made a choice for me to put me in private school. So I knew nothing about what was going on in the Detroit public schools.

But I sort of am a fierce champion of the city of Detroit. And one of the things I didn't understand until I actually sat down and wrote this book is that one of the mechanisms for residential segregation is redlining and there's a literal segregation wall that is located maybe two miles from the house that I grew up in and I never knew it. And so for me, it was about coming home and about understanding my parents' lives

and the sort of things that they had to deal with, but also understanding what it means to be black in America and to have this opportunity to go back and also to sort of create a love letter to that generation of lawyers. My father was a lawyer and that generation of black Americans and that generation of white folks

of which the judge was one who took seriously the idea that we were one nation, not two. So would you wanna pick back up then that you have this question, this would be a very dramatic remedy. What does the Supreme Court do with the case? So ultimately get to the Supreme Court. And by this time, there's been a change in the court because we're no longer in the Warren Court era, which had been a pretty liberal court. But now we're in the Burger Court era. Nixon wins the election in 1968. He's able to put four justices on the Supreme Court. It's helmed by a conservative, Warren Burger. And we get to the

Supreme Court, we get a 5-4 decision, not overturning the idea that in fact the school authorities had violated the Constitution. That always stood, but overturning the idea that there could be an inter-district metropolitan remedy. The remedy went too far, the court says, and unless and until the plaintiffs could show that each and every one of those suburban school districts had committed acts of segregation or had violated the constitution within the city of Detroit, they couldn't be part of the remedy. So that's really what happens. The idea of sort of having large metropolitan school

district, school remedies for constitutional violations ends in Milliken versus Bradley. So because you mentioned the changing backdrop to the case, I thought we would talk about part of what makes the book so elegant and such an excellent read is that it weaves the proceedings in the case along with the political landscape and social milieu that is developing at the time.

And that includes Nixon making what was effectively a campaign stop in Michigan to campaign against busing as a mechanism for integrated schools. And it's really a campaign against integration that is, of course, deeply enmeshed with this case. It also includes the changing personnel on the court, as you note, including the nomination of Justice Lewis Powell, who, as you know, was involved

in educational law and policy before becoming a nominee. He was on and represented the Richmond School Board. And he would be the one who would push the court to say that school district lines are almost sacrosanct and can't be redrawn by courts. And he also was the one who presciently filed an amicus brief about how measures to integrate schools would result in white flight, a dynamic that, as you note,

the lower courts in Milliken sought to correct. So I guess, can you say more about the relationship between these political and social developments and Millikan and its progeny and what that might say or teach us about how to think about legal change now? I mean, I think things are synergistic, right? I mean, I would just sort of step out of this for a moment in terms of the sort of the discussion of the book

in the narrative and say, it's really important to win elections. Sorry. It's really important to win elections. It's really important to win elections. Great time to remind us of that, Michelle. Very helpful. In this moment of our- Where were you in October?

Yes, in this moment of our discontent, it's a good reminder of how important that is, right? Because I think that justices, we have some discussion, we can have a discussion about Justice Blackmun, who sort of changes over the period of time that he's on the court. But these justices are chosen because of their pedigree. Nixon had run as a sort of law and order kind of conservative. There's a lengthy discussion in the book about strict constructionism.

We don't really know what that means, but it's something. And he had run against the Warren Court. And when he was elected, I think he took very seriously that he was going to take on the Warren Court in terms of the new appointees that he had. And so I think that, you know, there's no question that you've got a synergistic reaction. So you've got what's happening on the ground, you've got what's happening in Macomb County, you've got the fact that people are very upset about what the district court judge has done, you've got Nixon coming to those areas to campaign as he's running for election. And then when he wins, he's actually sort of going after the idea of expansive readings

of Brown, right? Having said that though, and going back and taking a look at the 68 election, I mean, Humphrey lost that election by about 500,000 votes. It's closer than I think people remember. And I know obviously we can have a discussion about Wallace and how many votes, where those Wallace votes would have gone. But again, this is not a situation where just because this sort of crazy liberal judge goes out on a limb, suddenly Nixon wins. I think it's about creating the wherewithal to be able to try

to win these elections nationwide. So, Michelle, part of the story that you're telling in The Containment is a story of backlash and we've seen a lot of backlash in the last couple of years, but this one is very specific and you write specifically about how the Detroit School Board members were recalled after they pushed an integration plan. And you talk about Irene McCabe, who was a white woman who dug in against the district court decision that would have fueled and facilitated integration.

Some of what we're living through now and what we have lived through, again, is a backlash story. So can you share how you came to think about backlash after working on this particular episode of backlash and what insights the containment might offer for dealing with this particular moment where it seems like there's a lot of retrenchment against all of the things that have happened,

modernity, I think, just broadly. And the enlightenment. Yeah. Teach us, Michelle, how are we going to get through this? Because the backlash is backlashing. Yeah. One of the things I talk to my students about or ask them is, what's your theory of social change?

I just taught First Amendment for the first time, and I asked them that. And I do think that focusing on backlash, you have to have a theory of how you think change actually happens. My personal theory is that change actually tends to happen relatively slowly and that it's fairly incremental and that you have advancements and then you have some backlash and then you try to hang on to what you as much as

what you advance and then you go back again when there's a backlash to the backlash. So I think that there's certain, you know, the backlash that we witnessed in the seventies is very similar to what's going on now. But I would also point to something else that's in the book. And that is that there's backlash, but there's also creation of opportunities. And there was opportunities. One of the central tragedies of Millikan, of which there were many, was the fact that once you get

a creation of the possibility of metropolitan relief or metropolitan remedy, you start to have some white suburbanites who are engaging in little d political action, trying to say, well, let's try to create an environment where we can actually have meaningful and successful desegregation. So at the same time, you have backlash by a large number of whites, you also have, you know have movements that are actually positive. And so what I think we want to try to do is try to hang onto those movements that are positive

and pull as many people as we can with us, knowing that there's going to be backlash. The other piece of it is how it gets reported. And this goes, I think, to something that's really important today about sort of the decentralization of our media structure, which is if you go back and take a look at the 1970s reporting on all this stuff,

you look at the Detroit News, the Detroit Free Press, the kind of positive things that were happening in the suburbs were largely happening with women. And there were some white women who were actually, as mothers trying to get together with black mothers to make this possible. And that gets reported in like the women's pages, which are on, you know, that's section C. But it's section A, front page,

where you get all the angry white people. And so part of this is also the way that we portray what is happening, because it's like nobody knew that there were actually white folks who were trying to make this be successful. And one of the things I wanted to do in this book was to pick out people and not say, pat them on the head and say, you've done a great job, but to try to tell a fuller story about what actually happened during

that period of time. So, Verda Bradley, who's a mother of school-aged children, who's the lead plaintiff in the case, is one of the many, many figures you bring to life in the story. But because we are a Supreme Court podcast, I'm going to bring us back to the Supreme Court for just another minute, which is, I did not know that Millikan had been held over together with Nixon versus United States, a case that has obviously been highly relevant recently with the immunity ruling last summer. So that was an interesting fact.

But you also explain how the court's decision in Millikan really took liberties with facts, such as the many factual findings by the district court about how the state had facilitated segregation. And this, the Supreme Court's penchant for taking liberties with facts, is also something we have talked about a lot on the podcast. So in some ways that's it's not a new phenomenon, though it may be, you know, rising to a new level and becoming more frequent. But I want to ask about both that, anything you wanted to say about that, but also just more generally how you came away thinking about the role of the Supreme Court. We've already talked a little bit about the district court and Judge Roth, who comes off,

I think, very well in the book, but the Supreme Court as you are sort of reflecting on the experience of researching and writing this book. I've gone back and forth about thinking about the Supreme Court. I've been thinking about the Supreme Court for a long time. You know, I've gone through periods of thinking that we really don't need one. Sounds good right now. Not just this one, but just generally.

What's the value add there? Net negative. One of the things I think a little bit about is Justice Souter's commencement speech that he gave at Harvard University, I think it was around 2010. He talks about why judging is so hard. But what it also reminds us about is the importance of asking ourselves when we nominate people to not, who are saying things like, it's just calling balls and strikes to recognize that that's not going to be a person who is going to understand

the fulsome importantness of the role and the empathy. There's a lot in my book about sort of judging and what good judging looks like and about the importance of Black judges and the empathy. There's a lot in my book about sort of judging and what good judging looks like and about the importance of black judges and what their superpower and what they brought to all of that. And so I guess my feeling is I wasn't necessarily so surprised that they took liberty with the facts. What I was surprised about was the distance

between what was shown at the trial court level and what you actually get when the result that you get on the Supreme Court. Because when you read the full trial record and you look at what happened in the Supreme Court, there's basically no relationship between the two. And I think that's really hard. And so I think if my book does nothing else,

it simply puts that into the public record. And I invite everyone to sort of take a look at that as they think about this case and other Supreme Court cases and how to think about the Supreme Court. Michelle, congratulations on what is a phenomenal must-read book. Thank you. Listeners run, don't walk to get your copy of The Containment, Detroit, the Supreme Court, and the Battle for Racial Justice in the North now. And Michelle, thanks so much for spending time with us. Thank you for having me. I really appreciate it. So as you probably know, there are currently catastrophic wildfires raging in Los Angeles.

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