Strict Scrutiny - It's Officially Bad Decision Season

Episode Date: June 2, 2025

Live from Capital Turnaround in Washington, D.C., Leah, Kate, and Melissa wade right into the swamp, breaking down the (very weird, very disturbing) sexual harassment claims against Texas’s ex-solicitor general, Judd Stone and holding their noses to read Coach Brett Kavanaugh’s opinion on the National Environmental Policy Act. Then, the hosts welcome special guests Ambassador Norm Eisen and Emily Amick, author of the Substack, Emily in Your Phone, to talk about the avalanche of litigation against the Trump administration and reproductive rights (and wrongs), respectively.Hosts’ favorite things:Leah: Taylor Swift's letter about buying back her art; Why Is This Supreme Court Handing Trump More and More Power?, Kate Shaw (NYT); Living by the Ipse Dixit, Steve Vladeck (One First); The New Dark Age, Adam Serwer (The Atlantic); Elon Musk’s Legacy Is Disease, Starvation and Death, Michelle Goldberg (NYT)Kate: Beware: We Are Entering a New Phase of the Trump Era, M. Gessen (NYT), How YOU Helped Knock Musk Out of DC–& of Politics, Norm Eisen (Substack); On the Campaign Trail, Elon Musk Juggled Drugs and Family Drama, Kirsten Grind and Meghan Twohey (NYT); Cowboy CarterMelissa: Her incredible shoes from the show; seeing Cowboy Carter; the newest season of Just Like That; Original Sin by Jake Tapper and Alex ThompsonEmily: Nine Perfect Strangers (Hulu); Everyone Is Lying to You by Jo Piazza Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 6/12 – NYC10/4 – ChicagoLearn more: http://crooked.com/eventsOrder your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad VibesFollow us on Instagram, Threads, and Bluesky

Strict scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-State separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you

heard that right, religious public schools at the Supreme Court in a case we've discussed on the podcast. If you're listening to us, you're seeing the writing on the wall. We can, we must, fight back. Join Americans United for Separation of Church and State and their growing movement because church-state separation protects us all. Learn more and get involved at au.org slash crooked. Mr. Chief Justice, please report. It's an old joke, but when a hardy 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. Thank you so much for coming out for this special episode of Strict Scrutiny live from the Capitol Turnaround in Washington, DC. Let me hear you make some noise. And ladies, I think it needs to be said. This is a very good looking audience. For sure. Very good looking. New York City sure. Very good-looking.

New York City is going to be very jealous. Because you all right now look good. Like, Qatari jet good. I don't know if that's a compliment, given that that was a fucking hand-me-down, but, you know. You know what? You are too real sometimes. Y'all look like an emolument and I love, love, love it. Anyway, we are your hosts. I'm Melissa Murray. I'm Kate Shaw. And I'm Leah Whitman. As Melissa said, we are truly thrilled to be here. So thrilled we decided to break

out a new summer drink to mark the occasion. So. So we tell you what's in it because we're so into transparency. It's ketamine. Melissa, the recipe is classified so we are invoking the state secrets privilege since we hear you can just like do that these days but don't worry this just means you're gonna have to wait a little to hear what is in the recipe when you see it in a bathroom at Mar-a-Lago. Or wait to be accidentally added to one of our Signal group chats.

That will work too. But it still seemed like the perfect occasion to unveil this new summer drink to toast Elon Musk dozing himself. Cheers! Of course, by self-doze we basically mean he quiet quit the federal government, but not really, and then he showed up to work the next day with a shiner. And according to the New York Times, there might have been some bladder damaging amounts

of ketamine involved. Who is to say? On a more serious note, we wanna say we know we have some real, not doge, but real federal government employees, public servants in the house. We know there are folks here from the US, federal government employees, public servants in the house. We know there are folks here from DOJ, from the NLRB, from the EPA. Thank you to all of you for being here and for your genuine service to the public.

And it wouldn't be a live show without some live guests. So we have some amazing guests joining us tonight. We are going to have Emily Amick, that is Emily in your phone, who's going to walk us through some of the latest developments in reproductive rights and the ongoing efforts to perpetrate some reproductive wrongs. We'll be talking about that.

Also with us is Ambassador Norm Eisen, who's going to talk through some of the many lawsuits that he is spearheading to counteract this damaging administration that we are currently living through, month four of the four-year sentence. But first, before we bring out our special guests, it is just us.

And by just us, I mean the three of us, which is actually really rare. We are almost never in the same physical space, but also all of you. So these are, as Melissa just alluded to, and you all know, genuinely harrowing times to be living through. And I gotta say, I think being with your people,

like in real life, in the flesh, is to my mind absolutely critical. So thank you for being here. Seriously. And those of you listening at home, because as you know, this audio recording will be a podcast in your ears on Monday morning. Those of you listening at home, we have more live shows coming up. So please join us at one of those. Okay, first up, some breaking news. And I'm just going to have to say it. When we said we were going to have a live show in Washington, DC, the universe really pulled through for us.

And by universe, I mean the planets, the stars, and the asteroids. Before we get into it, we actually feel compelled to offer a genuine content warning. If there are children in the audience, either at this live show or at home, one word, earmuffs. Truly, for those of you listening with family, we are going to give you a few seconds to turn off or skip ahead or have your kids leave the room.

We mean it. And for everyone else, just a caution, we're going to be discussing allegations of serious and profoundly disturbing workplace sexual misconduct. So with those caveats duly issued, let's proceed to the DEI of the Republican Party, which as Melissa has told us, means the dicks, ex-husbands, and imbeciles. All right. This latest DEI update concerns someone who we haven't talked about for a while, but if you are a longtime listener of the podcast,

then you'll recall the salad days of 2022 when it seemed like we could not have an episode without mentioning Judd with 2Ds Stone. Judd with 2D Stones, do you remember him? Do you remember? Yeah, yeah. Now if you're new to the pod, Judd with 2D Stones is now 3D Judd, not just 2D, 3Ds, maybe even

XXXDs Judd because there's a lot to unpack here. And I've got to warn you, you may actually need to process some of this with a trained and licensed therapist. All right, a brief biographical sketch. Judd with two D's stone is a former Texas Solicitor General, former chief counsel to Senator Ted Cruz, former law clerk to Justice Antonin Scalia and Judge Edith Jones of the Fifth Circuit. If Judge Jones sounds familiar, but you can't quite remember why, maybe it's because she is the judge who came for our friend, Commander Professor Steve Vladeck at a Fed Soc bonfire slash conference last year because of Steve's mean tweets about the federal judiciary,

which he had printed out and brought in a Manila folder, like you do. That seemed pretty aggressive at the time, but in light of intervening developments, actually now seems downright quaint. So back to Judd with 2D's Stone. Stone was Ken Paxson's Solicitor General, and in that role defended some of Texas's cruelest policies,

and he spearheaded some of its most insane litigation. So that included the litigation defending Texas's SB8, the bounty hunter law that shut down abortion access in Texas before the Supreme Court overruled Roe in Dobbs. Stone also defended Texas's SB14, which was a law targeting healthcare for transgender individuals. He also led a lot of the litigation

that Texas filed against the Biden administration, including challenging the Indian Child Welfare Act and a case that claimed that the Biden administration was required to retain the first Trump administration's so-called remain in Mexico policy now if that litany of litigation highlights It didn't jog your memory Don't worry We have prepared a little montage of oral argument clips to give all of you a sense of the stunning some might even say meteoric

claims that Judd Stone has presented to the United States Supreme Court. So Melody, let's roll the tape. So what would that injury be in this under SB 8 if it's an injury in fact? One example could be akin to the injury suffered in the tort of outrage where an individual becomes aware of an uncompliant abortion and they suffer the sort of same extreme emotional harm. That is an exchange between 2D Judd Stone and Justice Thomas in the SPA challenge where Judd with 2D's stone is saying of course anyone and everyone could bring a lawsuit against a person who had or performed an abortion because of the quote tort of outrage. Yeah, okay. He thought that was a thing.

And now here is Judd with 2D's stone challenging the Indian Child Welfare Act answering some questions slash comments Justice Kagan had for him. General, I thought I'd just give you a chance to respond to a reaction I had to your brief. And the reaction was that there is an extraordinary amount of Texas's view of policy in your brief. Two parts, Your Honor. The first is I agree that those observations, those statements of Texas's views have nothing to do with non-delegation, anti-commandeering or Article 1 challenges whatsoever.

Those live or die on various legal principles that are not those. They're just atmosphere. They're in part atmosphere, yes, Your Honor. Just going to say that Justice Kagan knew what the fuck she was talking about in her reference to the atmosphere. Elena Kagan, welcome once again to the Cassandra Coven. Okay, so I think that crash course gives our newbies a sense of Judd with 2D's Stone. He is also one of the individuals who took a leave from government to serve as private counsel defending Texas Attorney General Ken Paxton and Paxton's impeachment proceedings. And that is when some of the events that we are about to discuss occurred.

A lawsuit was filed last week and it suggests that this timeline is cursed in a way that even we genuinely could not have foreseen. And it involves a man who is alleged to have an asteroid slash meteor fetish, and who is aptly surnamed Stone. So an individual who worked as an executive assistant at Stone's private law firm filed this lawsuit. And we are mostly just going to read verbatim

from the complaint because no editorializing is remotely necessary. And we are only going to cover some of what is in this complaint. And you know how some things are NSFW? This is like NSFW times a billion. All right, let's do it. According to the complaint,

and this is actually just the warmup, Judd Stone told the plaintiff when the firm was doing its impeachment work for Paxton, quote, in this firm, there are no rules. You can say whatever slurs you want. For the untutored, this is known as viewpoint diversity. And that does appear to have been the practice. Because according to the complaint

at a lunch conducted at a beer bar, that is a real thing, a beer bar, Stone and his law partner, quote, ordered four shots, one for each person at the table, and asked plaintiff to take a shot. After taking one sip, plaintiff stated, that is the most disgusting thing I have ever tasted. To which Judd Stone replied, I highly doubt that is the most disgusting thing that has ever been in your mouth. Exactly. He also allegedly called the plaintiff white trash because she wore turquoise earrings.

Sir, how dare you? What you don't know is those earrings are not turquoise. They're not lapis. They're cerulean. They definitely got that one. Yeah. So I purposefully wore a turquoise jacket today. Yeah. To stick it to Judd with Tootie's stone. I hope he is triggered as these these men are, so easily, and that he experiences the kind of emotional distress Donald Trump apparently felt while watching 60 Minutes, AKA the tort of outrage.

All right, there's more. According to the complaint, as the impeachment proceedings wrapped up, Stone and the other people at the complaint, as the impeachment proceedings wrapped up, Stone and the other people at the firm, who had also previously been in the Texas AG office, plan to return to the AG's office. But the suit alleges that when the Texas AG's office was informed of these allegations, Stone and his law firm partner were offered the chance to either resign voluntarily or be

fired. So think about that. When you've lost Ken Paxton. So they lost Ken Paxton and chose resignation. But according to the complaint, after Stone submitted his resignation letter, Brent Webster, the first assistant to the Texas Attorney General, wrote the following email. I, of course, was designated to read this portion. Quote, two women who worked with Stone over the summer asked to meet with me.

A female employee, through many tears, told me stories of Judd discussing sexual things with her, specifically regarding a disturbing sexual fantasy Judd had about me being violently, anally raped by a cylindrical asteroid in front of my wife and children. According to this employee, Judd publicly described this in According to this employee, Judd publicly described this in excruciating detail over a long period of time to a group of Texas Office of the Attorney General employees, Office of the Governor employees, federal judges, and other non-government employees at a table. The female employee conveyed she was so disgusted by the violent sexual nature of the discussion,

she left the table to get away from it. When she came back, people at the table harassed her, joking that she, quote, couldn't handle people talking about dicks. Talking about dicks or talking to dicks? Who's to say? They all had some shots. Yeah, wrong proposition, I think, there. So the complaint continues, quote, eventually Judd was confronted with these allegations

and promptly admitted that all the allegations were true, but said it was okay because it was during their time at a private law firm. I slash we will just start out by saying what the utter fuck. I mean that was and is my top-line reaction to reading this complaint. On a more serious note we obviously want to acknowledge the conduct the complaint describes is appalling, full stop, No one should be treated like that in a workplace Even someone who willingly works for Ken Paxton but having a co-worker describe graphic rape fantasies about you is actually outrageous and

Perhaps perhaps it's a total coincidence that a guy with violent rape fantasies would be arguing in favor of that a guy with violent rape fantasies would be arguing in favor of unleashing private bounty hunters to terrorize women and their doctors, or would be rearing to defend laws targeting transgender individuals. Actually, it's probably not a coincidence. These dudes are obsessed with genitalia and sex, and we also want to remind everyone

that these are the people, their party, their ideological cohorts, who are screaming about how gay people shouldn't be allowed to marry, because that's not natural and it will lead to polygamy. These are also the people who insist that drag queens can't participate in library story time because it will corrupt children.

And according to this lawsuit, these same guys are sharing violent rape fantasies that they allegedly want children to witness with unnamed federal judges. Just let that sink in. Over the last couple of months, it is fair to say that we have gotten a glimpse into the mind of at least some members of the federal judiciary, and I gotta say, are the men's okay? There was that oral argument in

free speech coalition versus Paxton where Justice Alito made very clear that he is kind of a little obsessed with Pornhub so there was that. Just the articles remember? Just the articles. Just the articles. Just the articles. Correct. Correct. And then there was the oral argument in Mahmoud versus Taylor, where Justice Gorsuch made clear that he really can't tell the difference between a woman

wearing a leather jacket and a sex worker. That seems actually low level compared to this. PG, G even. You know, we do have a lot of questions about the Judd with 2D Stone story just to take one. Who were the federal judges with whom Stone shared his asteroid rape fantasy? Our DMs are open if you have anything to share about this. Our single chats are also open. Yeah. I think we need a palate cleanser. We need a bath.

A palate cleanser. Agreed. I'm gonna take a drink. Okay take a drink and for the rest of you here as a palate cleanser is Justice Kagan asking for another chance to go after the then Texas Solicitor General in an exchange from one of the arguments concerning Texas's ability to challenge the Biden administration's immigration policies. So here you go.

General, do you think that there's any immigration policy that you could not challenge under the way you view standing? I think that's hard to discuss in the abstract. I mean, every single immigration policy and then, you know, not to mention all the other policies in the world, that if a state comes in and says, I got a dollar's worth of costs that I can show you, and we're just going to be in this in a situation where And we're just going to be in this in a situation where every administration is confronted by suits by States that can, you know, bring a policy to a dead halt,

to a dead stop by just showing a dollar's worth of costs? Two points, Your Honor. The first is, and I can't speak for all States, obviously, even though 37 of them are participating in this case and none have adopted the United States' theory of standing, Texas has more than half of the southern border. Kagan-Perezo-Rosenthal, Jr. It's not responsive to my question. I'm saying that, like, coming in and saying, you know, it seems to us that we have some costs associated with this and we're not going to look at the benefits and we're

not going to look at the fact that, as not going to look at the fact that as Judge Sutton said, the fact that there are priorities, you know, that person A will be, you know, will not be removed versus person B will, that that doesn't particularly show that your net costs are, even that your gross costs are going to rise, let alone your net costs, and all of this speculation and all of this kind of like, we think we kind of showed it, is just not enough given the backdrop of this case. We don't think we showed it, Your Honor. A trial court judge, reviewable for clear error, thinks that we showed it, and he based

that on that. Can I say something about that? Can I...one more? One more. Please, Chief, just one more shot at him, please. But Elena, he's already dead. It's never enough. I relate to that so hard.

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Kavanaugh opinion, which is how you know it's the start of bad decision season. A Brett Kavanaugh opinion is basically like wearing white after Memorial Day. Alright, happily there were no bullet points in this writing, no Dadaist poetry. It was an honest-to- God opinion with paragraphs and everything. You know what they call that? Growth. Growth. I was going to guess that.

All right. That, however, growth is the only positive thing we will say about this particular Brett Kavanaugh opinion. Yeah. It's what happens when you go to Yale. You think everything, life, writing Supreme Court opinions is pass fail. So you do the absolute least, like walking off the stage at your own live show.

Look, the real problem is we all know Brett Kavanaugh has just peaked intellectually and this is just all he has. So the case, Seven County Infrastructure Coalition versus Eagle County, Colorado, is about the meaning of the National Environmental Policy Act or NEPA, which generally requires agencies to provide an environmental impact statement that addresses a proposed project's impact on the environment. And here, the Surface Transportation Board approved an 88-mile railroad line that was going to be used to transport crude oil. Very environmentally friendly.

And the DC Circuit, perhaps unsurprisingly, determined that the board's environmental impact statement was insufficient to satisfy the demands of NEPA. But last week, a unanimous Supreme Court concluded that the DC Circuit was wrong. The real story here is that although the Republican appointees could have decided the case narrowly as the Democratic appointees preferred,

why do that when you can just go YOLO? That's right, the court's YOLO Republicans decided to go real big on this one. Like asteroid size big. Big ball big. The Democratic appointees favored a narrow ruling, although they agreed with the bottom line result. The ruling that they preferred would have said the board wasn't required to consider

in this case the increase in upstream drilling or downstream refining because the board doesn't have jurisdiction, right? Doesn't have authority to approve or disapprove either drilling or refining projects. And Justice Kavanaugh took that personally and decided instead to big ball his way through all of environmental law. His majority opinion said a whole lot of things. So let's recount some of them. Yeah. Yeah. Okay. I mean basically the fact that NEPA is no big deal, it's a law sure, but isn't it really like a law-ish? Not a law law. At a minimum the statute is more of a vibe.

So as he put it and you know he said, hold my beer while doing it, quote, NEPA is a procedural cross-check, not a substantive roadblock. NEPA does not require the agency to weigh environmental consequences in any particular way. Rather, an agency may weigh environmental consequences as the agency reasonably sees fit under its governing statute and any relevant substantive environmental laws.

He also took some substantive swipes at NEPA, as you just heard, but more importantly, he took some real swipes at the prospect of judges judging. So here's another quote. He wrote, quote, some courts have engaged in overly intrusive and unpredictable review in NEPA cases. Those rulings have slowed down or blocked many projects and in turn caused litigation

of verse agencies to take ever more time and to prepare ever longer environmental impact statements for future projects. Justice Kavanaugh accusing other judges of overly intrusive and unpredictable judicial review just belongs in the dictionary somewhere. So not surprisingly, we have some thoughts. First has Brett Kavanaugh been mainlining or chugging or whatever you do with Josh Hawley's book, Manhood, the Masculine Virtues America Needs. So in that book, Hawley goes through several male archetypes that he thinks men should

follow and one of those archetypes is the builder. As Holly explains in the book, quote, the antidote to dependence is building. We've written a lot about Josh Holly's manhood. You know what? I'm going to say that over. Say that over. We have written a law review article about Josh Hawley's book, Manhood, the Masculine Virtues that America Needs, and I just want to say in that law review article we talked about how obsessed the Republican justices are with these kind of manhood tropes and you know this is classic Hawley like Coach K being literally obsessed with the prospect of building something, anything. I mean, this is seriously an edifice complex. Think about it. Think about it. You gotta read books for that one.

Well, I actually do think that Kavanaugh might have read at least one book in addition to Holly's manhood. And let me read a quote- Was it a picture book? It was, actually. Right, puppy. Let me read an excerpt from another excerpt from the Kavanaugh opinion, and then I'll tell you what book I think he read in preparing it.

So quote, fewer projects, so this is under this expansive reading of NEPA, fewer projects make it to the finish line, fewer projects make it to the starting line, that in turn means fewer and more expensive railroads, airports, wind turbines, transmission lines, dams, he loves lists, this guy loves lists, housing developments, highways, bridges, subway, stadiums, arenas, data centers, that also means fewer jobs as new projects become difficult to finance and build in a timely fashion. So first, I just, where is the law in this sentence?

Like, nowhere. Who needs the law if you have a list? Okay, that's true. But back to Leah's guess that it's a picture book. Do you remember those Richard Scary children's books? Oh my God. Like the animals. Dizzy town.

So there's like the animals performing various municipal and private sector functions. I think those were his sources for this opinion. But in his zeal to build, Coach Kavanaugh seems to have forgotten some basic conservative talking points. So he writes that the DC Circuit aired because it, quote, did not afford the board the substantial judicial deference required in NEPA cases.

What's that? Deference to agencies? The Chevron Doctrine would like a word, sir. I love a crowd that responds like that to an invocation of the Chevron Doctrine. Yes. Seriously, you guys are the best. And since you're interested, we'll drill down on this for a minute. I mean- She's so excited. Go Chevron. This was an optional part of the outline, but she's going there.

I am. I'm expanding it in real time. No, I was just going to say, though, there are some passages in the opinion that do appear to maybe somewhat limit Loper-Brite. Of course, the opinion that overruled Chevron, you all know that, or maybe it's just language that vindicates those that thought that Loper-Bright did leave agencies room to exercise discretion

under some statutes, but it may be just that that discretion can be exercised when the court thinks it should and only when the discretion is exercised to the court's liking. I actually think that's what this means. So, Coach Kavanaugh does write that as a general matter, when an agency interprets a statute, review of the agency's interpretation is de novo, right?

That's what Loper-Brite says. But he says when an agency exercises discretion granted by a statute, judicial review is typically conducted under the deferential arbitrary and capricious standard, where the court asks not whether it agrees with the agency decision, but only whether the action was reasonable and reasonably explained. So yeah, curious and curiouser. As we mentioned, this isn't the typical CAV concurrence in the form of a majority opinion. It does contain full sentences. Perhaps he knew that May 31st is National Speak Incomplete Sentences Day,

so he wanted slash needed some practice at that. Still, the sentence level writing in those complete sentences is quite painful. I'm just going to consider this tortured passage, quote, 1970 legislative acorn has grown over the years into a judicial oak that has hindered infrastructure development. I mean, we read these things so you don't have to, and that I think is a service. Yeah. I'm going to say it, like, we're all here among friends. Brett Kavanaugh might be the Dan Bongino of Pete Hexseth.

Yeah. Especially the part where Dan Bongino goes on Fox News to cry slash whine about how life and government service is just so hard, giving all podcast hosts a bad name. But it's not just Kavanaina's mediocre writing, it's the mediocre thought. The opinion reminds me of the court's order in the cases regarding multi-member commissioners, which is to say the second the justices unleash their fed sock sauced theories on the world, be it the unitary executive or overruling chevron, it's like they realize, oh shit, this law we just made up is not great, it's actually kind of

unworkable and crazy. So then they have to announce a bunch of new made-up exceptions to their new made-up theories. The separate writing from Justice Sotomayor who concurred in the judgment and was joined by Justices Kagan and Jackson are like so over these guys. So they indicated they would have, again, reached the same result, but decided the case on much narrower grounds. They took some healthy swipes at the majority's apparent newfound love for agency deference,

at least in some instances. And again, it seems for this court, and you can sort of read this between the lines of the concurrence, the only agency deference the majority can get behind is deference to an agency explaining why environmental considerations should not carry the day. So they write, quote, as the majority points out, agencies often are better equipped to assess what facts are relevant to their own decision than a court is.

And they chased that with a pointed citation to Justice Kagan's dissent in Loverbrite. But... Love it. I cite myself. Yeah. The petty energy I told you so. Live for it. You know...

Okay. Can we... I can't with the Kavanaugh opinion. Can we go to a different bad decision? Well, yeah, let's go to a different bad decision. Let's go to the place where it's always bad decision So how did you get I did how did you guess? Okay? so basically, the Fifth Circuit has learned fuck fuck all from the Trump administration, scuffle with the Library of Congress,

and has decided to fuck with some librarians. Stuart Kyle Duncan, who recently has been fairly overshadowed by his Fifth Circuit colleagues, had quite the en banc opinion in which he concluded that reading is what? Not fundamental. With apologies to RuPaul Stratgrace. So to be very clear, the precise question in this case is whether someone may challenge a public library's removal of books as violating the free speech clause.

And I'm gonna give you one guess as to whether Stuart Kyle Duncan and the Fifth Circuit bros said that people actually have standing to challenge book banning. I'm gonna need one word answers. Ready? One, two, three. You are correct because you listen to this podcast and you know that the Fifth Circuit is America's worst circuit court and in this particular case in this Kyle Stewart Duncan, Stewart Kyle Duncan, what is his name? He says, quote, plaintiffs cannot invoke a right to receive information to challenge

a library's removal of books, because that would establish, here's the reading part, a brave new right to receive information from the government in the form of taxpayer-funded library books. He really thought he was doing something there. He really did. He really did. Yeah.

And I mean, just to be clear, this is not a new right. There are plenty of cases that allow individuals to challenge book bans and censorship, including specifically at libraries. But a full majority of the Fifth Circuit decided to overrule decades of precedent to say there is no right to receive information at a public library, and then a different plurality said The United States has been a very, very, very, very, very, very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very

very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very, very very, very, very, very, very, very, very, very, very, very Yeah, and just take a second to compare this case and the reasoning with Mahmoud versus Taylor where apparently you can challenge the availability of a book at a public school, but here you cannot challenge the removal of a book from a public library because as we all know, books are for bitches and reading is what? Not fundamental. Now I know you're curious what exactly were

the books that were at issue in this case? So the books included Isabel Wilkerson's cast as well as Susan Campbell Bertoletti's They Called Themselves the KKK. Not really surprising because obviously DEI. More surprising though was the exclusion of the classic children's book, In the Night Kitchen by Maurice Sendak. And I'm honestly racking my brain as to why they found The Night Kitchen so objectionable. Okay, so I'm weirdly the children's book expert on stage,

but there's like one picture of this kid falling out of the sky after baking cake for the world, and you see his butt in like a picture, a kid. I'm sure that is why. Well, that tracks, because the other books that were also banned that were on this list in addition to The Night Kitchen were books that really seemed to have a kind of butts and flatulence theme. So in addition to the night kitchen, Larry the farting leprechaun,

and Freddie the farting snowman also caught some strays here. But hear me out. I do have to wonder whether any of the Fifth Circuit judges who were in attendance at the aforementioned lunch were involved in the decision that prevented individuals from challenging the removal of the butts and farts books Because if that were the case seems highly coincidental Very correlative. Yeah.

So I don't know, but I am going to venture a guess that the Fifth Circuit would likely hold in circumstances where books are included as part of a school curriculum, as in Mahmoud versus Taylor, if we're talking about Pride Puppy. Those are not government speech, and they can definitely be challenged by objecting parents. Because the Fed is different, or really just because reasons and the gays is how that line would go. But don't let Stuart Kyle Duncan and the Fifth Circuit Boys win. So I am going to officially declare this summer Hot Indie Bookstore encourage and encourage everyone to buy a book that would

trigger your favorite Fifth Circuit judge. Larry the farting leprechaun! All right moving right along as if the courts of no appeal weren't bad enough already last week the president announced his intention to nominate Emile Bové to the Third Circuit. I'm gonna quote Matt Siegel on Blue Sky paraphrasing Homer Simpson, you thought this was the worst federal judiciary of your life it was only the worst federal judiciary of your life so far. I mean it may be that Judd with 2D stones was unavailable we cannot wait to see what Trump administration

position that guy fails up to. Bovay is obviously very well known in Trump world he is not only a leader in the current Trump DOJ where he pressured federal prosecutors to drop federal charges against New York City's Mayor Eric Adams. That was a move that prompted a spate of resignations. But in addition to that, he was also one of the lawyers who represented the president, then a candidate, as defense counsel in the Manhattan DA's

quote unquote hush money trial, where the former president, it should be noted, was convicted of 34 criminal charges. So again, in the spirit of failing up, Beauvais now may get a lifetime perch on the Third Circuit, the very same appellate court that launched the career of our favorite front of the pod, Samuel A. Alito. It feels necessary to remind everyone once again that this seat was unoccupied during the Biden administration and President Biden nominated Adeel Manji to fill it. Manji would have been the first

Muslim to serve on that court and indeed any federal appellate court. Some members of the Senate took that personally, questioning Manji's representation of certain clients and his loyalty to the United States because Manji is Muslim. And the Senate Democrats let them do it. it. Strict Scrutiny is brought to you by Bookshop.org. Look, we're law professors, we do love the books, but books are the best. I was talking with a good friend from growing up about how we want to spend our money and our time and what we want in our communities.

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So big news. Bookshop.org has launched an ebook app so you can now support local independent bookstores even when you read digitally. Use code STRIK24 to get 10% off your next order at Bookshop.org. That's code STRIK24 at bookshop.org. All right, palate cleanser. Thankfully, it is not bad decision season everywhere. We got two recent decisions that invalidated for different reasons, the president's taco tariffs. A three-judge panel of the Court of International Trade and the District Court for the District of the District of Columbia both concluded that the Trump tariffs were illegal, again, for multiple different reasons, because why just pick one?

And they would have blocked the enforcement of the tariffs. But alas, because it is still bad decision season for appellate courts, the Federal Circuit issued an administrative stay, pausing the Court of International Trades decision, at least until June 9. But the decision of DC, the DC District Court, hasn't been paused, at least at the time of this recording.

And the tariff decisions actually generated an absolutely delicious moment on social media wherein one Donald J. Trump, who apparently listens to this pod in his spare time, just like Sam Alito, announced on social media that Leonard Leo is, quote, a bad person and a real sleazebag who in his own way probably hates America. I for one mourn the end or the possible end of this once beautiful partnership it really could not have happened to a nicer guy. All right and on the topic of more bad appellate decisions last last Friday, the Supreme Court paused a lower court ruling that had blocked the Trump administration

from deporting parolees. This withdraws protections against deportation for some 500,000 Cuban, Venezuelan, Nicaraguan, and Haitian nationals who actually entered the country lawfully. Justice Jackson dissented from the court's order writing that the court quote under values the devastating consequences of allowing the government to precipitously upend the lives and

livelihoods of nearly half a million non-citizens while their legal claims are pending. She also said that quote the court allows the government to do what it wants to do regardless rendering constraints of law irrelevant and unleashing devastation in the process. And we should say while Jackson wrote, the rest of the court didn't, right? There was zero in the court's order. There was zero reasoning that justices cannot bestir themselves to write even like a shitty two pages of justification for uprooting the lives of half a million people. It is galling. And it's getting little coverage.

But please, legacy and mainstream media, tell me more about the Supreme Court standing up to the Trump administration on immigration. I get some version of the question, but isn't the Supreme Court actually good now? And don't you feel worried about criticizing the court whenever I talk about my book, Lawless? And I'm like, no, it's not good. See for example, my book. That's my effort to cite myself. I cite myself.

Yeah, yeah, yeah. Yeah. Yeah. So since we're in DC, I think we have some DC-ish stuff. Yeah. So since we're in DC, I think we have some DC-ish stuff. Well I think I get the sense there are a few lawyers in the house. And I think there are only lawyers in DC. No, no.

We love you non-lawyers just as much. But I'll see. Look, look at that. Yes. All are welcome here. But for those of you who are lawyers and are members of the DC Bar, can I hear from you people here, members of the DC Bar?

Okay. Okay. Okay. Guess what, DC Bar members? Brad Bondi, who is the brother of Attorney General, say it with me, Pamela Joe Bondi is running for election in the DC bar. And I just wanna check, is Brad Bondi in the audience tonight?

Okay, all right. We can continue. Great, okay. So listeners, you'll probably recall in the last few years as certain individuals who might be named Rudy Giuliani Tried to avoid responsibility for their actions one of the institutions that consistently held errant lawyers to account was bar associations Which can discipline and even move for the disbarment of lawyers who have violated their professional oaths

So when we say all elections matter we mean it it. If you haven't yet voted in the DC bar election, get on it. Voting ends June 4th. All right, with the news duly covered, it is time to chat it up with some friends of the pod, old and new. And for our first segment, we are delighted to welcome to the stage friend of the show, Ambassador Norm Eisen. Norm, welcome to Strict Scrutiny. Norm, we are so excited to have you here. We are professionally obligated to keep up with the doings

of all the lawsuits filed against the Trump administration. And even we find it difficult to stay atop the fire hose of litigation in response to the arson campaign that this administration represents. And as someone responsible for much of the litigation, as the fire captain, as we are tempted to call you, we want to take some time to kind of ask you about a few of the cases that you're involved with that maybe haven't gotten as much attention as they should. So first, how many times have you sued the Trump administration so far?

And then tell us about one or two cases you want to highlight. Leah, Kate, Melissa, thanks for having me. Hello, my fellow DC troublemakers. So many good troublemakers here. I mingled beforehand. I mingled. I bought some T-shirts. That's why I buy the swag.

And the merch. I didn't take a free one back in the green room. We have been at the Democracy Defenders Fund, which is my organization that was born out of the defeat of the attempted coup of 2020. I took all the most battle-hardened people, and we now were 40 litigators and communicators, and we got ready for this eventuality. There are, overall, we're part of a coalition. There's over 250 cases, over 170 orders stopping wrongdoing.

We are involved in over 70 of those matters. That's a lot. I'm really tired. There were copious amounts of caffeine in the green room. So two cases that we have worked on just this week, really just in the past 72 hours that exemplify what's going on. Kate and I were talking before. Doge and Dugan. It's like Dungeons and Dragons for litigators. Doge and Dugan.

Doge. We at the Democracy Defenders Fund started the Doge investigation as soon as it was announced. We did dozens of FOIA requests during the transition. I actually applied to be a member of the Doge. Did you get an interview? I did, no. The spokeswoman for the Doge. Shocking, Barb.

Shocking. The spokeswoman for the Doge made the mistake of telling the New York Times, we don't want him, he's a Democrat. Boom, lawsuit number one. Only in the extremely litigious Beltway region does that line get such a vibrant reaction. So we brought the, it was actually the very first lawsuit of any kind against the Trump administration as soon as Donald Trump took his oath of office. By the way, did you notice that he didn't put his hand

on a Bible this time around? I heard he left a scorch mark on the Lincoln Bible in the previous. So that was the first of a series of Doge lawsuits and on Thursday we were in court with wonderful co-counsel for a mini trial on one of the worst things Doge has done, which is paw over the data of tens of millions, hundreds of millions of Americans. This particular case concerned DOJ's access to data in the Office of Personnel Management, which includes the data of people on this stage because it's every current or former federal government employee and every applicant to work for the federal government.

And it was a mini trial, as one of the reporters called it. We put on a series of witnesses, cross-examined the guy in charge from the OPM. And he basically, it wasn't one of those Perry Mason moments that you so seldom get. He basically admitted that the handling of this data in those chaotic first days of DOJ was not according to standards and the judge suggested after the day-long events that she probably was going to rule for us, where now she strongly encouraged. Never a great sign when the judge tells the government, you might want to think about settling this case.

The government lawyers, they were not smart. And when they went to the elevator, they were overheard by one of the reporters. One of the government said, lawyer said, well, I think we lost in there. That appeared. That appeared in the press. And these are the guys that have all our data, right?

That's dope. So we're going to get some, and I think it's important because there is so much grim news, but there's good news too. And part of the good news is that this wave of litigation against Doge exposed that Elon Musk had used a chainsaw when he should have used a scalpel and it helped make him the most hated oligarch in America and it drove him out of Washington. He's gone. He's gone. Do you watch a lot of horror movies, Norm?

I cannot stand horror movies. Because there's this trope in the horror movies that when you think the villain is dead, yeah, he still comes back. Don't spoil my weekend. Okay. At least let me enjoy his absence until he comes back on Monday morning. This is what I do. I'm sorry. He hates me by the way. He's tweeted about me more than 30 times. So that's Doge. And there's many more. There's many more of those cases. And again, it's not just Democracy Defenders Fund.

Wonderful other organizations who do this. So the other case where really extraordinary case is a criminal one, Democracy Defenders Fund is unusual because we both do the civil cases but also work in the criminal arena. And this was a brief that we filed. In some ways, the most amazing brief that I've ever filed, and I've filed a lot of them in my 35 years, just yesterday in the Judge Dugan criminal prosecution,

Donald Trump's adventures in the Judge Dugan criminal prosecution. Donald Trump's adventures in the civil courts have been such a fiasco his first 100 days. He lost 96% of the cases in the month of April. 96%! You can't do that by accident. You almost have to be determined to lose. They've been such a fiasco that he's turned to his criminal powers for the second hundred days. And we've seen a series of truly shocking, he's targeting Miles Taylor, who worked for him.

His employees have attacked a sitting governor, Governor Evers, they're investigating Tish James. I believe her crime is having two houses. Donald Trump cannot forgive that. But the two most serious of this series of criminal cases are the prosecution of a sitting member of the House of Representatives, Representative MacIver, and of a judge in Wisconsin for doing nothing more than controlling her courtroom, Judge Hannah Dugan. So we are representing at Democracy Defenders Fund 140 federal and state judges who are, who filed a brief yesterday defending Judge Dugan. You can applaud those judges.

And that is not a normal thing for retired judges to wade into a controversy like this. And because Kate and I talk about these things all the time, she'll appreciate this. The argument that we made in this brief was to flip the Trump v. US immunity case and say, well, if he's immune, then shouldn't Judge Dugan be immune for doing her job?

That's a sick burn, Norm. It's like an Oprah, it's like an Oprah. Immunity for you, you get immunity, you get immunity, you get immunity. Everybody's immune. Yeah. Audience, I want you to look under your chairs right now. Yeah.

Audience, I want you to look under your chairs right now. So that's a lot of what is happening in the courts. On a recent episode, Melissa posed a profound question. What is a congress and where can I get one? Which prompts us to ask you... There's one for sale just down the block. If you have a spare hand-me-down jet you're looking to offload that that might be the going price. But Norm, Melissa's question prompts us to ask you about this alleged first branch of government. So you might be aware that the House has passed a budget bill not

gonna say its cursed alliterative name. Instead, I'll just use big balls bill. And in that bill is a provision we've gotten a bunch of questions about. It's a provision that would prevent federal judges from enforcing contempt citations in any case in which there was no security given. So what does that mean and what would it do? Get those earmuffs, kids. It's bullshit. It's just another, they got to scratch the itch on Donald Trump and they're just flexing for Trump. What it would do, what this provision would do,

is there's an existing, I've had to deal with this in many of our cases, there's an existing rule, federal rule of civil procedure that requires judges to consider a bond when they are entering injunctive relief. So this new provision would toughen that up a little bit by saying you cannot enforce contempt, which, you know, the Trump administration is nothing if not one continuous contempt roadshow. You cannot enforce contempt unless you have imposed a bond. But it doesn't provide, I probably shouldn't say this because the MAGA caucus in the Senate might be listening, but it doesn't give a dollar amount.

So the, like I had a case where in my appointments clause case, one of my many cases helped make Washington hot for Musk, the judge imposed a $500 bond. So there's a huge body of case law under this rule that says, particularly in public interest cases where it would be crippling for obtaining relief, that you can impose a nominal bond.

So it's like so much this Congress has done. It's the least productive Congress in history. Donald Trump, all of the energy is sucked up by his failed executive orders. That's what it is, but even if it makes it through the birdbath, the rule for budget bills, reconciliation to get around 60 votes, which it won't. It doesn't mean a whole hell of a lot.

Just a quick note for the audience. If you are interested in working to push back on this bill, our friends at Vote Save America have a table out in the lobby. You can talk with them after the show about how you can get involved in that effort. So that is outside. Yes, yes, you got it. Norm, I'm getting a text alert that there's a filing deadline

at some DC court, and you are needed right away. So I think you probably have to go. It's the Jed Stone case I've got to file but I have to tell you that can I tell you that? Okay I think spill the tea. Okay as long as you promise it's like PG-13. I won't mention any asteroids or other minerals. No minerals. Okay, you're being very specific about the minerals. So Judd Stone is actually in the middle of one of the most notorious campaigns of retaliation against nonprofits and civil society right now because just this week the DC Circuit reprimanded and chastised the state of Texas, Paxton,

for an purported investigation against the wonderful Media Matters Organization, a very upstanding investigative media watchdog. Well guess what? The same day that Judd Stone, after leaving the office based on these allegations in Texas, the same day that Paxton announced that investigation, Elon Musk, coming full circle, Elon Musk hired Judd Stone to bring a lawsuit against Media Matters. So he's in the middle of that story too, but the good news is, the good news is, my friend, the man who

brought a fox to its knees on behalf of Dominion, Justin Nelson, has just been retained to try that case. Judd Stone, watch out! Thank you guys. Thank you so much. Thank you so much, Norris. Thank you so much, Norris. Thank you so much, Norris.

Thank you so much, Norris. Thank you so much, Norris. Thank you so much, Norris. Thank you so much, Norris. Strict scrutiny is brought to you by Smalls. When I was growing up, my good friend from high school had black cats, and I was so obsessed with those black cats her parents would send me pictures of the cats after I went away to college.

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that's promo code strict for an additional 50% off your first order plus free shipping at Smalls.com. Whoa. That was bracing. We felt like we needed to end this episode with a big bang. Yes, that is a universe slash galaxy slash outer space joke. Sorry. So we are going to raise our big ballers and delightedly welcome to the stage our second guest of the evening, lawyer, best selling author and author of the terrific Emily in your phone sub stack Emily Amick All right, Emily welcome back to strict scrutiny in the flesh here. Hi everybody. Hello DC So we thought we would start by talking to you about something that happened in Missouri last week Which we will provide a little bit of context for

Okay, so listeners as you know all too well in 2022 the Supreme Court decided Dobbs versus Jackson Women's Health Organization Overturning Roe versus Wade and Planned Parenthood versus Casey and rescinding the constitutional right to an abortion. Thank you. That's exactly Casey and rescinding the constitutional right to an abortion. Thank you. That's exactly it. Don't worry there's more booing to come. And the author of that decision was none other than not a friend of the pod, a frenemy of the pod, one Samuel A. Alito. Well just as Justice Alito envisioned, many states moved immediately to severely restrict or eliminate access to abortion, but perhaps not as Justice Alito envisioned. In other states, the people actually mobilized to protect abortion access, and they did so

by using this weird new invention called democracy. Right? Justice Alito is like democracy, don't know her. Ghosted that bitch. Anyway, so in Michigan and Ohio and in a number of other states, voters went to the ballot box and used methods of direct democracy to actually protect and enshrine greater protections for abortion access in their state constitutions. And in last November's election, there were abortion related measures on the ballot

and actually in 10 states. Notably, one of those measures which aimed to enshrine abortion access in the state constitution was on the ballot in Ruby Red, Missouri. So Emily, what was the outcome of that vote? Remind us. It passed. Yeah.

The people spoke. Are you saying conservative women in Missouri don't want to die in parking lots? I mean, you'd be shocked to learn. Stunning. So on the heels of the ballot measures success, Planned Parenthood filed a lawsuit arguing that Missouri's many abortion restrictions were invalid and a trial judge ruled that the 2022 abortion ban and some, but not all of the state's other restrictive abortion laws violated the new state constitutional amendment

and issued an injunction allowing providers to again begin performing the abortion procedure. So very straightforward right the state Constitution protects abortion access to reproductive freedom there are state laws that are fatally inconsistent with that new constitutional protection the trial court did the only reasonable thing which is to hold those existing state laws impermissible under the newly amended state Constitution but the Missouri Attorney General did not allow

that obviously correct result to stand and challenge those rulings. And last week, the Missouri Supreme Court sided with the Attorney General. It's actually even worse than that because the Missouri state legislature actually had to pass a law that allowed the Attorney General to challenge the court's initial preliminary injunction measures. So that hadn't happened. So they actually passed a law to make it easier to challenge the will of the people. And he did? And what, Emily, just like the Missouri Supreme

Court last week, like what the fuck happened? Like what did the state Supreme Court do? Yeah, so to pregame this event I headed to Pacer. As you do. As one does. Most of the room did. One of our people. One of our people. And, you know, it was like a really bad nightmare flashback to both law school and being an associate where the Supreme Court was like, there's a four-part test and you only completed one part of the

test. And I went back and I looked at the circuit court judge's opinion and I was like, I see all four tests here. I think one of the things that we are seeing, right, taking a step backwards, we heard for many, many years that it's about states' rights. And we just, Roe is bad because it should be up to the states. Like women aren't people. Liberty. That doesn't count those women. But that was obviously always a lie, right? It was always just merely a step in the path towards making sure there's

a national abortion ban. And the trigger law that Missouri had set up that got knocked down but they had all these specific regulations set up to make abortion functionally inaccessible and that's really what we're talking about and sometimes I'll be talking to young activists and I'll be like when I was young I remember 20 30 years ago we were you know, trying to fight all of these different regulations and it was so hard because no one would believe us that was like, this is the path. It's not just about the width of the hallways, right?

Like that is not really what this is about. It's not about the licensing. It's not about the waiting periods. It's not about the texts of what you have to read. It's a much bigger plan about reversing our ability to access health care. And that's what we're seeing the Supreme Court do. And I was reading some of the statements made

by Republican politicians in Missouri. And one Republican member of the legislature said, well, I just don't think people knew what they were voting for. No. And such respect for their constituents. What is democracy? Am I right? And then the Republican Missouri Attorney General said, you know, this is about safety

for women and making sure Missouri is the safest place. Protecting them from their own votes, right? Protecting them, yes. So I guess you already started getting to this, but what does this tell us about the actual appetite for democracy among certain constituencies? This is a leading question. Yeah.

Let's say the appetite is full for democracy. They don't want it anymore. You know, I think that anti-democratic sentiment is such an interesting thing because they like democracy only when it begets their interests, right? Like they're very interested in getting votes for themselves. They're just uninterested in anyone who disagrees with them and the things that they want are becoming an increase representative of an

increasingly narrower portion of the population and also likewise becoming increasingly draconian, increasingly authoritarian, right? Like they're moving, it's getting another inch, an inch, an inch as we move forward and you know democracy I think is, it's, I saw a quote today, this is a little bit of a sidestep here a little, I saw a quote today, this is a little bit of a sidestep here, a little. I saw a little chart today about the difference, the number of coal miners in America versus the number of WMATA employees.

And there's like twice as many WMATA employees as are coal miners in America, right? And like, A, we love our metro here. From the metro, DC statehood. Um, yeah. You know your people, Emily. You really do. I didn't plan that, guys.

But the reason they talk about these types of things is because it's all optics and it's all fake, right? Like, it's, they're messaging to people about things that don't really exist. And I think when they're talking about women's safety and states' rights and all of these things, they're messaging you about things that don't exist. What they really want is to be dictators. They're putting the dick in dictator. Indeed.

Indeed. Um, Emily, you seem up for anything. In high school. Well, guess what, girls? School's in session. Okay. You want to play a little game? Well, let's go. Let's begin.

Let's begin. Let the games begin. We dreamed up... It wouldn't be a live show without a live game. So we dreamed up a really fantastic game for all of you, and we're going to play it with Emily. And this game is called Who Said It? Samuel Alito?

Or Margaret Atwood? It's actually hard as fuck. I'm going to need help here from you guys. You're going to get it. Yes. Okay. So this is an interactive game and this is how it's going to work. Emily, we are going to read you a quote.

It is going to then be up on the screen. We're going to ask the audience to help you out and applaud if they think this is a quote from one Supreme Court justice Samuel Alito or two Margaret Atwood's classic 1985 novel, the novel slash predictive text, The Handmaid's Tale. This is the only time in the show where you're actually going to applaud for Samuel Alito. All right. I am going to read the first one. Better never means better for everyone. It always means worse for some.

Okay, clap if you think this was Alito. All right, some, clap if you think this was Atwood. And we have the audience's view. Emily, what is your answer? Well, I thought it was Alito, but I believe in democracy, so I shall choose Handmaid's Tale. And the answer is? Yes! See? This is why democracy is good. This is why democracy works. OK. OK. Next one. They're supposed to show respect because of the nature of our service.

All right, audience. Clap if you think that was Samuel A. Alito. Yeah. I agree. Got some Alito stans here. OK. Clap if you think that was Margaret Atwood. Got some Alito stans here, okay. Clap if you think that was Margaret Atwood. No Canadians in the house, okay.

All right. Emily, what's your answer? I think this is Alito about the flag incident. Wrong! It's so hard to tell with dystopian texts. Yes. It's so hard to tell with dystopian texts. Yes. It's so hard. Next one.

I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. Okay. Clap if you think this was Samuel Alito. Clap if you think this was Margaret Atwood. Emily? I'm gonna go back to trusting democracy and go with Samuel Alito. You are correct! This is his descent in Obergefell versus Hodges. Yeah. Boo. Okay. So next question. The champions of religious liberty who go out

as wise as serpents and as harmless as doves can expect to find hearts that are open to their message. Okay, clap if you think this was Alito. Clap if you think this was Margaret Atwood. Clap if you think this was Margaret Atwood. Emily. I still think it's Alito, but I'm going to say Handmaid's Tale because I believe in democracy. The people led me wrong. Trust your gut girl.

Trust your gut, Emily. This was Alito's 2022 Notre Dame Religious Liberty Summit in Rome address. Okay, can we, let's parse this for a minute. Like, we gave Brett Kavanaugh a lot of shit earlier for just poor literary references. When have serpents been wise? Isn't, like, wouldn't an owl have been better? Look

the snake in the opening segment of the reputation portion of the heiress tour that snake slapped. Okay that was not the snake he's talking about. Whatever. I think this was a miss. Yeah. Duh. Okay Okay. All right. I've got another one for you Emily. You ready? You look weak Okay, here we go It's no excuse that what they did was legal at the time. Their crimes are retroactive They have committed atrocities and must be made into examples for the rest Audience clap if you think this was Sam Alito.

Clap if you think this was Margaret Atwood. Like we said earlier, the worst federal judiciary so far. Emily what's your choice? Oh, I'll go with the handmaid's tale. You would be correct. Woo! All right, next. Quote, one side or the other is going to win. There can be a way of living together peacefully, but it's difficult because there are differences

on fundamental things that can't really be compromised. Do you think this was Sam Alito? on fundamental things that can't really be compromised. Do you think this was Sam Alito? And do you think this was Margaret Atwood? All right. Am I? Samuel Alito. Democracy aligns with the other correct results. I mean, that's really a wild quote that-

This was a secret recording. Yeah. That's true. So it did sound more literary like he was reading. That's true. That's true. All right. This is the last one because this game is really grim. Okay. Here's the last one. Maybe none of this is about control. Maybe it really isn't about who can own whom, who can do what to whom and get away with it, even as far as death. Maybe it's about who can do what to whom and be forgiven for it. Yeah.

All right. Please clap if you think that was Sam Alito. Please clap if you think that was Margaret Atwood. Emily? Melissa, your reading is just very cinematic, so I feel it's leading the answer, but I will say The Handmaid's Tale. Correct. Wasn't that hard?

It was too hard. It was much harder than it should have been. It was much harder than it should have been. It was much harder than it should have been. Maybe someone is reading on that court. Yeah. Maybe. Or watching the TV series.

Okay, so that was bleak. Maybe not as bleak as Joni Ernst telling us we're all going to die, though. But up there, and there aren't any prizes. So Emily, thank you so much for joining us, but you're not going away just yet. So listeners, again, Emily Substack is Emily in your phone, and she is going to stick around for our favorite things. So here's my list from this week. One, Taylor Swift's Instagram post and letter announcing she now owns her art. Two pieces on the Supreme Court's order on Humphrey's executor, I don't even know her, and those would be Kate Shaw's New York

Times piece, Why is this Supreme Court handing Trump more power? And Steve Lattek's piece at one first, Living by the Ipsy Dixit. Okay, also wanted to recommend Adam Serwer's fantastic piece of the New Dark Age in the Atlantic, and Michelle Goldberg's piece, Elon Musk's legacy is disease, Starvation, and Death in the New York Times. So, in the midst of these fawning exit interviews with Musk and profiles depicting him as this

guy who sacrificed so much to be in government, I think Michelle Goldberg plainly and powerfully laid out the case why this guy should be saddled with the consequences of his actions for life. The piece quotes an associate professor of public health who estimates that the cuts Musk made to USAID have already led to 300,000 deaths, many of them children. Is it my turn now?

Yeah. Okay, I think I drew the short end of the stick in the order. Sorry. Okay. So my favorite things this week, these shoes. These are by my friend Sarah Sklarandis, who's one of my mom friends in New York, and she makes amazing shoes. Check her out. These I love and they're on sale. So bonus. Also awesome this week, I saw Cowboy Carter. And not only did I see Cowboy Carter,

I saw Jay-Z in the elevator bank. And not only did I see Jay-Z in the elevator bank, when I told Kate, she actually made a popular culture reference. Yes. I told her there was a billion dollars in that elevator with her. And I was so dumbfounded that I was literally silent for two minutes. And then I cried because our baby is growing up.

So beautiful. It's like my one reference of the year probably. It's graduation season. But it was today. Kate is graduating from pop culture school. I'm so proud. You guys have taught me well. I'm also, I just started the new season of And Just Like That, and I love Nicole Ari

Parker's Lisa Todd Wexley and her statement necklaces. You don't know what I'm talking about. Get on it. She is amazing. Get on that. Okay. And then I have an illicit confession to make. Okay. One of my favorite things this week, small voice, is that I have been listening on audible to Jake Tapper's book. I know. I hear her out. Just hear me out. I was best AF when she initially shared this. I'm not reading the book, I'm listening to it.

And it is read by Jake Tapper himself. I'm just gonna say Jake Tapper is so bitchy and petty. And you can hear it in the inflections in his... I mean, like it is super, the only way it could be bitchier is if it was read by Titus Burgess from the unbreakable Kimmy Schmidt. And no, I know I'm not supposed to like it and I feel it's a little bit like Corey Lewandowski

and Manga Woman, like you're not supposed to like it but you're drawn to it anyway. And I am, I don't know what to say. And so I'm listening to it and he's just so bitchy and who even knew? Who even knew? I'm still avoiding it. Same, same.

I'm listening so you don't have to. Perfect, thank you. All right, I'm just gonna name a couple. One, a column in the Times last week, M. Gesson's Beware, We Are Entering a New Phase of the Trump Era. I mean, the TLDR is like, outrage can be exhausting. It is really hard to sustain a very high level of outrage. But it is imperative to sustain that level of outrage,

because normalization is what they want and is wildly dangerous. So we are going to stay mad and you should do. Okay, a couple other things. Norm on his substack had a great piece last week, how you helped knock Musk out of DC and out of politics, elaborating on some of the points he was making about the broad mobilization and also the litigation, and it actually being a really important result that we saw this last week that has a lot of participants in getting to that place.

And also another Musk must read is Megan Toohey and Kristin Grimes, New York Times piece on the campaign trail, Elon Musk juggled drugs and family drama, and it is as salacious as the headline. That is the title. That's the headline, and the piece delivers. And I also saw Cowboy Carter this week. I mean, the concert but also the outfits of all of the concert attendees, oh my God.

Everyone was resplendent. And also in addition to the songs, the weird home video interludes. They're not weird. They were home video interludes. Some're not weird. They were home video interludes. Some were a little weird, all were delightful. None of them were weird. Beyonce deserved a break.

She was working really hard. But they included like unexpected cameos of like a blurred out Megyn Kelly that was delightful. And an improvement, honestly. And an improvement. So that was a thing I took in and really enjoyed this past week. And Emily. I'll add into the pylon, I enjoyed learning about the side effects of ketamine on Elon

Musk. You can go Google that yourself. In less erudite things, there's a new Nicole Kidman show in which she wears a country bob called Nine Perfect Strangers. It's doing terrible on Rotten Tomatoes. It's doing wonderful things for me. I'm like, you guys, we have different standards. Um, I love it. So there's that. I have declared this summer Jam Girl summer and that means a number of different things. Most saliently it means buying the expensive preserves and that really fancy imported French butter, the

Bure-Bordier butter. Yeah, so A, buy yourself the fancy butter and spread it on some good bread. But it also is more like a vibe, right? Like we're simmering, we're preserving, we're like enjoying ourselves, taking a little break. And then the last thing is my bestie, Jo Piazza. Her book is coming out in July. Everyone should read it. It's called Everyone is Lying to You and it is a tradwife murder mystery. Everyone should pre-order it so you have the most perfect beach read for July. It's going to be read by Jake Tapper. It is. It is. It's gonna be so bitchy. All right, before we go we have some housekeeping.

So it costs $0 to subscribe to the strict scrutiny YouTube channel. That's right. It is fiscally responsible and constitutionally protected. You don't need Karl and Crow money to get inside court knowledge. Right wing channels are dominating political YouTube right now, and their audiences hit subscribe faster than Alito hits publish on a shadow docket opinion. But the algorithm is basically like a swing justice. It goes wherever the numbers go. And more subscribers means more people hear progressive legal takes.

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Yeah. Yeah. Yeah. Yeah. Yeah. We have a list of thank yous. So thank you again to our guests, Norm Eisen and Emily Amick.

Woo! Woo! Woo! We also want to extend a very special thanks to Sophie Eisenstadt, our tour manager. And we want to extend a very special thanks to our intern, the great Jordan Thomas, who helped us a ton with this episode, especially with a major lift on the Atwood or Aledo game. And while we thank Jordan, we wanted to congratulate Jordan for graduating from Harvard Business School, where Jordan

was one of the speakers. And in addition to graduating from Harvard, Jordan has one semester left to go before he graduates from Yale Law School. So Jordan is amazing. Please give a warm round of applause for Jordan Thomas. We also want to thank the wonderful Crystal Edge Please give a warm round of applause for Jordan Thomas. We also want to thank the wonderful Crystal Edge for opening the show.

Crystal knows that reading is what? Fundamental and that the Supreme Court needs more than a little drag in their life or at least some dragging. Thank you all for being a wonderful audience. We had such a great time. Wait, you want to take a selfie? I do. Melissa really wants to take a selfie with all of you.

Do you want to take a selfie with us? Strix Grutney is a Crooked Media production hosted and executive produced by Leah Lipman, me, Melissa Murray Murray and Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our Associate Producer. We get audio support from Kyle Segeland and Charlotte Landis. Our music is by Eddie Cooper. We get production support from Madeleine Herringer, Katie Long and Ari Schwartz. Matt DeGroote is our Head of Production and we are thankful for our digital team, Ben

Heathcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. You can subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at Strict Scrutiny podcast. If you haven't already, be sure to subscribe to Strict Scrutiny

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